## Facts

- Vincent Pacelli, Jr. was under federal narcotics investigation, and Patsy Parks had testified before a federal grand jury and was expected to testify against him.
- On February 4, 1972, shortly before her anticipated testimony, Parks was killed; her body was stabbed, doused with gasoline, and burned in a remote Long Island area.
- The prosecution’s case relied primarily on Barry Lipsky, an associate who participated in events surrounding the killing.
- Lipsky testified that after an attempt to subpoena Parks, Pacelli indicated a need for decisive action; later, Pacelli and Lipsky picked up Parks in Manhattan and drove to Long Island.
- Lipsky claimed that in Massapequa, he observed Pacelli stab Parks and set her body on fire.
- The day after the killing, Lipsky testified he was called to a meeting at Frank Bassi’s apartment with Pacelli’s wife and other relatives/friends, where (according to Lipsky) Pacelli’s wife offered him money to go to Florida and attendees discussed that the murder had been “bungled.”
- The government offered the meeting evidence to support an inference that Pacelli’s close associates believed he committed the murder and that their belief likely derived from information originating with Pacelli, implying an admission.
- Pacelli was convicted in the Southern District of New York of conspiracy to interfere with civil rights (18 U.S.C. § 241) and obstruction of justice by force (18 U.S.C. § 1503), receiving life imprisonment on the conspiracy count and a concurrent five-year term on the obstruction count.
- Pacelli appealed, challenging (1) admission of Lipsky’s account of the post-homicide meeting and (2) the government’s failure to disclose certain prior Lipsky statements useful for impeachment.

## Issues

1. Whether Lipsky’s testimony about out-of-court statements and conduct by Pacelli’s wife, uncle, and friends at a post-homicide meeting was inadmissible hearsay when offered to support an inference of Pacelli’s guilt.
2. Whether the prosecution’s nondisclosure of prior statements by Lipsky that bore on credibility and inconsistencies violated Pacelli’s right to a fair trial and required reversal.

## Decision

- The Second Circuit reversed the convictions and remanded for a new trial.
- The court held that the post-homicide meeting testimony was hearsay because its probative value depended on the truth of an implied assertion that Pacelli had committed the murder or conveyed that fact to others.
- The court rejected the government’s attempts to characterize the evidence as non-hearsay or as falling within an exception (including co-conspirator-type theories), concluding the evidence effectively presented unsworn accusations from non-testifying declarants.
- The court also held that the government’s failure to disclose certain prior Lipsky statements impaired effective cross-examination of the prosecution’s central witness.
- The combined errors were prejudicial because the case depended heavily on Lipsky’s credibility and the improper evidence tended to corroborate him in a way the defense could not meaningfully test.

## Legal Principles

- Hearsay includes out-of-court statements or conduct offered so the jury will draw an inference that depends on the truth of an implied assertion.
- Evidence framed as “belief,” “state of mind,” or “course of events” may still be hearsay if its only real relevance is that it implies the defendant’s guilt through an unstated assertion.
- When the prosecution uses out-of-court declarants’ words or actions as implied accusations, the defendant is entitled to confrontation through cross-examination; otherwise, admission risks unfair corroboration.
- Suppression or nondisclosure of prior statements that materially aid impeachment of a key government witness can deny a fair opportunity for effective cross-examination and require reversal, especially where the case turns on that witness’s credibility.
- In assessing harmlessness, courts consider whether improperly admitted evidence substantially bolstered a central witness and whether the defense lacked adequate tools to test reliability.

## Conclusion

The Second Circuit ordered a new trial because the government improperly used non-testifying associates’ statements and conduct as implied-assertion hearsay to corroborate its key witness, and also failed to disclose impeachment material about that witness, undermining the fairness of the verdict.


United States v. Pacelli, 491 F.2d 1108 (2d Cir. 1974)