Opposition — Provenzano v. United States

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S,

FILED

No. 80-78 SEP 16 1980

Bux the Supreme Couret of the Hake

OCTOBER TERM, 1979

ANTHONY PROVENZANO, STEPHEN ANDRETTA AND

THOMAS ANDRETTA, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WADE H. MCCREE, JR.

Solicitor General

PHILIP B. HEYMANN

Assistant Attorney General

WILLIAM G. OTIS

FRANK J. MARINE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

In the Supreme Court of the urited States

OCTOBER TERM, 1979

No. 80-78

ANTHONY PROVENZANO, STEPHEN ANDRETTA AND

THOMAS ANDRETTA, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

QUESTIONS PRESENTED

1. Whether the jury selection procedures employed

by the district court deprived petitioners of a fair trial.

2. Whether the district court properly denied

petitioners Thomas and Stephen Andretta’s motions

for severance and change of venue.

3. Whether the district court abused its discretion

in dealing with an incident of juror misconduct.

4. Whether petitioners were deprived of their right

to be present at trial by their absence from a confer-

ence between their attorneys and the court concerning

the juror misconduct incident.

5. Whether the court of appeals properly upheld the

admission of certain evidence on a ground that the dis-

trict court did not consider.

6. Whether 18 U.S.C. 1962(c), which prohibits par-

ticipation in “any enterprise” conducted through a pat-

tern of racketeering activity, and affecting interstate

commerce, reaches participation in illicit ventures, as

well as participation in legitimate businesses.

III

TABLE OF CONTENTS

Opinion below ..........ceeeeeeeeeeeeeeeeeevenens

ESPERO LE

oc ia Pu eal Ke Caw bee 6 ON SS ORS a WeN an

AYGuMEeNt .....cccccccesecccceveessscccccsccens

ee ee ye sey were ye ee ee eee

TABLE OF AUTHORITIES

Cases:

Blackwell v. Brewer, 562 F.2d 596 ...........

Bunch v. Maryland, 281 Md. 680, 381 A.2d

bo Serer errerer rr re Tite rai Tee .

Commonwealth v. Robichaud, 358 Mass. 300,

RRS f PeTTTTTTL TT TESETeee

Cox v. United States, 309 F.2d 614...........

Dobbert v. Florida, 482 U.S. 282.............

Ellis v. Oklahoma, 430 F.2d 1852, cert. de-

nied, 401 U.S. 1010 .......ccccccccvveevees

Estelle v. Williams, 425 U.S. 501............

Fabian v. United States, 358 F.2d 187........

Geders v. United States, 425 U.S. 80.........

Government of the Virgin Islands v. Gereau,

502 F.2d 914, cert. denied, 424 U.S. 917....

Ham v. South Carolina, 409 U.S. 524........

Hamling v. United States, 418 U.S. 87.......

Henry v. Mississippi, 379 U.S. 448 ........+.

Irvin v. Dowd, 366 U.S. 717 ...... cece eee eee

Marshall v. United States, 360 U.S. 310......

Near v. Cunningham, 313 F.2d 929..........

Nevels v. Parratt, 596 F.2d 344..........+4..

Cases—Continued: Page

Pamplin v. Mason, 364 F.2d 1 ...........05. 9

Ristaino v. Ross, 424 U.S. 589 ...........05. 5

Snyder v. Massachusetts, 291 U.S. 97........ 13

United States v. Aleman, 609 F.2d 298, cert.

denied, No. 79-1009 (Mar. 24, 1980) ........ 17

United States v. Altese, 542 F.2d 104, cert. de-

Ns CE BOUT oh noe his odd dace eeudes 17, 18

United States v. Anderson, No. 79-1809 (8th

Sy TR ae a 18

United States v. Baca, 494 F.2d 424.......... 13, 14

United States v. Barnes, 604 F.2d 121, cert.

FA denied, No. 79-261 (Apr. 21, 1980) ......... 11

United States v. Brown, 571 F.2d 980 ........ 13, 14

United States v. Bufalino, 576 F.2d 446, cert.

SG Ue REL a bs hhc hs dc wo vs wesc 11

United States v. Capo, 595 F.2d 1086, cert. de-

nied sub nom. Lukefahr v. United States,

Fees FOOSE SHO, FT, BOO) wn cvvs sescenvecss 7,9

United States v. Cepeda Penes, 577 F.2d 754 . 7

United States v. Elliott, 571 F.2d 880, cert.

SO I Ss UP oss orbits dees ch becvars 17

United States v. Gullion, 575 F.2d 26 ........ 5,9

United States v. Haldeman, 559 F.2d 31, cert.

Sees Grd. Sie IPA Go 6 dae val vw bdee vedas )

United States v. Hawkins, 566 F.2d 1006, cert.

