Opposition — Piluso v. United States

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No. 78-279 | Q9CT 80 1978

MIQHAEL RBDAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1978

CHARLES J. PILUSO, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

JEROME M. FEIT

PATTY ELLEN MERKAMP

Attorneys

Department of Justice

Washington, D.C. 20530

In the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-279

CHARLES J. PILUSO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1la-

4a) is not reported. Its earlier opinion on direct ap-

peal is reported at 511 F.2d 953.

JURISDICTION

The judgment of the court of appeals (Pet. App.

la-4a) was entered on June 28, 1978, and a peti-

(1)

tion for rehearing (Pet. App. 5a) was denied on

July 21, 1971. The petition for a writ of certiorari

was filed on August 18, 1978. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether travel in interstate commerce with in-

tent to bribe an officer of a federally-insured bank,

and bribery of that officer, constitutes a violation of

the Travel Act, 18 U.S.C. 1952.

2. Whether the Travel Act is unconstitutionally

vague because the court below and the Second Cir-

cuit differ as to the interpretation of the term “brib-

ery” appearing in the Act.

STATEMENT

In 1974 petitioner was convicted by a jury in the

United States District Court for the Eastern District

of Virginia on one count of conspiracy, 18 U.S.C.

371, and two substantive counts of violating the

Travel Act, 18 U.S.C. 1952, for travelling from Vir-

ginia to New York with the intent to bribe an of-

ficer of a federally-insured bank in violation of 18

U.S.C. 215 and New York Penal Law § 180.00 (Mc-

Kinney 1975). He was sentenced to concurrent terms

of two years’ imprisonment. The court of appeals

affirmed, 511 F.2d 953, and this Court denied certio-

rari, 423 U.S. 874. The district court thereafter de-

nied petitioner’s motion to vacate his conviction pur-

suant to 28 U.S.C. 2255,’ and the court of appeals

again affirmed (Pet. App. la-4a).

The facts are not disputed. Petitioner and his co-

defendant Louis Pomponio were in the business of

building and operating office and apartment buildings

in Northern Virginia and the District of Columbia.

Beginning in 1965 and continuing into 1972, their

organization obtained construction loans in excess of

$93 million through the Royal National Bank in New

York City. During this time span, petitioner and Pom-

ponio gave the senior vice-president of the bank,

Sidney Zneimer, cash and gifts (including two auto-

mobiles) worth more than $320,000. In return for

these payments, Zneimer helped them obtain con-

struction loans, authorized advances that were not

based upon the approval of bank inspectors, and ap-

proved substantial overdrafts on accounts maintained

by their organization. Petitioner, an attorney, estab-

lished a corporation, Real Equity Consultants, to re-

ceive the payments for Zneimer and thereby to con-

ceal them (Tr. 280-287, 293, 373-374, 494-496).

ARGUMENT

1. In this collateral attack on his convictions, peti-

tioner contends (Pet. 9-17) that commercial bribery

is not an “unlawful activity” prohibited by the Travel

Act and asks this Court to grant certiorari to re-

view the purported conflict in interpreting the Act

1 Petitioner was on parole at the time this motion was filed.

He has now completed his sentence.

between the Fourth Circuit here and the Second Cir-

cuit in United States v. Brecht, 540 F.2d 45 (1976).

Petitioner’s arguments are essentially the same as

those raised in his prior petition for certiorari, which

this Court denied (423 U.S. 874) before Brecht was

decided by the Second Circuit. The purported con-

flict between the Second and Fourth Circuits was,

however, previously raised in this Court by petition-

er’s co-defendant, Louis Pomponio, and certiorari was

again denied (430 U.S. 966). Nothing has happened

since the denial of certiorari in Pomponio that justi-

fies review at the present time in connection with

petitioner’s collateral attack on the convictions based

on his and Pomponio’s bribery activities.

This case does not present a genuine conflict with

United States v. Brecht, supra. The reversed con-

viction in Brecht was based solely on the New York

commercial bribery statute, which the Second Cir-

cuit concluded was not within the term “bribery”

used in Section 1952(b). Petitioner’s conviction, on

the other hand, was also a result of his violations of

the federal bribery statute, 18 U.S.C. 215. Under

that provision it is a crime for an officer, director,

or employee of a federally insured bank, except as

provided by law, to receive any “fee, commission,

gift, or thing of value” from any person in exchange

for procuring or attempting to procure a loan.

Zneimer was an Officer of a federally insured bank

and personally received in his New York office more

than $320,000 from petitioner and his co-conspirators.

Zneimer subsequently pleaded guilty to a federal in-

dictment in connection with those payments.

Petitioner and his co-conspirators thus made pay-

ments whose receipt by Zniemer violated 18 U.S.C.

