Opposition — Visconti v. United States

Supreme Court, U. 8.

FILED

Nos. 76-1578, 76-6697 SEP 8 1977

In the Supreme Court of the Unit

OctTorer Term, 1977

MICHAEL RODAK LOR

SALVATORE VISCONTI, PETITIONER

Vv.

UNITED STATES OF AMERICA

VALERIE VISCONTI. PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPLALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Wave H. McCree, Jr..

Solicitor General,

BENJAMIN R. CIVILeTTi.

Assistant Attorney General,

Jerome M. Fert,

Rowert J. Erickson,

RicnarD S. STOLKER,

Attorneys,

Depariment of Justice,

Washington, D.C. 20530.

———7o

INDEX

Page

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IIIT screened inaiiamnaiemnenenennenniates 2

STITT "4 Siiahsheetiiasineciidciipnibceiehidiibiguirienapesennumiapiaieannitoagnanenes 2

TEE NN ae eee Ee 4

STITIIIIIIED susisbidtibenipniatiatddiniadsimadigeeienemmieepedimeememeseanes 10

CITATIONS

Cases:

Brady v. Maryland, 373 U.S. 83 .................004. 2.7.8

Erlenbaugh v. United States, 409 U.S. 239 ............ 9

Rewis v. United States, 401 U.S. 808 ........0.0..0.00... 9

State v. Begyn, 34 N.J. 35, 167 A.2d 161.000.000.000... 7

United States v. Altobello, 442 F. 2d 310 .............. )

United States v. Archer, 486 F. 2d 670 .............. 6, 7

United States v. Butler, 504 F. 2d 220 ..............0004. 5

United States v. DeCoster, 487 F. 2d

SEITE taille cide tepineriteeiitliaaddieniabiiaietiniasendpeenenenseds 5

United States v. Esposito, 523 F. 2d 242,

certiorari denied, 425 U.S. 916 20.0... eeeeees x

United States v. Garcia, 544 F. 2d 681 ............... 4.5

United States v. Huntley, 535 F. 2d 1400,

certiorari denied. No. 76-625, March

Fi en AE IRS SS SE a 5

United States v. Isaacs, 493 F. 2d 1124,

certiorari denied, 417 U.S. 976 .00........ccccccc cece eee. 7)

Page

Cases -continued:

United States v. Lee, 448 F. 2d 604,

certiorari denied, 404 U.S. 858 0.000.000... eee. 9

United States v. LeFaivre, 507 F. 2d 1288,

certiorari denied, 420 U.S. 1004 ...000000.0 y

United States v. Miller, 529 F. 2d 1125 ...........0.00... i]

United States v. Moore, 529 F. 2d 355. ...........000.0. 5

United States v. Peskin, 527 F. 2d 71,

certiorari denied, 429 U.S. 818 ..........000.0000000. 7,9

United States v. Pomponio, 511 F. 2d 953,

certiorari denied, 423 U.S. 874 200.00... 7

United States v. Rauhoff, 525 F. 2d 1170 .............. 9

United States v. Swaiiow, Sii F. 2d 5i4,

certiorari denied, 423 U.S. 845 0000... 5

United States v. Weaver, 422 F. 2d 711 0.0.0.0... 5

Womack v. United States, 395 F. 2d 630 ............... 6

Statutes and rules:

Travel Act:

EERE ae a arr 2, 6. 7,8

I 7

a a a ae 7

i 2

Sr A i 3

_ 4 TERRE ko a Se Ne aE 3

RR Ce Ce NO 6

Federal Rules of Criminal Procedure 33 ................ 5

Federal Rules of Evidence 103 .....0.00000000000000 x

In the Supreme Court of the United States

OctToreR Term, 1977

No. 76-1578

SALVATORE VISCONTI, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 76-6697

VALERIE VISCONTI, PETITIONER

Vv

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI 10 THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The judgment orders of the court of appeals (Pet. No.

76-1578 App. 23-25; Pet. No. 76-6697 App. |) are not

reported.

JURISDICTION

The judgments of the court of appeals were entered on

March 4, 1977. A petition for rehearing was denied on

April 12. 1977. The petitions for a writ of certiorari were

(1)

2

filed on May 9, 1977 (No. 76-6697) and May I1, 1977

(No. 76-1578). The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether the court below erred in refusing to remand

this case to the district court for an evidentiary hearing on

petitioner Salvatore Visconti’s claim on appeal that his

retained trial counsel was incompetent.

2. Whether the evidence established that federal agents

manufactured the interstate elements of the offenses under

18 U.S.C. 1952.

3. Whether an attempt to promote an unlawful activity

in violation of state law is punishable under the Travel Act.

4. Whether the government suppressed exculpatory

material in violation of Brady v. Maryland, 373 U.S. 83.

