# Petition — Bono v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 921

## Text

8 0 vi 3 1 2 Soren Gent

AUG 91980
MICHAEL RODANK, JR, CLERK

No.

Jn the Supreme Gourt of the United States -

JANE BONO, PETITIONER
v,.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CFRTIORARI TO THE THIRD CIRCUIT
COURT OF APPEALS

~ PETITION FOR WRIT OF CERTIORARI

Counsel for Pentivner :

ROBERT F. SIMONE, [Counsel of Record]
JAMES T. VERNILE,

150 Robinson Building
Philadelphia. PA 19102
(215) 563-2758

STATEMENT OF THE QUESTIONS
PRESENTED FOR REVIEW

DID THE PROSECUTION PRESENT INDE-
PENDENT, CREDIBLE EVIDENCE THAT THE
PETITIONER WAS PART OF A COCAINE
CONSPIRACY, THE MEMBERS OF WHICH
INCLUDED HEARSAY DECLARANTS, SUCH
AS TO RENDER ADMISSIBLE THE STATE-
MENTS OF SAID DECLARANTS MADE
DURING AND IN FURTHERANCE OF THE
OBJECTIVES OF THE CONSPIRACY?

(Answered affirmatively in the
Courts below.)

WAS IT ERROR TO PERMIT THE PROSECU-
TOR TO CROSS-EXAMINE THE PETITIONER
ABOUT HER RELATIONSHIP WITH HER.
BOYFRIEND, A NEW JERSEY PUBLIC
OFFICIAL?

(Answered negatively in the
Courts below.)

WAS IT ERROR TO PERMIT THE
PROSECUTOR TO CHARACTERIZE AS

"FLAG WAVING" THE DEFENSE COUNSEL'S
COMMENTS REGARDING REASONABLE DOUBT
AND THE RESPONSIBILITY OF THE JURY
IN PRESERVING THE AMERICAN SYSTEM
OF JURISPRUDENCE?

(Answered negatively in the Courts
below. )

TABLE OF CONTENTS

STATEMENT OF QUESTIONS
PRESENTED

TABLE OF CITATIONS

DISCUSSION OF LOWER COURT
OPINIONS

JURISDICTIONAL STATEMENT

SUMMARY OF FEDERAL CONSTI-
TUTIONAL AND STATUTORY
PROVISIONS IN ISSUE

STATEMENT OF CASE

ARGUMENT

I. THE PROSECUTION PRESENTED

NO INDEPENDENT, CREDIBLE
EVIDENCE THAT THE PETI-

TIONER DISTRIBUTED COCAINE.

II. IT WAS ERROR TO PERMIT THE
PROSECUTOR TO CROSS-
EXAMINE THE PETITIONER

aks

ABOUT HER RELATIONSHIP WITH
HER BOYFRIEND, A NEW JERSEY
PUBLIC OFFICIAL.

IT WAS ERROR TO PERMIT THE
PROSECUTOR TO CHARACTERIZE
AS "FLAG WAVING" DEFENSE
COUNSEL'S COMMENTS REGARDING
REASONABLE DOUBT AND THE
RESPONSIBILITY OF THE JURY
IN PRESERVING THE AMERICAN
SYSTEM OF JUSTICE.

12

28

31

34

Lii
Page

ORDER AND OPINION PER DISTRICT
COURT JUDGE BRODERICK FILED
APRIL 19, 1979, DENYING
POST TRIAL MOTIONS Appendix p.1l

JUDGMENT ORDER AFFIRMING
CONVICTION PER THIRD
CIRCUIT JUDGES GIBBONS,
WEIS, AND SLOVITER FILED
JUNE 11, 1980 Appendix p.10

CERTIFICATE OF SERVICE Appendix p.12

TABLE OF CITATIONS

United States v. Benson,
487 F.2d 978, 982
Pe AD vce oO 4 ko saree owes 33

United States v. Coleman,
340 F.Supp. 451, 454 (E.D.Pa.)
att’ és. 878 F264. 2337 656 Cie:
1972), cert.denied, 411 U.S.
939, cert.denied, 414 U.S.
Bae CROSSE sé oe OPK sc 4 Sak as wat 33

United States v. Cornfield,
563 F.2d 967, 971.-¢€9th Cir.
1977), cert. denied, 435 U.S.
Bee: RATER Ce os cede EOC be ec ee ao

United States v. Davis,
$37.7 .20 L230, 1296 -<8th Cir.)
cert.denied, 434 U.S. 971,
EE Sot) SEBRING LALA RE. Renate ian SO 5 ar 35

United States v. Dinitz,
C.A.FLA. 1974, 492 Fed.2d 53,
oe a Gee EL 0 6b ate a a eae ew % Aes 35

United States v. Green, 373 F.Supp.
Lae; ta (Bees: Fa), OFo' a.
$O3° F.2d 731 (36 Cir: ) cert.
denied, 420 U.S. 978 (1974)...... 33

United States v. Gross,
375 F.Supp. 971, 978 (D.N.J.,
1974), aff'd. 511 F.2d 910,
Ce tT OS 6 oaks Sere coach bla 6 Ale Oh 36

United States v. Newman,
490 F.2d 139, 147 (3d Cir.1974).. 36

United States v. Somers,
496 F.2d 723, 741 (3d Cir.),
cert.denied, 419 U.S. 832
CE ee a Be cg Okeke 36

United States v. Stirone,
168 F.Supp. 490, 499-500
(a.0. Fa. Bor), Ber’ d.,. 262
P.2a 571 (3d Cir. 1958) rev'd.
on other grounds, 361 U.S. 212
CR ee cl 5s .b 6 sos ota bse eee 33

