Petition — Karas v. United States

Supreme Court, U. 8.

80-486 FILED

SEP 26 980

MICHAEL RODAK, IR., CLERK

IN THE

Supreme Court of the United States

October Term, 1980

CONSTANTINE “GUS” KARAS,

Petitioner

v.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LIVINGSTON, MILLER, O’MALLEY

& CLARK

THOMAS A. LIVINGSTON

DENNIS J. CLARK

Attorneys for Petitioner

Colonial Building

205 Ross Street

Pittsburgh, PA 15219

(412) 391-7686

SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219

Petitioner, Constantine “Gus” Karas, respectfully

prays that a writ of certiorari issue to review the judg-

ment and opinion of the United States Court of Appeals

for the Fourth Circuit entered in this proceeding.

QUESTIONS PRESENTED FOR REVIEW

1. Whether a county prosecutor’s office is an “en-

terprise“ within the scope of the RICO statute, 18 U.S.C.

§§1961-1968, whether it has sufficient effect on interstate

commerce under the statute, and even if so, whether a

gambler who pays bribes to the sheriff and county prose-

cutor is thereby employed by or associated with the

enterprise?

2. Whether a grant of immunity under 18 U.S.C.

§§6002-6003 conferred by the governme™t upon a de-

fendant for his testimony on behalf of the government

at the trial of a companion case is in effect for the pur-

poses of testimony in his defense at his own subsequent

trial?

3. When the government’s evidence shows that the

idea of the predicate crime, bribery, under the RICO in-

dictment originated in the minds of the law enforcement

officers and that defendant was not predisposed to com-

mit the predicate crime, is entrapment established as a

matter of law?

4. Whether the equal protection of the law is de-

nied when the trial court fails to clearly charge the gov-

ernment must prove beyond a reasonable doubt that a

defendant must be predisposed to commit the specific

crime which is alleged to be the predicate offense of

RICO?

ALL PARTIES TO THE PROCEEDING

IN THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

1. Constantine Gus“ Karas

2. Joseph N. Pecora

3. United States of America (Office of the United

States Attorney, Northern District of West Vir-

ginia )

ii

TABLE OF CONTENTS

PAGE

Questions presented for review ...............:cccceseeeseeeeees i

All parties to the proceeding in the United States

Court of Appeals for the Fourth Circuit ............ i

r :. 1

, e 1

r www 1

, 2 4

, ̃ͤ TTT... 6

1. The court below has decided an important

question of federal law which has not been,

but should be, settled by this Court ............ 6

2. The decision below conflicts with the deci-

sion of another court of appeals as to the

meaning of the term enterprise“ under the

RICO statute (18 U.S.C. §1961 et seq.) ... 11

3. The decision below conflicts with the appli-

cable decisions of this Court on the law of

D ERPS aR 15

D ¼ T 22

Appendix (Opinion and Judgment of the United

States Court of Appeals for the Fourth Circuit) 1a

TABLE OF AUTHORITIES

CASES

Brady v. Maryland, 373 U.S. 83 (1963) ...... . 10

Government of the Virgin Islands v. Smith, 615

w GN, BOO) eecscccossssessecssessssssencoossenees 11

In Re Kilgo, 484 F.2d 1215 (4th Cir., 1973) . .. 10

In Re Patrick, 385 F.Supp. 189 (N. D. Il. E.D.,1974) 8

Shaffer v. United States, 528 F.2d 920 (4th Cir.,

D CSRS SNE ðo x A 10

Sherman v. United States, 356 U.S. 369 (1958) ........ 18

Sorrells v. United States, 287 U.S. 435 (1932) .......... 18

iii

Table of Authorities.

PAGE

Thompson v. Garrison, 516 F.2d 986 (4th Cir., 1975) 10

United States v. Alessio, 528 F.2d 1079 (9th Cir.,

—ͤ ͤ —. c sanmesdcnsveboaies 11

United States v. Anderson, Nos. 1809, 79-1827 (Sth

Cir. August 7, 1980) 27 Cr. L. 2518) . . 12

United States v. Anglada, 524 F.2d 296 (2d Cir.,

— ĩͤ , ͤ coded vtnapesniccsniateeeailitaiins 20

United States v. Bautista, 509 F.2d 675 (9th Cir.,

T A AA og aaamlainasasabiios 10

United States v. Burkley, 591 F.2d 903 (D.C. Cir.,

——A AAA a 17

United States v. Earl, 361 F.2d 531 (D.C. 1966) 11

United States v. Julian, (Cr. No. 79-07, N. D. W.Va.) 6

United States v. Perl, 584 F.2d 1316 (4th Cir.,1978) 20

United States v. Russell, 411 U.S. 423 (1973) 20

United States v. Vignola, 464 F.Supp. 1091 (E.D. Pa.

1 a a ee ae ee eka 13

United States v. Viviano, 437 F.2d 295 (2d Cir.),

cert. den. 402 U.S. 983 (1971) ................:............ 20

United States v. Wolffs, 594 F.2d 77 (5th Cir., 1979) 21

Washington v. Texas, 388 U.S. 14 (1967) . . . .. 10

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment XIV. 19

STATUTES

Title 18 United States Code §1961(4) uu... 1, 11, 12

Title 18 United States Code 581962 (e)) 1, 4, 13, 16

Title 18 United States Code 51962 (d)) 4

Title 18 United States Code 8600-2: 1, 2, 6, 10

Title 18 United States Code 5860088 1, 3, 6, 9, 10

Title 28 United States Code 1254 (il) ::᷑r . ꝗͥq. 1

West Virginia Code Annotated, Chapter 7, Art. 1,

Section 5 (Michie 1976 replacement volume) . 14

West Virginia Code Annotated, Chapter 7, Art. 4,

Section 1 (Michie 1976 replacement volume) . 12

OPINION BELOW

No opinion was rendered by the district court. The

court of appeals’ opinion and order dated July 1, 1980,

affirming the district court’s judgment of conviction, is

reported in United States v. Karas, 624 F.2d 500 (4th

Cir., 1980), and is also set forth herein at “Appendix

A”. The court of appeals’ order, dated July 31, 1980,

denying the petition for rehearing, is set forth herein

at “Appendix B“.

JURISDICTION

On July 1, 1980, the court of appeals issued its

opinion and order affirming the district court’s judg-

ment of conviction. The court of appeals issued an order

denying the petition for rehearing on July 31, 1980, and

the within petition for a writ of certiorari is being filed

within sixty (60) days of said order. The jurisdiction

of this Court is invoked under Title 28, United States

Code, Section 1254(1).

