Petition — Provenzano v. United States
Supreme Court brief1980
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FILED
IN THE
Supreme Court of the United Ghats?
October Term, 1980 MICHAEL RODAK, JR., CLERK
No.: 80-78
ANTHONY PROVENZANO, STEPHEN ANDRETTA,
and THOMAS ANDRETTA,
Petitioners,
-against-
UNITED STATES OF AMERICA,
Respondent.
JOINT PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
DONALD CONWAY, ESQ.
Attorney for Stephen Andretta
75 Essex Street
Hackensack, New Jersey 07601
(201) 342-1700
HARVEY WEISSBARD, ESQ.
Attorney for Anthony Provenzano
20 Northfield Avenue
West Orange, New Jersey 07052
(201) 731-9770
ROBERT H. KIERNAN, ESQ.
Attorney for Thomas Andretta
477 Madison Avenue
New York, New York 10022
(212) 688-7788
i
Questions Presented
1. Were the petitioners’ Sixth Amendment rights
to a fair and impartial jury destroyed because the Dis-
trict Court refused to excuse for cause several prospective
jurors who were tainted by pre-trial media coverage; by
compelling the petitioners to exhaust their peremptory
challenges in an attempt to exclude such individuals;
by failing to conduct an in-depth inquiry into the matter
and effect of pre-trial publicity; and by denying the
non-Provenzano petitioners’ motion for severance and
change of venue?
2. a) Were the petitioners, Anthony Provenzano and
Thomas Andretta, denied their Sixth Amendment right
to trial by an impartial jury when one of the jurors who
deliberated upon the case, was discovered, while seques-
tered, smoking marijuana with two alternate jurors at
3 a.m. on a trial day, and the jurors were thereafter
assured by the Trial Court that they need not be con-
cerned about the incident, and no hearing was conducted
to determine the incident of the jurors’ misconduct or
its possible effect on their minds?
b) Should not this Court invoke its supervisory
power to grant petitioners a new trial as a result of this
incident?
c) Did not petitioners’ absence from and ignorance
of the in-chambers conference at which the issue of juror
misconduct was discussed and it was decided to retain
the offending juror, violate the rule laid down in Snyder
v. Massachusetts, 291 U.S. 97 (1934), and deny him due
process of law?
d) Did not petitioners’ absence from the in-
chambers conference violate Rule 43 of the Federal
Rules of Criminal Procedure?
3. Did the Circuit Court’s adaptation of United
States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973), which
ii
allowed admissibility of hearsay evidence on a ground
not urged by the Government, deprive petitioner
Provenzano of due process of law?
4. Is the Racketeer Influence Corrupt Organizations
(“RICO”) Act (18 U.S.C. § 1961 et. seq.) unconstitutional
as applied in this case?
ili
Table of Contents
I SN oe a bik. a beh hve G00 p04 «
RE DEE ok cre bcc Uccspecveccenes erty
I cae Coie s bac iu ee eeseca%e vaeee.s
Constitutional and Statutory Provisions Invoked
ee Aine hk on 6d sa kaa e dew as 00 Ve
A. The Indictment: The Government’s
UE WEIL Vcc ce ec racesecececs
i Se OE Gn cece ace veovesvcoee
(a) The Prosecution’s Case. .....ccsecee-
OR
ree rere eT eee Cr eee ee ee
POINT I -- The Court Below Erred by Failing
and Refusing to Excuse for Cause Several Pros-
pective Jurors Who Were Tainted by Pre-Trial
Coverage: By Compelling the Defendants to
Exhaust Their Peremptory Challenges in an
Attempt to Exclude Such Individuals, by Failing
to Conduct an In-Depth Inquiry into the Nature
and Effect of the Pre-Trial Publicity: And by
Denying the Non-Provenzano Defendants’ Motion
for Severance and Change of Venue. ...........
1. The Jury Selection Process. ............
2. The Trial Court Erred by Failing to Excuse
for Cause Individuals Tainted by Pre-Trial
Media Coverage and by Compelling the
Petitioners to Exhaust Peremptory Chal-
lenges in an Effort to Exclude Such
UIE oe lon ee Peek ada s k's ae os
3. The Trial Court Erred in Failing to Inquire
Further into the Nature and Effect of the
iy i fA rere
4. The Trial Court Erroneously Denied Defense
Motions for Severance and Change of Venue
Ww Ww
NON Ww
19
19
21
29
30
iV
POINT II -- The Circuit Court’s Resolution of
the Juror Misconduct Issue Was Constitutionally
EL. SG veka wk bekie® 04a uke teow we bee
POINT III -- A Split Among the Circuits on the
Issue of Defendants’ Presence At a Conference
on a Juror Issue Makes Review by This Court
fT ITE EE TCU RTT E TOC eT One
POINT IV — The Circuit Court’s Invocation of
the Second Circuit’s “Rosenstein Rule” Deprived
Petitioners of Due Process; Examination by
This Court of the “Rosenstein Rule” Is Both
TIE ORG ADOTODTIBEE. occ ccc cccccccvcceess
POINT V — The Ruling of the Court Below
Utterly Misapprehended the Policy Consider-
ations and Legislative Intent of RICO and Has
Permitted RICO to Be Applied in a Facially
Unconstitutional Manner. ......ccccccesccccce
a A ee a a ore
Appendix A -- Opinion of United States Court
FPP Terre Se Ter Ey Terre eee Te Tee
Appendix B -- Judgment of United States Court
ES Ne errr eye rer rrr ee rere
Appendix C - Order of United States Court
of Appeals on Petition for Rehearing and Sug-
gestion for Rehearing En Banc............44.
Appendix D - Constitutional and Statutory
Provisions Involved in the Case..............
32
36
40
Vv
Table of Authorities
Cases:
Aldridge v. United States, 283 U.S. 308, 75 L.Ed.
ey OE ay SO COED s os ecb hececcwen ven de 29
Anderson v. United States, 417 U.S. 211 (1974) .. 40
Blackwell v. Brewer, 562 F.2d 596 (8th Cir. 1977) 37, 39
Bunch v. State, 381 A.2d 1142 (Md. 1978)....... 37
Commonwealth yv. Robichaud, 264 N.E.2d 374
SCD nv de0-0b5 40 onnnGs oO aenee ab OGns 37
Delaney v. United States, 199 F.2d 107 (Ist Cir.
DEE Kicica bake ae kh subeekea bea eeeues 24
Ellis v. Oklahoma, 430 F.2d 1352 (10th Cir. 1970),
cert. denied, 401 U.S. 1010 (1971) ......... 37, 38, 39
Evans v. United States, 284 F.2d 393 (6th Cir.
DE cciciss Lack ewRbhhoe cheese eee wa cease 39
Faretta v. California, 422 U.S. 806 (1975) ....... 36
Hopt v. Utah, 110 U.S. 574 (1884) ............. 36
Irwin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639
Te a en ike 21, 26, 28, 31, 34
Kiernan v. Van Schaik, 347 F.2d 775 (3rd Cir.
DE cnc bee bikd eae s Chae eR eeaee es 22
Krulewitch v. United States, 336 U.S. 440 (1949) . 40
Lewis v. United States, 146 U.S. 370, 36 L.Ed. 1011,
Oe CM BE Sicacé cen shnkdege kee een eases 28
Marshall v. United States, 360 U.S. 310, L.Ed. 2d
Sa PP Ge ECE CERI ns cberecseebanemass ya ee
Murphy v. Florida, 421 U.S. 794, 85 S.Ct. 2031
ET Rote enas ty 22, 23, 24, 26
Near v. Cunningham, 313 F.2d 929 (4th Cir. 1963) 37, 38
Nevels v. Parratt, 596 F.2d 344 (8th Cir. 1979)... 37, 38
Parker v. Gladden, 385 U.S. 363 (1966) ......... 35
vi
Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556,
EN, ae ee ee 29
People v. Harris, 204 N.W.2d 734 (Mich. App.
SN a Ge ad an 6 Ob 4 ooo OE eee bs hs i 37
Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417,
Be Res ee ee ss bc cee eA ess ueeeaes 26, 31
Ristaino v. Ross, 424 U.S. 589, 96 S.Ct. 1017,
ge Re &. 2 ee ee ee 29
Sheppard v. Maxwell, 384 U.S. 333 (1966) ...... 31
Silverthorne v. United States, 400 F.2d 627 (9th
Cir. 1968), appeal after remand, 430 F.2d 675
(1970), cert. denied, 400 U.S. 1022, 91 S.Ct.
ee Ee a ee ee 24, 30
Snyder v. Massachusetts, 291 U.S. 97 (1934)....1, 36, 39
Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824
i Perret errr eres ye ere Tree re Pere 21, 28
United States v. Addonizio, 451 F.2d 49 (3d Cir.
‘1972), cert. denied, 92 S.Ct. 949, 405 U.S. 936,
30 L.Ed. 2d 812, rehearing denied, 92 S.Ct.
1309, 40S U.S. 4068, 3) LB. 20 Fal ww cw vcce. 31
United States v. Allen, 588 F.2d 1100 (Sth Cir.
SENN Bc aVew eas Hee SEES Res Aad B ce ebetas 34
United States v. Allsup, 566 F.2d 68 (9th Cir
sce ee Nace bens +62 CRE eo RO ee 21
United States v. Altese, 542 F.2d 104 (2d Cir.
1976), cert. denied, 429 U.S. 1039 (1977) ...... 49, 50
United States v. Baca, 494 F.2d 424 (10th. Cir.
GL Sine Kaun Kee eae a eae RR eek ue 37
United States ex. rel. Bloeth v. Denno, 313 F.2d
364 (2d Cir. 1963), cert. denied, Denno v.
Bloeth, 83 S.Ct. 112, 373 U.S. 978, 10 L.Ed. 2d
| PRC ar Orn UE NED eents reek yw one am mierda 24
United States v. Braunig, 553 F.2d 777 (2d Cir.),
cert. denied, 431 U.S. 959 (1977) ............. 41
vii
United States v. Brown, 571 F.2d 980 (6th Cir.
GE EEE ee ee oe Se ea a 37, 38
United States v. Cappetto, 502 F.2d 1351 (7th
Cir. 1974), cert. denied, 420 U.S. 925 (1975) ... 49
United States v. D’Andrea, 495 F.2d 1170 (3d Cir.
1974), cert. denied, 419 U.S. 855 (1974) ....... 31
United States v. Dansker, 537 F.2d 40 (3d Cir.
i SERIA ah a etree Pee | ro 31
United States v. Dellinger, 472 F.2d 340 (7th Cir.
1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443,
Se Mee PU Es oyna (a0 Cr dddc eed eee 28, 30
United States ex. rel. Doggett v. Yeager, 472 F.2d
ee ee, SEA we vGaendwendccees abs 23, 24, 25, 30
United States v. Elliot, 571 F.2d 880 (Sth Cir.
Be ny Sree er re ree en 45, 49
United States v. Eubanks, 591 F.2d 513 (9th Cir.
SEE POR Onc Nae ga ee a a gee 22
United States v. Gay, 522 F.2d 435 (6th Cir. 1975) 37
United States v. Giacalone, 588 F.2d 1158 (6th Cir.
DELS. UIST UL Uk abbas CREME RA eR RAK 26
United States v. Howell, 514 F.2d 710 (Sth Cir.
A i cuth ey en vkg bar ake eh aeke seins 36
United States v. Huber, 603 F.2d 387 (2d Cir.
Gh a5 o aw ee wha Che 6 eee AREAS 0400 51
United States v. Kaplan, 510 F.2d 606 (2d Cir.
SO Wh aed Se eea ee ob ba coh as Meee ee 42
United States v. Klee, 494 F.2d 399 (9th Cir. 1974),
cert. denied, 419 U.S. 835 (1974) ............. 33
United States v. Moten, 582 F.2d 667 (2d Cir.
Dh, CEk ak sve sAk eee k vac Kua ENS eRaS Oh Obs 34
RS Tr eee Pe re eee Pere or ree ee 22, 26
Vili
United States v. Nixon, 418 U.S. 683 (1974) ..... 40
United States v. Payner, USS. (June 23,
Pei sa cece adurieuesnsacdecswcitestindin 35
Lnited States v. Rone, 598 F.2d 546 (9th Cir.
EATER ccchvcnSect Chain deen senebeuawieesin 49
United States v. Rosenstein, 474 F.2d 705 (2d Cir.
See hic bn ts ceikens aakcuede bes ete weneee i, 41, 42
United States v. Spencer, 47 P. 715 (N.M. 1896) . 34
United States ex. rel. Stewart v. Hewitt, 517 F.2d
Sie Ce Ga. FU aR k wick svi ckvudkenbereiebsneie 33
United States v. Sutton, 605 F.2d 260
1. Pere ere ree eee 43, 45, 47, 49, 50
United States v. Swiderski, 593 F.2d 1246 (D.C.
Cir. 1978), cert. denied, 441 U.S. 933 (1979) ... 49
United States v. Taliaferro, 558 F.2d 724 (4th Cir.
1977), cert. denied, 434 U.S. 1016 (1978) ...... 33, 34
Wade v. United States, 441 F.2d 1046 (D.C. Cir.
SOT ad A tncdcnwrvinkokuncechkaseabeaakeuua 39
United States Constitution:
Paes PD Civ c's dane dace 4 o8eenusscaes 3, 18
ee Fa ko oo cba ¥en she dink 3, 18, 35
Statutes:
Bik fee | errrer Ter s Prone ers rss li, 3, 18, 44
Ee Se S| ee eee re 3,5, 49
Re 8 ee er rr ae 3
1S Uy Wes hos b ioscan kesdsdueensasenass 4
BO UBA~ DCG one v cc bastbsesinsscusecces 3
USE UE... Ao ee 3, 5
ix
Rules:
Federal Rules of Criminal Procedure,
NG 46s pa esin ve’ [NAS A ATRYN age 41
Federal Rules of Evidence,
se eek sib 00 0 bs 648 40, 41, 42
Other Authorities:
American Bar Association Project on Standards
for Criminal Justice, Fair Trial, Free Press
Marijuana, Research Findings 1976, pp. 140-141
De UE, GE BRIE WY, EDT?) ccc ccccccccvcvene
24
43
33
IN THE
Supreme Court of the United States
October Term, 1980
No.:
ANTHONY PROVENZANO, STEPHEN ANDRETTA,
and THOMAS ANDRETTA,
Petitioners,
-against-
UNITED STATES OF AMERICA,
Respondent.
JOINT PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Anthony Provenzano, Stephen Andretta, and
Thomas Andretta jointly pray that a Writ of Certiorari
issue to review the judgment of the United States Court
of Appeals for the Third Circuit affirming the judgment
of conviction against the petitioners by the United States
District Court for the District of New Jersey.
Opinions Below
Following the entry of the judgments in the Dis-
trict Court, petitioners appealed to the Court of Appeals.
The as yet unreported opinion of the Court of Appeals
2
may be found in the joint appendix filed with this peti-
tion (la - 4la).!
Upon the affirmance by the Court of Appeals of
all judgments of conviction, petitioners jointly petitioned
the Panel of the Court of Appeals which affirmed their
convictions for rehearing and suggestion for rehearing
en banc. By order dated July 20, 1980, all applications
were denied (44a).
On July 2, 1980 the Court of Appeals, pursuant to
Rule 41(b) of the Federal Rules of Appellate Procedure,
ordered that as to the petitioner, Stephen Andretta,
the certified judgment in lieu of formal mandate herein,
be stayed pending the timely filing of this petition with
this Court before July 20, 1980, and if such petition is
so filed, further continue the stay until final disposition
by this Court (43a).?
! The following abbreviations are used in this petition: “a” is
a reference to petitioners’ joint appendix, which is filed with this
petition. The appendix also contains the judgment of the United
States Court of Appeals for the Third Circuit in lieu of mandate
dated May 8, 1980; the order of the United States Court of Appeals
for the Third Circuit denying rehearing dated June 20, 1980; the order
of the Court of Appeals staying the certified judgment in lieu of
formal mandate as to petitioner, Stephen Andretta, dated July 2,
1980; and the relevant statutory provisions involved. “A” is a reference
to the 5-volume appendix heretofore submitted to the United States
Court of Appeals for the Third Circuit. These volumes, which con-
tain inter alia pretrial and trial testimony, pleadings, and exhibits,
will be certified to this Court.
2 The petitioners, Anthony Provenzano and Thomas Andretta,
are presently incarcerated and serving their sentence. See F.2d
(3d Cir. 1979). The petitioner Provenzano was sentenced to
a term of imprisonment of 20 years and fined $20,000. Petitioner
Stephen Andretta received a sentence of 10 years and a fine of $15,000.
Petitioner Thomas Andretta was sentenced to a term of imprisonment
of 20 years and fined $20,000.
3
Jurisdiction
The date of the judgment of the United States Court
of Appeals for the Third Circuit was May 8, 1980, which
also was the date of entry. A timely petition for rehearing
en banc was denied on June 20, 1980. This Court’s juris-
diction is invoked under Title 28 U.S.C. § 1254(1).
Constitutional and Statutory Provisions
Invoked in the Case
1. The Fifth Amendment to the Constitution of the
United States.
2. The Sixth Amendment to the Constitution of
the United States.
3. Title 18 U.S.C. §§ 1961, 1962, and 1963. These
constitutional and statutory provisions are set forth
in petitioners’ joint appendix at 45a.
Statement of the Case
A. The Indictment: The Government’s Theory of the Case.
This prosecution commenced on February 22, 1979
with the filing of Indictment No. 79-72 in the United
States District Court for the District of New Jersey
(A. 1, 16-32). In substance, Count I of the prolix indict-
ment charged the petitioner and others with conspiring
to violate the RICO Statute (Title 18 U.S.C. § 1962).
The indictment alleged that the conspiracy was manifested
through a complex scheme in which the defendants
and several unindicted co-conspirators accepted money
from Seatrain Lines, Inc. (hereinafter referred to as
“Seatrain”) and its “house trucker,” Interocean Services,
Inc. (hereinafter referred to as “Interocean”) in return
for “labor peace” to those organizations, in violation of
Title 29 U.S.C. § 186(b). Count II charged the defendants
with a substantive violation of the RICO Statute in
4
that they accepted 42 enumerated payments between
May 31, 1970 and December 16, 1974 in return for pro-
viding “labor peace” to Seatrain and Interocean up
through mid-1974 and thereafter, to Seatrain and its
new house carrier, Di-Jub Leasing Corporation (herein-
after referred to as “Di-Jub”).
