# Petition — Gigliotti v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 935

## Text

4, Supreme Court, U.S
« FILED

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1975

No. %5-1062

UNITED STATES OF AMERICA,
Respondent,

RONALD GIGLIOTTI,
Petitioner.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE UNITED STATES

KENNETH MICHAEL ROBINSON
Pendleton & Robinson
The Judiciary Square
306 - 6th Street, N.W.
Washington, D.C. 20001

Counsel for Petitioner

Washington, D.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202! 393-0625

OPINIONS BELOW
JURISDICTION
QUESTIONS PRESENTED
STATEMENTS OF FACTS
ARGUMENTS

I.

(i)
SUBJECT INDEX

COUNSEL AND THE TRIAL COURT HAD
A DUTY TO RAISE THE SEVERANCE
ISSUE ON BEHALF OF PETITIONER

DEED Seeeeecce eens cee b eben ee &s

A. The Court Erred In Not Ordering A

nT ig Fact Ane aes |e tO ee

B. Ineffective Assistance of Counsel re

PRE SALE nae aire MCMC ter cP a eas

1. The Standard of Review: United

rr eee eeawes

to

Trial Counsel’s Fulfillment of the

ne ee bas
SS Se eee ere

THE GOVERNMENT'S GRAND JURY
PRESENTATION OF ITS CASE AGAINST
RONALD GIGLIOTT! WAS WHOLLY
INADEQUATE; THE FAILURE TO SUB-
MIT ANY EVIDENCE OF CRIMINALITY
ON THE PART OF PETITIONER SHOULD
HAVE RESULTED IN A RULING BY THE
DISTRICT COURT THAT IT WAS WITH-
OUT JURISDICTION TO PROCEED WITH

8 a ee eee

THE DELIBERATE ELICITATION BY THE
PROSECUTOR FROM THE F.B.l. AGENT
THAT THE AGENT WAS SPECIALLY
ASSIGNED TO THE ORGANIZED CRIME
DIVISION CONSTITUTED CLEAR ERROR
AND REQUIRES A REVERSAL OF THE

SGEETE GHEUPUEGUEEID os cee saccscaesss

Sw 6 £6 2 ee Fa 8 22 6.4.86 8 2 8 ee eS 6 es es

aS 62 8282 2 @ 6428 2 82 8 ee 2 ee 8 a 6

7 me ae

er

(ii)

IV. THE EVIDENCE CONSIDERED IN THE Page
LIGHT MOST FAVORABLE TO THE
GOVERNMENT IS INSUFFICIENT TO
SUSTAIN PETITIONER'S CONVICTION ........ 42

V. THE U.S. COURT OF APPEALS FOR THE
SECOND CIRCUIT DID NOT PROPERLY
PROVIDE PETITIONER’S APPELLANT
COUNSEL THE OPPORTUNITY TO bas
RESPOND TO THE GOVERNMENT'S
APPELLEE BRIEF WHICH WAS RECEIVED
THE FRIDAY, DECEMBER 5, 1975,
BEFORE ORAL ARGUMENT ON MON-
DAY. DECEMBER 8, 1975, AND SAID
FAILURE TO PROVIDE SUCH OPPORTU-
NITY AMOUNTED TO AN INADEQUATE,

UNFAIR APPELLATE REVIEW BELOW ........ 47
re een ee hha wen ee eee 49
APPENDIX A

Fog ge 8 near ara la
APPENDIX B

AFFIDAVIT OF PETITIONER’S COUNSEL ......... lb

TABLE OF AUTHORITIES
Cases: Page
Berger v. U.S., 295 U.S. 78,88 (1934) .....-55 eee ee .39
Brown vy. U.S., 6 F.2d 364, 368 (2d Cir.) cert.

ie UO. ee
Cardaropoli, et al. v. Norton, —— F.2d (2nd Cir.

EY EE. cet ac ee ene ederervebaes wa 40
Catalano v. United States, 383 F.Supp. 346 (D.

I a a a a eg a eee le 40
Coco v. United States, 414 U.S. 1064 (Sth Cir.

RN tne, A a ree ea ee ee oe 4)
Coles v. Pevton, 389 F.2d 224, 226 (4th Cir., 1968) ....... 20
Costello v. United States, 350 U.S. 359, 76 S.Ct.

tee ee ee ere:

(iii)

Page
Daneals, 370 F.Supp. 1289 (W.D.N.Y., 1974) ........... 24
DiCarlo v. U.S., 6 F.2d 364, 368 (2d Cir.) cert.
Se es PD. chee reece ne neceecss 39
Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781 (1887) .......... 35
Gaiter v. United States, 413 F.2d 1061, 1066 (D.C.
ig SO ee I OE ED once: aescescseda 24
Gerstein v. Pugh _U.S.__ 95 S.Ct. 854 (1975) .......... 37
Glasser v. United States, 315 U.S. 50, 62 S.Ct. 457
tN ee ata serene SC a eed arg a ay aan ore 42
Griffin v. Illinois, 351 U.S. 12, reh.den. 351 U.S.
ara ea a ale de a's ae Wa Wie ow -a-% So 4]
Heflin v. United States, 358 U.S. 415, p.418 (n.7) 2... ... 2
Hodge v. United States, 126 F.2d 849 (D.C. Cir.
RG rE ane hae es fey a a 41
Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111
eon eee eee i le Soe Sy 65k ae
Johnson v. Superior Court; Calif. Sup.Ct., 9/19/75,
18 Ce... 2054 (October 15th, 19TS) 6 ww ee eee
Jones v. Huff, 80 U.S. App. D.C. 254, 152 F.2d 14
aaa Orhan eS nn ara Se 4,17
Krulewitch v. United States, 336 U.S. 453 (1949) ........38
Lawn v. United States, 355 U.S. 339, 78 S.Ct. 211
a aa ena a en rag Sag ali aie: dy Oe
McNabb vy. United States, 318 U.S. 332, 63 S.Ct.
EET ee ne
Masiello v. Norton, 364 F.Supp. 1131 (D. Conn.
ee ae ie a ee a wee ae eas Bip M o:x-% hi 40
Mills v. Alabama, 384 U.S. 214; 28 U.S.C. 81257 ........ 2
Russell v. United States, 369 U.S. 749.82 S.Ct.
a a TSN ia ah ee es 37
Santiago v. United States, 94 S.Ct. 1561 (2nd Cir.
eae er ee eb aes Big ie 6s o 68 o4 4

(iv)

Page
Sciortino v. Zampano, 385 F.2d 132 (2nd Cir.,
GFP cee ic eweseseus+e055es550 ee 26, 27
Stirone v. United States, 361 U.S. 212 80 S.Ct. 270
(IGG nc cee vccedeueevees 63056 37
United States v. Brettholz, 485 F.2d 483, cert.
a re re 4]
United States v. Broadway, 477 F.2d 991 (Sth Cir.,
ISTE) ccc eeceuveunuss sabe 55eee eee 41
United States v. Butler, D.C. Cir. No. 73-1891,
Geckfed Angutt 2B, WETS nc chive evesseb esse 21
United States v. Calandra, +14 U.S. 338. 94 S.Ct.
GIS CIDP 5 cvccevcccesces enn ee 22
United States v. Cox, 342 F.2d 167, 170 (Sth Cir.,
GS) nec ee ees ceusdeenbene eee 24
*United States v. DeCoster, 159 U.S. App. D.C. 326,
at 331 n.21, 487 F.2d 1197, at 1202 n.21 ....... 17, 18,
19, 20, 21
*United States v. Echeles, 352 F.2d 892 (7th Cir.
| Parr ee 15, 16
United States v. Estepa, 471 F.2d 1132 (2nd Cir.
PTSD ce nee cénebeense + eee 23, 24
United States v. Falcone, 109 F.2d 579 (2nd Cir.,
PP 46
United States v. Gallo, 394 F.Supp. °10 (D. Conn., |
SFTSP tcc ete neceeensé os a6 eee 24
United States v. Garguliv, 310 F.2d 249, 253 (2nd
Ae, | Pe Me 46
United States v. Harrington, 490 F.2d 487 (2nd Cir.
OTE) nce cuecnseeenes sno 4]
United States v. Hines, 470 F.2d 225, cert. denied,
410 DL. 968 (506 Cle. U9FED wc ot eee eee 4]
United States v. Johnson, 513 F.2d 819 (2nd-Cir..
TDISD nce ccens eae eie es 6k ee 46

*United States v. Jones, 157 U.S. App. D.C. 158,482
28 747 CIGTS) gnc 0 0 0 oe eee ee

(vy)
Page
United States v. Koscot Interplanetary, Inc., et al.,
EE, cccccccccoceceeccoes 15
United States v. McCarthy, 470 F.2d 222 (6th Cir.
et TCC Ce he eke bed bececevesccoees 41
United States v. Nakaladski, 481 F.2d 289. cert.
ee eC epee eee oeccecces 4)
United States v. Peden, 472 F.2d 583 (2nd Cir..,
Ose eh. CLL ie bee cceseoceeceoes 36
United States v. Schwartz, 464 F.2d 499 (2nd Cir.
eee ce ee de eedeseccecrcecs 24
United States v. Tamaivlo, 249 F.2d 683 (2nd Cir.
~~ EEC Ee eee ea eebececececccccccns 4]
United States v. Taylor, 464 F.2d 240 (2nd Cir.
ee ee tobe e ee de eee eececcess 42
United States v. Thomas Carter, 475 F.2d 351 (DC.
ee es cee es eceeeseccees 15, 16
United States v. Toscanino, 500 F.2d 267 (2nd Cir..
EE EE
United States v. Tutinv, 269 F.2d 488 (2nd Cir.,
ED ck waco es deccecececcecesce 42
United States v. Yaughn, 493 F.2d 441 (Sth Cir.
eee ewe ese eecccccs 4)
United States ex rel Curtis v. Warden of Greenhaven
Prison, 463 F.2d 84 (2nd Cir.. 1972) ...........29, 35
United States ex rel Haynes v. McKendrick, 350
F.Supp. 990, aff., 481 F.2d 152 (2nd Cir.,
ETC Eee dete ccc c cee cece ees 4)
United States ex rel Morrison v. Forster, 175 F.2d
IPT Lk.
Vierack v. United States, 318 U.S. 236 (1943) .......... 39

(vi)

OTHER CITATIONS

Orfield, The Federal Grand Jury, 22 F.R.D.

DEDTOOGITOOD cbecscccccstvecccoseeesoveees

The Grand Jury: True Tribunal Of The People Or
Administrative Agency Of The Prosecutor, 2

in: GE BP EEE odecéccecuseeeceed sates 23
Title 18, United States Code Section 892 ..............
Title 18. United States Code Section 894 ..............

Rule 31(a) of the Federal Ruies of Appellate

TPS PE RE ORR pigs ne A ey a ay ee
Rule 33 of the Feceral Rules of Criminal Procedure

IN THE

Supreme Court of the United States

OCTOBER TERM, i975

No.

UNITED STATES OF AMERICA,
Respondent,

RONALD GIGLIOTTI,
Petitioner.

