Petition — Mango v. United States

JUL 22

» JR. CLERK

Aes wae aan wa

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1977

Pome,

IN THE

Supreme Court of the United States

October Term, 1976

UNITED STATES OF AMERICA,

Respondent,

vs.

VITO MANGO,

Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

THOMAS L. TWYFORD

Attorney for Petitioner

501 South High Stree’

Columbus, Ohio 43215

(614) 224-8166

STEPHEN R. OLAH AND

MARYE WRIGHT

U. S. Attorneys

P. O. Box 899

Ben Franklin Station

Washington, D.C. 20044

— —

MIDWEST LAW PRINTERS AND PUBLISHERS, INC., Columbus, Ohio 43216

|

INDEX

Opinion Below eres ese, 2

Jurisdiction | moe 2

Questions Presented _ eae 2-4

Statutes Involved | fim 2. 45

Statement of Case | Atal a —

Reasons for Granting Writ Pit ool Oehuta tarecha ee

Ne a a eS ns

Certificate of Service Peevnl Bane ee

APPENDIX .__.. +; Rion AS.

Opinion of the Court of Appeals for

the Sixth Circuit gy: ae

PS | ret. Cee oe fh _. 18-24

Portions of Trial Transcript ..... 24-88

IN THE

Supreme Court of the United States

October Term, 1976

No.

UNITED STATES OF AMERICA,

Respondent,

vs.

VITO MANGO,

Petitioner.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

To the donorable Chief Justice and Associate Justices

of the Supreme Court of the United States:

Vito Mango, the petitioner herein, prays that a writ

of certiorari issue to review the judgment of the United

States Court of Appeals for the Sixth Circuit entered

in the above-entitled case on June 21, 1977.

Respectfully submitted,

THOMAS L. TWYFORD

Attorney for Petitioner

2

OPINIONS BELOW

The order of the United States Court of Appeals for

the Sixth Circuit affirming petitioner’s conviction in

the United States District Court, Southern District of

Ohio, Eastern Division, is printed in the Appendix

hereto, at page

JURISDICTION

The order of the United States Court of Appeals for

the Sixth Circuit was entered on June 21, 1977. The

jurisdiction of this Court is invoked pursuant to 28

USC $1254(1) which provides in pertinent part:

I.

Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the peti-

tion of any party to any .. . criminal case, before

or after rendition of judgment or decree...

QUESTIONS PRESENTED

WAS IT PREJUDICIAL ERROR FOR THE

TRIAL JUDGE NOT TO CONDUCT SOME

INQUIRY AS TO THE COMPETENCY OF

A KEY WITNESS WHEN A QUESTION AS

TO THAT WITNESS’S MENTAL HEALTH

WAS RAISED BY DEFENSE COUNSEL

AND FURTHER TO PROHIBIT DEFENSE

COUNSEL FROM INQUIRING OF THAT

SAME WITNESS ON VOIR DIRE AS TO

THAT WITNESS’S PREVIOUS CONFINE-

MENT IN A MENTAL HOSPITAL?

II.

ITT.

IV.

VI.

3

WAS IT PREJUDICIAL ERROR FOR THE

TRIAL JUDGE TO LIMIT THE SCOPE OF

CROSS EXAMINATION OF A KEY PROSE-

CUTION WITN¥SS; SAID LIMITATION

PROHIBITING DEFENSE COUNSEL FROM

INQUIRING AS TO THAT WITNESS’S

PRIOR CONFINEMENT IN A ME3,TAL

HOSPITAL OR OTHER “INSTITUTIONAL-

IZATION”?

WAS IT PREJUDICIAL ERROR FOR THE

TRIAL JUDGE TO PROHIBIT DEFENSE

COUNSEL FROM INTRODUCING OTHER

EVIDENCE AS TO A KEY PROSECUTION

WITNESS’S PRIOR CONFINEMENT IN A

MENTAL HOSPITAL OR OTHER “INSTI-

TUTIONALIZATION”, WHERE SUCH EVI-

DENCE WAS TO BE USED TO IMPEACH

THAT KEY PROSECUTION WITNESS? ~

WAS PREJUDICIAL ERROR CAUSED BY

THE CUMULATIVE EFFECT OF THE

ERRORS ALLEGED IN I THROUGH Ii

ABOVE?

WHEN UNION RACKETEERING IS

CHARGED UNDER 18 U.S.C. §1961 ET SEQ.,

ARE ALL COUNTS IN SUCH AN INDICT-

MENT SO INTER-RELATED THAT GRIEV-

OUS ERROR IN THE TRIAL OF ANY ONE

OR MORE COUNTS REQUIRES RE-TRIAL

OF ALL COUNTS IN THE INDICTMENT?

SHOULD THE TRIAL COURT HAVE

GRANTED THE DEFENSE MOTION FOR

VIL.

4

ACQUITTAL AS TO RACKETEERING BE-

CAUSE OF THE GOVERNMENT’S FAIL-

URE TO PROVE BEYOND A REASONABLE

DOUBT A FACTUAL NEXUS COMBINING

THE PREDICATE CRIMINAL ACTS

CHARGED INTO A “PATTERN OF RACKE-

TEERING ACTIVITY”?

WERE THE EMBEZZLEMENT CONVIC-

TIONS INCONSISTENT AND AGAINST

THE MANIFEST WEIGHT OF THE EVI-

DENCE?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The Sixth Amendment to the United States Con-

stitution provides, in pertinent part:

In all criminal prosecutions, the accused shall

enjoy the right * * * to be confronted with the

witnesses against him.

Title 29, United States Code, Section 501(c) pro-

vides:

Any person who embezzles, steals or unlawfully

and willfully abstracts or converts to his own or

the use of another, any of the moneys, funds,

securities, property, or other assets of a labor

organization of which he is an officer, or by which

he is employed, directly or indirectiy, shall be

fined not more than $10,000 or imprisoned for

not more than five years, or both.

18 U.S.C. $1961 provides in pertinent part:

(1) “Racketeering activity” means... (B) any

act which is indictable under any of the following

5

provisions of title 18, United States Code: section

1341 (relating to mail fraud) ... (C) any act

which is indictable under title 29, United States

Code. . . section 501(c) (relating to embezzlement

from union funds) .. .

