Petition — JOSEPH N. PECORA v. UNITED STATES (Nos. 80-490, 80-486)

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Supreme Court. y. S.

FILED

80-499 SEP 25 1980

——$—$—$—$—$—$—$—$—$—————

ODAK, JR., CLERK

In che

Supreme Court of the United States

" No.

Term 1980

JOSEPH NICHOLAS PECORA,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION For Writ oF CERTIORARI TO THE

UNiTED STATES Court OF APPEALS For THE

Fourtu Circuit

Joun L. Donerty, Esquire

MANIFESTO, DOHERTY, LOVE &

TALARICO, P.C.

200 Lawyers Building

Pittsburgh, Pennsylvania 15219

412-471-8893

Attorney for Petitioner

Financial Press Corporation, Pittsburgh

QUESTIONS PRESENTED FOR REVIEW

Whether the Fourth Circuit's failure to reverse Petition-

er’s conviction for failure to charge that the Government

must prove, beyond a reasonable doubt, that Defen-

dant must be predisposed to commit the offense for

which he is has been charged, should stand in light of the

Fifth Circuit Court of Appeals opinion in United States

v. Wolf, 594 F2.d 77, (Sth Cir. 1979) and the District of

Columbia Court of Appeals in Hansford v. United

States, 303 F.2d 219 (D.C. Cir. 1962)?

Whether a county prosecuting attorney’s office is an

enterprise which engages in or affect: *:.terstate or for-

eign commerce within the scope of the Racketeer Influ-

ence Corrupt Organization Statute (RICO) WUS.C.

§1961-1968? — :

Whether the Fourth Circuit’s holding that the term

“Enterprise”, within the scope of the Racketeer Influ-

ence Corrupt Organization Statute (RICO) 19 U.S.C.

§1961-1968 encompasses an illegal association that is

proved only by facts constituting the “pattern of racket-

eering activity,’ should stand in light of the Eighth

Circuit Court of Appeals decision in United States v.

Anderson and Mooney, 79-1809?

Whether the Fourth Circuit’s failure to reverse petition-

er’s conviction for failure to charge that there must be

more than one predicate offense for conviction under 18

U.S.C. §1962 (4) Conspiracy, should stand in light of the

Fifth Circuit Court of Appeals decision in United States

v. Elliott, 571 F.2d 880 (1977)?

Whether the Fourth Circuit failure to reverse Petition-

er’s conviction on the basis of the Government’s refer-

ence to evidence which had been excluded, should

stand in light of United States v. Leon, 534 F.2d 667 (6th.

Cir. 1976)?

TABLE OF CONTENTS

‘Page

QUESTIONS PRESENTED FOR REVIEW.......

es hy ayes accessed ees l

ORDERS AND OPINION BELOW ...........-+- l

65 5 55 yn ede cve va boeken 2

CITED STATUTES:

EE ep crdvdaedersvixes 2

I a yi s aa a 3

STATEMENT OF THE CASE...............0... 4

REASONS FOR GRANTING THE WRIT ......-. 6

GSR: Rete en RM RA 21

APPENDIX:

ORDER & OPINIONS .........0000005 APPENDIX

A-M

ili

TABLE OF CITATIONS

Page

Berger v. United States, 295 U.S. 78, 88, 58 S. Ct. 629

RS are ee Soe ae ee ee eee 17

Garris v. United States, 309 F.2d 862 (D.C. Cir. 1968) ..18

Hansford v. United States, 303 F.2d 219 (D.C. Cir.)

ei cs he cake oo baa eo PEON tedbe nee Lé7

Ketchum v. United States, 354 F.2d 715, 719

PUR. SE ko ko o buh s Wee vaeeom a bead 18

McMillan v. United States, 363 F.2d 165, (5th Cir.

SE ce Fale Cae ks Celaya varia kas eet eekeres 17

Rewis v. United States, 401 U.S. 808, 912, 91

ls OE So or Ae hokw cack Wane ds eens 12

Robinson v. United States, 32 F.2d 505, 510

Se, ME Pause CO ans waked «uke back oe 20

United States v. Altese, 542 F.2d 104 (2nd Cir. 1976). ..11

United States v. Anderson & Mooney,

Pade ao edd scues rae wae kk i, 13, 14

United States v. Borum, 484, F.2d 424, 427

pea, es eS is Sette be kes week eaehecens 7

United States v. Campanale, 518 F.2d 352

(9th Cir. 1975) cert. denied 423 U.S. 1050,

ee ee FEF CE sa oes ko seek chews 11, 15

United States v. Cappetto, 502 F.2d 1350

(7th Cir. 1974) cert. denied 420 U.S. 925, 95

re. es PN ip ee ee ae ll

United States v. Elliott, 571 F.2d 880 (1977)......... i, 15

United States v. Frumento, 563 F.2d 1083 (3rd

SER as 4 6-akin oe Ps ee caches ees eee 10

United States v. Hawes, 529 F.2d 472 (5th Cir. 1976)... 11

Page

United States v. Leon, 534 F.2d 667

Tey ere ee i, 17, 19, 20, 21

United States v. Kessler, 449 F.2d 1315 (2nd

Re Ra Pe rs ne tet 15

United States v. Mandel, 591 F.2d 1347, 1375

SN I Gwe a LOC ee. Se ee oak ll

United States v. Nerone, 563 F.2d 836

CC EOE Ce cock FON Res ewRae ee oawautac hens ll

United States v. Sutton, 604 F.2d 260, 268

ae, SEES teil veccgs Peek ene hue debee hasan ll

United States v. Wolffs, 594 F.2d 77 (1979) ........ i, 6, 8

United States v. Vignola, 464 Fed. Supp. 1091 (1979) ..12

STATUTES

ae Rf er oer ee a 2,5, 12, 16

Se Sie UE sss caw hkbw es peace edpeal waa 3, 12, 15, 16

ep 8 errr Tr rere rere ere ree 1]

Others:

124 U.P.A.L. Rev. 192, 196 (1975) ........ ccc cece 10

Pub.L.No. 91-452 900G(a) .....ccccscccccvcsecces 1]

LIST OF THE PARTIES

The following original defendants were indicted along

with the Petitioner, Joseph Nicholas Pecora: Robert E. Alto-

mare, Leonard Z. Alpert, Joseph Aperfine, Donald “Ding-

bat” DeLong and Constance “Gus” Karas.

ORDERS AND OPINIONS BELOW

The Order of the District Court continuing bond pre-

viously set was filed on February 26, 1979, and is reprinted as

Appendix A.

The Order of the District Court extending the deadline

for Pre-Trial Motions was filed on February 27, 1979, and is

reprinted as Appendix B.

The Opinion of the District Court denying Petitioner's

Pre-Trial Motions for Bill of Particulars, Discovery and Sup-

pression, filed April 4, 1979, is reprinted as Appendix C.

On April 12, 1979, the original indictment was dismissed

and is reprinted as Appendix D.

On April 23, 1979, the District Court issued a Bond

Continuance which is reprinted as Appendix E.

The District Court issued a Continuance on April 26,

1979, and it is reprinted as Appendix F.

On May 3, 1979, Petitioner was denied a Motion for a

Bill of Particular and Motion to Dismiss Indictment which is

reprinted as Appendix G.

The Order of the District Court granting a Continuance

of Pre-Trial Motions and Sentencing was filed October 4,

1979, and it is reprinted as Appendix HI.

On October 23, 1979, the District Court denied Defen-

dant’s Motion for Continuance, and it is reprinted as Appen-

dix I.

On October 26, 1976, the District Court granted

Defendants additional time to review transcript. The Order

is reprinted as Appendix J.

The Judgement and Probation/Committment Order of

the District Court filed November 1, 1979, is reprinted as

Appendix K.

The Opinion of the Fourth Circuit Court of Appeals,

filed July 1, 1980, is reprinted as Appendix L.

The denial of Petition for Rehearing issued by the

Fourth Circuit, filed July 28, 1980, is reprinted as Appendix

JURISDICTION

The Judgement Order of the United States Court of

Appeals for the Fourth Circuit (Appendix L) was entered

July 1, 1980. A timely Petition for Rehearing was denied July

28, 1980. (Appendix M)

The jurisdiction of the Fourth Circuit Court of Appeals

was invoked in accordance with 28 U.S.C. §1291.

Pursuant to Rule 22 of the Rules of this Honorable

Court, the within Petition for Writ of Certiorari is being filed

within sixty (60) days after the entry of the Court of Appeal’s

final Order.

The jurisdiction of this Honorable Court is invoked

under 28 U.S.C. §1254(1).