— ee

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE UNITED STATES

The petitioner, Ronald Gigliotti, respectfully requests
that a writ of certiorari be issued to review the
judgment and order of the United States Court of
Appeals for the Second Circuit entered on December 8,
1975.

OPINIONS BELOW

A jury at the Unites States District Court for the
Eastern District of New Youk, entered a verdict of
guilty against petitioner in reference to the charge
stemming from 18 U.S.C. $894. Judgment was entered
on August 29, 1975. An appeal was taken to the U.S.

2

Court of Appeals for the Second Circuit and on
December 8, 1975, the Court affirmed the judgment
below from the bench.! Appellant counsel was notified
to petition for writ of certiorari to the United States
Supreme Court and failed to do so in a timely fashion.
On Thursday, January 8, 1976, petitioner’s counsel
filed an application for an extension of time in which
to file a petition for writ of certiorari. On January 12,
1976, Mr. Justice Marshall denied said application for
being “out of time’. Petitioner is presently on a
$10,000 bond pending the resolution of this petition.

JURISDICTION

This Court has jurisdiction despite the failure of
petitioner to file within the prescribed thirty days
pursuant to Schacht v. United States, 394 U.S. 58, 63:
see also Heflin v United States, 358 U.S. 415, p. 418
(n.7) and because petitioner herein concedes that there
is nothing left to be tried in any further proceedings.
See Mills vy. Alabama, 384 U.S. 214; 28 U.S.C. § 1257.

QUESTIONS PRESENTED

1. Whether the trial court committed reversible
error in failing to sua sponte sever petitioner from trial
with the co-defendant Riccardi or at the very least
petitioner was denied effective assistance of counsel by
his counsel’s failure to properly raise the severance
issue?

2. Whether the Government’s Grand Jury presenta-
tion™ of its case against petitioner Gigliotti was

'A copy of said order is a part of Petitioner's Motion For
Extension of Time filed with this Court on January 8, 1976.

3

insufficient to warrant a finding of probable cause to
indict?

3. Whether the deliberate elicitation by the prosecu-
tor from the F.B.1. agent that said agent was specially
detailed to Organized Crime cases caused the petitioner
to be tried unfairly?

4. Whether there was sufficient evidence to sustain
petitioner’s case to go to the jury?

5. Whether the United States Court of Appeals for
the Second Circuit erred when it required appellant to
make oral argument on Monday, December 8, 1975,
without the benefit of filing a reply brief to the
Government’s brief which was received for the first
time by appellant counsel on Friday afternoon,
December 5, 1975?

STATEMENT OF FACTS

Petitioner Gigliotti and his co-defendant, Ciro
Riccardi, were charged with making extortionate loans
to Frank DiPalma in violation of 18 U.S.C. §892 and
with one count of using extortionate means to collect a
debt from Mr. DiPalma, in violation of 18 U.S.C. § 894.
Both defendants were acquitted of all but the one
count charging a violation of 18 U.S.C. §894.

The first witness was Sgt. James Oleska, a New York
City police officer attached to the District Attorney’s
office in Brooklyn. He testified that after DiPalma saw
him in the office, he spent the night at DiPalma’s
house. At about 11:00 P.M. there was a loud pounding
on the door and three men were heard yelling outside
(Tr. 34*), but the witness could not identify any of the
people involved (35-36), The next day he _ turned
Difalma over to the F.B.1. (42).

4

On cross examination it was established that Officer
Oleska made no entries in his memorandum book or
other reports which in any way described or told of the
incident that occurred in DiPalma’s house, wherein the
men tried to gain entrance. The officer admitted that
he had not put this in, even though he considered it an
important aspect of the case, important enough for him
to call for a back-up team to stay outside the house.
(48-49) He also did not try to obtain the license plate
number of the car and could not identify either
defendant.

The next witness was ARTHUR RUFFELS, who said
that he was an F.B.i. agent assigned to the Organized
Crime Division.(22) There was strenuous objection to
this characterization by the defense attorneys, but a
motion for a mistrial was denied. (22) After extensive
argument in which it was pointed out that such a
characterization placed the idea in the jury’s mind that
the defendant had organized crime or Mafia links, the
only action that the Court took was to charge the jury
that the section to which an agent was assigned was
immaterial. (25A-26)

The agent testified that he met DiPalma in the
Rackets Bureau office of the Brooklyn District
Attorney’s office, where he took a written statement
and opened an F.B.I. file. (85-86) He was allowed to
say, over objection, that he arranged protection for
DiPalma (87-89). The witness said that on June 2, 1972
he placed a body transmitter on DiPalma and took him
to Avenue X and McDonald Avenue. (94-95) He
remained in the automobile with a camera and
recording equipment and DiPalma met with two men.
Photographs were introduced. The objection was made
that this entire transaction was beyond the scope of the

indictment because it occurred on June 2,
1972, (98-100) and the indictment alleged in both
counts that the action occurred between May |, 1971
and May 18, 1972. Ruffels identified the cassette
recording of the conversations, a transcript of the tape
and the tape was played for the jury, who were also
given copies of transcript. The jury was told that the
recording was evidence rather than the transcript.
However, the tape did not work at the time and
FRANK DiPALMA, the main witness, was called prior
to the actual playing of the recording.

He said that he was a car cleaner with the New York
City Transit Authority and had been a bookmaker from
1970 to 1972, a period of two years.(Tr. 16) He
identified the detendant, CIRO RICCARDI, and said
that he needed money and was taken by someone to
see Riccardi, where he requested a loan of
$1,000.00. (19-20) Petitioner supposedly said that he
would give him the money the following Friday. The
next week, the witness came back, received the
$1,000.00, and the agreement was that he would have
to pay $50.00 interest per week over the principal sum.
That means that the following week $1,050.00 would
be due and he would be paying $50.00 a week until he
paid back the $1,000.00. (20-22) DiPalma said he paid
$50.00 «a week for months and then borrowed an
additional $1,500.00 more from the appellant. Appel-
lant then told him that the interest, or “vig’? would be
125.00 per week from then on, and DiPalma agreed to
that sum. (23) At that point the interest he had already
paid came to about $1,000.00 for the previous three
month period. DiPalma said he paid the $125.00
amount for approximately five or six months when he
needed another $1,000.00, and saw Riccardi again. At

6

that point the meeting took piace in a Lincoln
automobile, and a few days later he got the additional
money, and the interest ran to $175.00 per week. (28).
The total principal debt at that time was $3,500.00.

DiPalma said his financial condition was very bad. He
described himself as a degenerate gambler and said he
owed approximately $12,000.00 or $13,000.00. (27) He
made a salary of $140.00 per week (28) and said he
wus able to pay the $175.00 for approximately four or
five months. (29) There came a time in late 1972 or
early 1973 when he could not pay any more because he
did not have the funds. (34) He went to see Riccardi at
the motorcycle shop where they had met before and
Riccardi offered to reduce the amount to $150.00 a
week. The witness allegedly said it would still be too
hard, and Riccardi told him that that was the way it
had to be. A few weeks went by, but he did not pay
any money because he could not afford it. He hid out
for a week and saw Riccardi a week or two later en
Avenue X. (30 A-31) At one point he was driving on
85th Street in Brooklyn and a car stopped him.
Riccardi and Gigliotti had been driving in the car and
they got out and had a conversation with him in front
of a cemetary. (31) Riccardi asked where he had been
and DiPalma replied that he hadn’t had a chance to see
him. DiPalma said that Riccardi told him if he did not
get the money up, he would put him in the hospital
where no doctor’s bills would be able to pay for it. (32)
Gigliotti allegedly said it did not pay tor DiPalma to get
hurt and that he should pay Riccardi the money he
owed him. (32)

DiPalma testified that he came to see Riccardi about
two days later and made out a phony check for
$900.00 which he gave to Riccardi, in order to reduce

5

the principle and reduce the interest to $125.00 a
week. (42) The record is not clear if he actually gave
the check to Riccardi, but in any event the check never
was Cleared. The witness said he did not know what to
do, so he went to the Coney Island police station,
spoke to a detective and thereafter went to the District
Attorney’s office (43-46). The next morning he met
with the F.B.I. (47). He also testified that the night of
May 17, 1972 the police drove him home and stayed
with him. (47-48) Some people pounded on the door
that night, but he would not let them in. The people
left, and the witness said he looked through the
window and recognized Ciro Riccardi (48-49).

About one week later DiPalma was at home and a
friend of his came and spoke to his wife. DiPalma went
down to the corner and met Riccardi. (49-50) He said
that Riccardi punched him a few times in front of his
friend. (50) Said event also occurred outside the date
alleged in the indictment, since it was about a week
after DiPalma went to the police. DiPalma said that he
was put against the car by Riccardi. Upon the arrival of
Mrs. DiPalma and the stick she was wielding, Riccardi
allegedly fled around the corner. (51) DiPalma said he
spoke to Arthur Ruffels, described the beating he had
received, and the F.B.I. took pictures of him. (52).

DiPalma also described how the agent put a body
transmitter on him and drive him to Avenue X where
he met with Ronaid Gigliotti. DiPalma asked for
Riccardi. DiPalma insisted that Riccardi see him. (54)
This June 2, 1972, conversation also occurred beyond
the dates alleged in the indictment. Motions to exclude
the conversations were denied. (55-59) After DePalma
insisted on seeing Riccardi, Gigliotti told him to wait
there. At any rate, Gigliotti apparently arranged for

8

DiPalma to meet Riccardi at a furniture store, and after
DiPalma went there. Riccardi drove up in a car. (65)
Riccardi and. DiPalma spoke about the money and
DiPalma denied ever being a loan shark or having taken
bets from Riccardi or Gigliotti. He also said he paid a
total of $7,000.00 interest on a debt of $3,500.00. (68)

The tape was then played for the jury. Cross
examination was put off until Ruffels completed his
testimony and was cross examined. |

Ruffels said that he found out that DiPalma was a
bookmaker. A fact that he found out at the Eastern
District Strike Force. (33) He also said that the on and
off switch on the tape machine was under the control
of DiPalma while he was talking, and he told DiPalma
before the conversation what type of conversations
were necessary to base a pros cution on, such as talking
about “vig”. (103) Ruffels acknowledged that the tape
was not so clear and that he had to prepare three
transcripts before the final one was adequate. The
witness denied instigating the meeting of June 2, and
said that DiPalma told hime that they used to meet
every Friday at 3:00 P.M., and what Ruffels merely did
was suggest he keep the meeting that DiPalma would
normally attend. (107) Ruffels could not explain, why
there were no meetings on May 19th and May 16th,
i.e., their usual practice of meeting on Fridays had
apparently been discontinued prior to the June 2nd
meeting. (101-111) It was also brought out that Agent
Ruffels never made an interview report about the
occurrence of May 15th in front of the cemetary, even
though Ruffels admitted that he interviewed DiPalma
on May 18, 1972, three days after that incident
apparently took place. (34) In fact no record of that
cemetary incident could be found in any written

9

report. (35) The agent also admitted that in discussing
what type of conversations DiPalma should have with
Riccardi, he suggested that a “threat would help’’. (36)
Apparently there was also a conversation which related
to the idea of getting Riccardi angry with DiPalma.

