# Petition — Piluso v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 980

## Text

‘Mls

OAK, JR., CLERK

IN THE
Supreme Court of the United States

OcTOBER TERM, 1978

ne €8-279

CHARLES J. Pitvso, Petitioner,
v.

THE UNITED Srares oF AMERICA, Respondent.

—_——————— —

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

ALBERT J. AHERN, JR.
0205 Leesburg Pike
Bailey’s Crossrceads, Virginia

Press oF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page
Citations To Opinions Beuow ..................000. 1
PT ET 2
EE 2
REPATMOOMITT GO SO CAG on cnn. ccc ccc cc ccc cece. 2
StaTuTes aNpD Ruxes INVOLVED ................0.00: 5
Reasons Wuy THe Writ SHovutp Be GranTeED ........ 9
ee ace cee ccces 22
I iE kg go bobs cece ceccncs la
TABLE OF AUTHORITIES
CasEs:
Bouie v. City of Columbia, 378 U.S. 347 ..... 2, 9, 10, 14, 16
Caragas v. LaValle, 391 U.S. 234 (1968) ............ 17
Connally v. General Construction Company, 269 U.S.
EET OS SE A ae i 10, 11, 14
Douglas v. Buder, 412 U.S. 430 .........0cccceceee: 9
English v. Miller, 341 F.Supp. 714 (1972) ........... 15

Freedman v. United States, 437 F.Supp. 1252 (1977) .. 20
Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.

cca awereccceccccs 17
Huddleston v. United States, 415 U.S. 814, 831, 94

S.Ct. 1262, 39 L.Ed.2d 782 (1974) .............. 13
Lanzetta v. New Jersey, 306 U.S. 451 .............. 10, 11
Leary v. United States, 393 U.S. 631, 89 S.Ct. 582 .... 21
Marks v. United States, 430 U.S. 188 (1977) ....... 2, 9, 16

Matter of Chew, 42 N.Y.2d 490, 398 N.Y.2d 1001 (1977) 17

ii Table of Authorities Continued

Page
McBoyle v. United States, 283 U.S. 25 ....2, 9, 11, 12, 13, 16
Mills v. United States, 164 U.S. 644, 17 S.Ct. 210 ..... 21
Nicola v. United States, 72 F.2d 787 (3d Cir. 1934)... 21
Papachristou v. City of Jacksonville, 405 U.S. 156 .... 11
Parker v. Morgan, 322 F.Supp. 585 (N.D.N.C..1971) .. 15
Pierce v. United States, 314 U.S. 306, 62 S.Ct. 287 .... 14

Rabe v. Washington, 405 U.S. 313, 93 S.Ct. 9383 ...... 11
Rewis v. United States, 401 U.S. 808 (1971) ......... 19
Sibron v. New York, 392 U.S. 40, pp. 53-57 (1968) .... 17
Street v. New York, 394 U.S. 576 (1969) ............ 17

Stromberg v. California, 283 U.S. 359, 51 S.Ct. 632 ... 21
United States v. Bass, 404 U.S. 336, 92 S.Ct. 515 ....13, 20

United States v. Brecht, 540 F.2d 45 (1976) ...2, 3,9, 12,15
16, 17, 18, 20

United States v. Cardiff, 344 U.S. 174 [73 S.Ct. 189,

Ti Ree). UE): 5 ioe diveccsavecbencun eee 13, 16
United States v. Johns, 444 F.2d 58 ................ 21
United States v. L. Cohen Grocery Company, 255 U.S.

OE. i en's vic vey 000 Vee baka ake eke ee 11, 16
United States v. Nardello, 393 U.S. 286 ........ 4, 18, 19, 20
United States v. Niedleman, 356 F.Supp. 979 ....... 12, 19
United States v. Piluso, 511 F.2d 1953, cert. denied

433 UB. G76 (iG0G) sc iven snk 2, 3, 9, 12, 16, 17, 18, 20
United States v. Pomponio, 511 F.2d 953 (4th Cir.),

cert. denied 423 U.S. 874 (1975) ......ccccccsees
United States v. Reese, 92 U.S. 214 ................. 11

United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277 .. 18

United States v. Universal C.LT. Credit Corp., 344
U.S. 218, 221-222 [73 S.Ct. 227, 97 L.Ed. 260]
CRBOD ic en tineeNean setae ieee 13

senhcusbh

0 RAEI hak LIER,

Raat AOD ATR AS 4 ligt 0 Maite PS ob ta

|

Table of Authorities Continued ili

Page
United States v. Weitzel, 246 U.S. 533, 38 S.Ct. 381,
ey aE sre ae Sides bk ous ok no oh es ke on 16
Yates v. United States, 354 U.S. 298, 312 (1957) ..... 21
STATUTES:

New York Penal Law

EE reer Cus Lanakebpen kent, 3, 7, 16
Bectwom BID ne cceccccccs terre eee ee 7
TN URNS DU eh cbc ere veNsscareeees. 8
Title 18, Travel Act
ae a re eee 2, 3, 4, 6, 10, 17, 18, 20
eee via ob wae aati 3, 4, 5, 10, 17, 21
cad oo ees a a searat eekie thks 6
NG TE SRE ries GA a ere 12
oo ge) ae ae 13
Tile 20 UBC, Beckie TART) occ. e cw ccccnccsts 2
UNE Te Wry CUD BOD wis cevcccccececcesss 3
DocuMENTs:
Freund, The Supreme Court and Civil Liberties,
4 Vand, L.Rev. 533, 541 (1951) ............. 14

The Void for Vagueness Doctrine in the Supreme
Court, 109 University of Pennsylvania Law
SS OSS EN err re 11

Fee dnd CG aaNAte << LAIRD ae!

rete. «See

acta Oa Be ees be ee

IN THE

Supreme Court of the United States

OcToBER TERM, 1978
No.