5. Whether the evidence was sufficient to show that

petitioners traveled interstate and used interstate facilities

to promote an unlawful activity in violation of state law,

as proscribed by the Travel Act, 18 U.S.C. 1952.

STATEMENT

After a jury trial in the United States District Court for

the District of New Jersey, petitioners were convicted of

conspiracy (Count 1) and of utilizing the facilities of inter-

state commerce to bribe a public official (Count I1), in vio-

lation of 18 U.S.C. 371 and 1952.' Salvatore Visconti was

‘At the close of evidence the trial court granted Valerie Visconti’s

motion for a judgment of acquittal on Count HI, charging the use of

interstate facilities to bribe a municipal fire inspector (Tr. 1833-1834);

Salvatore Visconti was subsequently acquitted of the same charge (Tr.

2100-2101).

Convicted along with petitioners were co-defendants Raphacl

Bressler and the Adjustment Construction Corporation. Bressler’s

Petition tor certiorari, No. 76-5924, was denied on February 22. 1977.

3

sentenced to five years’ imprisonment; Valerie Visconti,

Salvatore’s daughter, was sentenced to an indeterminate

term of incarceration under the Federal Youth Corrections

Act, 18 U.S.C. 5010(b) and 5017(c). The court of appeals

affirmed.

For several years Salvatore Visconti and co-defendant

Bressler regularly bribed public officials in order to gain

preferential treatment in the award of government con-

tracts in New York (Tr. 167, 434-436). In 1975, they decided

to expand their activities to New Jersey (Tr. 168-169,

336-338). Thereafter, Salvatore Visconti and Bressler met

with Neil Piro, the director of the Jersey City Department

of Community Development, and offered to make Piro

a “ten per cent partner” if he could arrange to award them

a $650,000 real estate management contract for city-owned

properties in Jersey City; they also offered him five per cent

of any fire adjustment contracts that he could assist them

in obtaining (Tr. 164-167). Salvatore Visconti said that the

partnership would serve as a foundation from which he

could expand his activities into other areas of New Jersey.

Piro was assured that everything would be done in a

manner that would give the appearance of legitimacy and

that money could be “funnelled™ to him through a corpora-

tion or other intermediary (Tr. 167-168).

Following the meeting. Piro contacted federal agents,

told them of the bribery attempt, and agreed to assist in

electronic monitoring of any future telephone conversa-

tions or meetings with Salvatore Visconti and his assoc-

iates (Tr. 170-171). Petitioners, Bressler, and Piro met or

conversed by telephone on several occasions during the

next two months, and their conversations were recorded

by Piro (Gov't Exs. 89, 93, 96-102, 104-105, 110, 120). In

sum, the recorded conversations revealed a multi-million

dollar scheme to offer large sums of money to Piro in ex-

change for preferential treatment in the awarding of gov-

4

ernment construction contracts (see Tr. 166, 223-225,

242, 245-249, 260, 265, 534, 658, 737-742, 783-789, 802-

803). In addition, petitioners sought Piro’s assistance in a

scheme whereby selective enforcement of the local housing

code would be used as a device to extort funds from land-

lords within Jersey City; this scheme was expected to net a

“few hundred thousand dollars” (Tr. 579-582).

ARGUMENT

1. At the conclusion of the trial Salvatore Visconti

discharged his trial counsel. Although he was represented

by other counsel at his sentencing on April 28, 1976, he

nonetheless filed a pro se notice of appeal that same day.

Subsequently, on August 16, 1976, he retained his

present counsel to prosecute his appeal. While the case was

pending before the court of appeals, Salvatore Visconti

moved the court of appeals to remand the case for an

evidentiary hearing on the question of the competency of

trial counsel. The motion was denied on March 4, 1977, in

light of United States v. Garcia, 544 F. 2d 681, 684, n. |

(C.A. 3), where the court stated that it was “preferable to

follow the normal procedure” of having ineffective assist-

ance of counsel claims initially presented to the district

court. Thereafter, in denying Salvatore Visconti’s petition

for rehearing, the court of appeals again refused to hold

its judgment in abeyance until the incompetency of counsel

issue could be considered on limited remand. It concluded

(Pet. No. 76-1578 App. 28-29) “ * * * that the interest in

the finality of direct appeals should be the predominant

consideration in cases in which a §2255 review is available

in the district court albeit after incarceration * * *.”

Petitioner Salvatore Visconti contends that the decision

of the court below is in conflict with the procedure em-

ployed by the District of Columbia Circuit for disposing of

similar claims. In some cases in which an appellant has

— |

5

raised an ineffective assistance of counsel claim on appeal

and the claim cannot be adequately resolved on the exist

ing record, the District of Columbia Circuit has permitted

the appellant to file a motion for a new trial with the dis-

trict court under Fed. R. Crim. P. 33 and, if the district

court indicates a disposition to grant the motion, has re-

manded the case for an evidentiary hearing on the in-

effective assistance claim. United States v. DeCoster,

487 F. 2d 1197, 1204-1205 (C.A. D.C.); see also United

States v. Moore, 529 F. 2d 355(C.A. D.C.), United States

v. Butler, 504 F. 2d 220 (C.A. D.C.), United States v.