18 U.S.C. §1961(5) provides:

(5) “pattern of racketeering activity” requires

at least two acts of racketeering activity, one of

which occurred after the effective date of this

chapter and the last of which occurred within ten

years (excluding any period of imprisonment)

after the commission of a prior act of racketeering

activity ...

18 U.S.C. §1962(c) provides:

It shall be unlawful for any person employed by

or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or

indirectly, in the conduct of such enterprise’s

affairs ugh a pattern of racketeering activity

or collection of unlawful debt.

Rule 607, Federal Rules of Evidence provides:

The credibility of a witness may be attacked by

any party, including the party calling him.

STATEMENT OF THE CASE

The petitioner seeks review of the order of the

United States Court of Appeals for the Sixth Circuit,

No. 76-2615, entered on June 21, 1977, which affirmed

petitioner’s conviction in the United States District

Court, Southern District of Ohio, Eastern Division.

In the District Court the case was heard as Criminal

Case Number 2-76-67 by the Honorable Joseph P. Kin-

neary and a duly impaneled jury of twelve and one

6

alternate. In the trial court, petitioner, Vito Mango,

was convicted on six of eight counts; one of racketeer-

ing, one of mail fraud and four of six embezzlement

charges. A copy of the indictment is in the Appendix

hereto at pages 18 through 24.

The basis upon which petitioner seeks review is that

the trial judge abused his discretion in improperly

limiting the scope of inquiry as to one of the key wit-

nesses for the prosecution and that the convictions

were inconsistent and against the manifest weight of

the evidence.

During the trial, immediately before the prosecution

called Robert Schmidt as a witness, there were pro-

ceedings out of the hearing of the jury. The substance

of those proceedings is set out on pages 84 and 85 of

the trial transcript, which pages are included in the

Appendix at pages 24 through 25.

At that point, defense counsel informed the judge

that he had learned that Robert Schmidt had been

either hospitalized or judicially declared incompetent,

but that defense counsel was unaware of the particu-

lars of these events. The government acknowledged

that Schmidt had been “institutionalized”. Defense

counsel requested voir dire examination of witness

Schmidt to determine his competency. That request

was denied. Further, defense counsel was prohibited

from inquiring about the witness’s institutionalization

when questioning him on cross examination. The Ap-

pendix, at pages 26 through 38, contains copies of the

transcript of the direct and cross examination of wit-

ness Robert Schmidt, showing that his institutionaliza-

tion was never brought out. Defense counsel was fur-

ther prohibited from introducing other evidence to

impeach witness Robert Schmidt on grounds of mental

7

incompetency as shown by his prior stay in a mental

institution. Further, Schmidt’s criminal “institu-

tionalization” was not brought out, because of the same

restriction.

REASONS FOR GRANTING THE WRIT

The case at bar contains within it special, important

and compelling reasons for this Honorable Court to

grant Vito Mango’s petition for a writ of certiorari to

review the judgment of the United States Court of

_Appeals for the Sixth Circuit. The petitioner raised

questions of constitutional and statutory construction

which are of fundamental importance to the adversary

system of criminal justice.

The Confrontation Clause of the Sixth Amendment

to the United States Constitution guarantees to Vito

Mango the right to fully cross examine all of the wit-

nesses against him upon all issues that are relevant

to his defense. The action of the trial judge in the

United States District Court effectively denied peti-

tioner this right of confrontation. The order of the

Sixth Circuit Court of Appeals holding that there was

no abuse of discretion on the part of the trial judge

in excluding the voir dire examination of witness

is contrary to a recent decision of this Court. In Davis

v. Alaska, 415 U.S. 308 (1974, this Court held that

denial of the right to effective cross examination con-

stituted “constitutional error of the first magnitude”

and no amount of showing of want of prejudice would

cure it. Thus the Court of Appeals has decided a

federal question in a manner which conflicts with an

applicable decision of this Court. This basic conflict

8

is sufficient to trigger this Court’s supervisory powers

to insure that important constitutional rights of those

accused of crimes are not eroded or diminished. The

full extent of this erosion is set forth in the following

arguments.

No inquiry as to the competency of witness Robert

Schmidt was made by the trial judge. The test for

competency, announced in District of Columbia v.

Armes, 107 U.S. 519 (1882), is whether the witness

has sufficient understanding to apprehend the true

obligation of an oath and to be capable of giving a

correct account of the matters to which he is testifying.

Admittedly, it rests with the discretion of the trial

court as to the form of a hearing to determine com-

petency of a witness. There is no requirement of a

formal hearing. But when the court is put on notice

of a witness’s confinement in a mental hospital, mak-

ing no inquiry at all is an abuse of the trial court’s

discretion. Such inquiry must be made as satisfies the

court that the witness is competent to testify. United

States v. Gerry, 515 F. 2d 130 (1975).

Error was made in not making an inquiry into the

competence of Robert Schmidt where that competence

was questioned by the defense counsel and where the

existence of such a question was corroborated by the

prosecution. See page 85 of the trial transcript, Ap-

pendix, page 25. This error prejudiced the petitioner.

The jury was not informed of all the relevant evi-

dence on the question of Robert Schmidt’s credibility.

While the court is responsible for determining the

competency of a given witness, it remains the task of

the jury to decide the credibility of that witness. There-

fore, the jury should be informed of all matters affect-

ing a witness’s credibility to aid in their determination

9

of the truth. United States v. Partin, 493 F. 2d 750

(5th Cir. 1974). Full cross examination into a rele-

vant area such as cvedibility is a right and the court’s

discretion to limit the cross examination does not arise

until the party has had an opportunity to exercise the

right of cross examination. United States v. Green-

berg, 423 F. 2d 1106 (5th Cir. 1970). In the instant

case, Vito Mango was denied this opportunity to fully

cross examine witness Schmidt. Such a denial is con-

stitutional error of the first magnitude. Smith v. Illi-

nois, 390 U.S. 129 (1968).