The witness said that the time that elapsed from
when DiPalma originally met Gigliotti on June 2nd to
when DiPalma met Riccardi was about eleven minutes.
On redirect Ruffels said that the reason he shut off the
tape was so that there would be enough to record the
conversation. (134) He said that he really had the
controls to shut the tape on or off, although he had
previously said he thought the controls were in
DiPalma’s custody. He saw Riccardi’s vehicle approach
and that there were no threats made, shouts, weapons
or other signs of violence during the conversation. (37)
In fact, Riccardi may have been a little apprehensive,
since he searched DiPalma. (38)

DiPalma was recalled for cross examination. He said
that he was a bookmaker for two years. He discussed
the entire operation of his bookmaking business, which
basically consisted of taking bets and hedging them at
the track. (39 A-43) He described himself as a sometime
terrible bookmaker, who really just made bets for
people. (46 A-47) He testified that he told Ruffels he
was a bookmaker, although Ruffels previously said that
he found out that fact at the Eastern District Strike
Force and not from DiPalma. (33)

The witness said he had outstanding loans with the
First National City Bank in the amount of $5,000.00,
Chase Manhattan Bank in the amount of $2,000.00,
and all sorts of other obligations. He could not recall
what he put down on the application to the First
National City Bank as the purpose of the loan and said

10

he made up many reasons which were not true.
(48 A-52) DiPalma admitted that he used the proceeds
of all these loans for gambling. even though he knew
that a false application for a bank loan was a Federal
crime. ($3 A-54) DiPalma also admitted that he owed
money to Household Finance, Beneficial Finance and
he also owed Commercia! Credit Corp. between
$1.000.00 and $1,400.00.(55 A-58) He also owed
Bankers Trust about $2,200.00 to $2,300.00, but he
thereafter went into personal bankruptcy so that he did
not have to pay anyone back. (59-60)

When he first met Riccardi his friend, Patty
McKuehn was with him and McKuelhin heard part of the
conversation wherein he told’ Riccardi he needed
$1,000.00 for his bookmaking business. (210) DiPaima
described what the term “vig”? means, although it was
established that he told the grand jury he did not Know
its definition. (61) Dipalma then said that his statement
to the grand jury was an honest mistake, since he
always knew what the term meant. (62) DiPalma denied
ever lending money at usurious rates of interest. (62)
He denied that he ever took numbers or bets (63) and
was totally confused about debts, remembering practi-
cally nothing. (218-228) He said he made his own
occasional bets on basketball and baseball but never
took any sort of action himself. (64) He also denied
that Arthur Ruffels told him what type of conversation
to obtain on the tape recording. (65) He said that in
fact Ruffels told him not to provoke Riccardi because
they feared for his life. (66) He previously had testified
that he paid $125.00 a week for three months, a sum
totalling $1,500.00, and then whenhe reiterated that
testimony he could not say where he got the $1,500.00
to make the payments. (253-254) He said he did not

know and that he could have obtained it from his
father or mother: yet, on something as obscure as who
was pitching for the White Sox on a specific occasion
where they won four straight games, DiPalma had an
incredibly accurate memory. (67-68) He also talked
about the $175.00 a week that he paid for two
months. totalling $1.400.00, and again could not detail
where he got the money from, but he merely said he
could have borrowed it from a bank. (255) The witness
made a lot of bets, place a lot of numbers himself, but
could not or would not identify the people involved.
(257-258) He claims he bet thirteen days in a row with
the Chicago Cubs but could not identify the person he
placed those bets with except by first nume. (258) He
also denied ever telling the F.B.1. that he took a HANK
DAVERSAY to Riccardi to borrow money, (273),
although the F.B.I. report said that he had made that
statement. (274-275) DiPalma also denied having taken
TONY BASILE to see Riccardi, although he had told
the grand jury that on one occasion Basile accompanied
him to see Riccardi. (275-276, 298) In fact. he said that
he never met Riccardi at a time when he was with
someone else, so that there was no one who could
verify that he actually had all those meetings. (280) The
witness becume so contused that he even became unsure
whether on the third occasion that he borrowed money
from Riccardi’ the meeting occurred in a_ Lincoln
automobile or at the motorcycle shop, or at a
luncheonette. (310) The witness’s memory became so
unclear he could not even remember what he said the
day before. (317) In fact. he was not even sure whether
he paid $175.00 a week or $50.00 a week in the
months preceding his visit to the F.B.1. (321-322)

He said that the bank loans were used to pay the
interest to Riccardi, but it was then established that all

12
but one loan were taken out before he ever met
Riccardi. (322-323)

In fact. the witness even attempted to recant some of
the information he put in the petition of bankruptcy
which he swore to in open court. (64-70)

The witness thereafter attempted to evade practically
every question asked for him and indicated his total
disregard for the oath he had taken. (71-73, 75-77)

During cross examination by petitioner Gigliotti’s
uttorney, counsel made a big point about whether the
witness had been couched during the lunch break as to
one question. The intimation was that the Assistant
United States Attorney or one ot the agents might have
suggested an answer. In tact. the witness was
specifically asked whether Mr. Ruffels or Mr. Naftalis
tulked to him betore he went out to lunch on the day
in question.(78) The witness denied it. The Court
called both attorneys to the bench and told the
attorney that he had better be careful because he had
given the prosecutor permission to have a long lunch
hour because he was going to the dentist. The Court
told the attorney he was trying to create a false
impression in the Jury’s mind and that the attorney was
not doing a very nice thing by taking the whole matter
out of context. In fact, the Court called the entire
matter nonsense. (81) The prosecutor made a report to
the Court that after he left the Court he went to his
office. put his files away and went to the dentist by
cur. (82) Thereafter. when Mr. Newman pursued the
line aguin in front of the jury, the Court told the jury
that defense counsel knew that the prosecutor went to
the dentist and he persisted in usking the question
trving to create an erroneous impression in the mind of
the jury. In tact the Court actuatty said:

13

“THE COURT: The reason why | interrupted Mr.
Newman's questioning is, last Thursday before
lunch Mr. Naftalis asked the Court for permission
to go to the dentist. that’s why | adjourned earlier
during the Thursday lunch hour, and Mr. Newman
knows that Mr. Naftalis went to the dentist
during the noon hour and yet he’s persisted in
asking these questions trying to create an errone-
ous impression in your mind. Mr. Naftalis has just
told me that he did go to the dentist during the
noon hour and didn’t talk to this witness.” (83)

The next witness wus JOAN DiPALMA,. who
described the incident when Riccardi punched DiPaima
in the street. (S40-541) She said that the “fists were
flying”. Her husband called her name and she ran down
the street with a stick. (541) When she got there
DiPalma and his triend, Patty. were standing by the car
but Riccardi had already gone around the corner, so
that she never saw a punch thrown. (84-85) She never
saw Riccardi actually hit her husband. (86)

The government rested its case. and an application by
Riccardi to put on three witnesses to testify as to the
bad reputation of DiPalma was rejected. (577-578)

The defendant Riccardi then called Arthur Ruffels,
the F.B.I. agent, as his own witness. Ruffels testified
that he interviewed DiPulma. and on May 22, 1972,
DiPalma told him that Tony Basile accompanied
DiPalma on one occasion to the luncheonette when ie
had to pay Riccardi. ($83) He also said that DiPalma
told him he took Hank Daversa to Riccardi once when
DiPalma went to borrow some more money. (584)

HANK DAVERSA, an employee of the Transit
Authority, testified on behalf of appellant Riccardi, and
said that he sometimes helped DiPalma with his betting
slips. (87) He said that DiPalma never took him to see

14

Piccardi and he in fact never saw Riccardi or Gighiotti
in his life. ($97)

DOMINICK ZICOLELLO, another Transit Authority
employee. testified and said that DiPalma used to take
all sorts of bets on horses and sports in general at the
Transit Authority. (88-89)

JUSTIN TOMASINO, another Transit Authority
employee, said that many people placed bets with
DiPalma. (91) He saw DiPalma take numbers from
many people. in fact, the witness said he hit a number
once for $250.00. (92) He had a hard time getting his
money from the number hit and. in fact. had to chase
DiPalma and had to go to his house. (94) DiPalma told
Tomasino not to pressure him or he would go to the
F.B.1. (94) Tomasino was a car maintainer at the
Transit Authority and did a lot of extra car work on
ihe cars of fellow employees for which he was paid and
concerning which he specifically put the amount on his
income tax return. He was a very large gambler and
conclusively said that DiPalma had. contrary to his
testimony. been involved in policy slips. bookmaking
and bet taking at the Transit Authority.

Petitioner Gigliotti called no witnesses and upon
counsel’s advice did not testify.

1S

ARGUMENTS

COUNSEL AND THE TRIAL COURT HAD
A DUTY TO RAISE THE SEVERANCE
ISSUE ON BEHALF OF PETITIONER GIG-
LIOTTI.

A. The Court Erred In Not Ordering a Sever-
ence.

Neither defendant Riccardi nor petitioner Gigliotti
testified in the trial before the jury. A reading of the
record below clearly leaves one with the impression that
litthe. if any. evidence was adduced against Gigliotti.
The only witness who could provide evidence in
exoneration of Gigliotti was co-defendant Riccardi.’
Mr. Ricardi would have testified for petitioner had
there been separate trials.

In the cause of US. v. Koscot Interplanetary, Inc., et
al, Cr. No. 73-105. Federal Judge Tjotlat (now a judge
on the United States Court of Appeals tor the Fitth
Circuit) ordered a severance tor defendant/attorney Fb.
Lee Bailey after six months of trial when it became
apparent that alleged co-conspirator defendant Bunting
would testify for defendant Bailey if tried separately.
Judge Tjoflat properly applicd the case of United States
r keheles, 352 V.2d 892 (7th Cir. 1965).

Counsel respecttully submits that on an tssue as basic
us separate or joint trials, the trial court has a duty to
protect the rights of the accused. See U.S. vp Thomas

“Riccardi is presently at Springtield, Mo. tor a 90-day mental
observation prior to final sentencing by the tral court,

16

Carter, 475 F.2d 351 (D.C. Cir. 1972). In Carter, supra,
defense counsel did not move for a severance; yet, the
Court of Appeals found error nonetheless because there
was no sua sponte court ordered severance.

Counsel respectfully submits that a review of the
evidence in the instant ‘case cleaiiy leaves a lingering
doubt as to whether there was sufficient evidence that
petitioner Gigliotti did anything in violation of the
federal laws. Any implication of petitioner came solely
through the incriminating evidence introduced against
the co-defendant Riccardi. Where only Riccardi knew of
any involvement by petitioner and Riccardi would have
given exculpatory evidence of petitioner but for joinder
of the two defendants there must be a reversal and
remand for a new trial. Echeles, supra.

