Opposition — Fatico v. United States

~*~ Supreme Court, U. & -

FILED

No. 78-837 JAN 26 1979

“MICHAEL RODAK, JR., CLERK

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

DANIEL FATICO, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. McCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

CHARLES JEROME WARE

Attorney

Department of Justice

Washington, D.C. 20530

In the Suprenwe Court of the United States

OCTOBER TERM, 1978

No. 78-837

DANIEL FATICO, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The court of appeals affirmed without written

opinion (Pet. App. la-2a).

JURISDICTION

The judgment of the court of appeals was entered

on October 24, 1978. The petition for a writ of

certiorari was filed on November 22, 1978. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

2

QUESTIONS PRESENTED

1, Whether the district court correctly ruled that,

in the circumstances of this case, the government

was not required to disclose the name of an under-

cover FBI agent.

2. Whether the district court erred in refusing to

instruct the jury that it could draw an adverse in-

ference from the government’s failure to produce the

unidentified FBI agent.

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of New York, peti-

tioners were convicted of having conducted an illegal

gambling business in violation of 18 U.S.C. 1955 and

2. The court of appeals affirmed (Pet. App. la-2a).

The evidence at trial established that as a result of

an investigation conducted by the FBI from about

mid-September 1975 through December 12, 1975, it

was discovered that petitioners and a number of other

individuals managed and operated an illegal gambling

business on the second floor of 5002 Church Avenue,

‘ Petitioner Fatico was sentenced to a three-year term of

imprisonment. Petitioners Corozzo, Dellaratta, and Reese each

received two-year suspended sentences and two years proba-

tion, of which six months are to be spent at a community

treatment center. Petitioner Scida was sentenced to a two-

year term, four months to be served in jail and the remainder

on probation. Petitioner DeMaria received a three-year pro-

bationary sentence, nine months of which is to be served in a

community treatment program. All six petitioners were ac-

quitted of a related conspiracy charge (18 U.S.C. 371).

8

Brooklyn, New York. FBI Special Agent Paul Brana,

operating in an undercover capacity, gained access to

the gambling premises on six occasions during the

latter part of 1975 (Tr. 34).* On the first three of

these occasions he was introduced into the premises

by another undercover FBI agent (Tr. 82-85).

On each of these six occasions, Agent Brana ob-

served a large sophisticated gambling operation in

progress. The gambling area was located behind two

heavy locked doors and was guarded by a number of

lookouts and doormen (Tr. 35-37). Operating under

the guise of the Churchonian Social Club, the high-

stakes dice game operated by petitioners and others

attracted as many as 35 players per night (Tr. 39).

The game was attended by gamblers from other

boroughs of New York City and from New Jersey

(Tr. 242, 297-298). The amount gambled on the

average roll of the dice was two to four thousand

dollars, and Brana observed as much as $15,000

gambled on a single roll (Tr. 47). Based upon these

and other figures, an FBI agent who was qualified as

an expert witness testified that in his opinion this

gambling operation was a large and substantial one

(Tr. 253-254).

The dice game, which was conducted on a specially

marked table, was usually operated by two dealers,

who paid and collected on the bets placed by the

players (Tr. 45). The dealers were assisted by

“stickmen,” whose function was to collect the dice

2“Tr” refers to the trial transcript. “S.Tr.” refers to the

transcript of the sentencing proceedings, June 9, 1978.

4

after each throw and to keep the dice moving around

the table from one player to the next (ibid.). Agent

Brana observed petitioner Fatico working as a dealer

on all six nights; Corozzo worked on four of those

nights as a Jealer, stickman and ladderman;* De-

Maria was seen on four nights—three as a dealer

and once as a stickman; Reese worked as a cashier on

all six nights; Dellaratta was seen twice, once as a

dealer and once as a stickman; and Scida was ob-

served on five of those six nights working as a stick-

man (Tr. 49-53). Brana never observed any of the

defendants participate in the game as a player or

gambler (Tr. 54).

On December 11, 1975, a United States magistrate

issued search warrants for the above-mentioned

premises as well as for the persons of petitioners

Fatico, Corozzo, DeMaria, and Reese. The search war-

rant affidavit of FBI Agent Nalley was based on the

observations made by agents during the surveillance

of the premises as well as information obtained from

two confidential informants. FBI agents executed

the search warrants on December 12, 1975; they

were able to do so only after breaking two heavy

protective doors with a battering ram (Tr. 202-204).

The agents found approximately 40 people present

* The function of the “stickman,” as mentioned, was to col-

lect the dice after each throw and to keep the dice moving

from one player to the next. The “ladderman” observed the

conduct of the game from elevated platforms located at either

end of the rectangular gambling table. The cashier sat at a

side table with a cash box from which he cashed in gambling

chips for players (Tr. 45-46).

5

in the gambling premises (Tr. 155). Among th

gambling paraphernalia seized were quantities of

gambling chips, dice, a metal cash box, a red warn-

ing light and the gambling table (Tr. 220-224).

Furthermore, approximately $1,000 in cash was found

on the person of petitioner Corozzo (Tr. 204), about

$3,000 in cash was found on petitioner Fatico (Tr.

