Opposition — Mercurio v. United States

No. 79-189

In the Supreme Court of the United States

OCTOBER TERM, 1979

ANGELO JOSEPH MERCURIO, RICHARD FLORAMO,

PHILIP Vv. CORSO AND BURTON RHODES, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

WADE H. McCRreE®r, JR.

Solicitor General

PHitiep B. HEYMANN

Assistant Attorney General

WADE LIVINGSTON

Altorney

Department of Justice

Washington, D.C. 20530

INDEX “s

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CITATIONS

Cases:

Chimel v. California, 395 U.S. 752. ciccccccccccccceceeee 9

Rakas v. Illinois, 439 U.S. 128 coccccceccccccccccccceccceee 8

United States v. Bell, 573 F. 2d 1040 ............000.. 8

United States v. James, 590 F. 2d 575,

cert. denied, Nos. 78-1412, 78-6369,

78-6431 (June 4, 1979) wooo ee Seca 8

United States v. Lovasco, 431 U.S. -

WT Schelisbcnecnciuiidcidbath le A eR i or tae) 8

United States v. Petrozziello, 548

tg Ree ee a ee MO ns. 8

United States v. Robinson, 414 U.S.

TUM anh aiitninttidgnicealicieitabiecdaide ania Cea Ni ie a ce Ee es )

United States v. Stanchich, 550 F. 2d

LF eae LO STI IN NS EN ERLE Eat Neg MANES ca 8

United States v. Trowery, 542 F. 2d

623, cert. denied, 429 U.S. 1104 oo... cece 8

United States v. Watson, 423 U.S.

| NOWEU ncidesicdokcouuigeisceedbebecne tin iiianeni alii dacs cake au ain 9

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Statutes and rule:

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BO Rs FREED ccssnsvcoancakt

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I8 U.S.C. App. 1202(a)(1)

BD SP BOON: sisinssalnnaistas

BO Shean RROD dnscisteecsicoics

In the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-189

ANGELO JOSEPH MERCURIO, RICHARD FLORAMO,

PHILIP V. CORSO AND BURTON RHODES, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The court of appeals affirmed petitioners’ convictions

by unreported judgment orders (Pet. App. 33-40).

JURISDICTION

The judgment orders of the court of appeals were

entered on June II, 1979. The petition was filed on

August 4, 1979! and is therefore substantially out of time

under Rule 22(2) of the Rules of this Court. The

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

1254(1).

'Petitioners attempted to file an application for an extension of

time within which to file a petition for a writ of certiorari. The

application was returned to petitioners on July 20, 1979, because it

was filed out of time under Rule 34(2) of the Rules of this Court.

(1)

QUESTIONS PRESENTED

1. Whether there was sufficient evidence of petitioners’

participation in the conspiracy so that a co-conspirator’s

Statements were properly admitted into evidence.

2. Whether probable cause supported the arrests of

petitioners Corso and Floramo, thereby authorizing the

searches incident to their arrests.

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Pennsylvania,

petitioners were convicted of transporting counterfeit

securities in interstate commerce in violation of 18 U.S.C.

2314, of selling counterfeit securities in violation of 18

U.S.C. 2315, and of conspiracy to commit those offenses

in violation of 18 U.S.C. 371. Additionally, petitioner

Corso was convicted of possessing a firearm after

conviction of a felony, in violation of 18 U.S.C. App.

1202(aX(i), and of carrying a firearm while committing a

felony, in violation of 18 U.S.C. 924(c); petitioner

Floramo was also convicted of transporting a firearm

with an altered serial number, in violation of 18 U.S.C.

922(k), and of carrying a firearm while committing a

felony, in violation of 18 U.S.C. 924(c). Each petitioner

was sentenced to five years’ imprisonment on the

conspiracy count and to a consecutive ten-year term of

imprisonment on the counterfeit security count.2 The

court of appeals affirmed by judgment erders (Pet. App.

33-40).

|. The evidence is not in dispute. It shows that an

undercover FBI agent met with co-defendant Robert

Winston on July 26, 1977, near Pittsburgh, Pennsylvania,

?Petitioners Mercurio and Rhodes also received two concurrent

ten-year prison terms each. Petitioner Floramo received an additional

five-year concurrent term of imprisonment, and petitioner Corso

received an additional two-year concurrent term of imprisonment.

and discussed with him the possibility of purchasing

counterfeit securities (Tr. 33-34, 59-60).3 Winston told the

agent that he could deliver counterfeit securities and that

he would sell them for 30% of their face value (Tr. 104,

112, 136-147).