United States v. Webb,

533 F.2d 391, 395-396 (8th
ue) PANU eg aire 38

OTHER STATUTES CITED:

Federal Rules of Evidence 611(b)
ME aaa ee is Sa a i iS 12,332

Federal Rules of Evidence 801(d)
RS Ce ASU aaah hs 0.0% caw wave 10-11, 29

DISCUSSION OF OPINIONS
IN THE LOWER COURTS

Petitioner herewith seeks review of
the Judgment Order Without Opinion that
was filed by Circuit Judges Gibbons,
Weis, and Sloviter, on June 11, 1980, in
the Court of Appeals for the Third Circuit
(see Appendix, pages 11 and 12, infra.).
That Judgment Order which has yet to be
officially reported, contained a recita-
tion of the three assignments of error
relied upon by Petition in her appeal at
the Third Circuit level:

1. That there is no independent
credible evidence that she
distributed cocaine;

2. That cross examination concern-
ing her relationship with a
politician was improper and

plain error;

3. That the government's rebuttal
argument was improper.

Following this list of issues, the Court
concluded with the statement: "We find

no merit in any of these contentions."

The appeal in the Third Circuit sought
to secure the reversal of Judgment of Con-
viction and Sentence that was entered of
record in the United States District Court
for the Eastern District of Pennsylvania
on April 26, 1979. Petitioner was sen-
tenced on that date by District Judge
Raymond J. Broderick on a four count in-
dictment charging in various counts the
crimes of conspiring for the purpose of,
aiding and abetting, and actual distribu-
tion of controlled substances in violation
of Sections 846, 84l1(a)(1) and (2) of
Title 18 of the Criminal Code. Sentence
on the first count was for a period cf two
years imprisonment followed by a ten year
term of special parole and the identical
sentence was pronounced for the remaining
three counts with the proviso that the
four penalties run concurrent. The sent-
encing of Petitioner was proceeded approxi-

mately one week by the Order and Opinion

of Judge Broderick in which he considered

and rejected essentially the same three
assignments of error which were raised
later in the Court of Appeals (Opinion
and Order of April 19, 1979, appears at
Appendix, pages 1 through 7, infra).

Judge Broderick finds that viewed in
the light most favorable to the prosecu-
tion, the evidence at trial was sufficient

to meet the standard for proof aliunde of

BONO's membership in the alleged drug con-
spiracy in order to support the admission
into evidence of hearsay accounts inculpa-
tory as to the Petitioner related at trial
through testimony of Drug Enforcement
Agent Hopson who, in turn, testified re-
garding the statements of the hearsay
declarants who were allegedly co-conspira-
tors with the Petitioner. In essence,

the Opinion found that Agent Hopson's
contention that he and Petitioner had

discussed and planned the intricacies of

of anticipated drug sales during most of
the dozen or so occasions upon which they
met or conversed by phone was sufficient
to prove Petitioner's membership in the
conspiracy regardless of the well estab-
lished fact at trial that the Petitioner |
had never actually distributed cocaine

to Hopson during the time period of the
indictment or otherwise.

Judge Broderick approved of the cross
examination of the defendant by Assistant
U. S. Attorney Rivera-Soto in regard to
her romantic and sexual relationship
(significantly without any indication of
drug overtones) with the Treasurer of
Mercer County, the situs of New Jersey's
capital city, Trenton), a political figure
of great stature within the state.
Broderick reasoned that the line of ques-
tioning was designed to impeach Petitioner's
contention that she had never sought the

aid of political figures in the conduct of

her drug enterprise, despite the fact
that there was no attempt to elicit
through such questioning the specifics of
any drug related conduct nor any other
activity beyond the sexual intimacy which
Petitioner conceded to have existed.
Finally, Broderick found no error in
comments by the Assistant U. S. Attorney
during his closing argument wherein he
sought to malign certain statements made
by defense counsel in closing argument
regarding the zeal with which the jury
should apply the standard of beyond rea-
sonable doubt as well as other principles
and individual safeguards which comprise
our system of criminal justice. The Judge
found that the prosecution's comments dur-
ing rebuttal (p. 230a of Volume III in
the Appendix to the Brief at the Third Cir-
Cuit Court o: Appeals) were not, per se,
abuse of due process, although a perusal

of the passage in question reveals the pro-

secution's argument in most strident
language that the standard of proof
beyond reasonable doubt and the presump-
tion of innocence are contrivances which
only the guilty may be expected to resort
to as a cloak to protect the wrongdoing.
The Opinion by Judge Broderick reproduced
infra at pages 1 to 7 is not reported
officially according to the best informa-
tion available to the Petitioner at this

time.

JURISDICTIONAL STATEMENT

The Petitioner seeks review by this
Court of the Judgment Order of the Third
Circuit Court of Appeals dated June l1i,
1980, (reproduced infra, at Appendix,

p. 11) affirming the Judgment of Convic-
tion and Sentence imposed on the defendant
in the United States District Court for
the Eastern District of Pennsylvania on
April 26, 1979. The initial Judgment of
Conviction arose from a four count indict-
ment, Criminal No. 79-1, in the Eastern
District of Pennsylvania, charging the
defendant with violation of the Federal
Criminal Statute proscribing conspiring to
distribute, distributing, and aiding and
abetting the distribution of a controlled
substance (in violation of 18 U.S.C.A. 846,
18 U.S.C.A. 841(a)(1), and 18 U.S.C.A. 2
respectively).

After denial of post trial motions by
the trial Court with opinion filed 4/26/79

(Appendix, p.l), timely appeal was
docketed in the Third Circuit Court of
Appeals at 79-1639.