CITED STATUTES

18 U.S.C.S. §1962

(a) It shall be unlawful for any person who has received

any income derived, directly or indirectly, from a pattern of

racketeering activity or through collection of an unlawful

debt in which such person has participated as a principal

within the meaning of Section 2, title 18, United States Code

[18 USCS §2], to use or invest, directly or indirectly, any part

of such income, or the proceeds of such income, in acquisi-

tion of any interest in, or the establishment or operation of,

any enterprise which is engages in, or the activities of which

effect, interstate or foreign commerce. A purchase of securi-

ties on the open market for purposes of investment, and

without the intention of controlling or participating in the

controll of the issuer, or of assisting another to do so, shall not

be lawful under this subsection if the securities of the issuer

held by the purchaser, the members of his immediate family,

and his or their accomplices in any pattern or racketeering

activity or the collection of an unlawful debt after such

purchases do not amount in the aggregate to 1% of the out-

standing securities of any one class, and do not confer, either

in law or in fact, the power to elect one or more directors of

the issuer.

(b) It shall be unlawful for any person through a pattern

of racketeering activity or through collection of an unlawful

debt to acquire or maintain, directly or indirectly, any inter-

est in or control of any enterprise which is engaged in, or the

activities of which affect, interstate of foreign commerce.

associated with any enterprise engaged in, or the activities of

which affect, interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct of such

enterprise's affairs through a pattern of racketeering activity

or collection of unlawful debt.

(d) It shall be unlawful for any person to conspire to

violate any of the provisions of subsections (a), (b) or (c) of

this section. Added Oct. 15, 1970, P.L. 91-452, Title 1X,

$901 (a), 84 Stat. 941.

18 U.S.C.S. §371

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do any act to

effect the object of the conspiracy, each shall be fined not

more than $10,000. or imprisoned not more than five years,

or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the punish-

ment for such conspiracy shall not exceed the maximum

punishment provided for such misdemeanor.

(June 25, 1948, ch 645, $1, 62 Stat. 701.)

STATEMENT OF CASE

Ronald Donnell was the elected Sheriff of Hancock

County, West Virginia, after July 1, 1977, and Robert G.

Altomare was the County’s prosecuting attorney.

Being aware of widespread gambling in the county for

some time, Donnell became involved in an undercover

investigation which initially involved the State Police and the

Federal Law Enforcement Authorities. The investigation

began in November, 1977.

Once Silvo (Birdie) Pinciaro had offered to support

Donnell in his election in exchange for the Sheriff's assistance

in helping Pinciaro take over the gambling activities in Weir-

ton, West Virginia.

To accomplish this goal, Pinciaro and Donnell insti-

gated several raids in the Weirton area in order to intimidate

the gambling operators into paying for protection.

A trial, evidence of a taped conversation between Peti-

tioner and Donnell was introduced. The government theo-

rized that said conversation involved payoffs for protection

for a barbout (dice) game allegedly operated by Petitioner.

On February 6, 1979, Petitioner, Joseph N. Pecora, 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 with

a single count (Count 2) of violating 18 U.S.C. §1962(d) the

Racketeer Influence and Corrupt Organizations Act

(RICO).

Specifically, the indictment alleged that from January 1,

1977, to January, 1979, in Hancock County, West Virginia,

Pecora and five (5) other individuals conspired to commit an

offense, to-wit: 18 U.S.C. §1962(c). Concerning Pecora, it

was alleged that certain monies were paid on his behalf to

Robert G. Altomare, Prosecuting attorney of Hancock

County and Ronald A. Donnell, Sheriff of Hancock County,

for the return of various slot machines which had earlier

been seized in raids conducted by the Sheriff's office, and as

protection money for a dice game operated in the county.

Pre-Trial Motions were filed, and the District Court, Honor-

able Robert E. Maxwell, District Judge, ruled upon them

(Appendix B). After a severance of several defendants was

ordered on May 21, 1979, a jury trial was convened involving

co-defendants Karas, Pecora and Donald DeLong.' On May

25, 1979, the jury returned verdicts of guilty as to each

defendant.

After Post-Trial Motions (Appendix F) were orally

denied, Petitioner was sentenced to five (5) years imprison-

ment and ordered to pay a $10,000.00 fine (Appendix G).

Petitioner appealed to the Fourth Circuit Court of

Appeals. On July 1, 1980, Petitioner's conviction was

affirmed (Appendix L).

Petitioner then made petition to the Fourth Circuit for

Rehearing, and was denied such on July 28, 1978, (Appendix

H).

Your Petitioner, Joseph Nicholas Pecora, now prays that

a Writ of Certiorari issue to review the judgement of the

United States Court of Appeals for the Fourth Circuit

entered in the above entitled case on July 1, 1980, and the

Order denying the Petition for Rehearing dated July 28,

1980.

‘Subsequent to trial, Mr. DeLong died. Mr. Karas was convicted

along with Petitioner.

REASONS FOR GRANTING THE WRIT

1. WHETHER THE FOURTH CIRCUIT'S FAILURE

TO REVERSE PETITIONER'S CONVICTION

FOR FAILURE TO CHARGE THAT THE

GOVERNMENT MUST PROVE, BEYOND A REA-

SONABLE DOUBT, THAT DEFENDANT MUST

BE PREDISPOSED TO COMMIT THE OFFENSE

FOR WHICH HE HAS BEEN CHARGED,

SHOULD STAND IN LIGHT OF THE FIFTH CIR-

CUIT COURT OF APPEALS IN UNITED STATES

v. WOLF 594 F.2d 77 (5th Cir. 1979) AND THE DIS-

TRICT OF COLUMBIA COURT OF APPEALS IN

HANSFORD v. UNITED STATES, 303 F .2d 219 (D.C.

Cir. 1962)?

The trial court charged the jury on entrapment as fol-

lows:

The defendants here assert that they were victims of

entrapment as to the crimes charged in this indictment.

Where a person has no previous intent or purpose to

violate the law, but is induced or persuaded by a law

enforcement officer or their agents to commit a crime,

he is a victim of entrapment, and the law as a matter of

policy forbids his conviction in such case.

On the other hand, where a person already has the

readiness and willingness to break the law, the mere fact

that the Government agents provide what appears to be

a favorable opportunity is not entrapment.

If, then, the jury should find beyond a reasonable doubt

that the evidence in the case or that before anything at

all occurred respecting the alleged offense 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 offic-

ers or their agents did no more than offer the opportu-

nity, then the jury should find that the defendants are

not victims of entrapment.

cod

‘

On the other hand, if the evidence indicates and should

leave you with a reasonable doubt whether the defen-

dant had the previous intent or purpose to commit any

offense of the character here charged, and do so only

because they were induced or persuaded by some

officer or agent of the Government, then it is your duty

to acquit them. (App. 686a-687a).

The instruction that a person must have “no previous

intent or purpose to violate the law” is fatally vague. This

lack of procession is critical in the instant case, in view of the

evidence presented that the Petitioner was engaging in gam-

bling, a violation of the law, yet it was presently charged not

with gambling but with bribery.

What was critical for the jury to understand when con-

sidering whether Petitioner had been entrapped to commit

the bribery offense, was whether the Petitioner had a predis-

position to commit bribery, not whether he was predisposed

to gamble.

The critical issue is whether the defendant was predis-

posed to commit the offense for which he was charged.

Clearly, a person who steals credit cards may not be predis-

posed to steal guns. United States v. Borum, 484 F.2d 424,

427, (D.C. Cir. 1978). However, the Fourth Circuit Court of

Appeals refused to overturn Petitioner's conviction rejecting

the clair that failure to make the distinction between gam-

bling and bribery was reversible error.

| The Fourth Circuit Opinion is in disagreement with two

other Federal Circuit Courts of Appeals, the Fifth and the

D.C. Circuit.

In Hansford v. United States, 303 F.2d 219 (D.C. Cir.

1962), a narcotics prosecution, the defendant took the stand

and was cross-examined about his three (3) prior convictions

(two for larceny, one for narcotics). The trial court charged

the jury as follows:

“T]he law says that if an otherwise innocent person, not

inclined to commit a criminal offense, is induced, is led

into, is enticed by a police officer to commit a criminal

offense, the prosecution can have no benefit from it and

he would not be guilty. Understand that I say ‘otherwise

innocent person’ who would not have committed the

crime except for some enticement, or inducement

...you have got to take into consideration, the testi-

mony on the part of the Government concerning Hans-

ford’s background,...you have got to consider that

background, the whole of it, in determining whether he

was an innocent man who would not have made that

sale, but for being seduced into it. Id. at 221.

Judge Fahy for the D.C. Circuit Court of Appeals,

however, in disagreement with the District Court and the

Fourth Circuit Court of Appeals in the instant matter, disap-

proved of the above charge stating:

[R]eadiness or predisposition is not established by evi-

dence that the person is not ‘innocent’ in that he has a

criminal record. Innocent in the context of entrapment

means that the defendant would not have perpetrated

the crime for which he is presently charged but for the

enticement of the police official. Id. at 222 (emphasis

supplied)

The Fifth Circuit Court of Appeals reiterated Judge

Fahy’s Opinion in the recent decision of United States v.

