Appendix — Cianciulli v. United States

wrreilie VuUTL, U. o,

FILED

80-61]

OCT 15 1980

MICHAEL RODAK, JR., CLERK |

TOs cme

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MATTHEW CIANCIULLI, JR.

and

JOSEPH R. RICCA,

Petitioners

v.

UNITED STATES OF AMERICA,

Respondent

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT

Spencer M. Wertheimer

Helen T. McCaffrey

Andrew Jackson

Counsel for Petitioners

2132 Grant Avenue

Philadelphia, Pennsylvania 19115

(215) 698-8648

(215) 665-9696

804 Land Title Building

Broad and Chestnut Streets

Philadelphia, Pennsylvania 19110

THE LEGAL INTELLIGENCER, 66 WORTH JUNIPER STREET, PHILA, PA. 19107 (215) 561-4050 © B55

TABLE OF CONTENTS TO APPENDIX

ae ere ee rr ee ee

. Judgment Order Trial Court .............

I cg ko so Ske wp we hn ec ee

3. Sur Petition for Rehearing ..............

4. Order of the Court of Appeals Granting Stay of

Mandate Pending Application for Writ of Cer-

PE 5 i ve athe Pan iade s a6 tbh bameakes

. Order of the Court of Appeals Granting Stay of

Mandate Pending Application for Writ of Cer-

a ae ee ee ee ere ee ra, Cee

. Order Extending Time to File Petition for Writ

CF RE. 6 00k) 6 tobe eee eee eee

. Order of the Court of Appeals Granting Stay of

Mandate Pending Application for Writ of Cer-

eer ee ere ere rere ee ree ae

A-90

A-91

A-92

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA Criminal

vi

MATTHEW J. CIANCIULLI, JR. Nos. 79-165-1

JOSEPH R. RICCA -2

ANTHONY FIORENTINO -6

MEMORANDUM OPINION

BECHTLE, J. December 17, 1979

Presently before the Court are the post-trial motions

of defendants Matthew J. Cianciulli, Jr. (“Cianciulli”),

Joseph R. Ricca (“Ricca”) and Anthony Fiorentino

(“Fiorentino”) for judgment of acquittal, arrest of judg-

ment and new trial, pursuant to Fed.R.Crim.P. 29, 33

and 34, After a careful and exhaustive examination of

the relevant statutes, decisional law, the record and ar-

guments of counsel, in their briefs and at oral argument,

the motions were denied by the Court’s Order dated Oc-

tober 23, 1979, and the within Memorandum Opinion is

in support thereof.

The case concerns alleged criminal conduct perpe-

trated by 25 defendants and approximately 15

unindicted actors through a pattern of conspiratorial and

individual activities in falsely registering to become eligi-

ble to vote in federal elections. The evidence adduced at

trial showed a common course of conduct over a three-

year period, beginning in 1975 and occurring in the Ist

ward in the 13th division of the 183rd state legislative

district in the City of Philadelphia. The 49-count crimi-

nal indictment was returned by the grand jury after two

years of investigation, which involved the interviewing

of approximately 120 witnesses by the Federal Bureau of

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A-2

Investigation (“FBI”), the Pennsylvania Crime Commis-

sion, the Philadelphia Voters Commission and the ex-

amination of approximately 30 witnesses before the fed-

eral grand jury. The indictment charged 25 defendants

with conspiracy to encourage false registration, 42

U.S.C. §1973i(c);’ giving false information for the pur-

pose of establishing eligibility to register to vote, 42

U.S.C. §1973i; and, conspiracy to injure citizens in the

exercise of their constitutional rights, 18 U.S.C. §241.?

Fight of the 25 defendants were additionally charged

with aiding and abetting others to falsely register to vote

through the use of false addresses and false periods of

1. 42 U.S.C. §1973i(c) provides:

(c) Whoever knowingly or willfully gives false information

as to his name, address, or period of residence in the voting dis-

trict for the purpose of establishing his eligibility to register or

vote, or conspires with another individual for the purpose of en-

couraging his false registration to vote or illegal voting, or pays

or offers to pay or accepts payment either for registration to vote

or for voting shall be fined not more than $10,000 or impris-

oned not more than five years, or both: Provided, however, That

this provision shall be applicable only to general, special, or pri-

mary elections held solely or in part for the purpose of selecting

or electing any candidate for the office of President, Vice Presi-

dent, presidential elector, Member of the United States Senate,

Member of the United States House of Representatives, Dele-

gate from the District of Columbia, Guam, or the Virgin Is-

lands, or Resident Commissioner of the Commonwealth of

Puerto Rico.

2. 18 U.S.C. §241 provides:

If two or more persons conspire to injure, oppress,

threaten, or intimidate any citizen in the free exercise or enjoy-

ment of any right or privilege secured to him by the Constitu-

tion or laws of the United States, or because of his having so

exercised the same; or

If two or more persons go in disguise on the highway, or on

the premises of another, with intent to prevent or hinder his

free exercise or enjoyment of any right or privilege so secured —

They shall be fined no more than $10,000 or imprisoned

not more than ten years, or both; and if death results, they shall

be subject to imprisonment for any term of years or for life.

A-3

residence in the state legislative district, 18 U.S.C. §2.%

Defendant Cianciulli, who at the time of the indictment

was the Pennsylvania state representative from the

183rd legislative district, was also a resident of the politi-

cal ward involved and had been involved in local politics

there for several years and, according to the Govern-

ment, was the principal beneficiary of the registration

fraud. He was charged with four counts of mail fraud for

allegedly using the mails for transmittal of false mail vot-

ing registration forms, in violation of 18 U.S.C §1341.4

By Memorandum Opinion and Order dated August 30,

1979, this Court ordered sua sponte severance of the

case into three separate trials, pursuant to the Court’s

express and inherent powers under Fed.R.Crim.P. 14

and based upon the interests of due process and judicial

economy. U.S. v. Cianciulli, 476 F.Supp. 845 (E.D.Pa.

3. 18 U.S.C. §2 provides:

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or procures

its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if di-

rectly performed by him or another would be an offense against

the United States, is punishable as a principal.

4. 18 U.S.C. §1341 provides:

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money or prop-

erty by means of false or fraudulent pretenses, representations,

or promises, or to sell, dispose of, loan, exchange, alter, give

away, distribute, supply, or furnish or procure for unlawful use

any counterfeit or spurious coin, obligation, security, or other

article, or anything represented to be or intimated or held out to

be such counterfeit or spurious article, for the purpose of ex-

ecuting such scheme or artifice or attempting so to do, places in

any post office or authorized depository for mail matter, any

matter or thing whatever to be sent or delivered by the Post Of-

fice Department, or takes or receives therefrom, any such mat-

ter or thing, or knowingly causes to be delivered by mail accord-

ing to the direction thereon, or at the place at which it is

directed to be delivered by the person to whom it is addressed,

any such matter or thing, shall be fined not more than $1,000

or imprisoned not more than five years, or both.

A-4

1979). Pursuant to that Order, defendants Cianciulli,

Ricca, Fiorentino, Joseph Asnes (“Asnes”), Vincent

Lombardo (“Lombardo”) and Ramon _ Meirino

(“Meirino”) were tried together in the first trial com-

mencing on September 7, 1979. Two of the 25 defend-

ants pleaded guilty prior to commencement of the first

trial. Prior to the presentation of testimony, two days of

hearings were held on various suppression motions and

one day was spent in selecting the jury of twelve with

four alternates. The trial proceeded for eight days, dur-

ing which the testimony of 64 witnesses was heard and

the introduction of some 140 exhibits was received. Of

the 64 witnesses, the defense presented 24 witnesses.

The defendants did not testify. On September 18, 1979,

as a result of an incident involving a hallway communi-

cation made to an alternate juror by the brother of de-

fendant Fiorentino, the jury was ordered sequestered for

the remainder of the trial. The verdict was returned on

September 24, 1979, after the jury had deliberated for

three days. The jury found five of the six defendants

guilty on a total of 19 counts and acquitted them on the

remaining 26 counts of the indictment. The remaining

17 defendants awaiting trial as a result of severance

pleaded guilty to various counts after the first trial. Post-

trial motions were filed by the defendants who were con-

victed at trial on September 26 and October 1, 1979.

Sentence was imposed on October 4, 24, 25 and Novem-

ber 8 and 9, 1979, and an appeal was filed on October

25, 1979.

5. The jury verdict was as follows: Defendant Cianciulli was

found guilty of one count of conspiracy to encourage false registra-

tion, 42 U.S.C. §1973i(c); nine counts of aiding and abetting, 18

U.S.C. §2; and, one count of conspiracy to injure citizens in the ex-

ercise of their constitutional rights, 18 U.S.C. §241. He was acquit-

ted on nine counts of aiding and abetting and four counts of mail

fraud, 18 U.S.C. §1341. Defendant Ricca was found guilty of one

count of conspiracy to encourage false registration; three counts of

aiding and abetting; and, one count of conspiracy to injure citizens

in the exercise of their constitutional rights. He was acquitted on

A-5

I. Prosecutorial Misstatements

The first and perhaps quintessential issue raised by

the defendants in their post-trial motions concerns the

constitutional propriety of certain direct and indirect

comments made by the Government during the course

of its closing and rebuttal arguments which allegedly

concern the failure of the defendants to testify at trial.

The defendants contend that these remarks violated the

letter as well as the spirit of the prohibition established

in Griffin v. California, 380 U.S. 609 (1965), because

they could have been construed by the jury as a com-

ment on the fact that the defendants invoked their right

not to testify. In Griffin, the United States Supreme

Court held:

[T]he Fifth Amendment, in its direct application to

the Federal Government, and in its bearing on the

States by reason of the Fourteenth Amendment, for-

bids either comment by the prosecution on the

accused’s silence or instructions by the court that

such silence is evidence of guilt.

two counts of aiding and abetting. Defendant Lombardo was found

guilty on one count of giving false information for the purpose of

establishing his eligibility to register to vote, 42 U.S.C. §1973i(c),

and he was acquitted on one count of conspiracy to encourage false

registration and one count of conspiracy to injure citizens in the ex-

ercise of their constitutional rights. Defendant Meirino was found

not guilty on all four counts in which he was charged. Defendant

Fiorentino was found guilty of one count of giving false information

for the purpose of establishing eligibility to register to vote; and he

was acquitted of one count of conspiracy to encourage false registra-

tion, one count of aiding and abetting and one count of conspiracy

to injure citizens in the exercise of their constitutional rights. Fi-

nally, defendant Asnes was found guilty of one count of giving false

information for the purpose of establishing eligibility to register to

vote, and he was acquitted on one count of conspiracy to encourage

false registration and one count of conspiracy to injure citizens in

the exercise of their constitutional rights.

ae

A-6

380 U.S. at 615.

The basic test to determine whether a violation of

due process has occurred was recently articulated by the

Court of Appeals for the Third Circuit in U.S. v. Waller,

No. 79-1211 (3d Cir., filed October 5, 1979) (per

curiam). The Waller court held:

The test for determining whether a remark

constitutes an improper comment on an accused's

failure to take the stand in his own behalf is

“whether the language used was manifestly in-

tended or was of such character that the jury would

naturally and necessarily take it to be a comment on

the failure of the accused to testify.” United States

v. Chaney, 446 F.2d 571, 576 (3d Cir. ), cert. denied,

404 U.S. 1038 (1977).

Slip op at 3. See also Slakoffv. U.S., 8 F.2d 9, 11 (3d Cir.

1925); U.S. v. Gatto, 299 F.Supp. 697, 703 (E.D.Pa.