215, whether or not the New York commercial brib-

ery law was violated by the payments. By aiding

and abetting Zneimer’s offense, they were guilty as

principals. Travel in interstate commerce to make

those payments was thus in every sense travel to

“promote, manage, establish, carry on” or to “facili-

tate the promotion” of bribery “in violation of the

laws of * * * the United States.”* This basis for

conviction was not involved in Brecht, which refused

to apply the Travel Act to a course of conduct that

the court regarded as being in the category of “rela-

tively minor state offenses” that would not justify “a

substantial extension of federal police resources.” 540

F.2d at 49. It thus cannot be said that the Second

Circuit would have reversed petitioner’s convictions

under the Travel Act.

Petitioner’s argument that violations of 18 U.S.C.

215 are not covered by the Travel Act (Pet. 21)

2Each count of the indictment charged petitioner with

travel with intent to promote bribery in violation of both

18 U.S.C. 215 and New York law. See 511 F.2d 955. The evi-

dence could not reasonably be viewed as showing a violation

of the New York statute but not the federal. Either the money

paid to Zneimer was an improper payment to procure com-

mercial loans or it was not. The jury found that it was. This

case is thus unlike Leary v. United States, 395 U.S. 6, 31-32

(1969), where different evidence underlay the separate

grounds for conviction.

fares no better. Petitioner can draw no support for

this contention from Brecht, which did not involve

Section 215, and petitioner cites no authority for his

construction of the statute. Since Congress, by the

enactment of Section 215 has prohibited the accept-

ance of a bribe by an officer of a federally-insured

bank, it is most reasonable to conclude that it in-

tended to include such bribes in the Travel Act’s

proscription of interstate travel to facilitate the pro-

motion of “bribery * * * in violation of the laws * * *

of the United States.” The term bribery is prop-

erly given its “generic” meaning, and is not subject

to strict “common law” limitations that would con-

fine it to corrupt conduct involving government of-

ficials. See United States v. Nardello, 393 U.S. 286,

292-296 (1969): “The language of the Travel Act

* * * includes private persons as well as public of-

ficials.” See also United States v. Perrin, 580 F.2d

730, 733-734 (5th Cir. 1978).

2. Petitioner also argues (Pet. 10-15) that the

Travel Act is unconstitutionally vague, relying upon

Brecht’s holding that commercial bribery forbidden

by state law is beyond the scope of the Act. Peti-

tioner asserts (Pet. 10) that there was no precedent

in 1971 that “remotely suggested” that his conduct

could be deemed a violation of the Travel Act. But

the literal text of the statute, as noted above, applied

directly to petitioner’s facilitation of the bribery of

an officer of a federally insured bank, and any per-

son engaged in a scheme to corrupt such an officer

could be under no illusions as to the innocence of his

conduct. See also United States v. Culbert, No. 77-

142 (March 28, 1978), slip op. 8-9. Moreover, this

Court’s decision in United States vy. Nardello, supra,

393 U.S. at 293-296, confirmed as early as 1969 that

the Travel Act would not be given “an unnaturally

narrow reading” of the kind that petitioner advo-

cates here.’ The decision in the Brecht case, of course,

was not handed down until after petitioner had vio-

lated the Travel Act and could not have misled him

into thinking that his conduct was beyond federal

regulation

3. The gist of petitioner’s argument is that the

Fourth Circuit’s interpretation of the Travel Act

was erroneous. There is no warrant for permitting

petitioner to continue to litigate this question, which

was raised and decided adversely to him on direct

appeal, and which this Court declined to review by

certiorari. There has been no “change in the law”

in the Circuit where petitioner was convicted, as in

Davis v. United States, 417 U.S. 333 (1974); see

also id. at 361 (Rehnquist, J., dissenting). The dif-

fering approach of the Second Circuit to the applica-

* As this Court pointed out in Rose v. Locke, 423 U.S. 48,

50 (1975): “All the Due Process Clause requires is that the

law give sufficient warning that men may conduct themselves

so as to avoid that which is forbidden.” Had petitioner con-

sulted the law before acting, he surely would have had “fair

warning” that his conduct was illegal. Marks v. United States,

430 U.S. 188 (1977), and Bouie v. City of Columbia, 378 U.S.

347 (1964), do not assist petitioner. Those cases merely dis-

approve retroactive applications of the law that cannot be

forseen at the time of the alleged offense.

tion of the Travel Act to state law offenses has not

resulted in a “complete miscarriage of justice” and

does not present “exceptional circumstances that jus-

tify collateral relief.” 417 U.S. at 346-347; see also

Stone v. Powell, 428 U.S. 465, 477 n.10 (1976).

Petitioner has already served his sentence, his parole

term having expired. The possibility that an attorney

who has engaged in a massive and obviously illegal

bribery scheme may be subject to disbarment in New

York does not constitute a miscarriage of justice

necessitating review by this Court in a collateral

proceeding.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.