Petition — Davis v. United States

October Term, 1977

No.

€@-1821

RICHARD A. DAVIS,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

RICHARD C. SNELBAKER,

SNELBAKER, MCCALEB &

ELICKER,

Counsel for Petitioner

44 West Main Street,

Mechanicsburg, Pennsylvania 17055

ae ee ee

Murrelle Printing Co., Law Printers, Box 100, Sayre, Pa. 18840

TABLE OF CONTENTS

NS. 5c cd beh weed cs 000 68 Gh

I 4 See Se ddiniet ccssaccs

ne a i ie aa

Constitutional Provisions and Rules of Evidence

ihe TIEN SNA RRR pe igs clr Ne

SP OPE E PTE er

Reasons for Granting the Writ:

A. The Courts below erred by failing to dis-

miss the superseding indictment because it

includes charges which are not chargeable

and punishable under State law due to the

running of the State statute of limitations

and repeal of one State law ............

B. The Courts below erred by failing to dis-

miss the superseding indictment because it

failed to apprise Petitioner of the factual

basis of the alleged acts of racketeering ...

C. The Courts below erred in refusing to grant

a mistrial after witness Sedeshe testified . .

D. The Courts below erred in permitting evi-

dence of other crimes to be admitted in the

Government’s case in chief .............

E. The Courts below erred in denying Peti-

tioner’s motion for judgment of acquittal . .

Na i wie eae

ae

Appendix I. (Judgment and Opinions of the United

States Court of Appeals for the Third Circuit) 1A

Appendix II]. (Order and Opinion of the United

States District Court for the Middle District

of Pennsylvania) ..........2-eseeeeececees 16A

TABLE OF CITATIONS

CASES:

American Tobacco Co. v. United States, 328 US.

Pee COE wcbcodecscoccésévabitccercer 28

California v. Choung, 320 F. Supp. 625 (Cal.

EE 6. bi cicdced ceceneawans's bund 4s 04,00 16

Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed

AE NG | tx eS Oo bs Owes TEs. 19

United States v. Camp, 541 F.2d 737 (C.A. 8,

Tc tiskcned noses dad AA* ee casaas ¢9.0° 18

United States v. Cavallino, 498 F.2d 1200 (Sth Cir.,

BEE 6 bow 0 wise SOR ees eR Se 66 re IGT LES 26

United States v. Cook, 538 F.2d 1000 (3d Cir.,

SO Gc swd ciwwes chan ot wes ie bbh oe ee 25, 26

United States v. Forsythe, 550 F.2d 1127 (3d Cir.

PK? Jcvudidseysctescehanpembarnecess 12

United States v. Klein, 515 F.2d 751 Gd Cir.,

CARS pe ale 4 var are aera er re SA ee 25

United States v. Laverick, 348 F.2d 708° (3d Cir.

SE? DallUu a eek 6 Kees is emda 59 cb See 14, 15

United States v. Little, 317 F. Supp. 1308 (Del.,

SOD ok ckSi. cd. Gere. veri warty O08. 16, 18

United States v. Nance, 533 F.2d 699 (D.C. Cir.,

| SS eye

ii

United States v. Radetsky, 535 F.2d 556 (C.A. 10,

ET ts oo ee Whadn a tac kb bASU SUeeNe ee? 19

United States v. Ring, 513 F.2d 1001 (6th Cir

et ee ee oS edn oe bhai baa S 27

United States v. Russell, 369 U.S. 749, 82 S.Ct. :

1038, 8 L.Ed. 2d 240 (1962) .......... 15, 17,18

United States v. Stirone, 361 U.S. 212, 80 S.Ct. 270,

| ee en Se. . vc ecene sb ¥ecsse se 18, 25

United States v. Thomas, 444 F.2d 919 (D.C. Cir.

RE ee en ee eer re 18

Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8

ie oS ee ce Cee ashen bas 19

STATUTES:

Act of March 31, 1860, P.L. 427, Sec. 77 (19 PS.

ee ee aL VE lee Sak 5 odes & 10

Act of June 24, 1939, P.L. 872, Sec. 303 (18 PS.

SC er ee ee eee ee eee 10, 14

Act of Dec. 6, 1972, P.L. ——, No. 344, Sec. 108

Pa es GH bo4-5' cs Os Shee seh e eee v st 10

Act of Dec. 6, 1972, P.L. , No. 344, Sec. 4701

Se Cee Geer ads GEO UMOD ccccccvcecs 10, 14, 16

ee bee anes 6

ne eR li ea ee EX a-ak eon 6

ee ewe weeee ews 6,9, 10, 11

Tee ee ene ea 6,9

Or ns oe beled saws 6

FEDERAL RULES:

Federal Rule of Evidence No. 12(b) (2) ........ 14

Federal Rule of Evidence No. 403 ........ 5, 23, 25, 28

Federal Rule of Evidence No. 404(b) ........ 5, 23, 28

iii

SEED Pee NS AES TOM SUE RC STE 2 SSO eee

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

RICHARD A. DAVIS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

The Petitioner, RICHARD A. DAVIS, prays that a

writ of certiorari issue to review the order of the United

States Court of Appeals for the Third Circuit rendered in

these proceedings on May 24, 1978.

Opinions Below and Jurisdiction

OPINIONS BELOW

The majority and concurring opinions of the United

States Court of Appeals for the Third Circuit are presently

unreported and appear at Appendix I, infra, pp. Al-

A15. The opinion of the United States District Court

for the Middle District of Pennsylvania and its order deny-

ing Petitioner’s motion for dismissal of the superseding

indictment appear at Appendix II, infra, pp. A16-A21.

JURISDICTION

The order of the Court of Appeals for the Third Cir-

cuit denying the Petitioner’s appeal was entered on May

24, 1978. The jurisdiction of this Court is involved un-

der 28 U.S.C. §1254(1).

Questions Presented

QUESTIONS PRESENTE

1. Is the superseding indictment defective because

it includes charges which are not chargeable and punish-

able under State law due to the running of the State stat-

ute of limitations and the repeal of one State law?

2. Is the superseding indictment defective because

it failed to apprise Petitioner of the factual basis of the

alleged incidents of racketeering?

3. Was it error to refuse the motion for a mistrial

made by Petitioner after witness Sedeshe testified to an

event involving prior criminal activity?

4. Was it error to permit evidence of other crimes

to be admitted in the Governn.ent’s case in chief?

5. Was it error to deny Petitioner’s motions for

judgment of acquittal?

Constitutional Provisions & Rules

CONSTITUTIONAL PROVISIONS AND RULES OF

EVIDENCE INVOLVED

United States Constitution, Fifth Amendment:

“No person shall be held to answer for a capital,

Or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger;

nor shall any person be subject for the same offense

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law, nor shall pri-

vate property be taken for public use, without just

compensation.”

United States Constitution, Sixth Amendment:

“In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

his defense.”

es ee

Constitutional Provisions & Rules

B. The Rules of Evidence involved are as follows:

Federal Rule of Evidence No. 403:

“Although relevant, evidence may be excluded

if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the is-

sues, or misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation

of cumulative evidence.”’

Federal Rule of Evidence No. 404 (b) :

“Other crimes, wrongs or acts.—Evidence of

other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show that

he acted in conformity therewith. It may, however,

be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowl-

edge, identity, or absence of mistake or accident.”

Statement of the Case

STATEMENT OF THE CASE

Petitioner was the Warden of the Dauphin County

Prison at Harrisburg, Pennsylvania, and was prosecuted

criminally by the indictment process in the District Court

for the Middle District of Pennsylvania for alleged acts

committed while he was acting in his official capacity as

Warder The basis for federal jurisdiction for this prose-

eution » 18 U.S.C. §3231.

Petitioner was indicated by the Grand Jury on June

1, 1977, on two (2) counts: (1) false swearing under

18 U.S.C. §1623 and (2) racketeering under 18 U-S.C.

§§1961, 1962(c) and 1963. Various pretrial proceedings

were held.

On July 13, 1977, a superseding indictment was filed

containing three (3) counts: (1) false swearing under

18 U.S.C. §1623 (same as the first count in the original

indictment); (2) racketeering under 18 U.S.C. §§1961,

1962(c) and 1963 (same as the second count of the orig-

inal indictment plus an additional paragraph averring a

further allegation of activity); and (3) corruptly in-

fluencing a witness under 18 U.S.C. §1503 (a new count).