1969).

In order to assess whether “[a] jury would naturally

and necessarily take [the prosecutor’s remarks] to be a

comment on the failure of [an] accused to testify,” it is

necessary for the reviewing court to step into the shoes

of the jury to evaluate what was heard, seen and per-

ceived by it within the context of the totality of the trial.

Stated in the converse, the reviewing court must be

careful to avoid using an approach that isolates words,

sentences and phrases out of the context of the trial in

an attempt to determine their meaning and impact on

the minds of the jurors who were part of the trial that

included the very comments in question. A detached,

“reasonable person” approach cannot comport with the

pronouncements set forth in Griffin. The Court is also

compelled to determine whether the comments of the

prosecutor were made in response to an earlier defense

challenge, invitation or strategy, or in response to testi-

mony presented at trial to the jury. The two pivotal ques-

tions under the test are: (1) What was intended by the

A-7

comments?”; and (2), despite the prosecutor’s intent in

his remarks, “What would the jury — in the context of

the total trial — ‘naturally and necessarily’ draw from

the challenged words?” The authorities teach us that

what is or is not prejudicial varies from case to case and

that there are no fixed rules available that prohibit the

use of certain words or phrases. See U.S. v. Armedo-

Sarmiento, 545 F.2d 785, 793 (2d Cir. 1976); U.S. v.

Handman, 447 F.2d 853, 856 (7th Cir. 1971);

Rodriguez-Sandoval v. U.S., 409 F.2d 529, 531 (1st Cir.

1969); U.S. v. Venable, 443 F.Supp. 178, 182 (E.D.Pa.

1977); U.S. v. Gatto, supra, 299 F.Supp. at 703.

A. Language Concerning “Stonewalling”

In their post-trial motions, the defendants have ob-

jected to two particular sets of remarks that the Govern-

ment made during the course of its closing and rebuttal

arguments. First, the defendants contend that the fol-

lowing remarks, made during the course of the Govern-

ment’s rebuttal argument, violated the rule established

in Griffin v. California:

Another question that was asked by a number

of defense attorneys that merits a response is, “Well,

why were these Government witnesses here immu-

nized when some of these defendants are on trial?”

Well, very simple: It is because eventually and

perhaps reluctantly before the grand jury these in-

dividual voters did finally tell the truth and they did

agree to testify who was really behind their false

registration.

That’s not the case with the defendants in this

courtroom. Their stonewalling has persisted

throughout this trial.

Mr. Lombardo said to the FBI that, “When my

handwritten form was filled out, my mail-in regis-

tration form, Mr. Cianciulli wasn’t even there.”

A-8 im

That’s what he said to Agent Lovelace. And that’s

just not true. He didn’t come clean.

The same thing with Mr. Asnes. He said once

to the Crime Commission, he said he lived there;

another story to the FBI; he refused to come clean

and say the circumstances surrounding his registra-

tion.

The same with Mr. Fiorentino: He registered at

an address he didn’t live, refused to offer any expla-

nation as to why he did that.

The same with Mr. Meirino: He gave a state-

ment he didn’t even know Ted Barone. He gave a

statement that he, in fact, lived at that address, re-

fused to come clean.

That’s the difference between these defendants

and the Government witnesses. They were given

immunity because, they were able to get to the cir-

cumstances behind the crime, who was responsible

for the systematic pattern of false registrations.

N.T. 8-13 to 15.

Let us consider the test articulated by the Third Cir-

cuit Court of Appeals in U.S. v. Waller, supra, that is al-

ternative in nature. First, would the natural and neces-

sary effect of the remarks be to comment on the

defendants’ failure to testify? Or, second, were the com-

ments made intentionally?

(1) Natural and Necessary Effect

Various factors have been considered by the courts

to determine whether the natural and necessary effect of

a prosecutorial remark was to comment on the failure of

a defendant to testify. At the outset, a violation of the

Griffin prohibition is often found in those situations

where the defendants are the only witnesses available

who could provide exculpatory evidence that would ne-

gate or rebut the Government’s evidence. See U.S. v.

Smith, 421 F.2d 1229, 1230 (3d Cir. 1970); U.S. v.

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Giuliano, 383 F.2d 30, 35 (3d Cir. 1967); Linden v. U.S.,

296 F. 104, 106 (3d Cir. 1924); U.S. v. Gatto, supra, 299

F.Supp. at 703.

Cases where the defendant is the sole available wit-

ness usually arise where the only persons present at the

scene of the crime are the defendant and the victim or a

Government agent. In these situations, if the Govern-

ment agent testifies, for example, that an illegal sale of

drugs had taken place between the agent and the de-

fendant, then the only possible witness who could refute

that evidence would be the defendant himself. A

prosecutorial comment to the jury, therefore, suggesting

that the jury should have heard more testimony can only

cause the jury to naturally look to the only other evi-

dence there is — the defendant — and, hence, this could

be a prohibited comment on the defendant’s failure to

testify. In cases where other witnesses or exhibits are

available, or have been presented by the defense, a com-

ment by the prosecutor concerning the defense’s evi-

dence would not naturally and necessarily be considered

to be a comment on the failure of the defendants to

testify, because the remark could have been directed to

the other evidence which was or could have been pre-

sented.

A classic example of the application of the “sole wit-

ness” theoiy is found in Linden v. U.S., supra, which is

much relied upon by the defendants. In Linden, the only

persons present during an illegal sale of liquor were the

three defendants and two United States Customs offi-

cers, who later testified for the Government. The only

persons who could have testified to refute the Govern-

ment’s evidence were the defendants themselves. It is

easy to see that the only conclusion that could have been

drawn from the following remarks by the trial judge was

that the comments referred to the defendants’ failure to

testify:

Now as to that count there is very little to be said. If

you believe the evidence, and there is no contradic-

A-10

tion of it at all, these three men were caught ina

boat on the Shrewbury River, in what is called the

Cove between the Highlands and Sandy Hook, with

a lot of intoxicating liquor on board. You heard the

testimony with reference to that. Now, there is not

any evidence at all in explanation of that transac-

tion, and there you have the bare facts. | don’t un-

derstand that counsel for the defendant makes any

serious contention in that regard.

296 F. at 105-106 (emphasis in original).

In contrast to the Linden decision is the case of U.S.

v. Smith, supra, where our very own Third Circuit Court

of Appeals reviewed a case involving a defendant who

had allegedly given an alias name to the FBI. The de-

fense strategy, presented only through cross-examina-

tion of Government witnesses, was that the name was

not used as an alias but was the defendant’s professional

stage name. Although the prosecutor remarked during

his closing statement that, “if a man has something to

say in his defense, he should say it,” the Smith court

held that no violation of Griffin resulted. The court held:

Defendant could have called third party witnesses

to establish his innocent use of a professional name.

In such, a situation the quoted response does not

fall within Griffin v. California, supra. United States

v. Giuliano, 383 F.2d 30 (3d Cir. 1967); United

States v. Heithaus, 377 F.2d 484 (3d Cir. 1967).

421 F.2d at 1230. See also U.S. v. Bartemio, 547 F.2d

341, 346 (7th Cir. 1974) (“Likewise, we find that the

government’s reference to certain evidence as being

‘uncontradicted and uncontested’ could not have natu-

rally and necessarily been taken by the jury as a com-

ment upon Appellant Brennan’s right not to testify . . .

Brennan was not the only person who could have chal-

lenged or contradicted such evidence. Indeed any of the

other participants could have rebutted such evidence.”);

U.S. v. Giuliano, supra, 383 F.2d at 35 (unlike Linden,

A-11

in his remark, the district attorney was pointing to his

own evidence and not to the defendant; in addition,

other potential witnesses were available),

A similar situation occurred in the case of U.S. v.

Gatto, supra, 299 F.Supp. 697 (E.D.Pa. 1969), where it

was alleged that certain prosecutorial remarks were vio-

lative of Griffin. The court held that:

[aljlthough the defendants in this case could have

testified on the subject of whether a legitimate sid-

ing business was being conducted, witnesses other

than the defendants also could have so testified:

employes, customers, suppliers, creditors, etc. In-

deed, the proof could have rested on the proffer of

certain documentary evidence: account books, sales

receipts, insurance policies, etc. It was not to call at-

tention to the defendants’ failure to testify, then, but

to their failure to offer proof that this comment was

directed... .

299 F.Supp. at 703.

In the instant case, contrary to the assertions of de-

fense counsel at oral argument, other witnesses were

not only available but many actually testified in a de-

fense attempt to exculpate every one of the convicted de-

fendants. Therefore, in contrast to the “sole witness” set-

ting of Linden, the Griffin prohibition does not apply to

the challenged comments he is

The following items from the record clearly indicate

that this is not a sole witness case: First, as to all of the

defendants, many witnesses were called by the Govern-

ment who admitted under direct and cross-examination

that, although the address they had supplied to register

to vote was false, they believed that w’iat they had done

was not “illegal.”° This testimony went directly to the

6. For example, the following immunized Government wit-

nesses testified as to the issue of intent to falsely register: Charles

Lynch, N.T. I-242 (did not think he violated any criminal laws at

the time); George Daly, N.T. 2-54, 55, 61 (“To me it was like ille-

A-12

major defense offered by the defendants — namely, that

the acts which they committed were not done “know-

ingly or willfully,” as required for a violation of 42 U.S.C.

§1973i(c) and 18 U.S.C. §§241, 2 and 1341. They ar-

gued instead that the acts were done out of inadvertence

or mistake.’ More precisely, counsel for defendant

NOTE 6 — (Continued )

gally parking a car, getting a traffic ticket or something. I felt as

though I wasn’t doing anything deeply wrong. . . I didn’t believe |

was doing anything criminal. .. .”) Steve Manion, N.T. 2-73 (did not

think at time that he was violating any criminal laws); Joan

Donaldson, N.T. 2-112, 113 (never thought that it was a criminal

violation); Kenneth Donaldson, N.T. 3-50 (in his mind thought “ab-

solutely not” committing a crime); Carmen Pungitore, N.T. 4-59, 60

(“I didn’t think anything was wrong with it, because I was only vot-

ing one time.”); Angelo Sannutti, N.T. 4-75 to 77 (“I didn’t think

nothing was wrong as long as you vote once... I just used an ad-

dress I didn’t live at.”); Richard DeAngelis, N.T. 4-84, 85 (did not

think anything wrong when registered to vote); Nicholas Pisano,

N.T. 4-107 to 109 (“Not a crime, definitely not... I didn’t think I

was doing anything illegal. Morally wrong, but illegal I didn’t real-

ize.”); Walter Middleton, N.T. 4-133, 134 (did not know it was a

crime, “. . . I was in the same district, | thought, and I was doing

someone a favor, you know.”’); Elaine Middleton, N.T. 4-166, 166A

(saw nothing illegal about her acts); and, Anthony Pisano, N.T. 4-

198, 199 (‘And I was not quite sure it was illegal or — I knew it was

not right. I cannot say I knew definitely that it was illegal to register.

I thought if I didn’t vote, it didn’t matter, It was just — it is some-

thing that nullifies itself.”’).

7. Illustrative of this position were the statements of

Cianciulli’s defense attorney in his closing remarks to the jury when

he stated:

But if the activities of these people in allegedly conspiring

together in filling out the registration forms was done out of ac-

cident, mistake, or other innocent reason, it’s not a crime. It

doesn't mean it is correct but it is not a crime.