OM Ge te GI bind vee hc deeeewhsccs 7

United States v. Hendrix, 549 F.2d 1225 ..... 11

United States v. Howell, 514 F.2d 710, cert.

Sy Se Wu UE So Nec SN dees bse acecs 13

United States v. Johnson, 584 F.2d 148, cert.

Ee Ga WB av ckide had bw cxwaandeken 7

Cases—Continued

United States v. Jones, 542 F.2d 186, cert. de-

OG, Se Ue BR ick fo isc aa

United States v. Panebianco, 543 F.2d 447,

cert. denied, 429 U.S. 1108 ................

United States v. Renfro, 620 F.2d 569, cert.

pending, No. 80-5192 (filed Aug. 11, 1980) ..

United States v. Rone, 598 F.2d 564 cert de-

nied sub nom. Little v. United States, No.

79-5018 (Mar. 24, 1980) .......cccccccccece

United States v. Rosenstein, 474 F.2d 705 ....

United States v. Sinclair, 488 F.2d 50........

United States v. Sutton, 605 F.2d 260........

United States v. Swiderski, 593 F.2d 1246,

cert. denied, 441 U.S. 988 .........ccccece.

United States v. Taliaferro, 558 F.2d 724, cert.

Caen, GES Wide PONS ai ok oo elvks kos ck.

United States v. Witt, 215 F.2d 580, cert. de-

WG Se AE OE 6 vin bee sear ee es

United States ex rel. Doggett v. Yeager, 472

FMM eG ue chk sl tikes Cleese

Constitution, statutes and rules:

United States Constitution, Sixth Amendment

Racketeer Influenced and Corrupt Organiza-

tions Act, 18 U.S.C. 1961 et seg.:

BP URNA MONI oaks Ge'sce vsekeOoa se,

Pe EN MENS Fa vi boc os Ub oid kabobs

Page

Constitution, statutes and rules—Continued: Page

ee 1

EST 1

ES EE, MED nde ke ccd sc cecwecscces 5

SE ee 14

I, a ve dN ste vues sescec 12

Fed. R. Evid. 801(d)(2)(E) .............ee eee, 15

OPINION BELOW

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

4la) is reported at 620 F.2d 985.

JURISDICTION

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

42a-43a) was entered on May 8, 1980. A petition for

rehearing was denied on June 20, 1980 (Pet. App.

44a). The petition for a writ of certiorari was filed on

July 17, 1980. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the District of New Jersey, petitioners were

convicted of participating in the affairs of an enter-

prise conducted through a pattern of racketeering ac-

tivity,’ in violation of 18 U.S.C. 1962(c), and of con-

spiring to commit that offense, in violation of 18

U.S.C. 1962(d). Petitioners Provenzano and Thomas

Andretta were each sentenced to 20 years’ imprison-

ment and fined $20,000. Petitioner Stephen Andretta

was sentenced to 10 years’ imprisonment and fined

$15,000. The court of appeals affirmed (Pet. App. la-

41a).

The evidence at trial, the sufficiency of which

petitioners do not challenge, established that petition-

ers, through their control of a Teamsters Union local,

1The acts of racketeering consisted of unlawful payments to

labor union employees or officers, in violation of 29 U.S.C. 186.

See 18 U.S.C. 1961(1)(C).

conspired to obtain illegal payments from trucking

companies in return for supplying “labor peace” (see

Pet. App. 3a-7a). The target companies, Interocean

Services, Inc. and its successor, Di-Jub Leasing Cor-

poration, were “in house” truckers for Seatrain Lines,

Inc., a steamship company engaged in shipping con-

tainerized freight that was ultimately transported by

truck to its final destination.

In early 1970, co-conspirator Ralph Picardo, who

operated a trucking firm (Cargo Truck Leasing),

negotiated an agreement with Raymond Rosen, In-

terocean’s vice president, to provide trucks and

owner-operator drivers to Interocean, thus enabling

Interocean to reduce its operating costs substantially

by avoiding payment of union wages and benefits to its

drivers. In addition, Picardo told Rosen that, through

his associates, he could guarantee that no efforts

would be made to organize Interocean’s drivers, and

that Interocean’s operations would not be interrupted

by labor disputes and would be protected from moles-

tation by other Teamster locals and other unions in the

ten states in which Interocean operated (J. App. 999-

1004, 1029). Petitioners, through their influence at

Local 560 of the International Brotherhood of

Teamsters, located in Union City, New Jersey,® were

2“J. App.” refers to the five volume joint appendix in the

court of appeals; “J.S. App.” refers to the one volume joint sup-

plemental appendix in that court.