Count II of the superseding indictment alleged that

Petitioner from July 15, 1970 to June 8, 1976, on six dif-

ferent occasions, “did offer, confer and agree to confer

upon and solicit, accept and agree to accept . . . considera-

tion for a decision, opinion, recommendation, vote and

exercise of discretion as the Warden of the Dauphin Coun-

ty prison... ” Nothing further was provided in the

Statement of the Case

superseding indictment concerning the nature of the “de-

cision’, “opinion”, “recommendation”, “vote” or “e <er-

cise of discretion” to apprise Petitioner of what alleged

acts he was to defend against.

A series of pretrial matters were held, including Peti-

tioner’s motion for dismissal of the superseding indictment

because it failed to apprise Petitioner of the factual basis

of the alleged acts of racketeering and because it alleged

offenses that were not chargeable under State law. This

motion was denied.

A jury trial commenced on August 9, 1977. At the

trial one of the six incidents of Count II (the one desig-

nated in the superseding indictment in Paragraph 1 of

Count II) was withdrawn by the Assistant United States

Attorney. Thus, five of the six incidents alleged in Count

Il went to the jury. In each case, Petitioner took the

witness stand to refute the charges.

During the course of the trial witnesses Sedeshe and

Myers were permitted to testify for the Government’s case

in chief concerning Petitioner’s alleged prior criminal

activity. Petitioner’s objections that this evidence was

unfairly prejudicial were overruled. Furthermore, no

prior notice of these charges was afforded Petitioner, and,

thus, Petitioner was inadequately prepared to defend

against them. Petitioner’s motion for a mistrial after

Sedeshe’s testimony was denied.

Timely motions for acquittal were made after the

close of the Government’s case and after the verdict.

Both were denied. The witnesses for the Government in-

cluded convicted criminals and those granted immunity

from prosecution.

Statement of the Case

The trial concluded on August 12, 1977, with the

jury’s verdict of not guilty on Counts I and III of the

superseding indictment and guilty on Count II. An or-

der of judgment was entered on September 7, 1977 sen-

tencing Petitioner to a term of imprisonment of five years

and a fine of $5,000.00.

On September 9, 1977, Petitioner timely filed an

appeal with the United States Court of Appeals for the

Third Circuit from the judgment of the District Court

and raised the issues that are raised in this petition. The

Court of Appeals affirmed the judgment of the District

Court on May 24, 1978.

Reasons for Granting Writ

REASONS FOR GRANTING THE WRIT

A. The Courts Below Erred by Failing To Dismiss the

Superseding Indictment Because It Includes Charges

Which Are Not Chargeable and Punishable Under State

Law Due to the Running of the State Statute of Limita-

tions and Repeal of One State Law

The statute in question, 18 U.S.C. §1961 ef seq.,

prohibits a person from engaging in a “pattern of rack-

eteering activity” (§1962(c)). “Racketeering activity”

is clearly defined in §1961(1) (A) as “any act or threat

involving murder, kidnapping, gambling, arson, robbery,

bribery, extortion, or dealing in narcotic or other dan-

gerous drugs which is chargeable under State law and

punishable by imprisonment for more than one year”

(emphasis added) .

At the trial of this case, the Government sought to

prove that Petitioner had engaged in acts of bribery un-

der Pennsylvania criminal law which were barred from

prosecution under Pennsylvania law. Paragraphs 1, 2

and 3 in Count II of the superseding indictment aver acts

which occurred on or about July 15, 1970, May 3, 1972,

and November 22, 1974, respectively, in the nature of

bribery.

Paragraph 1 avers an alleged act of bribery occurring

with one Thomas Willmont Motes on July 15, 1970. The

indictment further avers that the alleged act constituted

10

Reasons for Granting Writ

a Pennsylvania statutory crime proscribed by the Act of

June 24, 1939, P.L. 872, §303 (18 PS. §4303). The

Act of March 31, 1860, P.L. 427, §77, as amended (19

P.S. §211), specifi. lly provides that a prosecution of

the substantive crime is barred after the passage of two

years from the date of the commission of the alleged act.

Paragraph 2 avers an alleged act of bribery occurring

with one Isaac Hawkins on May 3, 1972, and Paragraph

3 avers a similar offense with one Shermont Bowser, No-

vember 22, 1974; both of said incidents are stated to be

substantive offenses under the Pennsylvania Act of De-

cember 6, 1972, P.L. —, No. 334, §4701(a) (18 C.P.-

S.A. §4701(a)). In Section 108 of the same Act (18

C.P.S.A. §108), a two year statute of limitations is im-

posed.

Therefore, as of July 13, 1977, the date of the super-

seding indictment, the above three incidents were not

“chargeable” under the law of Pennsylvania—the same

being plainly barred by the appropriate statute of lim-

itation.

Moreover, the Pennsylvania statute supporting the

Government’s claim in Paragraph 1 was repealed by the

new Pennsylvania Crimes Code upon its effective date:

June 6, 1973. In other words, as of July 13, 1977, no

crime then existed in Pennsylvania for incidents occurring

more than two years before said effective date.

Section 1961(1) of the Federal statute speaks in the

present tense: “... any act... which is chargeable un-

der State law and punishable by imprisonment for more

than one year” (emphasis added). It does not state

“was” chargeable or “could have been” chargeable and

11

Reasons for Granting Writ

punishable. There is no reference to the past tense or

the intention to speak other than in the present tense.

This is made more clear when one considers the further

requirement that the acts must be both “‘chargeable” and

“punishable” under the State law. If it is considered

possible that one could be charged with a crime which

is barred by the statute of limitations, it is impossible that

one could be punished for an act barred by such statute.

Congress surely intended by adopting State criminal laws

as its standard for the proscribed activity that prosecution

under those State laws could result in punishment for

the offenders. If the State laws could not lead to punish-

ment they would not be criminal laws and would be out-

side the definition of Section 1961 (1).

Further, if it is argued that the Federal statute merely

adopts the substantive portions of the State law and not

the statute of limitations, then one must deny the plain

meaning of the statute that the acts must be both present-

ly chargeable and punishable. The former argument sim-

ply ignores the actual language of the statute. If Congress

had intended such construction it could have said very

simply that such alleged act of racketeering activity “could

have been” chargeable and punishable under State law

within the period of the Federal limitations set forth in

Section 1961(5). It did not so state. Therefore, the

plain meaning of the language must be given its obvious

interpretation.

Judge Aldisert, in his concurring opinion for the de-

cision rendered below by the Court of Appeals (Appendix

I, infra, pp. A7-A15), agreed with these contentions.

He stated that the definition of ‘“‘racketeering”’ is limited

to

12

Reasons for Granting Writ

. . ‘any act or threat involving . . . bribery . . .

which is chargeable under State law...’ (Emphasis

added). The present tense of the copulative verb

‘is’ was used. The use of the present tense indicates

that this provision is to apply only to those acts

chargeable and punishable at the time of the indict-

ment....’’ (Appendix I, infra p. A10).

Furthermore, Judge Aldisert stated:

“. , . Clearly, even if ‘chargeable’ under Pennsylvania

law, these offenses were not ‘punishable’ in 1977,

at the time of the federal indictment, because of the

interposition of the state statute of limitations. Ac-

cordingly, | would hold that even applying the fed-

eral statute of limitations, United States v. Forsythe,

550 F.2d 1127 (3d Cir. 1977), the essential ingre-

dients of a federal offense were lacking.” (Appendix

I, infra, p. A8).

Count II of the superseding indictment charges Peti-

tioner with conducting or participating in a “pattern of

racketeering activity” consisting of six alleged incidents.

As pleaded, the separate incidents are in the conjunctive

indicating a continuation or “pattern” of prohibited acts,

as obviously required and intended by the statute. It does

not plead the incidents in the disjunctive or alternative.

Therefore, since three of the six alleged incidents are not

“chargeable”, for the reasons addressed above, the super-

seding indictmeni is fatally defective on its face by not

showing the required “‘pattern” of alleged illegal activity,

and should be dismissed.

Since the Grand Jury made its finding based upon

all six of the incidents, of which three were improperly

13

Reasons for Granting Writ

considered, it can only be deemed that, upon removal of

the three defective incidents the remainder cannot stand

independently of those which have been removed. The

superseding indictment shows no intention of making the

incident alternative in effect. It can only be concluded

that the Grand Jury made its findings on the “pattern”

“or cumulative effect of the six incidents. That pattern

and effect now being destroyed, the superseding indict-

ment representing the Grand Jury’s decision must likewise

be destroyed in its conclusionary effect.

Petitioner contends, therefore, that the Courts below

erred in failing to dismiss the superseding indictment in

application of the precepts set forth above.