Petitioner has appended hereto,
(Appendix - p.8, infra.) copies of the
Third Circuit docket entries. A copy of
the Appendix to the Brief of the Appellant
filed in the Third Circuit Court of Appeals
is submitted for filing with the forty
copies of this Petition for Certiorari in
order to supply the District Court plead-
ings for this Court's perusal. The Supreme
Court's appellate jurisdiction in this
Matter rests upon 28 U.S.C.A. §1254 which
reads in pertinent part:

§1254. Courts of Appeals;

certiorari; appeal; certified

questions

Cases in the Courts of Appeals

may be reviewed by the Supreme

Court by the following methods:

(1) By Writ of Certiorari

granted upon the Petition of

any party to any civil or cri-

minal case, before or after

rendition of judgment or
decree...

SUMMARY OF FEDERAL CONSTITUTIONAL
AND STATUTORY PROVISIONS AT ISSUE

With regard to the question of
whether there existed sufficient evi-
dence of Petitioner's membership in a
drug conspiracy to support the admis-
sibility of hearsay statements by
alleged co-conspirator declarants, the
provisions in Rule 801 of the Federal
Rules of Evidence are pertinent along
with the guarantees of confrontation
appearing at the Sixth Amendment to the
United States Constitution and the text

of that Rule of Evidence is as follows:

Rule 801. Definitions

The following definitions apply under this article:

(a) Statement. A “statement” is (1) an oral or
written assertion or (2) nonverbal conduct of a
person, if it is intended by him as an assertion.

(b) Declarant A “deciarant” is a person who
makes a statement.

(c) Hearsay. “Hearsay” is a statement, other
than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the
truth of the matter asserted.

(d) Statements which are not hearsay. A state-
ment is not hearsay if—

10

(1) Prior statement by witness. The deciarant
testifies at the trial or hearing and is subject to
cross-€xamination concerning the statement, and
the statement is (A) inconsistent with his testimo-
ny, and was given under oath subject to the
penalty of perjury at a@ trial, hearing, or other
proceeding, or in a deposition, or (B) consistent
with his testimony and is offered to rebut an
express or implied charge against him of recent
fabrication or improper influence or motive, or
(C) one of identification of a person made after
perceiving him: or

(2) Admission by , arty-opponent. The state
ment is offered against a party and is (A) his own
statement, in either his individual or a represent-
ative capacity or (B) a statement of which he has
manifested his adoption or belief in its truth. or
(C) a statement by a person authorized by him to
make a statement concerning the subject, or (D) a
statement by his agent or servant concerning a -
matter within the scope of his agency or employ-
ment, made during the existence of the relation-
snip, or (E) 4 statement by a coconspirator of a
party during the course and in furtherance of the
conspiracy.

e eeiaicgan Pub.L. 94-113, § 1, Oct 16, 1975, 89 Stat

—

The text of Rule 611(b) of the
Federal Rules of Evidence is of relev-
ance to the question of whether the
cross examination of Petitioner by the
United States Attorney after she was
called as a defense witness exceeded
the bounds of propriety. Section
611(b) defines the scope of cross

examination and reads in pertinent part

as follows:

Rule 611. Mode and Order of Interrogation
and Presentation

(a) Control by court. The court shall exercise
reasonabie controi over the mode and order of inter-
rogating witnesses and presenting evidence so as to
(1) make the interrogation and presentation effec-
tive for the ascertainment of the truth, (2) avoid
needless consumption of time, and (3) protect wit-
nesses from harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-examina-
tion should be limited to the subject matter of the
direct examination and matters affecting the credi-
bility of the witness. The court may, in the exer-
cise of discretion, permit inquiry into additional
matters as if on direct examination.

ll

12

STATEMENT OF THE CASE - FACTUAL

The circumstances which led to the
ultimate arrest and indictment of this
Petitioner took place in August and
September of 1978. The chain of events
resulting in the trial of the Petitioner
started on August 24, 1978, when Special
Agent Stephen Hopson of the Drug Enforce-
ment Administration (DEA) met with the
confidential informant who introduced him
to the Appellant's co-defendant, Mr. John
Yurosko. The agent, in his undercover
capacity, was seeking to arrange substan-
tial purchases of cocaine from acquaint-
ances of Yurosko generally and particularly
from Thomas Zidzik, a young man who ulti-
mately became the second of the Petitioner's
co-defendants at trial. Hopson continued
to discuss the purchase of cocaine with
Zidzik after the introduction of the two
men by their mutual acquaintance, John

Yurosko. On August 28, 1978, Hopson and

13

Special Agent James Bradley of the DEA
met Zidzik at the Bristol Flea Market.
Their purpose at the time was to convince
the Petitioner, purportedly through her
associate Zidzik, of their sincerity in
wishing to purchase substantial amounts
of cocaine. In furtherance of that ambi-
tion, the undercover agents displayed a
briefcase containing $28,000 in cash and
assured Zidzik that the entire sum was
available and earmarked for cocaine pur-
chases should the Petitioner be able to
supply sufficient quantities of the drug.

According to the prosecution, Zidzik
had distributed cocaine on behalf of an
organization of:individuals with overall
capacity to wholesale fifty to one hundred
pounds of cocaine per week.

Following the meeting at the Bristol
Flea Market, the very next day, August 29,
1979, Agent Hopson again contacted Zidzik,
who put the Petitioner, JANE BONO, on the

14

phone to speak to the agent at that time.
It should be noted that at no time during
the entire prosecution and trial was the
identity of the confidential informant who
initially vouched for the DEA agent to
potential drug sources, revealed by the
government.

Nonetheless, the person serving as
confidential informant also appears to
have been a material eyewitness and "ear-
witness" to significant overt acts purport-
ing to constitute the elements of crimes
charged (e.e., there was secured a series
of lengthy and detailed telephone conversa-
tions consensually tape recorded from the
telephone of the confidential informant).
The informant permitted Agent Hopson to
make consensual interceptions of all the
defendants and there were several such
conversations to which the Government
alleged that Petitioner JANE BONO was a

party.