*During the conspiratorial period, petitioner Provenzano al-

legedly controlled Local 560 and other locals; between approxi-

mately December 1975 and June 1978, Provenzano was the

Secretary-Treasurer of Local 560. During the same period,

petitioner Stephen Andretta was a business agent and employee

of Local 560 (J. App. 954, 960-961, 978-984).

able to ensure Cargo (and, hence, Interocean) an

adequate supply of drivers. In return, Picardo re-

ceived monetary payments through a “ghosting”

scheme in which Interocean paid Cargo for fictitious

drivers; these payments were divided among petition-

ers and other co-conspirators (Pet. App. 5a-6a).4

The payments generated by the scheme were dis-

tributed through various devices (Pet. App. 6a; J.

App. 1069-1072, 1146-1147). On at least one occasion

Picardo personally delivered cash proceeds of the

scheme to petitioner Provenzano and at his direction

also used some of the proceeds to pay for the upkeep

on horses for Provenzano’s daughter (J. App. 1073,

1120-1123, 1297-1298, 1323). Picardo also personally

delivered the proceeds to the other petitioners (J.

App. 1073-1074, 1090-1092). Moreover, Picardo told

petitioner Provenzano “exactly * * * the method [he

was] using” to obtain the payments, and Provenzano

“complimented” him on the scheme’s success (J. App.

1072-1073).

In order to obtain greater profits, petitioners ac-

quired control of Lift-Van Transport, a licensed in-

terstate common carrier, in an attempt to replace In-

terocean as Seatrain’s in-house shipper (Pet. App. 7a;

J. App. 1144, 1148). Picardo was the ostensible pur-

chaser of Lift-Van; petitioners in fact contributed to

its purchase as silent partners (J. App. 1169-1172,

*Petitioners required Interocean to increase its payments in

return for preventing the International Longshoremen’s Associ-

ation from claiming jurisdiction over the movement of trucks in

and around Seatrain’s pier facilities (Pet. App. 6a; J. App. 1058,

1060-1061).

1176). Lift-Van’s Teamsters contract was not renewed

after petitioner Stephen Andretta warned officials of

the Teamsters local that petitioners’ group controlled

the company (J. App. 1175-1178). However, Lift-Van

did not succeed in its attempt to replace Interocean (J.

App. 1220-1228, 2517).

Thereafter, petitioners formed FLT Trucking and

Leasing, Inc., which replaced Cargo Truck Leasing as

the conduit for the payments from Interocean for the

fictitious drivers. Petitioner Thomas Andretta, who

was in prison at all relevant times, ostensibly ran FLT

(Pet. App. 7a; J. App. 1198-1211, 2193-2194, 2197-

2199).

The scheme was uncovered when Picardo agreed to

cooperate with the government (Pet. App. 7a).

ARGUMENT

1. During the district court’s voir dire of the jury

panel, a number of prospective jurors stated that they

had some acquaintance with pretrial publicity sur-

rounding the case. Most of that publicity focused on

petitioner Provenzano. Petitioners contend (Pet.

19-30) that the district court failed adequately to ques-

tion the jurors concerning the effect of the pretrial

publicity upon their ability to remain impartial and im-

properly refused to excuse five prospective jurors,

only three of whom were challenged for cause. These

contentions are without merit.

It is well settled that a defendant is not entitled to a

trial by a body of jurors ignorant of all facts sur-

rounding the case, a standard that would be impossible

to achieve in many instances. Rather the defendant is

entitled to be tried before an impartial jury that will

render a verdict based soley on the evidence presented

in court. Irvin v. Dowd, 366 U.S. 717, 722-723 (1961).

No court has ever held that the only impartial jury is a

jury completely ignorant of the facts surrounding a

case. See Dobbert v. Florida, 432 U.S. 282, 301-302

(1977). As this Court emphasized in Irvin v. Dowd,

supra, 366 U.S. at 722-723: “In these days of swift,

widespread and diverse methods of communication, an

important case can be expected to arouse the interest

of the public * * * and scarcely any of those best qual-

ified to serve as jurors will not have formed some im-

pression or opinion as to the merits of the case. This is

particularly true in criminal cases.” The Court added

that “[iJt is sufficient if the juror can lay aside his im-

pression or opinion and render a verdict based on the

evidence presented in court.” Jd. at 723.

The district court is vested with broad discretion

over the questioning of prospective jurors. Fed. R.

Crim. P. 24(a); Ristaino v. Ross, 424 U.S. 589, 594

(1976); Hamling v. United States, 418 U.S. 87, 1389-

140 (1974); Ham v. South Carolina, 409 U.S. 524,

527-528 (1973). And “because the ‘determination of

impartiality, in which demeanor plays such an impor-

tant part, is particularly within the province of the

trial judge’” (Ristaino v. Ross, supra, 424 U.S. at

594-595), his decision that a juror is impartial “will be

reversed only for a manifest abuse of discretion.”