The gravity of this error is enhanced when one con-

siders that this is a criminal case. As such, it involves

serious and substantial rights of the petitioner. It is

important in dealing with such rights to use every

safeguard to ascertain the truth. McConnell v. United

States, 393 F. 2d 404 (5th Cir. 1968), held that great

latitude should be given to cross examination in crimi-

nal cases because full scope cross examination as to

the credibility enhances the jury’s ability to find the

truth. Here, cross examination as to credibility was

improperly restricted and the petitioner was preju-

diced by this restriction.

28 U.S.C. Federal Rules of Evidence, Rule 607,

states that the credibility of a witness may be attacked

by any party. Particularly where the government’s

case may stand or fall on the jury’s belief or disbelief

of one witness, the credibility of that witness should be

carefully inquired into and closely scrutinized. Gordon

v. United States, 344 U.S. 414 (1952). Here, if the

jury had not believed witness Schmidt, there would

have been no conviction on the mail fraud charge, at

the very least, and most probably there would have

been no conviction on any charge, since all charges

10

were of necessity interrelated under the ambit of the

racketeering charge. Witness Schmidt’s credibility

should have been subject to close scrutiny. His prior

commission to a mental hospital bore on his reliability,

comprehension and credibility and should have been

examined carefully. Instead, defense counsel was pro-

hibited from even approaching this area.

As seen by the McConnell and Partin cases cited

above, criminal defendants have a right to a full effec-

tive cross examination as to the credibility of those who

testify against them. The recent case of Davis v.

Alaska, supra, reaffirms this fundamental principle.

In that case, Green, a juvenile on probation for two

burglary charges, testified against Davis, accused of

burglary in another case. At the time of the trial,

Alaska had a statute prohibiting the disclosure of

juvenile criminal records. This statute was held by

the Alaska Supreme Court to bar Defendant Davis

from inquiring on cross examination as to witness

Green’s juvenile record.

in reversing, the United States Supreme Court held

that denial of the right to effective cross examination

would be “constitutional error of the first magnitude”

and no amount of showing of want of prejudice would

cure it.

In Davis, Alaska was pursuing the state policy of

letting juvenile offenders live down their youthful mis-

takes. The court in the case at bar was not pursuing

any ascertainable policy. In any event, in Davis, the

restriction was held to be constitutional error of the

first magnitude where a state statute and a strong

state interest were involved. Here there is no strong

state interest that militates against full cross examina-

tion. The basis for the restriction of cross examination

11

in the case at bar does rise to anywhere near the

strength of the arguments in support of the restrictive

cross examination in Davis. The restrictions in Davis

were held to be constitutional error of the first magni-

tude. So, too, then are the restrictions imposed at trial

in this case error of the first magnitude. Davis is con-

trolling herein, and the order of the Court of Appeals

is clearly contrary to the Davis holding.

Impeachment in the case at bar was not calculated

to humiliate or degrade witness Schmidt. As stated

above, the credibility of a witness is a relevant issue

and may be questioned or attacked by any party. Evi-

dence of insanity is admissible for and relevant to the

credibility of a witness. United States v. Hiss, 88 F.

Supp. 559 (S.D.N.Y. 1950). Evidence of conviction

and confinement for a felony offense is similarly ad-

missible and relevant. Indeed it is error to keep such

evidence from the jury.

Error such as this denied petitioner due process of

law by denying him his rights under the Confrontation

Clause of the Sixth Amendment to the United States

Constitution. The Confrontation Clause means that a

criminal defendant is entitled to a full, effective cross

examination of all witnesses against him. Petitioner

Vito Mango was denied this right when prohibited

from inquiring into the credibility of witness Schmidt.

Even if it be found that no one of these errors was

prejudicial, which petitioner expressly denies, when

all of the aforementioned errors are cumulated, they

are clearly prejudicial to the petitioner. The net result

was that the jury received absolutely no evidence as

to Schmidt’s mental capacity or criminal record. If

they had, they may not have believed Schmidt and they

may have acquitted the petitioner.

12

Since all counts in the indictment are interrelated,

grievous error in the trial of any one or more requires

re-trial of all counts. When Union Racketeering is

charged under Title 18 U.S.C. §§1961, 1962, and 1963,

the requirement of proof beyond a reasonable doubt

of a “pattern of racketeering activity” renders all

charges in such an indictment interrelated. Error in

the trial of one of the courts relating to the predicate

criminal activity requires a re-trial of all the counts.

This is particularly true where the grievous error

occurs in the one count of a multiple count indictment

that clearly carries a connotation of organized crime

or racketeering. The charge of mail fraud under Title

18, U.S.C. §1341 carries such a connotation. And it

was precisely upon this count of mail fraud that the

prosecution most heavily relied upon the testimony of

Robert Schmidt.

Finally, petitioner contends that his convictions for

racketeering and embezzlement were inconsistent and

against the manifest weight of the evidence.

The trial court should have granted the defense

motion for acquittal as to the racketeering charge be-

cause the Government failed to prove a factual nexus

combining the predicate criminal acts charged into

a “pattern of racketeering activity” by evidence suffi-

cient to sustain conviction. The language of Title 18

U.S.C. §1961, 1962, and 1963 requires proof beyond

a reasonable doubt of a “pattern of racketeering ac-

tivity”. United States v. Campanale, 518 F. 2d 352

(1975). The evidence produced by the Government in

this case contained no explanation or rationale fitting

the alleged acts of the petitioner into a pattern of un-

lawful conduct.

Counts three (III) and eight (VIII) arose from the

13

same fact situation and logically should be treated

together. Count III involved an expenditure of Two

Thousand Fifty-Seven Dollars and Twenty Cents

($2,257.20) for a Lear Jet flight from Columbus, Ohio

to Chicago, Illinois and return in April of 1976 for

the petitioner, Jerry Payne and two companions. Count

VIII of the Indictment involved hotel charges arising

out of that same trip to Chicago in the amount of One

Hundred and Eight Dollars and Twenty-Six Cents

($108.26). The Government contended that the peti-

tioner was guilty of embezzlement of those two amounts

because the trip was not for Union purposes and was

solely a pleasure excursion for petitioner and his three

companions. Evidence from the Government’s own

witness, however, did not bear this out, but rather

showed that the Chicago trip was a meeting that the

petitioner and the Union Vice-President attended in

the course of negotiations for a Union Dental Services

Plan. The Government’s evidence on these two counts—

the expenditure for the Lear Jet and the expenditure

for hotel rooms—clearly is insufficient to support a

conviction on Counts III and VIII.