STATUTES INVOLVED

UNITED STATES CODE, TITLE 18, §1961(4) :

$1961. Definitions

As used in this chapter—

(4) “enterprise” includes any individual, part-

nership, corporation, association, or other legal en-

tity, and any union or group of individuals asso-

ciated in fact although not a legal entity.

UNITED STATES Cop, TITLE 18, §1962(c) :

§1962. Prohibited activities

(c) It shall be unlawful for any person em-

ployed by or associated with any enterprise engaged

Statutes Involved.

in, or the activities of which affect, interstate or

foreign commerce, to conduct or participate, direct-

ly or indirectly, in the conduct of such enterprise’s

affairs through a pattern of racketeering activity

or collection of unlawful debt.

UNITED STATES Cop, TITLE 18, §6002:

§6002. Immunity generally

Whenever a witness refuses, on the basis of his

privilege against self-incrimination, to testify or

provide other information in a proceeding before or

ancillary to—

(1) a court or grand jury of the United States,

(2) an agency of the United States, or

(3) either House of Congress, a joint commit-

tee of the two Houses, or a committee or a sub-

committee of either House,

and the person presiding over the proceeding com-

municates to the witness an order issued under this

part, the witness may not refuse to comply with

the order on the basis of his privilege against self-

incrimination; but no testimony or other informa-

tion compelled under the order (or any informa-

tion directly or indirectly derived from such testi-

mony or other information) may be used against

the witness in any criminal case, except a prosecu-

tion for perjury, giving a false statement, or other-

wise failing to comply with the order.

Added Pub. L. 91-452, Title II, 5201 (a), Oct. 15, 1970,

84 Stat. 927.

Statutes Involved.

UNITED STATEs Cong, TITLE 18, §6003:

$6003. Court and grand jury proceedings

(a) In the case of any individual who has been

or may be called to testify or provide other infor-

mation at any proceeding before or ancillary to a

court of the United States or a grand jury of the

United States, the United States district court for

the judicial district in which the proceeding is or

may be held shall issue, in accordance with sub-

section (b) of this section, upon the request of the

United States attorney for such district, an order

requiring such individual to give testimony or pro-

vide other information which he refuses to give or

provide on the basis of his privilege against self-

incrimination, such order to become effective as

provided in section 6002 of this part.

(b) A United States attorney may, with the

approval of the Attorney General, the Deputy At-

torney General, or any designated Assistant Attor-

ney General, request an order under subsection (a)

of this section when in his judgment—

(1) the testimony or other information from

such individual may be necessary to the public

interest; and

(2) such individual has refused or is likely

to refuse to testify or provide other informa-

tion on the basis of his privilege against self-

incrimination.

Added Pub. L. 91-452, Title II, 5201 (a), Oct. 15, 1970,

84 Stat. 927.

Statement of the Case.

STATEMENT OF THE CASE

History

On February 6, 1979, petitioner Constantine Gus“

Karas, along with certain other named individuals,

was indicted at criminal numbers 79-00003-E-06 and

79-00003-E-02 in the United States District Court for

the Northern District of West Virginia. On April 5, 1979,

a superseding indictment was returned, The indictment

charged him in a single count (Count II) with a federal

offense, to-wit: a violation of 18 U.S.C. §1962(d), the

Racketeer Influenced and Corrupt Organizations Act

(“RICO” ) g

Specifically, the indietment alleged that from Janu-

ary 1, 1977 to January, 1979, in Hancock County, West

Virginia, Karas and five other individuals conspired to

commit an offense, to-wit: 18 U.S.C. §1962(c). Karas

allegedly operated an illegal gambling business and gave

three (3) monetary bribes to co-defendant Robert G.

Altomare, Prosecuting Attorney of Hancock County,

and to Ronald A. Donell, Sheriff of Hancock County, in

order to protect, promote and facilitate said business.

After a severance of certain defendants was or-

dered, on May 21, 1979 a jury trial was convened in-

volving Karas and two co-defendants. On May 25, 1979,

the jury returned verdicts of guilty as to each of them.

After post-trial motions were denied, Karas was sen-

tenced to serve five (5) years of imprisonment and to

pay a fine of $5,000.

The judgment of sentence was affirmed by the

United States Court of Appeals for the Fourth Circuit

on July 1, 1980. A petition for rehearing was denied on

July 31, 1980. The within Petition For A Writ Of Cer-

tiorari follows.

Statement of the Case.

Facts

The government’s evidence shows that Ronald

Donell was the elected Sheriff of Hancock County, West

Virginia, after January 1, 1977, and Robert G. Altomare

was the county’s Prosecuting Attorney whose duties are

local in nature and defined by state statute.

Donnell had been aware of widespread gambling in

the county for some time. He became involved in an

undercover investigation which initially involved the

state police and, beginning in November 1977, also in-

volved federal law enforcement authorities. Physical ob-

servation, electronic surveillance and search and sei-

zures were utilized.

On November 4, 1977, Ron’s Cigar and the Corner

Cigar, both Weirton, West Virginia gambling establish-

ments, were raided by the Sheriff’s Office. Before the

raid, no Weirton gamblers had tried to bribe Donell, and

he agreed “that those who conducted the gambling op-

erations are not anxious to pay money if they don't

have to“ (Trial Transcript, TT.“ 581-582). On January

13, 1978, Donell met with petitioner, Gus Karas, the op-

erator of a gambling business at the North End Bus

Terminal in Weirton, West Virginia, and told him to

close down by the following Monday.

In October of 1978, the various Weirton gambling

establishments were still operating. Altomare and Donell

concocted a scheme whereby Karas and other operators

were threatened, i.e., search warrants would be exe-

cuted and their places of business would be closed down

unless they made adequate payoffs to the Prosecutor

and Sheriff. Karas then met with Donell, and subse-

quently made three (3) $1500.00 payments to him from

November, 1978 to January, 1979.

Argument.

In his defense, Karas intended to testify. Prior

thereto, he sought a ruling that a grant of immunity

previously conferred upon him was still in effect. The

government had granted him immunity to testify as

their witness in a companion case. Although he never

testified at that trial, there was a stipulation as to his

testimony. The government argued the immunity was

restricted to the earlier trial, and the court agreed,

ruling the grant of immunity did not extend to the in-

stant proceedings. As a result, Karas did not testify.

ARGUMENT

A

The Court Below Has Decided an Important Question

of Federal Law Which Has Not Been, but Should

Be, Settled by This Court.