Government of the Virgin Islands v. Gereau, 502 F.2d

914, 934 (3d Cir. 1974), cert. denied, 424 U.S. 917

(1976); United States v. Gullion, 575 F.2d 26, 29 (1st

Cir. 1978); United States v. Ploof, 464 F.2d 116, 118

n.4 (2d Cir. 1972).

a. The district court in this case commenced the

jury selection process by questioning the panel of 62

prospective jurors in open court on general matters (J.

App. 465-502, 552-580, 626-665, 757-773). This was

followed by individual questioning of each panel

member in chambers regarding exposure to pretrial

publicity and each juror’s ability to render an impartial

verdict (J. App. 504-545, 580-622, 665-744, 774-789);

defense counsel participated in this questioning (J.

App. 507-508, 511, 514, 517-519, 522-523, 525, 526-

527, 580-532, 534, 5387-538, 583, 587, 591-592, 595,

597, 601-604, 605-607, 611, 616, 619, 671-673, 677,

680, 682, 692-693, 695-696, 704, 709, 711-712, 718-

721, 726-727, 732-733, 736-738, 740, 743-744, 780-782,

786-787, 789). The questions focused on the nature of

the information each juror had heard and the amount

of detail he or she was able to recall. In addition, the

court on numerous occasions inquired whether pros-

pective jurors had discussed among themselves news

coverage concerning petitioner Provenzano (J. App.

519, 522, 531, 534, 589, 592, 595, 597, 600, 611, 615-

616, 621-622, 673, 692, 713, 720-721, 737, 738, 741,

774, 783, 789).

In determining whether to excuse particular jurors

for cause, the court considered the nature of each

juror’s answers, as well as the juror’s demeanor when

asserting an ability to decide the case fairly solely on

the evidence. Upon considering all of these factors, the

district court excused for cause, either sua sponte or

on defense challenge, all prospective jurors who had

heard of petitioner Provenzano’s murder conviction, as

well as six jurors (Nos. 25, 34, 43, 45, 51, 55) who had

not. Of the jurors who were excused for cause, five

(Nos. 25, 34, 40, 48 and 55) were excused not-

withstanding their statements that they were able to

disregard what they had read or heard.

Petitioners to the contrary notwithstanding (Pet.

29-30), this record demonstrates not an abuse of the

district court’s broad discretion over the jury selection

process, but an assiduous regard for the rights of the

parties to judgment by an impartial panel. After

careful and particularized consideration, the court re-

tained only those prospective jurors who satisfactorily

demonstrated their impartiality. In these circum-

stances, “the procedures followed and the questions

asked were sufficient to ensure selection of a fair and

impartial jury.” United States v. Johnson, 584 F.2d

148, 157 (6th Cir. 1978), cert. denied, 440 U.S. 918

(1979). See United States v. Capo, 595 F.2d 1086,

1090-1093 (5th Cir. 1979), cert. denied sub nom.

Lukefahr v. United States, No. 79-391 (Jan. 7, 1980).

b. What has been said rebuts in large measure

petitioners’ further claim (Pet. 21-28) that the district

court erred in refusing to strike for cause several

jurors who had been exposed to some media coverage

about petitioner Provenzano but had assured the court

to its satisfaction that they would be impartial. To

begin with, as the court of appeals noted (Pet. App.

19a n.15), petitioners waived any objection with re-

spect to two of the veniremen (Nos. 11 and 59), whom

petitioners failed to challenge for cause. See United

States v. Cepeda Penes, 577 F.2d 754, 759 (1st Cir.

1978); United States v. Hawkins, 566 F.2d 1006, 1013

(5th Cir.), cert. denied, 439 U.S. 848 (1978); United

States v. Ragland, 375 F.2d 471 (2d Cir. 1967); Fa-

bian v. United States, 358 F.2d 187 (8th Cir. 1966).

Moreover, the record clearly supports the district

court’s findings of impartiality concerning the three

challenged jurors whom the district court refused to

excuse for cause. See J. App. 519-523, 532-534, 588-

591. None of these jurors had heard anything specific

about the case (compare United States ex rel. Doggett

v. Yeager, 472 F.2d 229 (8d Cir. 1973)), or had learned

about any inadmissible evidence. Nor were these

jurors exposed to information about petitioners’ past

crimes. Compare Marshall v. United States, 360 U.S.