Cuares J. Prtuso, P etitioner,
’
V.

THe Untrep Srates or America, Respondent.

PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

The Petitioner herein prays that a writ of certiorari
issue to review the judgment and opinion of the United
States Court of Appeals for the Fourth Circuit en-
tered on June 28, 1978. The petition for rehearing was
denied on July 21, 1978.

CITATION TO OPINIONS BELOW

The opinion of the United States Court of Appeals
for the Fourth Circuit is unreported and a copy is
attached to this petition (Pet. App. la-4a). The order
denying the petition for rehearing is attached (Pet.

App. 5a-6a).

2

JURISDICTION

The judgment of the United States Court of Ap-
peals was entered on June 28, 1978. The jurisdiction
of this court is predicated on Title 28 USC, Section
1254(1).

QUESTIONS PRESENTED

I. Do not the conflicting opinions of the Seeond Cir-
cuit in United States v. Brecht, 540 F.2d 45 (1976) and
the Fourth Cireuit in United States vy. Piluso, 511
F.2d 953 (1975) establish, regardless of which deci-
sion is correct, that the Travel Act, as judicially ap-
plied to the Petitioner’s actions in 1970 and 1971, was
unconstitutionally vague with respect to notice under
this court’s decisions in Marks v. United States, 430
U.S. 188 (1977); Boute v. City of Columbia, 378 U.S.
347 and McBoyle vy. United States, 283 U.S. 252

Il. Should not this court resolve once and for all
the continuing conflict between the Second Circuit,
the Fourth Cireuit, and various district courts over
the application of an important federal criminal stat-
ute such as the Travel Act, Title 18, Section 1952,
United States v. Brecht, supra, and United States v.
Piluso, supra, which is resulting in unequal adminis-
tration of the criminal law in the enforcement of the
Travel Act in various cirenits and where prosecution
under the Act is now being determined by the jurisdic-
tion in which the particular defendant may reside?

STATEMENT OF THE CASE

The Petitioner, an attorney at law, was convicted in
1974 on one count for conspiracy to violate Title 18,
Section 1952 USC, and on two substantive counts which
charged violations of Title 18, Section 1952 USC. The

3

underlying unlawful activity which was used as the
predicate for invoking the jurisdiction of the Travel
Act was Section 180 of the New York Penal Code, a
misdemeanor known as commercial bribery, and a con-
flict of interest statute, Title 18, Section 215 of the
United States Code, also a misdemeanor. The Peti-
tioner moved to dismiss the indictment, asserting that
the indictment failed to charge an offense under the,
Travel Act. The Petitioner was convicted and appealed
his conviction to the United States Court of Appeals
for the Fourth Cireuit, which affirmed the conviction,
United States v. Piluso, 511 F.2d 1953, cert. denied.
423 U.S. 874 (1975), with Mr. Justice Douglas noting
that he would grant certiorari. The Petitioner was in-
carcerated and served the sentence imposed upon him
by the district court. Thereafter, the United States
Court of Appeals for the Second Cireuit rendered an
opinion in the ease of United States v. Brecht, 540
F.2d 45 (2d Cir. 1976), in which the Second Circuit
disagreed with the Fourth Circuit and specifically held
that the commercial bribery statute of New York, Sec-
tion 180 of the New York Penal Code, could not con-
stitute the underlying unlawful activity upon which a
charge could be based under the Travel Act, Title 18,
Section 1952 of the United States Code. Thereafter,
the Petitioner filed a motion in the United States Dis-
trict Court, pursuant to Title 28, Section 2255 USC,
and asked the district court to set aside his conviction
as being obtained in violation of due process of law.
The Petitioner urged that regardless of which circuit
court of appeals was correct in its construction of the
Travel Act, the conflict in the circuits as to whether the
Petitioner’s acts in fact violated the Travel Act estab-
lished that the Travel Act was unconstitutionally vague
with respect to the Petitioner’s activities in 1970 and

4

1971. The Petitioner also urged that the ruling of the
Second Cireuit in United States v. Brecht, supra, was
the correct interpretation of this court’s ruling in
United States v. Nardello, 393 U.S. 286, and that as
such no valid indictment had been filed in the federal
court in Alexandria charging a federal offense under
the Travel Act such that the trial court had no juris-
diction to proceed to judgment. The district court de-
nied the Petitioner’s motion to set aside the conviction
and the Petitioner appealed to the United States Court
of Appeals for the Fourth Circuit. The Petitioner’s ap-
peal was consolidated with the companion motion and
appeal of Louis J. Pomponio, Jr. The United States
Court of Appeals for the Fourth Circuit rendered
an opinion on June 28, 1978, (Pet. App. la-5a) which
rejected the Petitioner’s contentions and affirmed the
action of the district court. The Court of Appeals for
the Fourth Circuit noted in its opinion the existence
of a conflict between the Second Circuit and its own
opinion but tok notice of the fact that the Supreme
Court, on two occasions, had denied certiorari, once
before the conflict occurred and once after the con-
flict occurred. See opinions pages 3 and 4 (Pet. App.
Jda-4a). The Petitioner also asked the United States
Court of Appeals for the Fourth Circuit to certify two
questions the to Supreme Court of the United States
for resolution. The two questions were:

1. Does an indictment charge a valid federal of-
fense under the Travel Act, Title 18, Section
1952, when the unlawful activity upon which
the jurisdiction is predicated is commercial
bribery under Section 180 of the New York
Penal Code?