No doubt the Government shall argue severance
cannot be now raised since Echeles, supra, was not the
subject of a pre-trial motion. Such is and should not be
the law.?

e

B. Ineffective Assistance of Counsel re Sever-
ance.

In the event that the Court fails to apply the sua
sponte court duty to cause a severance. counsel

Mr. Riccardi is presently at Springfield, Mo. under
psychiatric observation prior to his sentencing. Hence, it is
physically impossible for counsel to procure a necessary affidavit
from Mr. Riccardi re his exculpatory testimony for petitioner.
Counsel submits most respectfully that the Court should at the
very least remand this case to the trial court for purposes of a
wearing upon the return of Mr. Riccardi, whereby the record can
he made on the Echeles matter.

17

respectfully submits that failure of trial counsel for
petitioner to properly brief said point pre-trial consti-
tuted ineffective assistance of counsel.

Since motions requesting relief on grounds of
ineffective assistance of counsel raise “questions of
extreme difficulty in the administration of justice’
and often tax otherwise harmonious relationships
between brother members of the Bar, it is appropriate
that we begin this memorandum with a briet
explanatory note. Trial counsel for Defendant was an
experienced and distinguished member of the Bar of the
State of New York. For this reason as well as a
professional sensitivity to the obligation that an
attorney not raise frivolous claims and a _ personal
sensitivity to intellectual honesty, Counsel considered
the merits of this motion long and hard. Because we
believe it has merit and because “[e]ven the _ best
attorney may render ineffective assistance, often for
reasons totally extraneous to his or her ability” we
press this request upon petitioner’s behalf with vigor. In
so doing, however, we are conscious that “the issue in
effectiveness cases is not a lawyer’s culpability. but
rather his client’s constitutional rights.”© It is in this
spirit that our request on petitioner’s behalf is made.

1. The Standard of Review: United States vy.
Decoster. On October 4, 1973, the Court of Appeals
for the District of Columbia Circuit set forth in detail a
restutement of the law surrounding claims of counsel’s

4Jones v. Huff, 80 US. App. D.C. 254,152 F.2d 14 (1945).

‘United States v. DeCoster, 159 US. App. D.C. 326, at 331
n. 21, 487 F.2d 1197, at 1202 n. 21.

ld.

18

trial effectiveness. It states that the “court does not sit
to second guess strategic and tactical choices made by
trial counsel’’ but added that, “when counsel’s choices
are uninformed because of inadequate preparation, a
defendant is denied the~effective assistance of coun-
sel.’ And this right to effective assistance of counsel
was characterized by the Court as “a defendant’s most
fundamental right” since it affects his ability to assert
any other right he may have.® Explaining its holding.
the Court states (and emphasized by italics) the
following standard: “a defendant is entitled to the
reasonably competent assistance of an attorney acting
as his diligent conscientious advocate.’”?

The Court then listed a number of duties, all of
which are owed in fulfillment of this obligation. Several
are relevant to petitioner's present claim. First, the
Court states broadly the following:

In General Counsel should be guided by the
American Bar Association Standards for the
Defense Function. They represent the legal profes-
sion’s own articulation of guidelines for the
defense of criminal cases. 487 F.2d at 1203
(footnotes omitted).!°

Section IV of the American Bar Association Standards
for the Defense Function deal with investigation and
preparation by trial counsel. Section 4.1 is entitled
“Duty to investigate’ and imposes the following
obligation on trial counsel:

"United States v. DeCoster, supra, 159 U.S. App. D.C. at
330.

1d at 331

19

It is the duty of the lawyer to conduct a
prompt investigation of the circumstances of the
case and explore ail avenues leading to facts
relevant to guilt and degree of guilt or p: nalty.
The investigation should always include efforts to
secure information in the possession of the
prosecution and law enforcement authorities. The
duty to. investigate exists regardless of the
accused’s admissions or statements to the lawyer
of facts constituting guilt or his stated desire to
plead guilty.!!
In the commentary that follows the enunciation of this
duty, the Standards note the critical importance of full
investigation of a// avenues of inquiry relevant to guilt
or innocence or Otherwise bearing on culpability. The
Standards make specific reference to an attorney's
obligation to develop information concerning the
“defendant’s...mental and emotional stability.”’!?
They state: “Investigation is essential to fuifillment of
these functions. Such information may lead the
prosecutor to defer or abandon prosecution and will be
relevant at trial and at sentencing.”’'?

DeCoster emphasizes the importance of this investiga-
tory obligation by setting it forth as one of the specific
duties “owed by counsel to a client”:

(3) Counsel must conduct appropriate investiga-
tions, both factual and /ega/l, to determine what
matters of defense can be developed. The Supreme
Court has noted that the adversary system requires
that “all available defenses are raised” so that the
government is put to its proof. This means that in
most cuses a defense attorney, or his agent, should
interview not only his own witnesses but also

'IABA Standards for the Defense Function (App. Draft,
1971) at 161.

27g. at 227.
Sq

20

those that the government intends to call, when
they are accessible. The investigation should always
include efforts to secure information in the
possession of the prosecution and law enforcement
authorities. And, or course, the duty to investigate
also requires adequate legal research. (footnotes
omitted.) (Emphasis added).!4
DeCoster enforces the rigor of this requirement by the
holding that “fi]f a defendant shows a substantial
violation of any of these requirements he has been
denied effective representation unless the government,
‘on which is cast the burden of proof once a violation
of these percepts is shown, can establish lack of
prejudice thereby.’ Coles v. Peyton, 389 F.2d 224, 226
(4th Cir., 1968).” (Emphasis supplied.)!= Because the
record in DeCoster did not adequately reflect the
extent to which counsel had failed to interview
witnesses or otherwise investigate possible defenses and
perform other required services on DeCoster’s behalf,
the Court remanded the case for the limited purpose of
a hearing at the trial-court level. :

2. Trial Counsel's Fulfillment of the DeCoster
Duties. Whatever the extent of trial counsel’s pretrial
investigation of the substantive evidence surrounding
petitioner's involvement in the crime, he omitted to
investigate fully what the co-defendant had to offer his
client in the way of a defense and further failed to
fully articulate an Echeles motion.

3. Relief Requested. We are prepared at a hearing
to present testimonial and documentary evidence in

4tnited States v. DeCoster, supra, 159 U.S. App. DC. at
333.

Sid.

2i
support of the foregoing argument. Urless the Govern-
ment can demonstrate that trial counsel’s Omissions as
described above did no harm to petitioner, he is
entitled to a new trial. Both in DeCoster and in a
recent case rearticulating its principles, United States vy.
Butler,‘© The Court of Appeals has placed the burien
of proving no prejudice squarely at the feet of the
Government. Butler states that burden as follows:

On reviewing the facts of this cause. we believe
that appellant has demonstrated a_ substantial
violation of the duties owed him by his counsel.
Partly because the very ineffectiveness of the
assistance may lead to prejudice not being
reflected in the record, the burden at this point
shifts to the Government to establish a lack of
prejudice. (Emphasis supplied.)!”

We do not believe that the government can establish
such an absence of prejudice. The defense had to have
been substantial with the co-defendant prepared to
show at a minimum that petitioner was nothing more
than an innocent bystander in this affray which resulted
in petitioner being sentenced up to eight yeurs
imprisonment.

We are prepared to support petitioner’s move for a
new trial on grounds of the absence of effective
assistance of counsel by whatever evidentiary showing,
if any, this Court deems desirable.

In the event the Court determines that trial counsel
exercised due diligence in attempting to ferret out
evidence of petitioner's innocence and simply was
unable to learn the information that we have provided
by this motion, we ask on petitioner’s behalf that he be

l6D.C. Cir. No. 73-1891, decided August 30, 1974.
"1d., slip op. at 9.

:

~~

granted alternatively a new trial based on newly
discovered evidence also under Rule 33 of the Federal
Rules of Criminal Procedure.!®

THE GOVERNMENT'S GRAND JURY
PRESENTATION OF ITS CASE AGAINST
RONALD GIGLIOTTI WAS WHOLLY IN-
ADEQUATE; THE FAILURE TO SUBMIT
ANY EVIDENCE OF CRIMINALITY ON
THE PART OF PETITIONER SHOULD
HAVE RESULTED IN A RULING BY THE
DISTRICT COURT THAT IT WAS WITH-
OUT JURISDICTION TO PROCEED WITH
THE TRIAL.

Ronald Gigliotti was sentenced to a prison term of
eight years on a charge that he participated in the
extortion of Frank DiPalma. By the jury’s verdict this
charge was proved, after trial. beyond a reasonable
doubt. Petitioner Gigliotti now challenges the suffici-
ency of the evidence against him. Petitioner respectfully
asks that his conviction be set aside in that under the
Grand Jury clause of the Fifth Amendment, he should
never have been “held to answer”’ these charges.

This is not a case where a defendant seeks review of
the legality of the evidence presented to the Grand
Jury. United States vy. Calandra, 414 U.S. 338, 94S. Ct.

Sa further part of the degree of petitioner’s continued failure
to be properly guarded in this case is the fact that appellant
counsel for co-defendant Riccardi agreed to file a Petition tor
Writ of Certiorari and neglected to do so in a timely manner.
Hence, the filing of this petition at this time by new counsel. .

23

613 (1974) Nor is this a cause where the character or
competence of the Grand Jury testimony is submitted
for question. Costello vy. United States, 350 U.S. 359,
76 S. Ct. 406 (1956): Lawn vy. United States, 355 US.
339, 78 S. Ct. 311 (1958) Rather, this is a case,
hopefully rare, where the Strike Force attorneys’
submission of evidence to the Grand Jury was so
shoddy that it denied petitioner his Constitutional and
Statutory right to have the evidence against him
considered by a Grand Jury acting independently of the
prosecutor. Assuming arguendo, however, that this
presentation met Constitutional requirements, petitioner
respectfully asks that this Court reverse his conviction
and dismiss the Indictment under its supervisory power.
United States v. Estepa, 471 F.2d, 1132, (2nd Cir.,
1972): United States v. Toscanino, 500 F.2d 267 (2nd
Cir., 1974); McNabb vy. United States, 318 U.S. 332, 63
S. Ct. 608 (1943).

Counsel need not debate too long whether the Grand
Jury properly functions as an _ independent shield
between the citizen and the prosecutor. See, e.g.: The
Grand Jury: True Tribunal Of The People Or
Administrative Agency Of The Prosecutor. 2 N.M.L.
Rev. 141 (1972)!9 Focusing on the instant case. it will
become clear that the manner in which the “evidence”
against Gigliotti was presented lends firm support to the
“rubber stamp” theory. This is not simply another case
where a convicted defendant asks the Supreme Court to
test the sufficiency or quality of the evidence before
the Grand Jury. The casesywhich foreclose this type of

‘9a case recently decided by the California Supreme Court
discusses whether Grand Jurors serve only as rubber stamps of
the prosecutor. Johnson v. Superior Court, Calif. Sup. Ct..
9/19/75, 18 Cr. L. 2054 (October 15th, 1975)

24

review are legion. Costello v. United States, supra: Lawn
v. United States, supra; United States v. Schwartz, 464
F.2d 499 (2nd Cir., 1972). By implication, however,
these cases presuppose a basic respect for the Grand
Jury us a body acting independently, albeit under the
direction of the prosecutor. When this basic respect is
absent. such as where the Grand Jury is mislead, Courts
will not hesitate to act. United States v. Estepa, supra,
United States v. Gallo, 394 F.Supp. 310 (D. Conn.,
1975) (Accordingly, courts must be ever viligant to
preserve the functions of the Grand Jury as an effective

‘safeguard against oppressive actions of the _ prose-

cutor...”’) Gaiter v. United States, 413 F.2d 1061,
1066 (D.C. Cir., 1969) 394 F.Supp. at 313; United
States v. Cox, 342 F.2d 167, 170 (Sth Cir., 1965). See
also Daneals, 370 F.Supp. 1289 (W.D.N.Y., 1974).