Wolf fs, 594 F.2d U.S. 77, (5th Cir. 1979). In Wolffs, supra the

defendant was convicted of conspiracy to possess with

intent to distribute marijuana, conspiring to distribute same,

and abusing communication facilities in commiting a felony.

His conviction was reversed for several reasons, of which

failure to do the following was one.

“The instruction also must be unmistakeably clear in

informing the jury that if the evidence in the case leaves

a reasonable doubt as to whether defendants had the

predisposition to commit an offense of the character

charged, apart from the Government inducement or

persuasion, the defendant must be found not guilty

(emphasis added).” 594 F.2d at 83.

This issue is presented to the Court to effectuate resolu-

tion of the conflict between the Fourth Circuit Court of

Appeals and the Fifth and D.C. Circuit Court of Appeals.

2. WHETHER A COUNTY PROSECUTING ATTOR-

NEYS OFFICE IS AN ENTERPRISE WHICH

ENGAGES IN OR AFFECTS INTERSTATE OR

FOREIGN COMMERCE WITHIN THE SCOPE

OF THE RACKETEER INFLUENCE CORRUPT

ORGANIZATION STATUTE (RICO) 18 U.S.C.

§1961 through 1968?

The Racketeer Influence Corrupt Organizations

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

any “enterprise” by a pattern of racketeering activities. Sec-

tion 1961(4) defines and “enterprise” as including “any indi-

vidual, partnership, corporation, association, or other legal

entity, and any union or group of individuals associated in

fact although not a legal entity.”

The only enterprise which Petitioner was allegedly asso-

ciated with was the office of the prosecuting attorney of

Hancock County, West Virginia, a statutory creation in the

State of West Virginia. The duties of a county prosecutor are

set out in West Virginia Code, Chapter 7, Article 4, §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, and the County or the

Board of Education is a party, as well as to assist the Attorney

General of the State of West Virginia in the county and which

the prosecutor serves.

As can be easily discerned, all authority and activity of

the prosecutor is strictly local in nature. Therefore, any

crimes involving the acts of the public official (employed by

the office of the Prosecuting Attorney) in conducting the

affairs of that office are necessarily local in nature. Conse-

quently, there actions do not, and were not meant to, come

within the ambit of the Organized Crime Control Act.

10)

The key note of the RICO Statute is commerce. This is

clearly demonstrated by the recent Third Circuit Opinion of

United States v. Frumento, 563 F.2d 1083 (3rd Cir. 1977).

Frumento affirmed the district courts finding that the

Bureau of Cigarette and Beverage Taxes in the Pennsylvania

Department of Revenue was an enterprise within the mean-

ing of §1961(4) because of its close nexus with commerce.

The Court went on to explain:

As we read the Organized Crime Control Act, Congress

was not civil to concern with limiting the protective and

remedial features of the Act to business and labor organ-

izations as it was with reducing the insidious capabilities

of persons in organized crime to infiltrate the American

economy. This accounts for the new civil remedies in

the Act which permit equitable restraint of economic

activity engaged in by organized crime as a substitute

for criminal prosecution with its attendant procedural

and constitutional protection for defendants. See Note,

Infiltration of Legitimate Business, 124 U. Pa. L. Rev.

192, 196 (1975). In other words, Congress’ concern was

enlarging the number of tools with which to attach the

envasion of the economic life of the country by the

cancerous influence of racketeering activity; Congress

did not confine its scrutiny to special areas of economic

activity. Congress did not confine its scrutiny to special

areas of economic activity. Congress had no reason to

adopt a constricted approach to the solution of the

problems. Congress was concerned with the infiltration

of organized crime into the American economy and to

the devastating effects of the racketeering activity had

upon it. Yet, we are asked to believe that Congress’

approach to a monumental problem besetting the coun-

try was myopic and artificially contained. Is it conceiv-

able that in considering the ever more widespread

tentacles of organized crime in the nation’s economic,

Congress intended to ignore an important aspect of the

economy because it was state operated and state con-

trol? We think not. Congress declared that the provi-

sions of Title IX ‘be liberally construed to effectuate

their remedial purposes.’ 84 Statute 947. 563 F.2d at 1091

through 1091; (emphasis supplied)

In the very recent case of United States v. Sutton, 604

F.2d 260, 268, (6th Circuit 1979), the Court set forth:

The legislative history conclusively demonstrates that

RICO was enacted in response to the growing subver-

sion of our society’s legitimate institutions of business

and labor by organized crime... .(emphasis added)

In United States v. Mandel, 591 F.2d 1347, 1375 (4th Cir.

1969) this Court held that the district court was correct in its

holding that “...the main purpose of Congress in enacting

Title IX was to prevent the infiltration of legitimate business

by organized crime.”

Whatever, since the Office of the Prosecuting Attorney

is a public entity, it is not an enterprise within the meaning of

the RICO Statute. United States v. Mandel, 415 F.2d 997,

1020-1022 (D.Md. 1976).

By the statute itself in its legislative history contain no

express consideration of whether an “enterprise” may

include public entities such as, governments and states.

There exist no valid basis for construing the statute so

broadly. Several other Circuit Courts? have given weight to

Congress's instructions that the provisions of the Organized

Crime Control Act should be “liberally construed to effectu-

ate its remedial purposes.” PUB. L.NO. 91-452 $904 (a).

What these courts have failed to note is that:

The act with its civil and criminal provisions, has both

punitive and remedial purposes. While Congress may

instruct courts to give broad interpretations to civil pro-

visions, it cannot require courts to abandon the tradi-

tional canon of interpretation that ambiguities in

*See United States v. Cappetto, 502 F.2d 1350, (7th Cir. 1974), cert.

denied, 420 U.S. 925, 95 S.Ct. 1121, (1975); United States v. Nerone, 563

F.2d 836 (7th Cir. 1977); United States v. Altese, 542 F.2d 104 (2nd Cir.

1976); United States v. Hawes, 529 F.2d 472 (5th Cir. 1976); United States

vb. Campanale, 518 F.2d 352 (9th Cir. 1975) cert. denied, 423 U.S. 1050, 96

S.Ct. 777, (1976).

criminal statutes are to be construed in favor of

leniency. Rewis v. United States, 401 U.S. 808, 912, 91

S.Ct. 1056, 1059-1060 (1955). To do so would be to

violate the principles of due process on which the canon

of interpretation rests.

Consequently, the government cannot succeed in its

quest for a conviction under RICO by merely proving a

conspiracy of the accused to do certain prohibited acts. If

this was all that was necessary, then Congress would not

have enacted the statute, for it already had 18 U.S.C. $371 for

such conduct. RICO was specifically enacted to help pre-

vent the investment of ill-gotten gains in legitimate business

enterprises.

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 com-

merce. United States v. Vignola, 464 Fed. 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 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 lawsuits,

existence of law enforcement investigations concerning out

of state persons and use of national communications data

systems of the National Crimes Information Center. It is

contended that such evidence is inadequate to establish the

jurisdictional element of the statute.

The only matter which could reasonable 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 Attorneys Office does not

have the power or the authority, to purchase equipment or

supplies; this must be done by County Commission Office

which is a separate and distinct entity. West Virginia Code

Ann. §7-1-7 (1976 Replacement Volume).

The activities of the Prosecuting Attorneys Office may

sometimes necessitate contact with other states, but by no

stretch of the imagination may this contact by considered to

excert a substantial affect on interstate commerce. Natu-

rally, 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 interstate commerce, and they also would

come within reach of RICO.

Also, it was stipulated that none of the monies collected

by Altomare and/or Donnell in connection with bribery,

gambling, etc., was deposited in the County Commission

Funds. 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.

The question of whether a county prosecuting attorneys

office is an enterprise within or affecting interstate com-

merce within the RICO Act is an important question of

Federal Law and has not previously been considered by this

Court.

3. WHETHER THE FOURTH CIRCUIT'S HOLD-

ING THAT THE TERM “ENTERPRISE”, WITHIN

THE SCOPE OF THE RACKETEER INFLUENCE

CORRUPT ORGANIZATION STATUTE (RICO) 19

U.S.C. §1961-1968, ENCOMPASSES AN ILLEGAL

ASSOCIATION THAT IS PROVED ONLY BY

FACTS CONSTITUTING THE “PATTERN OF

RACKETEERING ACTIVITY,” SHOULD STAND

IN LIGHT OF THE EIGHTH CIRCUIT COURT

OF APPEALS DECISION IN UNITED STATES vy.

ANDERSON AND MOONEY, 79-1809?