B. The Courts Below Erred by Failing To Dismiss the

Superseding Indictment Because It Failed To Apprise

Petitioner of the Factual Basis of the Alleged Acts of

Racketeering

Petitioner contends that the indictment did not suf-

ficiently apprise him of the matters for which he was

charged. He contends that he was severely legally prej-

udiced in his preparation of his defense by not being in-

formed through the superseding indictment as to the mat-

ters which constituted unlawful acts in his alleged official

actions.

The superseding indictment merely says that Peti-

tioner did not offer, accept, etc. certain benefits “as con-

sideration for a decision, opinion, recommendation. Vote

and exercise of discretion as the Warden of the Dauphin

County Prison.”’ As pleaded, the indictment is merely a

14

Reasons for Granting Writ

reprint of the language of the Pennsylvania statutes (18

P.S. §4303 and 18 C.P.S.A. §4701(a)). It contains no

factual averment as to the nature of the alleged “decision,

opinion, recommendation, vote and exercise of discre-

tion.”” Since each of the quoted acts is different from

the others, Petitioner had no way of determining from

the indictment in what way he became involved with

making a “decision”, an “opinion”, a “recommendation”,

a “vote” or an “exercise of discretion”. The superseding

indictment was merely a specter of what the Government

intended to prove at trial. It is an all-inclusive claim of

wrongdoing without specifying the precise object of that

claim. It is obvious that the penal statute sought to be

enforced is designed to punish those who accept bribes

for official action. Without specifying the nature of the

official action, the Government sought to jeopardize Peti-

tioner without permitting him the advance notice of how

to meet those claims when they finally unfolded at the

trial of the case.

The Court of Appeals, below, upheld the validity of

the superseding indictment on the basis of United States

v. Laverick, 348 F.2d 708 (3d Cir. 1965). However. in

that case, no pretrial motion to dismiss the indictment

for insufficiency had been made and the Court’s ruling,

therefore, was that “merely technical defects are waived

when no objection is made to them at trial. Rule 12 (b)

(2). . . .” The Court further addressed the issue of

whether there is a “danger in the allegations that a con-

viction or acquittal of the defendants would fail to bar

a subsequent criminal prosecution on the grounds of

double jeopardy... .” That issue is not raised by Peti-

tioner.

15

Reasons for Granting Writ

Clearly, then, the Laverick decision is not relevant to

the present case. A timely pretrial motion to dismiss the

superseding indictment was made in this case by Peti-

tioner. And the issue raised is not the possibility of

“double jeopardy” but is the violation of Petitioner's

Sixth Amendment right “to be informed of the nature

‘and cause of the accusation . . .” and Fifth Amendment

rights to “a presentment or indictment of a Grand Jury

...” and to “due process of law... .”

Petitioner contends that the present case is governed

by the rules set forth in United States v. Russell, 369 US.

749, 82 S.Ct. 1038, 8 L.Ed. 2d 240 (1962). In holding

an indictment to be insufficient, the Supreme Court said:

“Where guilt depends so crucially upon a spe-

cific identification of fact, our cases have uniformly

held that an indictment must do more than simply

repeat the language of the criminal statute”

Further it was said:

“Undoubtedly the language of the statute may

be used in the general description of an offense, but

it must be accompanied with such a statement of the

facts and circumstances as will inform the accused

of the specific offense coming under the general

description with which he is charged.”

This case arose from a prosecution of a witness who

refused to answer inquiries before a congressional sub-

committee. The Supreme Court held the indictments

defective for failure to indentify the subject matter un-

der inquiry at the time of the defendant's alleged refusal

to answer. The Court reiterated the oft-stated general

rule that to be sufficient an indictment must (1) contain

the elements of the offense intended to be charged and

16

Reasons for Granting Writ

sufficiently apprise the defendant of what he must be

prepared to meet, and (2) enable the defendant to plead

a former acquittal or conviction. The Court enumerated

three problems or dangers which result from a factually

incomplete indictment: (1) the defendant is required to

go to trial with the chief issue undefined; (2) a convic-

tion may rest On one point and its affirmance on another;

(3) the prosecution has a free hand on appeal to fill in

gaps of proof by surmise or conjecture. ‘To the same

effect see United States v. Little, 317 F. Supp. 1308 (Del.

1970); California v. Choung, 320 F. Supp. 625 (Cal.

1970).

In the instant case, Petitioner was charged with ac-

cepting money as the consideration for a “decision, opin-

ion recommendation, vote and exercise of discretion as

the Warden of the Dauphin County Prison.” Petitioner

contends that each of these five words can constitute a

different type of action. In fact, the Pennsylvania stat-

utes from which the terms are quoted refer to them in

the disjunctive “. . . decision, opinion, recommendation,

vote or other exercise of discretion...” (18 C.P.S.A.

§4701(a)). The terms are obviously not synonymous,

nor has the Pennsylvania Legislature attempted to make

them such. Although each term has the exercise of dis-

cretion as its genesis, the method of such exercise can be

in varying ways. A “decision” indicates that the actor

had the ability to definitely resolve an issue for which cor- -

rupt payment was made. An “opinion” suggests the

rendering of official advice and the background or rea-

soning supporting a “decision”. “Recommendation”

indicates an effort to influence another who may be

making a “decision”. “Vote” suggests that the actor is

17

Reasons for Granting Writ

one of several persons who collectively have the power

to decide an issue. And as conjunctively used in the super-

seding indictment, “exercise of discretion” contemplates

any conceivable action or inaction of the actor as it may

affect any other person, action or situation. Obviously

each term connotes entirely different factual situations.

‘They are not merely different labels for the same oc-

currence.

In his official duties as a prison warden, Petitioner

routinely did all of the concepts, that is, he was con-

stantly called upon to make decisions, render opinions,

give recommendations, vote on issues and take all sorts

of actions or refrain therefrom in the exercise of his dis-

cretion. It is not difficult to contemplate the multitude

of these actions in which the warden of the prison would

participate in the routine performance of his duties. The

superseding indictment alleges that in the cases of six per-

sons, Petitioner did one or more of the discretionary acts

without identifying what he supposedly did. The United

States Attorney should have known which of the con-

cepts was being considered by the Grand Jury and could

have easily stated the same in the indictment. Instead,

he chose to couch the charge in the vagueness of the

statutory language, leaving the Petitioner in the ignorant

position of not knowing which of the multitudes of acts

would become the focus of the alleged criminal conduct.

In other words, the guilt of the Petitioner depended upon

a specific identification of fact, not an entire gamut of

activities as stated in the superseding indictment. Under

these circumstances, Russell, supra, holds that an indict-

ment must do more than simply repeat the language of the

criminal statute.

18

Reasons for Granting Writ

The trial judge sought to correct the deficiency hy

proclaiming a cure through the bill of particulars which

Petitioner sought in his desperation to determine the facts

he would be faced to meet at trial. This is plain error

as held by all authorities across the Federal justice sys-

tem. United States v. Russell, supra, specifically held

that a bill of particulars cannot save an invalid indict-

ment. For similar authority see United States v. Nance,

553 F.2d 699 (D.C. Cir., 1976) ; United States v. Thomas,

444 F.2d 919 (D.C. Cir., 1971); United States vy. Little,

317 F. Supp. 1308 (Del., 1970); United States v. Camp,

541 F.2d 737 (C.A. 8, 1976). As reasoned in United

States v. Thomas, supra, to permit an omission in an in-

dictment to be cured by a bill of particulars would be to

allow the grand jury to indict with one crime in mind

and to allow the United States Attorney to prosecute by

producing evidence of a different crime, thus allowing

the United States Attorney to usurp the function of the

grand jury.

As repeatedly stated by the courts, it is a fundamental

guaranty of the Fifth and Sixth Amendments to the Fed-

eral Constitution that an accused may be tried only on

charges made by a grand jury. The indictment must make

clear the charges so as to confine the defendant's jeopardy

to offenses charged by a group of his fellow: citizens and

to avoid his conviction on facts not found or perhaps not

even presented to the grand jury which indicted him.

The substantial safeguard of the guaranty to those charged

with serious crimes cannot be eradicated under the claim

that variations are mere technical departures from the

rules. United States v. Russell, supra;.United States v.

Stirone, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed. 2d 252;

19

Reasons for Granting Writ

Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.

2d 569. Continuing, it must be remembered that a Fed-

eral indictment cannot be amended except by resubmission

to the grand jury, unless the change is merely a matter of

form. “Any other doctrine would place the rights of the

citizen, which were intended to be protected by the con-

$titutional provision, at the mercy or control of the court

Or prosecuting attorney... .” Ex Parte Bain, 121 US.