Appellant was obviously tried and convicted in this
case as an aider and abettor. The record is clear that
Gigliotti’s alleged participation in this extortionate
credit transaction surfaced in two meetings with
DiPalma. The first such instance was at a cemetery on
May 15th, 1972, and the second was under the scrutiny
of Federal Agents on June 2nd, 1972.

The only evidence concerning petitioner before the
Grand Jury came through the testimony of Frank
DiPalma. DiPalma appeared before a Federal Grand
Jury on three occasions, May 22nd and June 13th,
1972. and April 18th, 1973.70

DiPalma’s tirst appearance before the Grand Jury
took place on May 22nd, 1972 which was some ten

Each of the transcripts of DiPalma’s Grand Jury testimony
is contained in its entirety in Appellant’s Appendix in the record
below. (AS-43)

25

days before the June 2nd meeting at which the
conversations were recorded. At this first appearance
DiPalma essentially read and swore to a statement he
had previously furnished to F.B.i. Agent Ruffels.
(10-11) In that statement DiPalma recounted the
history of his alleged “extortionate credit transaction
with Riccardi, then known to him only as “Zero”. (11)
With respect to individuals other than Riccardi, the
statement referred to a meeting in November or
December of 1971 where DiPalma complained that he
could not keep current with the interest payments. (12)
Two unidentified individuals were present at this
meeting. In addition to describing their physical
features DiPalma characterized both individuals as
“Jewish looking” (12-13)

The statement then went on to describe the meeting
of May |Sth, 1971, which took place in Brooklyn near
a cemetery. (14) Here another unidentified individual
was preseni with Riccardi. Once again the unidentified
individual was described as “Jewish looking’. (14) It
was clear, however, that this individual, because of
substantially different age and description was not one
of the two previously mentioned unidentified individ-
uals. (A 14) Significantly, this statement furnished some
three days after the meeting made no mention of any
statement made by _ Riccardi’s unidentified com-
panion.?!

IThis fact. of course, armed trial counsel with a key
discrepancy on which to cross-examine. This fact is now raised to
show that the Grand Jury had no evidence of any alleged
criminal participation on May 1 Sth by Gigliotti.

26

On June 13th. 1972, DiPalma returned to the Grand
Jury.?? As seen, there was no evidence whatsoever
presented against Gigliotti on the first appearance, May
22nd. Certainly the prosecutor cannot be faulted for
not presenting what he didn’t have. The June, 2nd
meeting had not yet occurred. There was no tape. And
curiously, Riccardi’s “Jewish looking” companion on
May 15th said nothing.2?> On June 13th, however, the
same prosecutor was better equipped. He then had the
taped conversation which obviously lead to Gigliotti’s
conviction. This tape, however, was neither played for,
nor was it considered by the Grand Jury. Simply stated,
they acted without it. Petitioner does not now suggest
that the Government was under an obligation to present
all of its evidence to the Grand Jury. Nor does he
suggest that the prosecutor must furnish his best
evidence to the Grand Jury. It would seem, however,
that the Government attorney is under an obligation tc
present some evidence to the Grand Jury on which they
could find that there is probable cause that a particular
individual had committed or participated in a particular
crime.

This Court has held that an Indictment establishes
probable cause and thus eliminated the need for a
preliminary examination. Sciortino v. Zampano, 385

in his first Grand Jury appearance. in reading his statement,
DiPalma referred to the “cemetery” meeting as having occurred
on May iSth, 1971. (14) On his second appearance this error
was corrected and the meeting was fp .ced on May 15th, 1972.
(30)

3This is regarded as curious because at trial some three years
after the meeting DiPalma testified to a somewhat telling
statement by petitioner.

27

F.2d 132 (2nd Cir., 196%). The Sciortino decision
necessarily assumes that the Grand Jury is furnished
with some evidence which could arguably support a
finding of probable cause. With this in mind, we look
to DiPalma’s testimony before the Grand Jury on June
13th, 1972. At this time DiPalma again recounts the
history of his relationship with Riccardi. He again
testified to the manner in which the loan was made and
then partially re-paid. Again, reference was drawn to a
meeting in November or December of 1971 when he
met Riccardi with two unidentified individuals. (24-30)
During this testimony the unidentified individuals were
described as his partners in the “‘shylocking business.”
(A 30) By his testimony neither of these two
individuals were present with Riccardi on May 1|Sth. In
fact, on this appearance DiPalma drew reference to
another unidentified individual to whom he allegedly
repaid part of the Riccardi loan. (28, 29) With
reference to the May 15th meeting DiPalma again
recalled that a friend of Riccardi’s was present. (29-30)
There was again no mention of any words uttered by
that friend. (29-30)

Later in his testimony DiPalma, for the first time
under oath, recountec the events of June 2nd when he
wore the transmitting device. DiPalma recalled that he
first met an individual whom he identified at trial as
Gigliotti. It is significant to note that Gigliotti was not
identified in the Grand Jury. In fact. DiPalma’s Grand
Jury testimony on June 13th was that this person, later
identified as Gigliotti, was previously unmentioned. In
other words, at the trial DiPalma swore that Gigliotti
was the same individual who was with Riccardi on May
1Sth. In the Grand Jury his testimony was substantially
different. On June 13th he testified as follows:

28

“Q.Have you talked about that guy at all today?
Is he one ot the unknown persons you
referred to in your answers, either the guy
who used to get the money at the lunch-
eonette or either of the two men inside the
cycle shop?

A. No, he’s not.
Q. This is a new person?
A. A new person.” (34)

Again, this serious inconsistancy between the Grand
Jury and trial testimony is not pointed out to have this
Court weigh the credibility of the witness; for purposes
of this petition it demonstrates that there was no
testimony before the Grand Jury about Gigliotti other
than the testimony regarding June 2nd, 1972. At trail
the petit jury considered two meetings at which
Gigliotti was allegedly present. The Grand Jury
obviously only considered the June 2nd meeting. The
entire testimony concerning Gigliotti’s alleged participa-
tion came as follows:

At page 17 of the transcript of DiPalma’s Grand
Jury appearance on June 13th, 1972 (34), the witness
for the first time refers to the individual whom he
identified at trial as petitioner Gigliotti. Attempting to
find Riccardi, DiPalma “made arrangements” with
Gigliotti and finally met him in the company of
petitioner. According to the witness. Riccardi’s “friend”
Gigliotti repeatedly told Riccardi that “Look, he has a
tamily as well as you have and he has to make good.”
(A36) [his. of course, cannot be construed in any man-
ner as an extortionate threat within the meaning of Sec-
tion S91(¢7). The only other occurrance wirthy of note
was DiPalma’s recollection that Riccardi told him that
his fmend had a gun and then instructed his “friend” to

29

shoot him if he moved. (36-37) There was, however. no
evidence that the “friend” either had a gun or joined in
this threat. The totality then of the Grand Jury evidence
against this fifth unidentified individual** was the state-
ment not to the alleged victim but to Riccardi that
““Look, he has a faimly as well as you have and he has to
make good”.

On DiPalma’s third appearance before the Grand
Jury, nearly one year later on April 18th, 1973, the
witness merely re-affirmed his earlier testimony fur-
nished on May 22nd and June 13th, 1972. (41)

From a review of the Grand Jury proceeding two
problems emerge. First there was absolutely no evidence
of criminality on the part of Ronald Gigliotti.
Secondly, Gigliotti was not identified before the Grand
Jury. There may be cases where the failure to identify a
prospective defendant before the Grand Jury may not
constitute a Constitutional violation. Unites States Ex
Rel Curtis v. Warden of Greenhaven Prison, 463 F.2d
84 (2nd Cir., 1972). In deciding the Curtis case this
Court relied upon its earlier decision in United States
Ex Rel Morrison v. Forster, 175 F.2d 495 (2nd Cir..
1949). The Curtis Court ruled that

“In the light of Morrison, the contention that it
violated due process merely to fail to provide the

*The witness DiPalma had previously referred to two
unidentified individuals at the cycle shop, allegedly Riccardi’s
partners in the shylock business and an unidentified individual to
whom he allegedly made payments at the luncheonette. At the
time ot his Grand Jury testimony the individual who
accompanied Riccardi on May 15th, 1972 was not the same
person he met on June 2nd, 1972. On the basis of this testimony
Gigliotti is the fitth unidentified individual referred to in the
Grand Jury.

30

grand jury with a description of petitioner, where

the jury must have realized it was indicting a

specific individual. known to the testifying

officers (albeit by the false name Henry) for a

specific narcotics transaction, must fail.” 463

F.2d at p. 87
In the instant case the Grand Jury heard testimony
about arguably four and possibly five unidentified
persons who may have been considered accomplices of
defendant Riccardi. Quite significantly, the Indictment
in this case charged that Gigliotti’s participation came
between May Ist. 1971 and May 18th, 1972. There is
no argument here that petitioner did not receive fair
notice of the charges against him. However. it should be
remembered that the Grand Jury heard absolutely
nothing about Gigliotti, even as an unidentified person,
during that time period. The only evidence of his
involvement referred to June 2nd. 1972. During the
time period pleaded in the Indictment other unidenti-
fied individuals were mentioned. The root question,
therefore, is that on the evidence before the Grand
Jury, how was a true bili returned against Ronald
Gigliotti? Stated another way. how can it be deter-
mined from the Grand Jury proceeding that they
intended to indict Ronald Gigliotti? If the procedure in
this case is sustained. it would allow the prosecuting
attorney while physically preparing the Indictment, to
insert the name of any individual whom he considered
as a candidate to fit the slot of one of the unidentified
individuals referred to in the Grand Jury.

Petitioner's argument. therefore. becomes two di-
mensional. His first allegation is that without regard to
the identification problem. there was no evidence
presented to the prosecutor on which an Indictment
could be based. The tape recording was not played for

31

the jurors. nor was the transcript shown to them. There
was absolutely »o evidence that Gigliotti had a stake in
this alleged criminal venture. To indict Giglioti,
therefore. was obviously a unilateral determination
made by the prosecutor upon a review of evidence
which the Grand Jury had never heard or seen.
Obviously presentations to the Grand Jury must be the
product of a prosecutor’s discretion as the exercise of
that discretion conforms to his oath of office. However.
to obtain an Indictment without a proper presentation
to the Grand Jury renders the Grand Jury process
meaningless and supports the so-called “rubber stamp”
theory. Clearly, petitioner’s argument is not a philosop-
hical one that all Grand Jury action is merely a stamp
of approval on the prosecutor’s choice of defendant.
Here the argument is a pragmatic one. The Grand Jury
returned an Indictment without any evidence that one
of the two persons indicted had violated the statute in
question. This problem is then compounded by the fact
that there is no basis to determine whether the Grand
Jury knew who they were indicting.

