Opposition — Pomponio v. United States

ee ee ee

eee a : + wR 29 wm

5S No. 76-996. Wow ATONE Em

By the Siipreme Court of the Hnited States

OCTOBER TERM, 1976

Louis J. PoMPONIO, JR., PETITIONER

VY.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DANIEL M. FRIEDMAN,

Acting Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

PAUL J: BRyYSH,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

In the Supreme Court of the Hnited States

OcTOBER TERM, 1976

No. 76-996

Louis J. PoMPONIO, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRC, IT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A) is not

reported. Its opinion in a prior appeal in this case (Pet. App.

B) is reported at 511 F. 2d 953.

JURISDICTION

The judgment of the court of appeals was entered on

November 19, 1976 (Pet. App. C). On December 9, 1976,

the Chief Justice extended the time within which to file

a petition for a writ of certiorari to and including January

18. 1977, and the petition was filed on that date. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether travel in interstate commerce with intent to

bribe an officer of a federally-insured bank, and the bribery

of such officer. is a violation of the Travel Act, 18 U.S.C.

1952. .

2. Whether the district court’s voir dire of prospective

jurors as to the effects of pretrial publicity was sufficient and

whether petitioner waived any objection to such voir dire.

STATUTES INVOLVED

18 U.S.C. 1952 provides in relevant part:

Interstate and foreign travel or transportation in

aid of racketeering enterprises.

(a) Whoever travels in interstate or foreign com-

merce or uses any facility in interstate or foreign com-

merce, including the mail, with intent to -

(1) distribute the proceeds of any unlawful

activity: or

(2) commit any crime of violence to further

any unlawful activity: or

(3) otherwise promote. manage, establish.

carry on. or facilitate the promotion, manage-

ment, establishment. or carrying on, of any

unlawful activity,

and thereafter performs or attempts to perform any of

the acts specified in subparagraphs (1). (2), and (3).

shall be fined not more than $10,000 or imprisoned

for not more than five years. or both.

(b) As used in this section “unlawful activity”

means * * * (2) extortion, bribery. or arson in vio-

lation of the laws of the State in which committed

or of the United States.

3

18 U.S.C. 215 provides in relevant part:

Receipt: of commissions or gifts for procuring

loans.

Whoever. being an officer. director, employee, agent,

or attorney of any bank. the deposits of which are in-

sured by the Federal Deposit Insurance Corporation

** * except as provided by law. stipulates for or

receives or consents or agrees to receive any fee.

commission, gift. or thing of value. from any person.

firm, or corporation, for procuring or endeavoring

to procure for such person, firm, or corporation, or

for any other person, firm, or corporation, from any

such bank or corporation, any loan or extension or

renewal of loan or substitution of security, or the pur-

chase or discount or acceptance of any paper. note.

draft. check. or bill of exchange by any such bank

or corporation, shall be fined not more than $5.000

or imprisoned not more than one year or both.

New York Penal Law §180.00 (McKinney 1975) provides:

Commercial bribing.

A person is guilty of commercial bribing when he

confers, or offers or agrees to confer, any benefit upon

any employee, agent or fiduciary without the consent

of the latter's employer or principal. with intent to

influence his conduct in relation to his employer's

or principal's affairs.

Commercial bribing is a class B misdemeanor.

STATEMENT

In 1974 petitioner was convicted by a jury in the United

States District Court for the Eastern District of Virginia of

one count of conspiracy and two substantive counts of

violating the Travel Act. 18 U.S.C. 1952. by travelling from

4

Virginia to New York with the intent to bribe an officer ofa

federally-insured bank in violation of 18 U.S.C. 215 and

New York Penal Law §180.00 (McKinney 1975).' The

district court granted his motion for arrest of ‘udgment on

the ground that violations of 18 U.S.C. 215 and New York

Penal Law §180.00 were not “unlawful activity” within the

meaning of the Travel Act. On the government's appeal. the

court of appeals reversed (ret. App. B; 511 F. 2d 953).2 and

this Court denied certiorari, 423 U.S. 874. On remand.

petitioner was sentenced to three concurrent three-year

terms of imprisonment. The court of appeals affirmed (Pet.

App. A).

The evidence showed that petitioner was the head of a

multi-corporate enterprise engaged in building and operat-

ing office and apartment buildings in Northern Virginia

and the District of Columbia (396a-402a).4 Beginning in

1965, and continuing into 1972. petitioner's organization

obtained construction loans in excess of 93 million dollars

‘Petitioner, his two brothers Peter and Paul. and his attorney Charles

J. Piluso had been indicted on cight substantive counts of violating the

Travel Act. in addition to the conspiracy count. The court required that

the government proceed on its strongest three counts, and six of the

substantive counts were severed and subsequently dismissed. Petitioner

Was tried separately because he had been hospitalized when his co-

defendants were tried. At the first ‘tial, the charges against Peter

Pomponio Were dismissed by the court. Paul Pomponio was acquitted

by a jury and Piluso was convicted on all three counts.