The three judge panel of the 8th Circuit Court of

Appeals in United States v. Anderson and Mooney, 79-1089

offered the following interpretation:

The Government's view of the RICO prosecutions

against Anderson and Mooney leads to the conclusion

that almost any two criminal acts affecting interstate

commerce would fall within the ambit of RICO. Cer-

tainly Congress did not silently intend such a drastic

reshuffle of the federal-state balance as the expansive

theory of the Government would entail. (slip opinion)

In Anderson and Mooney, supra. involving two county

officials in Arkansas who were accused of taking kickbacks

in connection with county purchases of road maintenance

supplies, the Court specifically held that the officials illegal

scheme, entered into with a salesman, did not constitute an

“enterprise” within the statutory meaning of the word. (slip

opinion)

Accordingly in this maverick opinion, the three judge

panel further explained the Government failed to prove the

existence of the “enterprise” except through the acts of brib-

ery which also established its proof of the “pattern of racke-

teering activity.” (slip opinion) “The term ‘enterprise’ must

signify an association that is substantially different from the

acts which form the pattern of racketeering activity.” (slip

opinion)

By reversing the RICO convictions, the Eighth Circuit

chose a polar stance from the Fourth Circuit. In the instant

situation, the 4th Circuit permitted the term “enterprise” to

encompass the illegal association between Petitioner and his

co-defendants which was established only by facts which

also constituted the predicate acts comprising the pattern of

racketeering activity.

Accordingly, the question of whether the term “enter-

prise” encompasses an illegal association that is proved only

by facts which also establish the predicate acts constituting

the “pattern of racketeering activity” is presented to the

Court to effectuate resolution of the conflict between the

Fourth and Eighth Circuits.

4. WHETHER THE FOURTH CIRCUIT'S FAILURE

TO REVERSE PETITIONER'S CONVICTION

FOR FAILURE TO CHARGE THAT THERE

MUST BE MORE THAN ONE PREDICATE

OFFENSE FOR CONVICTION UNDER 18 U.S.C.

§1962(d) CONSPIRACY, SHOULD STAND IN

LIGHT OF THE FIFTH CIRCUIT COURT OF

APPEALS DECISION IN UNITED STATES vy.

ELLIOTT, 471 F.2d 880, 903 (5th Cir. 1977)?

In order for a violation of 18 U.S.C. §1962(d) to be

found, a defendant personally must commit two prescribed

acts. United States v. Campanale, 518 F.2d 352 (9th Cir.

1975); In United States v. Campanale, supra, which was an

18 U.S.C. §1962(d) case, the Court recognized, even though

a conspiracy was charged, it still was required that each

individual defendant commit two acts of racketeering to

establish a pattern and, therefore, make the individual a

member of the conspiracy.

The same principle that in a conspiracy prosecution

under 18 U.S.C. §1962(d) there must be more than one

predicate offense, is clearly stated in United States v. Elliott,

571 F.2d 880, 903 5th Cir. 1977);

To be convicted as a member of an enterprise con-

spiracy, an individual, by his words or actions, must

have objectively manifested an agreement to partici-

pate, directly or indirectly in the affairs of an enterprise

through the commission of two or more predicate

crimes. One whose agreement with the members of an

enterprise did not include this vital element cannot be

convicted under the act. Id. (emphasis on original)

The above cases clearly demonstrate that the elements

of §1962(d) conspiracy are different from those of 18 U.S.C.

§371 conspiracy. As written in United States v. Kessler, 449

F.2d 1315 (2nd Cir. 1971), in order to prove a §371 con-

spiracy, “knowing joinder in an unlawful scheme on one

occassion is sufficient. Id. (emphasis supplied)

In the instant case, the trial court charged the jury,

and the Circuit Court of Appeals affirmed the following

instructions:

“...the government does not have to establish perfor-

mance of all the avert acts as set out in the indict™ent.

Proof beyond a reasonable doubt of one such act is

sufficient.

A conspiracy is a combination of two or more persons

by conserted action to accomplish unlawful purpose, or

to accomplish some lawful purpose by unlawful means.

So, a conspiracy is a kind of partnership in which each

member becomes the agent of every other member.

The gist of the offense, isa combination or agreement to

disobey or to disregard the law. (App. 673a)

Moreover, the Court repeated this incorrect charge to

the jury, viz., only one overt act need be proven, four more

times. This charge describes the conspiracy under §371.

However, Petitioner was not charged with violating §371, he

ws charged with violating §1962(d). The district court never

charged under §1962(d), and consequently, the jury was not

properly instructed on the crime for which the Petitioner

was charged.

Prejudice to Petitioner is particularly obvious for had

the proper standard been applied, it is foreseeable that an

acquittal would have been granted him. The Government, in

its opening address, explained the two predicate transac-

tions involving Pecora. Evidence of one (the slot machine

buy-back) was excluded. Accordingly, under a proper

application of §1962(d) to the facts, the evidence is insuffi-

cient to establish a violation.

This issue is presented to the Court to effectuate resolu-

tion of the conflict between the Fourth Circuit and the Fifth

Circuit.

5. WHETHER THE FOURTH CIRCUIT FAILURE

TO REVERSE PETITIONER’S CONVICTION ON

THE BASIS OF THE GOVERNMENT'S REFER-

ENCE TO EVIDENCE WHICH HAD BEEN

EXCLUDED, SHOULD STAND IN LIGHT OF

UNITED STATES v. LEON, 534 F.2d 667 (6th Cir.

1976)?

It is well established that the United States Attorney

may not inject improper or prejudicial material that deprives

that accused of his right to a fair trial. Berger v. United

States, 295 U.S. 78, 88, 58 S.Ct. 629 (1930); United States v.

Leon, 534 F.2d 667, 679 (6th Cir. 1976).

The Court in Leon, supra. did have a four prong test for

determining whether remarks made by a United States

_ Attorney was harmless.

Of these four factors, the first one, the tendency to

mislead the jury and prejudice the accused, is the prime

consideration. In determining undue prejudcial affect “the

inquiry should be whether the prosecutor's expression might

reasonably lead the jury to believe that there is other evi-

dence, unknown or unavailable to the jury, on which the

prosecution was convinced of the accused’s guilt.” McMillan

v. United States, 363 F.2d 165, 169 (5th Cir. 1966).

The prosecutor cannot assert that there was existent, but

unstated, evidence of which the jury did not have the

benefit. For example, in McMillan, the court overturned 2

conviction because the prosecutor expressed his personal

belief in the Defendant’s guilt and insinuated that he had

additional information, by way of a reliable informer, that

had been excluded by the court. The court explained this

information as follows:

“It is more probable that this led the jury to believe that

the whole government establishment has already deter-

mined appellants to be guilty on a glut of evidence

which by technical legalisms, was not put before them.”

Id. at 169.

The jury’s determination of guilt must be based solely

on evidence properly presented for their consideration. It is

well settled that “remarks on the availability of unused evi-

dence are clearly impermissible.” Ketchum v. United States,

354 F.2d 715, 719 (1st Cir. 1965).

Therefore, any references to evidence which has been

excluded by the court is certainly improper. Garris v. United

States, 309 F.2d 862, 865, 866 (ID.C. Cir. 1968); Kitchell v.

United States, supra.

In the instant case, the United States Attorney in his

opening statement, asserted that he would prove Petitioner

was involved with some slot machines. During the trial, the

trial court ruled that a tape recording, which contained the

only evidence linking Petitioner with any slot machines, was

inadmissible.

Petitioner, in his closing argument, properly pointed out

that the United States Attorney has failed to prove that he

was involved with any slot machines. During his rebuttal

argument, the United States Attorney raised the issue of

Petitioner's connection with the machines. Since all evidence

regarding this matter had been excluded, he could not argue

that his allegation had been proven. Instead, he discussed the

fact that a number of bench conferences had resulted in this

evidence being excluded. The United States Attorney

focused the jury’s attention on this matter, then instructed

them that they were not permitted to consider it.

As a parting shot, he declared that “. . .the government

does not need the slot machines....” App. 744a-745a The

improper remarks were objected to at sidebar, out of the

hearing of the jury. The court overruled the objection, and

the jury was never instructed to disregard the improper and

prejudicial remarks. The court suppressed this evidence in

order to prevent it from influencing the jury’s decision; but

the prosecutor’s remarks focused the jury’s attention on the

evidence, thereby, causing them to consider it anyway.

—

In Kitchell v. United States, supra, the Circuit Court

reversed the conviction of co-defendants on the basis of the

United States Attorney similarly referring to excluded evi-

dence in his concluding argument. In reversing the convic-

tion the Court stated:

Whether by negligence or design, the government did

its best to bring in and emphasis the very evidence

which these defendants had sought to avoid by their

motions for severance, and which the Court had care-

fully excluded, the government should have been par-

ticularly circumspect, instead of the opposite. We

cannot sanction such improprieties...” Id. at 719.

In the instant case, the prejudicial affect of the United

States Attorney’s remarks became manifest when the sur-

rounding circumstances are examined. The Government

needed to prove that Petitioner had committed two predi-

cate crimes, i.e. that Petitioner was involved with some slot

machines. The government sought to imply that there was

existing, but inadmissible, evidence which would satisfy the

burden of proof; thereby prejudicing the Petitioner and

making the jury more receptive to their theory of segment-

ing the single crime of bribery in order to create the requisite

number of predicate crimes.