The latter problem would be easier of solution if
the prosecutor's remarks and instructions to the Grand
Jury were now available for review. The only basis on
which to now assess this matter is the prosecutor’s
representations during the trial and at the time of
sentence.

The issues raised herein were raised by trial counsel
in the District Court immediately after he received the
Grand Jury testimony. By virtue of the secrecy
requirements of the Grand Jury and relevant statute.
Title 18, U.S.C., Section 3500, counsel's first oppor-
tunity to view this testimony came during the trial.
Prior to the conclusion of DiPalma’s direct testimony
the tollowing record was made:

32 33

Defense counsel: Continuing with the trial record, the Court sought
Then | would ask your Honor to do to determine how Gigliotti was indicted.
something else, if you will. | would ask Your “The Court:
Honor to look at the Grand Jury testimony
that’s been adduced here for this reason, Mr. Newman appreciates all that and ~ do I.
Judge: maybe this is premature. but if you But, what he said was—and it is puzzling to
would look at the grand jury testimony, me— 1s how the grand jury came up with the
which I assume is the grand jury we've been name of Gigliotti.
furnised as 3500 material, of Mr. DiPalma, | The prosecutor:

would respectfully ask Your Honor to dismiss
as fur as Mr. Gigliotti is concerned on the

grounds, Judge. that no evidence was adduced
in the grand jury against Mr. Gigliotti; none. The Government drafts the Indictment. That

is known to the defense and the Court.

The Government supplied them with that
name.

I submit to Your Honor Mr. Gigliotti has a

Sixth Amendment right [sic] right to be The Court:

indicted by a grand jury which has evidence 1 understand that but based upon no

against him. identification, no nothing--I mean, did Mr.
The Court: Ruffels take the stand before the grand jury

This kind of motion you make at the end of and say ‘this thie man —

the plaintiff's case. not during the course of The prosecutor:
the trial.” (89) I don’t believe he did
At the end of the Government’s case counsel again The Court:
moved for dismissal of the Indictment on the basis of (continuing) this second man is Gigliotti’?
an inadequate Grand Jury presentation. (370) Counsel That’s what Mr. New is asking and I think it
then stated that is possibly a bona fide question.

What he is saying. if all you have got is what
you have here and Mr. Murphy went in and
said “The other guy involved is Gigliotti.
Return an Indictment against him, he says
He never, obviously, waived Indictment and there that is improper and I am not sure it is not

is no other evidence in this record when I say improper. That would bother me.

this record, I'm sorry—grand jury record. either ; on

indicting him, indicating he is involved in any if the F.B.I. wens bee and testified that the

criminal activity and I think he was deprived of third Rcradligy his identity ts based 9 the

his Constitutional rights.” (371) investigation that was done on Mr. Gigliotti, I
don’t think Vd have a problem with it.
(375-376)

“{Gigliotti] is not identified but assume for a
moment he is, there was nothing said in the way
of a criminal nature.

34

Later, with regard to Gigliotti, the Court stated that

“The other man wasnt identified. Nobody was
identified. That’s not even tied into the original
guy as far as the grand jury is concerned. That
could be three separate people. Mr. Newman says
that might be you, me and him for all we know.”
(382)

At the end of the Government's case the Trial
Court reserved decision on the defendant’s Motion to
dismiss. (382) At the time of sentence, after memo-
randa had been submitted by both sides the Motion was
denied and the judgment of conviction was entered. In
denying this Motion the Court relied upon representa-
tions by the prosecuting attorney cortained in a
post-trial Memorandum submitted in epposition§ to
Gigliottis Motion to. dismiss. In this Memoran-
dum* the Government contends. as undoubtedly they
will in response hereto, that “evidence was offered to
this Grand Jury concerning the criminal involvement of
defendant Ronald Gigliotti”. (395) Reterence is then
made to the testimony of May 22nd, 1972 at page 7 of
the transcript. Indeed. DiPalma at time of trial. testified
to some participation by Gigliotti on this date.
However. us far as the Grand Jury knew there was no
reason to believe that the second individual on this date
was Gigliotti and moreover. Riccurdi’s companion was
not alleged to have made any statement.

The Memorandum then refers to DiPalma’s testi-
mony before the Grand Jury on June 13th, 1972. Here.
as indicated above. there is no evidence of criminality
on the part of Gighotti, The Government tevertheless
relies upon the fact that

<. ’ j
>The Memorandum is contained in Appellant's Appendix at
page 394 in the record below.

35

“Fuller testimony from the witness DiPalma plus
photographs and a sound recording of this
meeting were offered by the Government during
the course of the trial itself.” (395)
if, however, the defendant was denied his Constitu-
tional right to be charged by a Grand Jury, the
evidence at trial cannot salvage that Constitutional
violation. Petitioner submits that the Fifth Amendment
Indictment requirement is jurisdictional. In Ex Parte
Bain 121 U.S. 1, 7 S.Ct. 781 (1887) the Court stated
that:
“We are of the opinion that an indictment found
by a grand jury was indispensible to the power of
the court to try the petitioner for the crime with
which he was charged.” 7 S.Ct. at page 787.
It is clear, . vrefore, that the Government may not rely
upon either the verdict or its proof at trial to salvage an
otherwise Constitutionally infirm beginning to the
prosecution.®

More significantly the Government’s post-trial Mem-
orandum injected new facts:

“At the time of the submission of that
indictment counsel for the Government identified

There is language in United States Ex Rel Curtis v. Warden
of Greenhaven Prison, supra, that a jury’s finding of guilt beyond
a reasonable doubt may cure a defective Indictment. This case, as
well as the Morrison case, are both habaes corpus applications
which arise from a New York State criminal prosecution. The
“Grand Jury clause” of the Fifth Amendment is not applicable
to the States. Hurtado v. California, 110 U.S. 516, 4S. Ct. 111
(1884) On a Federal! Constitutional basis the Fifth Amendment is
clear that “no person shall be held to answer ...unless on a
presentment or indictment of a Grand Jury...” (Emphasis
supplied) From a plain reading of the Amendment’s language it
would seem that the matter is jurisdictional.

36

defendant Gigliotti as the perpetrator of the acts
noted in the Grand Jury testimony above.
Counsel asked the Grand Jury if it needed any
additional identification of either defendant and
the Grand Jury indicated that it needed no
further identification of either defendant. Counsel
for the Government indicated in his statement to
the Grand Jury that the F.B.1. had identified
defendant Ronald Gigliotti as the person de-
scribed by DiPalma in his Grand Jury testimony.
Based on this representation by counsel for the
Government and the direct testimony of the
victim of the extortion crimes the Grand Jury
indicted the above named defendant. United
States submits that there was sufficient non-
hearsay evidence before the Grand Jury to
uphold this indictment. Further the United States
submits that the hearsay statement of Govern-
ment counsel before the Grand Jury as to the
identity of Ronald Gigliotti was labeled as
hearsay and understood to be so by members of
the Grand Jury at the time the indictment was
voted upon.” (395-396) ‘

These statements which are represented to have been
made by Government counsel were not recorded. (421)

Nearly three years ago, this Court in United States
vy. Peden, 472 F.2d 583 (3nd Cir., 1973) stated that it
would be the “better procedure’ to have the
prosecutor’s statements to the Grand Jury recorded.
The Court stated, however, that absent unusual
circumstances the mere failure to record will not
require reversal. This case, however, is markedly
different. Here the crucial question was how did
Gigliotti get indicted on the basis of the testimony
before the Grand Jury? The record of the Grand Jury
proceeding does not supply the basis on which the
Indictment was voted. With all due deference, the very

37

purpose of the Grand Jury system is to avoid complete
reliance on the prosecutor. Where. as here. that reliance
is so critical, it would not seem proper to rest on
remarks that were not recorded and which cannot now
be objectively reviewed.

It is clear then that this not simply an issue of
inadequate identification. Although petitioner submits
that on the facts of this case the identification was
inadequate, the more serious issue is the complete lack
of any evidence of criminality on Gigliotti’s part. Taken
together it becomes certain that the Grand Jury did not
in this case serve as a buffer between the prosecutor
and the citizen. Stirone v. United States, 361 U.S. 212
80 S.Ct. 270 (1960): Russell v. United States, 36\ U.S.
749, 82 S.Ct. 1038 (1962): Orfield, The Federal Grand
Jury, 22 F.R.D. 343, 394 (1959). Recently. in Gerstein
v. Pugh U.S. 95 S.Ct. 854 (1975), the Supreme Court
reiterated the principle that prosecutorial judgment
without independent review cannot pass Constitutional
muster. Reduced to its simplest terms, this was a case
where a defendant was brought to trial solely on the
basis of prosecutorial judgment. The Grand Jury heard
no evidence of a crime committed by Gigliotti. Further,
identification of Gigliotti as a participant in the crime
came through the representations of the prosecutor
himself. This was not the same as putting an
investigator on the stand to give hearsay testimony.
This was a case where obviously the prosecutor
collected all the relevant facts and obtained an
Indictment on the basis of what he knew, was
presented to the Grand Jury. Here then the Grand Jury
did not serve as an independent investigative body
reviewing the evidence submitted by the prosecution.
Here, with rare insight, we realize that the Grand Jury

38

merely parroted the judgment of the prosecutor. This
tvpe of procedure, it is submitted, is Constitutionally
intolerable.

THE DELIBERATE ELECITATION BY THE
PROSECUTOR FROM THE F.B.I. AGENT
THAT THE AGENT WAS SPECIALLY AS-
SIGNED TO THE ORGANIZED CRIME
DIVISION CONSTUTED CLEAR ERROR
AND REQUIRES A REVERSAL OF THE
INSTANT CONVICTION.

Arthur Ruffels is an F.B.1. agent who testified at trial
that he was the agent assigned the Riccardi/Dipalma
investigation. (22). The prosecutor apparently dissatis-
fied with the fair answer supra then specifically asked
where Agent Ruffels was assigned. Over objection and
before the jury Ruffels testified that, “I am assigned to
the organized crime division.” (22, emphasis added).
That fact coupled to the charges of extortion and
“shylocking” plus the clear Italian heritage and names
of both detendants being tried in New York City, Le.,
the central forum of alleged Italian linked “tmafia”’ or
organized crime, caused a most speedy unraveling of
due process us pertains to petitioner.

Both defense attorneys leaped to their feet and
objected. approached the bench and asked for mistrials
while the case was in its earliest testimonial stages. The
court simply instructed the jury that the unit to which
Agent Ruffels was detailed was not material. (25-26)
Justice Jackson best articulated the effect of such an
instruction in Arulewitch v. United States, 336 US.
453 (1949). when he wrote:

39

“the naive assumption that prejudicial effects can
be overcome by an instruction to the jury... all
practicing lawyers know to be unmitigated fic-
tion.”