1, 7 S.Ct. 781, 30 L.Ed. 849; United States v. Radetsky,

535 F.2d 556 (C.A. 10, 1976).

In this case, Petitioner’s rights were left initially in

the control of the United States Attorney and subsequently

at the mercy of the trial judge—a status which is violative

of the basic rights of a person accused of a crime. The

courts below erred in applying the legal precepts above.

The superseding indictment being defective and invalid

as a matter of law should have been dismissed on the

pretrial application.

C. The Courts Below Erred in Refusing To Grant a Mis-

trial After Witness Sedeshe Testified <«

In the trial of this case, the Government’s first wit-

ness was Dale Sedeshe who was called to testify how he

participated in a bribe of Petitioner for the benefit of a

prisoner, James Horvath. He had just related his con-

tacts with Petitioner and that Petitioner demanded $500

for the action solicited. The United States Attorney in

an attempt to draw in other criminal conduct, continued

with the witness:

Reasons for Granting Writ

“Q. Why did you raise the question of money?

A. Well, I knew it wasn’t going to be done

for nothin.

Q. What made you think it would be done for

anything?”

At that point, counsel for Petitioner objected, which ob-

jection was overruled. The U.S. Attorney continued:

“Q. Could you tell the jury why it was you

felt the issue of money should even be raised?

“A. Yes, I, one time before, I was in jail and

it helped me out.”

Again, counsel for Petitioner objected. After consider-

able discussion, it was determined that the prosecution

wanted to have Sedeshe elaborate to show a precise bribe

for his own benefit. The trial judge eventuc'ly sustained

the objection and terminated the attempt to introduce

evidence of another crime. Counsel for Petitioner then

moved for a mistrial, arguing that irreparable prejudice

had resulted to Petitioner by suggesting that he had a

corrupt transaction with the witness. It should be kept

in mind that the United States Attorney very carefully

laid the groundwork for the resulting inference when he

developed earlier that witness Sedeshe had himself been

a prisoner at the Dauphin County Prison and that as a

prisoner he learned to know Petitioner to the extent that

“I knew him well”. It should also be noted that Sede-

she’s only jail experience of record was at the Dauphin

County Prison. :

Although the trial judge correctly disallowed any

further testimony as to other crimes, he refused to protect

Petitioner from the harm already done by the statement

21

Reasons for Granting Writ

which clearly indicated the witness had participated in

a bribe. It was equally clear that the bribe occurred at

the Dauphin County Prison at which Petitioner was em-

ployed and that Sedeshe knew Petitioner very well.

Petitioner contends that the Courts below erred by

failing to grant the mistrial and failing to rectify the trial

judge’s abuse of discretion.

The discussion set forth in Reason D below is equally

applicable here and is incorporated by reference.

D. The Courts Below Erred in Permitting Evidence of

Other Crimes To Be Admitted in the Government’s Case

in Chief

In addition to the matter raised in Issue C above,

the Government was permitted, over the timely objections

of Petitioner’s counsel, to introduce evidence of another

alleged crime involving the Petitioner through witness

Charles Myers. Myers testified at length concerning his

alleged corrupt dealing with the Petitioner to the effect

that the Petitioner had demanded $750 to intercede on

the witness’ behalf in connection with a pending crim-

inal gambling charge against the witness.

At the end of the direct examination, Petitioner’s

counsel requested that the Court recess for at least half

an hour to enable counsel to confer with the Petitioner

concerning Myers’ testimony and the Jencks Act material

handed to counsel at that time. Myers’ surprise testi-

mony constituted evidence in support of an alleged crime,

similar to the six other alleged in the superseding indict-

22

Reasons for Granting Writ

ment, but for which no charge had been made in the

superseding indictment. Thus, Petitioner was unprepared

to defend against this new, unindicted charge.

The trial judge begrudgingly granted a mere fifteen

minutes recess. No opportunity was given for investiga-

tion and only fifteen minutes was allowed to prepare for

cross-examination of a witness whose testimony was com-

pletely unanticipated and to prepare to defend a wholly

new criminal charge without prior notice. It should also

be noted that witness Myers was called as the last Govern-

ment witness in its case in chief, thus leaving the Peti-

tioner no opportunity to investigate his testimony before

proceeding with his defense in chief.

Matters of considerable importance might have been

developed to discredit the witness if Petitioner had prior

notice of the witness’ purpose and had the Court permitted

Petitioner the opportunity to prepare for it. As the record

indicates, Myers was an habitual criminal in gambling

matters and admitted operating a speakeasy. Being on

the other side of the law represented by Petitioner, Myers

had every reason to be hostile toward Petitioner and

consequently untruthful in his accusations. Myers fur-

ther admitted that he told contradictory stories to the

Federal investigators—at one point denying any knowl-

edge of improprieties at the Dauphin County Prison and

later testifying as to his own complicity with Petitioner.

In view of this background, Petitioner should have been

afforded the opportunity to fully investigate the allegs-

tions and produce witnesses and other evidence which

may have been discovered in such investigation. Instead,

he was cut off with a 15 minutes recess—a miniscule

amount of time compared with the jeopardy he faced

23

Reasons for Granting Writ

which has now been determined to be five years of his

life and $5,000 of his property as imposed by the judge

who was too impatient to extend any reasonable opportu-

nity to properly prepare for a defense.

It is in view of this unpleasant background that your

Honorable Court is asked to review the decisions of the

lower Courts so that it may be determined that Myers’

testimony was improperly admitted and, in the alternative,

that it was an abuse of discretion to disallow a reasonable

opportunity for defense preparation.

The Government sought to introduce Myers’ testi-

mony under Federal Rule of Evidence No. 404(b) which

provides as follows:

“Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order

to show thai he acted in conformity therewith. It

may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or

accident.”

This rule must be read in conjunction with Rule 403

which provides:

“Although relevant, evidence may be excluded

if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the is-

sues, of misleading the jury, or by considerations of

undue delay, waste of time, or needless presentation

of cumulative evidence.”

Coming as it did at the very end of the Government’s

case in chief, Myers’ testimony followed several witnesses

VX eeeEeeEeeeEeEeEeEeEEeEeEeEyEyy eee

24

Reasons for Granting Writ

who testified to five other alleged bribes charged in the

superseding indictment (a sixth incident had failed in

proof and was subsequently withdrawn by the United

States Attorney). At that point several witnesses testi-

fied that Petitioner had been involved with them in the

acceptance of money in return for various favors pur-

portedly through his official position as Warden. On the

other hand, Myers’ testimony was in no way related to

the other five incidents. His story was separate and con-

stituted a wholly independent crime. This was known

to the United States Attorney at the time of the grand

jury proceedings but was not included in the resulting

indictment although he in fact testified before the same

Grand Jury which returned the superseding indictment

involved in this appeal.

The Government's failure to include the Myers’ in-

cident as an additional charge in Count II of the super-

seding indictment was obviously intentional when one

considers that one of the reasops for the superseding in-

dictment was to add Paragraph 3 relating to the Shermont

Bowser incident. Since Myers testified at the same Grand

Jury session which returned the superseding indictment,

the failure to include that incident was clearly deliberate,

thus giving rise to the contentions which follow.

The United States Attorney offered the testimony

purportedly to show Petitioner's motive, intent and plan.

It must always be remembered that Myers was in no

way connected with any of the six principal incidents

contained in the indictment. He was merely called to

relate his own individual dealings with Petitioner—a set

of facts which could have been the subject of a separate

charge in the indictment. It becomes obvious that the

~—-S

“ —# >

25

Reasons for Granting Writ

Government used Myers’ testimony for its surprise value

and its overall damaging effect to inject a whole separate

additional criminal act. Petitioner contends that Rule

403 was intended to prevent such an event from occurring.

The Court failed in its duty under Rule 403 to exclude

it because of the danger of unfair prejudice and the

needless presentation of cumulative evidence.

Although it has been held that evidence of other of-

fenses can be received “if relevant for any purpose”,

United States v. Stirone, 262 F.2d 571 (3d Cir., 1958),

reversed on other grounds 361 U.S. 212, 80 S.Ct. 270,

4 L.Ed 252 (1960), such a broad interpretation permits

the exceptions to swallow the rule against admission of

other offensive evidence. It is widely recognized that

the general rule holds that evidence of other offenses

should be considered inadmissible in criminal prosecu-

tions. United States v. Klein, 515 F.2d 751 (3d Cir.,

1975). The policy reason behind this rule is the danger

that the jury will convict on other offenses than the one

for which the defendant is being charged. Consequently,

we believe that the rule as stated in Stirone is far too

broad.