“The government's appeal was consolidated with Piluso’s appeal from

his conviction (see note |. supra). Piluso. like petitioner. argued that an

intent to Violate 18 U.S.C. 21S and New York Penal Law $180.00 could

not form the basis of a Travel Act conviction. Piluso’s conviction was

affirmed.

*Piluso’s petition tor certiorari was also denied. 423 U.S. 74.

*All references are to the two-volume joint appendix filed in the court

of appeals. a copy of which we are lodging with the Court.

5

through the Royal National Bank in New York City (403a-

404a).

Sidney M. Zneimer was senior vice-president of the Bank

and his primary responsibilities involved construction and

real estate loans (260a-262a). His duties included reviewing

construction loan applications (265a-266a) and processing

requests for disbursements on the basis of work completed

(27 1a). Advances were to be made only upon verification of

construction progress by bank inspectors (270a).

As discussed below, petitioner and his associates gave

Zneimer cash and gifts (including two automobiles)

worth more than $320,000.5 In return for these payments,

Zneimer helped petitioner obtain construction loans, au-

thorized advances which were not based upon the approval

of bank inspectors, and approved substantial overdrafts

on accounts maintained by petitioner's organization (272a-

28 la).

ARGUMENT

1. Petitioner’s principa! arguments are essentially the

same as those in his prior petition for certiorari, which

this Court denied last Term. The only significant develop-

ment since the denial of that petition is that the Second

Circuit has disagreed with the Fourth Circuit over whether

the Travel Act’s prohibition of interstate travel to commit

“bribery” imcludes New York’s crime of commercial brib-

ery. See United States v. Brecht, 540 F. 2d 45 (C.A. 2).

There is no occasion for this Court to resolve that conflict

here, however, because unlike in Brecht, the petitioner's

‘A breakdown of payments to or for the benefit of Zneimer is con-

tained in government exhibit 43 (467a-471a). Many of the payments

were made to Rea! Equity Consu!tants. Inc., a corporation set up for

Zneimer by co-conspirator Piluso for the purpose of receiving money

from petitioner's organization (287a-290a).

6

conviction under the Trave! Act was predicated not only

on the New York statute but also upon 18 U.S.C. 215.

Under 18 U.S.C. 215, it is a crime for an officer, director

or employee of a federally-insured bank, except as provided

by law, to receive any “fee. commission, gift, or thing of

value” from any person, firm or corporation in exchange

for procuring or attempting to procure a loan for the donor,

or for anyone else. Zneimer was an officer of a federally-

insured bank (260a-26la) and personally receivéd in

his New York office more than $320,000 from petitioner

(28 la-283a, 286a-287a). Zneimer testified that he made

unauthorized advances to the Pomponios of up to “a mil-

lion or more dollars at any one particular time™ (275a-276a)

and covered unusually large overdrafts on the account of

petitioner's firm (279a-280a). Zneimer admitted that “the

amount of money that [petitioner and his associates] had

given me must have influenced me to assist them far be-

yond what normally I would have done if I had never had

that kind of a relation with them” (281a). He pleaded guilty

to a federal indictment in connection with the payments

(284a).

Petitioner thus made payments whose receipt by Zneimer

violated 18 U.S.C. 215 whether or not petitioner himself

violated the New York commercial bribery law by making

the payments. Petitioner's travel in interstate commerce to

make those payments was travel to “promote, manage.

establish, carry on™ or to “facilitate the promotion, man-

agement, establishment. or carrying on™ of a bribery which

violated 18 U.S.C. 215.°

“Fach count of the indictment (3a-274) charged petitioner with travel

with intent to promote bribery in violation of both 18 U.S.C. 215 and

New York Penal Law §180.00. The court instructed the jury that

“[t}raveling in interstate commerce or use of facilities in interstate

commerce in furtherance of an unlawtul activity, either the violation of

eee D

;

Petitioner's answer is that 18 U.S.C. 215 itself is a

“commercial bribery” statute and thus not covered by the

Travel Act (Pet. 12). Petitioner can draw no support for this

contention from Brecht, which did not involve Section 215,’

and indeed petitioner cites no authority for his construction

of the statute. In any event, Section 215 is not a commercial

bribery statute. as this Court recognized in United States v.

Nardello, 393 U.S. 286, 293 n. Il (emphasis added):

“Bribery has traditionally focused upon corrupt activities by

public officials. See 18 U.S.C. §$§201-218 * * *.~

Furthermore. since Congress by Section 215 has prohibited

the acceptance of a bribe by an officer of a federally-insured

bank, it must have intended to include such bribes when in

the Travel Act it proscribed interstate travel to facilitate the

promotion of “bribery * ** in violation § of the

laws * * * of the United States.”