15

The subject matter of the dialogues
allegedly between BONO and the DEA agent
dealt with words such as "fabric" and
"yards" the meaning of which is claimed
by the Govertaient to be translated in a
"code" under the terms of which cocaine
is referred to as "fabric" and its quan-
tities are measured in "yards".

} Subsequent to the initial telephone
introduction of the Petitioner and DEA
Agent Hopson, there occurred allegedly a
meeting between Zidzik and Hopson at the
7-11 Store located in Falls Township,
Bucks County, on Trenton Road. That meet-
ing took place on August 30, 1978, and
contained several highly incriminating
remarks made by Zidzik to the agent out-
side the hearing of the Petitioner JANE
BONO, who was not present at the time.
Zidzik claimed that he was part of an
organization with capacity for distribut-

ing two hundred pounds of cocaine per

7

16

week and that his superior in the chain
of distribution was the Petitioner.

Hopson, therefore, requested that
defendant Zidzik supply a sample of the
cocaine typical of that available from the
BONO "organization". At the August 30,
1978, 7-11 rendezvous, Zidzik proceeded to
call from the pay telephone outside the
store a female whom he identified to Agent
Hopson as MISS BONO, the Petitioner. Hopson
was permitted then to get on the phone and
he in turn proposed the drug purchases to
the female on the phone. According to the
prosecution's evidence, Agent Hopson con-
vinced this woman of his being a domiciliary
of the state of Maine so that she suggested
he could receive a sample of the drug by
purchasing a post office box in his home
town when he returned to Maine shortly
thereafter. The DEA office in Portland,
Maine, had provided a Post Office box

immediately upon the Agent's request for

17

such a mail receptacle. And, on Septem-
ber 7, 1978, a package containing a doll
was received in the box, the doll was
ultimately opened, and its contents tested
to reveal forty-one per cent of pure cocaine.
There followed on September 12, 1978,
a meeting between Agents Hopson and Bradley
along with Zidzik and BONO initially at the
Villa Sorrento Restaurant in Bucks County
and, after an altercation arose between
Defendant Zidzik and the bartender of that
establishment, subsequently the group con-
tinued the meeting in Ray Agabiti's Restau-
rant where allegedly they discussed the
conspiracy's objective over luncheon.
According to tape recordings pur-
portedly of the Petitioner, she was apolo-
getic about the poor quality of the cocaine
which the doll contained and promised that
her typical quality of narcotic was easily
twice the potency of that which she had

forwarded to the Portand, Maine, Post Office

18

box. It should be remembered that the
prosecution's averments as to the details
of the discussions that were tape recorded
and particularly as to the subject matter
of those conversations relating to cocaine
all rests upon the DEA Agent's contention
that the apparently innocuous subject
matter of the dialogues was consistently
the product of a "code" which substituted
legal terms of a non-criminal nature for
the various words contained in the lexicon
of the drug trade.

Through September 22, 1978, DEA Agent
Hopson persisted relentlessly in his
efforts to elicit an illegal sale of nar-
cotics by the Petitioner. On the twenty-
second, he telephoned her at least seven
times in succession and recorded each con-
versation in which he urged her to supply
him with a large quantity of cocaine, hope-
fully the same day as their dialogue had

occurred. The Petitioner purportedly

19

stated, apparently in order to dissuade
the agent from seeking to purchase drugs
from her, that she was unable to consum-
mate a large transaction because the
Pennsyivania Crime Commission had airested
the individual from whom she purchased her
cocaine.

There occurred other conversations on
other dates that purportedly relate to a
conspiracy to distribute cocaine. For
instance, on September te 1978, the con-
versation of the female identified as Peti-
tioner with DEA Agent Hopson (again con-
sensually eavesdropping upon the dialogue
and tape recording the results from the
unidentified informant's phone) consisted
of comments that the prosecutors interpret
to convey through code an additional apo-
logy for the poor quality of the original
cocaine doll sample sent to Maine, along
with further statements supposedly by the

Petitioner and conceded by the Government

20

to consist of disclaimers by her of any
intention to sell cocaine to the DEA agent.
Nevertheless, by translating the "code"
which the agents interpreted for the fact-
finder, the prosecution contended that

the conversation on September 18, 1978, ~
concluded with a promise by the Petitioner
to extend on consignment a substantial
shipment of cocaine to Zidzik for the
express purpose of his distributing it to
undercover agent Hopson.

October 3, 1978, was the date of
another 7-11 Store meeting between Hopson
and Zidzik. Hopson entered Zidzik's car
and received a drug sample which the agent
contends Zidzik identified as having been
originally from the supply of JANE BONO,
the Petitioner. Analysis revealed vir-
tually pure cocaine which the prosecutors
ponderously proclaimed was a rare occur-
rence in street transactions. Subsequent

to the October 3, 1979, meeting, another

21

Hopson-Zidzik 7-11 tryst took place
wherein two ounces of cocaine, of but
thirty per cent purity, was sold to the
DEA Agent for $4,000. ‘Re prosecution
did not infer from the radical reduction
in purity of the drug the existence of a
new source, different from the ninety-nine
per cent pure substance which supposedly
the Petitioner was capable of supplying.
The conversation tape recorded by
Hopson on October 19, 1978, consisted of
a discussion with Zidzik of the poor qual-
ity of the drug which Zidzik professed to
get from Petitioner. Zidzik advised the
Agent that all complaints were consequently
referrable to Ms. BONO. All such discus-
sions were recorded consensually and with
the permission of the confidential inform-
ant who initially introduced the agent into
the purported drug conspiracy and whose
identity never did come to light in the

course of the entire proceeding in the

22

District Court.

