APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Crim. No. 74-71).
Van Dusen, Rosenn and Weis, Circuit Judges.
The defendant appeals from his sentence on a conviction for extortion and conspiracy to commit extortion in violation of 18 U.S.C. § 1952(a)(3) and 18 U.S.C. § 371. The district court wrote two opinions: United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975); United States v. Shaffer, 383 F. Supp. 339 (D. Del. 1974), which contain the background facts.
In his first argument for reversal, the defendant strongly urges us that the district court committed reversible error in one of the cautionary remarks it made in the course of the trial. At that point in the trial, the Government sought to introduce the out-of-court declarations of Vespe's deceased co-defendant, Shaffer, through the testimony of the complaining witness, Remedio. Counsel for Vespe objected that the Government had not yet proved prima facie Vespe's participation in a conspiracy by proof aliunde. United States v. DeLazo, 497 F.2d 1168, 1170 (3d Cir. 1974). The district court admitted the testimony, subject to its being stricken if the Government failed subsequently, by proof aliunde, to demonstrate prima facie Vespe's connection with a conspiracy, with the following precautionary instruction:
"Now, members of the jury: This is a conspiracy case and what has just been testified to is an alleged statement by a co-conspirator, Shaffer. You may not take into consideration - I have permitted this evidence to be admitted, subject to being stricken later if it is not proven by the Government that there was a conspiracy that existed between Mr. Vespe and Mr. Shaffer. If there was a conspiracy and that is proven by independent evidence, aside from any declarations made by Shaffer, then you may consider that evidence. But you cannot consider the evidence until the Government has proven that there was actually a conspiracy between Shaffer and Vespe, because a declaration of Shaffer could not be held against Vespe under the rules of evidence in a court of law in the United States.
"So I have admitted this evidence as to the declarations by Shaffer subject to the Government's proof that there was a conspiracy in existence between Shaffer and Vespe."
N.T. 121-22 (quoted, 389 F. Supp. at 1370). The defendant contends that the second sentence in this precautionary instruction left the impression in the minds of the jurors that the conspiracy would have been proven if the court did not subsequently strike the evidence. Since the court did not subsequently strike the evidence, the defendant argues that the jury was in effect directed to find the defendant guilty.
If the second sentence stood alone, we would have to agree that it improperly usurped the jury's function in determining whether Vespe and Shaffer had conspired. However, the offending sentence was embedded in a long trial in which the instructions to the jury, when read as a whole, on the co-conspirator rule were not only consistent with due process but were actually favorable to the accused. The remainder of the precautionary instruction quoted above, in particular, suggests that the Government must prove to the jury that a conspiracy existed between Vespe and Shaffer before they may consider Shaffer's hearsay declarations as evidence against Vespe. To the same effect was the court's final charge:
"In determining whether a conspiracy existed, the jury should consider the actions and declarations of all of the alleged participants. However, in determining whether a particular defendant was a member of the conspiracy, if any, the jury should consider only his acts and statements. He cannot be bound by the acts or declarations of other participants until it is established that a conspiracy existed, and that he was one of its members.
"Whenever it appears beyond a reasonable doubt from the evidence in the case that a conspiracy existed, and that a defendant was one of its members, then the statements thereafter knowingly made and the acts thereafter knowingly done, by any person likewise found to be a member, may be considered by the jury as evidence in the case as to the defendant found to have been a member, even though the statements and acts may have occurred in the absence and without the knowledge of the defendant, provided such statements and acts were knowingly made and done during the continuance of such conspiracy, and in furtherance of some object or purpose of the conspiracy.
"Otherwise, any admission or incriminatory statement made or act done outside of court, by one person, may not be considered as evidence against any person, who was not present and who did not hear the statement made, or see the act done.
"Therefore, statements of any conspirator, which are not in furtherance of the conspiracy, or made before its existence, or after its termination, may be considered as evidence only against the person who made them."*fn1
N.T. 743, 747-48 (quoted, 389 F. Supp. at 1371). By instructing the jury that they had to find beyond a reasonable doubt that Vespe was connected with a conspiracy before they could consider Shaffer's declarations against him, the court in effect required the Government to meet its burden on the basis of the proof aliunde alone. If the proof aliunde did not convince the jury of Vespe's guilt beyond a reasonable doubt, the court's charge did not allow them to resolve their doubts through the use of Shaffer's declarations. Because the court's final charge thus required the Government to meet its burden by proof aliunde, we believe ...