2. Does an indictment charge a valid federal of-
fense under the Travel Act, Title 18, Section

th Jat Te

-
+
4

5

1952, when the unlawful activity upon which
the jurisdiction is predicated is a violation of
Title 18, Section 215 of the United States
Code?

The United States Court of Appeals for the Fourth
Circuit denied the request for certification of the two
questions and again took note of the two prior denials
of certiorari by this court of the conflicting opinions.
The petition for rehearing was denied on July 21,
1978. The petition for certiorari follows.

STATUTES AND RULES INVOLVED
Title 18, United States Code

§ 215. Receipt of commissions or gifts for procuring
loans.

Whoever, being an officer, director, employee, agent,
or attorney of any bank, the deposits of which are in-
sured by the Federal Deposit Insurance Corporation,
of a Federal intermediate credit bank, or of a National
Agricultural Credit Corporation, except as provided
by law, stipulates for or receives or consents or agrees
to receive any fee, commission, gift, or thing of value,
from any person, firm, or corporation, for procuring or
endeavoring to procure for such person, firm, or cor-
poration, or for any other person, firm, or corporation,
any loan or extension or renewal of loan or substitution
of security, or the purchase or discount or acceptance
of any paper, note, draft, check, or bill of exchange by
any such bank or corporation, shall be fined not more
than $5,000 or imprisoned not more than one year or
both.

6

§ 371. Conspiracy to commit offense or to defraud
United States.

If two or more persons conspire either to commit
any offense against the United States, or to defraud the
United States, or any agency thereof in any manner or
for any purpose, and one or more of such persons do
any act to effect the object of the conspiracy, each shall
be fined not more than $10,000 or imprisoned not more
than five years, or both.

If, however, the offense, the commission of which is
the object of the conspiracy, is a misdemeanor only,
the punishment for such conspiracy shall not exceed
the maximum punishment provided for such misde-
meanor.

Title 18, § 1952, U.S.C. Interstate and foreign travel
or transportation in aid of
racketeering enterprises.

(a) Whoever travels in interstate or foreign com-
merce or uses any facility in interstate or foreign com-
merce, including the mail, with intent to—

(1) distribute the proceeds of any unlawful
activity; or

(2) commit any crime of violence to further any
unlawful activity; or

(3) otherwise promote, manage, establish, carry
on, or facilitate the promote, management, estab-
lishment, or carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any
of the acts specified in subparagraphs (1), (2), and
(3), shall be fined not more than $10,000 or imprisoned
for not more than five years, or both.

Sa A ch: ATO a! » conden nt lll

PD he lett at As aR! Or gS Re ain

bibs

7

(b) As used in this seetion ‘‘unlawful activity”
means (1) any business enterprise involving gambling,
liquor ou which the Federal excise tax has not been
paid, narcotics, or controlled substances (as defined in
section 102(6) of the Controlled Substances Act), or
prostitution offenses in violation of the laws of the
State in which they are committed or of the United
States, or (2) extortion, bribery, or arson in violation
of the laws of the State in which committed or of the
United States.

(c) Investigations of violations under this section
involving liquor shall be conducted under the super-
vision of the Secretary of the Treasury.

New York Penal Law
§180 Commercial bribing.

A person is guilty of commercial bribing when he
confers, or offers or agrees to confer, any benefit upon
any employee, agent or fiduciary without the consent of
the latter’s employee or principal with intent to influ-
ence his conduct in relation to his employee’s or prin-
cipal’s affairs.

Commercial Bribing is Class B misdemeanor.
§ 200.0. Bribery

A person is guilty of bribery when he confers, or
offers or agrees to confer, any benefit upon a publie
servant upon an agreement or understanding that
such publie servant’s vote, opinion, judgment, action,
decision or exercise of discretion as a public servant
will thereby be influenced.

8

Bribery is a class D felony.
* * *

§70.15 Sentences of imprisonment for misdemeanors
and violation

2. Class B misdemeanor. A sentence of imprison-

". ment for a elass B misdemeanor shall be a definite

sentence. When such a sentence is imposed the term
shall be fixed by the court, and shall not exeeed three
mouths.

§ 70.00 Indeterminate sentence of imprisonment for

felony
* _ *

”». Maximum term of sentence. The maximum term
of an indeterminate sentence shall be at least three
years and the term shall be fixed as follows:

* * *

(d) For a class D felony, the term shall be
fixed by the court, and shall not exceed seven

i
* * * * -

Bhat At ata Dh Bee MRS Leen BS te re tnt Oo

mm

9

REASONS WHY THE WRIT SHOULD BE GRANTED
I

Regardless Of Whether The Second Circuit In United States v.
Brecht, 540 F.2d 45 (2d Circuit 1976), Or The United States Court
Of Appeals For The Fourth Circuit In United States v. Piluso, 511
F.2d 953, Is Correct As To Whether The Petitioner's Conduct In
1970 And 1971 Charged A Valid Offense Under The Travel Act,
The Petitioner's Conviction Lacks Due Process Of Law Under
Marks v. United States, 430 U.S. 188 (1977), Bouie v. City of
Columbia, 378 U.S. 347, And McBoyle v. United States, 283 U.S.
25, 51 S.Ct. 340, And This Expansive Judicial Interpretation Of
The Act Is Equivalent To An Ex Post Facto Legislation And Con-
stitutes A Violation Of Due Process Of Law Under The Fifth
Amendment. Douglas v. Buder, 412 U.S. 430.