.~ The female identified as JANE BONO,
the Petitioner, stated to DEA Agent Hopson
in a conversation on October 23, 1978,
that her cocaine supply was being diluted
by people who had access to the safety
deposit box where she stored the drug and
the female suggested a rather bizarre means
of discouraging further such dilution of
the drug. Specifically, in the October 23,
1978, phone interception, the female
averred her intention of lacing the cocaine
"stash" with strychnine in order to reveal
the identity of the thieves by means of the
sudden, painful and precipitous death that
surely would result from the consumption
of the cocaine removed from the Petitioner's
safe deposit box without authorization.
This female was supposed to have promised
the agent that the ninety-nine per cent
pure sample received from Zidzik was typical

and representative of the normal product

23

that she was wholesaling. Paradoxically,
she never offered nor did the agent ever
demand some explanation for the radical
departure from that benchmark which
appeared to have regularly occurred during
the course of the transactions contained
in the conspiracy allegations of this
indictment.

The facts that have been recounted in
the foregoing paragraphs led to an indict-
ment in January of 1979 and consequent
trial in March of the same year. At the
trial, the proseuctor relied for his inde-
pendent proof of the existence of conspir-
acy such as to support the substantive
conspiracy charge in the indictment as well
as to properly precede the admission into
evidence of hearsay declarations by the
Petitioner's co-conspirators upon the tele-
phone conversations that were recorded by
the DEA agent with the consent of the
caller, a confidential informant. Signifi-

cantly, the entire body of intercepted

24

communications purporting to be those of
the Petitioner rests upon a foundation of
admissibility no stronger than the anony-
mous permission of an unidentified, mystery
informant who is known only to the Govern-
ment, available only to the Government, and
never provided at ne trial for confirma-
tion of the supposed consent that was
critical as a prerequisite for the inter-
ception that comprised the entire weight of
the prosecution's case.

There arose at trial additional signi-
ficant assignments of error with respect
to the cross examination of the Petitioner
by Assistant U.S. Attorney Rivera-Soto.
The testimony by Agent Hopson contained
averments of the fact that the Petitioner
supposedly claimed to be intimate with
many politicians and able to wield much
political power in order to avoid prosecu-
tion. According to the Government, the

prosecution was entitled to impeach the

25

Petitioner's denial of having made such
statements with evidence of her sexual
intimacy and romantic involvement with

the Treasurer of Mercer County (Trenton),
New Jersey, a relationship of a spectacular
and infamous nature with potential for pre-
judice apparent at a mere glance. Such
cross examination was permitted over the
objections of the Petitioner's counsel,
strenuously urging the Court to balance
the prejudicial nature of such irrelevant
issues in the personal life of the Peti-
tioner against the negligible probative
force of such cross-examination relative
to the Petitioner's denial of claiming

to manipulate powerful politicians. It

is respectfully urged that there would
more properly have been grounds for
admission of some evidence to link the
Petitioner with politicians in the pursuit
of some specific illegal goal. However,

pure romantic rumor-mongering, which the

26

prosecution engaged in under the guise
of cross examination, should properly
have been assigned as error.

The final issue assigned as error
relates to closing arguments by the pro-
secution. There occurred during defense
counsel's closing argument references by
the attorney representing the Petitioner
to the American system of justice and the
integral part played in that procedure by
the standard of proof of guilt beyond a
reasonable doubt and the presumption of
innocence concommitant thereto. Defense
counsel argued that such legal principles,
far from being technicalities to be ignored
by a conscientious jury in pursuit of
enforcement of the laws, were part and par-
cel of the American system and the American
way of life such that the Constitutional
protection contained therein extended the
length and breadth of the United States

territorial interests on the globe. The

27

prosecutor depicted such reasoning as
"flag waving" and stated that only the
guilty resort to the protection of the
presumption of innocence to protect their
nefarious activities. Such argument, left
uncorrected, must surely lead the fact-
finder to the dangerous belief in its own
discretion to apply a standard of proof

of guilt other than that prescribed in the

classic beyond reasonable doubt test.

28

ARGUMENT °

I. THE PROSECUTION PRESENTED NO INDE-
PENDENT, CREDIBLE EVIDENCE THAT
THE PETITIONER DISTRIBUTED COCAINE.

The only independent proof of the
existence of a conspiracy in this case
rested upon hearsay declarations con-
tained in "consensually" intercepted wire
communications which should have been
ruled inadmissible ab initio since the
party purportedly giving consent was a
material eyewitness to the crimes alleged
yet was never identified by the govern-
ment.
The Advisory Committee on the Judiciary
commented with respect to Rule 801(d)(2)(E),
which contains the hearsay exception for
co-conspirator declarants that:
The agency theory of con-
spiracy is at best a fiction
and ought not to serve as a
basis for admissibility beyond
that already established.

It is respectfully submitted that the

observation contained in the Advisory

29

Committee's remarks goes to the heart of
the question of how reliable evidence in
the form of hearsay declarations may be
regarded as. The Committee's conclusion
that the agency theory of conspiracy isa
fiction logically compels the further con-
clusion that one individual's acts or
statements may not be attributed to
another person not actually present unless
there exists a genuine collaboration of
purpose and conduct between the declarant
and the individual for whom he purports

to be an agent. That relationship is
traditionally designated as proof aliunde
of the membership in the conspiracy by

the individual against whom statements of
the hearsay delcarant are offered as evi-
dence. The rejection by the Court of
appeals of the argument by this Petitioner
that no such relationship was proven satis-
factorily can only lead to a broadening of

the test applicable to the hearsay exception

30

for co-conspirators contrary to the
Advisory Committee's warning and with
dangerous potential results.