Count four (IV) in the Indictment involved an ex-

penditure of Ninety-Five Dollars and Twenty-Seven

Cents ($95.27), for un airline ticket for Wilma Lan-

nan. The Government’s evidence at best could have

proved that the petitioner may have offered to permit

Wilma Lannan to misuse his union credit card, but

that she did not use it. The evidence shows that instead,

she made the unauthorized use of a different union

credit card—one not under the control of the petitioner.

This use cannot constitute a criminal offense on the

part of the petitioner.

14

Count seven (VII) dealt with an expense of Seventy-

Four Dollars and Thirty-Four Cents ($74.34). The

Government’s evidence tends to show that a printing

company overcharged the union by that amount. There

is no evidence that the petitioner intended to spend

more money that was authorized or ever knew that

he had been overcharged.

CONCLUSION

Petitioner submits that the time is ripe for a plenary

review of the substantial constitutional and related

legal questions involved in the present case. For the

foregoing reasons petitioner, Vito Mango, respectfully

prays that a writ of certiorari be granted.

Respectfully submitted

THOMAS L. TWYFORD

Attorney for Petitioner

TWYFORD AND DONAHEY

501 South High Street

Columbus, Ohio 43215

(614) 224-8166

CERTIFICATE OF SERVICE

This is to certify that a true and exact copy of the

foregoing Petition for a Writ of Certiorari was served

upon Stephen R. Olah and Marye Wright, United

States Attorneys, P.O. Box 899, Ben Franklin Sta-

tion, Washington, D.C., 20044, by regular U.S. mail

this day of , 1977.

THOMAS L. TWYFORD

Attorney for Petitioner

APPENDIX

16

No. 76-2615

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-A ppellee

v.

VITO MANGO

Defendant-Appellant

Filed June 21, 1977

ORDER

Before: PHILLIPS, Chief Judge, and CELE-

BREZZE and PECK, Circuit Judges.

This appeal, perfected from a judgment of convic- |

tion entered pursuant to a jury verdict finding de-

fendant-appellant guilty of mail fraud, embezzlement

and conducting a labor union’s affairs through a pat-

tern of racketeering activity, has been submitted on

the record on appeal and on the briefs and arguments

of counsel. Appellant’s principal contentions concern

the trial court’s refusal to conduct or to permit a voir

dire examination as to the competence of a witness

whose testimony was largely corroborative or to per-

mit cross-examination into the area of such compe-

tency, and the alleged insufficiency of the evidence to

support the verdict of the jury. In the circumstances

disclosed by the record it is concluded that no abuse

17

of discretion on the part of the trial judge in excluding

the voir dire examination or in such limitation of cross-

examination as may have occurred has been shown,

and that the jury’s verdict is supported by admissible

evidence in the record. Accordingly,

IT IS ORDERED that the judgment of the district

court be and it hereby is affirmed.

ENTERED BY ORDER OF THE COURT

JOHN P. HEHMAN, Clerk of Court

18

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

V.

VITO MANGO,

Defendant.

Criminal No. 2-76-67

Violations: 18 U.S.C. §$§$1961, 1962(c),

1963, 1341 and 2

29 U.S.C. $501 (c)

INDICTMENT

The Grand Jury charges:

COUNT I

1. At all times material to this indictment, and

specifically from on or about the 8th day of January,

1974, up to and including on or about the 9th day of

February, 1976:

A. International Brotherhood of Teamsters, Local

413, Columbus, Ohio, was a “labor organization” with-

in the meaning of the Labor Management Reporting

and Disclosure Act of 1959, and was “an enterprise”

as defined by Title 18, United States Code, Section

1961(4).

B. Defendant VITO MANGO was the President of

zs 19

the International Brotherhood of Teamsters, Loca! 413,

Columbus, Ohio.

2. That from on or about the 8th day of January,

1974, up to and including the 9th day of February,

1976, in the Southern District of Ohio, Eastern Divi-

sion, and elsewhere, VITO MANGO, the defendant

herein, being a person employed by or associated with

an enterprise engaged in, and the activities of which

affected interstate commerce, to wit: International

Brotherhood of Teamsters, Local 413, Columbus, Ohio,

did unlawfully, willfully, and knowingly conduct and

participate, directly or indirectly, in the conduct of

such enterprise’s affairs through a patter of racketeer-

ing activity, to wit: use of the United States mails in

furtherance International Brotherhood of Teamsters,

Columbus, Ohio, in violation of Title 18, United States

Code, Section 1341, as charged in Count II of this In-

dictment, which is alleged and incorporated in this

Count by reference as if fully set forth herein; and

embezzlement of assets (unlawful and willful abstrac-

tion and conversion of the funds) of Local 413, Inter-

national Brotherhood of Teamsters, Columbus, Ohio,

in violation of Title 29, United States Code; Section

501(c), as charged in Counts III through VIII of this

Indictment, which are alleged and incorporated in this

Count by reference as if fully set forth herein.

3. Through the aforedescribed pattern of racketeer-

ing activity, defendant VITO MANGO did utilize his

interest in substantial sums of money in furtherance

of the affairs of the International Brotherhood of

Teamsters, Local 413, Columbus, Ohio, thereby mak-

ing such interest subject to forfeiture to the United

States pursuant to Title 18, United States Code, Sec-

tion 1963(a).

20

In violation of Title 18, United States Code, Sections

1961, 1962(c), 1963, and 2.

The Grand Jury further charges that:

COUNT II

1. Beginning on or about the lst day of February,

1975, and continuing thereafter up to and including

the 13th day of February, 1975, inclusive, the exact

dates being to the Grand Jury unknown, in the South-

ern District of Ohio, Eastern Division, VITO MANGO,

the defendant herein, devised and intended to devise a

scheme and artifice to defraud the membership of

Local 413, International Brotherhood of Teamsters, by

means of false and fraudulent pretenses, representa-

tions, and promises, well knowing at the time that said

pretenses, representations, and promises would be and

were false when made.