There is a repository of case law governing proper
prosecutorial conduct in a case. The Court set the
guidelines in Berger v. U.S., 295 U.S. 78.88 (1934).
when it authorized fair but not foul prosecutorial
blows. Counsel is aware that prosecutors are entitled to
be advocates and earnestly try and persuade the jury of
the truth of his side, DiCarlo v. U.S., 6 F.2d 364, 368
(2d Cir.), cert. denied, 268 U.S. 706 (1925): however,
prosecutors cannot exceed permissible bounds. Evidence
cannot be introduced in order to deliberately mislead
the jury. Berger v. U_S., supra.

In Brown v. U.S., 125 U.S. App. D.C. 220, 370 F.2d
242 (1966), the court criticized a warning by a
prosecutor that if the defendant were acquited, the
police would be left powerless to protect aguinst attacks
upon them short of resort to “martial law.” In Vierack
v. U.S., 318 U.S. 236 (1943), the court was critical of
the prosecutor’s comments which included, “This is war.
It is a fight to the death. The American people are
relying upon you... for their protection.” 318 US. at
247 N.3. Recent cases in the Court of Appeals for the
District of Columbia Circuit have been reversed where
the federal prosecutor made analogies to Shirhan
Shirhan, Jack Ruby, James Earl Ray and others in an
effort to outrage the jury at the very end of the trial.
U.S. v. Jones, 157 U.S. App. D.C. 158, 482 F.2d 747
(1973). The instant case differs only because the jury
was lead to a state of bias and intflamation at the
beginning of the trial.?’

There are examples of misused descriptions which may assist
the Court here. For example, in’ situations where prison
authorities have sought to classify inmates as members ot
organized crime or “special case” prisoners, the Courts have been

40

Where prosecutors cannot use analogies such as reter
to Shirhan Shirhan, James Earl Ray. and Jack Ruby,
then they must not be permitted to deliberately inject

striking down such a characterization. Thus, in Masiello vy.
Norton, 364 F.Supp. 1131 (D.Conn.1973), the labeling of
someone as 4 member of “organized crime” was struck down and
prison authorities were ordered to remove such classification.
Thereafter, in Catalano v. United States, 383 F.Supp. 346
(D.Conn.1974) the alternate method adopted by prison authori-
ties to get around the Masiellv decision by labeling a prisoner a
“special offender” was also struck down. It was recognized that
classifying a person in such a special capacity violated due
process, and that persons so characterized were entitled to
hearings. In other words, if an authority is to brand someone as
belonging to organized crime, they would have, so to speak, to
prove it or refrain from the characterization. The Court in
Masiello said that elemental fairness required that a person be
given the opportunity to rebut the organized crime label.
Apparently it has been felt that the onus attached to such a label
is sO great that a person may never. ever remove the stigma.

More recently, the rationale of these decisions has been
adopted by an as yet unreported case decided in this Court,
Cardaropoli, et al v. Norton, —F.2d_— (2nd Cir. September 29,
1975). In that case this Court affirmed the ruling of Judge
Zampano of the United States District Court for the District of
Connecticut, which required the Correctional Institute at
Danbury to expunge the “special case” classification from ail
bureau prison files and enjoined reclassification until the subject
prisoners were given hearings in a Court with certain basic
concepts of due process. Certain remarks made in Cardaropoli,
supra, reter to “...the grave consequences of this designa-
tion...” (supra at Page 79 of slip opinion), and the reference to
Judge Zampano’s statement that ‘all the consequences of a
“special offender” classification are significant’ (supra, at Page 81
of slip opinion), indicate that calling a person a member of
organized crime is probably just as detrimental as an improper
reference to race, religion or creed.

It has generally been recognized that prisoners lack certain
fundamental rights attendant to other citizens and that they are
not entitled to protéction in th? same manner as other persons
who have not been convicted of crimes. It seems clear that if this

4]

organized crime into a cause involving two Italian
defendants on trial for “shylocking” in New York City
and then introduce evidence from tape recordings which

classification is regarded as so serious for persons who are not
entitled to the granting of protection, it should be even more
important with respect to those who are on trial. not yet
convicted, and are certainly entitled to greater protection under
our concepts of due process and equal protection. There is no
question that if in this case a single improper reference was made
to the race, religion or background of the defendants that it
would constitute reversible error. Griffin v. /llinvis, 351 U.S. 12,
reh. den. 351 U.S. 958 (1956): United States ex rel. Haynes vy.
McKendrick, 350 F.Supp. 990, aff. 481 F.2d 152 (2nd Cir.
1973). Surely the deliberate reference to petitioner as being a
part of an organized crime investigation should stand in the same
category. The statement by the agent, directly solicited by the
prosecutor, that he was a member of the organized crime division
created the implication that petitioner Gigliotti was a member of
organized crime. The Government simply cannot justify such a
deliberate action by its prosecutor in this case.

Not only is the reference to organized crime improper because
it categorizes a person in a special way, but it also seems that a
fair inference that the jury would draw is that the defendant,
being a member vi organized crime, is a man with criminal
tendencies in general or a man who has on other occasions
committed other criminal acts. It is basic that the Assistant
United States Attorney could not have brought out other crimes
except for certain exceptions, Hodge v. United States, 126 F.2d
849 (D.C. Cir. 1942), United States v. Tomaiolo, 249 F.2d 683
(2nd Cir. 1958); United States v. Harrington, 490 F.2d 487 (2nd
Cir. 1973); United States v. Yaughn, 493 F.2d 441 (Sth Cir.
1974). Nor would he be able to prove a defendant's criminal
tendencies as a general proposition. United States v. Nakaladski,
481 F.2d 289, cert. denied. sub. nom. Coco v. United States,
414 U.S. 1064 (Sth Cir. 1973); United States v. McCarthy, 470
F.2d 222 (6th Cir. 1972); United States v. Brettholz, 485 F.2d
483. cert. den. sub. nom. Santiago v. United States, 94 S.Ct.
1561 (2nd Cir. 1973); United States v. Hines, 470 F.2d 225.
cert. den. 410 DS. 968 (3rd Cir. 1972): United States v.
Broadway, 477 F.2d 991 (Sth Cir. 1973).

The error existed in this case at the very outset of the trial
and since the case was not particularly complicated and little

42

implied organized crime when coupled to the malignant
effect of the organized crime reference.

IV.

THE EVIDENCE CONSIDERED IN THE
LIGHT MOST FAVORABLE TO THE GOV-
ERNMENT IS INSUFFICIENT TO SUSTAIN
PETITIONER’S CONVICTION.

Petitioner respectfully requests that the evidence
against him, considered in the light most favorable to
the Government.2® was insufficient to sustain his
conviction on count Two. What Gigliotti did, whether
per the Government evidence or otherwise, simply does
not rise to the level of a violation of Federal Statute.
Plainly stated, there was nothing here on which a
reasonable man might fairly conclude guilt beyond
reasonable doubt. United States v. Taylor, 464 F.2d
240 (2nd Cir., 1972).

At trial DiPalma testified that he first met Gigliotti
on May 1Sth, 1972. According to the witness this
meeting occurred several months after a lendor-debtor

substantive evidence had been introduced then, very little
prejudice would have existed to the government had a mistrial
been declared and another panel selected.

The error was not inadvertent, inasmuch as it did not come
out by way of a voluntary response to a question by the witness,
but was a specific answer to a specific query by the prosecutor.
The only conclusion one can draw is that the prosecutor wanted
this piece of information to be known by the jury, and he must
be fully charged with the consequences of his act.

BGlasser v. United States. 315 US. 60, 62 S.Ct. 457 (1942);
United States v. Tutino. 269 F.2d 488 (2nd Cir. 1959).

43

relationship began with defendant Riccardi. There is.
prior to this meeting, absolutely no evidence of
involvement on Gigliotti’s part.

On May 1|Sth, 1972, the witness testified for the first
time, Gigliotti was Riccardi’s companion. (70-71)
DiPalma testified that after Riccardi threatened to put
him in the hospital, Gigliotti joined the conversation:

“A.Ciro Riccardi asked me where have | been. |

told him I'd been around. ‘I haven't had a
chance to come down and see you yet.’

He told me that if I don’t get this money up
he’s going to put me in the hospital where no
doctor bills are going to be able to pay for it.

What did you say then?
I says, ‘Well, I'm having a hard time.’

2 ©

He says he’s having a hard time, too, doesn’t
want to know about my hard times.

What if anything else did he say?

> ©

When he said that, the gentleman there with
the brown suit |Gigliotti] said, ‘Look,’ In the
words of this, he said, ‘it doesn’t pay for you
to get hurt.’ He said. ‘Why don’t you pay
him? or do what you can to pay him?’ Then
he says, “Go ahead and go.” «

I left that day, went back home.” (71)

Following this meeting, DiPalma met with Riccardi
on some three occasions when Gigliotti was not present.
(72, 73 & 80) Finally, the matter culminated in the
June 2nd meeting when Gigliotti was again present.
(83) The Government alleged that everything that
transpired during this meeting was recorded on tupe.
Therefore, to judge the extent of Gigliotti’s participa-
tion we must refer to that recording. By his testimony
DiPalma first met Gigliotti on that date. The tape

44

reflects that fact. The beginning of the tape also reflects
a very significant statement made by Gigliotti to
DiPalma prior to the time that they joined Riccardi.
The transcript of this recording appears in Appellant's
Appendix in the record below at pages 402 through
417 and is a part of the record below. On the transcript
the fifth statement attributed to Gigliotti is set forth as
follows:
“Talking to you is like talking to nobody. |
just hang out here about four or five blocks
away.” (402)
Cross-examination of Agent Ruffels. however, drew an
admission that the transcript was In error.

“QO. You had occasion, together with ali of
us,-after all the difficulties were ironed
out -to listen to the tape.

A. Yes, sir.

Q. And as a result of listening to it, did you
notice that instead of the word. ‘you,’ it
should be the word ‘me’, and it should read,
‘talking to me is like talking to nobody. |
just I hang out here about four or five
blocks away.’

Did you notice that, sir?

A. Yes, sir. | am sorry. I did not.

Q. All right.

Defense Counsel:

Your Honor. with your permission, | request
some guidance. | would like at his conveni-
ence for him to listen to the tape again, Mr.
Ruffels, and | would like to see if it refreshes
his recollection with particular reterence to
that line.

The Court:

We can do that at the recess.

45

Defense counsel:
All Right.” (134-135)

Later, under re-cross examination trial counsel! elicited
the following:

“Q.And your original transcript has on_ it,
‘talking to you is like talking to nobody.’
And this is supposed to be Gigliotti talking.

| Just hang out here-about four or five
blocks away.’

Right?

A. Right.

Q. And now you listened to it during this
recess?

A. Right.

Q. Is your recollection refreshed that instead of
‘talking to you, it should be, ‘talking to me
is like talking to nobody. | just hang out
here about four or five blocks away.’

A. What specifically would you like me to

Q. Well, should the ‘you’ be ‘me’?

A. Yes.

Q. And that ‘me’ refers to Ronald Gigliotti

‘

telling Frank DiPalma that ‘your talking to
me about this is like talking to nobody,’
right?