In the case cf United States v. Cook, 538 F.2d 1000

(3d Cir., 1976), it was held that the trial court abused

its discretion by admitting evidence of another offense

which had a high potential to prejudice the jury and which

was only relevant to a collateral issue. The test set forth

in Cook is as follows:

‘“. . . the trial judge may in the exercise of his

sound discretion, exclude evidence which is logically

relevant to an issue other than propensity if he finds

26

Reasons for Granting Writ

that the probative value of such evidence is sub-

stantially outweighed by the risk that its admission

will create a substantial danger of undue prejudice.”

P. 1008.

The Cook opinion cites guidelines established in

United States v. Cavallino, 498 F.2d 1200 (5th Cir.,

1974). We urge that these guidelines or “threshold

inquiries” be utilized in the instant matter. They are

set forth in Cavallino as follows:

“1. Is there plainaglear and convincing proof

of the commission of the other similar offense by the

accused?

2. How recent are the other crimes in relation

to the one charged?

3. Are ‘identity’ and ‘intent’ (or whatever

exception this evidence is to have probative value

toward) material facts in issue?

4. Has the prosecution actual need for this evi-

dence? :

5. Considering the prosecutions actual need on

these contested issues and its lack of any other evi-

dence, does the probative value outweigh the evi-

dence?

Then the Court should determine whether the

proffered evidence fits the exceptions.” P. 1206

In analyzing these criteria in the context of the in- -

stant matter, we find that it was an abuse of discretion

to allow Myers’ testimony in under these guidelines. The

testimony of a professional gambler and a bookie convicted

six or seven times, who was unquestionably on the other

side of the law from the accused, is not highly convincing.

27

Reasons for Granting Writ

Furthermore, if time had been allowed Davis to prepare

properly, it is quite likely that this teetionony’ could have

been strongly discredited.

As to the second criteria, Myers’ testimony was

recent enough not to be objectionable. However, we do

“not believe that identity, motive or intent were really ma-

terial issues in this inquiry. See United States v. Ring,

513 F.2d 1001 (6th Cir. 1975). Davis flatly denied

accepting bribes in all cases but one where he accepted

the money in order to have evidence against those at-

tempting to bribe him but returned it the next day.

If the jury finds that Davis performed the acts and

made the statements he is alleged to have made, intent is

not a material issue but would be inferred from those

actions. Furthermore, the manner in which this testi-

mony was introduced, through a surprise witness, was

highly prejudicial to the defendant’s rights.

Unfair prejudice is borne out by the insurmountable

and impossible task of defending against it as related at

length above. Having been prevented from learning of

the incident by the selective tactics of the United States

Attorney and being denied the opportunity to properly

prepare and defend against it by the trial judge, Petitioner

was clearly overwhelmed by the surprise and inability to

counter in any way. As stated repeatedly above, Peti-

tioner was required to defend against a seventh charge

under Count II with no prior notice and with no oppor-

tunity to prepare for any defense which he may have had

after investigation. Petitioner was given a month to

prepare for six of the charges and less than an hour for

the seventh. Unfair prejudice should be apparent.

28

Reasons for Granting Writ

In light of the above, it is clear that the admission

of Myers’ testimony was a violation of Rules 403 and

404 (b) and that both the admission of Myers’ testimony

and the failure to allow Petitioner sufficient time to in-

vestigate and defend against the allegations made by

Myers were abuses of discretion.

E. The Courts Below Erred in Denying Petitioner's

Motion for Judgment of Acquittal

Petitioner made timely motions for judgment of

acquittal both after the close of the Government’s case

and after the verdict. The trial judge denied both.

Petitioner is well aware that the method of review

on this issue is to evaluate the evidence in the light most

favorable to the Government, but the standard still re-

mains that a verdict in a criminal case shall be sustained

only where there is relevant evidence from which a jury

could properly find or infer beyond a reasonable doubt

that the accused is guilty. American Tobacco Company

v. United States, 328 U.S. 781 (1946).

In this case the evidence against the Petitioner came

from sources which were of the most suspect and tainted

variety. Witnesses James Horvath and Dale Sedeshe were

convicted criminals and had been extended immunity

from their complicity in the incidents to.which they testi-

fied. Jack Arnold, a confederate of Horvath and Sedeshe,

was likewise granted immunity from prosecution.

Isaac Hawkins was another convicted criminal whose

entire testimony was so rife with inconsistencies and un-

oe

29

Reasons for Granting Writ

reasonableness that no one could possibly believe the mat-

ters involving Petitioner. He was protected from prosecu-

tion by the statute of limitations.

Similarly, Shermont Bowser was protected by the

running of the statute of limitations. Although he

admitted getting all the money from the victim in Para-

graph 3 of Count II and created the whole wrongful act,

nevertheless, he was still employed by the County of

Dauphin in his same capacity at the Prison—a circum-

stance casting considerable doubt upon the bona fides of

his story.

Overall, the Government’s primary witnesses were

all personally interested in the incidents charged, whether

as principals with Petitioner or closely associated with

the principals. None were objective; all were from the

other side of the system that Petitioner was engaged to

enforce as a prison warden. Each had an obvious hostility

toward and bias against Petitioner.

To all of this was added the prejudicial testimony

of Charles Myers having the effect of an additional charge

for which no defense was allowed.

. Petitioner contends that an unbiased review of the

evidence adduced at the trial wil! show that the accusa-

tions made against him are unbelievable. The verdict

should not be allowed to stand on such incredible as-

sertions.

Reasons for Granting Writ

CONCLUSION

For the foregoing reasons, this petition for a writ

of certiorari should be granted.

Respectfully submitted,

Richard C. Snelbaker,

Attorney for Petitioner

O62 6 Ce ee Sh a Se OS ee ee

1A

Opinion, U. S. Court of Appeals

APPENDIX I

UNITED STATES COURT OF APPEALS

For the Third Circuit

No. 77-2263

UNITED STATES OF AMERICA

v.

DAVIS, RICHARD A.,

Appellant

(D.C. Crim. No. 77-71)

On Appeal From the United States District Court

for the Middle District of Pennsylvania

Argued March 28, 1978

BEFORE: ALDISERT, GIBBONS, HIGGENBOTHAM,

Circuit Judges

Richard C. Snelbaker,

Snelbaker, McCaleb & Elicker

Attorneys for Appellant

44 West Main Street

Mechanicsburg, Pa. 17055

2A

Opinion, U. S. Court of Appeals

S. John Cottone,

United States Attorney

David Dart Queen,

Special Assistant United States Atty.

Attorneys for Appellee

Federal Building

228 Walnut Street

P.O. Box 793

Harrisburg, Pa. 17108

OPINION OF THE COURT

(Filed May 24, 1978)

G1BBons, Circuit Judge

Richard A. Davis, former warden of the Dauphin

County Prison in Harrisburg, Pa., appeals from the judg-

ment of sentence imposed following his conviction in a

jury trial for a violation of the Racketeer Influenced and

Corrupt Organizations Act (RICO).’ The indictment on

which he was tried charged that in numerous instances he

solicited or accepted bribes “as consideration for a deci-

sion, opinion, recommendation, vote and exercise of dis-

cretion as the Warden,” contrary to 18 P.S. §4701 (a).

Prior to trial, Davis moved for the dismissal of the in-

' Title IX of the Organized Crime Control Act of 1970,

Pub. L. No. 91-452, tit. IX, 84 Stat. 941 (codified in 18

U.S.C. §1961).

218 P.S. §4701(a): ;

Offenses defined.—A person is guilty of bribery,

a felony of the third degree, if he offers, confers or

agrees to confer upon another, or solicits, accepts or

agrees to accept from another:

a OI RD Eat neal

a

il i

*

3A

Opinion, U. S. Court of Appeals

dictment both as time-barred and as failing to aver suf-

ficient facts to give him notice of the charges against him.

This motion was denied, the case was tried, and a ver-

dict of guilty was returned. On appeal, Davis makes

several contentions.

I. THE TIME BAR

RICO prohibits a person from engaging in a “pattern

racketeering activity.” 18 U.S.C. §1962(c). ‘“Racketeer-

ing activity” is defined, for purposes of this case, as

bribery or extortion “which is chargeable under State law

and punishable for more than one year.” 18 U.S.C.

§1961(1) (A). Davis contends that prosecution for all

the acts of bribery which the government charged and

proved was barred by the relevant Pennsylvania statute of

limitations. Because he contends that in RICO Congress

intended to borrow state statutes of limitations for the

predicate state offenses, Davis urges us to read the words

“chargeable under State law” to mean “presently charge-

able under State law.”” In United States v. Forsythe, 560

(1) any pecuniary benefit as consideration for

the decision, opinion, recommendation, vote or other

exercise of discretion as a public servant, party of-

ficial or voter by the recipient ;

(2) any benefits as consideration for the deci-

sion, vote, recommendation or other exercise of official

discretion by the recipient in a judicial, administrative

or legislative proceeding ; or

(3) any benefit as consideration for a violation

of a known legal duty as public servant or party of-

ficial.