On February 6, 1979, petitioner Karas was indicted

in this matter as well as in a separate case alleging a

violation of 18 U.S.C. §1955. On May 7, 1979, Karas was

granted immunity to testify for the government in

United States v. Julian, (Cr. No. 79-07, N.D. W.Va.), a

companion case. In a letter authorizing the grant of im-

munity, Phillip B. Heymann, the Assistant Attorney

General, wrote:

„. . . I hereby approve your request for authority to

apply to the U.S. District Court for the N. D. of

W.Va. for an order pursuant to 18 U.S.C. §§6002-

6003 requiring... Karas to give testimony... in

[U.S. v. Julian et al.] and in any further proceed-

ings resulting therefrom or ancillary thereto.” (em-

phasis supplied)

—

Argument.

Although he never testified at that trial, there was a

stipulation as to his testimony.

Before testifying at his own trial in late May, 1979,

Karas sought a preliminary ruling that the grant of

immunity was still in effect. The government argued

that the grant was restricted to the Julian case. The

trial court agreed that it was a “unique” situation and

observed:

“I can see where the selective application of the

immunity statute, particularly in a setting such as

we have here presented, could be very detrimental

and prejudicial and you get into the matter of the

privilege against self-incrimination and so forth.

As I gather here, the defendant is subject to a later

prosecution under another indictment in this court

which flow from this same series of eight or nine

indictments which I talked about before. And that

the taking of him of the witness stand in this case

can or might put him in a compromising position

with regard to an effective defense of the charges

in the subsequent proceedings.” (TT. 641)

Nevertheless, the trial court ruled the grant of immu-

nity did not extend to the instant proceedings. As a re-

sult, Karas did not testify (TT. 630-642). The court of

appeals then affirmed this ruling.

Karas argues that the grant of immunity previous-

ly conferred upon him by the government for his testi-

mony in a companion case was still in effect for the pur-

poses of his own trial. The panel of the court of appeals

seems to misconstrue this argument, because Karas is

not raising a question of whether or not a district court

has authority to confer immunity sua sponte or whether

Argument.

or not a district court can extend the earlier grant of

immunity to the instant proceedings (see Opinion, pp.

Ta-9a of Appendix hereto). Here, the issue concerns the

extent of the original grant by the government, without

any involvement on the part of a district court. Quaere:

what are its parameters? By what statute, policy or

language of the grant itself is it limited to a single

court proceeding?

In the case at bar, these questions remained un-

answered. The ruling below effectively determined that

the same use immunity which applied to Karas in a

companion case, when he was a government witness and

offered to present incriminatory evidence, was not ap-

plicable to the instant case where he is a defendant and

wishes to present exculpatory evidence. While approv-

ing of this ruling, the panel of the court of appeals does

not address the real question involved. It is a complex

and unique question, one deserving of a thorough ex-

amination. It is respectfully submitted that this Court

should be most concerned with the effects of an immu-

nity grant, in terms of the government’s authority to

selectively draw the borders of its coverage and how this

can conflict with the constitutional right of an accused

to present a defense. The circumstances here are un-

usual, and no case law on point has been found by these

writers.

It is submitted, however, that In Re Patrick, 385

F.Supp. 189 (N.D. Ill. E.D., 1974), is analogous. On

January 31, 1974, Patrick was granted immunity for

testimony to be given before the J anuary 1974 grand

jury. Prior to the grant of immunity, the government

submitted to the court a letter from its Assistant Attor-

ney General. The letter, like the one submitted in the

Argument.

Julian trial, authorized the United States Attorney to

seek an immunity order requiring Patrick to testify “in

the above matter and in any further proceedings result-

ing therefrom or ancillary thereto.” Patrick testified,

the January grand jury was discharged, and a new

grand jury, a special November 1974 grand jury, was

formed. The investigation of the November grand jury

result led] from and [was] ancillary to the investiga-

tion previously conducted by the . . . January grand

jury.” The district court held that the earlier grant of

immunity covered Patrick’s testimony before the No-

vember grand jury:

“The function of the authorization letter is to in-

sure that immunity orders are obtained only in sit-

uations where the testimony of the witness is neces-

sary to the public interest. 18 U.S.C. §6003(b) (1).

Once the Attorney General has made that deter-

mination, it is immaterial whether the information

sought from the witness is presented to one or sev-

eral grand juries. The witness asserts that if the

Government’s position is accepted he would be

susceptib.2 to recall before any grand jury for an

indefinite time. However, the Attorney General’s

certification that the testimony sought is, in fact,

necessary is only valid so long as the focus of the

inquiry remains the same. If the United States At-

torney seeks testimony not related to the matter

which gave rise to the original grant of immunity,

a second authorization letter would have to be ob-

tained.” 385 F.Supp. at 190.

Here, Karas was granted immunity because the Govern-

ment regarded his testimony as necessary to the public

interest. It should be immaterial when it is presented as

10

Argument.

long as the proceeding is at least “ancillary” to that in

which the immunity was received. It is Karas’ position

that his own trial was an “ancillary” proceeding, and

thus the immunity was still in effect.

It is commonly held that the decision to grant im-

munity is within the sole discretion of the prosecutor.

In Re Kilgo, 484 F.2d 1215 (4th Cir., 1973) ; Thompson

v. Garrison, 516 F.2d 986 (4th Cir., 1975) ; United States

v. Bautista, 509 F.2d 675 (9th Cir., 1975). In exercising

this discre tion, the government determined that Karas’

testimony was in the public interest. 18 U.S.C. $§6002-

6003. Having made this determination, and having ex-

hausted its supply of discretion in deciding to grant

immunity, the government in the court below sought to

suppress Karas’ testimony solely, it seems, because it

would tend to establish his innocence. If the testimony

is in the public interest, it is in the public interest

whether it inculpates the defendant in Julian or ex-

culpates Karas.

The government has already decided that it is will-

ing to accept the effects of that grant on their ability

to prosecute Karas on the gambling indictment. In fact,

Karas had already been indicted for violating the fed-

eral gambling statute when immunity was granted to

him. The government therefore had no interest at the

time of the instant trial which overcomes Karas’ right

to present a defense, Washington v. Texas, 388 U.S. 14

(1967), nor does it have the power to suppress evidence

because it might be exculpatory. Brady v. Maryland,

373 U.S. 83 (1963).

Finally, the danger of selective use of the immunity

statute has attracted the attention and concern of an

increasing number of courts. Shaffer v. United States,

11

Argument.

528 F. 2d 920, 922 (4th Cir., 1975) ; United States v. Earl,

361 F.2d 531, 534 n.1 (D.C. 1966); United States v.

Alessio, 528 F. 2d 1079 (9th Cir., 1976) ; Government of

the Virgin Islands v. Smith, 615 F.2d 964 (3rd Cir.,

1980). Assuming the government has the power to deny

Karas the immunity it already granted him, this denial

clearly deprives him of his right to present a defense.

