Castle, Senior Circuit Judge, and Fairchild and Cummings, Circuit Judges. On Rehearing: Swygert, Chief Judge, and Fairchild and Cummings, Circuit Judges. Fairchild, Circuit Judge (concurring in part, dissenting in part).
CASTLE, Senior Circuit Judge.
Appellants Sam De Stefano and Edward Speice were convicted by a jury verdict rendered on March 16, 1972 of endeavoring to induce a prospective witness not to testify in a pending federal case, in violation of 18 U.S.C. § 1503 (1970). On this appeal, defendants have raised many objections to the propriety of the proceedings in the district court. Their major objections are that: 1) the indictment was insufficient to charge a violation of 18 U.S.C. § 1503, 2) the district judge deprived the defendants of their constitutional rights to confront witnesses against them and to due process of law by his refusal to subpoena the witness whom the defendants allegedly threatened, and 3) the district judge erred in giving what the defendants characterize as an "expanded Allen-Brown 'dynamite charge'." Our consideration of these and other arguments raised by both defendants convinces us that the conviction of appellant De Stefano should be affirmed, and the conviction of appellant Speice should be reversed and remanded for a new trial.
The trial of the defendants commenced on March 9, 1972. The first government witness was James P. Braseth, a group supervisor of the Federal Bureau of Narcotics and Dangerous Drugs. Mr. Braseth testified that on February 22, 1972 he had one Charles Crimaldi in his protective custody and was escorting him into the Dirksen Federal Building in Chicago to testify in the trial of Anthony Esposito, who was charged with illegally transferring cocaine to Crimaldi. Braseth testified that he and Crimaldi entered an elevator in the federal building and punched the control button thereon for the 18th floor. The elevator proceeded to the second floor, where its doors opened. Just as the doors were about to close, defendant Speice stuck his arm between them, causing them to reopen automatically. After glancing inside the elevator, Speice called to someone who was apparently in the corridor: "Hurry up. Look who's here." Then defendant De Stefano appeared, and both he and Speice entered the elevator together with two men whom Braseth did not recognize. De Stefano stood directly in front of and face to face with Crimaldi, and Speice stood within two feet of De Stefano, also facing Crimaldi. Looking at Crimaldi, De Stefano said to him: "My eyes are dimming, but I think I know you. My memory is fading, too. It must be old age." Then, coming closer to Crimaldi, pointing his finger and gritting his teeth, De Stefano declared in a loud, angry voice: "I understand your eyes are failing -- are dimming, and your memory fading permanently this week." Braseth observed spittle on De Stefano's mouth as he voiced these words, and noticed that De Stefano emphasized the words " your" and "permanently" by raising his voice and smashing his fist into his hand. At that point defendant Speice looked at Crimaldi and stated: "Have you done any fishing lately?" Crimaldi made no response to the remarks of either defendant, but with his face flushed, he trembled as he listened.
Braseth also testified that from his knowledge, acquired while posing as an undercover agent, the phrase "Have you done any fishing lately?" was a means of intimating that the person addressed would shortly end up as fish bait, his body cut up into small pieces and dumped into a convenient body of water.
Defendant Speice testified that he went to the federal building on February 22, 1972 at the request of De Stefano, who needed a driver to take him to confer with people who were involved in trials there. Speice and De Stefano then went to the second floor cafeteria, where De Stefano, in mistakenly thinking that a patron there was someone he knew, apologized with a statement that he supposedly made quite regularly: "My eyes are dimming and my memory is fading." After leaving the cafeteria, Speice approached the closing doors of the elevator and caused them to reopen. Saying nothing, he and De Stefano entered. At this point he saw Charles Crimaldi, whom he hadn't seen for years and who now "looked like he was about to die" because he was shaking and had a flushed face. Looking at Crimaldi, De Stefano made his "usual statement": "Evidently you must know me. My eyes are dimming . . . ." Speice did not recall hearing De Stefano predict that Crimaldi's memory or eyes would fade.*fn1 Realizing the tension in the elevator and thinking that Agent Braseth was going for his gun, Speice then tried to calm the atmosphere by innocently asking Michael Polesti, who had also gotten on the elevator on the second floor: "Have you done any fishing lately?" Speice also testified that Braseth and Crimaldi got off at the 18th floor, and that after he and De Stefano got off on the 21st floor, De Stefano asked him whether he had seen the "nut" on the elevator and speculated that that person must have jumped one of De Stefano's bonds*fn2 or owed him money. When Speice told him that the nervous person was actually Chuck Crimaldi, De Stefano did not believe him at first, but then decided to go back to the 18th floor and to attempt to talk to Crimaldi. They were unsuccessful in this attempt.
Appellant De Stefano did not testify under oath.
I. Sufficiency of the Indictment
The grand jury returned the following indictment against the defendants:
That on or about February 22, 1972, at Chicago, Illinois, in the Northern District of Illinois, Eastern Division, Sam De Stefano and Edward Speice, defendants herein, did knowingly, willfully and corruptly endeavor to influence, obstruct, and impede the due administration of justice in that on or about the date aforesaid the defendants did corruptly and by threat of force endeavor to induce a prospective witness, Charles Crimaldi, not to testify in the case of United States of America vs. Anthony Esposito, 71 CR 980, which was set for trial on that date in the United States District Court, Northern District of Illinois, Eastern Division;
In violation of Title 18, United States Code, Section 1503.
Defendant De Stefano seeks to invoke the holding of Pettibone v. United States, 148 U.S. 197, 13 S. Ct. 542, 37 L. Ed. 419 (1893), to prove that this indictment fails to state a violation of 18 U.S.C. § 1503. That eighty-year-old decision stated that, in order to allege the crime of intimidating a witness, the indictment must charge that the defendant a) knew that the person he threatened was a witness and b) had knowledge or notice that the witness was to testify in a proceeding pending in a federal court.