Where, as here, the sole proof of
the identity and membership of the unknown
female phone caller as being the Peti-
tioner rests upon identification made by
an unknown, un-named confidential informant,
there simply can be no proof of Petitioner's
membership in a conspiracy. The volume,
the criminality, and the existence of the
tape recorded phone conversations purportedly
constituting proof aliunde is of no conse-
quence when the foundation upon which they
rest is unstable. For this reason, it is
respectfully submitted that the Supreme
Court should review and strictly limit the
test for this hearsay exception such that
abuses like that in the instant case will

not become a regular practice.

31

II. IT WAS ERROR TO PERMIT THE PROSECUTOR
TO CROSS-EXAMINE THE PETITIONER ABOUT
HER RELATIONSHIP WITH HER BOYFRIEND,
A NEW JERSEY PUBLIC OFFICIAL.

Petitioner submits that the cross-
examination of the defendant regarding her
relationship with a politician in New /
Jersey was error merely because it per-
mitted the factfinder to infer guilt from
immoral but legal aspects of her personal
conduct. During the Government's case in
chief, Special Agent Stephen Hopson testi-
fied that, on September 12, 1978, he met
with BONO and she told him of her numerous
contacts with politicians and magistrates.
However, when Petitioner took the stand,
she denied making such statement and, fur-
ther, testified that she did not know any
significant politicians. On cross-
examination, BONO was then questioned re-
garding the veracity of her denial.

Petitioner recognizes that "(I)f, as

here, a defendant takes the stand to

32

testify in his own behalf, his credibility
is placed in issue and the Government is
entitled to attack it by cross-examination

and relevant impeaching evidence."

[Emphasis added] United States v. Webb,
533 F.2d 391, 395-396 (8th Cir. 1976).

See also United States v. Coleman, 340
F.Supp. 451, 454 (E.D. Pa.), aff'd, 474

F.2d 337 (3d Cir. 1972), cert. denied,

411 U.S. 939, cert. denied, 414 U.S. 837

(1973). The line of cross examination

at issue was simply not designed as a mode
of impeachment, went beyond the scope of
BONO's answers, and dealt with collateral
matters and, thus, was improper cross-
examination. See United States v. Benson,
487 F.2d 978, 982 (3d Cir. 1973); United
States v. Green, 373 F.Supp. 149, 155 (E.D.
Pa.), aff'd, 505 F.2d 731 (3d Cir.), cert.
denied, 420 U.S. 978 (1974); United States
v. Stirone, 168 F.Supp. 490, 499-500 (W.D.
Pa. 1957), aff'd, 262 F.2d 571 (3d Cir.

33

1958), rev'd on other grounds, 361 U.S.
212 (1960). See also, Fed.R.Evid. 611(b)
(1975).

In the instant case, the prosecutor's
conduct created an atmosphere adverse to
the Petitioner and caused the jury to be-
come biased against the Petitioner and
Petitioner's counsel. Specifically, rais-
ing on cross examination the Petitioner's
social relationship with the Treasurer of
Mercer County and attempting to create the
belief in the jurors' minds that the Peti-
tioner's friend was exerting some sort of
political influence in favor of the Peti-
tioner and even that there was a link be-
tween the president of the Petitioner's
bank and the Treasurer of Mercer County.

The aforementioned inferences were not
supported by any evidence and could only
serve to poison the jury's minds toward
the Petitioner. The innuendos raised by

the prosecutor regarding the Petitioner's

34

relationship with the Treasurer of Mercer
County can only be described as character
assassination and said conduct was not
alleviated by a cautionary instruction on
the part of the Court. U.S. v. Dinitz,
C.A.FLA. 1974, 492 Fed.2d 53, 95 S.CT. 1445.

III. IT WAS ERROR TO PERMIT THE PROSECUTOR
TO CHARACTERIZE AS "FLAG-WAVING"
DEFENSE COUNSEL'S COMMENTS REGARDING
REASONABLE DOUBT AND THE RESPONSIBI-
LITY OF THE JURY IN PRESERVING THE
AMERICAN SYSTEM OF JUSTICE.

Petitioner submits that a comment made
by the Government in rebuttal was a viola-
tion of due process so plain and so serious
that, although Petitioner's counsel failed
to contemporaneously object to the comment
when made, it should still warrant reversal
on appeal, United States v. Cornfield, 563
F.2d 967, 971 (9th Cir. 1977), cert.denied
435 U.S. 922 (1978); United States v.

Davis, 557 F.2d 1239, 1244 (8th Cir.) cert.
denied, 434 U.S. 971 (1977). Petitioner

concedes she first raised such alleged

a

35

misconduct in the post trial motions.
United States v. Gross, 375 F.Supp. 971,
978 (D. N.J. 1974), aff'd. 511 F.2d 910
(3d Cir. 1975). She further acknowledges

that the “invited response" doctrine
states that "a prosecutorial misstatement
made in response to, and in rebuttal of,
an improper inference suggested by defense
counsel will not result in reversible

error."' United States v. Somers, 496 F.2d

723, 741 (3d Cir.), cert. denied, 419 U.S.
832 (1974).

But viewing such prosecutorial com-
ments in the "totality of the circumstances"

they warranted a mistrial, United States v.

Newman, 490 F.2d 139, 147 (3d Cir. 1974).