In the opinion of the United States Court of Ap-
peals for the Fourth Circuit, at page 4, the Court
stated:

In their post-conviction motions the appellants pri-
marily contend that the conflict between us and
the Second Circuit, together with the application
of our construction of the statute in 1975 to con-
duet which occurred in 1970 and 1971 deprive
them of due process under Marks v. United States.
430 U.S. 188 (1977) and Bouie v. City of Colum-
bia, 378 U.S. 347 (1964). In our opinion, how-
ever, the mere existence of a conflict between two
circuits with respect to the construction of a crim-
ina] statute is insufficient to bring these cases with-
in the rationale of Marks and Bouie.

We agree with the contention of the Court of
the Appeals for the Fourth Circuit that a mere con-
flict between the circuits on the construction of a stat-
ute does not in and of itself raise the principles gov-
erned by Marks v. United States, supra, and Boute v.
City of Columbia, supra. We do suggest, however, that
when the Petitioner’s conduct in 1970 and 1971 cannot

10

reasonably be interpreted or understood by a reading

_of the statute to violate its prohibitions, the Petitioner

has been denied the requisite notice that his acts are
in contravention of the statute. As such, the due proe-
ess violation that follows arises not from the vague
language of the statute itself but, as in Lanzetta v.
New Jersey, 306 U.S. 451, and Connally v. General
Construction Company, 269 U.S. 385, from the unfore-
seen and retroactive expansion of a statute due to
judicial construction.

At the time of the Petitioner’s acts in 1970 and 1971
there were no decisions which remotely suggested that
the misdemeanor of commercial bribery, enacted in
only a handful of states, and the conflict of interest
statute, a misdemeanor, Title 18, Section 215, could
constitute the unlawful activity necessary to invoke the
jurisdiction of the Travel Act, Title 18, Section 1952.
In Marks v. United States, supra, the Supreme Court,
quoting from its earlier decision in Bouie v. City of
Columbia, supra, stated:

In Bouie vy. City of Columbia, 378 US 347, 84
S.Ct. 1697, a ease involving the cognate provision
of the Fourteenth Amendment, the Court reversed
trespass convictions, finding that they rested on
an unexpected construction of the state trespass
statute by the State Supreme Court:

[A]n unforeseeable judicial enlargement of a
criminal statute applied retroactively oper-
ates precisely like an ex post facto law such
as Article 1, Section 10 of the Constitution
forbids * * *. If a state legislature is barred
by the ex post facto clause from passing such
a law, it must follow that a state supreme
court is barred by the due process clause from
achieving precisely the same result by judi-
cial construction.

a F

ee ee eee eer eee a eee remeron fet :

a Le oe ey

11

The Court then went on to say:

Similarly, in Rabe v. Washington, 405 U.S. 313
93 S.Ct. 933, we reversed the conviction under a
state obscenity law because it rested on an unfore-
secable judicial construction of the statute. We
stressed that reversal was mandated because af-
fected citizens lacked notice that the statute would
be thus applied.

The Fifth and Fourteenth Amendments prescribe
the enforcement of criminal statutes which are vague
and overbroad. See generally Amsterdam, The Void
for Vagueness Doctrine in the Supreme Court, 109
University of Pennsylvania Law Review 67 (1960).
T'wo elementary principles integral to this sense of
due process are: (1) that the law be plain and intelli-
gible so that the ordinary citizen, and in particular
those who may stray from the law, can be charged with
knowledge of the crimina! consequences of certain
specified aets; and (2) that the criminal justice sys-
tem operate so that there is even-handed application of
sanctions for acts specified by the legislature to be
crimes. See l/nited States v. L. Cohen Grocery Com-
pany, 255 U.S. 81; Connally v. General Construction
Company, 267 U.S. 385; McBoyle v. United States,
283 U.S. 25; Lanzetta v. New Jersey, 306 U.S. 451;
United States v. Reese, 92 U.S. 214; and Papachristou
v. City of Jacksonville, 405 U.S. 156.

The Petitioner stands convicted because of an ex-
pansive construction of the Travel Act by the United
States Court of Appeals for the Fourth Circuit in
1975 for acts committed by the Petitioner in 1970 and
1971. The Second Cireuit’s ruling in United States v.
Brecht, supra, rendered in 1976, which is directly con-
trary to the decisions of the Fourth Circuit, would re-

12

quire dismissal of the indictment, and this divergence
of opinion as to whether a federal crime has been
charged has extended to the district judges of the
Southern District of New York and the Eastern Dis-
triet of Virginia. See United States v. Needleman, 356
F.Supp. 979; United States v. Brecht,. supra, and
United States vy. Piluso, supra. Mr. Justice Holmes,
in United States v. McBoyle, supra, stated:

Although it is not likely that a eriminal will care-
fully consider the text of the law before he mur-
ders or steals, it is reasonable that a fair warn-
ing should be given to the world in language that
the common world will understand of what the
law intends to do if a certain line ts passed. To
make the warning fair, so fare as possible the line
should be clear. When a rule of conduct is laid
down in words that evoke in the common mind
only the picture of vehicles moving on land, the
statute should not be extended to aircraft simply
hecause it may seem to us that a similar policy
applies, or upon the speculation that if the legis-
lature had thought of it, very likely broader words
would have been used.