It was the Government’s theory that several of
the defendants, om the prosecution believed to be
sophisticated labor leaders, formed an unlawful asso-
ciation, in fact, “the enterprise” (Title 18 U.S.C. § 1964),
in order to funnel money to themselves through ostensibly
legitimate trucking operations.’ In the indictment and
in its opening remarks to the jury, the prosecution
divided the conduct alleged in the indictment into two
specific time frames. Between 1969 and mid-1974, the
Government alleged that the defendants created a
corporation called Cargo Truck Leasing (hereinafter
referred to as “Cargo”), to furnish independent owner-
operators to Interocean. It was the Government’s con-
tention that the defendants would ensure themselves
illegal income by creating a “ghosting” operation in
which Seatrain’s house carrier, Interocean, would be
billed for owner-operators who were not actually sup-
plied to Interocean. The Government further contended
that in mid-1974, after Seatrain decided to phase-out
Interocean, the defendants attempted, through a corpora-
tion known as Liftvan, to succeed to the interests of
Interocean and to continue to over-bill Seatrain. When
that attempt failed, they substituted a corporation
known as Di-Jub in place and instead of Interocean and
then with perfect symmetry, formed a corporation known
as FLT Trucking and Leasing, ‘nc. (hereinafter referred
to as “FLT”) to provide the same services to Di-Jub as
Cargo did for Interocean. This activity, which the
3 The Government’s theory is based upon the alleged unlawful
criminal association formed by the defendants. Neither the labor
union to which some of them belonged, nor any trucking companies
were named as “the enterprise” in the indictment.
5
Government claimed violated Title 29 U.S.C. § 186(b),
formed the pattern of racketeering activity required by
§ 1962(c) and (d).
Crucial to the prosecution’s theory was the fact
that Seatrain and its house carriers knew that the true
purpose of the ghosting or over-billing was for “labor
peace” and actively participated in the payments.
B. The Proof At Trial.
(a) The Prosecution’s Case.
Sometime in 1963, following an aborted college
career, Ralph Picardo, through the assistance of the
Provenzano family, who he claimed were friends of
members of his family, secured a job as a truck driver
for a Newark-based ice cream company. Concomitantly,
he became a member of Local 648 of the International
Brotherhood of Teamsters (hereinafter “IBT”) (A. 949-
951). Shortly thereafter, he left his Newark employment
and in 1964, he transferred to Local 560 of the IBT in
Union City, New Jersey.4 There he met Salvatore
Briguglio, a union delegate who was to become his close
friend, confidante, and mentor (A. 963).5 Between 1966
.nd 1969 Picardo became an organizer for Locals 560 and
84 of the Teamsters. According to Picardo, while an
“organizer,” he, through Salvatore Briguglio, formed
an association with Salvatore Briguglio, his brother,
Gabe Briguglio, Anthony Provenzano, Armand Faugno,
and Thomas and Stephen Andretta to conduct various
unlawful activities. Inasmuch as several members of his
association were members of the Teamsters, he, Picardo,
acted as their “front man” in these activities while all
shared in the profits (A. 960).
* Picardo, an admitted miscreant whose crimes ran the gamut
from corrupting juries to murder, was the Government's chief
witness.
5 Salvatore Briguglio, who is named as a co-conspirator, died
prior to the filing of the indictment.
6
Though the petitioner, Anthony Provenzano, had
no personal contact with Picardo, according to Picardo,
he was the “commander” (A. 982). Salvatore Briguglio,
Picardo’s silent partner in his trucking business, was
second in command, while the Andretta brothers, Armand
Faugno, and Gabe Briguglio were on the same and lowest
level in the “chain of command” as Picardo (A. 963-964).
Picardo also outlined various cliques within the asso-
ciation. Thus, he and the Briguglio brothers formed
one faction, Armand Faugno and the Andretta brothers,
a second, while the third group (A. 975-981) consisted
of the Provenzano family.
After a short tenure as a union organizer, Picardo,
at the insistence of his “associates,” became involved
in managing several trucking companies (A. 985).
According to Picardo’s tale, the rationale for his appren-
ticeship in management was to allow him and his ‘asso-
ciates” to glean a profit from both sides of the union-
management fence without violating the Taft-Hartley Law
(A. 987-988). His initial task under the supervision of
Salvatore Briguglio was to monitor the trucking industry
to look for a lucrative situation in which the “association”
could make a profit in return for supplying “labor peace”
(A. 989-990).
Sometime in 1969, Picardo saw an opportunity
to use the knowledge he had gained from his years of
apprenticeship and observation. A company called
Seatrain had created a house trucker without a union
contract to do the former’s inland trucking. According
to Picardo, the situation seemed like a perfect oppor-
tunity (A. 993).
Seatrain, a steamship corporation specializing
in the transportation of containerized freight, had formed
a “house carrier” called “Interocean” to do Seatrain’s
trucking. Interocean had no union contract even though
7
it operated in ten states (A. 993-995). Interocean had
formed a subsidiary called Switching, Inc., which was
unionized and did local switching work (A. 996-997).’
Picardo believed that as long as he and his associates
could provide labor peace to Interocean, it would be
willing to provide him with money (A. 998). In early
1969, Salvatore Briguglio arranged for Ralph Pellecchia
(“Raffie”), a member of the “association,” to introduce
Picardo to Ray Rosen, the then Vice-President of
operations for Interocean (A. 999).
According to Picardo, he informed Rosen that if
Interocean “use(d) all our drivers,” he, Picardo, would
provide them with “labor peace” (A. 983). Picardo also
told Rosen that by adopting this plan, he would save
30 to 40 percent in expenses and would not have to
pay any union pension or welfare benefits. Picardo
further maintained that he told Rosen that the fee for
providing these valuable services would come from a
“ghosting” operation (billing for the use of no-show or
fictitious drivers). According to Picardo, Rosen, after
consulting with Thomas Durkin, Seatrain’s attorney,
accepted the plan (A. 1003-1004, 1029-1030, 1040, 1151).
6 To support his theory that Seatrain was ripe for an assault,
Picardo explained that in 1967 Seatrain contracted its trucking
work to a union shop known as John J. Cassale. In 1968, the con-
tract went to Victory Motor Lines. In 1969, a wild-cat strike ensued
which became very costly and apparently led to the formation of
Interocean (A. 993-994), In fact, Interocean was formed by Seatrain
to legally avoid unionization. Similar plans were in use by Sealand
Corp. and U.S. Lines, both of whom had house truckers, which
utilized non-union owner-operators.
7 Trucking for shippers involved with containerized cargo
generally falls into two categories. First, trucks are needed to haul
the containers over-the-road. Between 1970 and mid-1974, Sea-
train’s over-the-road hauler was Interocean. Second, trucks or
“rigs” are needed to move containers within a freight yard. This is
referred to as switching. Between 1970-1974, it was performed by
Interocean’s subsidiary, Switching, Inc. (A. 996-997).
8
Although Rosen acknowledged that he had met
with Picardo at Pellecchia’s request “as a man who could
supply us with equipment and drivers for the switching
operation” (A. 2159), he emphatically denied any knowl-
edge of Picardo’s “ghosting” scheme (A. 2212). According
to Rosen, Picardo or his company never submitted ghosted
or padded bills. Rosen further maintained that Interocean
never paid any money to Picardo or “Cargo” for “labor
peace” (A. 2217). Moreover, Rosen testified that although
Picardo boasted of his connections in the labor movement
(A. 2161-2162), Picardo never suggested that he could
supply Interocean or Switching with union protection
and labor peace for a fee (A. 2295-2296). Rosen’s testi-
mony was confirmed by the two dispatchers employed
by Interocean, Messrs. Kunze and Heinlein, who admitted
receiving bribes from Picardo in return for not revealing
his ghosting operation to the officers of Interocean
(A. 1853, 1863, 1877, 1881, and 1883).8
To implement his plan, Picardo, on March 19, 1970,
formed Cargo Truck Leasing Corp. (“Cargo”) as the
medium through which he would supply drivers to
Interocean and Switching and through which he would
funnel money to his associates (GX 46, A. 1045-1046).
Using friends and newspaper advertisements, Picardo
secured approximately 15 owner-operators for use at
Interocean or Switching (A. 1044, 1047).
Once his owner-operators were in place, he began
to supply them to Interocean primarily for use as switchers
(A. 1048). Although he paid the drivers $9.00 per hour,
he never paid any pension and welfare benefits (A. 1050-
8 Rosen conceded that he, on behalf of Interocean, ghosted
switchers with respect to Seatrain. Rosen claimed that his ghosting
was in effect a method of assisting Seatrain in violating their tariff
rates. Rosen’s testimony in this regard was supported by several
Seatrain executives.
9
1051).9 Picardo maintained that his ghosting scheme was
initiated almost immediately and continued until Cargo
terminated its relationship with Interocean in 1974.
Although he admitted bribing Interocean dispatchers,
Messrs. Kunze, Heinlein, and Rotolo, he denied that
the purpose of the bribes was to keep them quiet with
respect to his ghosting operation. Picardo initially
claimed that the bribes were paid to maintain a smooth
working relationship (A. 1053-1054). Later, however, he
claimed that he paid the bribes so that the dispatchers
would not report his operation to the federal authorities
(A. 1277). The dispatchers, however, told a very dif-
ferent story. They admitted knowledge of Picardo’s scheme
and conceded that he bribed them in return for their
silence (A. 1853, 1863, 1877, 1881 and 1883).!° Each of
the dispatchers maintained that they never discussed
Picardo’s ghosting with Rosen or any member of Inter-
ocean’s management (A. 1866).
George Affsa, Interocean’s Vice-President of
Finances, testified that sometime in 1974, he determined
that Cargo had overcharged Interocean $10,000 to
$15,000 (A. 1942-1944, 1961-1962). According to Affsa,
he informed Ray Rosen of the overcharge and was told
by the latter to charge back Cargo for the apparent
overcharge (A. 1945). Affsa complied with Rosen’s
orders (A. 1945). Affsa, like Rosen and Walter Blanken,
Interocean’s President from 1970-1972, denied any
knowledge of any payments made by Interocean to
ensure labor peace (A. 1955-1956).
9 There was no evidence that any of the owner-operators
used by Picardo were members of any union. On the contrary the
proof demonstrated that owner-operators almost never joined the
union.
0 The testimony of the dispatchers was corroborated by Allen
Abramowitz, Picardo’s then office manager, who testified that the
bribes were paid to keep the dispatchers quiet (A. 1853).
10
Despite the testimony of Interocean’s executives
that they knew nothing of Picardo’s ghosting and despite
the concession of Interocean’s dispatchers that they
had been bribed by Picardo not to reveal his ghosting
operations, the Government attempted to prove Sea-
train’s knowledge by calling several middle-level execu-
tives from Seatrain, who sometime in 1971 became aware
- of a “ghosting” operation.!!
In any event, as checks began to arrive at Cargo
from Interocean or Switching, Picardo deposited them
in Cargo’s bank account, paid the owner-operators,
and converted the balance into cash which he maintained
he divided among his associates. Using what he claimed
was invaluable knowledge gleaned from his college
course in accounting, Picardo devised a score of plans
to distribute 75 percent of his illgotten gains to his
friends (A. 1065).!2
His initial and simplest scheme was to write checks,
which varied in amount but averaged $1,000 to $1,500,
to either himself or to a fictitious payee and to cash
them at Joe’s Tavern, a local bar in Jersey City. On
other occasions, these checks, bearing false notations
(A. 1075) would be given to the petitioner, Thomas
'! As it later became clear, the ghosting operation uncovered
by Seatrain executives was an operation conducted by Rosen with
the consent of Seatrain’s upper level executives to make up for lost
revenues incurred as a result of not billing Seatrain’s customers
for trucking services (A. 2241-2243). This, of course, would con-
stitute a violation of their tariff regulations and constitute the
giving of unlawful rebates.
'2 Picardo claimed that he retained 25 percent (A. 1065); 25
percent went to the Briguglios, 25 percent to the Faugno-Andretta
faction, and 25 percent to the Provenzano group (A. 1069-1071).
The petitioner Provenzano, however, never personally received
any money from Picardo (A. 1072). Nevertheless Picardo claimed
that he informed Provenzano of his venture and received a compli-
ment in return (A. 1073).
11
Andretta, who cashed them at Joe’s (A. 1066).'3 On
many occasions, Picardo claimed to have taken checks
directly to Local 560 in Union City (A. 1067). After the
checks were cashed, the proceeds were distributed at
either Local 560 or in Armand Faugno’s office in Jersey
City.
The second method used by Picardo for generating
cash was to loot Interocean’s petty cash advance fund
(A. 1089). This fund was maintained to assist owner-
operators who needed loans or advances for tolls, gaso-
line, and to repair their equipment. Picardo, however,
found another use for the fund. He, through Cargo,
drew cash from the fund each day, which money was
deducted from the total revenues due Cargo from Inter-
ocean. Picardo, however, added phantom drivers to his
weekly bills to cover the amounts he had withdrawn
from petty cash (A. 1090). The cash was then deposited in
the Cargo account, made out to fictitious payees and
cashed at a check-cashing service (A. 1091). A third
method used by Picardo was to take personal loans from
Interocean and repay these loans by adding ghosts to
his invoices (A. 1093, but see for example A. 2003).
According to Picardo, he continued to disburse
the carefully “washed” funds to his associates into 1972.
Sometime in that year, however, Salvatore Briguglio,
throwing caution to the wind, uncharacteristically
asked Picardo to directly and by check, pay Briguglio’s
bills at the Rainbow’s End Horse Farm (A. 1120).
Picardo maintained that he, through Cargo, con-
tinued to pay these bills on behalf of Briguglio and the
'3 Though Picardo claims to have given the majority of these
checks, which formed the first forty acts of racketeering (GX 104-143)
to the petitioner, Thomas Andretta, to cash, the Government's
handwriting expert who examined each of the questioned documents,
determined that Mr. Andretta’s fingerprints were not present on any
of them. See the testimony of the FBI agent, Thomas B. Thompson at
A. 2347-2351. Parenthetically, only Picardo’s prints show up on
exhibits 104-143.
12
petitioner, Provenzano, well into 1975 (A. 1122-1129,
GX 18, 26, 27, 31, 32, 33, and 34).'!4 Picardo, however,
was contradicted by Maryanne Hart (A. 2642) and
Paulette Compton (A. 2481, ef. seq.) who were his
employees and at various times shared his bed (A. 1372-
1373, 2546, 2644-2655).'5 Compton testified that Picardo
informed her that he had given two of his horses to Sal
Briguglio’s daughter as a gift (A. 2481) and had instructed
her and Hart to pay for the horses’ up-keep (A. 2481-
2501). He never told Ms. Compton that either of the
horses were given to Anthony Provenzano or his daughter.
By the late summer of 1973, Picardo learned that
Seatrain was contemplating phasing out Interocean
because of its unprofitability (A. 1149, 2373-2377).
Picardo, therefore, took a bold step. Through a shell
corporation called Trans Container Express Lines, he
acquired the ICC rights to a corporation called Liftvan
Transport, Inc. (A. 1169). Liftvan had ICC rights com-
parable to Interocean’s and was in a position to compete
with the latter for Seatrain’s business.
In the late summer of 1973, Picardo, according to
his testimony, was summoned to Local 560, where he
met with Salvatore Briguglio, Sam Provenzano, and
Thomas Durkin, Seatrain’s attorney. Durkin, according
to Picardo, wanted to know if he would be interested
in operating Liftvan. Under the plan, Durkin, acting as
Seatrain’s attorney, would bankroll the operation. It
was Durkin’s plan to replace Interocean, which Durkin
14 The owner of the Horse Farm, David Rosen (A. 2881, ef. seq.)
did receive payment from Picardo for two horses, one ridden by
Salvatore Briguglio’s daughter, and the other by the defendant
Provenzano’s daughter. Yet Rosen simply assumed that each girl
owned her respective horse (A. 2898). No ownership papers were
available. To the contrary, the veterinary bills demonstrate that
the owner of the horses was Ralph Picardo (GX 26, 32, A. 2898).
'S Picardo prided himself on being a ladies’ man and conceded
that he used his charm to persuade women to assist him in various
illegal schemes (A. 1366).
13
believed to be too costly an operation, with Liftvan,
which had ICC rights similar to Interocean’s (A. 1145,
1147-1149). Following the meeting, Picardo and Briguglio
met privately and agreed that Durkin’s proposition
had merit. Briguglio, therefore, gave him the go-ahead
(A. 1154). Despite Briguglio’s okay, serious problems
arose — Briguglio was sent to jail -- and according to
Picardo, Pellecchia, who was making $50,000 a year
through Interocean, complained that Picardo and Liftvan
would destroy his job (A. 1154-1155). Consequently,
Picardo, representing himself and Briguglio (see GX 371
and 372), travelled to Florida with the petitioner, Stephen
Andretta, where they met the petitioner Provenzano at
his residence in the Americana Hotel in Miami. Once
there, Picardo claimed he convinced Provenzano to
sanction Liftvan (A. 1157).!6
In September 1973, Picardo began to operate Liftvan
as its agent and by December of that year, he had pur-
chased the company from Buck Borden for $205,000
payable over three years with monthly notes (A. 1169-
1170). Picardo maintained that although he was the
“front man,” his associates were equal partners (A. 1171).
Despite Picardo’s grand plan, Liftvan failed because
Picardo was unable to secure any meaningful business
from either Seatrain or other major steamship companies
(A. 1198). In addition, in May 1974, Picardo was indicted
for murder and from that point on devoted less and less
time to his business and more and more of his time in
the defense of the charges against him (A. 1216). In fact,
at the time of Picardo’s conviction for murder in February
of 1975, Liftvan was virtually defunct (A. 2517).
16 An FBI check of the records of the Americana Hotel for
a period which included October and November, 1973 failed to
corroborate Picardo’s tale. On the contrary, FBI Agent Thomas
Smith (A. 3407-3420) testified that he checked the records of the
Americana and found no record of Provenzano, Picardo, or
Andretta being registered guests in the fall of 1973 (A. 3407-3409).