A. Yes.” (174-175)

Following this statement, the conversation turned
to DiPalma’s imminent meeting with Riccardi. When
DiPalma voiced some reluctance about going with
Gigliotti to meet Riccardi, Petitioner stated that

“Listen we're not going to no house. He’s waiting

for you outside. | don’t give a fuck. It don’t make

no difference to me. [ll tell him you can’t make

it.” (403)

46

When DiPalma stated that he would like to walk to
the meeting rather than go with Gigliotti the following
was recorded:

“Di Palma: [ll walk up.
Gigliotti: All right, let’s see, you want to walk it? Pll
tell you which way to go.” (404):
When Riccardi finally met DiPalma the conversation
immediately turned to the subject of the loan. It does
appear from the transcript that Riccardi drew reference
to a gun.

“Z: (Riccardi) You stand right next to him -if he
does anything shoot him right in his fucken
head- I’m telling you something over here if
you'd have come to me like a man and you
wouldn’t try to hide like a rat—” (407)

As previously stated, however, Gigliotti did not join
in this threat nor was there any evidence that he carried
a gun. At page 9 of the transcript Gigliotti enters the
conversation. There is however, nothing more than
plaintiff remarks about DiPalma’s failure to repay
Riccardi.

There is, then, nothing in DiPalma’s testimony or in
the taped conversation of June 2nd to support a finding
that Gigliotti had a stake in this alleged criminal
venture. United States v. Johnson, 513 F.2d 819 (2nd
Cir., 1975); United States v. Falcone, 109 F.2d 579
(2nd Cir., 1940). Considering the evidence in this case,
Gigiiotti’s meetings with DiPalma were shown to be
nothing more than fortuitous. On the two occasions in
question the Government proved nothing more than
that Gigliotti was a companion of Riccardi. In United
States v. Gargulio, 310 F.2d 249, 253 (2nd Cir., 1962)
this Court stated that:

47

“yet, even at an age when solitude is so detested
and ‘togetherness’ so valued, a jury could hardly
be permitted to find that the mere furnishing of
company to a person engaged in crime renders the
companion an aider or abettor.”
In the instant case, the prosecution established only
that Gigliotti was a friend or companion of Riccardi.
This was clearly insufficient to support a finding
beyond a reasonable doubt, that Gigliotti participated
in the crime charged.

V.

THE U.S. COURT OF APPEALS FOR THE
SECOND CIRCUIT DID NOT PROPERLY
PROVIDE PETITIONER’S APPELLANT
COUNSEL THE OPPORTUNITY TO RE-
SPOND TO THE GOVERNMENT'S APPEL-
LEE BRIEF WHICH WAS FILED ON THE
FRIDAY, DECEMBER 5, 1975, BEFORE
ORAL ARGUMENT ON MONDAY, DECEM-
BER 8, 1975, AND SAID FAILURE TO
PROVIDE SUCH OPPORTUNITY
AMOUNTED TO AN INADEQUATE, UN-
FAIR APPELLATE REVIEW BELOW.

Appellant counsel for petitioner Gigliotti has refused
to submit an affidavit which sets forth the time
sequence of the procedures followed below on appeal re
the filing of the Government brief. However, peti-
tioner’s counsel has confirmed the dates argued herein
and submits Appendix B as proof therecf. There was a
lack of opportunity for counsel for Gigliotti to respond
prior to oral argument below.

Rule 31(a), Federal Rules of Appellate Procedure,
provides that appellant has forty days to file his initial

48

brief; that appellee has thirty days thereafter to file its
brief; and that appellant then has 14 days to reply to
appellee’s brief. Where appellee did not file its brief till
Wednesday, December 3, 1975, and appellant counsel
did not receive a copy thereof till Friday, December 5,
1975, it hardly appears fair that no time was provided
appellant to respond. Oral argument was thus had on
Monday, December 8. 1975. During the prosecution of
a case before a Jury the Government, with its burden
of proof, has the right to rebuttal in presenting the
evidence and final argument. They never give up said
right. Yet, on the instant appeal where petitioner had
the burden of proof to cause a reversal of the trial
findings, petitioner was denied his right to rebut or
reply to the Government brief.??

Counsel respectfully submits that petitioner was
denied fair treatment at the investigative level, grand
jury level, the trial level—~by and through his own
counsel, the prosecutor and, in part, the court--and the
appellate level. Without full review of the instant case
by this Court, petitioner will have effectively been
denied due process at literally every stop of the judicial
process. That would be wrong and it is in that vein that
counsel respectfully urges the Court to hear this case.

Petitioner's appeal counsel could hardly have petitioned for
a rehearing by the U.S. Court of Appeals for the Second Circuit
as to do so would have offended the very court which failed to
protect petitioner’s rights under Rule 31(a), F.R. Ap.P.

49
CONCLUSION

Wherefore, it is respectfully requested that the

instant Petition for Writ of Certiorari be granted.
Very RespectfullySubmitted,

KENNETH MICHAEL ROBINSON

Pendleton & Robinson

The Judiciary Square

306-6th Street, N.W.

Washington, D.C. 20001

Counsel for Petitioner

CERTIFICATE OF SERVICE

1 hereby certify that a copy of the foregoing petition
for Writ of Certiorari was mailed, postage paid, to
Robert H. Bork, Esquire, the Solicitor General, United
States Department of Justice, Washington, D.C. 20530
on this 26th Day of January, 1976. 7;

Mer Ct aoe LA lis
KENNETH MICHAEL BINSO!

a. oe
hui Leg. fi PBL)

Quel”

la

APPENDIX A

IN THE SUPREME COURT OF THE
UNITED STATES OF AMERICA

UNITED STATES OF AMERICA,
Respondent, File No.
-VS.-
RONALD T. GIGLIOTTI,
Petitioner.

AFFIDAVIT OF PETITIONER FOR
WRIT OF CERTIORARI

STATE OF NEW YORK )
COUNTY OF RICHMOND _) ss.:

1, RONALD T. GIGLIOTTI, do hereby attest and
swear that the petition for writ of certiorari filed this
day by my counsel in the Supreme Court for the
United States of America is filed in good faith and with
the firm belief that the issues raised by counsel are
issues which should necessitate a reversal of my present
conviction before the HON. Judge Platt sitting in the
Federal Court for the Eastern District of New York.

Your affiant further swears that he has discussed in
great detail each of the issues raised by counsel in this
petition and that your affiant believes that he did not
receive fair treatment in the Grand Jury presentation by
the prosecutor. It is further believed by your affiant
that his trial counsel should have raised certain legal
defenses which were not raised and that the Court

2a

should have granted certaiii other motions made by trial
counsel for your affiant.

Appellant-counsel for affiant’s co-defendant was
supposed to have requested an extension of time in
which to file the petition for writ of certiorari and
neglected to do so. It was only after a misunderstanding
on the part of appellant-counse!l that your affiant
retained counsel who has filed this petition and it is for
that reason that said petition is filed out of time.

Affiant pleads that the Court review this petition in
order that affiant can be the recipient of due process.

/s/Ronald T. Gigliotti
RONALD T. GIGLIOTTI

Sworn to before me this
20th day of January, 1976.

/s/ {Ilegible ]
Notary Public.

lb
APPENDIX B

AFFIDAVIT OF PETITIONER’S COUNSEL

I, KENNETH MICHAEL ROBINSON, hereby attest
and swear that I was retained by Petitioner Gigliotti
during the first week of December, 1975, for purposes
of attempting to persuade trial court to reduce eight (8)
years imprisonment sentence previously imposed on
Petitioner Gigliotti.

As present counsel for Petitioner Gigliotti, | was not
to attend to any of the appellate matters and
understood that Petitioner Gigliotti and his co-
defendant, Riccardi, were to continue to use _ the
services of their appellate counsel in petitioning for Writ
of Certiorari to the United States Supreme Court.

| further swear that in a conversation, approximately
one week prior to January 8, 1975 (the 30th day from
final judgment in the United States Court of Appeals
for the Second Circuit), one of the attorneys for Mr.
Riccardi advised me that he would attempt to file the
appropriate Petition for Writ of Certiorari or in the
alternative for an extension of time to file said petition.

Counsel further swears that on Thursday, January 8,
1976, | was advised by Petitioner Gigliotti that no one
had attempted to protect Petitioner Gigliotti’s rights.
Consequently, counsel immediately filed a motion for
an extension of time in which to file a Petition for Writ
of Certiorari. Mr. Justice Marshall denied said petition
on Monday, January 12, 1976.

Counsel has attempted to have appellant counse! for
Petitioner Gigliotti file an affidavit stating the sequence
in which briefs and responses to said briefs were filed
on appeal to the United States Court of Appeals for the

2b

Second Circuit. Appellant counsel has refused to
prepare an affidavit. Your affiant, upon said refusal,
contacted the Clerk’s Office for the United States Court
of Appeals for the Second Circuit and confirmed the
fact that the Government filed its response brief with
the Court on Wednesday, December 3, 1975. A copy of
said brief did not reach appellant counsel until Friday,
December 5, 1975. Oral argument was had on Monday.
December 8, 1975. |

Your affiant further swears that this Petition for Writ
of Certiorari was filed in good faith because it is
believed that the proceedings and not request below are
lacking from the beginning of the investigation through
the appellate process in protecting Petitioner Gigliotti’s
rights to fair judicial treatment.

This Petition for Writ of Certiorari is not filed for
purposes of delay or for purposes of continuing
Petitioner Gigliotti on bond.

/s/Kenneth Michael Robinson

KENNETH MICHAEL ROBINSON

3b

WASHINGTON )
;

DISTRICT OF COLUMBIA )

| HEREBY CERTIFY, that on this Twenty-second
day of January, 1976, before me. the subscriber, a
Notary Public of the State aforesaid, personally
appeared KENNETH MICHAEL ROBINSON, who made
oath in due form of law that the matters and facts set
forth in the foregoing Affidavit are true to the best of
his knowledge, information and belief.

As witness my hand and Notarial Seal.

/s/Lynn Kathleen Beal
NOTARY PUBLIC
My Commission Expires:
My Commission Expires November 30, 1980

> oo wre

3c
SECOND CIRCUIT

At a stated Term of the United States Court of
Appeals for the Second Circuit, held at the United
States Courthouse in the City of New York, on the
eighth day of December one thousand nine hundred
and seventy-five.

Present: HON. IRVING R. KAUFMAN
Chief Judge

HON. J. JOSEPH SMITH

HON. THCMAS J. MESKILE | ah OR Bek

Circuit Judges,

United States of America, ) | vo,
) MS.
Plaintiff-Appellee PN Pee cee ]
) a os ae
Ciro R. Riccardi, Ronald Giglioppi, ) 75-1331
) 75-1332
Defendants-Appellants. )

Appeal from the United States District Court for the
Eastern District of New York.

This cause came on to be heard on the transcript of
record from the United States District Court for the
Eastern District of New York, and was argued by
counsel.

ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged, and decreed that the judgments of
said District Court be and they hereby are affirmed.

A. DANIEL FUSARO
Clerk
by /s/ Vincent A. Carlin
Chief Deputy Clerk

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1633%3A1. Public record. Not legal advice.