Prior to June 6, 1973, a comparable statute was codified

in 18 P.S. §4303.

4A

Opinion, U. S. Court of Appeals

F.2d 1127, 1134 (3d Cir. 1977), we held that the govern-

ing statute of limitations is found, not in state law, but

in 18 U.S.C. §3282.

Davis argues that Forsythe was incorrectly decided,

but that in any event it did not explicitly reject a refine-

ment of his argument which we should now accept. That

refinement is that the word “chargeable’’ does more than

refer to state statutes of limitations;\it defines the federal

offense. An offense, in other words\that is not ‘“chgtge-

able under State law’”’ is not indictablAunder R

It is true that Forsythe did not in so words pass

on this more refined argument, but we think it rejected it

implicitly. The holding in Forsythe was that Congress in-

tended to permit federal indictment within the time speci-

fied in §3282 for offenses which, when committed, were

“chargeable under State law and punishable for more than

one year.”” The last-quoted words were meant to limit

RICO to serious offenses, offenses which in many but not

all jurisdictions would be called felonies.

We now make explicit what was implicit in Forsythe:

the words ‘“‘chargeable under State law”’ in §1961 (1) (A)

mean “‘chargeable under State law at the time the offense

was committed.”” Davis, therefore, has no ground for ob-

jecting to the timeliness of the indictment. We note, fur-

thermore, that in this case three of the five acts of bribery

which the government proved took place within the ap-

plicable state statute of limitations. Three acts of bribery

make a pattern of racketeering activity. The relevant

dates show that the pattern continued until well within

even the state limitations. 18 P.S. §108. For this addi-

tional reason, the indictment against Davis was timely re-

turned.

5A

Opinion, U. S. Court of Appeals

Il. VAGUENESS

Davis’s next argument is that the indictment did not

give him fair warning of the offense with which he was

charged. He acknowledges that it listed bribes in specific

amounts from named individuals at designated times and

places. But he claims that it failed to inform him of what

precisely he was alleged to have done in return for each

bribe. The indictment, which adopted almost verbatim

the wording of 18 P.S. §4701 (a) (1), charged that each

bribe was received “‘as consideration for a decision, opin-

ion, recommendation, vote and exercise of discretion.”

The short answer to Davis’s argument is that the

gravamen of the offense defined in §4701 is the solicita-

tion or acceptance of a bribe, not the delivery of its quid

pro quo. In an analogous case we have held:

The essence of the crime here charged is the receiving

of the money, not the quid pro quo received or prom-

ised for that money, and where the statutes use the

disjunctive io describe the alternate means of com-

mitting the same statutory offense and only one crime

is charged, the means of commission are permissible.

United States v. Laverick, 348 F.2d 708, 714 (3d Cir.

1965) (citation omitted) .

The government’s position on appeal is that, because

Davis did not object to the charge quoted in the margin,”

he cannot now contend that the indictment should have

specified the guid pro quo. We note that Davis did chal-

lenge the sufficiency of the indictment in a pretrial motion.

* The court charged:

In Count II it is not necessary for the government

to show that the Defendant had the authority to assist

6A

Opinion, U. S. Court of Appeals

For that reason, we do not rest our affirmance on Fed. R.

Crim. P. 30. We hold instead that the indictment was

sufficiently specific and that the charge was correct.

Ill. EVIDENCE OF OTHER CRIMES

In addition, Davis urges that the trial judge erred

when he permitted witnesses Sedeshe and Myers to testify

concerning other crimes of a similar nature. We have re-

cently reaffirmed the importance of avoiding the undue

prejudice which arises from the admission of evidence con-

cerning prior crimes which has little probative value for

the issues being tried. See United States v. Cook, 538

F.2d 1000 (3d Cir. 1976). In this case, however, the tes-

timony of Sedeshe and Myers was relevant to Davis’s mo-

tive or intent in accepting the money tendered. The evi-

dence was, therefore, admissible under Fed. R. Ev. 404

(b).

IV. MOTION FOR JUDGMENT OF ACQUITTAL

Davis’s final contention is that his motion for a judg-

ment of acquittal should have been granted. In light of

the record, this contention is frivolous.

V. CONCLUSION

The judgment of the district court will be affirmed.

inmates in securing special favors, nor need the govern-

ment show that the Defendant did anything at all to |

assist the inmates. The issue is not whether the De-

fendant successfully aided the inmates, but whether he

agreed to accept money from two or more of the per-

sons named out of the five, who expected that he would

provide assistance in return for the money.

App. 812.

—

te.

7A

Concurring Opinion

ALDISERT, Circuit Judge, concurring.

I join in Parts 11-V of the majority opinion and con-

cur in the result reached in Part I. I agree that at the

time of the original indictment on June 1, 1977 and the

‘superseding indictment on July 13, 1977, at least three

incidents of bribery constituted acts “chargeable under

State law and punishable by imprisonment for more than

one year”. 18 U.S.C. §1961(1) (A). And with the

majority I agree that these acts constitute a pattern of

racketeering activity, sufficient to sustain a conviction un-

der the indictment.

I part company with my brothers of the majority on

a philosophical note only, a note that does not affect the

outcome of our decision, but nevertheless reflects an im-

portant difference in interpreting a federal criminal stat-

ute widely used by the Department of Justice. I would

hold that the acts of bribery occurring in 1972 and 1974"

should not have been considered as “‘racketeering activity”

under a 1977 federal indictment based on §1961 (1) (A)

because these acts were no longer chargeable and punish-

able under Pennsylvania law.

Under the federal statutory scheme, the essential ele-

ments of a racketeering offense require an analysis of both

federal and state law. Thus, a pattern of racketeering is

*The superseding indictment originally alleged an

additional incident of bribery, occurring in 1970. Because

the government’s witness did not offer sufficient testimony

regarding this alleged act, the government voluntarily

withdrew this portion of the indictment at trial.

i ll

8A

Concurring Opinion

defined as “‘at least two acts of racketeering activity’,

18 U.S.C. §1961 (5), and racketeering activity is defined

(for the purposes of this case) as “any act or threat in-

volving . . . bribery . . . which is chargeable under State

law and punishable by imprisonment for mc 2 than one

year....”” 18 U.S.C. §1961 (1) (A).

The indictment alleged that the acts were violations

of the Pennsylvania crime of bribery, proscribed in 18

P.S. §4303 (prior to June 6, 1973), and 18 PS. §4701 (a).

By the provisions of 19 P.S. §211, prosecution of this state

crime is barred after the passing of two years from the

date of the commission of the alleged act. Nevertheless,

Count II of the indictment averred acts occurring on or

about May 3, 1972, and November 22, 1974. Clearly,

even if “chargeable’’ under Pennsylvania law, these of-

fenses were not “punishable” in 1977, at the time of the

federal indictment, because of the interposition of the

State statute of limitations. Accordingly, I would hold

that even applying the federal statute of iimitations,

United States v. Forsythe, 550 F.2d 1127 (3d Cir. 1977),

the essential ingredients of a federal offense were lacking.

It is conceded that bribery of a state official is not a

discrete offense under federal criminal statutes. It is

equally clear to me that since the federal definitional stat-

ute requires that the racketeering offense be both charge-

able and punishable under the state law, the government

could not, and did not, prove all the elements necessary

under the federal statute. It was a simple case of legal

impossibility of performance.’

2United States v. Berrigan, 482 F.2d 171 (3d Cir.

1973), provides guidance in such a situation:

9A

Concurring Opinion

Although proper judicial interpretation of any federal

statute is always important, proper judicial interpretation

of a criminal staiute is critical. The maxim nullum

crimen sine lege, nulla poena sine lege reminds us that the

courts may not punish conduct as criminal unless that

conduct has transgressed the clear, plain, or fair meaning

of the defined offense. In the federal courts, this means

a congressionally defined offense, because there is no fed-

eral common law of crimes.

Nevertheless, an interesting notion is volunteered here

that bribery activities which occurred in 1972 and 1974

can still fall within the congressional definition of rack-

eteering in 1977, by declaring judicially that “the words

‘chargeable under State law’ in §1961(1) (A) mean

Legal impossibility is said to oceur where the in-

tended acts, even if completed, would not amount to

acrime.... ‘‘It is commonplace that federal courts

are courts of limited jurisdiction, and that there are

no common law offenses against the United States.