14
Picardo claimed that in the summer of 1974, he
and his associates decided to form a new corporation
to succeed to the rights of Cargo (A. 1194-1195). He
claimed that the reason for the formation of the new
corporation was twofold: to provide the petitioner,
Thomas Andretta, with a legitimate source of inconie;
and second, to take Picardo out of the picture because
many of the steamship companies refused to deal with
him (A. 1195, 2196).
Thereafter, he met with the petitioner Andretta’s
accountant, Thomas Florio, and they mutually agreed
that Andretta’s new corporation would purchase Cargo
for a price of $30,000 (A. 1611-1612).
It was Picardo’s position that the new corporation
would be nothing more than a sham used to funnel
funds from the ghosting operation. Consequently, after
some discussion with the petitioner, Stephen Andretta,
the name FLT was chosen (A. 1198).!? In July of 1974,
FLT took over the operation of Cargo (A. 1198-1200).
Shortly after the formation of FLT, Seatrain began
to phase out Interocean (GX 340).'8 Interocean’s switching
functions were given to a company formed by Ralph
Pellecchia called Di-Jub (A. 1200).
On August 14, 1974 Picardo received a check in
the sum of $12,000 from FLT as the first installment
for the purchase of his business (GX 144). The second
installment for $18,000 was paid at the end of December
'7 Picardo maintained that the name FLT was a joke and an
acronym for a non-existent person. On the other hand, he conceded
that the first names of three of Stephen Andretta’s children coincide
with the initials FLT (A. 1517-1519).
'§ According to the principals of both Seatrain and Interocean,
Interocean was phased out primarily because Seatrain’s Puerto
Rican container operation was shut down. Therefore, Interocean,
the trucking company which served that operation, was no longer
needed.
15
1974 (GX 145). Picardo maintained that he converted
each of these checks to cash and divided the proceeds
among his “associates” (A. 1204-1210).!9
In February of 1975, Picardo was convicted of
conspiracy to commit murder and murder in the second
degree. Following his conviction, he was remanded to the
Hudson County Jail (A. 1217). Though Picardo continued
to have sporadic contact with petitioner, Stephen Andretta
(A. 1217), he no longer actively participated in the alleged
scheme. On the contrary, after all of his attempts to
extricate himself from jail had failed, he began to cooper-
ate with the federal authorities.
Sometime in the summer of 1974, Raymond Rosen
was informed by Pellecchia that FLT would take over
Picardo’s brokerage operation (A. 2193-2194). According
to Rosen, Pellecchia said that despite Picardo’s absence,
everything would be handled by FLT (A. 2196). Thereafter,
and through Labor Day of 1974, FLT supplied Interocean
with drivers and Interocean paid FLT the same fee it had
been paying Cargo (A. 2197-2199).
On Labor Day of 1974, Interocean formally stopped
operating and was replaced in part by Di-Jub (A. 2205-
2207). Thereafter and through December 1976, Di-Jub
paid FLT its commission as the broker for the drivers
(A. 2210-2211, GX 53-60, 224, 230).
In order to corroborate Picardo’s testimony that
FLT was nothing more than a paper corporation used
to funnel funds to his associates, the prosecution called
a series of “owner-operators,” who, for the most part,
had worked for Ralph Pellecchia under contract to Cargo
as switchers in the Seatrain yard prior to 1974, and then
operated under contract to FLT from mid-1974 until
the end of 1976.
(9 Picardo maintained that that $12,000 payment, together
with an additional $18,000 payment made in December of 1974 by
FLT to Cargo (GX 144, 145), was simply additional means through
which he and his associates laundered money.
16
They testified, during the period of their contractual
relationship with FLT, they never had any direct dealings
with FLT; their salary was paid by Di-Jub; and they,
in fact, had no contact with any one connected with
FLT (A. 2567). Although they knew that petitioner,
Thomas Andretta, was the President of FLT, they never
received any instructions from Mr. Andretta.
Sometime toward the end of December 1976, Di-Jub
learned that FLT and its officers were under criminal
investigation. It, therefore, terminated their relationship
(GX 339).
C. The Petitioners’ Case.
The contentions raised by the defense were estab-
lished through the cross-examination of all the prose-
cution witnesses and witnesses for the defense during
the prosecution’s case-in-chief. In addition, the defense
called a number of witnesses to rebut specific allegations
made by the Government'’s informant. See for example, the
testimonies of FBI Agent Bergholtz, A. 3398, ef. seq.;
FBI Agent Smith, A. 3407, et. seq.; FBI Agent Cummings,
A. 3477, et. seq.; and the testimony of Picardo’s attorney,
Dennis McGill, A. 3167, ef. seqg.; and that of Ronald
Kucks, A. 3384, ef. seq.
The contentions are generally contained within
the statement of facts set forth above. A brief summary
of those facts, however, would not be inappropriate.
The petitioners maintained that Ralph Picardo was testi-
fying falsely when he included them as beneficiaries of
the ghosting operation he conducted through Cargo and
against Interocean. In support of their theory, it will be
recalled that Interocean’s dispatchers, Heinlein and Kunze,
conceded being bribed by Picardo so that they would not
reveal his ghosting operation. Moreover, the defendants
contended that Picardo’s ghosting had no relationship
to labor peace. Toward this conclusion, they pointed to
17
the testimony of witnesses, Affsa, Rosen, and Blanken,
the management of Interocean, who asserted that they
had no knowledge of Picardo’s ghosting operation
(Affsa, A. 1955-1956; Blanken, A. 1980, 1997, 2006,
and 2011; Rosen, A. 2217-2269). These same individuals,
however, admitted that they, at Interocean, had con-
ducted their own ghosting operation. They maintained
that this ghosting operation, which was totally independent
of Picardo’s scheme, had its origin in the special relation-
ship that existed between Seatrain and Interocean. They
believed, as did many of the executives at Seatrain, that
the ghosting operation was conducted to cover up
Seatrain’s violation of the tariff regulations.
Consequently, the petitioners urged that any ghosting
operation conducted by Interocean had absolutely
nothing to do with any labor peace. This assumption
was bolstered by the unequivocal testimony of each of
those representatives that they had no knowledge of
Picardo’s scam.
The petitioners also claimed that there was, in fact,
no need for Seatrain and Interocean to seek labor peace
because under the Fair Labor Standards Management
Act, Interocean had no obligation to unionize, and that
the formation of Switching as a union shop was simply
an accommodation to those prior employees of Victory
Motor Transport who did not strike in 1967 (A. 2233).
In addition, the petitioner, Anthony Provenzano, con-
tended that he simply was not involved in the commission
of any offense with relation to either Interocean or
Seatrain.
At the conclusion of all of the evidence (A. 3493),
each of the petitioners renewed their motions pursuant
to Rule 29 for judgment of acquittal. These motions
were in all respects denied (A. 3497).
18
Reasons for Granting the Writ
This petition raises pressing and substantial questions
of interpretation with respect to the Racketeer Influence
Corrupt Organizations (“RICO”) Act (18 U.S.C. § 1961,
et. seq.), which have not yet been considered by this
Court.
The Third Circuit’s interpretation of RICO to
allow an “enterprise” to include an illegal group or
association casts grave doubt on the constitutionality
of the statute and contradicts, we believe, the congressional
intent. This petition also raises a number of issues which
are critically important in the area of how massive pre-
trial publicity can taint a jury panel so as to deprive
criminal defendants of their right to a fair and impartial
jury and to due process of law under the Fifth and Sixth
Amendments to the Constitution of the United States.
Moreover, this case contains a question relating
to defendants’ exclusion from a conference which resolved
the issue of juror misconduct. An issue relating to the
resolution of the juror misconduct issue by the Circuit
Court is contained herein as well. Finally, a due process
issue is raised over the Circuit Court’s resolution of an
erroneous ruling by the trial court relating to the admis-
sion of hearsay evidence.
19
ARGUMENT
POINT I
The Court Below Erred by Failing and Refusing to Excuse
for Cause Several Prospective Jurors Who Were Tainted
by Pre-Trial Media Coverage: By Compelling the Defend-
ants to Exhaust Their Peremptory Challenges in an
Attempt to Exclude Such Individuals, by Failing to Con-
duct an In-Depth Inquiry into the Nature and Effect of
the Pre-Trial Publicity; And by Denying The Non-
Provenzano Defendants’ Motions for Severance and
Change of Venue.
1. The Jury Selection Process.
The process of jury selection commenced on the
morning of May 7, 1979. Concerned with frequent pre-
trial media coverage directed against the appellant’s
co-defendant, Anthony Provenzano, the Trial Court
proceeded to individually question the potential veniremen
regarding their exposure to the media coverage (A. 433,
488, 549 passim).
In ruling on defense requests to dismiss various
panel members for cause, Judge Meanor analytically
classified those 42 individuals exhibiting familiarity with
the case or the defendants into two categories (A. 4157-
4158). The first category included those veniremen who
were familiar with Mr. Provenzano’s prior murder con-
viction. As to this category, the Court below, with the
consent of the Government, granted defense challenges for
cause (A. 750-752).
The second grouping included numerous panel
members who exhibited a wide variety of prejudicial
connotations relative to the petitioner Provenzano. In most
part, these connotations concerned Mr. Provenzano’s
purported organized crime associations. Provenzano
was stated to be familiar to these jurors as being con-
nected with the “Mafia” or “mob” (A. 518-520, 709);
as a “gangster” (A. 532); a “racketeer” (A. 727, 784);
20
an “underworld figure” (A. 727); or as otherwise being
a member of organized crime (A. 588). Also included
in this category were those veniremen who identified
Mr. Provenzano as involved in “kickbacks into unions”
(A. 589); “paybacks” (A. 725); and “extortion” (A. 600,
725). Jurors associating Mr. Provenzano with the dis-
appearance and/or murder of James R. Hoffa also
fell into this grouping (A. 602, 777) as did jurors citing
Mr. Provenzano’s involvement in union dealings.
As to those jurors included in this second analytical
category, defense challenges for cause were denied by
the Trial Court. As a result, defense counsel, who col-
lectively exercised 14 peremptory challenges, were com-
pelled to exhaust such challenges in an effort to exclude
these veniremen from sitting in judgment of the peti-
tioners.°
Of the 12 panel members ultimately seated, 9 had
read or heard of the case or the defendants.?! Included
among the 9 were two (Jury Members 3 and 5) who had
read or heard of the case that very morning. Another
seated juror had heard of petitioner Provenzano “pretty
regularly the past year,” via newspaper and television,
in the context of “racketeering” (A. 784). The sworn
panel also included a juror who had heard of Mr. Pro-
venzano’s involvement “in some criminal proceedings”
(A. 614).
Sworn as an alternate (Panel Member #52), was
another individual who had read about petitioner Pro-
venzano in that morning’s newspaper. Stated this Juror:
20 This was the total exercise as to both regular and alternate
jurors. Of the 14 challenges exercised peremptorily, 12 had some
adverse knowledge of the petitioner Provenzano.
2! Panel Members Nos. 3 (Juror #5); 10 (Juror #3); 20 (Juror
#1); 26 (Juror #10); 30 (Juror #12); 49 (Juror #9); 54 (Juror #7);
56 (Juror #2); and 61 (Juror #4).
21
“He (Provenzano) was an alleged racketeer and
. . .he was brought up on charges. Extortion.
Paybacks (A. 725). . .he’s supposed to be an alleged
racketeer or whatever, an. underworld figure
(A. 727).”
Only three of the twelve regular jurors had not
originally heard or read of the case.?2 On the other hand,
the Government exercised numerous peremptory chal-
lenges in excluding those individuals who had not heard
of the case or of the petitioner Provenzano,?? or whose
acquaintance with such publicity was so sparse that
they were unable to cite any prejudicial context.”4
2. The Trial Court Erred by Failing to Excuse for Cause
Individuals Tainted by Pre-Trial Media Coverage and by
Compelling the Petitioners to Exhaust Peremptory
Challenges in an Effort to Exclude Such Individuals.
The right to a jury trial guarantees an accused a
fair trial by a panel of impartial, “indifferent jurors.”
Irwin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642
(1961). The primary method used to achieve this right to
trial by indifferent or impartial jurors is through the notion
of challenges exercised during the jury voir dire. United
States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977), It,
therefore, follows that inhibition of the right to challenge
for cause or peremptorily is deemed prejudicial error
without the need to show actual prejudice. Swain v.
Alabama, 380 U.S. 202, 219, 85 S.Ct. 824 (1965). Applying
this standard, the United States Court of Appeals for
the Fifth Circuit found it reversible error to force a
party to exhaust his peremptory challenges on a person
who should have been excused for cause for this “has
the effect of abridging the right to exercise peremptory
22 Panel Members Nos. 17 (Juror #8); 23 (Juror #11); and
60 (Juror #6).
23 Panel Members Nos. 12, 24, and 37.
24 Panel Members Nos. 18, 22, and 29.
22
challenges.” United States v. Nell, 526 F.2d 1223, 1229
(Sth Cir. 1976). See also United States v. Eubanks, 591
F.2d 513, 516-517 (9th Cir. 1979). A Trial Court must,
therefore, excuse a prospective juror if actual bias is
discovered during the voir dire. Actual bias, however,
is not always discovered by the exp.esseadmission of a
prospective juror. Often a putative venireman is reluctant
to admit actual bias and the peculiarity of his or her
attitudes must be revealed by “circumstantial evidence.”
See Kiernan v. Van Schaik, 347 F.2d 775, 781 (3d Cir.
1965). In the instant case, the “circumstantial evidence,”
which demonstrated actual bias in a number of prospective
jurors, was based in large measure on media coverage
of the petitioner Provenzano.
In Murphy v. Florida, 421 U.S. 794, 85 S.Ct. 2031
(1975), the United States Supreme Court had occasion
to enumerate the guiding principles controlling the
selection of jurors exposed to pre-trial publicity or
knowledge.
The Supreme Court in Murphy declined to reverse
the defendant’s conviction. In so doing, it defined the
minimal constitutional standard, to be applied when
reviewing state cases, as follows:
“Qualified jurors need not be totally ignorant
of the facts and issues involved; it is sufficient
if the juror can lay aside his impression or opinion
and render a verdict based on the evidence pre-
sented in Court.” 421 U.S. at 800.
The Court, in reasoning that reversal of Murphy’s
conviction was not constitutionally compelled, stated
that while some of the jurors had a vague recollection
of the robbery with which petitioner was charged, and
each had some knowledge of his past crimes, none
betrayed any deep impression of Murphy or a belief
in the relevance of his past to the case at hand.
In so deciding, the Murphy Court distinguished those
instances where a federal appellate tribunal is reviewing
decisions of federal trial courts, and expressly cited its
23
decision in Marshall v. United States, 360 U.S. 310,
L.Ed. 2d 1250, 79 S.Ct. 1171 (1959) and the decision
of the Third Circuit Court of Appeals in United States
ex. rel. Doggett v. Yeager, 472 F.2d 229 (3d Cir. 1973).
In such instances, noted the Court, a less stricter standard
of scrutiny will prevail.?5
Marshall, supra, which contains the standard of
review for federal cases, involved two newspaper articles
containing prejudicial information which reached a
substantial number of the jurors during the trial. The
Trial Court, as in the case sub judice, summoned the
jurors into his chambers and inquired individually
whether they had seen the articles. Each of the jurors
replied that they would not be influenced by the articles,
that they would decide the case strictly on the evidence,
and that they felt no prejudice as a result of the articles.
Nevertheless, in the exercise of its supervisory power to
formulate and apply proper standards for enforcement of
criminal law in the federal courts, and not as a matter
of constitutional compulsion, the Supreme Court reversed
defendant’s conviction and ordered that a new trial be
granted. Obviously this Court did not believe that the
mere expurgatory oath taken by the jurors who had
seen the news stories was sufficient to purge them of
probable bias. In the case sub judice, the Trial Court
admitted that the petitioner Provenzano appeared
frequently in the media (A. 549). On at least three occasions
during the voir dire, the trial judge expressed his belief
that no jury could be impaneled in the Newark area which
had not heard Mr. Provenzano’s name in one context
or another (A. 549, 699, 705).
Upon being asked whether they could sit and judge the
petitioners fairly and impartially, many of the veniremen
expressed their belief that they could do so. However,
25 Indeed, it is interesting to note that Chief Justice Burger,
concurring in Murphy, opined that while the circumstances involved
did not rise to a violation of the Due Process Clause of the Four-
teenth Amendment, he would not hesitate to reverse Murphy's
conviction in the exercise of the Court’s supervisory powers were
it a federal case. 421 U.S. at p. 084.
24
even under the stricter constitutional standard, such
assurances could not be taken at face value based upon
what the trial judge expressly recognized to be wide-
spread pre-trial publicity, and all inferences must be
drawn against such casual assurances. Where, as here,
most veniremen have been exposed to such publicity,
the reliability of their protestations of impartiality must
be drawn into question. Merely going through the form
of obtaining the jurors’ assurances that they are equal to the
task will not suffice. Cf, Murphy v. Florida, supra,
421 U.S. at 800; United States ex. rel. Bloeth v. Denno,
313 F.2d 364, 372 (2d Cir. 1963), cert. den. Denno vy.
Bloeth, 83 S.Ct. 112, 373 U.S. 978, 10 L.Ed. 2d 143;
Silverthorne v. United States, 400 F.2d 627 (9th Cir.
1968), appeal after remand, 430 F.2d 675 (1970), cert.
den. 400 U.S. 1022, 91 S.Ct. 585, 27 L.Ed. 2d 633.
As noted by the United States Court of Appeals for
the First Circuit in Delaney v. United States, 199 F.2d
107, 112-113 (1st Cir, 1952):
“One cannot assume that the average juror is
so endowed with a sense of detachment, so clear
in his introspective perception of his own mental
processes, that he may confidently exclude even
the unconscious influence of his preconceptions
as to probable guilt, engendered by a pervasive
pre-trial publicity.”