In a reeent concurring opinion Judge Aldisert of
the Third Cireuit referred to this court’s ruling in
McBoyle v. United States, supra, in dealing with Title
18, Sections 1961 :5 and 1961(1) (a), and stated:

Although proper judicial interpretation of any
federal statute is always important, proper judicial
interpretation of a criminal statute is critical. The
marim nullum crimen sine lege, nulla poena sine
lege reminds us that the courts may not punish
conduct as criminal unless that conduct has trans-
gressed the clear, plain, or fair meaning of the
defined offense. In the federal courts, this means
a congressionally defined offense, because there is
no federal common law of crimes.

‘ eee ere ae ee ;

rn

13

Nevertheless, an interesting notion is volunteered
here that bribery activities which occurred in 1972
and 1974 ean still fall within the congressional
definition of racketeering in 1977, by declaring
judicially that ‘the words ‘chargeable under State
law’ in §1961(1)(A) mean ‘chargeable under
State law at the time the offense was committed.’ ”
(At 1067). This is not statutory interpretation;
it is statutory construction in the pristine fabri-
cating sense. It is a judicial, not legislative, defini-
tion of criminal activity, a genre of statutory in-
terpretation outlawed by a host of Supreme Court
decisions. See, e.g. Huddleston v. United States
415 U.S. 814, 831, 94 S.Ct. 1262, 39 L.Ed.2d 782
(1974).

In another portion of the concurring opinion, quoting
from Mr. Justice Marshall in United States v. Bass,
404 U.S. 336, 92 S.Ct. 515 the court, stated:

[A]s we have recently reaffirmed, ‘‘ambiguity con-
cerning the ambit of criminal statutes should be
resolved 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 con-
duct Congress has made a crime, it is appropriate,
before we choose the harsher alternative, to require
that Congress should have spoken in language that
is clear and definite.’’ United States v. Universal
C.I.T. Credit Corp., 344 U.S. 218, 221-222 [, 73
S.Ct. 227, 97 L.id. 260] (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 intends to
do if a certain line is passed. To make the warning
fair, so far as possible the line should be clear.’’
McBoyle v. Umted States, 283 U.S. 25, 27 [, 51
St. Ct. 340, 75 L.Ed. 816] (1931) (Holmes, J.)
See ulso United Stutes v. Cardiff, 344 U.S. 174 [,

i

14

73 S.Ct. 189, 97 L.Ed. 200] (1952). Seeond, be-
cause of the seriousness of criminal penalties, and
because criminal punishment usually represents
the moral condemnation of the community, legis-
latures and not courts should define criminal ac-
tivity. This policy embodies ‘‘the instinctive dis-
taste against men languishing in prison unless the
lawmaker has clearly said they should.” H.
Friendly, Mr. Justice Frankfurter and the Read-
ing of Statutes, in Benchmarks 196, 209 (1967).

Again referring to this Court’s decision in Bouie v.
City of Columbia, supra, this Court stated:

There can be no doubt that a deprivation of the
right of fair warning can result not only from
vague statutory language but also from an unfor-
seeable and retroactive judicial expansion of nar-
row and precise statutory language. As the court
recognized in Pierce v. United States, 314 U.S.
306, 62 S.Ct. 237: ** judicial enlargement of a crim-
imal act by interpretation is at war with a funda-
mental concept of the common law that crimes
must be defined with appropriate definiteness.”’
Kven where vague statutes are concerned, it has
been pointed out that the vice in such an enact-
ment cannot ‘be cured in a given case by a eon-
struction in that very ease placing valid limits on
the statute,’ for

the objection of vagueness is twofold: inade-
quate guidance to the individual whose con-
duct is regulated and inadequate guidance to
the triers of fact. The former objection could
not be cured retrospectively by a ruling either
of the trial court or the appellate court, though
it might be cured for the future by an au-
thoritative judicial gloss. * * * ‘‘Freund, The
Supreme Court and Civil Liberties, 4 Vand,
LL.Rev. 533, 541 (1951).”

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15

In English v. Miller, 341 F.Supp. 714 (1972), the
Court, citing this Court’s decision in Connally v. Gen-
eral Construction Company, supra, stated :

This principle, which goverus the constitutionality
of alleged vague and overbroad statutes, was ar-
ticulated by Mr. Justice Sutherland in an opinion
of the United States Supreme Court in the case
of Connally v. General Const. Co., 269 U.S. 385,
46 S.Ct. 126. The principle there enunciated ex-
pressly states that a crime and the elements con-
stituting it, must be so clearly expressed that the
ordinary person can intelligently choose in ad-
vance what course is‘lawful for him to pursue.
The peril of loss of liberty under our constitu-
tion may not depend on speculation as to the mean-
ing of a penal statute. A statute which denies no-
tice of the prohibited conduct because it would be
irrational to take such notice is violative of due
process of law. See Parker v. Morgan, 322 F.Sup.
5985 (N.I).N.C. 1971).