Winston ma the agent met again on August 26, 1977 in

Fort Lauderdale, Florida, to check sample securities (Tr.

166, 545). At this meeting, Winston recommended that

the agent purchase duplicate, rather than stolen, securities

because they were more difficult for authorities to trace

(Tr. 170-173).

Winston next met with the agent on August 30, 1977, in

Pittsburgh, where he told the agent that he had 28 million

dollars worth of duplicate securities (Tr. 174, 179, 181-

184). Winston showed the agent a blank income certificate

and a photocopy of an original income certificate of the

Putnam Income Fund (Tr. 213-216, 239-248). The agent

agreed to purchase the certificates (Tr. 254). Winston

stated that when he brought the securities to Pittsburgh,

he was going to bring an “army” with him (Tr. 183), and

he later stated that he would have four of his “buddies”

with him because he had to watch out for his “hoodlum

friends” (Tr. 185).

On September 6, 1977, Winston returned to Pittsburgh

and met with the agent to set up the sale of the securities

(Tr. 267-271, 546). On September 7, 1977, the agent took

Winston to a bank and showed him one million dollars in

cash in a safety deposit box (Tr. 279-281). On the

morning of September 8, Winston and petitioner Rhodes

rented safety deposit boxes at different banks (Tr. 663-

664, 985-998, 1359-1364). Winston had rented two rooms

“Tr.” refers to the transcript pages. The original record was not

available for the preparation of this opposition. Record references are

based on those supplied in the briefs filed in the court of appeals.

at the Hilton Hotel, Rooms 1205 and 1209 (Ir. 663-664).

After Winston and Rhodes returned to those rooms.

Winston contacted the agent and told him to come to the

hotel at 11:30 a.m. (Tr. 284).

When the undercover agent went to the hotel to meet

with Winston, several other agents began to look around

the hotel lobby to see if they could identify Winston's

bodyguards (Tr. 287, 295-296, 549). The agents first

noticed petitioner Mercurio because, as soon as he saw

them, he turned abruptly and looked into a display

window (Tr. 296, 550). The agents also noticed petitioner

Corso when he too turned abruptly as they passed (Tr.

297-298, 552). The agents also noticed a third individual

in a green jacket who turned suddenly to study a blank

wall as the agents approached (Tr. 300-301, 553-554). At

this point, the agents entered a restroom and broadcast

descriptions of the men they had noticed. When they left

the restroom they again saw the individual in the green

jacket who again avoided eye contact with the agents by

picking up a pamphlet from a display stand (Tr. 302-303,

555-556). The agents proceeded toward the hotel

restaurant and again observed petitioners Mercurio and

Corso, who turned suddenly to face away from them (Tr.

302-306, 556-558).

When the agents returned to the hotel lobby, they saw

petitioners Corso, Mercurio, and Floramo sitting together

(Tr. 312-313, 562). The agents crossed the lobby and sat

down; and when one of them next looked back, he saw

that Floramo and Mercurio had stationed themselves at

the top of a stairwell (315-317, 563-564). When the agent

looked directly at them, they jumped out of his line of

sight (Tr. 316-317). Winston then entered the lobby with a

briefcase and was arrested (Tr. 327, 567-568, 659). The

briefcase seized from Winston contained 94 counterfeit

securities of the Putnam Income Fund with a face value

of nearly 23 million dollars (Tr. 1082-1088). As Winston

was arrested, an agent looked to the top of a flight of

stairs and saw petitioner Floramo push petitioner

Mercurio quickly out of the agent’s line of sight (Tr. 568-

569). The agent left the hotel lobby to search for other

agents to assist him, and when he returned to the lobby,

he saw the individual in the green jacket and petitioners

Corso, Mercurio and Floramo talking together near the

hotel registration desk (Tr. 570-571). The agent left the

hotel by a back entrance and went to the side of the

building where he saw petitioners Floramo and Corso at

the taxi stand (Tr. 571-573). He heard Corso ask

Floramo, “What’s going on?”, and Floramo answer, “lI

don't know.” (Tr. 573). Meanwhile, petitioner Mercurio

stood in the middle of the street craning his neck to watch

the agents take Winston to a car (Tr. 573-574). At this

point, the other agents arrived and arrested petitioners

Corso and Floramo in a taxi and petitioner Mercurio on

the street (Tr. 574-575, 706, 728, 764). The agents

discovered a .32 caliber revolver on petitioner Corso’s

person and .38 caliber and .357 caliber handguns on

petitioner Floramo (Tr. 712-714, 733-737, 749-750).