There's a difference between filling a form out wrong and

violating the law. If you apply for a driver's license, maybe you

have a girl friend who wants a driver's license sent to her house

because you're there occasionally, you live somewhere else, so

you put down her address on the form. Harrisburg calls you up

and says, “By the way, sir, is that your residence? Do you live

there most of the time; All the time?”

A-13

Cianciulli argued in his closing argument to the jury

that, as to those particular Government witnesses:

... many of [these] witnesses called by the Govern-

ment I would have called as witnesses if they hadn't

testified because their testimony was favorable to

Mr. Cianciulli. They continued to show one after

another a lack of criminal intention, a lack of being

forced to vote for somebody.

N.T. 8-120.

Therefore, as defense counsel stated,® the testi-

mony given by these immunized governnment wit-

nesses as part of the defense strategy would have been

presented by the defense if it had not been presented by

the Government — presumably to negate the criminal

intent not of the witnesses, but of the defendants them-

selves. The jury did not agree with this argument, as the

verdict demonstrates, but no counsel knew that when

the summations were made. The defendants were,

You say,“No.”

“Well, you can’t do that. We'll send you another form.”

What you have done is improper, but it is not a crime. you

didn’t have the intention to violate the law. What you did was

out of innocent reason, accident, or mistake.

* + +

There must be proof beyond a reasonable doubt, clear and con-

vincing evidence, that the defendants, or Mr. Cianciulli specifi-

cally, that the defendant Cianciulli intentionally did an act

which he knew the law forbids. That's specific intent. In other

words, he knew it was the law and just knocked it over and

said, “I’m doing it anyway.” Where is the evidence of that?

N.T. 8-115, 116.

8. It should also be noted that counsel for defendant Asnes

made extensive use of the testimony of these same Government im-

munized witnesses in his closing argument in order to attempt to

exculpate his client on the question of criminal intent (see N.T. 7-50

to 52); the theory clearly being that the jury should consider Asnes'

intent to be no more serious than those who testified as to similar

conduct.

A-14

therefore, not the sole witnesses available to present

their major defense as to the issue of intent.

Second, the §1973i(c) claim that the defendants,

excluding defendants Cianciulli and Ricca, registered

from an address at which they did not live involved a le-

gal issue that ultimately turned upon the construction of

Pennsylvania statutory and decisional law on residency

for purposes of registering to vote. The issue, under state

law, was whether the defendants were in fact legally re-

siding at the addresses from which they had registered

in 1975 and 1976. A critical element of the federal crimi-

nal statute requires that the person register from an ad-

dress at which (s)he* does not live, as required by the

applicable state election law. The Government sought to

show that the false registrants had never lived in, and in

many cases had never set foot in, the residences listed

on the registration forms. The Government did this

through the use of the testimony of a real estate sales-

man, owners, tenants and neighbors who actually re-

sided at the very same addresses from which these de-

fendants had registered. This, too, then was clearly

perceived by the jury as proof that the defendants were

not the only witnesses available to prove that they, in

fact, had or had not lived at those addresses which were

contended by the Government to be false.

Specifically, as to defendant Ricca, during the two-

year investigation preceding this indictment, he stated

to the FBI and to the federal grand jury that he had in

fact lived at 1427 South 6th Street and, therefore, his

registration to vote from that address was valid under

Pennsylvania election law.° At trial, defendant Ricca at-

* Please note, in any instance where either “he” or “she” could

be used without changing the meaning or sense of the thought be-

ing expressed, the symbol ‘“(s)he” will be used.

9. Although defendant Ricca was not specifically charged with

registering from an address at which he did not reside under

§1973i, evidence of this act was presented to establish an overt act

for purposes of the charge against Ricca of conspiracy to encourage

false registration under §1973i.

A-15

tempted to further reinforce these pre-indictment state-

ments through the testimony of several witnesses. An-

thony Lucidino was called as a defense character

witness and testified that Ricca had lived at the 1427

South 6th Street address in the same apartment as de-

fendant Cianciulli. Confronted with evidence that there

was only one bedroom in the apartment, Lucidino testi-

fied that Ricca had slept in the living room.!° Addition-

ally, defense character witness Dr. Leopold Salkind tes-

tified that he had treated Ricca for influenza at the 1427

South 6th Street address.'! Finally, a Government wit-

ness, Salvatore Cannistraci, who lives at 1427 South 6th

Street, stated that he had seen Ricca at that address a

few times but was unclear as to whether Ricca actually

lived at that address.'* The combined testimony of these

three defense witnesses could be viewed as having an

exculpatory effect or as having the effect of corroborat-

ing Ricca’s prior statements to the FBI and federal grand

jury that he had in fact lived at that address at the time

he registered to vote. The evidence was offered to prove

that he was not guilty of the overt act necessary to sus-

tain the charge of conspiracy to encourage false registra-

tion to vote. Plainly, defendant Ricca was not the sole

witness available to prove that critical fact. Indeed,

Ricca’s defense counsel in her closing remarks stressed

the testimony of Lucidino and others in an attempt to es-

tablish that Ricca did live at that address.'!* Further-

10, Testimony of September 20, 1979, on cross-examination

by the Government, as indicated in the Court’s bench notes and in

the Court Reporter's official notes.

11. Id., on direct examination.

12. N.T. 1-165, 166, 177, 178, 180.

13. The Court is careful to note that, because other witnesses

were available to testify for the defense, but were not presented,

does not mean nor was the jury instructed that the defendants had

the burden of presenting any witnesses or any evidence at all. It was

instructed quite the contrary, N.T. 8-92 to 94, Under Griffin, which

is not a burden-of-proof case but a prosecutorial comment case, it is

necessary for the Court to examine whether the defendants were

A-16

more, in the context of this “sole witness” discussion, it

is reasonable to assume that, if Ricca had in fact lived at

the 1427 South 6th Street address, there would have

been other available witnesses to substantiate this fac-

tual assertion (e.g., other neighbors, friends and/or em-

ployees). Others did testify.

As to defendant Fiorentino, the Government pre-

sented the owner of the house containing the apartment

from which defendant Fiorentino and his wife had regis-

tered. This owner testified that neither Fiorentino nor

his wife had ever lived at that address.'* Again, the

Court believes that the jury could naturally conclude

that persons other than the defendant could testify that

Fiorentino had in fact lived at that address (e.g., his wife,

friends, relatives and/or neighbors). Therefore, in the

case of defendant Fiorentino under the §1973i count for

false registration, he was not the only witness who could

have countered the Government’s evidence concerning

false registration and residence.

Another specific example may be derived from the

aiding and abetting counts against defendant Ricca, be-

cause there were other witnesses besides defendant

Ricca himself who could have favorably testified for him

on those counts. Ricca’s defense attorney, in her closing

speech to the jury, attempted to persuade the jury that

Ricca had not aided and abetted the individuals named

in the indictment, by reviewing in great detail the testi-

mony of those persons named as being aided and abetted

by Ricca and who had testified for the Government as

NOTE 13 — (Continued)

the sole witnesses available to exculpate themselves or whether

other witnesses were available, so that a questionable comment by

the prosecutor would naturally and necessarily not be taken to be a

comment on the defendants’ failure to testify. See U.S. v. Lipton,

467 F.2d 1161, 1168 (2d Cir. 1972); U.S. v. Smith, 421 F.2d 1229,

1230 (3d Cir. 1970); U.S. v. Giuliano, 383 F.2d 30, 35 (3d Cir.

1967); U.S. Gatto, 299 F.Supp. 697, 703 (E.D.Pa. 1969).

14. N.T. 4-91 (testimony of A. J. Fanelli).

A-17

immunized witnesses. Ricca’s attorney contended that

Ricca had not asked any of those persons to falsely regis-

ter because each witness had testified under oath that

he had not. [N.T. 7-67, 68, 71.] She also contended that

Ricca had not accompanied any of them to defendant

Cianciulli’s grocery store, where they had actually

falsely registered [N.T. 7-67 to 68], or to official registra-

tion centers to register falsely. [N.T. 7-71.] Therefore,

there were other witnesses besides defendant Ricca who

were available to testify to exculpate him. In fact, the

jury acquitted Ricca on two counts of aiding and

abetting two persons who had testified at trial. Ricca was

charged with aiding and abetting Raphael Norcisa

(“Norcisa”), who did not testify at trial. Again, from the

viewpoint of the sole-witness approach, the defense

could have presented Norcisa as a witness to attempt to

show that Ricca was not guilty of aiding and abetting on

that particular count. See comments by counsel for both

sides on Norcisa.'°

These representative examples cleariy show that

this case is not comparable to the cases where the de-

fendants were the only persons available to testify in re-

buttal to the Government’s evidence. The plain fact is

that this case is not within the Griffin prohibition from

the sole-witness vantage point, because the jury cannot

be said to have naturally and necessarily taken the Gov-

ernment’s rebuttal remarks to be a comment on the fail-

ure of the defendants to testify because many other wit-

nesses were called or could have been called to support

the defendant’s contentions in rebutting the Govern-

ment’s case.

15. N.T. 7-73,74; 8-25. Contrary to the additional contention

in defendant Ricca’s post-trial motions, these remarks by the Gov-

ernment concerning the failure of the defense to produce Norcisa

were not improper. See note 13, supra. Further, the Court did, con-

trary to the defendant's claim, give an instruction concerning the

burden of proof and production of witnesses by the defense in its

charge to the jury; therefore, a separate charge in regard to Count

36 was not necessary. |N.T. 8-92 to 95, 99. |

A-18

It is appropriate at this juncture for the Court to

note that, while the Griffin prohibition commonly arises

in the consideration of those situations where the de-

fendant is the sole witness available, there can be situa-

tions where, even if other witnesses are available, a

questionable comment is so strong and so direct that it

can only be understood to be a comment on the failure of

the defendant to testify. For example, in Berryman v.

Colbert, 538 F.2d 1247 (6th Cir. 1976), the prosecutor

made the following remark during his closing speech:

Now, finally, to establish the robbery murder,

the felony murder, we are relying almost entirely

upon circumstantial evidence. Nobody was there

when the robbery took place. Nobody that we can

bring here to testify. The defendants here, yes, but

we can’t get them to testify.

538 F.2d at 1249 (emphasis in original). No other mean-

ing could be attributed to that remark other than that it

was a Clear, direct and gratuitous reference to the de-

fendants’ failure to take the stand and the prosecutor’s

inability to do anything about it, thus placing the solu-

tion to the evidentiary vacuum squarely on the defend-

ants’ shoulders. Such a statement, by its own terms, can

have only the meaning barred by Griffin. See also

Eberhardt v. Bordenkircher, 26 Crim.L.Rept. 2036 (6th

Cir., filed Sept. 10, 1979) (the prosecutor’s closing argu-

ment, as recapitulated by the court: “After criticizing the

inadequacy of the defense witnesses, . . . reminded the

jury indirectly but emphatically that the defendant had

not taken the stand in his own defense. With this final

argument, the prosecutor gestured toward the defend-

ant.”); Rachel v. Bordenkircher, 590 F.2d 200, 202 (6th

Cir. 1978) (prosecutor remarked, “We will never know,

these men won't tell us. The only other man who could

tell us is dead and in his grave... .”); U.S. v. Smith, 500

F.2d 293, 295 (6th Cir. 1974) (prosecutor commented in

his closing speech, “. . . I would ask that tlie defendants

A-19

satisfy you that there is no other reasonable explanation.

If they have some reasonable alternatives to suggest as

to what the calls mean, then I leave with you now, you

then require them to show that to you.”). These cases

have no application here.

The language used in the Government’s final argu-

ment in the case before us is, at the very worst, ambigu-

ous if considered with a perception of all of the evidence

heard by the jury and when viewed, as it must be, as a

reasonable, accurate and permissible reply to defense

counsel’s challenge to the Government in their closing

arguments that preceded the comments in question.