We find that the indictment returned by the grand jury against the defendants was sufficient. The allegations contained therein are certainly more detailed than those of the indictment returned against the defendant in Pettibone.*fn3 The indictment charges that the defendants acted "knowingly" in violation of 18 U.S.C. § 1503; this allegation of knowledge encompasses the required mens rea for the crime. See United States v. Zolli, 51 F.R.D. 522, 526 (E.D.N.Y.1970). It also sets out "facts that show knowledge or notice," United States v. Pettibone, 148 U.S. at 206, 13 S. Ct. at 546, that Crimaldi was a witness in a pending proceeding. Anderson v. United States, 215 F.2d 84, 89 (6th Cir.), cert. denied, 348 U.S. 888, 75 S. Ct. 208, 99 L. Ed. 698 (1954).
It is also doubtful whether the common law devotion to legal formalities which fathered the Pettibone decision should govern us today. The Supreme Court has clearly stated that the "old common law rules of criminal pleading" have yielded to the modern practice of disregarding formal defects in indictments. Hagner v. United States, 285 U.S. 427, 431, 52 S. Ct. 417, 76 L. Ed. 861 (1932). Instead, the important function of a present-day indictment is to apprise the defendant of the nature of the offense with which he is charged, and to make an adequate record so that the defendant can plead any conviction or acquittal resulting from the indictment as a bar to future prosecutions. United States v. Debrow, 346 U.S. 374, 376, 74 S. Ct. 113, 98 L. Ed. 92 (1953), Hagner v. United States, supra, United States v. Henderson, 471 F.2d 204 at 205 (7th Cir. 1972); Fed.R.Crim.P. 7(c). In accord with this contemporary view of pleading, decisions dealing with 18 U.S.C. § 1503 have held that an indictment worded merely in the language of that statute is sufficient, United States v. Bell, 351 F.2d 868, 874 (6th Cir. 1965), cert. denied, 383 U.S. 947, 86 S. Ct. 1200, 16 L. Ed. 2d 210 (1966), Holland v. United States, 245 F.2d 341, 342 (5th Cir. 1957), even though the indictment contains no express allegations that the defendant knew that the person he threatened was a potential witness in a pending criminal proceeding. Seawright v. United States, 224 F.2d 482, 483 (6th Cir.), cert. denied, 350 U.S. 838, 76 S. Ct. 76, 100 L. Ed. 748 (1955), Parsons v. United States, 189 F.2d 252, 253 (5th Cir. 1951), United States v. Zolli, 51 F.R.D. 522 (E.D.N.Y.1970). Defendant has suggested no reasons to depart from the holdings of these decisions. Nor has he provided any persuasive reasons why this court should add to the necessary elements for charging a violation of 18 U.S.C. § 1503 by requiring that the indictment state the words of threat and the persons to whom the threats were uttered. Defendant De Stefano's reliance upon cases involving threats to the life of the President of the United States and refusal to answer questions posed by the House Un-American Activities Committee involve different statutes, factual situations and first amendment policy considerations which make their holdings inapposite to the instant case.
II. Failure of the District Court to Subpoena Crimaldi as a Witness
The defendants argue on appeal that the district court erred in refusing to order Charles Crimaldi to testify at their trial, either as a court or defense witness. They contend that Crimaldi's testimony would throw light on such questions as what occurred in the elevator on February 22, 1972, and what the words "Done any fishing lately?" actually mean in both common and underworld parlance.
The record reveals that when Speice and De Stefano learned that the government did not plan to produce Charles Crimaldi to testify about the threats made to him in the elevator, they sought to have him subpoenaed as a court or defense witness. At first, government agents intimated that they did not know where Crimaldi was; later they admitted knowing his whereabouts, but reported that Crimaldi had insisted that he could not testify against his former juice-racket employer De Stefano because of his deathly fear that De Stefano would cause him harm. The agents did, however, arrange for Speice's attorney to talk to Crimaldi by telephone.*fn4 The person at the other end of the line who identified himself as Crimaldi stated that he was afraid of coming to Chicago to testify because he did not believe that the government could protect him. If the government could not prevent John and Robert Kennedy from being killed, he reasoned, it could not ensure his safety either.
At the outset, we note that the question of whether a witness can or must be produced to testify at trial implicates two constitutional considerations. The first allows a defendant to secure the appearance of certain witnesses that can provide relevant and helpful evidence for his defense; it is based both on the sixth amendment right of the accused "to have compulsory process for obtaining witnesses in his favor" and on the "fundamental requirement of fairness" for criminal trials inherent in the due process clause of the fifth amendment. Roviaro v. United States, 353 U.S. 53, 60, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). The second constitutional consideration precludes the use of testimony against a defendant without affording him the opportunity to cross-examine the person testifying, when the evidence adds substantial and even critical weight to the case against the accused; this safeguard is based upon the sixth amendment right of confrontation. Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). Both these considerations are involved in the instant case: the first is implicated in the case against De Stefano, the second in the case against Speice.
a) Right to Secure Witnesses.
Defendant De Stefano argues that his right to compulsory process meant that Crimaldi's fears of retaliation could not excuse his refusal to appear, the government's failure to disclose his whereabouts during trial, or the district court's denial of all motions to subpoena him. He submits that the right to demand the production of witnesses is vested in a defendant without qualification.
As both sides admit, there are few, if any, cases bearing on the question of whether the government must produce a witness who refuses to testify because he is allegedly fearing for his life. The proper resolution of this issue, we believe, is to consider first whether the government was constitutionally required to produce Crimaldi; only then is it necessary ...