Said scheme and artifice, representations, and prom-

ises were as follows:

That the defendant would propose that the dues of

the members of Local 413, International Brotherhood

of Teamsters be raised;

That the defendant would cause sixteen hundred

(1600) additional ballots, more or less, to be printed;

That the defendant would cause the sixteen hundred

(1600) ballots, more or less, to be fraudulently marked

in favor of the dues increase;

That the sixteen hundred (1600) ballots, more or

less, were ordered and marked without the knowledge

of the membership of Local 413, International Brother-

hood of Teamsters.

21

2. On or about the 13th day of February, 1975, in

the Southern District of Ohio, Eastern Division, VITO

MANGO, the defendant herein, for the purpose of

executing the aforesaid scheme and artifice, and

attempting to do so, knowingly caused to be delivered

by mail, according to the direction thereon, numerous

ballots addressed to Teamsters Union Local 413, P.O.

Box 1119, Columbus, Ohio 43216.

In violation of Title 18, United States Code, Sections

1341 and 2.

The Grand Jury further charges that:

COUNT III

On or about the 24th day of September, 1974, in the

Southern District of Ohio, Eastern Division, VITO

MANGO, the defendant herein, while an officer, that

is, President of Local 413, International Brotherhood

of Teamsters, a labor organization engaged in an in-

dustry affecting commerce as defined by Sections 402

(i) and 402(j), Title 29, United States Code, did em-

bezzle, steal and unlawfully and willfully the moneys,

funds, securities, property and their assets of said

labor organization in the amount of $2,257.20.

In violation of Title 29, United States Code, Section

501(c); and Title 18, United States Code, Section 2.

The Grand Jury further charges that:

COUNT IV

On or about the 28th day of July, 1974, in the

Southern District of Ohio, Eastern Division, VITO

MANGO, the defendant herein, while an officer, that

is, President of Local 413, International Brotherhood

of Teamsters, a labor organization engaged in an

22

industry affecting commerce as defined by Sections

402(i) and 402(j), Title 29, United States Code, did

embezzle, steal and unlawfully and willfully abstract

and convert to his own use and the use of another, the

moneys, funds, securities, property and other assets

of said labor organization in the amount of $95.27.

In violation of Title 29, United States Code, Section

501(c), and Title 18, United States Code, Section 2.

The Grand Jury further charges that:

COUNT V

On or about the lst day of September, 1974, in the

Southern District of Ohio, Eastern Division, VITO

MANGO, the defendant herein, while an officer, that

is, President of Local 413, International Brotherhood

of Teamsters, a labor organization engaged in an in-

dustry affecting commerce as defined by Sections

402(i) and 402(j), Title 29, United States Code, did

embezzle, steal, and unlawfully and willfully abstract

and convert to his own use and the use of another,

the moneys, funds, securities, property and other

assets of said labor organization in the amount of

wR Se OR

In violation of Title 29, United States Code, Section

501(c); and Title 18, United States Code, Section 2.

The Grand Jury further charges that:

COUNT VI

On or about the 2nd day of October, 1974, in the

Southern District of Ohio, Eastern Division, VITO

MANGO, the defendant herein, while an officer, that

is, President of Local 413, International Brotherhood

23

of Teamsters, a labor organization engaged in an in-

dustry affecting commerce as defined by Sections

402(i) and 402(j), Title 29, United States Code, did

embezzle, steal, and unlawfully and willfully abstract

and convert to his own use and the use of another the

moneys, funds, securities, property, and other assets

of said labor organization in the amount of $1,497.00.

All in violation of Title 29, United States Code,

Section 501(c); and Title 18, United States Code,

Section 2.

The Grand Jury further charges:

COUNT VII

Between on or about the Ist day of August, 1975,

and on or about the 3rd day of September, 1975, in

the Southern District of Ohio, Eastern Division, VITO

MANGO, the defendant herein, while an officer, that

is, President of Local 413, International Brotherhood

of Teamsters, a labor organization engaged in an in-

dustry affecting commerce as defined by Sections

402(i) and 402(j), Title 29, United States Code, did

embezzle, steal and unlawfully and willfully abstract

and convert to his own use and the use of another the

moneys, funds, securities, property and other assets

of said labor organization in the amount of $74.34.

In violation of Title 29, United States Code, Section

501(c); and Title 18, United States Code, Section 2.

The Grand Jury further charges that:

COUNT VIII

On or about the 28th day of May, 1974, in the

Southern District of Ohio, Eastern Division, VITO

24

MANGO, the defendant herein, while an of€ er, that

is, President of Local 413, International Brotherhood

of Teamsters, a labor organization engaged in an in-

dustry affecting commerce as defined by Sections

402(i) and 402(j), Title 29, United States Code, did

embezzle, steal and unlawfully and willfully abstract

and convert to his own use and the use of another the

moneys, funds, securities, property, and other assets

of said labor organization in the amount of $108.26.

In violation of Title 29, United States Code, Section

501(c); and Title 18, United States Code, Section 2.

This is a True Bill.

JOHN M. ARNOLD

Foreman

WILLIAM W. MILLIGAN

United States Attorney

Southern District of Ohio

Date: 1/6/76

(p. 84]

The Court: We will take our afternoon recess.

(Thereupon the Court g2ve the jury its usual admo-

nition, followed by a recess. )

Thereupon, out of the hearing of the jury, the fol-

lowing proceedings were had:

Mr. Scott: I have been advised at the present time

by The United States Attorney, Mr. Steve Olah, that

the next witness is going to be a Mr. Robert Schmidt.

I have further been advised that I have information

that leads me to believe that this man has been either

25

hospitalized or declared incompetent by a court of

competent jurisdiction, and the extent of his treatment,

if any, the duration of his treatment, if any, the de-

gree of his competence, if any, is unknown to the

undersigned.

It is for that reason that I am requesting this Court

[p. 85]to require a voir dire examination to determine

the competency of the witness, which voir dire exam-

ination I have been denied by the Court.

In addition thereto, I am being deprived the right

to inquire into said competency, and I am further

being restricted not even to be able to ask the question

on the witness stand of whether the person has ever

been in a mental institution.

For this reason it appears to me that my client, Mr.