Weaver, 422 F. 2d 711 (C.A. D.C.).

Whether or not the District of Columbia Circuit pro-

cedure, permitting a motion for a new trial pending appeal.

is consistent with the time requirements of Rule 33, a re-

mand for an evidentiary hearing pending appeal is an “ex-

ceptional remedy” that other circuits have not adopted in

dealing with claims of ineffective assistance of counsel

raised after notice of appeal has been filed. See United

States v. Garcia, supra; United States v. Huntley, 535 F. 2d

1400, 1405 (C.A. 5), certiorari denied, No. 76-625, March

21. 1977; United States v. Swallow, 511 F. 2d 514, 524

(C.A. 10), certiorari denied, 423 U.S. 845. The courts in

those cases have followed the normal procedure of deciding

appeals as expeditiously as possible on the basis of the ex-

isting record and requiring defendants presenting inef-

fective assistance claims based on evidence outside the

record either to file timely Rule 33 motions’ or to pursue

‘Petitioner Salvatore Visconti did file a motion tor a new tril,

on March 16, 1977. two weeks after the court of appeals entered its

judgment in this case (Pet. No. 76-1578 App. 33). That motion was

denied two days later. and petitioner has not appealed.

6

their claims through motions under 28 U.S.C. 2255.’ The

District of Columbia Circuit's procedure is, in any event,

based on that court's supervisory power and its view of

what procedure may best promote judicial economy: the

divergence in procedure among the circuits thereby created

does not require the attention of this Court.

Accordingly. there is no occasion to consider the merits

of Salvatore Visconti’s claims (Pet. 15-18) that his repre-

sentation at trial was inadequate. The court below did

not err in holding that those claims, which rest on matters

outside the record, would not be entertained on direct

appeal.

2. Petitioner Salvatore Visconti also contends (Pet. 18-

19) that his conviction under 18 U.S.C. 1952 cannot stand

because the interstate commerce elements of the offense

were “manufactured” by federal agents, relying on United

States v. Archer, 486 F. 2d 670 (C.A. 2). That contention

is belied by the record, which shows that petitioners and

co-defendant Bressler initiated the contact with Piro for

the very purpose of expanding their operations into New

Jersey and that they thereafter engaged in seven interstate

‘it should be noted that the decision below does not in any way

deprive petitioner Salvatore Visconti of an opportunity to present

his claim in a motion to the district court under 28 U.S.C. 2255. In-

deed. as the statute expressly provides, he may file such a motion “at

any time.” and he could probably obtain a resolution of his claim by

such a motion far more expeditiously than by pursuing the matter on

direct appeal. Womack v. United States, 395 F. 24 630 (C_A.D.C_).

which petitioner cites (Pet. 14). does not establish that Section 2255

rehet ts unavailable pending direct review: indeed it expressly holds

that the pendency of direct review ts no jurisdictional bar. It merely

states that considerations of judicial economy militate against enter-

taining a Section 2255 motion when direct review may Moot the motion.

Those considerations do not apply in the context of the Third Cir-

cuits practice with respect to meffective assistance clams based on

evidence outside the record

>

telephone calls with Piro and traveled from New York to

New Jersey to meet with Piro on six occasions. The fact

that after the initial contact Piro decided to cooperate with

the FBI hardly constitutes “manufacturing” federal juris-

diction. Archer is wholly inapposite. There, federal and

state agents devised a fictitious arrest to provide the

occasion for corrupting a state prosecutor and themselves

traveled to another state to make and receive the phone

calls that were asserted as the interstate element.

3. Salvatore Visconti contends (Pet. 19-20) that his

interstate activities did not “otherwise promote * * * any

unlawful activity” (i.e., “bribery * * * in violation of the

laws of the State in which committed”) (18 U.S.C. 1952(a)

(3) and (b\(2)) because his attempt to bribe Piro was never

consummated. At the threshold, this claim fails because,

under New Jersey law, “{t}he crime [of bribery] is com-

mitted by the mere offer as well as by the actual payment”

(State v. Begyn, 34 N.J. 35, 47, 167 A.2d 161, 167). But,

more importantly, the Travel Act proscribes interstate

travel or the use of interstate facilities with the intent to

promote bribery schemes regardless of whether those

schemes are ever successfully consummated through an

actual transfer of funds. See United States v. Peskin, 527 F.