Secondly, and quite aside from measuring the natural

and necessary effect of a comment in a “sole witness”

case or a direct-challenge case, courts have sought to

make the measurement by consistently holding that any

questionable remark by the prosecution, even if ambigu-

ous, must be examined in the full panorama of state-

ments made .prior to the questionable remark and the

evidence presented at the trial in order to accurately as-

sess whether the natural and necessary effect of the

comment was to demean the defendants’ failure to test-

ify at the trial, thereby causing the prejudice of Griffin.

See U.S. v. Dansker, 537 F.2d 40, 63 (3d Cir. 1976) (“We

think it clear that the prosecutor was merely highlight-

ing the failure of defense counsel, in their summations,

to challenge critical evidence against their clients .. .

[defense counsel made no] effort to explain away this

conversation in their closing arguments. . . the prosecu-

tor was well within the bounds of legitimate advocacy.”’);

U.S. v. Armedo-Sarmiento, 545 F.2d 785, 793 (2d Cir.

1976) (the Government stressed credibility and lack of

contradiction of own witnesses where contradictory tes-

timony was available from defense witness); U.S. v.

Somers, 496 F.2d 723, 741 (3d Cir. 1974) (“It is well set-

tled that a prosecutorial misstatement made in response

to, and in rebuttal of, an improper inference suggested

by defense counsel will not result in reversible error.’’);

A-20

U.S. v. Bartemio, 547 F.2d 341, 346 (7th Cir. 1974) (re-

mark dealt with evidence in record and credibility of wit-

nesses); U.S. v. Gimelstob, 475 F.2d 157, 163 (3d Cir.

1973) (response by prosecution was directed to failure of

detense counsel to cross-examine a Government witness

and to attack by defense on credibility of Government

witness); U.S. v. Giuliano, 383 F.2d 30, 34 (3d Cir.

- 1967) (general comment on Government’s affirmative

case is permitted); U.S. v. Heithaus, 377 F.2d 484, 486

(3d Cir. 1967) (defendants deliberately opened the door

by attacking credibility of Government witnesses, there-

fore, justifying the response by the prosecution in an at-

tempt to rebut the attack upon its evidence — fair rejoin-

der); U.S. v. Gatto, 299 F.Supp. 697, 703 (E.D.Pa. 1969)

(comment on failure of defendants to offer proof is

permitted).

In the present case, the Government contends that

the remarks in question were made in response to the

attack on the credibility of prosecution witnesses and to

the argument of various defense counsel to the jury that

the conduct of the Government witnesses was identical

to the defendants’ conduct and that no justification ex-

isted for the prosecution of the defendants while the

Government witnesses were granted immunity.

Throughout their closing arguments, three different de-

fense attorneys emphatically and unmistakably chal-

lenged the prosecutor to articulate in his final argument,

which they knew was about to be presented to the jury

by the prosecutor, the difference in the behavior of the

defendants on trial and that of the many witnesses called

by the Government who had been false-but-immunized

registrants. For example:

Ladies and gentlemen, those who cooperated

were immunized. Those who changed their testi-

mony were immunized. You saw on the stand your

very selves a person made an original statement and

for all intents and purposes those statements were

honest. The next thing you know, the FBI is in and

A-21

they didn’t like that statement; they switch the

statement and the next time they testified at the

Grand Jury, the statement changed again. They

came into court, the statement changed again un-

der cross-examination, the tool of the defense.

Ladies and gentlemen, this case has been ma-

nipulated and conglomerated. People changed their

testimony because they didn’t want to be pros-

ecuted. They weren’t criminals. “How could I be a

criminal; I didn’t do anything wrong.”

Every witness came in here and said that to

you: “I didn’t know I was doing anything wrong.”

Yet they came in and they got immunity. It doesn’t

make sense. It doesn’t make sense and there is only

one way to stop this and I started to suggest it and I

got excited, but there is only one way to stop it, and

that’s a not guilty, ladies and gentlemen.

Let the Government know that, to use their

money for things of importance. But to pick some

people out is wrong. You heard it. Think about that

testimony. Think about how all those witness came

on here and changed it all around: The first time,

the Pennsylvania Crime Commission was one

thing. The next thing, it is the FBI; another thing.

N.T. 7-43, 44 (closing statements of counsel for defend-

ant Lombardo).

Now, |the prosecuter] made seven suggestions as to

what the circumstances may be to lead you to be-

lieve and to conclude that these defendants acted

criminally.

I would like to for a moment submit to you la-

dies and gentlemen that if indeed the defendants’

behavior is criminal, then the behavior of all the

Government witnesses was equally criminal.

Now, that being true — and you have heard

testimony from perhaps 10 or 15 witnesses for the

Government who were virtually in the same legal

A-22

position as these defendants — you all remember

that, I assume. Now, you have got approximately 20

or 25 people who are in this alleged state of criminal

mentality.

N.T. 7-49, 50 (closing statement of counsel for defend-

ant Asnes).

When the witnesses, the Pisanos, husband and

wife, agree, “We did it,” no problem; the Govern-

ment let’s them go.

The Middletons, “I voted twice, once here and

once in New Jersey,” same election, registered

twice, no problem, let them go.

The Donaldsons, same thing, no problem, let

them go.

But Anthony Fiorentino, the construction

worker, the ironworker, “Get him. He must be

guilty. He lives in South Philadelphia. Let’s get

him.”

This is horror. This is horror. Jack Meyerson,

the United States Attorney, the Special Prosecutor

for this, said “He lied.” Wasn’t that his action, “An-

thony Fiorentino lied?”

He lied? You have heard what Anthony has

said, what has been said.

To quote the scripture to you, “He who is with-

out sin, cast the first stone.”

N.T. 7-58 (closing statement of counsel for defendant

Fiorentino).

The Court, having been in the presence of the

jury during the entire trial and having seen, heard

and perceived all of the evidence, finds that, first,

the remark was intended to be and was a fair re-

sponse to an attack by the defense on the credibility

of nearly all of the Government’s witnesses. The de-

fense had posed to the jury the question as to why

these witnesses changed their testimony from prior

A-23

pre-indictment statements to the FBI, the grand

jury and other authorities after being immunized.

The Government, being invited to respond, was en-

titled to respond and did so by stating that, unlike

the defendants in this case, the immunized wit-

nesses decided, perhaps relunctantly, to “come

clean” and admit that they had lied during the two-

year inquiry by the various federal, state anc local

investigating authorities about their registering to

vote. The thread of this pre-indictment pattern of ly-

ing to the investigating agencies leads directly to

the second response included in the Government’s

rebuttal comments regarding the challenge raised

with the jury by the defense as to why these defend-

ants were on trial while various Government wit-

nesses who had committed identical acts with a

similar state of mind were granted immunity. The

Government attempted to answer this defense

thrust in its rebuttal by acknowledging that the wit-

nesses who were immunized had some similarities

and some dissimilarities with the defendants on

trial. It was pointed out that both had previously

lied, said nothing or “stonewalled” prior to indict-

ment and that the trial evidence proved it. The refer-

ence was to the giving of false information to regis-

ter to vote, in interviews by either the FBI, the

Pennsylvania Crime Commission, Philadelphia Vot-

ers Commission or in questioning before the federal

grand jury. The evidence, the Government argued,

clearly reflected the failure to tell the “whole truth”

and the various inconsistencies between the de-

fendants’ prior pre-indictment statements and the

evidence as presented through the testimony of wit-

nesses at trial.'© However, unlike the defendants,

16. The following exemplify inconsistencies or failures to tell

the “whole truth” between the defendants’ pre-indictment state-

ments to the various authorities and the evidence as revealed at

trial, to which the Government was referring: (1) Defendant

A-24

the Government’s immunized witnesses, in effect,

had “come clean” and eventually told the truth “be-

fore the grand jury” as the Government stated.

[N.T. 8-14.] They admitted making prior false state-

ments or omissions of truth to the various authori-

NOTE 16 — (Continued)

Cianciulli told the Philadelphia Voters Commission that the

Donaldsons and John Lombardo lived at 1427 South 6th Street

[N.T. 2-133] but, when he talked to the Pennsylvania Crime Com-

mission at a later date, he said he was not familiar with those per-

sons [N.T. 2-145, 147, 149]. He also told the Pennslyvania Crime

Commission that George Daly lived at that address but, at the trial,

Daly testified that he had never lived at that address [N.T. 2-43, 45

— Daly said Cianciulli gave him an address from which to register

and that he had never lived at the address]. Further, Salvatore

Cannastraci, a resident of 1427 South 6th Street, testified that the

Donaldsons, Lombardo and Daly never lived at that address [N.T. 1-

162 to 165]. Defendant Cianciulli also told the Philadelphia Voters

Commission that Joan Donaldson lived at the 1427 South 6th Street

address [N.T. 2-133] but later to the Pennsylvania Crime Commis-

sion that he was not familiar with Joan Donaldson [N.T. 2-145, 147,

149]. At the trial, Joan Donaldson testified that she had never lived

at the above address but that Cianciulli had helped her to register to

vote and told her to use the above false address as her address on the

voter registration form [N.T. 2-107, 110, 111]; (2) Defendant Ricca

told the FBI that he lived at the 1427 South 6th Street address at the

time he registered to vote on a “couple” of occasions but never in-

tended to move from his other permanent address and that he regis-

tered to help Cianciulli [N.T. 5-31, 32]. At trial, his counsel took the

position that he lived at that address for purposes of establishing his

eligibility to vote [N.T. 7-63 to 66]: As will be discussed later, under

Pennsylvania law, in order to establish a voting residence a person

must intend to make that address his or her permanent address and

abandon the prior address. Ricca also told the FBI that he had not

suggested to William Romanini (“Romanini’’) that he register for

Cianciulli using a false address [N.T. 5-34, 35]. At trial, Romanini

testified that Ricca had asked him to register for Cianciulli and that

Ricca gave him his voter registration card, after being mailed to

Ricca’s address, even though Romanini told Ricca that he thought

what he was doing was illegal [N.T. 1-188, 190, 218]; (3) Defendant

Lombardo told the FBI that Cianciulli had not filled out his voter

registration form but some girl had and that Cianciulli was not even

present at the time it was filled out [N.T. 3-91]. At trial, an FBI

handwriting expert testified that Lombardo had signed his registra-

A-25

ties.'’ The fair and reasonable meaning that can be

attributed to the Government’s comment concern-

tion form, but that Cianciulli had filled out the form based on a com-

parison of handwriting exemplars [N.T. 6-120, 127, 131 to 133

(Hallet)]; (4) Defendant Fiorentino told the federal grand jury that

he had never lived at the address from which he had registered

[N.T. 4-217], but there was evidence at the trial that he had made a

prior statement to the Pennsylvania Crime Commission that he had

in fact lived at the address from which he had registered to vote

[N.T. 4-266]. At trial, the gwner of the house from which Fiorentino

had registered testified that Fiorentino had never lived at that ad-

dress [N.T. 4-91 (A. J. Fannelli)]. Also, an FBI handwriting expert

testified that Fiorentino had signed his own registration form [N.T.