In United States ex. rel. Doggett v. Yeager, 472
F.2d 229 (3d Cir. 1973) (later stated by the Murphy
Court to have applied the less stringent Marshall standard
when dealing with federal cases, this Court, in remanding
for a new trial, cited the American Bar Association
Project on Standards for Criminal Justice, Fair Trial,
Free Press, § 3.4(b):
“A prospective juror who has been exposed to and
remembers reports of highly significant informa-
tion, such as the existence or contents of a con-
fession, or other incriminatory matters that may
25
be inadmissible in evidence, or substantial amounts
of inflammatory materials, shall be subject to
challenge for cause without regard to his testi-
mony as to state of mind. (emphasis supplied)
Applying the Marshall- Yeager standard to the facts
of this instant case, one is left with an abiding conviction
that the petitioners were compelled to exercise peremptory
challenges to excuse the jurors who should have been
excused for cause. Typical attempts at judicial ablution
resulted in the following: Panel Member No. 9, Nancy
Swanson -- stated that while she would “try to suppress
her prior knowledge of petitioner Provenzano as a “Mafia”
member, “I don’t know though” (A. 520-521). A defense
challenge for cause was denied by the Trial Court (A. 546)
and petitioners were required to exercise one of their
peremptory challenges (A. 546, 748).
Panel Member No. 11, Edward Popek -- stated
that he “guesses” he could put the publicity out of his
mind (A. 526). Again the defense took a peremptory
challenge.
Panel Member No. 14, Nancy Veit -- knew peti-
tioner Provenzano as a “gangster.” As to her ability
to decide the case fairly, she stated “Yeah, I think -- |
don’t know. . .I think so” (A. 533). The Trial Court twice
refused to excuse Ms. Veit for cause (A. 547, 805), and
the defense again challenged peremptorily (A. 547).
Panel Member No. 59, Michael Sverada -- identified
Mr. Provenzano with the Hoffa disappearance. When
asked if the pre-trial accounts would influence him,
he stated, “I don’t think so. Maybe. I don’t know. I
don’t think so” (A. 778). Once again a peremptory
challenge was employed to exclude Mr. Sverada.
Panel Member No. 21, Loretta Leckie -- identified
the petitioner Provenzano as a member of “organized
crime” (A. 588). When asked if she could render a fair
and impartial verdict, she responded “Yes, I think I
could” (A. 590).
26
A careful reading of the entire voir dire reveals that
although most of the panel members who were interviewed
exhibited a superficial willingness to put aside their bias,
they, in reality, could not. Where a juror’s protestation
of unaffected impartiality is unconvincing or doubtful,
as in the instant case, a new trial must be ordered. (c.f.)
Irwin v. Dowd, 366 U.S. 717, 6 L.Ed. 2d 751, 81 S.Ct.
1639 (1961); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct.
1417, 10 L.Ed. 2d 663 (1963); Delaney v. United States,
supra.?6
However, in that case the Court erroneously applied
the Murphy standard and none of the tainted jurors served
on the panel. In United States v. Nell, supra, the Court
stated:
“We have no psychic calibers with which to measure
the purity of the prospective juror; rather, our
mundane experience must guide us to the impartial
jury promised by the Sixth Amendment. Doubts
about the existence of actual bias should be resolved
against permitting the juror to serve, unless the
prospective panelist’s protestation of a purge of
preconception is positive, not pallid.” 526 F.2d
at 1230.
Further comments by the Ne// Court as to the import
of peremptory challenges are particularly relevant to
the case sub judice.
“The jury box is a holy place. To ensure that those
who enter are purged of prejudice, both challenges
for cause and the full complement of peremptory
challenges are crucial. Therefore, as a general rule,
it is error for a court to exhaust his peremptory
challenges on persons who should be excused for
cause, for this has the effect of abridging the right
to exercise peremptory challenges. (Citations
26 The defendant is not unmindful of the decision of the Sixth
Circuit in United States v. Giacalone, 588 F.2d 1158 (6th Cir. 1978).
27
omitted). At stake is the party’s right guaranteed
by the Sixth Amendment to an impartial jury;
the principal way this right is implemented is
through the system of challenges exercised during
the voir dire of prospective jurors.” 526 F.2d
at 1226.
In the case sub judice, the defendants collectively
exercised all their peremptory challenges. As noted,
most were necessarily taken on panel members whose
stated ability to be impartial was less than steadfast.
As also noted earlier, the defense was required
to employ peremptory challenges on other jurors exhib-
iting knowledge of the case whom the Trial Court had
declined to excuse for cause. These jurors variously
identified petitioner Provenzano as a “Mafia” member,
a “gangster,” and an “organized crime” figure, as well
as being involved in “kickbacks into unions” and union
activities.
The refusal of the Trial Court to dismiss these
jurors for cause is especially significant in view of the
nature of the Government’s case against the defendants.
The indictment charged these defendants with engaging
in an organized conspiracy to unlawfully accept pay-
ments in return for labor peace. The chief prosecutor
made clear in his opening statement that the charges
against the defendants involved “labor racketeering”
(A. 835). The key prosecution witness, Ralph Picardo, went
to great lengths to consistently emphasize that illegal
payments were being made to an “association” of indi-
viduals, including Thomas and Stephen Andretta, and
guided by Anthony Provenzano.
Pre-trial publicity, which links a defendant with
persons who are called “mob,” “underworld,” “gangster,”
“racketeers,” etc., changes the way jurors perceive that
defendant, reduces the credibility of the defendant, and
raises the resistance of jurors to anything said by or on
28
behalf of the defendant. Jurors predisposed to so cate-
gorize the petitioner Provenzano could naturally be
expected to take a similar view toward these defendants
by virtue of their social or business acquaintances with
him. As a result of such publicity, these jurors would be
predisposed to see these defendants as guilty and to
opt toward guilt in their deliberations.
“The influence that lurks in an opinion once
formed is so persistent that it unconsciously
fights detachment from the mental processes
of the average man.” /rwin v. Dowd, 366 U.S.
717, 727, 6 L.Ed. 2d 751, 579, 81 S.Ct. 1639 (1961).
The Supreme Court has stated that the peremptory
challenge, although not required by the Constitution,
is “one of the most important of the rights secured to
the accused,” and that “the denial or impairment of
the right is reversible error without a showing of preju-
dice.” Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824,
385, 13 L.Ed. 2d 759 (1965).
“For it is as Blackstone says, an arbitrary and
capricious right; and it must be exercised with
full freedom, or it fails of its full purpose.” Lewis
v. United States, 146 U.S. 370, 378, 36 L.Ed. 1011,
1014, 13 S.Ct. 136.
See also, United States v. Dellinger, 472 F.2d 340 (7th
Cir. 1972), cert. denied, 410 U.S. 970, 93 S.Ct. 1443,
35 L.Ed. 2d 706 (1973).
The evil sought to be prevented is that a defendant
not be compelled to accept an objectionable juror due
to the fact that he be forced to utilize one of his peremptory
challenges to excuse a juror who should have been excused
for cause. In requiring these defendants to exhaust
their peremptory challenges to excuse jurors exhibiting
such prejudicial preconceptions as aforesaid, they were
denied their basic right to exclude peremptorily those
veniremen who may have otherwise been objectionable.
29
3. The Trial Court Erred in Failing to Inquire Further
into the Nature and Effect of the Pre-Trial Publicity.
Many jurors when questioned stated their ability to
be fair despite their prior knowledge of the case. Defense
counsel protested their not being given an adequate
opportunity to demonstrate that the individuals were,
in fact, irreparably prejudicial and should be subjected
to challenge for cause (A. 698-699).
‘
In particular, one panel member indicated that
there had been discussions among the jury panel regarding
petitioner Provenzano and the fact that he was currently
serving a 99-year sentence pursuant to a murder con-
viction. The Trial Court refused to pursue the matter
of such prejudicial discussions among jurors, despite
stringent defense requests to do so (A. 720-723).
It has long been held that:
“The theory of our system is that the conclusions
to be reached in a case will be induced only by
evidence and argument in open court, and not
by any outside influence, whether of private
talk or public print.” Patterson v. Colorado,
205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879
(1907).
Although the Trial Court has broad discretion
in its conduct of voir dire, Ristaino v. Ross, 424 U.S.
589, 594, 96 S.Ct. 1017, 47 L.Ed. 2d 258 (1956), its exer-
cise of that discretion is “subject to the essential demands
of fairness.” Aldridge v. United States, 283 U.S. 308, 310,
75 L.Ed. 1054, 1056, 51 S.Ct. 470, 471 (1931).
In refusing to afford defense counsel the opportunity
to further pursue the dissemination of prejudicial
information among the jurors and to ask those questions
which they considered necessary for fully exercising
their challenges, the Trial Court abused its discretion.
The failure to adequately inquire into the effect of pre-
trial publicity upon the jurors or to inquire whether
30
the jurors exposed to the prejudicial information dis-
cusse” it with others constituted error mandating reversal
of the petitioners’ convictions. See, e.g., United States
ex. rel. Doggett v. Yeager, 472 F.2d 229 (3d Cir. 1973);
United States v. Dellinger, supra; Silverthorne v. United
States, 400 F.2d 627 (9th Cir. 1968), appeal after remand,
430 F.2d 675 (1970), cert. denied, 400 U.S. 1022, 91 S.Ct.
585, 27 L.Ed. 2d 633.
4. The Trial Court Erroneously Denied Defense Motions
for Severance and Change of Venue.
Faced with the widespread media identification of
co-petitioner Provenzano, the denial of their challenges for
cause, the fact that they were required to exercise their
challenges jointly with the petitioner Provenzano, and
the curtailment of their unfettered right to exercise
peremptory challenges, defense counsel moved the Court to
consider other alternatives.
Petitioners Thomas and Stephen Andretta and
Gabriel Briguglio, moved for severance in an effort
to free themselves from the taint manifestly attributable to
Provenzano (A. 722-723). However, the Trial. Court
declined the request to sever.
Defense counsel also moved for a change of venue
(A. 791). Notwithstanding that the Trial Court on three
occasions expressed its belief that no jury could be
impaneled in the Newark area that had not been exposed
to the media coverage (A. 549, 699, 705), it declined
to transfer venue.
Courts have repeatedly held that the opportunity
provided by voir dire examination is no substitute for
a venue change from a community impregnated with
prejudice. The Supreme Court has explicitly recognized
that voir dire may be inadequate because it is often
impossible to determine, much less defeat, the subtle
operation of prejudice in a criminal trial in a particular
31
community. Jrwin v. Dowd, supra; Rideau v. Louisiana,
supra; Sheppard v. Maxwell, 384 U.S. 333 (1966).
This reviewing tribunal, in rejecting various chal-
lenges to the voir dire examination of prospective jurors,
has repeatedly highlighted the utility of a change of
vicinage. See, e.g., United States v. Dansker, 537 F.2d
40 (3d Cir. 1976) (jury selected from different vicinage);
United States v. Addonizio, 451 F.2d 49 (3d Cir. 1972),
cert. denied, 92 S.Ct. 949, 405 U.S. 936, 30 L.Ed. 2d
812, rehearing denied, 92 S.Ct. 1309, 405 U.S. 1048,
31 L.Ed. 2d 591 (Trial Court transferred the proceedings
from Newark to Trenton vicinage; court dismissed on
its own motion each prospective juror who indicated
extensive exposure to pre-trial publicity, without regard
to protestations of impartiality). The failure of the
Trial Court, obviously cognizant of the widespread
media attention in the Newark area as reflected in the
responses of the potential jurors, to transfer venue to
a vicinage where the effects of pre-trial publicity would
be minimized can only be classified as error requiring
reversal of these petitioners’ convictions.
In conclusion, it is difficult to imagine a jury selection
more laden with prejudicial overtones than the case at
bar.2? When one adds the fact that the jury panel then
actually discussed a prior conviction and sentence of
a petitioner (Provenzano -- 99 years for murder) and
the Court stonewalled the defense counsel from pursuing
an inquiry as to the effect of this conversation, reversal
becomes even more mandated. Such events were not
27 While petitioners feel that substantial prejudice has been
adequately demonstrated under any test the Circuit Court's appli-
cation of the facts of United States v. D'Andrea, 495 F.2d 1170
(3d Cir. 1974), cert. denied, 419 U.S. 855 (1974) to the instant case
seems misplaced. D’Andrea’s “prejudice” was one article, in one paper
on the 35th day of trial after the evidence had been given to the
jury, and which was read by only one juror and one alternate and con-
tained nothing directly incriminating with the case on trial (referred
to an assault charge in another jurisdiction from the present tax
evasion charge). The dissemblence is amazing save an abiding faith
in the juror’s assurance of continuing impartiality.
32
unavoidable. Surely jurors who had no preconceived
notion of the petitioner could have been brought to
Court if the Presiding Officer were not overly concerned
with a quick jury selection. If his fears that no such jury
were possible in the Newark area, then a change of venue
remedied the problem. No curative measures were taken
or attempted.
POINT II
The Circuit Court’s Resolution of the Juror Misconduct
Issue Was Constitutionally Erroneous.
Despite the fact that one regular juror and two
alternates were found to have engaged in criminal conduct
while the jury was sequestered, the Court of Appeals
found no error arising from the incident. By condoning
the conduct of these jurors, who apparently thought
of their service more as a party than a solemn under-
taking, the Court not only countenanced a violation
of the integrity of the entire federal court system but,
more importantly, deprived petitioners of their Sixth
Amendment right to a fair and impartial jury. Furthermore,
the Court’s error was compounded by its failure to even
address petitioners’ request for an evidentiary hearing
at which the extent of the jurors’ misconduct and its
effect upon them could be explored.
The Court of Appeals, without “engaging in extended
philosophical discussion” of where the line might be
drawn “in a proper case,” simply held that “public knowl-
edge that sitting jurors were smoking marijuana does
not create such an appearance of impropriety as to warrant
reversal of convictions where the jurors were not dis-
missed.” (Slip. Op. 19-20.) By so holding, the Court
went far wide of the mark. While it belies reality to sug-
33
gest that there is no “appearance of impropriety”?8
in permitting jurors, particularly when sequestered,
to violate the law by smoking marijuana,”? this is merely
the beginning of the inquiry, not the end.
The Court of Appeals went on to state that there
was “no serious contention that the drug’s intoxicating
effect affected the jurors’ ability to hear evidence or to
deliberate.” (Slip. Op. 20.) Noting that the consumption
of alcohol is “not prejudicial as a matter of law,” they
held that “appellants have not demonstrated prejudice
as required by such cases as” United States v. Talisferro,
558 F.2d 724, 726 (4th Cir. 1977), cert. denied, 434 U.S.
1016 (1978), and United States v. Klee, 494 F.2d 399,
395 (9th Cir. 1974), cert. denied, 419 U.S. 835 (1974).
That reasoning was shockingly faulty in several respects.
First, petitioners did, and do, seriously contend
that the use of marijuana could affect the mind of the
jurors and therefore their ability to properly receive
and deliberate upon the evidence. Indeed, petitioners
specifically cited a recent Government study dealing
with the long-term effect of marijuana in the human
mind. Marijuana, Research Findings 1976, pp. 140-141
(U.S. Dept. of HEW, 1977). Secondly, and more import-
antly, petitioners were denied a hearing at which they
might have developed evidence concerning the use of
28 As Judge Seitz said, speaking for this same court in United
States ex rel. Stewart v. Hewitt, 517 F.2d 993, 996 (3d Cir. 1975),
the appearance of impropriety has the necessary consequence of
“infecting public respect for the verdict.”
29 As the Court of Appeals correctly noted, possession of
marijuana is illegal under both federal and state law. (Slip. Op. 19).
34
marijuana by this juror, and possibly others,3° and
at which expert testimony could have been presented with
respect to marijuana’s deleterious effect on the mind.
It is the denial of a hearing which makes the Court’s
reliance upon United States v. Taliaferro, supra, so
misplaced, for in that case a full evidentiary hearing
was conducted. See also, United States v. Allen, 588
F.2d 1100 (Sth Cir. 1979). Indeed, it seems almost beyond
question that when juror misconduct raises a reasonable
doubt as to the integrity of the jury, a hearing is required.
See United States v. Moten, 582 F.2d 667 (2d Cir. 1978).
The Sixth Amendment guarantees a defendant
“trial by a panel of impartial, ‘indifferent’ jurors.”
Irwin v. Dowd, 366 U.S. 717, 722 (1961). Included in
that guarantee, petitioners suggest, is an absolute right
to the judgment of jurors whose minds are not, nor could
even be suspected of being, clouded or befuddled by
the use of drugs. That right is hardly satisfied by the
Trial Court’s observation, months after the event, that
the jurors had seemed to him to be functioning normally
(Slip. Op. 20; SA 58-59).3! As one state court noted,
in an old case dealing with alcohol intoxication, “jurors
whose minds are clouded. . .and their powers of con-
ception blunted by its effects, are incompetent to appre-
ciate the high responsibilities of their duties.” United
States v. Spencer, 47 P. 715 (N.M. 1896). Nor is the
fact that only one regular juror was involved of any
significance. As this Court has said, a defendant “is
entitled to be tried by 12, not 9 or even 10, impartial
30 The entire incident cried out for a hearing to determine,
among other things, whether other jurors had participated in the
same misconduct. The marijuana had been passed to the regular
juror by a visitor on Sunday. It is not fanciful to suggest that she
might have shared it with others on Sunday, Monday or on Tuesday
before they were discovered.
31 SA references are to the joint supplemental appendix.
35
and unprejudiced jurors” Parker v. Gladden, 385 U.S.
363, 366 (1966).°2
Apart from the Sixth Amendment violation, this
incident calls for the exercise of this Court’s supervisory
power which, as noted recently in United States v. Payner,
US. (June 23, 1980), is still alive and well.
As Mr. Justice Brennan said in his dissent, the super-
visory power is exercised “to protect the integrity of
the court, rather than to vindicate the constitutional
rights of the defendant. . . .”33 There could hardly be a
more appropriate case than the present one for invocation
of this power to reaffirm the integrity of the judicial
system. The decision below condones the most egregious
type of juror misconduct and places its stamp of approval
on the trial judge’s view that this matter was simply a
“tempest in a teapot” (SA 98). Petitioners suggest that
such an assessment of the incident entirely misses its
significance, not only for these defendants but for the
administration of justice as well. This Court should
grant review in order to condemn this conduct in the
strongest of terms, thereby securing petitioners’ right to
a fair trial and the Court’s right to an untarnished judicial
system.*4.