Also, it is clearly distinguishable from Earl where the

court found no Brady violation because the refusal to

grant immunity was not an affirmative“ act.

II.

The Decision Below Conflicts With the Decision of An-

other Court of Appeals as to the Meaning of the

Term Enterprise“ Under the RICO Statute (18

U.S.C. 81961 et seq.).

The Racketeer Influenced Corrupt Organization

(RICO) statute, 18 U.S.C. §§1961-1968, proscribes the

operation of “any enterprise” by a pattern of racketeer-

ing activities. Section 1961(4) defines “enterprise” as

including “any individual, partnership, corporation, as-

sociation, or other legal entity, and any union or group

of individuals associated in fact although not a legal

entity.”

The only enterprise with which Karas was allegedly

associated was the Office of the Prosecuting Attorney of

Hancock County, West Virginia. In the lower courts,

Karas argued that this Office is not an enterprise within

the meaning of the statute, and it does not have suf-

ficient effect on interstate commerce. The court of ap-

peals rejected these arguments (see Opinion, p. 6a of

the Appendix hereto). Karas contends that this deci-

sion by the court below as to the interpretation of the

eT Ne

12

Argument.

term enterprise“ conflicts with the decision of another

court of appeals.

In United States v. Anderson, Nos. 79-1809, 79-1827

(8th Cir. August 7, 1980), 27 Cr.L. 2518, the Eighth

Circuit recognized it differed with the Second, Fifth,

Seventh and Ninth Circuits and agreed only with the

Sixth, by holding that the enterprise“ element of RICO

requires proof of a “discrete economic association ex-

isting separately from the racketeering activity” (slip

opinion, p. 30). The court said:

“We hold that Congress intended that the

phrase ‘a group of individuals associated in fact al-

though not a legal entity,’ as used in its definition of

the term ‘enterprise’ in section 1961(4), to encom-

pass only an association having an ascertainable

structure which exists for the purpose of maintain-

ing operations directed toward an economic goal

that has an existence that can be defined apart from

the commission of the predicate acts constituting

the “pattern of racketeering activity’.” (emphasis

supplied)

The Eighth Circuit thus believes the essence of the

entity must be economic. This view differs markedly

from the Fourth Circuit’s interpretation in the instant

matter.

The Office of the Prosecuting Attorney is a creation

of state statute. The duties of a county prosecutor are

set out in West Virginia Code Ann., Chapter 7, Article 4,

Section 1 (Michie 1976 Replacement Volume). These

duties include the enforcement of the criminal laws of

the State of West Virginia, the defense and prosecution

of all civil suits in which the State of West Virginia,

13

Argument.

the county or the Board of Education is a party, as well

as assistance to the Attorney General of the State of

West Virginia in the county in which the prosecutor

serves. As can be easily discerned, all authority and

activity of the prosecutor is strictly local in nature and

non-economic. Therefore, any crimes involving the acts

of a public official (employed by the Office of the Prose-

cuting Attorney) in conducting the affairs of that office

are necessarily local in nature and non-economic. Con-

sequently, their actions do not, and were not meant to,

come within the ambit of Organized Crime Control Act.

Karas maintains that applying the Eighth Circuit’s

reasoning to the case at hand results in a finding that

the Office of the Prosecuting Attorney is not, and can-

not be, a discrete economic association“, and therefore

it is not an “enterprise” under RICO.

It is also noted that the express language of 18

U.S.C. §1962(c) requires that the government prove the

named enterprise be one engaged in, or the activities of

which affect, interstate commerce. United States v.

Vignola, 464 F.Supp. 1091 (E.D. Pa. 1979). Since the

Office of the Prosecuting Attorney is not engaged in

interstate commerce, the only possible basis for finding

this enterprise to be within the statute would be to prove

that its activities affect interstate commerce.

The court below charged:

“The government is required to show beyond a rea-

sonable doubt that the enterprise is engaged in or

affects interstate commerce. Interstate commerce

means commerce between the several states. The

government is not required to show any particular

degree or affect on interstate commerce

(TT. 686)

14

Argument.

The government attempted to prove the requisite inter-

state nexus by introducing evidence of: interstate phone

calls, purchase of office equipment and supplies out-of-

state, presence of out-of-state litigants and parties in

law suits, existence of law enforcement investigations

concerning out-of-state persons and use of national com-

munications data systems of the National Crimes In-

formation Center. It is contended that such evidence is

inadequate to establish the jurisdictional element of the

statute. See: TT. 486 et seq.

The only matter which could reasonably be viewed

as affecting interstate commerce would be the purchase

of office supplies and equipment. There was no showing

made that these purchases were in any way affected by

the matters at bar. Moreover, the Prosecuting Attor-

ney’s Office does not have the power, or the authority,

to purchase equipment or supplies; this must be done by

the County Commission which is a separate, distinct

entity. See: West Virginia Code Ann. Chapter 7, Article

1, Section 5 (Michie 1976 Replacement Volume).

The activities of the Prosecuting Attorney’s Office

may sometimes necessitate contact with other states,

but by no stretch of the imagination may this contact

be considered to exert a substantial effect on interstate

commerce. Naturally the office may purchase supplies

which at some point move across state lines. If this is a

valid basis for jurisdiction, then the activities of every

household in America could be seen as affecting inter-

state commerce, and they also would come within the

reach of RICO.

Also, it was stipulated that none of the monies col-

lected by Altomare and/or Donell in connection with

bribery, gambling, etc. was deposited in the County

15

Argument.

Commission funds (TT. 491-492). Thus, no link exists

between the payoff monies and the expenditure of same

by or on behalf of the Prosecuting Attorney’s Office in

interstate or other commerce.

Finally, it is significant that there is no evidence

that Karas undertook any activity on behalf of or re-

lating to an enterprise organized and acting for some

ostensibly legal purpose. At best, the evidence demon-

strates individuals undertaking activity relating to ille-

gal gambling. If any enterprise has been proven, it would

be that of the illegal gambling operations. Since such

an enterprise is neither organized nor acting for a legiti-

mate purpose, it was not meant to come within the reach

of the RICO statute.

Therefore, the government has failed to prove that

Karas was employed by or associated with an “enter-

prise“ within the meaning of 18 U.S.C. §1961(5).

III.

The Decision Below Conflicts With the Applicable De-

cisions of This Court on the Law of Entrapment.

A.

It was argued that the instructions to the jury on

entrapment (TT. 686-687) were fatally vague; they

should have made clear that the government was re-

quired to show Karas was already predisposed to com-

mit acts of bribery, the predicate offenses underlying

the RICO violation.