Petitioner Floramo also carried a flight bag that

contained surgical gloves and three boxes of ammunition,

one .32 caliber, one .357 caliber, and one .38 caliber (Tr.

731-732). All of the weapons were loaded, and there were

six rounds missing from each box of ammunition taken

from Floramo (Tr. 713-714, 732).

At this time, Corso said he did not know Floramo and

had only hitched a ride in his taxi (Tr. 752, 789-791). He

claimed he was in Pittsburgh to see a hockey game (789-

791). Floramo also denied knowing Corso, and stated that

he found the guns in the cab and placed them in his waist

band to avoid discharging them accidentally (Tr. 789-

790). Mercurio also said he did not know Floramo or

Corso (Tr. 771). Petitioner Rhodes was arrested ap-

proximately one week later, and at the time of his arrest

denied knowing Floramo, Corso, or Mercurio (Tr. 1056-

1057).

Additional evidence at trial established a close rela-

tionship between petitioners. It revealed that Rhodes

and Corso had shared an apartment in 1974 (Tr. 1068-

1069). Telephone records showed numerous calls between

telephones connected with Winston and_ petitioners

Rhodes, Corso, and Mercurio during August and

September 1977 (Tr. 1774-1790) Shortly after his arrival

in Pittsburgh, on September 8, petitioner Mercurio was

observed entering Room 1205 at the Hilton Hotel in the

company of Winston (Tr. 803-806). When petitioner

Mercurio was searched incident to his arrest, the agents

discovered two pieces of paper. The first had petitioner

Corso’s name on it, the name of a hotel in the Pittsburgh

area, and telephone numbers (Tr. 773-774, 803-806).

Corso was shown to have rented a room at that hotel for

three individuals (Tr. 1110-1114). The second piece of

paper found on Mercurio had the name “Burt” on it and

petitioner Rhodes’ telephone number (Tr. 775, 1057).

When petitioner Corso was arrested, the agents found an

address book containing the name “Sonny”, an alias for

petitioner Mercurio (Tr. 775). Agents searched that hotel

room as well as the adjoining room, and discovered a

prescription bottle with petitioner Rhodes’ name on it and

an address book containing Rhodes’ name and the name

of an employee of Winston's (Tr. 876-877, 925).

Petitioners Rhodes and Mercurio testified on their own

behalf at trial (Tr. 2153-2281, 2289-2389). Both testified

that Rhodes had arranged for them and Corso to act as

Winston’s bodyguards in Pittsburgh on the day of the

arrest, but both denied any knowledge of the illegal

transaction in which Winston was involved.

— maa i i i i a

7

ARGUMENT

1. Petitioners contend that Winston’s statement that he

was going to bring an “army” of four of his “buddies” to

Pittsburgh with him was hearsay and not admissible

against them because there was not sufficient independent

evidence of their participation in a conspiracy. The

evidence outlined above, independent of the alleged

hearsay, is sufficient, however, to demonstrate petitioners’

involvement in a conspiracy.*

The independent evidence showed that Winston agreed

to sell duplicate securities for a large sum of money. On

the day and place of the sale, FBI agents noticed four

individuals who obviously tried to avoid being seen while

watching the agents. When petitioners were arrested, two

of them were armed, and they all falsely denied knowing

each other and gave false explanations for their presence

in Pittsburgh. One of the weapons had an obliterated

serial number (Tr. 712-714, 733-737, 749-750) that would

make it difficult to trace. Two of the petitioners had

gloves (Tr. 731-732, 767-768) that would help them avoid

leaving fingerprints. Petitioner Rhodes helped Winston to

rent safety deposit boxes on the day of the sale (Tr. 663-

664, 985-998, 1354-1364). Petitioner Mercurio had been

seen entering Winston’s room at the Hilton (Tr. 803-806),

and petitioner Corso had rented a room at another

Pittsburgh hotel for three individuals (Tr. 1110-1114).

There were numerous telephone calls between the

conspirators during the month prior to the sale (Tr. 1774-

1790). Thus, there was sufficient independent evidence of

petitioners’ participation in the conspiracy to justify the

‘Winston was tried with petitioners, and the challenged statements

were clearly admissible against him. Fed. R. Evid. 801(d)(2)A).