310 (1959). The three jurors had been exposed to news

reports that described petitioner Provenzano in gen-

eral terms as a “gangster,” as having “organized

crime” connections, or as involved in “kickbacks into

unions.” However, as the court of appeals observed

(Pet. App. 19a), “[n]o panel member indicated any be-

lief in this type of generalized innuendo, and each as-

sured the district judge in response to a series of five

to ten searching questions that he or she would decide

the case strictly on the evidence and on the law as ex-

plained by the judge and would not be influenced by

publicity.” The court of appeals correctly concluded,

therefore, that the district court’s refusal to excuse

these jurors for cause was not reversible error.

2. Petitioners Thomas and Stephen Andretta con-

tend (Pet. 30-32) that they were tainted by the pub-

licity concerning petitioner Provenzano and that the

district court abused its discretion in denying their

motions for a severance and change of venue.® We dis-

agree.

5 Petitioners presented these motions for the first time during

the jury selection process (J. App. 722-723, 791).

On the facts of this case, the trial judge did not

abuse his discretion by denying petitioners’ motions

and by proceeding to determine if an unbiased jury

panel could be selected through customary voir dire

precedures. See, e.g., United States v. Capo, supra;

United States v. Gullion, supra, 575 F.2d at 28;

United States v. Haldeman, 559 F.2d 31 (D.C. Cir.

1976), cert. denied, 431 U.S. 933 (1977); United States

v. Jones, 542 F.2d 186 (4th Cir.), cert. denied, 426

U.S. 922 (1976); Pamplin v. Mason, 364 F.2d 1, 6 n.9

(5th Cir. 1966). As the District of Columbia Circuit ob-

served in United States v. Haldeman, supra, 559

F.2d at 63 (emphasis omitted), “if an impartial jury ac-

tually cannot be selected, that fact should become evi-

dent at the voir dire.” See also Dobbert v. Florida,

supra, 482 U.S. at 301-303, rejecting the contention

that the “quantum of publicity” surrounding the de-

fendant’s offense made it impossible to select a fair and

impartial jury. The district court had every reason to

believe that the procedures it adopted would ensure

the selection of an impartial jury, and, as we have

shown, the record confirms that the jury as selected

was impartial.

3. The jury in this case was sequestered. ': oward

the end of the trial, a marshal discovered a juror and

two alternate jurors smoking a marijuana cigarette.

The marijuana incident was reported to the district

judge, who related the incident to counsel and stated

that he did not think the jurors’ behavior warranted

their removal. The judge, however, solicited counsel’s

opinions concerning an appropriate course of action.

After conferring among themselves, defense counsel

agreed that the jurors should not be removed; counsel

suggested in addition that the court inform the jurors

that they would not be prosecuted (Pet. App. 19a-

20a). Counsel’s suggestion was intended to eliminate

any possibility that the jurors “might be inclined to

favor the Gayernment out of fear of prosecution on

charges relating to the marijuana incident” (J.S. App.

117-118; see also J.S. App. 9, 11, 16-17, 38-42). The

court followed defense counsel’s request (J.S. App.

17).

Petitioners now argue (Pet. 32-35) that the district

court should have disregarded defense counsel’s advice

and dismissed the offending jurors sua sponte. This

argument is not well taken. As the court of appeals

ruled (Pet. App. 20a) in rejecting this claim, there is

no reason in this case “to depart from the longstanding

rule that counsel’s intentional tactical decisions at trial

bind his client.” See Wainwright v. Sykes, 433 U.S.

72, 91 n.14 (1977); Estelle v. Williams, 425 U.S. 501,

512 (1976); Henry v. Mississippi, 379 U.S. 448, 451

(1965). Inasmuch as the district court followed the

path the defense laid out for it, any error in its han-

dling of this episode was invited and accordingly af-

fords petitioners no basis to seek reversal of their con-

victions. See United States v. Renfro, 620 F.2d 569,

577 (6th Cir. 1980), petition for cert. pending, No. 80-

5192 (filed Aug. 11, 1980); United States v. Witt, 215

F.2d 580, 584-585 (2d Cir.), cert. denied, 348 U.S. 887

(1954).

®It is undisputed that defense counsel’s decision not to re-

quest removal of the regular juror was a deliberate tactical

choice. During their discussions concerning the incident one

defense attorney stated that he did not wish to challenge the

juror because the first alternate appeared to him to be pro-

government (J.S. App. 41; see Pet. App. 23a n.18).

At all events, there was no error in permitting the

juror and alternates to remain. A “criminal trial does

not unfold like a play with actors following a script

* * * The trial judge must meet situations as they

arise and to do this must have broad power to cope

with the complexities and contingencies inherent in the

adversary process.” Geders v. United States, 425 U.S.