Alternatively. petitioner argues (Pet. 12). it is “tilogical”

to construe the Travel Act so as to subject a defendant to its

felony sanctions where the underlying offense is only a

misdemeanor. This construction of the Travel Act,

however, has consistently been upheld by the courts of

appeals. See. ¢.g., United States v. Karigiannis, 430 F. 2d

148. 150 (C.A. 7). certiorari denied sub nom.

Panagivtopoulos v. United States, 400 U.S. 904, United

States v. Polizzi, 500 F. 2d 856, 873 n. 17(C.A. 9). certiorari

the banking law or the violation of the State of New York, isan essential

element of the offense” (454a). The evidence could not reasonably be

Viewed as showing an intent to violate the New York statute but not the

federal. Fither petitioner intended to make improper payments to

Zneimer or he did not. The jury found that he did. and it necessarily

follows that an intent to promote a bribery in violation of the federal

statute was established.

the official demanding a bribe in Brecht was an emplovee of the

Westinghouse Electric Corporation and thus could not be charged

under 18 U.S.C. 215.

8

denied, 419 U.S. 1120: United States v. Garramone, 380 F.

Supp. 590. 593(E.D. Pa.). affirmed, 506 F. 2d 1053(C.A. 3),

certiorari denied, 420 U.S. 992.

2. Petitioner contends (Pet. 15-23) that the voir dire

examination of prospective jurors was inadequate to insure

that the jury was not influenced by pretrial publicity con-

cerning petitioner, his brothers, and their business.

At the outset of the selection procedure, the district court

asked the panel of veniremen whether any of them had read

or heard anything about petitioner and his brothers. Each

venireman who responded affirmatively was asked whether

he would be able to render a fair and impartial verdict.

Seven veniremen who indicated that they might not be able

to be impartial were excused (See 236a-243a).*

This Court has recently reaffirmed the traditional view

that the scope and content of voir dire examination are

committed to the sound discretion of the trial court.

Ristaino v. Ross, 424 U.S. 589, 594-595. Although

petitioner and his brothers had been the subject of

newspaper publicity in Northern Virginia (30a-163a), a

reading of the newspaper articles shows that they were, as a

whole, factual and impartial. There were no highly inflam-

matory articles, nor were there editorials proclaiming peti-

tioner’s guilt. Compare Sheppard v. Maxwell, 384 U.S.

333; Silverthorne v. United States, 400 F. 2d 627 (C.A. 9).

Indeed, as the court of appeals noted (Pet. App. A 2a), less

than a month before petitioner's tria! began, his brother

Paul was acquitted by a jury on the same charges for which

petitioner was tried.’ In these circumstances the court of

‘Petitioner's argument (Pet. 21-22) that individua! veniremen are

re‘uctant to acknowledge being infiuenced by pubiicity uniess ques-

tioned in isolation thus rings hollow here.

_ “Less than a week prior to tria! petitioner himscif was acquitted by a

jury of tax evasion (163a).

9

appeals properly concluded that the district court’s refusal!

to ask the questions petitioner proposed was not error.

Moreover, as the court of appeals observed, petitioner

declined to follow through on his request. Petitioner pro-

posed 37 voir dire questions (219a-226a). of which two con-

cerned pretria! publicity. The district court stated “I will ask

some of [the 37 proposed questions] and some of them |

won't, but you can approach the Bench after I finish and put

on the record your objections to my failure to ask any you

think | should have asked” (230a). During voir dire, the

court referred to the publicity, asked the venire if any of

them would possibly be influenced by such publicity, and

excused those who answered affirmatively. The court

then asked petitioner's counsel if there were additional

questions he wished to have the court ask (246a). Counsel

requested that the court ask certain of the questions,

which counsel referred to by number, that petitioner had

earlier submitted, unrelated to publicity (246a-247a). The

court complied with petitioner's request.. and asked

each of the questions (249a-250a).

Petitioner did not request that the questions concerning

publicity be read, nor did he indicate any dissatisfaction

with the court's questions concerning publicity, either

while those questions were being asked or when specifi-

cally given the opportunity to do so later. Petitioner's trial

counsel apparently was satisfied with the court's ques-

tions regarding publicity and he waived any objection to

them by failing to refer to those questions when he asked

the court to ask others—which the court did.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Danie, M. FRIEDMAN,

Acting Solicitor General.

BENJAMIN R. CIVILETTI.

Assistant Attorney General.

JueROME M. Fir,

Pach. J. Brysu.

Altorners.

Marcu 1977.

DOJ-1977-03