The panel initially misconstrued this argument by

stating that Karas believed the government had to show

predisposition to commit the acts of bribery and gam-

16

Argument,

bling” (Opinion, p. 2a of Appendix hereto; emphasis

supplied). The distinction is crucial; evidence of Karas’

gambling was irrelevant and prejudicial to whether or

not he committed acts of bribery, the underlying predi-

cate offense. Quite simply, under the lower court’s in-

structions and the views of the circuit court panel,

Karas can be considered a briber solely because he is a

gambler.

The panel went on to say the lower court instructed

the jurors to

“apply the law of entrapment to the charge in the

indictment, which was conspiracy to violate the

RICO Act, not violations of bribery and gambling

statutes.” (Opinion, p. 3a of Appendix hereto; em-

phasis supplied).

The RICO Act proscribes a conspiracy “to violate any

of the provisions of subsections (a), (b), or (c)” of

18 U.S.C. §1962; the instant indictment alleges a con-

spiracy “to commit an offense against the United States,

to wit: Title 18, U.S.C. §1962(c)”. Section 1962(c) pro-

vides:

„(e) It shall be unlawful for any person employed

by or associated with any enterprise engaged in, or

the activities of which affect, interstate or foreign

commerce, to conduct or participate, directly or in-

directly, in the conduct of such enterprise’s affairs

through a pattern of racketeering activity or col-

lection of unlawful debt.”

Here, the “racketeering activity” was alleged to be the

payment of bribes. Thus, to say the charge in the indict-

ment was “conspiracy to violate the RICO Act” is not

enough; such a barebones charge is meaningless until

17

Argument.

some flesh is added to explain how, or by what act(s),

RICO is violated. Here, allegations (and proof) of acts

of bribery provide that flesh.

Later, in its opinion, the circuit court panel decides

that the admission into evidence of monies seized from

tzumbling estalishments was relevant to show the source

of the bribe payments (Opinion, p. 7a of Appendix here-

to). It is argued that such a view is contradictory to

the reasoning in regard to the entrapment instruction

issue, and in fact, is supportive of Karas’ position on

said issue. In other words, it appears the panel recog-

nized the interrelationship between the allegation of

conspiracy and bribery under the instant indictment:

without the acts of bribery being shown, the specific,

alleged conspiracy to violate RICO cannot be proven.

The same is true when the panel condoned the ad-

mission of the taped conversation (concerning Karas

making payoffs to police) “to show Karas’ predisposi-

tion to commit the charged offense in view of the de-

fense of entrapment” (Opinion, pp. 6a-7a of Appendix

hereto). If the tape (and the monies) are relevant to

the prosecution’s case for this reason, quaere: why isn’t

it critical to precisely instruct the jury on Karas’ pre-

disposition to commit acts of bribery?

In general, predisposition to conspire to violate

RICO says little; but under the statute and this specific

indictment, it is wholly inadequate.

In United States v. Burkley, 591 F.2d 903, 910 (D.C.

Cir., 1978, Judge McGowan wrote:

“In each [of the Supreme Court’s rulings on entrap-

ment], the Court has consistently explained that

the ul nate fact to be determined by the jury is

Argument.

whether the defendant has ‘predisposed’ to commit

the crime with which he is charged.” (emphasis

supplied )

And, from United States v. Wolffs, 594 F.2d 77, 83 (5th

Cir., 1979) :

“The instruction also must be unmistakably clear

in informing the jury that if the evidence in the

case leaves a reasonable doubt as to whether de-

fendant had the predisposition to commit an offense

of the character charged, apart from the govern-

ment inducement or persuasion, the defendant must

be found not guilty.” (emphasis supplied)

Under the subjective test for entrapment which em-

phasizes the predisposition of the defendant rather than

the methods employed by the police, the prosecution

may engage in a “ ‘searching inquiry into [the defend-

ant’s] own conduct and predisposition’ as bearing on

his claim of innocence.” Sherman v. United States, 356

U.S. 369, 373 (1958) ; Sorrells v. United States, 287 U.S.

435, 451 (1932). When the defendant has a prior crimi-

nal record or, as here, where he was involved in an ille-

gal activity different from that for which he is charged,

this searching inquiry can be more harmful than help-

ful, by allowing the introduction of prejudicial or irrele-

vant evidence. Assuming that the evidence of Karas’

gambling was introduced to establish his predisposition

to bribe, it should have been excluded as irrelevant, Fed-

eral Rule of Evidence 401, and/or prejudicial, Federal

Rule of Evidence 403. Assuming that this evidence was

admitted to establish the scenario in which the bribe

was made, the prejudice still exists, but the evidence is

now necessary to help the jury to understand the case.

To minimize the prejudice and to insure that the sub-

19

Argument.

jective test is applied fairly, it is imperative that the

jury be carefully and properly instructed. When, as here,

it is told that the government need only prove that the

defendant was predisposed to violate the law, the charge

distorts the subjective test so that it does not follow

Sorrells, Sherman and United States v. Russell, 411 U.S.

423 (1973), and its application in this distorted form

denies Karas the equal protection of the law under the

Fourteenth Amendment to the United States Constitu-

tion. The trial court’s charge effectively precludes a de-

fendant who, like Karas, is engaged in an unrelated ille-

gal activity from raising the entrapment defense. Sim-

ply put, the charge makes the gambler a briber because

he is a gambler.

The entrapment defense serves to protect the citizen

from conviction,

“when the criminal design originates with the offi-

cials of the government, and they implant in the

mind of an innocent person the disposition to com-

mit the alleged offense and induce its commission in

order that they may prosecute.” Sorrells v. United

States, supra, 287 U.S. at 442.

Entrapment occurs only when the criminal conduct was

the product of the creative activity of law-enforcement

Officials. Sherman v. United States, supra, 356 U.S. at

372; Sorrells v. United States, supra, 287 U.S. at 441.

In this case, the undisputed testimony of the gov-

ernment’s witnesses shows that Gus Karas was en-

trapped as a matter of law. First, the bribery scheme

originated in the minds of law enforcement officials

20

Argument.

District Attorney Altomare and Sheriff Donell of Han-

cock County. Their plan was to threaten to raid Karas’

gambling establishment unless he paid Donell and Alto-

mare. Based on information obtained by the joint F. B. I.

West Virginia State Police investigation, and the Han-

cock County Sheriff 's Office, affidavits were sworn and

warrants had been issued at the time Karas was told

to make these payments. Altomare told Donell to hold

the warrants over Karas’ head.