6-134]; and (5) Defendant Asnes, when interviewed by the Pennsy]-

vania Crime Commission, told them that he had lived at 1429 South

6th Street for one year before the interview on June 23, 1977, but

later, in the same interview, told them that he lived there the past

three months [N.T. 4-257, 259]. Later, when he talked to the FBI,

he said that he never lived at that address and admitted to the FBI

that he had previously lied to the Pennslyvania Crime Commission

[N.T. 5-37, 41, 74, 75]. At the trial, the owner of the above address

said he was not sure if Asnes had ever lived at that address, al-

though the owner had previously told a federal grand jury that

Asnes had never lived at that address [N.T. 6-74 (J. Berti)]. Also at

trial, an FBI handwriting expert testified that in his opinion Asnes

had signed his voter registration form that contained the 1429

South 6th Street address as his place of residence |N.T. 6-124, 125,

131).

17. For example, see the trial testimony of the following Gov-

ernment immunized witness Charles Lynch [N.T. 1-232, 234] —

admitted that he had never lived at the address from which he had

registered to vote and that he also lied as to his period of residence at

that address; William Romanini [N.T. 1-198, 229, 230] — admitted

that he lied to the Pennsylvania Crime Commission and the federal

grand jury and that he had never lived at the address from which he

had registered; George Daly [N.T. 2-38, 49 to 51, 56 to 58] — stated

that he had lied to the Pennsylvania Crime Commission and the FBI

but said he told the truth to the federal grand jury at a later date —

also stated that he never lived at address from which he registered:

Kenneth Donaldson [N.T. 3-28, 40] — lied when registering about

address and period of residence; Charles Wadsworth [N.T. 3-105]

— admitted he gave false address to register; Theodore Barone

[N.T. 3-196, 206] — stated he gave false address to register to vote;

Carmen Pungitore [N.T. 4-57, 59, 60] — admitted he never lived at

A-26

ing “coming clean” is that, unlike the immunized

wrongdoers who repented pre-indictment, the de-

fendants had not “come clean” during the pre-in-

dictment inquiry, either before the grand jury or in

interviews with the various authorities. These

inconsistencies and failure to tell the “whole truth”

were shown at trial by the evidence.

The Court finds that this was a fair, responsive

and invited argument by the Government offered to

meet its burden of proof and give the jury the re-

sponse it was entitled to expect in the face of the

questions raised by the defense in their closing ar-

guments. It should also be noted that this position of

the Government was not first presented in its rebut-

tal argument but had been raised and emphasized

throughout the trial, beginning in its opening state-

ment to the jury.'® The inconsistencies were fur-

ther emphasized by the Government in its closing

NOTE 17 — (Continued)

address from which he registered; Angelo Sannutti |N.T. 4-63, 70,

71, 76] — said gave false address to register and false period of resi-

dence and that he lied to the Pennsylvania Crime Commission;

Richard DeAngelis [N.T. 4-79, 80] — admitted he gave false ad-

dress and period of residence; Nicholas Pisano [N.T. 4-97] — stated

at trial he did not live at address from which he registered; Joanne

Pisano [N.T. 4-110, 112, 115] — stated she did not live at address

she registered from and gave false period of residence. Walter

Middleton [N.T. 4-120, 129] — never lived at address registered

from and gave false period of residence; Elaine Middleton [N.T. 4-

158] — did not live at address registered from; Elizabeth Pisano

(N.T. 4-201, 202] — stated she never lived at address from which

she registered and also lied as to her period of residence there.

18. In particular regard to defendant Cianciulli’s failure to tell

the “whole truth” to the Philadelphia Voters Commission and the

Pennsylvania Crime Commission prior to indictment, the Govern-

ment, in its opening to the jury, stated:

You will hear Mr. Maressa who works for the Philadelphia

Voters Commission, who was just doing a routine check, a

street list, which is made up from the registration list, who

went to 1427 South Sixth Street in December of 1975 and

talked to Matt Cianciulli about who of the people registered

A-27

remarks to the jury when, in a defendant-by-

defendant analysis, it was pointed out that prior pre-

indictment statements of the defendants were con-

trary to the evidence presented at trial and how var-

ious defendants had, therefore, been proven to have

not told the “whole truth” to the various authorities

prior to the indictment. '!9

The present case is closely and analogous to the

case of U.S. v. Heithaus, 377 F.2d 484 (3d Cir. 1967),

where the court stated: “By deliberate choice the de-

fense focused attention (upon a particular issue in the

case)... The prosecutor did no more than rebut this at-

tack upon his evidence by reminding the jury in general

terms that the testimony in question was uncontradicted

from that address lived there. You will hear Maressa tell you

what Matthew Cianciulli said and he will tell you that Matthew

Cianciulli told him that people lived in that address, who the

evidence will show clearly did not live at that address.

You will hear further from James DeBalt of the Pennsylva-

nia Crime Commission who likewise questioned Matthew

Cianciulli about the people at 1427, and you will hear evidence

that Matthew Cianciulli indicated that people live there who

did not live at that address or who had moved out of that ad-

dress when they had, in fact, never lived there.

N.T. 1-36.

19. N.T. 7-16 to 22, 26. Exemplary of this prosecutorial strat-

egy was the following statements by the Government in its closing

statement:

The fourth factor that suggests that, indeed, these defend-

ants did not honestly believe that what they were doing was

proper is that each of them at some point in time did not come

forward and candidly and truthfully tell authorities what had

occurred. You know, after the fact, when we get into court-

rooms, there is often a gloss put over earlier activities: “Yes, we

cooperated with the authorities,” and, “Yes, we came forward

and said we honestly believed that you could register where you

didn’t live.”

That’s not what occured in this case.

Let’s take the defendants one by one... .

N.T. 7-16.

A-28

and unimpeached. Such comment was a fair rejoinder

that had been invited by the defense.” 377 F.2d at 486.

Similarly, here the defense opened the door by raising a

challenge to the Government to answer the question of

why the defendants were on trial when certain Govern-

ment witnesses who had committed the same acts were

not. The Government simply offered a fair rejoinder to

that challenge in an effort to answer the question raised

and thereby avoid the possibly harmful situation of leav-

ing the defense’s question unanswered.

The prosecutorial decision to stress prior inconsis-

tent statements or pre-indictment silence is permissible

under the holding of Doyle v. Ohio, 426 U.S. 610 (1976),

relied upon by the defendants. In Doyle, the Supreme

Court held that comments at trial by the prosecutor, con-

cerning the silence of the accused after arrest when

questioned by law enforcement authorities, was violative

of the Fifth Amendment right against self-incrimination.

The Doyle rule, however, did not extend to comments

concerning the silence of the accused or inconsistencies

in his statements prior to indictment or arrest. These lat-

ter types of comments were expressly authorized in U.S.

v. Chaney, 446 F.2d 571 (3d Cir. 1971). There, the pros-

ecutor commented in his closing arguments on the de-

fendant’s failure to mention certain important informa-

tion in a prior pre-arrest interview with the FBI. At trial,

this important information was disclosed by the testi-

mony of various witnesses and that tended to indicate an

unexplained silence on the part of the defendant prior to

arrest. The Chaney court held:

The statements of the prosecutor which are ob-

jected to came during a long review by him of the

events occurring around the time of the robbery and

the contradictions between what defendant told the

FBI agent and the testimony of various witnesses.

Viewed in the context of the prosecutor’s entire ad-

dress, we think it clear he was charging that de-

fendant Chaney lied by not mentioning Sheppard.

A-29

We do not think those statements, in this situation,

even though phrased in the present tense, were

such as would lead the jury to conclude that the

prosecutor was commenting on the failure of the ac-

cused to testify. See Hayes v. United States, supra;

cf. United States v. Smith, 421 F.2d 1229, 1230 (3rd

Cir. 1970).

446 F.2d at 576.

The instant case can be favorably compared with

the Chaney decision. Here, the prosecutorial commen-

tary regarding the silence of certain defendants, on their

not telling the “whole truth” and on their lying — char-

acterized by the Government as “stonewalling” — to the

authorities to prevent them from reaching the kernel of

the scheme prior to indictment, is virtually identical to

the facts in Chaney. For example, when questioned by

the FBI, defendant Lombardo was asked if Cianciulli

had filled out his voter registration form, to which he re-

plied in the negative, and stated that a girl unknown to

him had filled out the form and that defendant Cianciulli

was not even present. |N.T. 3-91.] At trial, it was shown

through an FBI handwriting expert, using handwriting

exemplars of the defendants, that Cianciulli had filled

out Lombardo’s registration form. [N.T. 6-120, 127, 131,

132.| Lombardo’s failure to tell the ‘“whele truth” to the

FBI constituted “stonewalling” and is representative of

the “stonewalling” of the defendants prior to indictment.

Another example is that of defendant Cianciulli’s pre-in-

dictment failure to tell the Pennsylvania Crime Commis-

sion and the Philadelphia Voter Commission that he had

filled out numerous registration forms for persons who

had never lived at the 1427 South 6th Street address, as

was stated on the form.?° In addition, the Government,

20. N.T. 2-133, 145, 147 to 149. At trial, many of the persons

Cianciulli had previous reported to the authorities as having lived at

the 1427 South 6th Street address testified that they never lived at

that address and that it was Cianciulli who had given them the false

A-30

by emphasizing these failures to tell the “whole truth,”

was responding to or attacking the position taken by the

defendants throughout the trial that the defendants had

NOTE 20 — (Continued)

address from which to register to vote [N.T. 2-43 (Daly)] [N.T. 2-

107, 110, 111 (Joan Donaldson).

This failure to tell the “whole truth” to the various authorities

prior to indictment being a form of “stonewalling” or silence by fail-

ure to tell the “whole truth,” was referred to by the Government ear-

lier in its rebuttal argument as to defendants Ricca and Cianciulli

when it stated:

Is there a difference between the 20 or so Government wit-

nesses you heard from and some of these defendants?

Let’s talk first about Mr. Cianciulli and Mr. Ricca.

Now, with regard to the Government's witnesses, they reg-

istered once. They registered at an address at which they didn’t

live. That's the extent of their knowledge of what was going on.

But that’s very different from the knowledge that Mr.

Cianciulli had. Mr. Cianciulli knew that literally dozens of per-

sons were registering from an address at which they didn’t live.

Mr. Ricca, he knew that his employees, Romanini,

Aldinger, Wadsworth, Russell, his relatives, Mike Ricca, John

Lombardo, Vincent Lombardo, Rafael Norcisa, he knew that

they were all registering from addresses at which they didn’t

live.

It is very different to know about one registration and to

see the whole pattern as Mr. Cianciulli did and as Mr. Ricca

did. So clearly they are in a very different category from the

Government’s witnesses themselves.

Well, how about the other four defendants?

N.T. 8-11.

But think for a minute. The very fact that these people

came into this courtroom and flipped on their grand-jury testi-

mony because they didn’t want to hurt Mr. Cianciulli and oth-

ers shows that they did, in fact, know that what had gone on

was wrong. The fact that these witnesses like the defendants

earlier gave false statements to the FBI and authorities again

shows a consciousness of guilt.

N.T. 8-12.

I strongly dispute the fact that because you say something

to law enforcement it necessarily means you have got nothing

to hide.

A-31

in fact cooperated with the various authorities and did

not try to hide or conceal important information.?!

Turning to the Government’s use of the phrase,

“|t|heir stonewalling has persisted throughout this

If the inspector from the Registration Commission had

gone out to see Mr. Cianciulli and said, “I’m here to ask you

about certain people who live here,” and Mr. Cianciulli did not

talk to him, obviously that would be an awareness that Mr.

Cianciulli was involved in something wrong. But he talked to

him and he lied to him. The only way it is valid to talk about

candor is if they were entirely truthful. If they are not truthful,

it is a coverup. The mere fact you talk doesn’t mean you don’t

have something to hide.