Vito Mango, is being denied due process of law and the

right of full cross-examination as required under the

statute.

Mr. Olah: On behalf of the Government, I would

like the record to be clear that I advised Mr. Scott

that I was advised by Mr. Schmidt when he was pre-

tried last Wednesday for the nrst time, that there

was a time in which he was institutionalized.

I do not know when this institutionalization oc-

curred. I do not know the reason for it, the duration

of the institutionalization.

Thereupon, in the hearing of the jury, the following

proceedings were had:

The Court: Call your next witness.

Mr. Olah: Your Honor, before calling our next wit-

ness, at this time the Government would offer [p. 86]

Exhibits 1, 2, 3, 4 and 4-A as full exhibits, and offer

them into evidence at this time.

26

Mr. Scott: Let the record show Mr. Vito Mango has

no objections to Exhibits No. 1, No. 2, No. 3, No. 4

and No. 4-A, Your Honor.

The Court: They are admitted without objection.

Thereupon, the exhibits last above offered were ad-

mitted into the record of this action, on behalf of the

Government, marked Exhibits 1, 2, 3, 4, and 4-A.

Mr. Olah: The Government at this time would call

Robert Schmidt to the stand.

ROBERT SCHMIDT

Called as a witness on behalf of the Government, hav-

ing been first duly sworn, testified as follows:

DIRECT EXAMINATION

By Mr. Olah:

Q. Mr. Schmidt, I would ask that you speak up in

the direction of the jury so everyone can hear you.

Your current address, Mr. Schmidt?

A. 530 Longhurst Drive, Apartment 1.

Q. In what city is that located? [p. 87] A. Colum-

bus, Ohio.

Q. Are you currently employed? A. Yes, sir.

Q. Where are you employed? A. General Highway.

Q. In what capacity? A. Truck driver.

Q. How long have you been so employed? A. With

General Highway, six years, and all total 19 years, or

thereabouts, 18.

Q. Are you a member of a labor union? A. 413.

Q. The Teamsters Local 413? A. Teamsters Local

413. |

Q. How long have you been a member of Local 413?

A. Since October 1958.

27

Q. Do you know Vito Mango? A. f do.

Q. Do you see Mr. Mango in the courtroom? A. Yes,

I do.

Q. Would you point him out for us, please? A. Right

over there.

Mr. Scott: Same stipulation.

By Mr. Olah:

Q. How long have you known Mr. Mango, Mr.

Schmidt? [p. 88] A. About 18 or 19 years.

Q. Calling your attention to the early part of 1975,

are you familiar with the election for an increase in

the Union dues at Local 413? A. Yes, I am.

Q. Did you in fact receive a ballot for that election?

A. Yes, sir.

Q. Calling your attention to that month of that year,

specifically February of 1975, did you have occasion

to go to the home of Vito Mango one evening? A. Yes,

I did.

Q. What was the purpose of your going to Mr.

Mango’s home? A. I was taking his brother’s car back.

Q. Do you know where Mr. Mango was residing at

the time? A. Yes. I can’t think of the name of the

street. I know how to get there. You go up Route 33

to Lane Road—not Lane Avenue—turn off, and that’s

the first—

By the Court:

Q. There is a Lane Avenue and a Lane Road that

goes off of Route 33; which one? A. Lane Road.

Q. That’s farther north; isn’t it? A. Yes, sir.

By Mr. Olah:

Q. Do you know what suburb this is in? [p. 89]

A. Yes, Upper Arlington. I know how to get to his

house.

Q. Did you go into Mr. Mango’s home that evening?

A. Yes, I did.

Q. Did you go into any particular part of the home?

A. The basement.

28

Q. Did you see anyone there? A. I seen Vito, Mike

Mann, Dave Mango, and Jim Kirk.

Q. Where were they? A. In the basement.

Q. What, if anything, were they doing? A. Marking

ballots.

Q. Did you observe this? A. Yes.

Q. Did you engage in conversation with Vito Mango

at this time? A. Yes, sir.

Q. What, if anything, did he say to you? A. Get a

pencil and start marking.

Q. Did you do that? A. I sure did.

Q. What specifically did you do that evening, Mr.

Schmi‘t? A. I marked ballots and put ballots in enve-

lopes, and that was all.

Q. Did you mark the ballots in any particular way?

[p. 90] A. Yes, yes for the increase.

Q. Would you explain that a little bit? What do you

mean? A. I forget how it read, something about, you

know, you mark it yes if you want the increase; no

if you don’t.

Q. How did you mark the ballots? A. Yes, wanted

the increase.

Q. Did anyone tell you to mark them yes? A. Yes,

Vito did.

Q. Vito Mango? A. Yes, sir.

Q. What time of the evening approximately did

you arrive? A. It was late. I would say 11:00 or

12:00 o’clock. It was awful late; I know that.

Q. How late did you say? A. It was morning when

we left, I mean, you know, I think I got to the restau-

rant just before six o’clock, 15 minutes from his house

to the restaurant.

Q. After you placed the ballots into the envelopes,

29

were you asked to do anything else? A. Yes, I was

asked to put stamps on them.

Q. By whom? A. By Vito.

Q. Did you do that? [p. 91] A. Nope.

Q. Did you overhear—

By the Court:

Q. You say you did or you didn’t? A. No, I didn’t.

By Mr. Olah:

Q. Did you overhear Mr. Mango instruct anyone

else to put stamps on the envelopes? A. Yes, I did.

Q. Did you observe anyone putting stamps on the

envelopes? A. Yes, I did.

Q. Who? A. Vito Mango, Dave, and Mike Mann and

Kirk, Jim Kirk.

Q. Did you have any other conversation with Mr.

Mango? A. Yes, I was trying to get somebody to take

me back to my car.

Q. Did you overhear Mr. Mango give any instruc-

tions to anyone else concerning anything else? A. Yes,

about where to—I think he told Mike Mann to go to—

I think it was Mike he told to go to Delaware 7nd mail

his, you know, put them in different mail boxes. He

told someone to go out east with a handful of them

and put them in different mail boxes, and someone

was to drop some off in the south and someone was to

drop some off in the [p. 92] west side, west end.