In the instant case, the prosecutor's

remarks were neither made in response to

the Petitioner's closing argument nor

corrected by clear instructions to the jury.
Res

ctfully s tted,

¢

Counsel for Petitioner,
JANE BONO

APPENDIX--p.1

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA:
v. : CRIMINAL NO.79-1-1
JANE BONO

ORDER

AND NOW, this 19th day of April,
1979, the Court having considered the
defendant's motion for a new trial, and
the Government's opposition thereto, and
having heard oral argument thereon, for
the reasons set forth in the Memorandum
of this Court dated April 19, 1979, hereby
ORDERS that said motion is DENIED.

s/ Rappend J. Broderick

APPENDIX--p.2

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA:
Vv. : CRIMINAL NO. 79-1-1
JANE BONO

MEMORANDUM

BRODERICK, J. April 19, 1979.

Defendant, Jane Bono, was found
guilty by a jury on all four counts of an
indictment charging her with conspiracy
to distribute a controlled substance in
violation of 21 U.S.C. §846, and distribu-
tion of a controlled substance in viola-
tion of 21. U.S.C. §84l1(a)(1) and 18 U.S.C.
§2(a). The defendant has filed a motion
for a new trial. For the reasons herein-
after set forth, this motion will be
denied.

In support of her motion for a new
trial, the defendant contends that:

1. The prosecution presented no
independent, credible evidence that the
defendant distributed cocaine;

2. It was error to permit the pro-
secutor to cross-examine the defendant
about her relationship with her boyfriend,
a New Jersey public official; and

APPENDIX--p.3

3. It was error to permit the pro-
secutor to characterize as "flag-waving"
the defense counsel's comments regarding
reasonable doubt and the responsibility
of the jury in preserving the American
system of justice.

I. SUFFICIENCY OF THE EVIDENCE.

The Court will treat the defendant's
first point, i.e., that the Government
presented no independent credible evidence
that the defendant distributed cocaine, as
an allegation that the evidence was insuf-
ficient to support the jury's verdict. We
find that the evidence produced at trial,
viewed in the light most favorable to the
Governizent, Glasser v. United States, 315
U.S. 60, 80 (1942); United States v.
Armocida, 515 F.2d 29, 46 (3d Cir.) cert.
denied, 423 U.S. 858 (1975), is more than
sufficient to support the verdict. We
summarize it as follows:

On August 24, 1978, Special Agent
Stephen Hopson of the Drug Enforcement
Administration (DEA) met with a confidential
informant who introduced him to the de-
fendant, John Yurosko. Yurosko in turn

1. This Court determined that Yurosko
was mentally incompetent to stand
trial at this time.

APPENDIX--p.4.

arranged a contact between Hopson and

defendant, Thomas Zidzik. Hopson had
a number of tape recorded conversations

with Zidzik, discussing arrangements for
the purchase of one pound or more of
cocaine. On August 28, 1979, Hopson and
Special Agent James Bradley of the DEA
met Zidzik at the Bristol Flea Market.
Zidzik said that his sources handled fifty
to one hundred pounds of cocaine per week.
Agent Bradley showed Zidzik $28,000 in
cash which he had available to purchase
cocaine.

On the following day, August 29,
Hopson called Zidzik. Zidzik put Jane
Bono on the telephone. Bono and Hpson
discussed the purchase of cocaine. In
the conversation, Bono spoke in a "code",
referring to cocaine as "fabric" and to
quantities of cocaine as "yards". This
conversation was recorded by Hopson.

On August 30, Hopson met Zidzik at
the 7-11 store on Trenton Road in Falls
Township. Zidzik said that Bono's organi-
zation handled up to one hundred pounds of
cocaine per week. Hopson told Zidzik
that he would like to receive a sample of

2. Zidzik entered a plea of guilty to
all counts of the indictment.

APPENDIX--p.5

cocaine from Bono before purchasing a

large quantity. Zidzik called Bono from
a pay phone outside the store, and Hopson
spoke to her. Bono suggested hat Hopson

get a post office box in Maine” where she
could send a sample. Hopson arranged for

a post office box through the DEA in Port-
and, Maine. On September 7, 1978, a pack-
age containing a doll was received at the
post office box; inside the doll was a
substance which testing revealed to be

41% pure cocaine.

On September 12, 1978, Hopson and
Bradley met Zidzik and Bono at the Villa
Sorrento Restaurant in Bucks County.

After Zidzik had a disagreement with the
bartender, they left and went to Ray Aga-
biti's Restaurant where they had lunch.
Bono was apologetic about the poor quality
of the cocaine sample in the doll; she
said that her normal supply was 88-92%
pure. She had a paper bag of money in her
purse, and she asked Zidzik and Bradley to
take it into the men's room and count it,
which they did.

On September 22, 1978, Hopson spoke ,
to Bono seven times by telephone and re-
corded the conversations. Initially,
they discussed the purchase of a large
quantity of cocaine to be transacted that

3. Hopson's "cover" was that he was
from Portland, Maine.

APPENDIX--p.6.

day. Bono finally advised Hopson that
the deal could not be consummated because
there had been a "bust" by the Crime Com-
mission involving her source of cocaine.

Bono and Hopson spoke by telephone
again on September 18, 1978, and the con-
versation was recorded. Bono once again
apologized for the poor quality of the
cocaine sample sent in the doll. She said
that she would not sell cocaine directly
to Hopson at this time, but that she would
be willing to arrange for credit for Zid-
zik so that he could sell Hopson a large
quantity of cocaine.

On October 3, 1978, Hopson met Zid-
zik at the 7-11 store where their previous
meetings had taken place. Hopson got into
Zidzik's car; Zidzik gave him a sample
of cocaine which he said had come from
Bono. Upon analysis, this sample was found
to be 99% pure cocaine, a degree of purity
encountered very rarely in street trans-
actions.