One of the earmarks and vices of vague statutes is
that they result in discriminatory enforcement. This
arises out of the confusion of construction and inter-
pretation that vague statutes beget. In the instant case
we have the anomalous situated created whereby the
Petitioner’s conviction would be set aside if he lived
in the Second Cireuit, which has construed the New
York commercial bribery statute, Section 180 of the
New York Penal Code, as not to be bribery within the
meaning of the Travel Act, whereas the Petitioner
and all other citizens in the Fourth Circuit are subject
to prosecution under the Travel Act, where the New
York commercial bribery statute is deemed sufficient
to invoke the jurisdiction of the Travel Act. The United
States Attorney for the Southern District of New
York, in obedience to United States v. Brecht, supra,

16

has abandoned all prosecutions of the Travel Act,
where the underlying unlawful activity is the commer-
cial bribery statute of New York, Section 180 of the
New York Penal Code. Thus, it is Petitioner’s conten-
tion that even if this court were to adopt the expan-
sive construction announced by the Fourth Cireuit in
United States vy. Piluso, supra, and reject the more
restrictive construction of the statute announced by
the United States Court of Appeals for the Second
Cireuit in United States v. Brecht, the court would
nonetheless be required to set aside the convietion be-
cause it lacks due process of law under Marks vy.
United States, supra, Bouie vy. City of Columbia, supra,
and MeBoyle vy, United States, supra

We think the language of this Court in United
States vy. Cardiff, 344 U.S. 189, 78 S.Ct. Rep. 189, is di-
rectly applicable to the instant petition. The Court
stated:

** * The alternative construction pressed on us
Is equally treacherous because it gives conflicting
commands, It makes inspection dependent on con-
sent and makes refusal to allow inspection a
crime, TLowever we read § 301(f) we think it is
not fair warning, ef. United States v. Weitzel, 246
U.S. 533, 38 S.Ct. 381, 62 L.Ed. 872: MeBoyle v.
United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed.
816, to the factory manager that if he fails to give
consent, he is a criminal. The vice of vagueness
in criminal statutes is the treachery they conceal
cither in determining what persons are included
or what acts are prohibited. Words which are
vague and fluid, ev. United States v. L. Cohen
Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed.
516, may be as much of a trap for the innocent as
the ancient laws of Caligula. We cannot sanction
taking a man by the heels for refusing to grant

PT Cad thd ta ae

17

the permission which this Act on its face appar-
ently gave him the right to withhold. That would
be making an act criminal without fair and effec-
tive notice. Cf. Herndon v. Lowry, 301 U.S, 242
57 S.Ct. 732, 81 L.Ed. 1066.

While the Petitioner has served what we believe to
be an unconstitutional sentence, the matter is not a
moot one to the Petitioner. As a citizen he suffers all
of the collateral consequences flowing to him as a re-
sult of the conviction. This conviction represents the
only final conviction that resulted from the prolonged
investigation of the Petitioner. He thus has full stand-
ing to attack the constitutionality of his conviction.
See Sibron v. New York, 392 U.S. 40 pp. 58-57 (1968) ;
Street v. New York, 394 U.S. 576 (1969) and Caragas
v. La Valle, 391 U.S. 234 (1968).

In fact, the Petitioner is about to suffer additional
loss of rights unless this court resolves this issue. The
New York Court of Appeals, recently in the case of
Matter of Chew, 42 N.Y.2d 490, 398 N.Y.2d 1001
(1977) has announced that all lawyers who are con-
victed of a federal felony are subjected to automatic
disbarment without a hearing. In this conviction, under
Title 18, Section 1952, the underlying unlawful activity
is two misdemeanors, Section 180 of the New York
Penal Code, and Section 215 of Title 18 U.S.C. There-
fore, unless this court corrects the unconstitutional
judgment that has been entered against the Petitioner,
in addition to all the prejudice he has suffered to date,
including incarceration, this expansive interpretation
of the Travel Act will have escalated two misdemeanors
into a federal felony that will result in the automatic
disbarment of the Petitioner, without a hearing.

18

II

The Court Should At This Time Resolve The Continuing Conflict
Between The Second Circuit In United States v. Brecht, Supra,
And The Fourth Circuit In United States v. Piluso, Supra, Not
Only Because It Has Resulted In Uneven And Discriminatory
Enforcement Of A Major Criminal Act But This Continuing Con-
flict Has Even Recently Manifested Itself In An Extradition Hear-
ing On The Same Issue In Dispute Between The Second And
Fourth Circuits.

The eontinuing conflict over the property construe-
tion of a major criminal statute, Title 18, Section 1952,
argues persuasively for the original vote of Mr. Jus-
tice when he recorded his vote to grant certiorari,
United States vy. Piluso, cert. denied 423 U.S. 874
(1975). In any event, this court has often stated that
a denial of certiorari does not imply an expression of
agreement with respect to the merits of the ease,
United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277.

Of course, it is the Petitioner’s contention that the
subsequent decision of the United States Court of Ap-
peals for Second Cireuit in United States v. Brecht,
supra, is the correct interpretation of the statute and
correctly interprets this court’s ruling in United
States v. Nardello, supra. Unfortunately the Solicitor
(General chose not to seek certiorari from the adverse
decision in United States v. Brecht, supra, and so this
court, at that time, was denied the opportunity of re-
solving this continuing conflict. If this Court agreed
with the reasoning of the Second Cireuit petitioners
conviction, the court would have to be set aside and
would not have to resolve the first point in this pe-
tion.

The language of the United States Court of Ap-
peals for the Second Circuit in United States v. Brecht,

19

supra, illustrates the widespread disagreement among
appellate panels and district courts as to whether
commercial bribery is unlawful activity within the
meaning of the Travel Act. The Second Circuit stated:

The district judges in this circuit have been
sharply divided on this issue. See United States
v. Niedelman. 356 F.Supp. 979, 981 (S.D.N.Y.
1973) (Knapp, J.). The Fourth Cireuit has re-
jected appellant’s contention, United States v.
Pomponio, 511 F.2d 953 (4 Cir.), cert. denied,
423 U.S. 874 (1975), reversing Judge Bryan who
agreed with Judge Knapp. We respectfully dis-
agree with the Fourt Circuit.’