‘The legislative authority of the Union must first make

an act a crime, affix a punishment to it, and declare

the Court that should have jurisdiction of the of-

fense.’ ... ‘It is axiomatic that statutes creating

and defining crimes cannot be extended by intend-

ment, and that no act, however wrongful, can be pun-

ished under such a statute unless clearly within its

terms.’’’ ... We distinguish between the defense of

faetual impossibility, which is not involved here, and

legal impossibility, which is.

482 F.2d at 188-90 (citations omitted). See United States

v. Frumento, 563 F.2d 1083, 1096-97 (3d Cir. 1977) (Aldi-

sert, J., dissenting).

10A

Concurring Opinion

‘chargeable under State law at the time the offense was

committed.’”” (Majority Opinion at 3). This is not

statutory interpretation; it is statutory construction in the

pristine fabricating sense. It is a judicial, not legislative,

definition of criminal activity, a genre of statutory inter-

pretation outlawed by a host of Supreme Court decisions.

See, e.g., Huddleston v. United States, 415 U.S. 814, 831

(1974).

This semantic excursion ignores the precise language

Congress utilized in §1961(1) (A)., to-wit, “any act or

threat involving . . . bribery . . . which is chargeable under

State law ....” (Emphasis added). The present tense of

the copulative verb “is” was used. The use of the present

tense indicates that this provision is to apply only to those

acts chargeable and punishable at the time of the indict-

ment. Had Congress intended otherwise it could have

just as easily added ‘was or has been”; indeed, Congress

could have used the words the majority has added to the

statute: “is chargeable under State law at the time the of-

fense was committed.” But Congress did not add these

words, and we cannot. We cannot, because to do so is to

run counter to a basic tenet of interpretation of penal stat-

utes best evidenced by Mr. Justice Reed’s statement in

United States v. Bramblett, 348 U.S. 503, 509 (1954):

“That criminal statutes are to be construed strictly is a

proposition which calls for the citation of no authority.”

III.

Strict interpretation of a penal statute, of course, can-

not be applied in vacuo; it cannot be utilized to thwart

clearly expressed statutory text, or, in the event of am-

biguity, the legislative purpose expressed in the statute or

Te oe ae

11A

Concurring Opinion

its legislative history. The reasoning and policy considera-

tions guiding the interpretation of ambiguous statutory

language were set out by Mr. Justice Marshall in United

States v. Bass, 404 U.S. 336 (1971):

[A]s we have recently reaffirmed, “ambiguity con-

- cerning the ambit of criminal statutes should be re-

solved in favor of lenity.” . . . In various ways over

the years, we have stated that ‘““when choice has to

be made between two readings of what conduct Con-

gress has made a crime, it is appropriate, before we

choose the harsher alternative, to require that Con-

gress should have spoken in language that is clear

and definite.” United States v. Universal C.I.T.

Credit Corp., 344 U.S. 318, 321-322 (1952). This

principle is founded on two policies that have long

been part of our tradition. First, ‘a fair warning

should be given to the world in language that the

common world will understand of what the law in-

tends to do if a certain line is passed. To make the

warning fair, so far as possible the line should be

clear.” McBoyle v. United States, 283 U.S. 26, 27

(1931) (Holmes, J.) See also United States v.

Cardiff, 344 U.S. 174 (1952). Second, because of

the seriousness of criminal penalties, and because

criminal punishment usually represents the moral

condemnation of the community, legislatures and not

courts should define criminal activity. This policy

embodies “the instinctive distaste against men lan-

guishing in prison unless the lawmaker has clearly

said they should.’”’ H. Friendly, Mr. Justice Frank-

furter and the Reading of Statutes, in Benchmarks

196, 209 (1967).

12A

Concurring Opinion

404 U.S. at 347-48 (1971) (footnote and citations

omitted) .

I have indicated that I find no ambiguity in the

present tense descriptive language of those state offenses

incorporated in §1961(1) (A) as federal offenses. As-

suming without conceding that there is ambiguity, my

examination of the legislative history compel no contrary

result.

A.

The Racketeer Influenced and Corrupt Organizations

statute (RICO) had as its genesis the Senate’s Organized

Crime Control Bill, introduced in early 1969. “‘Racketeer-

ing activity’’ was originally defined, in relevant part, as

“any act involving the danger of violence to life, limb, or

property indictable under State or Federal law and punish-

able by imprisonment for more than one year.” The Jus-

tice Department, however, took the position that the sug-

gested language was ‘“‘too broad and would result in a

large number of unintended applications, as well as tend-

ing toward a complete federalization of criminal justice.’”

It suggested that §1961(1) (A) be redefined as follows:

“Any act or threat involving murder, kidnapping, gam-

bling, arson, robbery, bribery, extortion, usury, or deal-

ing in narcotic drugs, marihuana or other dangerous drugs,

which is indictable under State law and punishable for

* Letter from Richard G. Kleindiest, Deputy Attorney )

General, to Senator John L. McClellan, Chairman of the

Subcommittee on Criminal Laws and Procedure, reprinted

in Hearings on S. 30 before the Subcomm. on Criminal

Laws and Procedures of the Senate Comm. on the Judici-

ary 91st Cong., Ist Sess. p. 405.

ee ee ee ee On

13A

Concurring Opinion

more than one year.” The Department stated, “It is felt

that by thus narrowing the definition of the class of ap-

plicable state crimes in terms of their generic meaning the

definition of ‘racketeering activity’ contained in Section

1961 (1) (A) will be both broad enough to include most

_State statutes customarily invoked against organized crime

yet narrow enough to be constitutional. United Siates v.

Nardello, 393 U.S. 286 (1969) .”

The Senate accepted the gist of the Justice Depart-

ment’s recommendations in its final passage of the crime

control bill:

§1961(1). “[R]Jacketeering activity’’ means

(A) any act or threat involving murder, kidnapping,

gambling, arson, robbery, bribery, extortion, or deal-

ing in narcotic or other dangerous drugs, which is

chargeable under State law and punishable by im-

prisonment for more than one year.

S. Rep. No. 91-617, 91st Cong., Ist Sess. 21 (1969). The

bill was subsequently favorably considered in hearings be-

fore Sub-Committee No. 5 of the House Committee on the

Judiciary, 91st Cong., 2d Sess., and, with minor amend-

ments, was eventually enacted as the Organized Crime

Control Act of 1970, P.L. 91-452, 84 Stat. 922.

B.

From this legislative history, | draw several signifi-

cant conclusions. The Justice Department’s request that

the statutory definition not be “too broad” was respected:

state crimes were defined in “terms of their generic mean-

ing” and federal crimes were defined with specificity in

§1961(1) (B). The Senate Committee report noted that

14A

C ne Opini

“(t]he state offenses are included by generic designation,”’

Senate Report, supra, at 158, and the House Committee

stated that “ ‘[r]acketeering activity’ is defined in terms

of specific State and Federal criminal statutes”. and that

“State offenses are included by generic designation.”

1970 U.S. Cope Conc. & ADMIN. News, 91st Cong., 2d

Sess., pp. 4010, 4032.

Congress therefore can be said to have heeded the

Justice Department’s admonition to avoid “‘a large number

of unintended applications” and “a complete federaliza-

tion of criminal justice.” Therefore §904 of Title IX of

P.L. 91-452, which provided that “[t]he provisions of this

title shall be liberally construed to effectuate its remedial

purpose,” must be read in light of the language of the

Statute and the legislative history. And in viewing the

legislative purpose, I detect nothing that precludes the

application of the rule of narrow construction of penal

statutes.

IV.

In sum, I find the statutory language to be clear. For

a federal offense to exist, by definition there must also be

a state offense. There was no federal offense here, be-

cause the acts had to be “chargeable and punishable” un-

der state law. “If the language of a statute be plain,

admitting of only one meaning, the legislature must be

taken to have meant and intended what it plainly ex- .

pressed.”” Reuther v. Trustees of Trucking Employees,

— F.2d — (3d Cir. No. 77-1986, 1978), quoting Lord

Atkinson in Vacher & Sons, Ltd. v. London Society of

Compositers, [1913] A.C. 107, 121-22 (House of Lords) .

“If the language be clear it is conclusive. There can be

ON 66 ester eats Te Ee oe

15A

Concurring Opinion

no construction where there is nothing to construe.”

United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396

(1868).

And even assuming that there is ambiguity, we must

resort to the principle that “ambiguity concerning the

_ambit of criminal statutes should be resolved in favor of

lenity.”” United States v. Bass, supra. In view of the

statute’s text and its history, especially the congressional

acquiescence in the Justice Department’s request to nar-

row the definition of state offenses, the application of the

traditional principle of strict construction of this penal

statute effectuates, rather than defeats, the obvious legis-

lative purpose.