32 The jurors’ impartiality was also seriously undermined by
the court’s conferring of de facto immunity for their conduct. The
Court of Appeals rejected petitioners’ suggestion that the court's
assurances might prejudice the jurors toward the government, noting
that it was defense counsel who asked for some comment of this
type. (Slip. Op. 20-21.) But the dilemma was not of defendants’
making. The possibility that the jurors might be biased whether
given an assurance or not, simply strengthens petitioners’ position
that the only sure remedy was for the court to sua sponte excuse
the offending jurors.
33 It is precisely because the aim is to protect the integrity of
the court system, and not the defendants, that defense counsel's
acquiesence in retention of this juror is of no moment. (Slip. Op.
19.) This was the position urged by petitioners before the Court
of Appeals.
3 At the very least, this Court should summarily remand the
case for a full hearing on the juror misconduct, its extent and its
effect.
36
POINT III
A Split Among the Circuits on the Issue of Defendants’
Presence At a Conference on a Juror Issue Makes Review
by This Court Appropriate.
Though agreeing that none of the defendants were
personally present at the conference in chambers when
counsel were informed of the marijuana incident, and
that none of the defendants learned of the event until
after the trial (Slip. Op. 19), the Court held that “there
is no constitutional right for a defendant to be present
at a conference in chambers concerning dismissai of a
juror” (emphasis in original) (Slip. Op. 21). This holding
confirms and further widens a split among the Circuits
on this important issue. The Court’s opinion also rejects
the view of most other Circuits that such a conference
comes within the purview of Rule 43 Fed. R. Crim. P.
Neither of these questions have been addressed by this
Court in recent times.
The constitutional issue flows from this Court’s
decisions as far back as Hopt v. Utah, 110 U.S. 574
(1884), and Snyder v. Massachusetts, 291 U.S. 97 (1934).
In the latter case this Court held that the due process
clause gave the defendant a privilege to be personally
present “whenever his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend
against the charge.” 291 U.S. at 105. His presence is
mandated “to the extent that a fair and just hearing
would be thwarted by his presence.” /d. at 107-108;
Faretta v. California, 422 U.S. 806, 819 n.45 (1975).
On the other hand, the defendant need not be present
“if his presence would be useless or the benefit but a
shadow.” Snyder, supra, at 106.
The view espoused by the Third Circuit in this case
is apparently shared by the Fifth, United States v. Howell,
514 F.2d 710 (Sth Cir. 1975), and the Sixth, United States
37
v. Brown, 571 F.2d 980 (6th Cir. 1978).35 Expressing
a contrary view are the Eighth Circuit, Blackwell v.
Brewer, 562 F.2d 596 (8th Cir. 1977); Nevels v. Parratt, 596
F.2d 344, 346 (8th Cir. 1979); and the Fourth, Near v.
Cunningham, 313 F.2d 929 (4th Cir. 1963), as well as
several well-reasoned state court decisions. Bunch v.
State, 381 A.2d 1142 (Md. 1978); Commonwealth v.
Robichaud, 264 N.E.2d 374 (Mass. 1970); People v.
Harris, 204 N.W.2d 734 (Mich. App. 1972). The position
of the Tenth Circuit is somewhat ambiguous. Compare
United States v. Baca, 494 F.2d 424 (10th Cir. 1974)
with Ellis v. Oklahoma, 430 F.2d 1352 (10th Cir. 1970),
cert. denied, 401 U.S. 1010 (1971).
In Bunch v. State, supra, a juror sent a note to
the court indicating that he might be biased. The defend-
ant was not permitted to be present at a conference
between counsel and the court at which the matter
was discussed and ruled upon. Noting that Maryland
had a court rule virtually identical to Federal Rule 43,
and particularly mindful of the constitutional under-
pinnings of the rule, the court held that proceedings
at which questions of juror disqualification are determined
are stages of the trial requiring the defendant’s presence,
just as much as the initial impaneling of the jury. 381 A.2d
at 1144-1145. In Commonwealth v. Robichaud, supra, the
defendant was also excluded from an inquiry into juror
misconduct at which his attorney was present. The court
concluded the defendant’s presence at such a hearing
38 Where both the defendant and his attorney were absent from
the conference the court reached a different result. United States v.
Gay, 522 F.2d 435 (6th Cir. 1975). It is important to note that in
Brown, as in United States v. Baca, the offending juror was excused,
rather than retained as in this case. Clearly, the court has a great
deal more leeway in excusing questionable jurors than in keeping
them on the jury.
38
“no less crucial as a safeguard of his right to an impartial
jury” than when the jurors are initially examined. Indeed,
the fact that the trial judge found no misconduct war-
ranting relief did not dictate a contrary result. The
important point, the court noted, was that defendant’s
presence might have been of value to his attorney. Nevels v.
Parratt, supra; Ellis v. Oklahoma, supra; and Near y.
Cunningham, supra, all hold that defendant’s absence
from such a conference requires a presumption of pre-
judice due to the constitutional violation involved.
The opinion below has also created a divergence
of views among the circuits on the proper interpretation
of Rule 43. The Court held that the in-chambers con-
ference on juror misconduct “concerned only a question
of law,” thereby falling within the exception provided
by Subsection (c) of Rule 43 (Slip. Op. 22). However,
as the Court acknowledged, that holding is directly
contrary to both United States v. Brown, supra, and
United States v. Baca, supra, the two cases upon which
the Court relied in rejecting petitioners’ constitutional
argument. Thus, with its decision the Court has created
a new split among the Circuits.
The Court’s view that petitioners somehow waived
their Rule 43 right by virtue of their counsel’s failure
to object, is not only specious but circular. If the right
is personal to the defendant and if the defendant is never
informed of the conference by his attorney, it is difficult
to see how he could waive a right of which he never
became aware.36 Adoption of that waiver rationale
would simply negate the Rule.
The Court’s suggestion that any error is cured by
the harmless error doctrine (Slip. Op. 22) does not solve
36 On this waiver issue the court never mentioned that at least
twice earlier in the trial petitioners had specifically requested to
be present at all side-bar and in-chambers conferences (A. 1023-1025,
A. 1215), requests which were denied.
39
the problem, but simply further complicates it. The
Government’s burden to demonstrate harmless error in
this situation is a heavy one. Blackwell v. Brewer, supra.
The standard is not whether the defendant was actually
prejudiced, but whether there was “any reasonable possi-
bility of prejudice.” Wade v. United States, 441 F.2d
1046, 1050 (D.C. Cir. 1971). In effect, because of the
constitutional basis of the right involved, prejudice is
presumed and the record must completely negate any
reasonable possibility of prejudice. Ellis v. Oklahoma,
supra. Where the matter discussed at the conference is
not trivial or insubstantial, it cannot be found to be
harmless. Evans v. United States, 284 F.2d 393, 395 (6th
Cir. 1960). Clearly, the issue of juror misconduct could
rarely be found harmless under these standards, and
certainly not in this case. The Court’s statement that
it is “fanciful” for petitioners to suggest that they would
have demanded replacement of the offending juror if they
had been present at the conference (Slip. Op. 22) is itself
fanciful. The only competent evidence of what petitioners
would have done is found in their own affidavit, where
they categorically state that they would have insisted
on the juror’s removal. It is also difficult to subscribe
to the Court’s view that counsel “vigorously safeguarded”
petitioners’ interests when they did not even inform
them as to the subject matter of the conference. Petitioners’
presence would have been far from “useless.” Rather,
it bore a “reasonably substantial relationship to his
opportunity to defend.” Snyder v. Massachusetts, supra.
With respect to the constitutional issue involved,
the interpretation of Rule 43, and the application of
the harmless error doctrine to either or both of these
issues, this case clearly merits review.
40
POINT IV
The Circuit Court’s Invocation of the Second Circuit's
“Rosenstein Rule” Deprived Petitioners of Due Process;
Examination by This Court of the “Rosenstein Rule” Is
Both Timely and Appropriate.
The case against Provenzano, as even the District
Court acknowledged,?”? was a close one. It was argued
in the Circuit Court that in a case as close as this one,
erroneous admission of prejudicial hearsay could have
been “the weight that tipped the scales” against Peti-
tioners. Krulewitch v. United States, 336 U.S. 440 (1949).
This observation served as the backdrop of the claim
that the District Court had erred in admitting hearsay
which unfairly bolstered what was claimed to have been
the highly suspect testimony of the Government’s principal
witness, Ralph Picardo. The specific claim was that
Picardo’s statements to others, not in furtherance of
the conspiracy, and thus not admissible under Fed. R.
Evid. 801(d)(2)(E) constituted narrative hearsay which
was clearly inadmissible. The “in furtherance” require-
ment is, of course, an important feature of the Rule.
United States v. Nixon, 418 U.S. 683, 702 (1974); Anderson
v. United States, 417 U.S. 211, 218-19 (1974). Thus,
under Rule 104(a) of the Federal Rules of Evidence
it was incumbent upon the District Court to find that
the questioned statements inter alia were made in further-
ance of the conspiracy before admitting them.
In its opinion (page 28) the Court agreed that at
least with respect to some of these statements the Trial
Court had misconstrued the Rule and thus erroneously
admitted the testimony. Although making no finding of
harmless error the Court nevertheless affirmed the con-
viction upon the ground that these statements were admis-
sible under an alternate theory, never argued by the
37 The trial court stated that direct evidence of Provenzano’s
involvement in the conspiracy alleged was “rather sparse.” (A. 3344).
41
Government in the Trial Court, that the statements
were introducible as prior consistent statements under
Fed. R. Evid. 801(d)(1)(B). For this proposition the
Circuit Court relied upon a seven-year-old decision
of the Second Circuit Court of Appeals in United States
v. Rosenstein, 474 F.2d 705, 711-713 (2d Cir. 1973).
In short, Rosenstein stands for the proposition
that a conviction may be affirmed on appeal for reasons
different than those followed in the Trial Court, as long
as the questioned evidence would be alternatively admis-
sible for the same purpose. But application of Rosenstein,
which has now spread beyond the Second Circuit, works an
unfairly inconsistent result. It allows the Government
an advantage on appeal not shared by criminal defend-
ants. And it is also that this advantage is one that
is plainly contradicted by the Federal Rules of Criminal
Procedure.
Rule 12(f) of the Federal Rules of Criminal Pro-
cedure clearly states that “failure by a party to raise. . .
objections. . .shall constitute waiver thereof, but the
court for cause shown may grant relief from the waiver.”
This Rule has caused courts, including the Second Circuit
Court of Appeals, to hold as in United States v. Braunig,
553 F.2d 777, 780 (2d Cir.), cert. denied, 431 U.S. 959
(1977), that:
“ . .where a party has shifted his position on
appeal and advances arguments available but
not pressed below, United States v. Schwartz,
535 F.2d 160, 163 (2d Cir. 1976), and where that
party has had ample opportunity to make the
point in the trial court in a timely manner, United
States v. Rollins, 522 F.2d 160, 165 (2d. Cir. 1975),
cert. denied, 424 U.S. 918, 96 S.Ct. 1122, 47
L.Ed. 2d 325 (1976), waiver will bar raising the
issue On appeal.”
42
When placed side by side with the “Rosenstein rule”
the following appears to be the present state of procedural
law on this subject. A convicted criminal defendant
is on appeal limited, with rare exception under Rule 52(b),
to arguments specifically raised in the Trial Court while
the Government is free to make and develop any argument
on appeal. Such a rule is, it is submitted, fundamentally
unfair. Especially so in this case. As Provenzano urged
in the Court below, there were arguments which could
best be judged by the Trial Court whose intimate familiarity
with the facts was unparalleled, that could well have
stemmed any attempt by the Government to admit this
testimony under the prior consistent statement rule.
For example, the facts of this case will support an argument
that the witness Picardo had a motive to falsify, albeit
a different motive than was created by his arrest for
murder in 1975, at the same time that he allegedly made
these prior statements. This argument, however, was
never made to the District Court because the Government
never attempted to introduce the statements under
Rule 801(d)(1)(E). Since defense counsel did not have
the opportunity at trial to address the peculiar issues
raised by admission under this theory, the Government
should have been foreclosed from arguing it on appeal.
“Arguments defense counsel could have made. . .were
never made because they were not apposite.” United
States v. Kaplan, 510 F.2d 606 (2d Cir. 1974) (on petition
for rehearing).
If the Circuit Courts are to freely apply, as the Third
Circuit did here, the “Rosenstein rule,” there must be
a pronouncement by this Court as to its dimensions.
In this case it is respectfully submitted Rosenstein had
no application and to have applied it deprived petitioners
of their right to due process.
43
POINT V
The Ruling of the Court Below Utterly Misapprehended
the Policy Considerations and Legislative Intent of
RICO and Has Permitted RICO to Be Applied in a
Facially Unconstitutional Manner.
As has been shown, this was a RICO prosecution.
It is the contention of the petitioners that by permitting
the convictions to stand, the Court of Appeals has utterly
misapprehended the policy considerations and legislative
intent of RICO and has sanctioned its facially uncon-
stitutional application. Moreover, the ruling of the
Court of Appeals would appear to place the Third Circuit
in conflict with the Sixth Circuit Panel which decided
United States v. Sutton, 605 F.2d 260 (1979).38
Upon analysis of the RICO floor debates, it becomes
readily apparent that Congress was fully cognizant
that “illegitimate business,” “racketeering,” and “crime
for crime’s sake” had already been comprehensively
proscribed by existing federal and state laws even without
the enactment of RICO as perhaps best typified by
the legislation permitting criminal “conspiracy” prose-
cutions. Indeed, Senator McClellan, who introduced
S. 1861 -- which together with S. 1623 comprises RICO
in its present form -- was prompted to observe that unlike
existing statutes, RICO was specifically aimed at those
who “operate illegitimately in legitimate channels.”
(116 Cong. Rec. at 8671, 1970).
RICO’s legislative history thus makes clear, that
RICO focused upon that special kind of racketeering
activity undertaken to subvert legitimate institutions.
With regard to that type of “racketeering activity” which
affect the particular purpose of causing the subversion
38 We say “appear” because rehearing en banc was sought
by the Government and granted in United States v. Sutton and the
decision of the Panel was vacated pending en banc consideration
(Nos. 78-5134 to 5139, 5141, 5143 (6th Cir. Nov. 7, 1979) (rehearing
held April 2, 1980) ).
44
of legitimate business, RICO prescribed even harsher
penal sanctions than those authorized by federal and
state statutes which had already proscribed “racketeering”
and criminal activity in general.
Central to the RICO statutory scheme is the con-
cept of “enterprise.” Indeed, the salient and distinguishing
feature of every RICO prosecution is that the offense
charged must, as a matter of law, have some connection
with an “enterprise.”
Title 18 U.S.C. § 1961(4) defines “enterprise” as
follows: |
“ ’Enterprise’ includes any individual, partner-
ship, corporation, association, or other legal
entity and any union or group of individuals
associated, in fact, although not a legal entity.”
Although § 1961(4) catalogues the types of organi-
zational units that may qualify as an “enterprise” for
statutory purposes, significantly, the entire RICO legis-
lation is silent as to what these units must do or undertake
to do before they may, in fact, constitute the requisite
“enterprise.” The Sutton Panel stated the dilemma
posed for a reviewing court as follows:
“Obviously every ‘individual’ or ‘group’ of indi-
viduals considered in the abstract, is not an
‘enterprise’. Individuals and groups do not
become an ‘enterprise’ except in relation to some-
thing they do. The statutory definition of ‘enter-
prise’ contained in § 1961(4) is incomplete because
it does not tell us what that ‘something’ is (605
F.2d 265). . .The problem is thus to discover
what the distinction might be for statutory pur-
poses between simple ‘patterns of racketeering
activity, which we think are outside RICO’s
purview, and a ‘criminal enterprise’ which the
Government insists is within the ambit of the
statute. Here the text is no help, for it does not
45
even hint at what the standards should be for
determining when racketeers have crossed the
line to become a ‘criminal enterprise.” (605
F.2d 266).
In Sutton, The Panel observed that the Government
had attempted to “finesse” the “enterprise problem”
by urging that the appellants were a “group of individuals
associated in fact” around numerous patterns of racket-
eering activity. Circuit Judge Merritt, writing for the
Court, succinctly stated the Government’s contention
as follows:
“ . .in the Government’s view, the ‘something’
this group of individuals did to transform them-
selves into an ‘enterprise’ is provided by their
racketeering activity. In short, appellants’ enter-
prise was racketeering.” (360 F.2d 265).
This argument the Sutton Panel refused to accept.
Moreover, it specifically refused to countenance the
Government’s definition of a RICO “enterprise” as
“an amoeba-like infra-structure that controls a secret
criminal network.” United States v. Elliot, 571 F.2d
880 (Sth Cir. 1978). The Sutton Panel thus stated:
“The language Congress did use makes it unlawful
‘for any purpose employed by or associated with
any enterprise. . .to conduct. . .such enterprise’s
affairs through a pattern of racketeering activity.’
Surely, the draftsmen would not have opted for
so complex a formulation if the legislative purpose
had been merely to proscribe racketeering, without
more. A _ straightforward prohibition against
engaging in ‘patterns of racketeering activity’
would have sufficed, and there would have been
no need for a reference to ‘enterprises’ of any
sort. Although the Government reminds us that
the Organized Crime Control Act of 1970 ‘is a
carefully crafted piece of legislation,’ Jannelli v.
46
United States, supra, 420 U.S. at 789, it would
have us treat section 1962(c) as a purposeless
circumlocution, written in terms of ‘enterprises,’
and persons ‘employed’ by them to conduct their
‘affairs,’ but in reality directed at anyone who
commits two acts of racketeering. Under this
construction an individual or a group who robs
two banks ‘for the purpose of making money’
commits a RICO offense.
“Common sense, not to mention the first prin-
ciple of statutory construction, leads us to reject
the Government’s reading and to seek a con-
struction that gives some content to each element
of the crime set forth in the text. The plain
meaning of the words in context indicates that
the reference to ‘enterprise’ was included to
denote an entity larger than, and conceptually
distinct from, any ‘pattern of racketeering activity’
through which the enterprise’s ‘affairs’ might be
conducted. If the ‘enterprise’ element of the
crime is to have independent meaning, but is
still to encompass ‘criminal enterprises’ as the
Government contends, then a ‘criminal enterprise’
must involve something more than simply an
individual or group engaged in a pattern of
racketeering activity.