In United States v. Russell, supra, this Court made

it clear that the purpose of the entrapment defense is

not to control police practices but to prevent the convic-

tion of innocent persons. Primary emphasis, then, is

placed on the defendant’s predisposition to commit the

offense charged; once the defendant raises the issue of

entrapment by gol ing] forward with some evidence,

more than a scintilla, that [the government or its]

agents induced him to commit the offense,” U nited

States v. Perl, 584 F.2d 1316, 1321 (4th Cir., 1978), the

focus shifts entirely to predisposition to commit the

crime charged. United States v. Viviano, 437 F.2d 295,

299 (2d Cir.), cert.den. 402 U.S. 983 (1971), describes

three ways to prove predisposition:

“T]he Government may prove propensity by show-

ing (1) an existing course of criminal conduct simi-

lar to the crime for which the defendant is charged,

(2) an already formed design on the part of the ac-

cused to commit the crime for which he is charged,

or (3) a willingness to commit the crime for which

he is charged as evidenced by the accused’s ready

response to the inducement.”

See also: United States v. Anglada, 524 F.2d 296, 299

(2d Cir., 1975). With regard to the first two criteria,

21

Argument.

Sheriff Donell’s undisputed testimony is that before

November 1978, before Karas was threatened with the

raids, he and none of the other gamblers were “anxious

to pay money if they d[id]n’t have to” (TT. 581-582).

Nor, testified Donell, had any gamblers (other than a

Mr. Pinciaro) attempted to bribe him. Also, there is no

evidence that Karas had ever paid bribes or been the

victim of extortion before this time. The defense of en-

trapment deals with how the crime “originates”. Sor-

rells v. United States, supra. There is no ironclad rule

that reluctance indicating a lack of propensity must

continue throughout the transaction. United States v.

Anglada, supra, 524 F.2nd at 299. In United States v.

Wolffs, supra, 594 F.2d at 83, the court of appeals held:

The burden is upon the government to prove be-

yond a reasonable doubt that, before anything at

all occurred respecting the alleged offense for which

the defendant is being prosecuted, the defendant

was ready and willing to commit such crimes when-

ever an opportunity was afforded, and that the gov-

ernment agents did no more than offer the oppor-

tunity.” (emphasis supplied)

Karas’ statements to Donell after the raid was threat-

ened may be evidence of knowledge or intent but do not

support the position that Karas was predisposed or will-

ing to pay the bribe. Thus the government must prove

Karas’ ready response to the inducement to commit brib-

ery. The evidence is plain that Karas was threatened

with search and arrest unless he paid. This is not brib-

ery, it’s extortion. Nor is it like the narcotics transac-

tion, where the suspected drug dealer loses nothing by

refusing to make the sale. Although the subjective test

focuses on the defendant's predisposition, the response

Conclusion.

to the government’s inducement must be considered in

the context of the nature of that inducement. The drug

addict in Sherman would have been unwilling to sell

heroin if he had not been a drug addict. In view of his

situation and the form of the government’s inducement,

he had no power to refuse. Here, Karas had no choice

but to pay Donell.

Since the evidence shows that the idea of the pre-

dicate crime, bribery, originated in the minds of the law

enforcement officers and that petitioner Karas was not

predisposed to commit the predicate crime, entrapment

is established as a matter of law.

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment and opinion of the United States

Court of Appeals for the Fourth Circuit.

Respectfully submitted,

THOMAS A. LIVINGSTON

DENNIS J. CLARK

Counsel for Petitioner

LIVINGSTON, MILLER, O’MALLEY

& CLARK

Colonial Building

205 Ross Street

Pittsburgh, PA 15219

(412) 391-7686

September, 1980

APPENDIX

Appendix A

UNITED STATES COURT OF APPEALS

For THE Fourtxu Circurr

No. 79-5311

UNITED STATES OF AMERICA, Appellee,

V.

CONSTANTINE “Gus” KARAS, Appellant.

No. 79-5320

UNITED STATES OF AMERICA, Appellee,

V.

JOSEPH NicoLAS PRC ORA, Appellant.

Appeal from the United States District Court for the

Northern District of West Virginia, at Elkins.

Robert E. Maxwell, Chief District Judge.

Argued: May 5, 1980 Decided: July 1, 1980

Before RUSSELL, Circuit Judge; FIELD, Senior Circuit

Judge; and HALL, Circuit Judge.

John L. Doherty (Manifesto, Doherty, Love and Talarico

on brief) for Appellant Pecora; Thomas A. Livingston

(Dennis J. Clark, Livingston, Miller, O’Malley & Clark

on brief) for Appellant Karas; William A. Kolibash,

Assistant United States Attorney (Stephen G. Jory,

United States Attorney on brief) for Appellee.

2a

Appendix A.

HALL, Circuit Judge:

Constantine “Gus” Karas and Joseph N. Pecora ap-

peal from their respective convictions of violating the

Racketeer Influenced and Corrupt Organizations Act

[RICO Act], 18 U.S.C. §1962(d). Both men were charged

with participating in a conspiracy to bribe county law

enforcement officials in order to conduct illegal gambling

activities. The government’s evidence, gathered over a

two-year period by state and federal officials, consisted

primarily of the sheriff's testimony and numerous taped

conversations between the sheriff and various members

of the conspiracy, including Karas and Pecora. After a

five-day trial, the jury returned guilty verdicts against

both men. After the district court denied their post-trial

motions, Karas and Pecora noted several assignments of

error. Finding no error, we affirm the convictions.

I. JOINT ASSIGNMENTS OF ERROR

Both Karas and Pecora allege that the district court

committed error by: (1) giving an improper jury charge

on the issue of entrapment; (2) giving an incorrect jury

charge pertaining to the conspiracy element of 51962 (d);

(3) failing to grant the motion to sever their trials; and

(4) failing to rule that the evidence was insufficient to

sustain the verdicts. Appellants argue that a proper en-

trapment instruction would require the government to

show that both men were already pre-disposed to commit

the acts of bribery and gambling underlying the RICO

Act violation. Counsel contends that no such predisposi-

tion was established at trial! and that the entrapment

1. Karas asseris that he was entitled to a defense

of entrapment as a matter of law. In view of the factual

dispute regarding this issue, the trial court properly

submitted it to the jury for resolution.

3a

Appendix 4.

instruction given was overly broad and fatally vague.

When read in its entirety, 2 the charge clearly informed

the jury to apply the law of entrapment to the charge in

the indictment, which was conspiracy to violate the RICO

Act, not violations of bribery and gambling statutes. Ap-

pellants’ contention to the contrary is without merit.