That the jury was misled and confused was clearly

demonstrated by the jury’s question during deliberations

which revealed that they were pondering the Petitioner's

connection with slot machines. They asked “Do Jo Jo Pecora

have slot machines?” (App. 703a) This confusion would not

have developed had the prosecutor confined his rebuttal

argument to permissive subjects. Thus, the remarks did prej-

udice the Petitioner's right to a fair trial.

Whether the remarks were isolated or extensive, it is the

second factor in the Leon test. Although the improper

remarks were not extensive, there content and the court’s

failure to act to remove their effect upon the jury's mind

must also be considered. Wherever, as in the instant case, the

20)

remarks of counsel were outside of the record and highly

prejudicial, case law requires the court to sustain the objec-

tion of counsel and to instruct the jury not to pay any atten-

tion to the remarks excepted to. In fact,

Where argument of counsel is outside the record and

prejudicial, the court should not only sustain objections

thereto, but should instruct the jury to pay no attention

to portions of argument to which objections are sus-

tained.” Robinson v. United States, 32 F.2d 505, 510,

(8th Cir. 1929).

The district court, however, failed to give such an

instruction and the Fourth Circuit Court of Appeals failed to

reverse the conviction based on that failed instruction.

The Court, instead of resolving the confusion,

instructed the Marshall to respond that: “it is for the jury to

recall the evidence.” This instruction was made over the

Petitioner's objection. The total absence of any evidence

connecting Pecora with any slot machines obligated the

Court to so instruct the jury. The Court's response could only

serve to exacerbate the prejudicial affect of the prosecutor's

remarks.

The third prong of the Leon test, whether the remarks

were deliberately or accidentally placed before the jury, is

of critical importance in the instant case. The prosecutor

‘annot, in good faith, claim that he has accidently referred to

evidence which has been suppressed. The Court has specifi-

cally found that this evidence should not be related to the

jury. Consequently, the prosecutor's reference to this

excluded evidence files in the fact of the Court’s determina-

tion and can only be viewed as deliberate. See Kitchell v.

United States, supra.

The strength of the competent proofs introduced to

establish the guilt of the accused is the fourth and final prong

of the test annunciated in Leon. The mere presence of evi-

dence sufficient to sustain a guilty verdict is insufficient to

automatically classify the prosecutor's improper remarks as

harmless err. United States v. Leon, 534 F.2d at 683. The

evidence against Pecora, however was in no way conclusive,

therefore the remarks of the prosecutor were clearly prejudi-

cial.

This question is presented to the Court to effectuate

resolution of the conflict between the Fourth and the Sixth

Circuits.

CONCLUSION

It is respectfully submitted that this Honorable Court

grant the Petitioner’s Petition for Writ of Certiorari as he has

presented one important question of Federal Law that has

not previously been considered by this Court, and four areas

of Federal Law which have caused conflict within the var-

ious Circuit Courts of Appeals.

Respectfully submitted:

MANIFESTO, DOHERTY, LOVE

& TALARICO, P.C.

John L. Doherty

Attorney for Petitioner

200 Lawyers Building

Pittsburgh, PA 15219

412-471-8893

A-1

APPENDIX A

IN THe Unirep States District Court For THE

NorTHERN District or West VIRGINIA

UNITED STATES OF AMERICA

of Criminal No. 79-00003-E-02

JOSEPH NICHOLAS PECORA,

re S. OU

Defendant. FILED AT ELKINS, W.VA.

FEB 26, 1979

THOMAS F. STAFFORD

ORDER _—

On February 16, 1979, came the United States of Amer-

ica by William A. Kolibash, Assistant United States Attorney

for the Northern District of West Virginia, and also came the

defendant, JOSEPH NICHOLAS PECORA, in person and

by his attorney, John L. Doherty, for arraignment. The

Court advised the defendant and his attorney that in view of

the complex nature of this case, he would enter a plea of not

guilty for the defendant. It was, therefore,

ORDERED that a plea of not guilty be entered, that

pretrial motions on behalf of the defendant be filed on or

before March 2, 1979, and that trial be scheduled at a later

date. It was further

ORDERED that the bond earlier given be continued

ENTER: FEB 26, 1979

“eeeeveevreeneeeeeeeeeneeeeeeeeeeeee

United States District Judge

I hereby certify that the annexed instru-

ment is a true and correct copy of the origi-

nal on file in my office.

Attest: Thomas F. Stafford

Clerk, U.S. District Court

Northern District

of West Virginia

By: /s/ Jeanne, WO’ Laven | |

Deputy Clerk

B-1

APPENDIX B

IN THe UNITED StaTeEs Districr CourT FOR THE

NORTHERN District OF WEST VIRGINIA

UNITED STATES OF AMERICA

Vv. Criminal No. 79-00003-E

ROBERT G. ALTOMARE,

JOSEPH NICHOLAS PECORA, VIOLATIONS:

LEONARD Z. ALPERT, 18 U.S.C. § 1503

JOSEPH APERFINE, 18 U.S.C. § 1962(c)

DONALD “DINGBAT” DELONG, | 18 U.S.C. § 1962(d)

CONSTATINE “GUS” KARAS, 18 U.S.C. § 2

Defendants

ORDER

It appearing to the Court that counsel for defendants in

the above-styled criminal action, will, because of the diffi-

culty in securing access to the discovery material until Feb-

ruary 27, 1979, be unable to adequately prepare pre-trial

motions, the Court, upon its own motion, does hereby,

ORDER that the deadline for submission of pre-trial

motions be extended until March 16, 1979, to give counsel an

opportunity to study and investigate the discovery material.

ENTER: FEB 27, 1979

/s/ Ropert E. MAXWELL

U.S. DISTRICT COURT — United States District Judge

FILED AT ELKINS, W. VA.

FEB 27, 1979

THOMAS F. STAFFORD | hereby certify that the annexed instru-

CLERK ment is a true and correct copy of the origi-

nal on file in my office.

Attest: Thomas F. Stafford

Clerk, U.S. District Court

Northern District

of West Virginia

Deputy Clerk

C-1

APPENDIX C

IN THE UnitTep States Districr Court For THE

NorTHERN District Or WEsT VIRGINIA

UNITED STATES OF AMERICA,

Plaintiff,

V. Criminal No. 79-00003-E

ROBERT G. ALTOMARE

: U. S. DISTRICT COURT

LEONARD Z. ALPERT, APR. 4, 1979

JOSEPH APERFINE, THOMAS F. STAFFORD

DONALD “DINGBAT” DELONG, CLERK

CONSTANTINE “GUS” KARAS,

Defendants.

ORDER

On the 27th day of March, 1979, at Wheeling, came the

United States of America by Stephen G. Jory, United States

Attorney, William A. Kolibash and William D. Wilmoth,

Assistant United States Attorneys for the Northern District

of West Virginia, and also came the defendants, in person

and by their counsel, Rudolph L. DiTrapano and Joseph

Thomas; Joseph Nicholas Pecora with his counsel, John L.

Doherty; Leonard Z. Alpert with his counsel, Stanley E.

Preiser and Frederick D. Fahrenz; Joseph Aperfine with his

counsel, Robert Yahn; Donald “Dingbat” DeLong with his

counsel, James E. Seibert, and Constantine “Gus” Karas with

his counsel, Thomas Livingston, for a hearing upon the var-

ious motions filed by these defendants. Upon consideration

of all matters offered and presented including the argument

of counsel, and for the reasons stated upon the record in

open court, it is

ORDERED as follows:

1. (a) The motion of the defendant, Robert G. Alto-

mare, that he be allowed to inspect the Grand Jury Minutes

C-2

of the Grand Jury which returned this indictment is granted

as to the record of his testimony before such Grand Jury but

is denied as to the record of any other person testifying

before such Grand Jury;

(b) the motion that he be granted an extension of

time in which to submit motions to dismiss is granted in

accordance with the limitation set forth in Item 8 below;

information and materials is granted;

(d) the motion to disclose interception of wire or

oral communications and electronic surveillance is denied

upon the representation of the United States that no such

action was taken;

(e) the motion for discovery and inspection is

denied as stated;

(f) the motion for transfer of trial within the district

is denied; and

(g) the motion to compel the United States to elect

is denied.

2. (a) The motion of the defendant, Joseph Nicholas

Pecora, for a bill of particulars is denied except as set forth in

Item 7 below;

(b) the motion for pre-trial discovery is denied as

stated; and

out prejudice to this issue being raised at the trial of this

action.

3. (a) The motion of the defendant, Leonard Z.