As the Supreme Court has noted, [‘‘b]ribery has
traditionally focused upon corrupt activities by
publie officials.”’ United States v. Nardello, 393
U.S. 286, 293 N.11 (1969).

3. We agree with Judge Albert V. Bryan who
had arrested judgment in the Pomponio case
and with Judge Whitman Knapp in United
States v. Niedelman, supra. As our discussion
will show, we draw from United States v. Nar-
dello, 393 U.S. 286 (1969), a conclusion dif-
ferent from the Fourth Circuit

In referring to this Court’s decision in Rewis Vv.
United States, 401 U.S. 808 (1971), the Court stated:

We must determine whether Congress intended to
embrace commercial bribery within the scope of
a statute which, as is clear from its legislative his-
tory, was enacted for the purpose of punishing In-
terstate travel in aid of racketeering enterprises
engaged in by organized crime. As Mr. Justice
Marshall stated for a unanimous Court in Rewis
v. United States, 401 U.S. 808 (1971), a case which
gave a restrictive interpretation to the Travel
Act, the ‘‘[l]egislative history of the Act is limited

20

but does reveal that § 1952 was aimed primarily
at organized crime and, more specifically, at per-
sons who reside in one State while operating or
oo illegal activities located in another.’’
401 U.S. at 811.

The Court in Rewis eautioned that ‘‘ an excessive
Travel Act would alter sensitive fedéral state re-
lationships, could overextend limited federal po-
lice resources, and... would transform relatively
minor state offenses into federal felonies.” 401
nee at 812. Later the same year, in United States
Bass, 404 U.S. 336, 349 (1971), the Court again
sivenaed that ‘unless Congress conveys its pur-
pose clearly, it will not be deemed to have signifi-
cantly changed the federal-state balance.”’

To show the extent to which this continuing conflict
in the interpretation of the Travel Act has transcended
the normal prosecutions under the Travel Act, it has
even asserted itself in a recent extradition hearing in
Freedman v. United States, 437 F.Supp. 1252 (1977).
In that case the district court was faced with the ques-
tion as Lo whether to honor the extradition treaty from
Canada for an individual charged under Canadian law
with fraud with underpinnings of commercial bribery
at the core of the charge. The court went into an ex-
tended discussion over the conflict between the Second
and Fourth Cireuit opinions in United States v. Brecht,
supra, and United States v. Piluso, as to whether a
criminal charge existed under the Travel Act, Title
18, Section 1952.; if so, this would have justified extra-
dition under the treaty with Canada. After an exhaus-
tive discussion of the conflicting interpretations of this
court’s ruling in United States v. Nardello, supra, the
court concluded not to extradite on this basis because
of lack of comparability between the laws of Canada
and Georgia vis-a-vis commercial bribery.

21

The Petitioner did ask the United States Court of
Appeals for the Fourth Circuit to certify two ques-
tions to this court so that the matter could be finally
resolved. These questions are reflected at page — in
the statement of the case and in the opinion of the
Court of Appeals (Pet. Ap. ) Court, which again
noted this court’s prior denials of certiorari.

In the event this court concludes that Section 180 of
the New York Penal Code does not constitute unlaw-
fuleactivity within the meaning of the Travel Act but
does find that Section 215 of Title 18 could be the basis
of jurisdiction under the Travel Act, the court would
still be required to set aside the conviction because,
under Leary v. United States, 393 U.S. 631, 89 S.Ct.
532, this court stated:

It has long been settled that when a case is sub-
mitted to a jury on alternative theories the un-
constitutionality of any of the theories requires
the conviction be set aside. See Stromberg v. Cali-
fornia, 283 U.S. 359, 51 S.Ct. 632. See also, Mills
vy. United States, 164 U.S. 644, 17 S.Ct. 210, Nicola
v. United States, 72 F.2d 787 (8rd Cir. 1934),
Yates v. United States, 354 U.S. 298, 312 (1957)
and United States v. Johns, 444 F.2d 58.

Since a general verdict was returned in this case
and it was submitted to the jury on two theories, the
unconstitutionality of either of the theories would re-
quire the Judgment to be set aside. We do submit,
however, that it is crystal clear trom the legislative
history of Title 18, Section 215 USC, that it also can-
not constitute the unlawful activity necessary for a
prosecution under the Travel Act.

22

CONCLUSION

For the reasons stated herein, a writ of certiorari
should issue to review the judgment and opinion of
the Court of Appeals for the Fourth Circuit.

Respectfully submitted,
ALBERT J. AHERN, JR.

0205 Leesburg Pike
Bailey’s Crossroads, Virginia

APPENDIX

la

Unrrep States Court or APPEALS

FOR THE FOURTH CIRCUIT

No. 77-2581

UNPUBLISHED
Unitep Stares or America, Appellee,
We
Cuarues J. Pituso, Appellant,
and

Louis J. Pomponto, Jr., Paut Pomponto, Peter Pomponto,
Defendants.

No. 78-6066

Unirep States or America, Appellee,
v.

Louis J. Pomponio, Jr., Appellant

Appeals from the United States District Court for the
Eastern District of Virginia, at Alexandria. Oren R. Lewis,
Senior District Judge.

Argued May 2, 1978 Decided June 28, 1978

Before Russeii, Circuit Judge; Fretp; Senior Circuit
Judge, and Wipener, Circuit Judge.

2a

Michael L. Hertzberg; Albert J. Ahern for Appellants;
Robert F. MeDermott, Jr., Assistant United States
Attorney (William B. Cummings, United States At-
torney and Frank W. Dunham, Jr., Assistant United
States Attorney, on brief) for Appellees.