Karas and Pecora also challenge the propriety of the

conspiracy instruction. Their main objection is that the

trial judge erroneously charged the jury as to a con-

spiracy under 18 U.S.C. §371, which requires only one

overt act, rather than §1962(d), which requires two

racketeering activities. United States v. Elliott, 571 F.2d

880 (5th Cir. 1977), and United States v.Campanale, 518

F. 2d 352 (9th Cir. 1975), mandate at least two predicate

offenses to establish a conspiracy under §1962(d). The

district court did give a general conspiracy charge, simi-

lar to that under §371, requiring only one overt act. How-

2. The trial court instructed the jury as follows:

If, then, the jury should find beyond a reason-

able doubt from the evidence in this case, that before

anything at all occurred rr the alleged of-

fense involved in this case, the defendants were

ready and willing to commit the crime charged in

the indictment, whenever opportunity was afforded,

and that government officers or their agents did no

more than offer the opportunity, then the jury

should find that the defendants are not victims of

entrapment.

On the other hand, if the evidence indicates and

should leave you with a reasonable doubt whether

the defendant had the previous intent or purpose

to commit any offense of the character here charged,

and did so only because they were induced or per-

suaded by some officer or agent of the government,

i * is your duty to acquit them. (Emphasis sup-

plie

4a

Appendix A.

ever, the trial judge further instructed the jury that the

appellants could not be convicted under §1962(d) unless

the purpose of the conspiracy was to violate the RICO

Act and that at least two racketeering acts had oc-

curred.3 Viewing the overall conspiracy charge, there is

no reason to believe that the jury was misled regarding

the requirement of at least two predicate offenses to

find a violation under §1962(d).

Appellants next argue that the district court abused

its discretion by failing to grant a severance of their

trials. They allege substantial prejudice by the refusal of

the trial court to grant any of the motions for severance

under Rule 14 of the Federal Rules of Criminal Proce-

dure. Appellants urge that their joint trial improperly

allowed the jury to consider evidence inculpatory to one

defendant as pertaining to both of the accused.

Both Karas and Pecora were indicted together“

based upon their interrelated illegal activities. Absent a

3. The specific instructions provide, in part, that:

The defendant, or any of them, may not be

convicted simply because they engaged in a con-

spiracy. The prosecution must show beyond a rea-

sonable doubt that the predominate purpose of the

conspiracy was to violate Title 18, United States

Code, Section 1962(c)....

* * *

Third: that at least two acts of racketeering

activity occurred... and that the acts were con-

nected with each other by some common scheme,

plan, or motive.

Fourth: that through the proposed commis-

sion of two or more connected acts the defendants

would conduct or participate in the conduct of the

enterprise.

4. The federal grand jury indicted several persons

for violating the RICO statute in connection with the

alleged bribery and gambling activities in Hancock

5a

Appendix A.

prejudicial effect, persons indicted together may gen-

erally be tried together. United States v. Shuford, 454

F.2d 772 (4th Cir. 1971). The appellants have failed to

show that the denial of their motions for severance de-

prived them of a fair trial. United States v. Mandel, 415

F. Supp. 1033 (D. Md. 1976), vacated on other grounds,

591 F.2d 1347 (4th Cir. 1979), conviction aff’d en banc

602 F. 2d 653 (4th Cir. 1979). Rather, the district court’s

instructions were calculated to ensure that the jury con-

sidered the evidence only as to the defendant against

whom it was admitted. We do not think that the trial

court abused its discretion in denying the motions for

severance. See, United States v. Dorsett, 544 F.2d 687

(4th Cir. 1976).

The last joint assignment of error challenges the

sufficiency of the evidence underlying the convictions.

Pecora contends that the evidence failed to show that he

engaged in a pattern of racketeering activity; i.e., com-

mission of at least two of the acts outlined in §1961(5).

He admits to making only one bribe and argues that two

other bribes, allegedly made by other defendants in his

behalf, would at the most only constitute installments of

one overall bribe. We follow the reasoning of other fed-

eral courts in rejecting this installment approach to

bribery cases. E. g., United States v. Anderson, 509 F. 2d

312 (2d Cir. 1974); United States v. Alaimo, 297 F. 2d

604 (3rd Cir. 1961).

County, West Virginia. Before trial, the trials of the

remaining defendants were severed from that of Karas

and Pecora due to the anticipated complexity of the

testimony and to minimize any possible prejudicial effect

which inculpatory evidence admitted against one de-

fendant may have had upon the remaining co-defendants.

6a

Appendix A.

Karas and Pecora also urge that the RICO statute

is not applicable to the allegedly illegal activities because

there was no “enterprise” or impact on interstate com-

merce regarding the bribery and misuse of the offices of

the county law enforcement officials. We have already

rejected similar arguments regarding the scope of the

RICO statute in United States v. Whitehead, No. 78-5160

(4th Cir. Mar. 20, 1980), and United States v. Altomare,

No. 79-5146 (4th Cir. June 17, 1980) .5

II. Karas’ ASSIGNMENTS OF ERROR

In addition to the above issues, appellant Karas

raises two others: (1) whether the trial court erred by

admitting evidence of other illegal activity, as well as

evidence regarding monies seized from unindicted per-

sons; and (2) whether the court should have allowed

Karas to testify under a grant of immunity given in a

previous case.

Karas contends that the playing of a taped conver-

sation in which he admitted to bribing local police offi-

cers was irrelevant to the charged offense and was so

prejudicial as to outweigh its probative value. We believe

the trial court balanced the possible prejudicial effect

against the relevancy of the evidence and properly ad-

5. United States v. Altomare was a companion

case in which this Court specifically held that: (1) the

office of the prosecuting attorney was an “enterprise”

under the statute, and (2) that there was a sufficient

nexus with interstate commerce to come within the pur-

view of the RICO Act. See also United States v. Baker,

No. 79-5167/68/69 (4th Cir. Mar. 17, 1980) (county

sheriff’s office is an enterprise under RICO); United

States v. Grzywacz, 603 F.2d 682 (7th Cir. 1979), and

United States v. Brown, 555 F.2d 407 (Sth Cir. 1977)

(city police departments were enterprises under RICO).

7a

Appendix A.

mitted it to show Karas’ predisposition to commit the

charged offense in view of the defense of entrapment.

Such a decision is in accord with United States v. Russell,

411 U.S. 423 (1973) ; Sherman v. United States, 356 U.S.

369 (1958); and United States v. Koska, 443 F.2d 1167

(2d Cir.), cert. den., 404 U.S. 852 (1971). Moreover, this

evidence would also be properly admitted for the purpose

of showing a furtherance of the challenged conspiracy

under Rule 801 (d) (2) (E), Federal Rules of Criminal

Procedure.

Karas also challenges the admission of monies seized

by federal agents in January 1979 from the business

premises of Karas and four other alleged co-conspira-

tors. He claims the evidence is irrelevant because some

monies were seized from unindicted persons and because

there was no connection shown between the monies and

the alleged gambling and bribery activities. Counsel

claims that the jury’s reaction to the large amounts of

cash would adversely affect their ability to impartially

evaluate such evidence and is therefore prejudicial.