“In a passage which the Government urges us
to follow, the Fifth Circuit describes a ‘criminal
enterprise’ as ‘an amoeba-like infra-structure
that controls a secret criminal network.’ United
States v. Elliot, supra, 571 F.2d at 897-898.
With all due respect, we think greater precision
than that is required if the statute is not to violate
‘first essential of due process of law’ by forbidding
‘the doing of an act in terms so vague that (persons)
of common intelligence (would) necessarily (have to)
47
guess at its meaning and differ as to its appli-
cation.’ United States v. Culbert, 435 U.S. 371,
374 (1978) quoting Connally v. General Con-
struction Co., 269 U.S. 385, 391 (1926). Although
government prosecutors may be trained nowadays
to recognize an ‘amoeba-like irfra-structure’
when they see one, our instincts are not so keenly
developed, and we think even racketeers are
entitled to know before the fact at what point
their criminal activities will be deemed sufficiently
‘amoeba-like’ to transgress the statute.” (605
F.2d 266).
In its well-reasoned and insightful opinion, the
Sutton Panel enunciated the following definition of
“enterprise” which, we submit, is the only interpretation
consonant with the legislative intent and constitutional
application of RICO:
“We, therefore, hold that an ‘enterprise’ within
the meaning of the statute is ‘any individual,
partnership, corporation, association. . .and any
union or group of individuals associated in fact,’
that is organized and acting for some ostensibly
lawful purpose, either formally declared or
informally recognized. Section 1962(c) is violated
whenever any person associated with such an
enterprise conducts its ‘affairs,’ i.e., undertakes
any activity on behalf of or relating to the purposes
of the enterprise, by committing at least two
criminal acts constituting a ‘pattern of racketeering’
as defined in § 1961(5).” (605 F.2d 270).
Having concluded that appellants were ‘mere
racketeers” whose acts were not shown to have been
related in any way to the affairs of the “enterprise” as
contemplated by RICO, the Sutton Panel reversed
appellants’ judgments of conviction. We urge a similar
result herein for the reasons that follow:
48
As has been set forth more fully, supra, in the case
at bar, the sole and exclusive proof offered by the Govern-
ment to establish what it alleged was an “enterprise”
within the purview of RICO was Picardo’s glib assertions
without more that he formed an “association.” In the
eyes of the Government, this “association” consisted of
five defendants, plus three unindicted co-conspirators,
plus four companies -- which concededly had absolutely
no existence independent of the mere criminal concert
of the alleged participants ~ constituted a RICO “enter-
prise.”
Lest there be any doubt whatsoever as to how the
Government purportedly established the requisite “enter-
prise,” we turn to the prosecutor’s summation:
“And what has he (Picardo) told you? He starts
off saying he joins this group. He calls it an asso-
ciation. The judge later on will charge you that
the law in this case and the indictment calls it
an ‘enterprise’. ” (A. 3517).39
In his charge, the District Judge cryptically addressed
the “enterprise” requirement as follows:
“An enterprise may consist of a combination
of corporations and individuals, which are
associated in fact although not a legal entity.
To establish that the defendants were associated
with the enterprise, the Government must show
a connection between the defendants and the
enterprise. The Government need not show that
the defendants were associated with each com-
ponent part of the enterprise but rather that
they were associated with the enterprise as a
whole.
“The terms ‘conduct’ and ‘participate in the conduct
of an enterprise include the performance of acts,
functions, or duties which are necessary to or
helpful in the operation of the enterprise. A person
9 Paragraph (g) of Count | of the Indictment denominated the
“enterprise” charged herein.
49
may be found to conduct or participate in the
conduct of an enterprise even though he is a
mere servant or employee having no part in the
management or control of the enterprise and no
share in the profits.” (A. 3845).
Viewing the evidence in a light most favorable to
the Government as we must, there was, therefore, abso-
lutely no showing whatsoever that the petitioners’ alleged
acts of racketeering had the effect of subverting any
legitimate institution, which as shown, quintessentially
constitutes the sine qua non of a RICO violation. Indeed,
despite the ranting of the prosecution that this case con-
cerned “labor peace,” as the Court of Appeals duly
noted, the District Judge charged the jury that “. . .the
Government does not contend that either Local 560 or
Local 84 is the enterprise charged in this indictment”
(A. 3854).
Since, as a matter of law, petitioners’ alleged
acts of racketeering were not shown to have been related
in any way to the affairs of an “enterprise” as contem-
plated by § 1962(c), the substantive RICO violation
must fall of its own weight. With it must fall the con-
spiracy count as well, since if, as herein, an illegal group
allegedly engaged in racketeering activity wholly unrelated
to any legitimate organization cannot constitute an
“enterprise” within the contemplation of RICO, it
similarly cannot constitute a “conspiracy” to conduct
the affairs of an “enterprise” in violation of RICO.
In urging this Court to grant certiorari and to ulti-
mately reverse petitioners’ convictions, we are not unmind-
ful that aside from the Third Circuit herein, five other Cir-
cuits have rejected the rationale of the Sutton Panel which
we respectfully urge this Court to adopt.‘
40 United States v. Rone, 598 F.2d 546 (9th Cir. 1979); United
States v. Swiderski, 593 F.2d 1246 (D.C. Cir. 1978), cert. denied,
441 U.S. 933 (1979); United States v. Elliott, 571 F.2d 880 (Sth Cir.),
cert. denied, 439 U.S. 953 (1978); United States v. Altese, 542 F.2d
104 (2d Cir. 1976), cert. denied, 429 U.S. 1039 (1977); United States
v. Cappetto, 502 F.2d 1351 (7th Cir. 1974), cert. denied, 420 U.S.
925 (1975).
50
The common thread running through each of these
respective cases is the notion that limiting RICO to the
corruption of legitimate enterprises “does not make
sense since it leaves a loophole for illegitimate business
to escape its coverage,” United States v. Altese, supra,
542 F.2d at 106-107. Noting, however, that to apply
RICO to persons engaged in racketeering activity wholly
unrelated to any legitimate organization but in further-
ance of something the Government terms a “criminal
enterprise” has the inevitable effect of “read(ing) the
enterprise element entirely out of the statute,”the Sutton
Panel remained unmoved by the holdings of other Cir-
cuits. Thus, Circuit Judge Merritt aptly observed;
“It requires no great insight to recognize that
applying the statute in this fashion renders the
‘enterprise’ element of the crime wholly redundant
and transforms the statute into a simple pro-
scription against ‘patterns of racketeering activity.’
Under the approach reflected in these cases,
every ‘pattern of racketeering activity’ becomes
an ‘enterprise’ whose affairs are conducted
through the ‘pattern of racketeering activity.’
Plainly, that is not the statute Congress has
written.” (605 F.2d 265-266).
Although, as the Sutton Panel noted, the con-
tention that RICO may not be properly applied to
those who may have “merely” committed a series of
racketeering offenses “lacks surface appeal,” (605 F.2d
264) after careful analysis, it determined that consistent
with its judicial function, it could not properly reject the
cogent and telling argument made by the appellants.
We ask this Court to hold likewise. Otherwise, it will
be the law of this land that modest offenses*! can be at
4! Indeed in the case at bar, the alleged criminal acts under-
lying the alleged “pattern of racketeering” constituted misdemeanors.
51
the merest whim of the Government, as here, transmuted
into serious, federal felonies, despite the absence of
even a scintilla of proof to establish the infiltration
or corruption of any legitimate business which vice was
the irrefutable concern of RICO and its raison d'etre.
Indeed, even where the expansive interpretation
of “enterprise” urged by the Government has been adopted,
the need has already arisen to caution prosecutors against
utilizing RICO impermissively to aggrandize federal
jurisdiction so as to multiply punishment for acts that
have already been made criminally punishable by federal
and state statutes other than RICO.
Thus for example, in United States v. Huber, 603
F.2d 387 (1979), the Second Circuit stated:
“We note, however, that the potentially broad
reach of RICO poses a danger of abuse where a
prosecutor attempts to apply the statute to situ-
ations for which it was not previously intended.
Therefore, we caution against undue prosecutorial
zeal in involving RICO. We also emphasize to
the district judges that when RICO is invoked,
each set of facts must be evaluated independently.”
(p. 3930).
In the final analysis then, RICO focused upon the
infiltration and corruption of legitimate business and
was intended to proscribe infiltration and operation of
legitimate enterprises through patterns of racketeering
activity. In the instant case, the Government simply
failed to establish, let alone beyond a reasonable doubt,
that the petitioners were, in the language of Senator
McClellan, operating ‘illegitimately in legitimate channels.”
Given the Government’s utter perversion of RICO,
certiorari should be granted and petitioners’ judgments
of conviction should be reversed.
52
Conclusion
For the foregoing reasons, it is hereby submitted that
a writ of certiorari issue to review the judgment of the
United States Court of Appeals for the Third Circuit.
Respectfully submitted,
DONALD CONWAY, ESQ.
Attorney for Stephen Andretta
75 Essex Street
Hackensack, New Jersey 07601
(201) 342-1700
HARVEY WEISSBARD, ESQ.
Attorney for Anthony Provenzano
20 Northfield Avenue
West Orange, New Jersey 07052
(201) 731-9770
ROBERT H. KIERNAN, ESQ.
Attorney for Thomas Andretta
477 Madison Avenue
New York, New York 10022
(212) 688-7788
Dated: July 17, 1980
APPENDICES
la
Appendix A
Opinion of United States Court of Appeals
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 79-1912, 79-2381, 79-1956, 79-1913, and 79-2387
UNITED STATES OF AMERICA, Appellee
v
ANTHONY PROVENZANO, STEPHEN ANDRETTA,
and THOMAS ANDRETTA, Appellants
Appeal From the United States District Court
For the District of New Jersey — Newark
(D.C. Crim. Nos. 79-00072-01, 79-00072-02,
and 79-00072-03)
Argued March 25, 1980
Before: ROSENN, GARTH and SLOVITER,
Circuit Judges
(Filed May 8, 1980)
ROBERT J. DEL TUFO
United States Attorney
Federal Building
Newark, NJ 07101
RALPH A. JACOBS (Argued)
Assistant United States Attorney
DONALD CONWAY, ESQ. (Argued)
25 East Salem Street
Hackensack, NJ 07601
Attorney for Appellant
Stephen Andretta
2a
Appendix A
Opinion of United States Court of Appeals
ISLES, NEWMAN & WEISSBARD
HARVEY WEISSBARD, ESQ. (Argued)
20 Northfield Avenue
West Orange, NJ 07052
Attorneys for Appellant
Anthony Provenzano
ROBERT H. KIERNAN, ESQ. (Argued)
477 Madison Avenue
New York, NY 10022
Attorney for Appellant
Thomas Andretta
OPINION OF THE COURT
GARTH, Circuit Judge
In these consolidated appeals we are presented with
challenges on numerous grounds to the convictions of
Anthony Provenzano, Thomas Andretta, and Stephen
Andretta under the Racketeer Influenced and Corrupt
Organization Act (RICO), 18 U.S.C. § 1962.! The de-
fendants? were convicted by a jury at a joint trial of con-
spiracy to violate RICO and of substantive violations,
and were sentenced to prison terms and fined.3 We have
1. There are five appeals, as follows. Provenzano appeals his
conviction at No. 79-1912 and denial of his new trial motion at No.
79-2381. Thomas Andretta appeals his conviction at No. 79-1913
and denial of his new trial motion at No. 79-2387. Stephen Andretta
appeals his conviction at No. 79-1956.
2. A fourth defendant at the joint trial, Gabriel Briguglio, was
also convicted, and has appealed as well. Briguglio’s appeal, however,
was severed and remanded on an unrelated point.
3. Provenzano and Thomas Andretta received 20-year terms;
Stephen Andretta was sentenced to 10 years in prison. The former
two were denied bail, see United States v. Provenzano, 605 F.2d 85
(3d Cir. 1979); Stephen Andretta is free on bail.
3a
Appendix A
Opinion of United States Court of Appeals
determined that the district court made no errors at trial
which would warrant reversal, and we therefore affirm
the judgment of the district court in all five appeals. In
this opinion we will discuss briefly our resolution of the
appellants’ chief objections to the conduct of their trial.
I.
The facts of this case, as alleged in the indictment
and found by the jury, revolve around a fairly complex
labor kickback scenario. The Government’s theory‘ is as
follows:
Provenzano led a group consisting of himself,
Thomas Andretta, Stephen Andretta, Gabriel Briguglio,
and others, including Ralph Picardo, who was the Gov-
ernment’s chief witness at trial. The group’s aim was to
extort money from trucking companies in return for
“labor peace,” inasmuch as Provenzano was allegedly able
to control the International Brotherhood of Teamsters
Union in New Jersey. The target in this case was a
trucking company named Interocean Services, Inc.
(Interocean), and later a successor company known as
Di-Jub Leasing Corporation (Di-Jub). These companies
were “in house” truckers for Seatrain Lines, Inc.
(Seatrain), a large shipping company which shipped
containerized freight that was ultimately trucked to its
final destination.
4. Because these are appeals from jury convictions, we must
view the facts in a light most favorable to the Government. See, e.g.,
United States v. Pratt, 429 F.2d 690, 691 (3d Cir. 1970) (motion for
acquittal).
4a
Appendix A
Opinion of United States Court of Appeals
Picardo had once been a truck driver and Teamsters
member. Sometime after 1969, at Provenzano’s direction,
he switched to management and became a trucking
manager, so that he could enable Provenzano, a Team-
sters Union official, to be paid secretly for influencing
union actions, in violation of 29 U.S.C. § 186.5
5. 29 U.S.C. § 186 provides in relevant part:
(a) Payment or lending, etc., of money by employer or
agent to employees, representatives, or labor organizations
It shall be unlawful for any employer or association of
employers or any person who acts as a labor relations expert,
adviser, or consultant to an employer or who acts in the interest
of any employer to pay, lend, or deliver, or agree to pay, lend, or
deliver, any money or other thing of value —
(1) to any representative of any of his employees
who are employed in an industry affecting commerce; or
(2) to any labor organization, or any officer or employ-
ee thereof, which represents, seeks to represent, or would
admit to membership, any of the employees of such
employer who are employed in an industry affecting
commerce; or
(3) to any employee or group or committee of employ-
ees of such employer employed in an industry affecting
commerce in excess of their normal compensation for the
purpose of causing such employee or group or committee
directly or indirectly to influence any other employees in
the exercise of the right to organize and bargain collective-
ly through representatives of their own choosing; or
(4) to any officer or employee of a labor organization
engaged in an industry affecting commerce with intent to
influence him in respect to any of his actions, decisions, or
duties as a representative of employees or as such officer or
employee of such labor organization.
(b) Request, demand, etc., for money or other thing of
value
(1) It shall be unlawful for any person to request,
demand, receive, or accept, or agree to receive or accept,
any payment, loan, or delivery of any money or other thing
of value prohibited by subsection (a) of this section.
[footnote continued on following page]
Sa
Appendix A
Opinion of United States Court of Appeals
Picardo went to work for Seatrain. In 1969, Seatrain
owned Interocean, which in turn owned Switching, Inc.
Interocean, under Interstate Commerce Commission
authority, did all necessary long-distance trucking for
Seatrain; and Switching, not under ICC regulation,
moved containers at or near Seatrain’s piers. Interocean,
many of whose officers had come from Seatrain, was not
unionized, while Switching had a Teamsters Union
contract.
Sometime thereafter Picardo negotiated the “labor
peace” deal with Interocean, specifically with Raymond
Rosen, Interocean’s vice-president. Picardo, the “front
man” now operating a company, Cargo Truck Leasing
(Cargo), supplied trucks and owner-operator drivers to
(2) It shall be unlawful for any labor organization, or
for any person acting as an officer, agent, representative,
or employee of such labor organization, to demand or
accept from the operator of any motor vehicle (as defined
in part II of the Interstate Commerce Act [49 U.S.C. 301
et seq]) employed in the transportation of property in
commerce, or the employer of any such operator, any
money or other thing of value payable to such organization
or to an officer, agent, representative or employee thereof
as a fee or charge for the unloading, or in connection with
the unloading, of the cargo of such vehicle: Provided,
That nothing in this paragraph shall be construed to make
unlawful any payment by an employer to any of his
employees as compensation for their services as employees.
6. The Government alleges that it was only through the appel-
lants’ influence that Interocean remained non-unionized, and that
the purpose of Switching’s union contract was twofold: to supply
Picardo and another cohort with union pension and welfare benefits
and to give Interocean sham evidence of unionization to dissipate
suspicion. The Government also claims that Switching violated its
union agreement by avoiding union fund contributions through the
use of non-union owner-operators and that Stephen Andretta arranged
a sham audit on behalf of the pension fund. Appellants dispute
these allegations.
6a
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Opinion of United States Court of Appeals
Interocean, thus enabling Interocean to avoid unioni-
zation and union obligations. In return, Interocean
allowed Cargo to collect from Interocean for ghost
drivers, i.e., Cargo collected extra money for non-existent
truck drivers who, of course, never performed work.
This money was funneled to Picardo and his “associates,”
as he referred to the appellants at trial.
Among the actions charged by the Government,
appellants ensured Picardo’s continued dealings with
Interocean (though Interocean feared Picardo would
hijack its trucks) by threatening labor disruptions, and
appellants extorted more money from Interocean in
return for preventing the Longshoremen’s Union from
disputing the Teamsters Union’s jurisdiction over move-
ment of trucks within and around Seatrain’s pier facil-
ities. To guarantee Cargo’s supply of drivers, appellants
used their influence at Teamsters Local 560 in Union
City, New Jersey, to send drivers to Cargo, where the
drivers received low wages and no benefits, instead of
sending them to union-organized terminals.
The illegally obtained money was distributed in var-
ious ways: checks to fictitious payees, chits, drawings on
petty cash, salaries to a no-show worker, and fees for
upkeep of horses of some of appellants’ relatives. It was
distributed either at a bar or at Local 560 in four shares:
one-quarter to Provenzano and his brothers; one-quarter
to Briguglio and his brothers; one-quarter to Thomas
Andretta and Armand Faugno, who cashed checks; and
one-quarter to Picardo. When Faugno “disappeared” in
1972, Stephen Andretta took his place and collected the
monies previously paid to Faugno.