80, 86 (1976). Nowhere is the court given broader dis-

cretion than in dealing with allegations of juror mis-

conduct, for the trial judge alone has first-hand knowl-

edge of the jury’s demeanor. See United States v.

Barnes, 604 F.2d 121, 144 (2d Cir. 1979), cert. denied,

No. 79-261 (Apr. 21, 1980); United States v. Bufalino,

576 F.2d 446, 451-452 (2d Cir.), cert. denied, 439 U.S.

928 (1978); United States v. Hendrix, 549 F.2d 1225,

1227-1229 (9th Cir. 1977); United States v.

Panebianco, 548 F.2d 447, 457 (2d Cir. 1976), cert. de-

nied, 429 U.S. 1108 (1977).

Here, there is no reason to believe that the jurors’

consumption of marijuana “affected [their] ability to

hear evidence or to deliberate” (Pet. App. 21a). Fol-

lowing the incident, no one on the defense team com-

plained that the perception of the juror and alternates

involved in the incident seemed impaired (J.S. App.

58-59). Subsequently, in denying a motion for a new

trial based upon this incident, the district court found

that there was no basis te suggest that “the sharing of

a marijuana cigarette by” the regular juror “in any

way impaired that juror’s ability to continue function-

ing as a juror” (J.S. App. 117). In the absence of any

showing of prejudice, it is apparent that the district

court acted well within its discretion in not removing

the juror and alternatares. See United States v.

&%>

Taliaferro, 558 F.2d 724, 725-726 (4th Cir. 1977), cert.

denied, 434 U.S. 1016 (1978).”

4. Petitioners also contend (Pet. 36-39) that their

absence from the conference concerning the marijuana

incident violated their rights under the Constitution

and Fed. R. Crim. P. 48(a) to be present at trial. The

court of appeals correctly rejected this contention

(Pet. App. 22a-24a).

The conference concerning the jurors’ misconduct

involved an issue of law and did not concern matters

relevant to guilt or innocence. Moreover, although the

district court admonished counsel not to disclose the

marijuana incident to the press (J.S. App. 39, 41), de-

fense counsel were free to consult with petitioners and

solicit their advice during this and other conferences

(J. App. 1023-1025). In these circumstances, petition-

ers’ physical absence from the conference bore no rela-

7There is no basis for petitioners’ suggestion (Pet. 33) that

the district court permitted jurors “to violate the law by smok-

ing marijuana.” By declining to discharge the juror and alter-

nates, the court neither approved nor condoned their conduct.

Nor may petitioners now claim that the jurors’ impartiality was

undermined by the court’s assurance that they need not worry

about prosecution. As the court of appeals pointed out (Pet.

App. 22a), “it was defense counsel who insisted on the judge’s

assuring the jurors that they would not be prosecuted lest they

favor the Government out of fear of prosecution.” Finally, in

view of the unusual circumstances presented here, this case

does not present an appropriate occasion for this Court to re-

view the court of appeals’ failure to reverse petitioners’ convic-

tions under its supervisory powers. We doubt that similar inci-

dents of juror misconduct are likely to arise with any frequency,

and unless they do we submit that the determination of the

proper means of handling such situations is best left to the dis-

cretion of the district courts on a case by case basis, subject to

review by the courts of appeals.

tion to their “opportunity to defend against the

charge” (Snyder v. Massachusetts, 291 U.S. 97, 105-

106 (1934)) and did not deprive them of their Sixth

Amendment right to be present at the trial. See

United States v. Brown, 571 F.2d 980, 986-987 (6th

Cir. 1978); United States v. Howell, 514 F.2d 710, 714

(5th Cir.), cert. denied, 423 U.S 914 (1975); United

States v. Baca, 494 F.2d 424, 428 (10th Cir. 1974);

Ellis v. Oklahoma, 430 F.2d 1352, 1354-1356 (10th

Cir. 1970), cert. denied, 401 U.S. 1010 (1971).8

®The cases relied upon by petitioners (Pet. 37) are inapposite.

In Nevels v. Parratt, 596 F.2d 344 (8th Cir. 1979), a juror

allegedly informed a third party during the trial that he did not

think the state had proven its case against the defendant. The

defendant was not present during the hearing in chambers at

which the juror and the person to whom he had spoken were

questioned concerning the incident. Because the hearing con-

cerned a factual inquiry into a matter that was directly related

to a “decision about the defendant’s guilt” (596 F.2d at 346), the

court of appeals agreed that the defendant had a right to be

present at the hearing. The court held, however, that the error

was harmless beyond a reasonable doubt and affirmed the denial

of the defendant’s petition for a writ of habeas corpus.