Alpert, to dismiss this indictment or certain counts thereof is

denied except as is set forth in Item 7 below;

(b) the motion for a bill of particulars is denied

except as is set forth in Item 7 below;

C-3

set forth in Item 9 below and the motion to inspect the

statements of the other defendants is denied;

(d) the motion for a change of venue is denied;

(e) the request for disclosure of evidence is denied;

(f) the motion for disclosure of evidence intended

to be used at trial is denied as stated;

(g) the motion to compel disclosure of exculpatory

evidence is granted;

(h) the motion for an audibility hearing and visual

hearing on certain evidence is denied without prejudice to

this issue being raised at the trial of this action;

(i) the motion to compel government witnesses to

be interviewed is denied upon the representation that no

government witness is being held in protective custody and

all are available to counsel for the defendants;

(j) the motion to suppress is denied witout preju-

dice to the issue being raised at the trial of this matter;

(k) the motion to excise portions of the tape and

video recordings and the transcripts of the tape recordings

and to suppress the tape and video recordings entirely with-

out prejudice to the issue being raised at the trial of this

action;

(1) the motion to disclose interception of wire or

oral communications and electronic surveillance and the

motion to disclose mail cover is denied upon the representa-

tion of the United States that no such action was taken;

(m) the motion for disclosure of grants of immun-

ity, promises of leniency, or threats of prosecution, and any

plea bargaining is granted and the motion for disclosure of

any United States Department of Justice policy statements

of or regulations concerning the selection for prosecution

and/or prosection of “white collar” crimes is granted;

C-4

(n) the motion for the disclosure of all informers is

denied upon the representation of the United States that no

such informers were utilized in this case and that any such

informers are revealed in the files of the United States Attor-

ney which have already been made available to the defend-

ants;

(o) the motion for the early production of Jenck’s

Act materials is denied;

(p) the motion for a “rap” sheet and other informa-

tion on all prospective government witnesses is denied;

(q) the motion to require the government to dis-

close the manner of selecting the Grand Jury members is

denied;

(r) the motion to produce the minutes of the Grand

Jury which returned this indictment is granted as to the

record of this defendant’s testimony before such Grand Jury

but is denied as to the record of any other person testifying

before such Grand Jury;

(s) the motion to require the United States to dis-

close information as to the prospective petit jurors is denied;

(t) the motion for additional premptory challenges

is denied without prejudice to this issue being raised at the

trial of this matter;

(u) the motion for a hearing for the taking of evi-

dence in support of these motions is denied;

(v) the motion for the extension of time to file

memotanda of law in support of pre-trial motions is denied

except as is set forth in Item 8 below;

(w) and the motion to compel the United States to

elect or for severance of Counts or defendants is denied

except as is set forth below in Item 7.

4. (a) the motion of the defendant, Joseph Aperfine,

for the production of exculpatory evidence is granted;

C-5

(b) the motion for severence is denied except as is

set forth in Item 9 below;

indictment is denied except as is set forth in Item 7 below;

(d) the motion for transfer within the district is

denied;

(e) the motion to require the government to trans-

cribe the tapes is denied;

(f) the motion to dismiss the indictment is denied

except as is set forth in Item 7 below; and

(g) the motion for a bill of particulars is denied

except as is set forth in Item 7 below.

5. (a) The motion of the defendant, Donald DeLong,

for a bill of particulars is denied except as is set forth in Item

7 below; and

(b) the motion to dismiss the indictment is denied

except as is set forth in Item 7 below.

6. (a) The motion of the defendant, Constantine

“Gus” Karas, to dismiss the indictment is denied except as is

set forth in Item 7 below;

(b) the motion for a bill of particulars is denied

except as is set forth in Item 7 below; and

return of property is denied without prejudice to this issue

being raised at the trial of this matter.

7. (a) The paragraphs of Count I of the indictment

numbered 4(a), (b), (d), (e), (£), (g), (h), (i), (j), and (k) shall

be struck from the indictment;

(b) as to paragraph 4(e) of Count I of the indict-

ment, the United States shall file a bill of particulars stating

the identity of the Grand Jury referred to therein;

States shall file a bill of particulars indicating the bribery

C-6

statutes of the State of West Virginia upon which it relies in

the prosecution of this matter, and all paragraphs which rely

upon West Virginia Code §$61-5-5 shall be struck from the

indictment;

(d) as to Count II of the indictment, the United

States shall file a bill of particulars indicating the gambling

statutes of the State of West Virginia upon which it relies in

the prosecution of this matter and all paragraphs which rely

upon West Virginia Code §61-10-1, 5, and 11 shall be struck

from the indictment;

(e) as to Count III of the indictment, the United

States shall file a bill of particulars stating the identity of the

Grand Jury referred to therein and, identify with particular-

ity the statutes of the State of West Virginia and the United

States of America upon which this investigation was based.

Upon the submission of this bill of particulars, the Court will

take such further action and enter such additional orders as

are deemed necessary.

8. The time period for the submission of additional

motions, which raise matters as have not been considered by

the Court, shall be extended to and including a date ten (10)

days before the scheduled trial date of each particular

defendant.

9. The trials of defendants, Robert G. Altomare, Leon-

ard Z. Alpert, and Joseph Aperfine, shall be severed from the

trials of the remaining defendants, such trial of the defend-

ants, Robert G. Altomare, Leonard Alpert, and Joseph Aper-

fine, to be joined with the trial of Robert G. Altomare in

Criminal Action No. 79-00007-E in which indictment the trial

of Robert G. Altomare has been severed from the trial of the

remaining defendants.

10. The trial of the defendants, Robert G. Altomare,

Leonard Z. Alpert, and Joseph Aperfine, upon the charges

contained in this indictment, joined with the defendant,

Robert G. Altomare, in Criminal Action No. 79-00007-E,

C-7

shall commence at 10:00 a.m. on Monday, April 23, 1979, in

the courtroom of this court in Wheeling, West Virginia,

before the Honorable Franklin T. Dupree, Jr., United States

District Judge. ,

11. The trial on the charges pending against the remain-

ing defendants in this indictment shall be scheduled as the

first criminal trial to commence at 10:00 a.m. on Monday,

April 30, 1979, in the courtroom of this court in Wheeling,

West Virginia.

ENTERED: APRIL 4th, 1979.

/s/ Rospert E. MAXWELL

United States District Judge

I hereby certify that the annexed instru-

ment is a true and correct copy of the

original on file in my office.

Attest: Thomas F. Stafford

Clerk, U.S. District Court

Northern District

of West Virginia

By: /s/ HELEN L. STEMFLE

PPRECICCP Pr SCeCseC Ces CeCe Sea EO e.8

Deputy Clerk

D-1

APPENDIX D

IN THe UNITED States Districr Court For THE

NORTHERN District OF West VIRGINIA

UNITED STATES OF AMERICA,

Plaintiff,

Vv. Criminal File No. 7-00003-E-01-02-03-

= 04-05-06

ROBERT G. ALTOMARE, U.S. DISTRICT COURT

JOSEPH NICHOLAS PECORA, pyyEp at ELKINS, W. VA.

LEONARD Z. ALPERT, APR 12 1979

JOSEPH APERFINE, THOMAS F. STAFFORD

DONALD “DINGBAT” DELONG, CLERK

CONSTANTINE “GUS” KARAS,

Defendants.

ORDER

A superseding indictment having been returned against

the above named defendants by the Grand Jury of this Court

on April 15, 1979, and the United States of America having

moved that the original indictments in Criminal Action No.

79-00003-E be dismissed, and the Court perceiving no objec-

tions thereto, it is

ORDERED that the original indictment returned by the

Grand Jury of this Court on February 6, 1979, be, and the

same is hereby, dismissed.

ENTER: April 12, 1979.

/s/ Ropert E. MAXWELL

United States District Judge

I hereby certify that the annexed

instrurnent is a true and correct copy

of the original on file in my office.

Attest: Thomas F. Stafford

Clerk, U.S. District Court

Northern District of West Virginia

By: /s/ Heven L. STEMFLE

e@eeeeeesee sce eeeoseeseeeeeeeeeeees

Deputy Clerk

E-1

APPENDIX E

IN THe UNitTeEp Srates Districr Court For THE

NorTHERN District OF WEST VIRGINIA

UNITED STATES OF AMERICA,

Plaintiff,

V. es Criminal File No. 79-00003-E

ROBERT G. ALTOMARE, Vinkadtneee:

JOSEPH NICHOLAS PECORA, 18 U.S.C. § 1503

LEONARD Z. ALPERT,

JOSEPH APERFINE,

DONALD “DINGBAT” DELONG,

CONSTANTINE “GUS” KARAS,

Defendants.

18 U.S.C. § 1962(c)

18 U.S.C. § 1962(d)

18 U.S.C. § 2

ORDER

On the 13th day of April, 1979, came the United States

of America by Joseph W. Anderson, Assistant United States

Attorney for the Northern District of West Virginia, and also

came the defendants, ROBERT G. ALTOMARE, in person

and by his attorney, James Seibert, JOSEPH NICHOLAS

PECORA, in person and by his attorney, Carlton Rosen-

crance, LEONARD Z. ALPERT, in person and by his attor-

neys, Stanley E. Preiser and Frederick Fahrenz, JOSEPH

APERFINE, in person and by his attorney, Carlton Rosen-

crance, DONALD “DINGBAT” DELONG, in person and

by his attorney, James Seibert, and CONSTANTINE

“GUS” KARAS, in person, and by his attorney Carlton Ros-

encrance, for arraignment in the above-styled criminal

action.