Q. Did he ask you to mail any of these ballots?

A. No, he didn’t.

Q. Did you overhear him ask others? A. Yes, he did.

Q. Did he ask or did he instruct? A. He instructed,

I guess is what you call it.

Q. Was anyone else giving any of these instructions

on mailing other than Vito Mango? A. No, no, sir.

30

Mr. Olah: Nothing further, Your Honor. Thank

you.

The Court: You may cross-examine, Mr. Scott.

CROSS-EXAMINATION

By Mr. Scott:

Q. Mr. Schmidt, back in the early part of 1975

where were you residing? A. 530—no, wait a minute.

I think at the very first of the year I was living with

my dad.

Q. Particularly when did this so-called election oc-

cur, if you recall, Mr. Schmidt? A. It was in the first

part of last year.

Q. When? A. I don’t know, January or February.

I mean, I don’t [p. 93] know the exact date, but I

would say it was either the last of January or first

part of February sometime.

Q. What job were you working at that time? A.

Driving truck.

Q. Do you now have an independent recollection of

where you were living? A. That I am not sure of

because I had been in a truck wreck and I had been

living with my dad for a long time because I couldn’t

walk. I think I moved in that apartment out there in

March. I wouldn’t swear to that.

Q. As I understand it from your testimony, the

reason that you were there is that you had someone’s

ear? A. Yes, sir.

Q. Whose car did you have? A. Dave Mango’s.

Q. Would that be the brother of Mr. Vito Mango?

A. Yes, it would.

Q. What were you doing with his car? A. It was a

TInion car that was assigned to Dave Mango and he

gave me to use, let me use it that day to do some of

their work. That’s what it amounted to.

31

Q. Were you a business agent? A. Nope.

Q. Did you hold any type of supervisory capacity

with the Union other than being a member? [p. 94]

A. Nope.

Q. As a matter of fact, you weren’t employed at

that time; were you? A. Yes, I was.

Q. I thought you had just been in a truck accident?

A. I was in a truck accident in ’72, and I didn’t work

for 10 months on account of I got a broken leg and

femur bone, and I lived with my dad for 10 months.

Then I got back to work, then they had a steel bar in

my legs and I had to miss two more months of work

while they took the bar out, and that’s when I was

living out there, and I finally got back to work.

Q. In ’72 when you had the truck accident and you

lived with your dad for 10 months at the most, that

would take you into ’73, correct, or maybe the first

part of ’74? A. Yes.

Q. Is that right? A. I don’t know exactly what the

dates were. I could find out when I signed my lease

out there.

Q. Were you living with your father at that time?

Mr. Olah: I am going to object, Your Honor, to the

relevance of this line of cross-examination.

The Court: Oh, I think this is all right. I will over-

rule your objection at this time.

May I ask a quesiion? [p. 95]

Mr. Scott: Yes, sir.

By the Court:

Q. Mr. Schmidt, the activity that went on in Vito

Mango’s basement as you have testified when you took

the car back to his brother, Dave Mango that evening,

do you remember when that took place? A. Yes, sir,

February of last year.

Q. February of last year? A. Yes.

Q. Were you employed at that time? A. Yes, sir.

Q. Were you working? A. Yes, sir.

32

Q. Who were you working for? A. General High-

way.

Q. You were driving a truck? A. Yes, sir.

Q. Do you recall where you were living at that time

in early February or in February of 1975? Are you

living in a different place now? A. No, sir, I am still

in the same place but I can’t remember when I moved

there, because when I got out of the hospital I was off

for eight months.

Q. At least the time that you went to Vito Mango’s

house and you say you got there very late in the eve-

ning, you [p. 96] were there all night, you left there

about a quarter of six and went to the restaurant.

That was in February of 1975? A. Yes, sir.

Q. Are you living in the same place now that you

lived then? A. In February of 1975 is when I moved

in that apartment.

Q. Where is that? A. 530 Longhurst Drive.

Q. You were living there then in February of 1975;

you think you were? A. Yes, I moved in in the middle

of that month, and I don’t know exactly what date I

did move in.

The Court: Go ahead, Mr. Scott.

By Mr. Scott:

Q. Mr. Schmidt, before you came to Mr. Mango’s

house, where had you been? A. In Wellston, Ohio.

Q. What were you doing in Wellston, Ohio? A.

Working in his grocery store.

Q. You received a ca!l to come up, or you were just

going up to return the car of Mr. David Mango? A. I

was just going up to return the car.

Q. What type of work were you doing for Mr.

David Mango [p. 97] that required you to use his car?

A. I wasn’t doing work for David Mango.

33

Q. Why did you use his car? A. Because Vito told

him for me to use it, had me use it.

Q. Vito told him to have you use it? A. That’s right.

Q. You are quite sure of that? A. I am positive.

Q. You are sure you just didn’t have tire trouble

with your car and that’s— A. That’s why, and I told

him I ain’t taking any car down to his store with no

spare tire, so he told David for me to use his car.

Q. So, you are talking about tires on your car? A.

That’s right.

Q. That’s the reason why you had Dave Mango’s

car? A. The reason I had Dave Mango’s car is because

I didn’t have a spare and I was to go down to Wellston

to Hogan’s Market, which is Vito’s and work, and I

took David’s car.

Q. On the way back to Columbus did you stop any

place? A. Yes.

Q. Tell us where you stopped. A. I stopped at—I

can’t think of the name of that town—Bloomfield,

South Bloomfield. I never can remember [p. 98] the

name.

Q. What time was it when you got to South Bloom-

field? A. Oh, I would say 10:20, something like that,

a little after 10:00.

Q. How long a drive is it from Wellston to South

Bloomfield? A. About an hour and 20 minutes.

Q. Would you tell the jury where you stopped at

South Bloomfield? A. Yes, I stopped in a little bar

there.

Q. Was this a habit of yours, stopping at the bar?

A. Well, it is not only my habit, it is also the Defen-

dant’s habit. When he comes, he brought me back, he

always stopped there with me.-

34

Q. The question was: Is it your habit, Mr. Schmidt?

A. Occasionally I stop for a beer, right.

Q. The question is: Is it your habit? A. No.

The Court: The witness has answered the question,

and I think that that’s irrelevant, so let’s go on. I

know what you are doing.