Overt links with Provenzano occurred in 1972 or
1973, when Picardo told him the details of the scheme
and Provenzano complimented Picardo on it (A1072-73),
7a
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Opinion of United States Court of Appeals
and when Picardo personally delivered cash to Provenzano
in August 1974 (A1073-74, A1297, A1323-37).
The group next acquired control of Lift-Van Trans-
port, a certified common carrier, and attempted to phase
out Interocean and replace it with Lift-Van. Through
appellants’ influence, Lift-Van was able to refuse to renew
its union contract and fire all union employees. When
Picardo, Lift-Van’s front man, was jailed for murder in
1975, his cohorts persuaded him to sell Lift-Van.
Appellants later set up the FLT Corporation to
replace Cargo. Thomas Andretta, who ostensibly ran
FLT, was in prison at all relevant times.
The dispatchers of Interocean who knew of the
ghosting scheme were paid to add the names of the
“ghosts” and to keep quiet.’ When an Interocean auditor
discovered a salary being paid to a no-show employee, he
was told by Rosen and the employee it was not his busi-
ness. When the auditor discovered the ghosting scheme,
Rosen told him the false billings were just overcharges,
which Cargo would be asked to repay. The scheme was
uncovered when Picardo agreed to cooperate with the
Government.
II.
These appeals present fifteen issues, some of which
are raised by all appellants, and some of which affect
only one of the three.
A. Issues Common to All Appellants
1. RICO or Larceny?
Appellants assert that there was a variance between
the indictment and the proofs at trial, i.e., that the indict-
ment charged a RICO violation, while the proof showed
7. Appellants allege that the payments were made to keep
them from telling Seatrain or higher Interocean officials.
8a
Appendix A
Opinion of United States Court of Appeals
only larceny. A RICO violation required proof that
Interocean, or later Di-Jub, bribed members of appel-
lants’ group in order to secure labor peace. These bribes
constitute the racketeering required by the RICO Act.
18 U.S.C. § 1962,8 because these debts are unlawful
8. 18 U.S.C. § 1962 provides:
(a) It shall be unlawful for any person who has received
any income derived, directly or indirectly, from a pattern of
racketeering activity or through collection of an unlawful debt
in which such person has participated as a principal within the
meaning of section 2, title 18, United States Code, to use or
invest, directly or indirectly, any part of such income, or the
proceeds of such income, in acquisition of any interest in, or the
establishment or operation of, any enterprise which is engaged
in, or the activities of which affect, interstate or foreign com-
merce. A purchase of securities on the open market for pur-
poses of investment, and without the intention of controlling or
participating in the control of the issuer, or of assisting another
to do so, shall not be unlawful under this subsection if the secur-
ities of the issuer held by the purchaser, the members of his
immediate family, and his or their accomplices in any pattern of
racketeering activity or the collection of an unlawful debt after
such purchase do not amount in the aggregate to one percent
of the outstanding securities of any one class, and do not con-
fer, either in law or in fact, the power to elect one or more
directors of the issuer.
(b) It shall be unlawful for any person through a pattern of
racketeering activity or through collection of an unlawfui debt
to acquire or maintain, directly or indirectly, any interest in or
control of any enterprise which is engaged in, or the activities
of which affect, interstate or foreign commerce.
(c) It shall be unlawful for any person employed by or asso-
ciated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or partici-
pate, directly or indirectly, in the conduct of such enterprise’s
affairs through a pattern of racketeering activity or collection of
unlawful debt.
(d) It shall be unlawful for any person to conspire to violate
any of the provisions of subsections (a), (b), or (c) of this
section.
9a
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Opinion of United States Court of Appeals
under 29 U.S.C. § 186. Proof of bribery requires knowledge
on the part of the party giving the bribe. The appellants
contend that the Government failed to prove that anyone
at Interocean or Di-Jub knew of Picardo’s and Cargo’s
ghosting scheme, and therefore at best the Government
proved that Picardo, who asserted that he was getting
money to provide labor peace, was actually just stealing
from Interocean.
Appellants point to testimony of Rosen, Interocean’s
vice-president, to the effect that he did not know of
Picardo’s ghosting operations (A2217, A2295).9 In addi-
tion, two Interocean dispatchers testified to receiving
bribes from Picardo; only one, however, said that he sus-
pected that the purpose for the bribe was that he conceal
the ghosting from his Interocean superiors (A1883). The
auditor who discovered the ghosting testified that Rosen
told him Cargo would have to pay back the overcharges
and that in fact Cargo did pay them back (A1945).
On the other hand, Picardo testified to conversa-
tions with Rosen, during which he claimed to have dis-
cussed the specifics of the scheme with Rosen (A1004,
A1029, A1l039-40). Picardo also testified that the pay-
ments were made (A1052). In addition, Rosen’s telling
the auditor that the discrepancies were none of his busi-
ness (A1935-36) and a memorandum revealing that
Interocean had to guarantee money for labor peace
(A2117-18) both support the Government’s theory. With
respect to the bribes paid by Picardo to the dispatchers,
Alan Abramowitz, an employee of Picardo at Cargo,
testified that he never told anyone the money had been paid
9. The only ghosting to which Rosen admitted of being aware
was a separate scheme whereby Interocean overcharged Seatrain to
make up deficits incurred by undercharging customers, thereby
enabling Seatrain indirectly to grant illegal rebates to those customers.
10a
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Opinion of United States Court of Appeals
to keep the dispatchers quiet, but he then admitted,
upon being confronted with a writing, that he had once
told an FBI agent that he believed that the monies had
been paid for this purpose (A1853). He never specified
from whom the secret was to be kept. Both dispatchers
testified they were paid to add the “ghosts” to the list
(A1863, Al881). Only one ambivalently suggested that
he was paid not to tell his superiors (A1883). In any
event, even if Rosen knew of the scheme, Picardo could
reasonably have bribed the dispatchers to keep quiet and
not spread the word to anyone, so as to conceal from
them Rosen’s knowledge and thereby avoid the dis-
patchers’ knowing of and revealing the extent of the
scheme.
The jury apparently believed Picardo’s testimony
that he had informed Rosen of the scheme and that
Rosen, on behalf of Interocean, bribed Picardo’s group,
thus involving the group in a RICO violation. Under the
applicable standard of review, see, e.g., United States v.
Hamilton, 457 F.2d 95, 98-99 (3d Cir. 1972), this jury
verdict of guilty must stand because there was sufficient
evidence for the jury to find beyond a reasonable doubt
that Rosen had knowledge of the scheme and bribed
Picardo’s group. Thus, there was properly proved a valid
RICO-type violation, as opposed to mere grand larceny.
2. “Enterprise”
Appellants acknowledge that the prevailing statu-
tory interpretation in most of the Circuits brings them
and their association within the meaning of the RICO
statute’s requirement of an “enterprise,” as defined in
18 U.S.C. § 1961(4):
“[E]nterprise” includes any individual, partner-
ship, corporation, association, or other legal entity,
and any union or group of individuals associated
in fact although not a legal entity... .
lla
Appendix A
Opinion of United States Court of Appeals
Yet appellants argue that the. association is not an
“enterprise” because it had no legitimate purpose. They
argue that the legislative history of RICO indicates a desire
to prevent infiltration of legitimate business, and there-
fore all offenses — like those alleged here — not involving
a legitimate business should be prosecuted under other
pre-existing criminal laws. Otherwise, they argue, the
complex RICO statute would have been unnecessary.
Five Circuits have rejected this argument and have
concluded that even an association formed for the sole
purpose of illegal racketeering can satisfy the “enter-
prise” requirement. E.g., United States v. Rone, 598
F.2d 564 (9th Cir. 1979); United States v. Swiderski,
593 F.2d 1246 (D.C. Cir. 1978), cert. denied, 441 U.S.
933 (1979); United States v. Elliott, 571 F.2d 880 (Sth
Cir.), cert. denied, 439 U.S. 953 (1978); United States v.
Altese, 542 F.2d 104 (2d Cir. 1976), cert. denied, 429
U.S. 1039 (1977); United States v. Cappetto, 502 F.2d
1351 (7th Cir. 1974), cert. denied, 420 U.S. 925 (1975).
Only the Sixth Circuit, in a divided panel opinion later
vacated for rehearing en banc, has suggested it would
follow appellants’ theory. United States v. Sutton, 605
F.2d 260 (6th Cir. 1979), vacated and rehearing en banc
granted, Nos. 78-5134 to -5139, -5141, -5143 (6th Cir.
Nov. 7, 979) (rehearing held Apr. 2, 1980).
We have previously held that RICO is to be con-
strued liberally. United States v. Forsythe, 560 F.2d
1127, 1135-36 (3d Cir. 1977). And in United States v.
Frumento, 563 F.2d 1083, 1089-92 (3d Cir. 1977), cert.
denied, 434 U.S. 1072 (1978), this court held that the
word “enterprise” was broader than a private business or
a union, and included a state agency. But we need not go
so far as to adopt generally either the narrow or the broad
definition of “enterprise” in this case. The purpose of
12a
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Opinion of United States Court of Appeals
RICO — prevention of infiltration of legitimate business
by racketeers — would in any event be vindicated by the
convictions here, since the wholly illegitimate Provenzano
association subverted legitimate unions and businesses,
although the Government did not allege that any union
local was the “enterprise” (A3854 — jury charge). We
decline in this case to construe the RICO statute so as
to allow the appellants a defense that they made sure
not to engage in any /egal activity.
3. Picardo’s Testimony About Use of Fear and
Intimidation
Appellants assert that their convictions must be
reversed because the jury heard Picardo testify to other
wrongs that the appellants committed, specifically loan-
sharking and gambling (A958); to appellants’ use of
fear and intimidation (A1000); to their threatening
Picardo should he fail to deliver on his obligations
(A1090); to their fixing of horse races (A1114); and to
their threatening to kill Picardo in jail (A1759). The dis-
trict court admonished Picardo against testifying about
appellants’ other wrongs, and twice even the Government
was surprised by Picardo’s responses (A966 — loan-
sharking and gambling; Al115 — fixing of horse races),
and disclaimed any attempt to prove them.
Of course, evidence of such alleged criminal activity
is not admissible to prove that the appellants were guilty
of the crimes charged. Fed. R. Evid. 404(b). Nevertheless,
evidence of other crimes is admissible for other purposes,
such as to show “motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident,” id. Although the Government never attempted
to justify introduction of appellants’ other wrongs on any
of these grounds when appellants objected, and the dis-
trict court diu not explain its reasons for admitting the
l3a
Appendix A
Opinion of United States Court of Appeals
testimony, such a specification is not neccessary, as
long as the statements were in fact admissible. See United
States v. Rosenstein, 474 F.2d 705, 711-13 (2d Cir. 1973)
(appellate court may affirm admission of evidence on
ground never urged or decided in trial court, as long as
evidence is admissible under ground relied on by appellate
court for same purpose for which it was admitted by
trial court);!° cf. PAAC v. Rizzo, 502 F.2d 306, 308 &
n.l (3d Cir. 1974) (appellate court may affirm correct
decision on ground not relied upon by district court),
cert. denied, 419 U.S. 1108 (1975).
Evidence of the use or intended use of fear and
intimidation to control the piers (A1000) was relevant to
show both the opportunity to carry out the scheme and
the plan of how to carry out the scheme. Picardo’s testi-
mony as to his fears of reprisals by the others should he
fail to come up with the money (A1090) was relevant to
show both knowledge of the others and how the others
controlled Picardo’s role (plan), as opposed to the defense
10. Thus, in Rosenstein, the Second Circuit affirmed the admis-
sion of evidence on the basis of the nonhearsay character of state-
ments of coconspirators in furtherance of the conspiracy, while the
trial court had erroneously relied on the business records exception
to the hearsay rule. Both grounds allowed introduction of the evidence
for the same purpose — to establish the truth of what is
said — without different or limiting instructions to the jury.
Rosenstein distinguished Shepard v. United States, 290 U.S. 96
(1933), and United States v. DiMasi, 445 F.2d 251 (2d Cir.), cert.
denied, 404 U.S. 882 (1971), as cases where erroneous plenary admis-
sion of hearsay could not be justified by the more limited theory of
proof of the declarant’s state of mind. See 474 F.2d at 710-11. In
the present case, whether Picardo’s testimony was admissible as
being directly relevant or was admissible to prove such things as plan
or opportunity of the Provenzano group to control the scheme, it
was admissible for the same purpose, /.¢e., to prove the truth of what
it said. Thus, under Rosenstein, the rule 404(b) ground might validly
support the admission of Picardo’s testimony.
l4a
Appendix A
Opinion of United States Court of Appeals
theory that the entire operation was merely a larceny
of Picardo’s own doing. Evidence of the death threat
Stephen Andretta made to Picardo while Picardo was
incarcerated (A1758-59) was relevant to show how the
others controlled Picardo’s role (plan), to the extent that
they forced him to sell Litt-Van when he, being incar-
cerated, could no longer operate it. Moreover, defense
counsel had already elicited from Picardo on cross-
examination that he was angry during his incarceration
at Stephen Andretta (for reasons defense counsel would
not let Picardo explain) (A1611-13), and that Picardo
had already told an FBI agent that Stephen Andretta had
made (unspecified) threats to him (A1669). Defense
counsel had thus cast doubts on Picardo’s credibility,
and evidence of the reason for his anger at Stephen —
i.e., one-time death threat should Picardo not follow
orders — was independently relevant to rebut or explain
Picardo’s motive to lie against his associates, as might be
suggested by a general anger at their not helping him
out of jail over a long period. Finally, defense counsel
had already elicited the f st that Stephen Andretta had
threatened Picardo in some way; so the elucidation of
the precise nature of the threat was, on balance, not
prejudicial.!!
Some of Picardo’s answers, however, i.e., those
relating first to loan-sharking and gambling, and second
to the fixing of horse races, were clearly irrelevant for any
purpose. When Picardo gave these answers, the court
11. Fed. R. Evid. 403, requiring exclusion of evidence the dis-
trict court finds to be more unfairly prejudicial than it is probative,
apparently never was invoked at trial. We will therefore presume
that the district court performed the appropriate balancing, United
States v. Long, 574 F.2d 761, 766 (3d Cir.), cert. denied, 439 U.S.
985 (1978). As the analysis above illustrates, the district court's
decision to admit the testimony was not an abuse of discretion.
lSa
Appendix A
Opinion of United States Court of Appeals
promptly told the jury to disregard the testimony (A958-59,
A1119). Moreover, in the charge to the jury, the district
court again stated that they must disregard questions
and answers, objections to which were sustained (A3800).
In each instance, the prosecutor claimed that he had not
expected such answers, and that he had told Picardo
to avoid inserting extraneous matters (A966, A1114-16).
Both responses came after questions that were designed
to elicit other information.
As to the first, the Assistant United States Attorney
asked Picardo to identify the types of businesses in
which the associaton, Picardo and the appellants, engaged,
expecting Picardo to reply that only trucking was involved.
Instead, Picardo answered, “Trucking, loan-sharking,
gambling” (958). As to the second, Picardo had pre-
viously testified that “ North Jersey Feed Company
was for the purpose of getting into the race track and
to be able to tranquilize horses and fix races” (1114).
The Assistant United States Attorey then asked whether
Picardo had involved his associates with that business,
expecting Picardo to explain that his “associates” were
not involved, and that, on the contrary, it was Picardo’s
way to siphon money secretly from them (A1114-15).
Instead, Picardo answered that he had involved his
associates with North Jersey Feed Company (AI114).
Under these circumstances, we cannot say that the
unsolicited references to loan-sharking, gambling, and
the fixing of horse races were so inflammatory or preju-
dicial that they could not be cured by jury instructions.
which, as noted, were given. We therefore conclude that
defendants were not prejudiced. Nor do we think that
this case falls within the rule of Government of Virgin
Islands v. Toto, 529 F.2d 278 (3d Cir. 1976), requiring
reversal despite the district court’s striking of the testimony.
l6a
Appendix A
Opinion of United States Court of Appeals
The testimony here was not of other convictions, but
rather consisted of an offhand mention that the appellants
were also involved peripherally in other common illegal
activities. Given the long and complex descriptions
of the RICO violations, we are satisfied that the causal
mention of others did not constitute reversible error.
4. Picardo’s Unsolicitcd Comments
Picardo defied the district court’s warnings and con-
versed with marshals while sidebars were being held in
another room. Although these conversations took place
within sight of the jury, they did not take place within
the jurors’ hearing. The jurors all denied hearing anything,
except for one alternate juror (who ended up being
dismissed with the others at the end of the summations),
who “heard him [Picardo] say something about some-
body’s wife” (A974). We cannot say that this conduct,
albeit in disregard of the district court’s ruling, requires
reversal.
5. Pretrial Publicity
Appellants claim that certain jurors were impaneled
when they should have been removed for cause for lack
of impartiality. The crux of the problem was pretrial pub-
licity about Provenzano. The appellants argue that either
many veniremen should have been excused for cause, or
jurors should have been chosen from a different vici-
nage, or Provenzano’s trial should have been severed.!?
Appellants claim prejudice in two ways: first, that biased
jurors decided the case, and, second, that appellants
were prejudiced by the failure of the district court to
excuse other veniremen for cause, forcing appellants to
waste peremptory challenges to excuse them, see United
States v. Nell, 526 F.2d 1223, 1229 (Sth Cir. 1976); ef.
12. The last alternative would have satisfied Thomas and
Stephen Andretta but not Provenzano.
17a
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Opinion of United States Court of Appeals
Swain v. Alabama, 380 U.S. 202, 219 (1965) (denial or
impairment of right to use peremptory challenges, once
given, is reversible error).
The constitutional standard for dismissal of venire-
men was set forth in Murphy v. Florida, 421 U.S. 794
(1975). Pretrial publicity exposure will not automat-
ically taint a juror. Even if the juror has heard of or about
the case and of the allegations of a defendant's guilt,
he may sit if he is still capable of abandoning his prior
impressions and rendering a fair verdict on the evidence.
A juror’s own assurance of this is not the final determinant,
but the accused has the burden of proof to demonstrate
that the juror is partial. See id. at 799-800. Prejudice
is to be presumed only in cases where “the influence
of the news media. . .pervaded the proceedings” id. at
799. Examples the Court gave include a trial where pretrial
publicity consisted of showing a twenty-minute con-
fession three times on television, Rideau v. Louisiana,
373 U.S. 723 (1963), and a trial where cumbersome
television equipment invaded the courtroom, Estes v.