The defendants each waived the reading of the Indict-

ment and entered pleas of not guilty to each Count contained

therein. Thereupon, the Court

ORDERED that the bonds executed by all defendants

pursuant to the order of the Court entered on February 22,

E-2

1979, with respect to an indictment returned on February 6,

1979, be continued. It was further

ORDERED that the schedule for motions and trial

established by the Court with respect to the above refer-

enced earlier indictment remain in effect in this matter,

except that the earlier ordered date for filing requested jury

instructions and legal authorities shall be extended from

Monday, April 16, 1979 to Wednesday, April 18, 1979.

ENTER: 4-23-79

/s/ Ropert E. MAXWELL

oe ee Ovreeuese ee 8.63 6828S. 82 86

United States District Judge

I hereby certify that the annexed

instrument is a true and correct copy

of the original on file in my office.

Attest: Thomas F. Stafford

Clerk, U.S. District Court

Northern District of West Virginia

By: /s/ even L. STEMFLE

eee eee ee ee eee ee eee eee ee ee eee

Deputy Clerk

F-1

APPENDIX F

In THe UNirep States District Court FOR THE

NORTHERN District OF WEST VIRGINIA

UNITED STATES OF AMERICA,

Plaintiff,

Vv. Criminal File No. 79-00003-E-02-05-06

JOSEPH NICHOLAS PECORA,

DONALD “DINGBAT” DELONG,

CONSTANTINE “GUS” KARAS, U. S. DISTRICT COURT

Defendants. FILED AT ELKINS, W. VA.

APRIL 26 1979

THOMAS F. STAFFORD

— CLERK

Upon consideration of the representation of Joseph W.

Anderson, Assistant United States Attorney for the Northern

District of West Virginia, that numerous items of evidence

being used in the trial of Criminal Action 79-3-E-01-03-04,

now being held before the Honorable Franklin Dupree, in

Wheeling, West Virginia, is required for the prosecution of

this criminal matter; that certain witnesses now appearing in

Criminal Action No. 79-3-E-01-03-04 are required for the

prosecution of this criminal action; that upon information

received from the Honorable Franklin Dupree, it is believed

that the criminal trial which he is now conducting is not

reasonably expected to be concluded until several days after

April 30, 1979; the one courtroom type of facility available in

the United States Courthouse in Wheeling, West Virginia,

does not allow the conduct of more than one trial at the same

time; it being the opinion of the Court that fundamental

fairness requires that the trial of this criminal action be held

in the Wheeling division of the Northern District, the imme-

diate location of the alleged criminal activity; that the

defendant, Constantine “Gus” Karas, is also a defendant in

Criminal Action No. 79-6-E-01, which is scheduled for trial

before the Honorable Charles H. Haden II on April 30, 1979,

in Parkersburg, West Virginia; the necessary overlapping of

F-2

trials and related proceedings of these companion criminal”

actions, now pending, when considered in context with the

complexity of the issues presented, compel the Court to

recognize that the ends of justice are best served here by

continuing the above matter for a short time beyond the

routine Speedy Trial Act time limits and that such action

outweighs the interests of the public and defendants to a

speedy trial, it is, accordingly.

ORDERED that the Court upon its own motion, in

accordance with 18 U.S.C. §3161(h)(8) (a), grants a continu-

ance in this criminal action and that the trial of this criminal

action, scheduled for April 30, 1979, be continued and the

same scheduled for and the trial to commence at 9:30 o'clock

a.m., on May 21, 1979, in the Courtroom of the United States

Courthouse in Wheeling, West Virginia.

ENTER: April 26, 1979

United States District Judge

I hereby certify that the annexed

instrument is a true and correct copy

of the original on file in my office.

Attest: Thomas F. Stafford

Clerk, U. S. District Court

Northern District of West Virginia

By: /s/ Heven L. STEMFLE

Deputy Clerk

G-l

APPENDIX G

InN THE UNrTrep States Districr Court

FOR THE NORTHERN District OF WEST VIRGINIA

UNITED STATES OF AMERICA,

Plaintiff,

v. CRIMINAL ACTION NO. 79-0003-E

-02-05-06

JOSEPH NICHOLAS PECORA,

DONALD “DINGBAT” DELONG,

CONSTANTINE “GUS” KARAS,

Defendants. U. S. DISTRICT COURT

FILED AT ELKINS, W. VA.

MAY 3, 1979

THOMAS F. STAFFORD

CLERK

ORDER

Joseph Nicholas Pecora, defendant in the above styled

criminal action, has submitted a motion for a bill of particu-

lars and a motion to dismiss the indictment. Upon considera-

tion of all matters, it is

ORDERED that defendant's motions are denied.

ENTERED: May 3, 1979.

/s/ Ropert E. MAXWELL

United States District Judge

I hereby certify that the annexed

instrument is a true and correct copy

of the original on file in my office.

Attest: Thomas F. Stafford

Clerk, U. S. District Court

Northern District of West Virgnia

By:.../8/ Heven L. STeMeLe

Deputy Clerk

H-1

APPENDIX H

IN THE UNITED States Districr Court FOR THE

NORTHERN District OF West VIRGINIA

UNITED STATES OF AMERICA

v. Criminal No. 79-0003-E-02

JOSEPH NICHOLAS PECORA

U. S. DISTRICT COURT

FILED AT ELKINS, W. VA.

OCT 4, 1979

THOMAS F. STAFFORD

CLERK

On an earlier date, the Court scheduled rulings on post-

trial motions and sentencing in the above-styled criminal

action on October 2, 1979. It now appearing that JOSEPH

NICHOLAS PECORA, by counsel, has filed a motion to

continue the hearing date of October 2, 1979, and the Court

having considered the same, it is hereby

ORDER

ORDERED that the defendant’s motion be granted and

that the previously scheduled appearance date of October 2,

1979 be vacated and that the rulings on post-trial motions

and sentencing be re-scheduled at 10:00 A.M., on October

19, 1979, at Wheeling, West Virginia.

ENTER: October 4, 1979, as of October 2, 1979

/s/ Ropert E. MAXWELL

SRO C Cee ee evrevec ee eee ee 6 8 6 6

United States District Judge

I hereby certify that the annexed instru-

ment is a true and correct copy of the origi-

nal on file in my office.

Attest: Thomas F. Stafford

Clerk, U. S. District Court

Northern District of West Virginia

By: /s/ Heven L. STEMFLE

eeeeerereeeeee ee eee seeeeeeeeeeeeeeeee

Deputy Clerk

I-]

APPENDIX I

IN THE UNITED STATES Districr Court

FOR THE NORTHERN District OF WEST VIRGINIA

UNITED STATES OF AMERICA

v. CRIMINAL NO. 79-00003-E-02

79-00003-E-06

JOSEPH NICHOLAS PECORA and

CONSTANTINE GUS KARAS, _ U.S. DISTRICT COURT

Defendants. | FILED AT ELKINS, W. VA.

OCT 23 1979

THOMAS F. STAFFORD

ORDER CLERK

Defendants Joseph Nicholas Pecora and Constantine

Gus Karas, by and through their attorneys Joseph L. Doherty

and Thomas A. Livingston, have moved the Court to post-

pone sentencing for 30 to 45 days, thereby continuing the

time of. sentencing beyond the October 30, 1979, date now

set.

Upon consideration of all matters, it is

ORDERED that the Defendants’ Motion for Continu-

ance be, and the same is hereby, denied. The briefing sche-

dule, hearing date, and, if necessary following consideration

of the motions, the sentencing date earlier scheduled will be

maintained.

' ENTER: October 23, 1979.

/s/ Ropert E. MAXWELL

United States District Judge

I hereby certify that the annexed instrzu-

ment is a true and correct copy of the origi-

nal on file in my office.

Attest: Thomas F. Stafford

Clerk, U. S. District Court

Northern District of West Virginia

Deputy Clerk

J-1

APPENDIX J

RECEIVED OCT 29 1979

IN THE UNITED States Districr Court

FOR THE NORTHERN District OF WEsT VIRGINIA

UNITED STATES OF AMERICA

V CRIMINAL #79-0003-E

“ROBERT G. ALTOMARE, ET AL,

Defendants

ORDER

On October 19, 1979, came the United States of Amer-

ica by William A. Kolibash, Assistant United States Attorney

for the Northern District of West Virginia, and also came the

defendants, JOSEPH NICHOLAS PECORA, in person and

by his attorney, John L. Doherty; and CONSTANTINE

“GUS” KARAS, in person and by his attorney, Thomas A.

Livingston. The attorneys for the defendants advised the

Court that they needed additional time to review the trans-

cript which had just been prepared in order to particularize

their Motions for Judgment of Acquittal and/or A New Trial

and requested that the Court delay disposition of the matter.