By Mr. Scott:

Q. Do you remember making this answer to the

Grand Jury that you testified before:

“It was my habit always stopping there on the way

[p. 99] back, at a beer joint, and I stopped there and

had beer.”

A. What do you call a habit? I only went down to

Wellston once a week.

Q. Forget it. A. I mean—

Q. How much did you have to drink there? A. Prob-

ably two beers.

Q. Then where did you go? A. I went to the Holi-

day Inn downtown is where I had picked up David’s

ear and left my car.

Q. When you stopped in the Holiday Inn downtown,

you also stopped by some place else; didn’t you? A. Ne,

I drank the beer right there.

Q. Didn’t you go into the lounge of the Holiday Inn

and have a beer there? A. Yes, that’s what I just said.

I drank the beer there. When I called Dave, trying to

tell him his car was back, sure I had a beer there.

Q. You further indicate that you made a call to

Mr. Mango’s house; is that correct? A. David’s house

first, right.

Q. How did you get a hold of Mr. Vito Mango?

A. Dave’s wife told me he was over at Vito’s house,

so I called Vito’s.

35

Q. So you called Mr. Mango’s house? [p. 100] A.

Called Mr. Mango’s house, right, both of them.

Q. So after you stopped at South Bloomfield, after

you stopped at the Holiday Inn, what time did you

get over to Mr. Vito Mango’s house? A. Between 11:00

and 12:00 o’clock at night.

Q. Do you remember the street that he lives on?

A. No, I was trying to think about that. I know it is

a court. It is the second court off of Lane Road.

Q. How many beers, if any, did you have over

there? A. At Vito’s house? Well, in the course of six

hours I was there, I probebly drank two or three, but

I was there six hours.

Q. Two or three? A. in six hours, yes.

Q. Do you remember telling the Grand Jury that

you drank the beer, about 20 minutes it takes you to

drink a beer? A. That’s all it does take me.

Q. So you were only there about an hour? A.

Where?

Q. At Mr. Vito Mango’s house. A. No, I was there

until about 6:00 o’clock in the morning, but they had

me too busy working on ballots to drink beer.

Q. Do you remember the question being asked, on

Page 125, Line 7— [p. 101]

The Court: Just a minute. Come up here, gentle-

men. Come up here, Mr. Scott and Mr. Olah.

(Discussion off the record. )

The Court: Go ahead, Mr. Scott.

By Mr. Scott:

Q. Mr. Schmidt; my question was to you: How long

were you at Mr. Vito Mango’s house? A. Oh, I would

say between five and seven hours. I don’t know pre-

cisely. I got there a little after 11:00 and I didn’t

leave until just before 6:00 in the morning.

36

Q. Your testimony is that you had probably two

beers to drink during that period of time? A. Maybe

three even, but that’s six hours.

Q. Maybe three, that’s six hours. How do you figure

that? A. I was there for six hours at Vito’s house.

Q. Do you remember the question being asked, Page

125 of the Grand Jury:

“How leng were you there?

“Answer: I was there probably four hours. It takes

about 20 minutes for a beer, so it would be about an

hour average.”

Do you remember that question and that answer

being given to the Grand Jury?

A. No, I don’t remember how I answered that ques-

tion. I [p. 102] do know how long I was there.

Q. Were you under oath then? A. Yes, and I am

under oath right now.

Q. What did you mean, it takes about 20 minutes

for a beer, so it would be about an hour average?

A. If I sit down with you and we just steady drink

beer, it is 20 minutes a beer. If I am working, that

beer might take me two hours to drink because I am

working and I will sip.

Q. Mr. Schmidt, do you have an independent recol-

lection of how much beer you consumed that evening?

A. No. I would say somewhere in the neighborhood of

five or six bottles, maybe seven, but that was all night

until six o’clock in the morning, man, you know. I

was there until almost six. I know that. I got to the

restaurant—just as I got to the restaurant, almost

six o’clock, I know that.

Q. You are telling this jury at no time did anybody

ask you to mail a ballot at all; did they? A. No, they

didn’t.

37

Q. You didn’t see any ballots being mailed; did

you? A. No, I didn’t.

Q. You remember testifying on direct examination

that when you got to Mr. Mango’s house you said that

Vito was there, Mike Mann was there, Dave Mango,

Jim Kirk? [p. 103] A. Yes.

Q. Do you remember you testified before at the

Trusteeship of Local 413 as to who was allegedly

there during that evening that the ballots were being

marked? A. Well, if I am not mistaken, I don’t be-

lieve I testified like that in front of the Trustee

hearing.

Q. You have no independent recollection of testify-

ing before the Trustee Board? A. I do, but not that

way. I had nothing to do with that, I don’t believe. I

don’t really remember. It wasn’t that important to me.

Q. Wasn’t that important to you? A. No, I don’t

think I did say anything about ballots at that. I don’t

think it was ever brought up to me.

Q. Page 80 of that transcript:

“All right. It was down in the basement.

“Question: Whose basement?

“Answer: Vito Mango’s basement.

“Question: All right.

“Mr. Schmidt: And we concocted 2000 phony votes.”

“Chairman: Who is we?

“Schmidt: Myself, Vito Mango, Dave Mango.”

Do you remember giving those answers?

A. Yes, I probably did.

Q. To those questions being asked? [p. 104] A. Yes.

Q. Do you now have an independent recollection?

A. Yes, but that doesn’t even concern me, so I didn’t

even care about it. That’s a different court than this

one.

38

Q. Didn’t you swear to tell the truth? A. I told the

truth at that time, and I told the truth this time.

Q. Are you finished? A. Yes.

Q. Didn’t you swear to tell the truth when you

testified before the Grand Jury? A. Yes.

Q. Didn’t you swear to tell the truth today? A. Sure

did.

Q. Do you want to correct any of those statements

that you made under oath at the present time? A. No.

Mr. Scott: Your Honor, may I be excused?

(Discussion at Defense counsel table. )

Mr. Scott: If the Court pleases, that terminates my

cross-examination.

The Court: Do you have any questions on redirect

examination, Mr. Olah?

Mr. Olah: Nothing on redirect, Your Honor.

(Witness excused. )