In Blackwell v. Brewer, 562 F.2d 596 (8th Cir. 1977), the de-

fendant was not present at a hearing where the court questioned

deputy sheriffs, bailiffs, and members of the jury to determine

whether any jurors had been prejudiced by an altercation be-

tween the defendant’s supporters and sheriff's personnel in the

courtroom hallway in the presence of some jury members. Some

of the jurors stated that the incident had frightened them. The

court of appeals observed that “(the defendant’s] exclusion from

the courtroom may very well have led some of the jurors to sus-

pect that [the defendant] himself bore some responsibility for

the altercation. The trial judge made no attempt to disabuse the

jurors of such a possible inference.” Jd. at 600. While the court

expressly found “no constitutional error in the court’s in-

chambers investigation of the melee” (id. at 600 n.3), it con-

cluded that the prejudice to the defendant from his absence was

not harmless because it prevented him from consulting with his

Furthermore, assuming arguendo that petitioners

were entitled, under Fed. R. Crim. P. 43, to be pres-

ent at the conference, defense counsel’s failure to ob-

ject to proceeding in petitioners’ absence constituted a

waiver of that right. See United States v. Brown,

supra, 571 F.2d at 987; United States v. Sinclair, 438

F.2d 50, 52 (5th Cir. 1971); Cox v. United States, 309

F.2d 614, 616-618 (8th Cir. 1962). At all events, any

error arising from petitioners’ absence was plainly

harmless. See United States v. Brown, supra; United

States v. Baca, supra, 494 F.2d at 428-429. As the

court of appeals observed (Pet. App. 23a-24a):

Examination of the record reveals that counsel

vigorously safeguarded [petitioners’] interests, to

the extent of insisting on procedures they—

counsel—thought would yield the best chance for

attorney with respect to whether any of the jurors had formed

the impression that the defendant himself had precipitated the

altercation. 7d. at 600. Accordingly, the court remanded the

case to determine whether the defendant had waived his right to

object to the court’s error.

In Near v. Cunningham, 313 F.2d 929 (4th Cir. 1963), the

court remanded for a hearing to determine whether the defend-

ant had been present at a conference when a decision was made

that the jury would not be sequestered. The court stated (313

F.2d at 932) that relief was not warranted on “the mere fact of

the prisoner’s absence from the conference” but rather that re-

lief would be warranted by that fact “combined with the allega-

tions” that as a result of the court’s decision the jury was ex-

posed to highly prejudicial remarks by spectators during court

recesses.

Finally, in Bunch v. Maryland, 281 Md. 680, 381 A.2d 1142

(1978), and Commonwealth v. Robichaud, 358 Mass. 300, 264

N.E.2d 374 (1970), also cited by petitioners, the courts con-

cluded that under applicable provisions of state law the defend-

ants were entitled to be present at proceedings concerning juror

misconduct.

acquittal. It is fanciful for [petitioners] to suggest

post hoc that they would have demanded replace-

ment of the offending juror had they been present

at the conference.

5. Petitioners contend (Pet. 40-42) that the court of

appeals’ affirmance of an evidentiary ruling by the dis-

trict court on an alternative ground not presented at

trial violates due process. This contention is without

merit.

Three witnesses, Paulette Compton, Mary Hart,

and Alan Abramowitz, testified for the government

that Picardo. had told them about his involvement with

petitioner Provenzano in the illegal “ghosting” scheme.

The district court admitted this testimony pursuant to

Fed. R. Evid. 801(d)(2)(E), as co-conspirator state-

ments made in furtherance of the conspiracy. The

court of appeals concluded (Pet. App. 29a) that Comp-

ton’s testimony was properly admitted on that ground.

With regard to the testimony of Hart and Ab-

ramowitz, however, the court stated that “[t]he dis-

trict court made no findings, and the Government has

pointed to no evidence indicating that anything

Picardo told them could have furthered the conspi-

racy” (id. at 30a). Instead, the court of appeals af-

firmed the ruling on the alternative ground that the

testimony concerning Picardo’s statements made prior

to Picardo’s 1975 murder conviction was probative to

rebut the defense claim “that Picardo was lying

against all the defendants in return for benefits from

the Government” (ibid. ).

The defense at trial focused on Picardo’s credibility,

and, in particular, his motivation to testify falsely in

order to obtain immunity with respect to the instant

charges and to secure the federal government’s assist-

ance i avoiding punishment for the murder conviction

(J. App. 886-899, 918-919). During cross-examination

of Picardo, counsel for petitioner Provenzano specif-

ically raised the issue of Picardo’s bias or motive (Pet.