For the reasons set forth by the defendants’ attorneys, it was

ORDERED that the disposition of the matter be con-

tinued and re-scheduled for 4:00 P.M. on October 30, 1979 in

Wheeling.

ENTER: October 26, 1979.

/s/ Ropert E. MAXWELL

United States District Judge

I hereby certify that the annexed instru-

ment is a true and correct copy of the origi-

nal on file in my office.

Attest: Thomas F. Stafford

Clerk, U. S. District Court

U. S. DISTRICT COURT Northern District of West Virginia

FILED AT ELKINS, W. VA.

OCT 26 1979

THOMAS F. STAFFORD By: eeeee /s/ HELEN, L. STEMFLE eee scene

CLERK Deputy Clerk

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APPENDIX L

PUBLISHED

UnitTep STATES Court OF APPEALS

FOR THE FourTH CIRCUIT

No. 79-5311

UNITED STATES OF AMERICA,

Appellee,

CONSTANTINE “GUS” KARAS,

Appellant.

No. 79-5320

UNITED STATES OF AMERICA,

Appellee,

JOSEPH NICOLAS PECORA,

Appellant.

APPEAL FROM THE UNITED STATES District COURT FOR THE

NorTHERN District oF WesT VIRGINIA, AT ELKINS. ROBERT

E. MAxweELL, Cuter 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’Mallery & Clark

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

Assistant United States Attorney (Stephen G. Jory, United

States Attorney on brief) for Appellee.

L-2

HALL, Circuit Judge:

Constantine “Gus” Karas and Joseph N. Pecora appeal

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 govern-

ment’s evidence, gathered over a two-year period by state

and federal officials, consisted primarily of the sheriff's tes-

timony 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 sev-

eral 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 § 1962(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 entrapment instruction

would require the government to show that both men were

already predisposed to commit the acts of bribery and gam-

bling underlying the RICO Act violation. Counsel contends

that no such predisposition was established at trial!’ and that

the entrapment instruction given was overly broad and

fatally vague. When read in its entirety,” the charge clearly

'Karas asserts 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.

*The trial court instructed the jury as follows:

If, then, the jury should find beyond a reasonable doubt from the

evidence in this case, that before anything at all occurred respecting

continued

L-3

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 sta-

tutes. Appellants’ 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 conspiracy 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 conspi-

racy under $1962(d). The district court did give a general

conspiracy charge, similar to that under $371, requiring only

one overt act. However, 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

occurred.? Viewing the overall conspiracy charge, there is no

the alleged offense 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 persuaded by

some officer or agent of the government, then it is your duty to acquit

them. (Emphasis supplied)

IThe specific instructions provide, in part, that:

The defendant, or any of them, may not be convicted simply

because they engaged in a conspiracy. The prosecution must show

beyond a reasonable doubt that the predominate purpose of the

conspiracy was to violate Title 18, United States Code, Section

1962(c). ... al

Third: that at least two acts of racketeering activity occurred ...

and that the acts were connected with each other by some common

scheme, plan, or motive. ...

Fourth: that through the proposed commission of two or more

connected acts the defendants would conduct or participate in the

conduct of the enterprise.

L-4

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 Procedure. Appellants urge that

their joint trial improperly allowed the jury to consider evi-

dence 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 prejudicial

effect, persons indicted together may generally 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 deprived 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 considered 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 sever-

ance. See, United States v. Dorsett, 544 F.2d 687 (4th Cir.

1976).

The last joint assignment of error challenges the suffi-

ciency of the evidence underlying the convictions. Pecora

contends that the evidence failed to show that he engaged in

‘The federal grand jury indicted several persons for violating the

RICO statute in connection with the alleged bribery and gambling activi-

ties in Hancock 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

defendant may have had upon the remaining co-defendants.

L-5

a pattern of racketeering activity; i.e., commission 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 federal courts in rejecting thig install-

ment approach to bribery cases. E.g., United States v. And-

erson, 509 F.2d 312 (2d Cir. 1974); United States v. Alaimo,

297 F.2d 604 (3rd Cir. 1961).

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 commerce

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 Unit-

ed States v. Whitehead, No. 78-5160 (4th Cir. Mar. 20, 1980),

and United States v. Altomare, No. 79-5146 (4th Cir. June 17,

1980).°

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 regard-

ing monies seized from unindicted persons; 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 conversation

in which he admitted to bribing local police officers was

irrelevant to the charged offense and was so prejudicial as to

outweigh its probative value. We believe the trial court

5United States v. Altomare was a companion case in which this Court

specifically held that: (1) the office of the prosecuting attorney was an mi

“enterprise” under the statute, and (2) that there was a sufficient nexus

with interstate commerce to come within the purview 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 (5th Cir. 1977) (city police departments were enterprises under

RICO).

L-6

balanced the possible prejudicial effect against the rele-

vancy of the evidence and properly admitted 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-conspirators. He claims the

evidence is irrelevant because some monies were seized

from unindicted persons and because there was no connec-

tion 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 establish-

ments in which gambling had been observed and whose

owners were purportedly members of the conspiracy to

which Karas belonged. The trial judge admitted this evi-

dence 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 unrelated to the alleged con-

spiracy 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.

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 stipula-

tion as to his testimony. Before testifying at his own trial,

L-7

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 pre-

cluded questioning Karas about this prior stipulated testi-

mony. During oral argument to this Court, Karas’ counsel

stated that he sought the preliminary ruling in order, to pre-

vent Karas’ testimony from being used in subsequent crimi-

nal proceedings. Counsel contends that the denial of

immunity in the present proceeding impairs Karas’ right to

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

(1967).

The decision to grant immunity is within the sole discre-

tion 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 permits the defendant to exercise his usual

rights under the Constitution. Every defendant must decide

whether or not to testify. Karas cannot extend his Fifth

Amendment rights, via an earlier grant of immunity as a

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

quent judicial proceedings ad infinitum.

Karas’ reliance on Washington v. Texas is misplaced. In

Washington, a state statute allowed a co-defendant to testify

for the prosecution but not for the defendant. This case does

not deal with the issue of 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

L-8

improper and prejudicial; and (2) that he was prejudiced 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 inadmissable. In his closing argument, defense 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 by giving appropriate instructions during his

charge to the jury, which he later did.®

Pecora argues that the remarks made during rebuttal

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 statements in light of the

four-prong test in Leon, we do not believe that Pecora was

denied his due process right to a fundamentally fair trial.

*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 received 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.

Any evidence as to which an objection was sustained by the

court, and any evidence ordered stricken by the court, must be

entirely disregarded, or considered only for the limited purposes for

which the evidence was admitted.

L-9

Although the remarks of the government attorney are not

condoned by this Court, they clearly do not rise to the level

of egregious misconduct 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

harmless 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 indictment that

he was engaged in business of an unknown nature in addition

to his vending machine company.’ The purpose for request-

ing 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 presented

to the grand jury of Pecora’s gambling activities supported

the allegations in the indictment. In addition, th’. extensive

and painstaking jury selection proceedings ensured that only

jurors who are 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 without merit

and affirm their convictions. The judgment of the district

court is

AFFIRMED.

7The challenged portion of the indictment relating to Pecora read as

follows:

Joseph Nicholas Pecora resided in Hancock County, West Virgi-

nia, was an owner/operator of J & Z Vending, and was engaged in

other business unknown to the Grand Jury.

Defense counsel sought deletion of the above underline portion of the

indictment.

M-l

APPENDIX M

UniTep STATES Court OF APPEALS

For THE FourtH Circuit

No. 79-5320

UNITED STATES OF AMERICA,

Appellee,

versus

Joseph Nicholas Pecora

Appellant.

ORDER

Upon consideration of the appellant’s petition for

rehearing and suggestion for rehearing en banc, and no

judge having requested a poll on the suggestion for rehearing

en banc,

It is ADJ UDGED and ORDERED that the petition for

rehearing is denied.

Entered at the direction of Judge Hall for a panel con-

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

For the Court,

FILED

Jul 28 1980 _ /8/,WituiaM K. Sxate, IT,

U.S. Court of Appeals Clerk

Fourth Circuit

CERTIFICATE OF SERVICE

I, John L. Doherty, Esquire, do hereby certify that a true

and correct copy of the PETITION FOR WRIT OF CER-

TORARI was mailed upon the Solicitor General, Depart-

ment of Justice, Washington, D.C. 20530, this 25th day of

September, 1980, by first class mail postage pre-paid.

eer ene Meee eee eee eee eee eee

John L. Doherty

AFFIDAVIT OF MAILING

The undersigned hereby certifies that the Petition for

Writ of Certiorari to the Superior Court of the United States

filed by Joseph Nicholas Pecora, has been mailed first class,

postage pre-paid, through the United States Postal Service

on Thursday, September 25, 1980.

John L. Doherty

Attorney for Petitioner

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.