Petitioners apparently do not contest that the statements were

admissible at trial but claim (Pet. 21) that the court erred by not

instructing the jury that they were admissible only against Winston.

trial court's admission of co-conspirator Winston's

Statement made in furtherance of the conspiracy. This

determination was for the trial court alone, and there is

no requirement that the jury be given limiting instructions

on co-conspirator statements. United States v. James, 590

F. 2d 575, 579-590 (Sth Cir. 1979) (en banc), cert. denied.

Nos. 78-1412, 78-6369, 78-6431 (June 4, 1979); United

States v. Bell, 573 F. 2d 1040, 1043 (8th Cir. 1978); United

States v. Stanchich, 550 F. 2d 1294, 1297-1298 (2d Cir.

1977); United States v. Petrozziello, 548 F. 2d 20, 23 (Ist

Cir. 1977); United States v. Trowery, 542 F. 2d 623, 627

(3d Cir. 1976), cert. denied, 429 U.S. 1104 (1977).5

2. Petitioners Floramo and Corso® contend that the

trial court erred when it did not suppress the weapons

‘There is a semantic difference among the circuits as to the amount

of proof of participation in a conspiracy that is required before co-

conspirator statements can be admitted. The First, Second, Third and

Eighth Circuits have stated that the conspiracy must be proven by a

preponderance of the evidence. United States v. Bell, supra, 573 F. 2d

at 1044; United States v. Petrozziello, supra, 548 F. 2d at 23; United

States v. Stanchich, supra, 550 F. 2d at 1298; United States v.

Trowery, supra, 542 F. 2d at 627. The Fifth Circuit, on the other

hand, has stated that a conspiracy must be proven by “substantial”

evidence. United States v. James, supra, 590 F. 2d at 581. We do not

view this difference in language as creating a conflict in the circuits of

sufficient importance to merit review by this Court. In any event, this

case is not appropriate to resolve this arguable conflict because the

court of appeals below uses the preponderance test and thus gave

petitioners the benefit of the test arguably more favorable to them.

See United States v. Trowery, supra.

‘The petition raises this claim (Pet. 21) on behalf of all petitioners.

However, petitioners Mercurio and Rhodes clearly have no standing

to object to the search. See Rakas v. Illinois, 439 U.S. 128 (1978). We

further note that petitioners Mercurio and Rhodes did not raise this

claim in the court of appeals and there are no unusual circumstances

that would lead this Court to depart from its normal practice of

refusing to consider questions not raised below. See United States v.

Lovasco, 431 U.S. 783, 788 n.7 (1977). ‘ -

found during a search incident to their arrest because the

arrest was not based on probable cause. The facts

outlined above are, however, sufficient to justify a

prudent officer's belief that an offense had _ been

committed, so the arrests were clearly valid.

At the time of the arrests, the agents knew that Winston

intended to sell a large amount of duplicate securities in

the hotel that day and that he had promised to bring an

“army” of “buddies” with him for protection. Armed with

that knowledge, the agents observed four individuals who

were obviously trying to watch them without being seen.

These four individuals engaged in erratic behavior such as

studying blank walls, jumping “like jackrabbits” (Supp.

Tr. 74-75, 131)’ to avoid being seen, and pushing one

another out of the agents’ line of sight. The four were seen

talking together, and they attempted to leave the hotel

shortly after Winston was arrested. Petitioner Mercurio

stood in the middle of the street and craned his neck to

watch Winston as he was led to an FBI car. These

circumstances more than suffice to establish probable

cause to believe that the four men were the four armed

bodyguards that Winston promised to bring. The

Constitution does not require the agents to have warrants

to arrest individuals they have probable cause to believe

have committed a felony in their presence. United States

v. Watson, 423 U.S. 411 (1976). A search incident to a

lawful arrest is constitutional. See, e.g., United States v.

Robinson, 414 U.S. 218 (1973); Chimel v. California, 395

U.S. 752, 762-763 (1969). In this case, the search of

petitioners Floramo and Corso for weapons was incident

to a lawful arrest based on probable cause.

™Supp. Tr.” refers to the transcript of the hearing on the motion to

suppress.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WapeE H. MCCREE, JR. ,

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

WADE LIVINGSTON

Altorney

OcTOBER 1979

DOJ-1979-10