Each of the witnesses in this case when they were on the

witness stand were asked the question, “Examine that form,

and what, if anything, is false about it?” They all examined the

form. They looked at the form. They said, “The address is

false.” They knew what was wrong with the form. They knew

where they told earlier lies to the FBI. They knew why there

were at best reluctant Government witnesses — because they

were not terribly anxious to point the finger at Mr. Cianciulli

and others for the crime of false registration.

N.T. 8-13.

21. For example, see opening statement of attorney for defend-

ant Cianciulli [N.T. 1-43, 44]; opening statement of attorney for de-

fendant Lombardo [N.T. 1-48]; closing statement of attorney for de-

fendant Asnes [N.T. 7-46, 47]; closing statement of attorney for

defendant Ricca |N.T. 7-72 to 74]; closing statement of attorney for

defendant Cianciulli [N.T. 8-112]. Typical of this defense conten-

tion was the following statement by Cianciulli’s attorney:

The Government argued to you that he confessed, I sup-

pose, or he gave inconsistent statements to investigators. Noth-

ing could be further from the truth. The very fact that Mr.

Cianciulli talked to investigators is indicative of something. If

you had committed a crime and you heard there was an investi-

gation, investigators came out to see you, if you were the

skilled, evil politician that they say Mr. Cianciulli is, who is

dealing in the back room, would you sit down and talk to inves-

tigators? ‘

In fact, when he talked to one investigator, Mario Rissa, he

told him that certain people no longer lived there. They were

then struck from the voting list as a result of that. If Mr.

Cianciulli was really out to get those 18 or 20 votes, he never

A-32

trial,” we find that it was a comment on the cumulative

appearance of several of the Government witnesses,

many of whom had been immunized, but who were nev-

ertheless reluctant to testify at trial against the defend-

ants. This reluctance was evidenced by inconsistent tes-

timony of these witnesses and general lapses of memory

as to critical facts that an unindicted witness should or

could have remembered.”* In this context, the prosecu-

tor said the following regarding these witnesses, in the

NOTE 21 — (Continued)

would have told them that. He would have tried to grab every

vote he could.

Basically all the defendants in this case talked with the

FBI, told them the truth. Doesn't that tell you something?

When a person is guilty of something, he runs and hides. He

goes and gets an attorney and says, “Go talk to the FBI.” He

doesn’t show up and say, “Sure, I'll talk to you, what do you

want to know? Sure, I'll come to the Grand Jury.” Almost every-

body came to the Grand Jury and talked.

N.T. 8-122.

22. Representative examples of witnesses who were called,

and in some cases immunized, but who “stonewalled” at the trial,

out of an apparent desire to hold back anything that could possibly

help the prosecution, included the following: (1) Joseph Berti,

owner of 1429 South 6th Street residence, testified at trial that he

was not sure if defendant Asnes had ever lived at his apartment

house, although before the federal grand jury he had previously tes-

tified that Asnes had not lived at the address |N.T. 6-64, 74];

(2) Anthony Pisano, immunized witness, had told a federal grand

jury that Cianciulli had given him the address with which to regis-

ter but, at trial, he said that he was not sure it was defendant

Cianciulli who had given him the address |N.'1. 4-187 to 189]; (3)

Josephine DiMento, owner of 538 Wilder Street ana who was also

majority inspector in the lst ward of the 13th division in the 1976

general election, had prior to trial told a federal grand jury that peo-

ple had voted in that division who were registered from the address

at which she lived but that they did not live there. At trial, she was

unclear on this occurrence and generally evasive in answering

questions. She had also told the prosecutors prior to trial that it was

standard practice to check the addresses of the voters before they

voted at the polling place, but at trial she said this was only done in

rare cases when they were not sure if the person really lived at the

A-33

rebuttal argument leading up to his “stonewalling” re-

mark: isis

Let’s remember a couple things about these Gov-

ernment witnesses: Yes, the Government called

them pursuant to subpoena, but as you yourself

saw, many of them were very reluctant guests at

this party. Had it not been for the fact that they had

previously testified before the grand jury you would

not have seen the full truth of their testimony.

Fllows [sic] like Ken Donaldson, Charles Salerno,

Josephine DiMento, Mr. Cianciulli’s relatives, the

Bertis they came into court and had lapses of mem-

ory. They couldn’t remember who lived next door

until they got on cross-examination. Then when

Mr. Miller or one of the other defense attorneys got

up here and asked them questions, on cross-exami-

nation, it was, “Yes, that’s right, Mr. Miller.”

“Yes, that’s right, Mr. Pomerantz.”

The defense was basically able to put words: in

their mouths. And the reason that happened was

they weren’t necessarily sympathetic to the Govern-

ment. They were more sympathetic to the defense.

N.T. 8-12.

address that was claimed [N.T. 4-235, 237, 241, 244, 245, 250]; (4)

Kenneth Dona!dson, immunized witness, had told the federal grand

jury that Cianciulli had helped him straighten out a parking ticket

problem, but at trial claimed that it was an eviction problem. Also,

before the federal grand jury he said that Cianciulli had given him

the false address with which to register to vote, but at trial he at first

denied this was true and then, later in the trial, remembered that it

was indeed Cianciulli. Finally, before the federal grand jury,

Donaldson said that he had never lived at the 1427 South 6th Street

address from which he registered, but at trial he claimed that he

was intending to move to that address because of eviction problems

prior to his registration. However, later during the trial, he admitted

that he had lied when he claimed on the voter registration form that

he had resided at the 1427 South 6th Street address for two months

IN.T. 2-80 to 89; 3-24, 28, 36].

A-34

Whether these witnesses were in fact “stonewalling” by

reason of prior affiliations or current allegiances to any of

the defendants was not a question for the Court to an-

swer, but was rather a question the jury had a duty to

consider in its search for the truth. The critical issue is

whether the Government was attempting to meet this

circumstance by urging the jury to determine whether

these witnesses had “stonewalled” during the trial, as

opposed to implying that the defendants themselves had

“stonewalled” by refusing to testify. The Court finds that

the former was the natural and necessary conclusion

that the jury would come to. This is clear when the Gov-

ernment’s initial rebuttal remarks, quoted above, are

read in conjunction with the later “stonewalling” refer-

ence and within the context of the totality of the trial.

Finally, the Government’s rebuttal remark that

“stonewalling” was “persisting” throughout the trial

should also be considered in connection with a point

raised in its closing statement to the jury. The Govern-

ment referred to defendant Cianciulli’s attempt to con-

ceal his true handwriting characteristics in the furnish-

ing of his handwriting exemplar. The hardwriting

exemplar, a non-testimonial statement submitted during

trial, was used by an FBI handwriting expert. The Gov-

ernment in its first address to the jury stated:

The fifth factor that I would point out to you —

and again, with reference to Mr. Cianciulli — that

he did not honestly believe it was proper to register

where you didn’t live is his dictated handwriting

sample, and by “dictated handwriting sample,” we

mean this portion of Government’s Exhibit 48-D,

the upper left-hand corner.

Now, remember, Agent Lovelace took the stand

and testified that, “Before I took that sample from

Mr. Cianciulli I told him that the purpose of the

sample was that it was going to be analyzed by the

FBI and compared with certain voter-registration

affidavits.”

oe

A-35

Remember what the handwriting expert said

about this dictated sample? He said — and I am

quoting his very words — that it was not the normal

style of handwriting, that it appeared to be primitive

sort of stick figures.

Well, what happened is Lovelace told him what

the handwriting sample was going to be used for.

Cianciulli then came forward with what was not the

normal style of handwriting, and in an effort to

cloud the FBI's investigation, another conscious-

ness of guilt.

Fortunately, the FBI had 72 previous samples

of Cianciulli’s handwriting when he was relaxed

and it was his normal style of handwriting, and on

that basis we were able to bring before you the

handwriting analysis that we did.

N.T. 7-22

In conclusion, this Court finds that the questionable

remarks of the Government in its rebuttal argument did

not naturally and necessarily have the effect of constitut-

ing acomment on any of the defendants failing to testify,

when considered within the totality of the trial proceed-

ings, but rather the remarks constituted: (1) a response

to the challenge raised by the defense in their closing ar-

guments concerning the credibility and immunization of

several Government witnesses; (2) a reaffirmation of the

prosecutorial strategy employed throughout the trial of

presenting the inconsistencies and omissions in the de-

fendants’ pre-indictment statements and in the evidence

at trial; and, (3) a commentary on the “stonewalling” of

the defendants that “persisted” throughout the trial —

first, by the failure of the defense in general to present

affirmative or rebuttal evidence and, second, indirectly

through the apparent reluciance of certain immunized

Government witnesses to testify against the defendants

at trial and, third, by defendant Cianciulli’s attempted al-

teration of his handwriting in an exemplar submitted

during trial.

A-36

Lastly, courts in these cases often consider the

merit of using curative instructions to the jury. The late

Chief Judge William H. Hastie, writing for the Third Cir-

cuit Court of Appeals, states in U.S. v. Heithaus, supra,

that:

If some juror was thus reminded that the defendant

had not testified, the court’s subsequent instruction

concerning the jury’s duty to disregard the failure of

the accused to testify minimized the risk of infer-

ring guilt from such failure. On the facts of this

case, the defendant was entitled to no more. .. .

377 F.2d at 486. See also U.S. v. Waller, supra, slip op. at

5; U.S. v. Dansker, supra, 537 F.2d at S53; U.S. v.

Chaney, supra, 446 F.2d at 576; U.S. v. Giuliano, supra,

383 F.2d at 34-35; U.S. v. McCrae, 344 F.Supp. 942, 946

(E.D.Pa. 1972), affd, 475 F.2d 1397 (3d Cir. 1973); U.S.

v. Gatto, supra, 299 F.Supp. at 703.

The inquiry to be made by the Court here is

whether a cautionary instruction can safely be said to

have eradicated the possible effect of a prosecutor’s

questionable remark. The standard to be applied was ar-

ticulated in U.S. v. Smith, 500 F.2d 293 (6th Cir. 1974):

The inquiry . . . must always be whether in the view

of the whole record the impression conveyed to the

minds of the jurors by irrelevant and prejudicial

matter is such that the court may fairly say that it

has not been successfully eradicated by the rulings

of the trial judge, his admonition to counsel, and his

instruction to the jurors to disregard it.

500 F.2d at 297-298, quoting Pierce v. U.S., 86 F.2d 949,

952 (6th Cir. 1936). With this standard as a guide, we

find that the Court’s admonition in the charge had the

effect of dispelling any prejudicial effect caused by the

Government’s remarks.

A-37

First, contrary to the assertions of the defendants,2°

the Court did in fact give a prompt and complete instruc-

tion on the duty of the jury not to draw any unfavorable

inference from the fact that the defendants had not testi-

fied. The Court stated in its charge to the jury:

It is a constitutional right of a defendant in a

criminal trial that he should not be compelled to

testify. No presumption of guilt may be raised and

no inference of any kind may be drawn from the

failure of a defendant to testify. The law never im-

poses upon a defendant in a criminal case the bur-

den or duty of calling any witnesses or offering any

witnesses or producing any evidence of any kind.

No lack of evidence on a defendant’s part will rectify

a failure of proof by the prosecution.

N.T. 8-91, 92.

This curative instruction was given as part of the

Court’s charge at the close of the case and immediately

following the Government’s rebuttal argument to the

jury containing the questionable comments. Further-

more, the curative effect of the Court’s instruction was

further strengthened by several references of defense

counsel during their closing speeches concerning this

very same right of the defendants not to testify. Defense

counsel said:

I suggest to you it is not the burden of Mr.