For all these reasons, | would hold that where one

has been acquitted of a state offense, see, e.g., United

States v. Frumento, supra, (Aldisert, J., dissenting), or

where, as here, prosecution of a state offense is outlawed

by a state statute of limitations at the time of the federal

indictment, there is no generic state crime “chargeable and

punishable under State law,”’ and there cannot be a fed-

eral offense under §1961 (1) (A).

A True Copy:

Teste:

Clerk of the United States Court of

Appeals for the Third Circuit.

16A

Order

APPENDIX II

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

Criminal No. 77-71-1

(Judge Muir)

UNITED STATES OF AMERICA

vs.

RICHARD A. DAVIS

ORDER

August 2, 1977

THE BACKGROUND OF THIS ORDER IS AS

FOLLOWS:

On the first day of June, 1977, a federal grand jury

indicted Davis. On July 13, 1977 the federal grand jury

filed a superseding indictment against Davis. Count Il

of that indictment charged him with violating 18 U.S.C.A.

§§1961, 1962(c) and 1963 by committing six acts be-

tween the 15th day of July 15, 1970, and June 8, 1976

which allegedly violated the Act of June 24, 1939, P.L.

872 §303, 18 P.S. §4303 and the Act of December 6,

1972, P.L. ——, No. 334, §1, 18 Pa. C.S.A. §4701 while

te ET EN a

17A

Order

he was an employee of and associated with an enterprise

engaged in and affecting interstate commerce; that is, the

Warden of the Dauphin County Prison, Harrisburg, Penn-

sylvania. On July 25, 1977, in compliance with this

Court’s Order No. 2 of July 14, 1977, Davis filed a mo-

tion to dismiss Count II of the indictment accompanied by

‘a brief. On July 29, 1977, the United States filed a re-

sponsive brief in opposition to the motion. Davis’ con-

tentions that Count II of the indictment should be dis-

missed will be dealt with seriatim.

First, Davis contends that Count II of the indictment

should be dismissed because three of the six alleged in-

cidents of racketeering are not chargeable offenses under

state law punishable by imprisonment for more than one

year because he could not now be tried for such offenses

in the courts of Pennsylvania since the statute of limita-

tions of the bribery statutes, 18 P.S. §4303 and 18 Pa.

C.S.A. §4701 have expired. Racketeering activity for

the purposes of 18 U.S.C.A. §1961 et seq. is defined in

relevant part as “any act or threat involving murder, kid-

napping, gambling, arson, robbery, bribery, extortion, or

dealing in narcotic or other dangerous drugs, which is

chargeable under State law and punishable by imprison-

ment for more than one year.” 18 U.S.C.A. §1961 (1)

(A). State law is used in the racketeering statute to

define a federal offense. An offense which when com-

mitted would have been indictable under Pennsylvania

law is within the statutory definition. Otherwise, state

statutes of limitations would control the federal statute of

limitations specifically set forth by Congress to apply to

the racketeering statute. See 18 U.S.C.A. §1961 (5);

United States vs. Fineman, Cr. 77-36 (E.D. Pa. 1977).

18A

Order

Similar arguments have been raised against prosecu-

tions pursuant to 18 U.S.C.A. §1952 and §1955 which

prohibit travelling in interstate commerce to carry out

acts illegal under state law. In United States of America

vs. Revel, 493 F.2d 1 (5th Cir. 1974), cert. denied 421

U.S. 909 (1975), the Defendant was indicted for a viola-

tion of 18 US.C.A. §1955. The gambling laws of

Alabama were used to define the federal offense. De-

fendant contended that the state statute of limitations had

expired before the federal indictment had been returned.

The Court rejected that argument because the reference

to state law in the statute was for the purpose of defining

the conduct prohibited. See United States vs. Cerone,

452 F.2d 274, 286-87 (7th Cir. 1971), cert. denied, 405

U.S. 964 (1972); United States vs. Karigiannis, 430 F.2d

148, 150 (7th Cir. 1970) (Justice Clark sitting by designa-

tion).

If Congress had intended the state statute of limita-

tions to apply to the racketeering statute, it could have

so stated. Davis has provided no authority to support

his contention. In the light of the foregoing, the Defend-

ant’s motion to dismiss the indictment because two of the

offenses charged in Count II did not occur within the

state statute of limitations will be denied.

Second, Davis contends that several of the acts

charged in Count II do not fall within the federal statute

of limitations. See 18 U.S.C.A. §3282 which established

a five-year period of limitations for all .non-capital of-

fenses. That statute is a general statute of limitations

which does not apply when Congress sets forth a specific

statute of limitation for an offense. The Racketeer In-

fluenced and Corrupt Organization Statute contains such

— a ee

eet eet Me as

i a i ae lala

19A

Order

a specific limitation. 18 U.S.C.A. $1961 (5) states that

a pattern of racketeering activity requires at least two

acts of racketeering activity, one of which occurred after

the effective date of the chapter and the last of which

occurred within 10 years excluding any period of im-

prisonment after the commission of a prior act of rack-

eteering activity. The acts alleged in Count II of Davis’

indictment fall within the provisions of this section. Con-

sequently Davis’ motion to dismiss Count II because it

is barred by the federal statute of limitations will be

denied.

Third, Davis contends that Count II of the indictment

should be dismissed because it does not aver the factual

basis of the conclusion that he agreed to make or perform

“a decision, opinion, recommendation, vote and exercise

of discretion” as the Warden of the Dauphin County Pris-

on, in return for money, thereby failing to notify him of

the nature of the charges which he is expected to defend

against and denying him the opportunity properly to pre-

pare for his defense. The Supreme Court of the United

States in Hamling vs. United States, 418 U.S, 87, 117

(1974), set forth the following standard by which the

adequacy of an indictment is to be measured.

“Our prior cases indicate that an indictment is

sufficient if it first contains the elements of the of-

fense charged and fairly informs a defendant of the

charge against which he must defend, and, second,

enables him to plead an acquittal or conviction in

bar of future prosecutions for the same offense.

(Citations omitted) It is generally sufficient that an

indictment set forth the offense and in the words of

the statute itself as long as ‘those words of them-

20A

Order

selves fully, directly, and expressly without any un-

certainty or ambiguity set forth ali the elements

necessary to constitute the offense intended to be

punished. (Citations omitted) Undoubtedly the

language of the statute may be used in the general

description of an offense, but it must be accompanied

with such a statement of the facts and circumstances

as will inform the accused of the specific offense

coming under the general description with which he

is charged.’ (Citation omitted.)

Count II of the indictment possesses all of the ele-

ments required to establish a violation of 18 U.S.C.A.

$§$1961 et seq. Count II of the indictment sets forth six

incidents in which it is charged that Davis did offer, con-

fer and agree to confer upon and solicit, accept and agree

to acoept from various individuals named therein sums

of money for a decision, opinion or recommendation, vote

and exercise of discretion as the Warden of the Dauphin

County Prison in violation of either 18 P.S. §4303 or

18 Pa. C.S.A. §4701(a). Each occurrence contains the

date upon which it allegedly took place, the individual

from whom Davis supposedly accepted and solicited the

money and the amount of the money which he was to re-

ceive. The language. used to describe the conduct in

which Davis allegedly engaged essentially tracks 18 Pa.

C.S.A. §4701 (a). -Because Count II does inform Davis

that he is accused of accepting bribes on particular dates, .

he does ‘know whati;he has to meet at trial. It would

be a better practice:on the part of the United States At-

torney to have set forth the acts which Davis was to per-

form i return fee the money. But failure to do so does

not violate the Constitution. Davis does not contend that

ee ee ——

21A

Order

Count II of the indictment lacks clarity and is not plain

or concise. Any possibility of prejudice or any burden

which Davis may bear because he would allegedly have

to anticipate the nature of the offense with which he is

charged can be cured by a Bill of Particulars which Davis

has filed and upon which this Court has ruled. The Court

has granted those portions of Davis’ request for a Bill of

Particulars which in its view are necessary to apprise him

of the charges against him with sufficient precision to

enable him to prepare his defense and to avoid surprise.

United States vs. Radetsky, 535 F.2d 556 (10th Cir.

1976), United States vs. Burton, 526 F.2d 884 (5th Cir.

1976) , rehearing denied, 529 F.2d 523.

NOW, THEREFORE, IT IS ORDEDED THAT:

Davis’ motion to dismiss the superseding indictment

is denied.

Muir

Muir, U.S. District Judge