The monies in question were seized from the estab-

lishments in which gambling had been observed and

whose owners were purportedly members of the con-

spiracy to which Karas belonged. The trial judge ad-

mitted this evidence to show the source of the monthly

$1500 bribe to county law enforcement officials. We do

not believe that the seized monies were either so unre-

iated to the alleged conspiracy or so prejudicial to the

appellant as to outweigh their obvious relevancy to the

issues at trial.

Karas’ final argument presents a somewhat novel

approach concerning the breadth of a grant of immunity.

8a

Appendix A.

Karas had been granted immunity by the government to

testify at a previous trial of one of the co-conspirators.

Although he never testified at the trial, there was a stip-

ulation as to his testimony. Before testifying at his own

trial, Karas sought a preliminary ruling that the grant

of immunity was still in effect. The government argued

that the grant of immunity was restricted to the earlier

case and only precluded questioning Karas about this

prior stipulated testimony. During oral argument to this

Court, Karas’ counsel stated that he sought the pre-

liminary ruling in order to prevent Karas’ testimony

from being used in subsequent criminal proceedings.

Counsel contends that the denial of immunity in the

present proceeding impairs Karas’ right to present a de-

fense as in Washington v. Texas, 388 U.S. 14 (1967).

The decision to grant immunity is within the sole

discretion of the prosecution. Thompson v. Garrison, 516

F.2d 986 (4th Cir. 1975) ; In re Kilgo, 484 F.2d 1215 (4th

Cir. 1973). Thus, the district court has no authority to

confer immunity sua sponte. United States v. Klauber,

611 F.2d 512 (4th Cir. 1979); In re Kilgo, supra. Since

immunity is granted as a substitute for a person’s Fifth

Amendment rights, the refusal to grant immunity per-

mits the defendant to exercise his usual rights under the

Constitution. Every defendant must decide whether or

not to testify. Karas cannot extend his Fifth Amend-

ment rights, via an earlier grant of immunity as a wit-

ness, to protect his testimony as a defendant in subse-

quent judicial proceedings ad infinitum.

Karas’ reliance on Washington v. Texas is mis-

placed. In Washington, a state statute allowed a co-de-

fendant to testify for the prosecution but not for the

defendant. This case does not deal with the issue of

9a

Appendix 4.

testimony being made unavailable since it was Karas’

choice not to take the stand. The district court correctly

recognized that the defendant had no right to a grant of

immunity and properly refused to extend the earlier

grant to the present proceedings.

III. PEcorA’s ASSIGNMENTS OF ERROR.

Appellant Pecora also alleges two other grounds as

error: (1) that the government’s closing argument was

improper and prejudicial; and (2) that he was preju-

diced by the trial court’s refusal to excise part of the

indictment.

During the trial, the district judge had ruled that

certain evidence alleging Pecora’s involvement with slot

machines was inadmissible. In his closing argument, de-

fense counsel reminded the jury that the government

had promised, in its opening statement, to prove that

Pecora had slot machines, but instead no such evidence

had been put before the jury regarding this allegation.

In rebuttal, the Assistant United States Attorney stated

that the trial court had prevented the government from

presenting any evidence of the slot machines, but that in

any event such evidence was not needed for a conviction

because other testimony established three acts of bribery

by Pecora. Shortly after this rebuttal, defense counsel

moved for a mistrial. The trial judge denied the motion

and indicated he would cure any problem of prejudice

- 10a

Appendix A.

by giving appropriate instruction during his charge to

the jury, which he later did.é

Pecora argues that the remarks made during rebut-

tal were not harmless under the test in United States v.

Leon, 534 F.2d 667 (6th Cir. 1976), and deprived him of

a fair trial. After evaluating the prosecution’s state-

ments in light of the four-prong test in Leon, we do not

believe that Pecora was denied his due process right toa

fundamentally fair trial. Although the remarks of the

government attorney are not condoned by this Court,

they clearly do not rise to the level of egregious miscon-

duct which was condemned in such cases as Miller v.

Pate, 386 U.S. 1 (1967), and Brady v. Maryland, 373 U.S.

83 (1963). Considering the trial judge’s charge to the

jury regarding what evidence it should or should not

consider, such trial error, if any existed, would be harm-

less under the rationale of Donelly v. DeChristoforo, 416

U.S. 637 (1974).

Pecora also asserts that he was prejudiced by the

trial court’s refusal to excise the allegation in the in-

6. Some of the cautionary instructions given by the

trial court are as follows:

The evidence in the case consists of the sworn

testimony of the witnesses... and all exhibits re-

ceived in evidence

— * —

The statements and arguments of counsel are,

of course, not evidence in the case, unless made as

an admission or stipulation of fact.

0 — *

Any evidence as to which an objection was sus-

tained by the court, and any evidence ordered strick-

en by the court, must be entirely disregarded, or

considered only for the limited purposes for which

the evidence was admitted.

lla

Appendix A.

dictment that he was engaged in business of an unknown

nature in addition to his vending machine company.?7

The purpose for requesting this deletion was to counter

any possible influence on the jury by media allegations

that Pecora had ties with organized crime.

The government contends that the evidence pre-

sented to the grand jury of Pecora’s gambling activities

supported the allegations in the indictment. In addition,

the extensive and painstaking jury selection proceedings

ensured that only jurors who were unaffected by any

media coverage were actually seated. We agree with the

government’s contentions and uphold the refusal of the

trial court to delete this part of the indictment.

IV. CONCLUSION

Based on consideration of the issues raised by Karas

and Pecora, we find the assignments of error to be with-

out merit and affirm their convictions. The judgment of

the district court is AFFIRMED.

7. The challenged portion of the indictment relat-

ing to Pecora read as follows:

Joseph Nicholas Pecora resided in Hancock

County, West Virginia, was an owner/operator vf

J & Z Vending, and wus engaged in other business

unknown to the Grand Jury.

Defense counsel sought deletion of the above underlined

portion of the indictment.

Appendix B.

Appendix B

UNITED STATES COURT OF APPEALS

For THE FOURTH CIRCUIT

No. 79-5311

UNITED STATES OF AMERICA, Appellee,

versus

CONSTANTINE “Gus” Karas, Appellant.

ORDER

Filed: July 31, 1980

Upon consideration of the appellant’s petition for

rehearing, by counsel,

Ir Is ORDERED that the petition for rehearing is

DENIED.

Entered at the direction of Judge Hall for a panel

consisting of Judge Russell, Judge Field, and Judge Hall.

For the Court,

/s/ WILLIAM K. SLATE, II

Clerk