Lombardo to tell you where he lived. It’s the Gov-

ernment’s to tell you where he lived, to show that he

didn’t live where he said he lived if he had said any-

thing. And he doesn’t have to say anything. The

Government must prove its case.

a ok x a

23. See defendant Cianciulli’s Supplemental Memorandum in

Support of Post-trial Relief Relating to Improper, Unconstitutional

Comments by Prosecutor Touching on Defendant’s Failure to

Testify, at 2.

A-38

... [YJou may not draw any negative inference from

one’s failure, if you can call it a failure — and it

shouldn’t be considered a failure — base use of

words for me — to take the stand. My client didn’t

take the stand and he couldn’t — and he didn’t take

the stand because he has the right not to. He has a

right to sit there and let the Government prove its

case.

And because you don’t know what his educa-

tional background is, he is not a professional wit-

ness. I mean, you can look at him. I suggest he is

not a professional witness. And I suggest to you that

he may not have been able to come up there and be

like someone who comes on the stand frequently,

like an FBI agent or a professional handwriting ex-

pert.

And you may not — and the judge will tell you

you may not — and you have to maybe work hard

not to be negative about the fact he didn’t take the

stand. But that’s your responsibility as a juror. You

must take that responsibility seriously . . .

There has been an evolution in this country of

the law, and you know that law, and that says you

can’t say anything negative about this man for not

taking the stand.

4

N.T. 7-38 to 40 (closing argument of counsel for defend-

ant Lombardo).

Like Mr. Pomerantz said in his statement,

there are many, many reasons why a defendant may

not choose to take the witness stand. I am not going

to explain them all to you. I don’t think it is neces-

sary. Because the only thing you really have to con-

sider is what proof has been presented to each of

you as to every element of the crime.

N.T. 7-47 (closing argument of counsel for defendant

Asnes).

A-39

A similar situation arose in the case of U.S. v.

Giuliano, 383 F.2d 31 (3d Cir. 1967), where the defense

attorney stated in his closing argument to the jury:

I want to at this time make note of the fact, and

I know you are possibly concerned with the fact that

the defendant did not take the stand. This onorable

Court will tell you in so many words that the law

does not compel a defendant in a criminal case to

take the witness stand and testify. And no pre-

sumption of guilt may be raised and no inference of

any kind may be drawn from the failure of a defend-

ant to testify. I wanted to satisfy your minds on that

point because it possibly was bothering you.

383 F.2d at 32 (emphasis in the original). The curative

effect of this remark was considered by the Giuliano

court as a positive factor to support its holding that state-

ments of the prosecution did not violate the Griffin rule:

His own lawyer had reminded the jury of exactly

that same thing; had further told the jury that the

judge would instruct it that the defendant had the

unquestionable right to remain silent... .

383 F.2d at 34.

It should also be noted that the Court strongly em-

phasized this principle in the voir dire of the panel from

which the ultimate jury was selected:

Also, in every criminal case a defendant has the

absolute right, any defendant has the absolute right

not to testify, not to offer evidence in his own behalf

of any kind. That is, a defendant under our system

has the right when charged with a crime, these

crimes or any other crime, to come to court with his

counsel and remain silent and say nothing.

Why? Because the burden of proof, the burden

of proving guilt in the United States of America, is

on the prosecution. That’s our system.

A-40

In some countries the burden of proof is on the

defendant to explain yourself. We don’t have that

system in America.

So that means a defendant who is charged with

a crime can remain moot [sic], so to speak, and sim-

ply sit there and say nothing.

But the important part for jurors is that that

cannot be held against him. A juror can’t say, “Oh,

well, he didn’t get up and say anything; he must be

guilty.” That’s not our system.

Now, these defendants all have attorneys and

there may come a time in the case when they'll de-

cide if they want to testify or not testify and they

may not know that now. But after they talk to their

attorney, a defendant may decide, “I will not testify;

I am prepared to stand mute.”

If any of these defendants would do that, would

anyone here hold that against them?

N.T., partial transcript — Voir Dire, at 59-60. No nega-

tive responses were made to the question posed by the

Court. Additionally, the Court repeatedly stressed that

any instructions on the law were the sole province of the

Court.24 The defense attorneys themselves further reit-

erated this important concept to the jury in their closing

arguments,”° with the consequence that it was perfectly

plain to the jury that, to the extent that any counsel’s

statement on a legal principle differed with the Court’s,

the jury was to follow the Court. It is reasonable, absent

clear evidence to the contrary, to presume that jurors lis-

ten to, understand and heed the clear and concise

instructions the Court delivers during the course of a

trial. See Eberhardt v. Bordenkircher, 26 Crim.L.Rept.

24. Voir dire of the jury panel by the Court, at 8, 9; Charge of

the Court to the jury at N.T. 8-60 to 62.

25. N.T. 7-58 (attorney for defendant Fiorentino); N.T. 8-103

(attorney for defendant Cianciulli).

See

A- 41

2036, 2037 (6th Cir., filed Sept. 10, 1979); Hall v. U.S.,

171 F.2d 347, 349-350 (D.C.Cir. 1949).

At post-trial oral argument, the defendants pre-

sented as an alternative theory the argument that, even

if a curative instruction had been given, it could never be

sufficient to cure the prejudicial effect of the Govern-

ment’s rebuttal remarks. This declaration of a per se

principle is not supported by any decisional authority in

any of the federal circuit courts of appeals. While it is

true that, contrary to the holdings of the Third Circuit

Court of Appeals, the First and Seventh Circuit Courts

have adopted the view that curative instructions in some

cases are insufficient, even these courts have created an

exception to this strict rule, holding that prejudice may

be cured if the curative instruction is given immediately

and with strong and clear language. See U.S. v.

Flannery, 451 F.2d 880, 882 (1st Cir. 1971); U.S. v.

Handman, 447 F.2d 853, 855 (7th Cir., 1971);

Rodriguez-Sandoval v. U.S., 409 F.2d 529, 530 n.3 (ist

Cir. 1969); Desmond v. U.S., 345 F.2d 225, 226-227 (1st

Cir. 1965).

In the present case, a curative instruction was never

requested by any defendant at any time. One explana-

tion for this was offered at post-trial argument by

Cianciulli’s attorney, who stated that he had not re-

quested a curative instruction prior to the Court’s charge

because he “knew” that the Court would give one.”°

Counsel cannot adopt a defense strategy of failing to re-

quest a curative instruction based on what counsel

thinks the Court might do, await a favorable verdict and

then, if the verdict is unfavorable, claim (albeit incor-

rectly) that a curative instruction was never given. See

U.S. v. Waller, No. 79-1211, slip op. at 5 (3d Cir., filed

October 5, 1979) (“If counsel had objected and asked for

a curative instruction, we are confident that such an in-

26. Statement of counsel for defendant Cianciulli at oral argu-

ment, as reflected in the Court’s bench notes and Court Reporter's

official notes (October 22, 1979).

A-42

struction would have eliminated any possibly adverse in-

ferences.”’).

The Court notes that it consciously chose not to

object sua sponte when the remarks were made, for fear

of creating a problem where one did not exist. See U.S. v.

Smith, 500 F.2d 293, 296 (6th Cir. 1974); U.S. v.

Flannery, supra, 451 F.2d at 882; U.S. v. Venable,

supra, 443 F.Supp. at 183. Instead, the Court chose to

give a curative instruction in its charge which was deliv-

ered within a matter of minutes following the Govern-

ment’s rebuttal argument.

The curative instruction pinnacled the _ prior

instructions by the Court and statements by defense

counsel on the right of the defendant not to testify.

Thus, by the end of the trial, this point of law was firmly

engraved upon the minds of the jurors. This case goes

far beyond any of the decisional law holding that a cau-

tionary instruction alone would be curative of any preju-

dice caused by a prosecutor’s misstatement. The Third

Circuit Court of Appeals has consistently held that a cu-

rative instruction alone can cure the prejudice caused by

a prosecutor’s questionable remark. See U.S. v. Waller,

slip op. at 5; U.S. v. Giuliano, supra, 383. F.2d at 34-35;

U.S. v. Heithaus, supra, 377 F.2d at 486; U.S. v. Mc-

Crae, 344 F.Supp. 942, 946 (E.D.Pa. 1972), aff'd, 475

F.2d 1397 (3d Cir. 1973). In the instant action, the cu-

mulative effect of numerous instructions and statements

cured any possible prejudice that might have resulted

from the Government’s questionable remarks.

Therefore, the Court finds that, under the test set

forth in U.S. v. Smith, supra, and even under the stricter

test of U.S. v. Handman, supra, and U.S. v. Flannery,

supra,2¥ the cautionary climate created by the Court’s

27. The Court finds that the strictness of the test of

prosecutorial intent of the First Circuit Court of Appeals in Des-

mond v. U.S., 345 F.2d 225 (1st Cir. 1965), and U.S. v. Flannery,

451 F.2d 880 (1st Cir. 1971), is not as strict as might appear on an

initial reading of these cases. For example, in Flannery, the court

A-43

voir dire instructions, the curative instructions within

the charge to the jury, the other instructions throughout

the trial and correct statements of defense counsel in

their closing remarks, on the right of the defendants not

to testify, had the natural and necessary effect of curing

any possibility of prejudice that might have occasioned

by the remarks of the Government in its rebuttal.

(2) Intent

The second part of the alternate test set forth in U.S.

v. Waller, supra, was whether the prosecutor’s comment

was intentionally made. As has been so often cited as the

strongly stressed that the only exception to the Griffin rule is if the

court actually interrupts the prosecutor's argument immediately

after the questionable remark is made and fully instructs the jury

concerning the defendant's right not to testify. However, later in its

opinion, the court made the following statement which indicates

that it was “backing off” its strict position by conceding the dilemma

that courts are faced with in this area:

Defendant did not object, perhaps fearful of making the matter

worse, and the court’s failure to interrupt may have been for the

same reason. The government had no right, however, to place

the defendant in this dilemma.

451 F.2d at 882. It is also noted that in U.S. v. Handman, supra, the

Seventh Circuit Court of Appeals was addresing a factual situation

where the prosecutor’s questionable remarks were made in his clos-

ing speech and not his rebuttal. Therefore, if the court would have

waited until the charge to give a curative instruction, this would ob-

viously entail a longer period of contemplative time than if the cura-

tive instruction was given in the charge that would immediately fol-

low the Government's rebuttal argument. Whether the Handman

court would have reached a different result as to the need for a

prompt and immediate instruction if the remark had occurred in the

rebuttal argument is unclear.

The strict test of Flannery was specifically rejected by the Sixth

Circuit Court of Appeals in U.S. v. Smith, 500 F.2d 293, 296 (6th

Cir. 1974), where the court held that any prejudical effect would be

better neutralized by a cautionary instruction given at the close of

the Government’s argument instead of interrupting the argument,

which might more dramatically impress on the jury the prejudicial

effect of the remark.

A-44

wellspring of prosecutorial behavior, the statements of

the United States Supreme Court in Berger v. U.S., 295

U.S. 78 (1935), is our starting point:

The United States Attorney is the representa-

tive not of an ordinary party to a controversy, but of

a sovereignty whose obligation to govern impartially

is as compelling as its obligation to govern at all; and

whose interest, therefore, in a criminal prosecution

is not that it shall win a case, but that justice shall

be done. As such, he is in a peculiar and very defi-

nite sense the servant of the law, the twofold aid of

which is that guilt shall not escape or innocence

suffer. He may prosecute with earnestness and

vigor — indeed, he should do so. But, while he may

strike hard blows, he is not at liberty to strike foul

ones. It is as much his duty to refrain from improper

methods calculated to produce a wrongful convic-

tion as it is to use every legitimate means to bring

about a just one.