App. 3la n.20; J. App. 1506-1507). In these circum-

stances, we believe that the court of appeals was cor-

rect in concluding that the testimony in question was

properly admitted to rebut the defense claim of recent

fabrication. We note that petitioners do not contest

this conclusion; they merely contend that the court of

appeals’ reliance upon it violates due process because

they were denied the opportunity to contest the ad-

missibility of the evidence on this ground.® Petitioners’

claim rings hollow in view of their failure to make any

substantive argument that the court of appeals was

mistaken. Given this implicit concession that the evi-

dence was admissible, the court of appeals’ disposition

deprived petitioners of nothing they otherwise might

have achieved had the district court ruled the tes-

timony admissible to rebut the recent fabrication

charge. Plainly, the admission of indisputedly proper

evidence does not offend due process. United States v.

Rosenstein, 474 F.2d 705, 709-714 (2d Cir. 1973).1°

®We disagree with petitioners’ claim (Pet. 41) that the gov-

ernment on appeal enjoys an advantage over a criminal defend-

ant because it can suggest alternative grounds not raised at trial

for the admissibility of evidence. On the contrary, the admission

of evidence on behalf of a defendant is not subject to review on

appeal at all.

10TIn any event, the testimony of Hart and Abramowitz was

merely cumulative to Compton’s testimony, which the court of

appeals held (and petitioners do not dispute) was properly ad-

6. Petitioners contend (Pet. 43-51) that their con-

victions should be overturned because the definition of

“enterprise” in the Racketeer Influenced and Corrupt

Organizations Act (18 U.S.C. 1962-1964) (“RICO”)

should not be interpreted to include illicit ventures as

well as legitimate businesses. In support of this con-

tention, they rely upon the recent decision of the Sixth

Circuit in United States v. Sutton, 605 F.2d 260

(1979), and assert that the decision below “appears” to

conflict with the decision in Sutton. However, as we

have informed the Court in response to petitions for

writs of certiorari in several other cases in which this

question was presented, the Sixth Circuit has granted

the government’s petition for rehearing en banc in

Sutton and has vacated the panel’s decision. Accord-

ingly, there is at present no conflict among the circuits

on this issue requiring resolution by this Court, since

every other court of appeals to have passed upon the

question has concluded that 18 U.S.C. 1962 reaches il-

legitimate as well as legitimate enterprises that are

conducted through a pattern of racketeering acivity.

United States v. Aleman, 609 F.2d 298 (7th Cir. 1979),

cert. denied, No. 79-1009 (Mar. 24, 1980); United

States v. Rone, 598 F.2d 564 (9th Cir. 1979), cert. de-

nied sub nom. Little v. United States, No. 79-5013

(Mar. 24, 1980); 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, 896-899

(5th Cir.), cert. denied, 4389 U.S. 953 (1978); United

States v. Altese, 542 F.2d 104 (2d Cir. 1976), cert. de-

mitted as co-conspirator statements. Any error in the admission

of the testimony of Hart and Abramowitz was therefore harm-

less. United States v. Rosenstein, supra, 474 F.2d at 714.

nied, 429 U.S. 1039 (1977).11 Moreover, for the reasons

stated in our Brief in Opposition in Little v. United

States, supra, we submit that Section 1962 reaches not

only legitimate businesses or operations, but also in-

formal associations of individuals engaged in illegal ac-

tivities. 12

Finally, even assuming that RICO seeks only to

preclude corrupt infiltration of legitimate businesses

as petitioners contend, reversal of their convictions

would not be warranted. The enterprise that was

charged in the instant indictment included several

legitimate trucking companies (J. App. 19). In addi-

tion, as the court of appeals stated (Pet. App. lla-

12a):

The purpose of RICO—prevention of infiltration

of legitimate business by racketeers—would in

any event be vindicated by the convictions here,

since the wholly illegitimate Provenzano associa-

tion subverted legitimate unions and businesses

* *K

11We note that the Eighth Circuit, in United States v. An-

derson, No. 79-1809 (Aug. 7, 1980), slip op. 29, has recently

concluded that Congress in enacting RICO intended the term

“enterprise” to encompass only an association whose operations

are directed toward an economic goal and whose existence can

be defined apart from the commission of the predicate acts con-

stituting the “pattern of racketeering activity.” Unlike the

panel in Sutton, however, the court in Anderson did not rest its

decision on the legitimacy or illegitimacy of the enterprise, “but

rather on the need for a discrete economic association existing

separately from the racketeering activity.” Slip op. 30. As we

show below (pages 18-19, infra), the enterprise here included

several legitimate trucking companies, and the RICO statute

was properly employed as the basis for prosecution in this case,

which involved the infiltration of racketeers into an important

segment of the nation’s business economy.

12We are sending petitioners’ counsel copies of our submis-

sions in Little.

Thus even if there were presently a conflict in the

circuits on this issue warranting this Court’s review,

this case would not be an appropriate one in which to

resolve the question.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.