214), and the search of petitioner Reese produced

about $8,000 (Tr. 218).

ARGUMENT

1. Special Agent Brana was introduced into the

gambling operation by another undercover FBI agent

who had earlier gained entry with the assistance of a

confidential informant. Because of the close asso-

ciation between them, the government feared the

revelation of the undercover agent’s identity would

necessarily expose the informant; it therefore objected

to defense efforts at trial to compel disclosure.* The

district court agreed that, under the circumstances

here, the government was privileged to withhold the

agent’s identity (Tr. 70-71, 127-133, 276; S.Tr. 18-

20). This ruling was correct and involves no issue

meriting review by this Court.

* Although petitioners assert (Pet. 4) that the government

initially represented that a confidential informant had intro-

duced Agent Brana into the gambling premises, actually the

ground for objection was that disclosure might endanger a

confidential informant (Tr. 70-71). The factual situation was

subsequently clarified (Tr. 180-131). The informant privilege

encompasses a government agent acting in an undercover

capacity. United States v. Wright, 468 F.2d 1184, 1187 (6th

Cir.), cert. denied, 412 U.S. 938 (1972).

a

a

6

Roviaro v. United States, 353 U.S. 58, 59 (1957),

recognizes a governmental privilege not to reveal the

identity of active informants who give it information

concerning violations of the law. At the same time,

however, the Court recognized in Roviaro that

“where the disclosure of an informer’s identity, or

of the contents of his communication, is relevant and

helpful to the defense of an accused, or is essential to

a fair determination of a cause, the privilege must

give way” (id. at 60-61; footnote omitted). On the

facts of Roviaro, the balance between “the public in-

terest in protecting the flow of information against

the individual’s right to prepare his defense” fell on

the side of disclosure. Id. at 62.

This, however, is not a case like Roviaro, where

the “ ‘informer was the sole participant, other than

the accused, in the transaction charged,’” or where

his testimony “ ‘might have disclosed an entrapment’ ”

or have relevance on the issue of “identity.” McCray

v. Illinois, 386 U.S. 300, 310-311 (1967). Petitioners

merely hoped that the informant and the other FBI

agent would impeach the testifying agent on a col-

lateral point, concerning who introduced him to the

illegal gambling operation in the first place. Petition-

ers do not claim that the undisclosed witness could

have testified with respect to their acts. Petitioners

had many other criminal avenues of cross-examina-

tion and rebuttal to challenge Agent Brana’s credi-

bility or other elements of the prosecution’s case.

The Roviaro test requires that the “determination

as to whether identification of an informer is neces-

T

sary for a fair disposition of a defendant’s case * * *

[be] left to the trial court’s informed discretion.”

United States v. Van Orsdell, 521 F.2d 1323, 1826 (2d

Cir. 1975), cert. denied, 423 U.S. 1059 (1976) ; United

States v. Soles, 482 F.2d 105, 109 (2d Cir.), cert.

denied, 414 U.S. 1027 (1978). In this case, the dis-

trict court’s determination not to require disclosure

of the FBI agent’s identity was a proper exercise of

that discretion based upon the facts and circumstances

presented. As the court stated during the sentencing

proceeding, “[i]f there was any sense of unfairness,

I would stop it, but I didn’t feel in the exercise of my

discretion that you were really placed at any substan-

tial disadvantage” (S.Tr. 18-19).

2. Petitioners argue (Pet. 9-10) that the district

court erred in refusing to instruct the jury that it

could draw an inference that the testimony of the

undisclosed and uncalled FBI agent would have been

unfavorable to the government. Since the trial court

appropriately determined that there was good cause

for not disclosing the undercover agent’s identity in

order to protect an informant, there was no basis for

a missing-witness cherge. This is not a case of an

unexplained failure to produce a material witness

within the government’s control. There was an ex-

planation for not producing the witness, an explana-

tion the court accepted as compelling. It has been

consistently ruled in cases involving informants that,

because there is good cause for non-disclosure, no

“adverse inference” instruction is warranted. See,

e.g., Burgess v. United States, 440 F.2d 226 (D.C.

'

’

»

Pare Se eS <<

8

Cir. 1970); United States v. Peterson, 424 F.2d 1357

(7th Cir.), cert. denied, 400 U.S. 958 (1970).

The instruction that the court did give, both during

Agent Brana’s testimony and in the final charge to

the jury, was free of error. During the testimony

and instructions, the court advised the jury that the

government’s assertion of privilege had placed the

defense at a disadvantage (Tr. 71, 134, 376). Al-

though petitioners now complain that such remarks

compound the supposed error, they never voiced such

an objection below; in fact, defense counsel expressed

satisfaction with these comments (Tr. 71). Further-

more, defense counsel was allowed to comment freely

during summation on the fact that the undercover

agent and the informant were not called as govern-

men* witnesses (Tr. 321-322).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WADE H. McCRrEE, Jr.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

CHARLES JEROME WARE

Attorney

JANUARY 1979

ov. 8. GOvERNMENT Painting orrice; 1979 265466 2869