Texas, 381 U.S. 532 (1965).'3
But in the federal courts, Murphy affirms that the
stricter rule of Marshall v. United States, 360 U.S. 310
(1959) (per curiam), and United States ex rel. Doggett v.
13. Cf. Turner v. Louisiana, 379 U.S. 466 (1965) (key prosecution
witnesses acting as juror attendants throughout trial).
18a
Appendix A
Opinion of United States Court of Appeals
Yeager, 472 F.2d 229 (3d Cir. 1973), '4 still governs, as a
matter of supervisory authority. In federal cases, there-
fore, jurors are to be dismissed on less of a showing of
actual prejudice than that required by Murphy.
14. In Marshall, the court reversed the defendant's conviction
where seven jurors had seen one or both of two newspaper articles
describing how the defendant, on trial for unlawful distribution of
prescription drugs, had previously practiced law without a license,
even though the jurors averred that they would not be and had not
been influenced by the articles. In Doggett the publicity occurred
during trial and consisted of newspaper items indicating that Doggett
had retracted a guilty plea and had attempted to escape. The court
described the case:
The record discloses that the trial court did admonish the
jurors not to read or pay attention to anything about the case
appearing in the newspapers. It also discloses that despite this
admonition some jurors, at least, certainly disregarded it.
Thus, we have before us a case in which prior to the com-
mencement of a trial, counsel, anticipating adverse newspaper
accounts, requested an adjournment; where during the trial
highly prejudicial newspaper accounts did in fact circulate in
the small community in which the trial was being held; where
it was established that at least two of the unsequestered jurors
had read the highly prejudicial newspaper accounts despite an
admonition not to do so; where an examination as to whether
others had also disregarded the admonition was made en banc
rather than individually; where no inquiry was made as to
whether the two jurors who concededly read the prejudicial
newspaper accounts discussed them with others; where an
additional page one prejudicial newspaper account circulated
in the same small community in the vicinity of the unsequestered
jury; where the court would not even permit inquiry respecting
exposure of the jurors to the later newspaper account although
the jurors had access to the newspaper in question; and where
the defendant's position was at all times after the first news-
paper account appeared urged upon the court by timely motions
for a mistrial and a continuance.
472 F.2d 233-34. Doggett involved review of a state trial but this
court at that time applied the Marshall standard to state cases as
well. This was rejected in Murphy, see 421 U.S. at 797.
19a
Appendix A
Opinion of United States Court of Appeals
We have examined the record and have conductes
an independent review of the circumstances alleged to
constitute pretrial publicity in this case. See United
States v. D’Andrea, 495 F.2d 1170 n.5 (3d Cir.), cert.
denied, 419 U.S. 855 (1974). We have concluded, first,
that the publicity in this case was not presumptively
prejudicial as a matter of law, in contrast to that involved
in cases like Rideau, and, second, that the “substantial
prejudice” required by D’Andrea has not been demon-
strated. Most of the pretrial knowledge in the present
case consisted either of reports that the jury would be
selected that day or of a panel member’s having heard
mere mention in the news of such terms as “Mafia,”
“unions,” “gangster,” “Tony Pro” (Provenzano’s nick-
name), “organized crime,” or “kickbacks” in connection
with the case. No panel member indicated any belief in
this type of generalized innuendo, and each assured the
district judge in response to a series of five to ten search-
ing questions that he or she would decide the case strictly
on the evidence and on the law as explained by the judge
and would not be influenced by publicity. In light of
the record in this case, the district court did not err in
not excusing certain challenged veniremen for cause.!5
6. Juror Misconduct
The jury in this case was sequestered. Toward the
end of the trial, at about 3:00 a.m., a marshal discovered
a juror and two alternate jurors smoking marijuana, and
reported the incident to the district judge, who informed
counsel. The district court suggested that no action be
15. In addition, as to some veniremen, objections were waived
by failure to challenge for cause. See, e.g., United States v. Cepeda
Penes, 577 F.2d 754, 759 (Ist Cir. 1978); United States Hawkins,
566 F.2d 1006, 1013 (Sth Cir.), cert. denied, 439 U.S. 848 (1978);
cf. Davis v. United States, 411 U.S. 233 (1973) (waiver of objection
to composition of grand jury).
20a
Appendix A
Opinion of United States Court of Appeals
taken; defense counsel, after conferring among them-
selves, agreed but suggested in addition that the district
judge tell the offenders not to be concerned about the
incident, and that they would not be prosecuted. The
district judge did as counsel requested. None of the
appellants were personally present at the conference when
counsel were informed of the incident; in fact none
found out about it until after trial.
Appellants now challenge the course of conduct
chosen by the district court, claiming that he should
have dismissed the offenders sua sponte without soliciting
or accepting counsel’s advice. We disagree. We see no
reason to depart from the longstanding rule that counsel’s
intentional tactical decisions at trial bind his client.
For the same reason, the district court did not err in
denying appellants’ motion for a new trial on the ground
of untimeliness, since counsel, even if not appellants,
knew of the incident before, so it was not newly dis-
covered evidence, and the motion was not made within
seven days after trial. Under United States v. Bujese,
371 F.2d 120, 125 (3d Cir. 1967), “evidence is not ‘newly
discovered’ when it was known or could have been
known by the diligence of the defendant or his counsel.”
Even if we were convinced that appellants had not
waived objection to the district court’s failure to excuse
the offending jurors, we do not think that the smoking of
marijuana by one juror and two alternates warrants
reversal in the instant circumstances. While possession
of marijuana is illegal under both federal and state law,
21 U.S.C. § 844, N.J. Stat. Ann. § 24:21-20, since none of
the offending jurors were ever charged or convicted,
they would not be disqualified from service under 28
2la
Appendix A
Opinion of United States Court of Appeals
U.S.C. § 1865{b)(5).'6 And without engaging in extended
philosophical discussion of where we might draw a line
in a proper case, we hold as well that the public knowledge
that sitting jurors were smoking marijuana does not
create such an appearance of impropriety as to warrant
reversal of convictions where the jurors were not dis-
missed. Nor is there any serious contention that the
drug’s intoxicating effect affected the jurors’ ability to
hear evidence or to deliberate. No one suggested this to
be the case the following day at trial, and the district
judge later observed, when denying the new trial motion,
that the jurors had not been “in any way impaired from
functioning as such” (Joint Supp. App. at SA58-59).
The modern view is that the consumption of alcohol
is not prejudicial as a matter of law, see, e.g., Kealoha v.
Tanaka, 45 Hawaii 457, 470-74, 370 P.2d 468, 475-77
(1962), and appellants have not demonstrated prejudice,
as required by cases such as United States v. Taliaferro,
558 F.2d 724, 726 (4th Cir. 1977), cert. denied, 434 U.S.
1016 (1978}, and United States v. Klee, 494 F.2d 394,
395-96 (9th Cir.) (premature discussion of case among
jurors), cert. denied, 419 U.S. 835 (1974).
Finally, we reject as sheer speculation appellants’
contention that the jurors, who were told not to worry
16. 28 U.S.C. § 1865 describes the method of juror selection
and qualification. Subsection (b\(5) provides:
(b) In making such determination the chief judge of the .
district court, or such other district court as the plan may
provide, shall deem any person qualified to serve on grand and
petit juries in the district court unless he —
***
(5) has a charge pending against him for the commission
of, or has been convicted in a State or Federal court of record of,
a crime punishable by imprisonment for more than one year
and his civil rights have not been restored.
22a
Appendix A
Opinion of United States Court of Appeals
about prosecution, must thereby have felt indebted to
the Government and accordingly felt compelled to vote
to convict out of fear of retaliation by the Government
Moreover, it was defense counsel who insisted on the
judge’s assuring the jurors that they would not be prose-
cuted Jest they favor the Government out of fear of prose-
cution (Joint Supp. App. at SA117-18).
7. Absence of Appellants at Conference Discussing
Incident
Appellants claim that their rights were prejudiced
by their not being included in the conference regarding
marijuana smoking by jurors. They now claim they
would have influenced counsel to ask for disqualification
of the jurors.
It is clear that there is no constitutional right for a
defendant to be present at a conference in chambers
concerning dismissal of a juror. See United States v.
Brown, 571 F.2d 980, 986-87 (6th Cir. 1978); United
States v. Howell, 514 F.2d 710, 714 (Sth Cir.), cert. denied,
423 U.S. 914, 987 (1975); United States v. Baca, 494 F.2d
424, 428-29 (10th Cir. 1974); Ellis v. Oklahoma, 430
F.2d 1352, 1354-56 (10th Cir. 1970) (habeas corpus
motion following state trial), cert. denied, 401 U.S. 1010
(1971). What remains is a question of the interpretation
of Fed. R. Crim. P. 43. Subdivision (a) states:
The defendant shall be present at the arraignment,
at the time of the plea, at every stage of the trial
including the impaneling of the jury and the return
of the verdict, and at the imposition of sentence,
except as otherwise provided by this rule.
On the other hand, subdivision (c)(3) provides:
A defendant need not be present. . [a]t a con-
ference or argument upon a question of law.
23a
Appendix A
Opinion of United States Court of Appeals
We hold that reversal in this case is not required by rule
43 for three reasons. First, any objection to appellants’
nonpresence at the conference was waived by counsel’s
failure to object contemporaneously. See United States
v. Brown, 571 F.2d at 987.'!7 Second, despite the hold-
ings of that case and United States v. Baca, Supra, we
believe that the district court correctly held that under
rule 43(c)(3) the appellants had no right to be present at
the conference. The facts were undisputed, and the con-
ference concerned only a question of law: whether, on
the facts, dismissal of the offenders was compelled. We
have already held that the district court had discretion to
retain or dismiss the jurors. In the exercise of that dis-
cretion, he left this decision up to the defense counsel.
Counsel themselves made the tactical choice to place
their clients’ fate in the hands of the jury which included
one of the offending jurors, rather than in the hands of
the particular alternate who would be called as a replace-
ment.!8
Third, even if rule 43(a) required appellants’ pres-
ence at this stage of the trial, see, e.g., United States v.
Brown, 571 F.2d at 986, this rule is subject to the harm-
less error doctrine, see id. at 987. Examination of the
record reveals that counsel vigorously safeguarded appel-
lants’ interests, to the extent of insisting on procedures
they — counsel — thought would yield the best chance
for acquittal. It is fanciful for appellants to suggest post
17. In United States v. Brown, at least one defendant was
present at the conference and knew of the problem. Counsel in the
present case did not inform appellants of the conference until after
trial, although nothing prohibited them from doing so (Joint Supp.
App. at SAI13-14, SAI19). We do not think that this changes the
analysis significantly.
18. The alternate who would replace the dismissed juror was
identified and known to defense counsel (Joint Supp. App. at SA41,
SA81-82, SAI01).
24a
Appendix A
Opinion of United States Court of Appeals
hoc that they would have demanded replacement of the
offending juror had they been present at the conference.
Therefore, any error in the district court’s failure to dis-
miss the offenders sua sponte was harmless beyond a
reasonable doubt and as such will not warrant reversal.
8. Jury Charge
The appellants contend that the jury charge was
erroneous insofar as it allowed the jury to convict them
under RICO so long as the payee or recipient of the illegal
payment was a member of the conspiracy, even if the
payee or recipient was not a union agent, officer, or
employee. We do not agree. A reading of the relevant
portion of the jury charge as a whole (A3933-35) clearly
shows that the district court correctly instructed the jury
that the payee or recipient must be both a union agent,
officer, or employee, and at that time a member of the
conspiracy, indicted or unindicted.
9. Testimony Read Back to Jury
During their deliberations, the jury requested that
some testimony be reread to them. The district court
reread the direct testimony of one witness and was about
to go on to the testimony of the next witness when defense
counsel reminded him to include the first witness’ cross-
examination (A3894). The judge immediately corrected
his oversight, and no objection was made by counsel.
Appellants’ claim now that this constituted plain error
is clearly frivolous.
In addition, appellants point out that some requested
testimony was never read back to the jury. This, as weil,
was not an abuse of discretion. Only after the rereading
had apparently been concluded and the jury had again
been excused did defense counsel claim that two addi-
tional questions and answers were within the jury’s
25a
Appendix A
Opinion of United States Court of Appeals
request (A3991-92); no objection had previously been
made to the portions selected for rereading. Moreover,
the district court properly recognized that the two ques-
tions and answers were merely cumulative of other testi-
mony of the same witness that had been read back.
Therefore, there was no error in the refusal to recall the
jury for a rereading of two more questions and answers.
B. Provenzano Issues
1. Evidence of Provenzano’s Participation in the
Conspiracy
The evidence of Provenzano’s participation in the
conspiracy must be considered in the light most favor-
able to the Government on review of the jury’s guilty ver-
dict. E.G., United States v. Schoenhut, 576 F.2d 1010,
1014 (3d Cir.), cert. denied, 439 U.S. 964 (1978); United
States v. Pratt, 429 F.2d 690, 691 (3d Cir. 1970). Sim-
ilarly, the evidence must be so viewed in reviewing the
district judge’s determination (A3344-47) of proof of
Provenzano’s participation by a preponderance of evi-
dence independent of coconspirator statements, e.g.,
United States v. Trotter, 529 F.2d 806, 811-12 (3d Cir.
1976); United States v. Bey, 437 F.2d 188, 191 (3d Cir.
1971), upon which was predicated the admission of
coconspirators’ statements, under Fed. R. Evid.
801(d)(2)(E). See, e.g., United States v. Trowery, 542
F.2d 623, 626-27 (3d Cir. 1976) (per curiam), cert. denied,
429 U.S. 1104 (1977). The necessary quantum of evi-
dence has been characterized as “some,” Schoenhut,
576 F.2d at 1027, and “slight,” United States v. Fried,
576 F.2d 787, 793 (9th Cir.), cert. denied, 439 U.S. 895
(1978). What must be shown is Provenzano’s participation
in the conspiracy, i.e. agreement, as opposed to mere
knowledge thereof or approval, but from a showing of
26a
Appendix A
Opinion of United States Court of Appeals
knowledge plus actions taken in furtherance of the
conspiracy, the jury may infer the necessary agreement.
United States v. Klein, 515 F.2d 751, 753 (3d Cir. 1975).
The only direct proof of Provenzano’s participation
in the conspiracy came from Picardo’s testimony.
Provenzano attempts to dismiss Picardo as a biased liar,
Proveu.zano brief at 30, but, of course, Picardo’s state-
ments must be accepted as true for the purpose of deter-
mining the sufficiency of evidence.
Picardo testified that he told Provenzano exactly how
the operation was running, that Provenzano approved,
and that Provenzano was paid from that operation:
Q. [MR. SPEISER, Assistant U.S. Attorney].
Now, did you ever have a personal conversation
with Mr. Provenzano about this operation you were
running with Interocean?
A. [PICARDO]. Yes, I did.
Q. What did you tell him?
A. I told him exactly what we were doing, the
method we were using, and he complimented me
on the successful type of operation.
MR. GOLDBERG [Provenzano Coun-
sel]: Judge, can I have a date? Is that ’73? .
THE COURT: What date was it?
THE WITNESS: I don’t know the exact
date, your Honor.
MR. GOLDBERG: The month?
THE COURT: Do you know the year?
THE WITNESS: I would say ’73.
MR. GOLDBERG: Thank you.
THE WITNESS: Or late °72.
Q. Did you ever personally give Mr. Tony
Provenzano any of the proceeds of this ghosting
operation?
27a
Appendix A
Opinion of United States Court of Appeals
A. I think in one occasion I did personally.
Q. Do you recall when that was?
A. Could you give me a minute to think about
that one?
Q. Yes.
A. Sometime in 1973.
(A1072-73). Picardo also testified just before this collo-
quy that Provenzano received a share (A1072), and
received cash proceeds, either directly or through others
(A1090). See Direct Sales Co. v. United States, 319 U.S.
703, 713 (1943) (stake in venture relevant to participa-
tion in conspiracy). Picardo testified that Provenzano
contributed capital to Lift Van, part of the operation of
which was illegal, and that the illegal intent — “[{t]o
monopolize the industry, not to have a union contract so
we could give suppressed rates and get all the lucrative
business from the major steamship lines” — was dis-
cussed with his “associates” (A1176-77). Picardo testi-
fied that Provenzano was interested in the status of Lift
Van and was “the boss” who decided that Picardo should
acquire Lift Van (A1155-57).
From the above evidence, the district judge could
have concluded by a preponderance, and the jury could
have found beyond a reasonable doubt, that Provenzano
knew of the scheme, contributed money to it, approved
of it, and therefore was a participant. Provenzano argues
that not all of Picardo’s Cargo and Lift Van operations
were totally illegai,'!? so that Provenzano’s approval and
participation in contributions and profits may have gone
to the legal aspects. This may be so, but the judge and
jury were entitled to draw the opposite inference, par-
ticularly since the thrust of Picardo’s testimony was that
19. We note that this line of argument conflicts with the appel-
lants’ contention that their operations could not be a RICO “enter-
prise” because they were wholly illegitimate, see ante at 10-11.
28a
Appendix A
Opinion of United States Court of Appeals
Provenzano’s participation and interest were with respect
to the illegal aspects of the operation, i.e., “ghosting.”
Picardo also testified that he used illegal profits at
Provenzano’s direction to pay bills for the upkeep of
Provenzano’s daughter’s riding horse (A1120-23).
Provenzano argues that this is proof only of association
and not participation, but the judge and the jury were
entitled to infer that Provenzano was doing something to
aid the conspiracy, or at the least, he was a part of it so as
to entitle him to profit from it.
Although the evidence is not overwhelming, and
while it comes from only one witness whose veracity was
certainly open to question, it was sufficient to establish a
conspiracy and to tie Provenzano to that conspiracy.
2. Admission of Picardo’s Statements Under the
Coconspirator Hearsay Exception
At issue here is the testimony of Paulette Compton
and Mary Ann Hart, Picardo’s paramours, and of Alan
Abramowitz, an employee of Picardo, who were allowed,
over objections, to testify to statements Picardo made to
them about Provenzano and his role in the illegal oper-
ations. The statements were admitted under Fed. R.
Evid. 801(d)(2)(E):
(d) Statements which are not h
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