# Petition — Provenzano v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0101%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 899 ## Text 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 Appendix A 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 Appendix A 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) [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0101%3A1. Public record. Not legal advice.