2d 71, 78-79(C.A. 7), certiorari denied, 429 U.S. 818; United

States v. Pomponio, 511 F. 2d 953, 957 (C.A. 4), certiorari

denied, 423 U.S. 874. Thus the government's proof showing

Salvatore Visconti’s involvement over a two-month period

in a scheme to bribe a municipal official was sufficient to

support his conviction under 18 U.S.C. 1952. even though

no bribe was ever paid to Piro.

4. Petitioner Salvatore Visconti contends (Pet. 20-22)

that the government violated Brady ». Marvland, 373 U.S.

83. when it failed to inform the defense that Piro had been

under investigation by the FBI. This claim ts insubstantial

in light of the record. During the trial the district court was

informed that at some time the witness had been under

FBI investigation. The court advised counsel of this fact

and directed the government to provide whatever informa-

tion it had concerning the matter for consideration in

camera.

In a portion of the record sealed because of its sensitive

nature, the court ruled that the materia! was not dis-

closable under Brady but nonetheless ordered that the

material be made available to defense counsel for their

review and for use in connection with cross-exemination

of the witness. Although all defense counsel reviewed the

material, it was not used in the cross-examination of the

witness. No objection was made to the court's ruling or to

the procedure thus employed. Accordingly, the matter

is not properly before this Court; see Fed. R. Evid. 103. In

any event, the trial court's ruling was correct, since the

information was neither suppressed nor was it “material

either to guilt or to punishment.” Brady v. Marviand, supra.

373 U.S. at 87; United States v. Miller, 529 F. 2d 1125,

1128-1129 (CA. 9).4

5. Petitioner Valerie Visconti’s claim (Pet. 6) that the

interstate activity was merely “fortuitous and incidental

to the criminal purpose.” and thus beyond the scope of

18 U.S.C. 1952. is simply contrary to the record. As in-

dicated above. the evidence showed seven interstate

‘Petitioner premises his Brad) claim on the supposition that evidence

of the F.B.L. investigation might somehow have been useful in cross-

csamining Piro” However. under the curcumstances of the case. where

the evidence agaist petitioner Salvatore Visconti ws strong. Piro’s

testimony ts corroborated by tape recordings of his conversations with

petitioner, and defense counsel had the opportunity to cross-c\amine

Pwo about the investigation. any Brad: clam iw without merit Sco

(nied States \ Exposite, 523 b. 2d 242. 248-250 00 A. 7). cortioran

demed. 425 1 S. 916

9

telephone calls between petitioners and their co-defend-

ant and Piro and six trips to New Jersey in furtherance

of the scheme to expand their illegal operations from

New York to New Jersey.’ Indeed, as this Court recognized

in Rewis v. United States, 401 U.S. 808, 811, Section

1952 was specifically directed at individuals who, like

petitioner, “reside in one State while operating or manag-

ing illegal activities located in another.” See also Erlen-

baugh v. United States, 409 U.S. 239, 247, n. 21.°

‘In this connection, petitioner is simply incorrect in stating (Pet. 7)

that “[n]o suggestion appears in the record that the conspirators or

any of them had engaged in similar unlawful conduct in New York or

that the instant offense was the outgrowth, or otherwise related to inter-

state activities characteristic of organized crime” (see Tr. 167-169,

434-436).

“Nor is the decision below in conflict with United States v. Isaacs,

493 F. 2d 1124, 1146-1149 (CA. 7), certiorari denied, 417 US. 976,

and United States v. Altobello, 442 F. 2d 310, 315 (CA. 7). Although

those cases hold that the “minimal, incidental, and fortuitous”

(Isaacs, supra, 493 F. 2d at 1146) clearance of checks through inter-

state banking channels ts insufficient to meet the federal jurisdictional

clement (but see United States y. LeFaivre, 507 F. 2d 1288, 1296-

1297 (CA. 4). certiorari denied. 420 U.S. 1004), the Seventh Circuit in

Isaacs stated that the appropriateness of a Travel Act prosecution de-

pends on “the nature and degree of interstate activity in further-

ance of the state crime” (493 F. 2d at 1148). Thus, the Seventh Circuit

has not hesitated to uphold Section 1952 convictions where, as here.

interstate travel or the use of interstate facilities was directly and es-

sentially related to promoting an illegal state activity. See United

States v. Peskin, supra; United States v. Rawhoff, S25 &. 2d 1170.

1173-1175 (CA. 7): United States v. Lee, 448 &. 2d 604, 606-607

(C_A. 7), certiorari denied. 404 U.S. 858.

10

CONCLUSION

It is therefore respectfully submitted that the petitions

for a writ of certiorari should be denied.

Wapet H. McCree, Jr.,

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Feit,

RoBerT J. ERICKSON,

RICHARD S. STOLKER,

Attorneys.

SEPTEMBER 1977.

DOJ-1977-09