On October 13, 1978, Hopson met
Zidzik at the 7-11 and purchased two
ounces of cocaine for $4,000. The cocaine
was tested to be 30% pure, far less than
the 80% or more promised by Zidzik. On
October 19, 1978, in a tape recorded con-
versation, Hopson complained to Zidzik
about the poor quality of the cocaine.
Hopson also complained to Bono in a tele-
phone conversation on October 23, 1978,
which was recorded. Bono told Hopson
that she suspected that her cocaine
supply was being cut by others who had
access to the safe deposit box where she
kept it. She told Hopson that, in order
to trap the culprits, she would put
strychnine in the cocaine, so that anyone

APPENDIX--p.7

who took it and used it would be poisoned.
She discussed the purity of the sample
Hopson had received from Zidzik, saying
that it was representative of her normal
product. They discussed the possibility
of future purchases of cocaine of at least
80% purity.

The Government's case was strong, and
there can be no doubt that the evidence
was sufficient to support the jury's ver-
dict as to each of the four counts of the
indictment. The evidence amply supports
a finding that the defendant conspired to
distribute cocaine, and that she distri-
buted and/or aided and abetted the distri-
bution of cocaine.4

II. CROSS EXAMINATION.

The defendant contends that it was
error to permit the prosecutor to cross-
examine the defendant concerning her
relationship with her boyfriend, who is
a New Jersey public official. Since the -

4. Counts 2, 3, and 4 charge both dis-
tribution of cocaine and aiding and
abetting the distribution of cocaine;

a conviction on these counts may
therefore be supported by evidence

that the defendant either personally
distributed cocaine or aided and abetted/
another in distributing the drug.

APPENDIX--p.8

defendant failed to raise an objection
at the time, the appropriate test is

the plain error standard of Rule 52b of
the Federal Rules of Criminal Procedure.
United States v. Goff, 430 F.2d 396

(7th Cir. 1970).

Agent Hopson testified that Bono had
told him about her connections with poli-
tical figures. Bono herself, in a recorded
conversation with Hopson on September 28,
1978, said: "We just had one of the Grand
Jury indictments out against one of our
largest people who happens to be a Congress-
man and ah, they found him guilty ..."
Testifying on direct examination, Bono
denied the conversation with Hopson, and
said that she knew no politicians. Cross-
examination as to her relationships with
public officials was therefore a proper
test of the defendant's credibility, even
though it also touched upon her personal
relationship with a public official. We
therefore find that it was not plain error
to permit such cross-examination.

III. PROSECUTOR'S CLOSING ARGUMENT.

The defendant contends that it was
error for the Courr to permit the prosecu-
tor to comment in his closing argument on
defense counsel's closing statements con-
cerning reasonable doubt and the responsi-
bility of the jury in the American system
of justice, characterizing such statements
as "flag waving". Again, the defense
raised no objection at the time of trial,
so plain error is the applicable test.
United States v. Somers, 496 F.2d 723
Cd Cir.), cert.denied, 419 U.S. 832 (1974)
We cannot find plain error in our failure
at trial to interrupt the prosecutor's
closing argument in the absence of an
objection by the defense.

Appendix--p.9

Accordingly, an Order will be entered
denying the defendant's motion for a new
trial.

APPENDIX--p. 10

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 79-1639

UNITED STATES OF AMERICA
v.
JANE BONO
Appellant
(D.C. Crim. No. 79-00001-01)

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
PENNSYLVANIA

Submitted Under Third Circuit Rule 12(6)
June 9, 1980
Before: GIBBONS, WEIS and SLOVITER,
Circuit Judges

ROBERT F. SIMONE, ESQ. PETER F. VAIRA

1500 Robinson Building United States Attormey

Philadelphia, Pennsylvania 19102 WALTER S. BATTY, JR
Assistant U.S. Attorney

Attorney for Appellant ROBERTO RIVERA-SOTO
Assistant U.S. Attorney
Room 3310, U.S.Courthouss
601 Market Street
Philadelphia, Pa. 19106

Attorneys for Appellee

APPENDIX--p.11

JUDGMENT ORDER

Jane Bono was convicted by a jury of
one count of conspiracy to distribute
cocaine in violation of 21 U.S.C. §846
and three counts of distribution in viola-
tion of 21 U.S.C. &841(a)(1). On this
appeal from a judgment of sentence she
contends:

1. that there is no independent
credible evidence that she
distributed cocaine;

2. that cross-examination concerning
her relationship with a politi-
cian was improper and plain
error; :

3. that the government's rebuttal
argument was improper.

We find no merit in any of these conten-
tions.

It is ORDERED and ADJUDGED that the
judgment of the district court is
affirmed.

BY THE COURT:

s/ John J. Gibbons
Circuit Judge

Attest:

s/ Thomas F. Qui-n
Thomas F. Quinn, Clerk
DATED: Jun 11 1980

APPENDIX--p. 12

CERTIFICATE OF SERVICE OF
TRE PETITION FOR CERTIORARI
PURSUANT TO RULE 33 OF THE
RULES OF THE UNITED STATE

| SUPREME COURT

ROBERT F.- SIMONE, Zsquire, being

duly ‘sworn according to law, deroses

and says that he is counsei for the

Roberto Rivera-Soto, ssc.
f= s37s

AgSsistaent: UT. §. Atcor nev

3310 U.S. Courchouse
521 Markec Screerc
Philadelonia, Pa. 19106
Oftice of the Clerk
U.S. Court of Appeals
Zor the Third Circuic
21400 U. §. Cours Yousea
601 Martat Street
Philadelonia, Pa. 19196

Yonorzble Wade H. McCree, Jr.
Solicitor Generali o a
United States

Deparcment of Justice
Washington, D.C. 20530

Counsel =
JANE B

0
Bn w

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0331%3A1. Public record. Not legal advice.