Per Curtam:

Louis J. Pomponio, Jr., and Charles J. Piluso have ap-
pealed from orders of the district court denying their re-
spective motions filed pursuant to 28 U.S.C. § 2255 to vaeate
their convictions under the Travel Act, 18 U.S.C. 1952.

The appellants, together with Peter Pomponio and Paul
Pomponio, were charged in an indictment with violating
and conspiracy to violate the Travel Act. The indictment
tracked the language of the statute, charging the defend-
ants with traveling from the State of Virginia to the State
of New York with the intent to promote and carry on an
unlawful activity. The unlawful activity was specified as
the crime of bribery in violation of Section 180 of the New
York Penal Code as well as 18 U.S.C. § 215. The defendants
filed a motion to dismiss the indictment on the ground that
neither the New York statute nor the section of the federal
code constituted an ‘‘unlawful aetivity’’ within the purview
of Seetion 1952. The dismissal motion was denied and the
case proceeded to trial against all of the defendants except
Louis J. Pomponio, Jr., who had been hospitalized because
of illness. Thereafter, the court granted a motion for judg-
ment of aequittal of Peter Pomponio and the jury returned
a verdict of not guilty with respect to Paul Pomponio.
(‘harles J. Piluso was found guilty and appealed his con-
viction to this court. Louis J. Pomponio, Jr., was later
brought to trial and found guilty by the jury. The district
judge who tried the case, however, granted Pomponio’s
post-trial motion in arrest of judgment, holding that neither
the federal nor the state statute specified in the indictment
was an ‘‘unlawful activity’? under 18 U.S.C. § 1952. The
Government appealed this action of the district court.

¢+

3a

The appeals were consolidated and by opinion filed on
February 7, 1975,' Piluso’s conviction was affirmed, while
the order of the district court granting Pomponio’s motion
in arrest of judgment was reversed. In the course of our
opinion we held that the word ‘‘bribery’’ as used in the
Travel Act was broad enough to embrace commercial
bribery under Section 180 of the New York Penal Law, but
some months later the Second Circuit reached a contrary
conclusion in United States v. Brecht, 540 F.2d 45 (1976).
Not unexpectedly, when Louis J. Pomponio, Jr. again came
to us upon his direct appeal from his conviction, he urged
us to accept the position of the Second Circuit, but we de-
clined to do so, stating that we were willing to ‘‘rest upon
our prior decision.’’ United States v. Pomponio, No. 75-
2287 (November 19, 1976).

In January of 1977 Pomponio petitioned the Supreme
Court for certiorari, contending, inter alia, that his case
presented a clear and unequivocal conflict between two
courts of appeal on the question of statutory construction.
Certiorari was denied, 430 U.S. 966 (1977), and rehearing
denied, 431 U.S. 934 (1977).

In their post-conviction motions the appellants primarily
contend that the conflict between us and the Second Circuit,
together with the a»plication of our construction of the
statute in 1975 to conduct which occurred in 1970 and 1971,
deprived them of due process under Marks v. United States,
430 U.S. 188 (1977), and Bouie yv. City of Columbia, 378
U.S. 347 (1964). In our opinion, however, the mere existence

‘United States v. Pomponio, 511 F.2d 953, cert. denied, 423
U.S. 874 (1975).

4a

of a conflict between two circuits with respect to the con-
struction of a criminal statute is insufficient to bring these
cases within the rationale of Marks and Bouie. Perceiving
no merit in the arguments advanced by the appellants, the
judgments of the district court are affirmed.’

AFFIRMED

”~

* The appellant Piluso has requested that pursuant to 28 U.S.C.
§ 1254(3) we eertify to the Supreme Court of the United States
two questions:
1. Does an indictment charge a valid federal offense under the
Travel Act, Title 18, Section 1952, when the unlawful activity
upon which the jurisdiction is predicated is commercial bribery
under Seetion 180 of the New York Penal Code?

2. Does an indictment charge a valid federal offense under the
Travel Act, Title 18, Seetion 1952, when the unlawful activity
upon which the jurisdiction is predicated is a violation of Title
18, Section 215 of the United States Code?

lor the reason, among others, that the Supreme Court has denied
certiorari in the direct appeals of both of the appellants, we decline
the petition for certification.

ee ee

da

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 77-2581
Filed July 21, 1976
Unitep States or America, Appellee,
Ve

CnHarues J. Prtuso, Appellant,
and

Louts J. Pomponio, Jr., Pau Pomponto, Perer Pomponto,
Defendants.

NO. 78-6066
Unirep States or America, Appellee,

Vs

Louis J. Pomponio, Jr., Appellant,
and

Cuaries J. Prtuso, Pau Pomponio, Peter Pomponio,
Defendants.

—

Appeals from the United States District Court for the
Kastern District of Virginia, at Alexandria. Oren R. Lewis,
District Judge.

Upon consideration of the petition for rehearing and/or
amplification of the court’s opinion filed on behalf of
Charles J. Piluso, by counsel.

6a

Irv Is Orverep that the petition for rehearing and/or am-
plification of the court’s opinion filed on behalf of Charles
J. Piluso is denied.

Entered at the direction of Judge Field for a panel con-
sisting of Judge Field, Judge Russell and Judge Widener.
For tHe Court,

/s/ Wiuutam K. State, II
CLERK

A True Copy, Teste:
William K. Slate, [L1, Clerk

By Emity Ruecer
Deputy Clerk

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1554%3A1. Public record. Not legal advice.