It is fair to say that the average jury, in a greater

or less degree, has confidence that these

obligations, which so plainly rest upon the prosecut-

ing attorney, will be faithfully observed. Conse-

quently, improper suggestions, insinuations and,

especially, assertions of personal knowledge are apt

to carry much weight against the accused when

they should properly carry none. . . .

295 U.S. at 88. See also Pierce v. U.S., 86 F.2d 949, 953

(6th Cir. 1936); U.S. v. Smith, 500 F.2d 293, 295-296

(6th Cir. 1974).

An examination of the cases in this area reveals that

the issue of whether a comment was made intentionally

only arises where no plausible or reasonable explanation

is available to assess the meaning of the comments

made. If there is no ostensibly proper matter which the

remarks could pertain to, the only possible explanation

available is that the remarks were intended to be a com-

A-45

ment on a defendant’s failure to testify. In the present

case, the Government’s remarks in its rebuttal can be in-

terpreted as: (1) a response by the Government to the

challenge raised by the defense in their closing argu-

ments concerning the immunized Government wit-

nesses; (2) a reiteration of the prosecutorial strategy of

making a general comment on the evidence by explain-

ing the inconsistencies and omissions in the pre-indict-

ment statements of the defendants and the evidence

presented at trial; and, (3) commentary on the apparent

reluctance of certain immunized witnesses to testify

against the defendants at trial, and defendant Cianciulli

to cooperate in submitting a handwriting exemplar dur-

ing trial. Therefore, the Government’s statements did

not reach the depths of a gratuitous comment or a “stu-

pid trick,” as defined by the Third Circuit in U.S. v.

Giuliano, supra, 383 F.2d at 34 (the prosecution’s re-

marks “dealt with the Government’s affirmative position

and not with some completely stupid trick of advising

the jury that the defendant had not testified in his own

behalf.”). See also Rachel v. Bordenkircher, 590 F.2d

200, 202 (6th Cir. 1978) (“It is apparent that the pros-

ecution calculated these remarks to create in the jurors’

minds an inference of guilt based solely on petitioner's

election to remain silent.”); Rodriguez-Sandoval v. U.S.,

supra, 409 F.2d at 531 (“Indeed, the very persistence of

the government in making these remarks is proof that it

attached much importance to them.”’); Pierce v. U.S., 86

F.2d 949, 953 (6th Cir. 1936) (“Indulgence was de-

signed rather than inadvertence, and improper purpose

its only explanation. That is was intended to prejudice

the jury is sufficient ground for a conclusion that in fact

it did so.”’).

In this context, the Court notes that, on the day be-

fore the Government’s rebuttal argument, the defense,

after objecting to the Government’s characterization of

“uncontradicted” evidence in its closing argument, re-

ferred the Court and the attorneys to several federal

A-46

cases,*® detailing the prohibition of Griffin and its prog-

eny. The following day, the defense offered other similar

cases*’ immediately prior to the Government’s rebuttal

argument. This notice or warning to the Government

about the Griffin prohibition leads the Court to believe

that the Government was aware of the prohibition ar-

ticulated in Griffin prior to making its rebuttal argu-

ment. In light of the Government's otherwise proper

conduct throughout the trial and the notice of the

Griffin prohibition, the Court finds that the Govern-

ment’s remarks in its rebuttal argument were not in-

tended to be prejudicial for the sake of prejudice alone,

but were intended to be a fair and necessary response to

legitimate factual issues.

This Court does not follow the strict approach taken

by some other courts on the issue of prosecutorial intent.

See Rodriguez-Sandoval v. U.S., supra, 409 F.2d at 531

(“We do not say that the government was contumacious.

It doubtless believed its remarks were at least arguably

consistent with our decisions. But one who attempts to

define exactly the edge of the precipice approaches at

his peril.”); U.S. v. Handman, supra, 447 F.2d at 856.

This Court finds the above approach too restrictive and

untenable, in light of the prosecutorial duties defined in

U.S. v. Berger, supra, and the underlying reasoning of

the Supreme Court in Donnelly v. DeChristoforo, 416

U.S. 637 (1974), where the Court stated:

The “consistent and repeated misrepresentation” of

a dramatic exhibit in evidence may profoundly im-

press a jury and may have a significant impact on

the jury’s deliberations. Isolated passages of a pros-

ecutor’s argument, billed in advance of the jury as a

matter of opinion not of evidence, do not reach the

28. U.S. v. Venable, 443 F.Supp. 178 (E.D.Pa. 1977).

29. Linden v. U.S., 296 F. 104 (3d Cir. 1924); U.S. v.

Handman, 447 F.2d 853 (7th Cir. 1971); U.S. v. Flannery, 451 F.2d

880 (Ist Cir. 1971).

A-47

same proportions. Such arguments, like all closing

arguments of counsel, are seldom carefully con-

structed in toto before the event; improvisation fre-

quently results in syntax left imperfect and mean-

ing less than crystal clear. While these general

observations in no way justify prosecutorial miscon-

duct, they do suggest that a court should not lightly

infer that a prosecutor intends an ambiguous re-

mark to have its most damaging meaning or that a

jury, sitting through lengthy exhortation, will draw

that meaning from the plethora of less damaging in-

terpretations.

416 U.S. at 646-647.

The instant action differs in another important way

from those cases where courts have granted mistrials

due to the intentional comments of the prosecutor. In

many of these cases, the comment concerning a defend-

ant’s failure to testify was not the only improper remark

made by the prosecution during the trial, but exempli-

fied simply one aspect of a course of impermissible con-

duct. Therefore, the cumulative effect of such a course

of conduct has been held to naturally and necessarily

prejudice the jury. See Eberhardt v. Bordenkircher,

supra, 26 Crim.L.Rept. at 2036 (other trial errors adding

to the cumulative prejudicial effect included introduc-

tion of mug shots and prosecutor’s unfounded assertions

that defendant’s witnesses were being paid for their tes-

timony); Rachel v. Bordenkircher, supra, 590 F.2d at

202 (prosecution also made references to petitioner’s si-

lence at the time of his arrest); Kelly v. Stone, 514 F.2d

18, 19 (9th Cir. 1975) (a district attorney’s comment

that, “If you can’t find the defendant guilty on these

facts that I have presented to you, I feel like I just might

as well, you know, close up shop and go home,” was

deemed to be a “highly improper expression of personal

opinion [and] constituted a veiled threat to the jury to re-

turn a guilty verdict.”); Pharr v. U.S., 48 F.2d 767, 771

A-48

(6th Cir. 1931) (further references by Government to

“misfortunes of women, widows, and orphans resulting

from wrecking of the bank were in no sense pertinent to

the presentation of the issues of the case, and were

highly improper.”’)

Finally, in U.S. v. Venable, supra, the prosecutor, on

four separate occasions in his closing argument, made

improper comments and ignored the narrow line of

Griffin with “all the delicacy and silence of a piledriver.”

443 F.Supp. at 182. See also Kelly v. Stone, supra, 514

F.2d at 19 (“repeated assertions” made); Rodriguez-

Sandoval v. U.S., 409 F.2d 529, 531 (Ist Cir. 1969)

(“The prosecution hammered the point home relent-

lessly, stating in at least five different ways that its ver-

sion of the December 26 _ happening was

uncontradicted.”); Pierce v. U.S., 86 F.2d 949, 953 (6th

Cir. 1936) (“misconduct of the prosecutors was neither

slight nor confined to a single instance, but so pro-

nounced and persistent that the cumulative effect upon

the jury cannot be disregarded as inconsequential.”).

These cases do not apply in the case sub judice.

B. Comment Concerning “Uncontradicted” Evi-

dence

Defendants claim that remarks made by the Gov-

ernment in its closing argument, as to the evidence be-

ing “uncontradicted,” was also violative of the Griffin

doctrine. The comments objected to are as follows:

Literally dozens of people registed from one particu-

lar division within the City of Philadelphia when

they didn’t live there. You have heard testimony

from many of these voters that they did so at ad-

dresses furnished to them by Defendant Cianciulli

or by Defendant Ricca and, indeed, that Govern-

ment evidence has come before you and has been

uncontradicted. .. .

N.T. 7-6.

A-49

The defendants rely upon the following decisions in

support of their position that the use of the phrase

“uncontradicted” is per se violative of the Griffin stand-

ard: U.S. v. Flannery, 451 F.2d 880 (1st Cir. 1971); Des-

mond v. U.S., 345 F.2d 225 (1st Cir. 1965); U.S. v.

Handman, 447 F.2d 853 (7th Cir. 1971); Kelly v. Stone,

514 F.2d 18 (9th Cir. 1975); U.S. v. Nasta, 398 F.2d 283

(2d Cir. 1968); Barnes v. U.S., 8 F.2d 382 (8th Cir.

1925); and U.S. v. Venable, 443 F.Supp. 178 (E.D.Pa.

1977).

The defendants’ contention is unstable for three

reasons. First, as noted earlier, the rule in Handman and

others was not that the use of the term “uncontradicted”

was per se violative of Griffin. Rather, those courts held

that a prompt and clear curative instruction by the Court

would cure any possible prejudice. In the instant case,

the cumulative effect of the Court’s voir dire instruc-

tions, the remarks of counsel in their closing statement,

other instructions of the Court throughout the trial and

the Court’s charge delivered immediately following the

Government’s rebuttal concerning the right of the de-

fendants not to testify, all in toto, cured whatever preju-

dicial effect that the “stonewalling” and “uncontra-

dicted” language might have had on the jury.

Second, the Third Circuit Court of Appeals has re-

peatedly adopted the position that the use of the term

“uncontradicted” is permissible. This position was best

expressed by the late Chief Judge William H. Hastie in

U.S. v. Heithaus, 377 F.2d 484 (3d Cir. 1967), where he

stated:

By deliberate choice the defense focused attention

upon the credibility of certain witnesses for the

prosecution and urged the jury to disbelieve them.

The prosecutor then did no more than rebut this at-

tack upon his evidence by reminding the jury in

general terms that the testimony in question was

uncontradicted and unimpeached. Such comment

A-50

was a fair rejoinder that had been invited by the

defense.

377 F.2d at 486.

This 7 osition has more recently been reaffirmed by

the Third Vircuit. See U.S. v. Gimelstob, 475 F.2d 157,

162 n.4 (3d Cir. 1973); U.S. v. McCrae, 344 F.Supp. 942,

947 (E.D.Pa. 1972), affd, 475 F.2d 1397 (3d Cir. 1973).

Other circuit courts have also adopted this position. See

U.S. v. Armedo-Sarmiento, 545 F.2d 785, 793 (2d Cir.

1976); U.S. v. Thurmond, 541 F.2d 774, 776 (8th Cir.

1976); U.S. v. Bartemio, 547 F.2d 341, 345 (7th Cir.

1974); U.S. v. Thonpson, 541 F.2d 774, 776 (8th Cir.

1976); U.S. v. Taitano, 442 F.2d 467, 468 (9th Cir.

1971); U.S. v. Nasta, 398 F.2d 283, 285 (2d Cir. 1968);

Carlisle V. U.S., 194 F. 827, 830 (4th Cir. 1912).

Obviously, these holdings do not allow the Govern-

ment unbridled permission to use the word “uncontra-

dicted” during the trial; but a reading of these cases

shows the existence of other factors, viewed in the con-

text of the entire trial, that justified the use of the word

“uncontradicted” without offending the Griffin rule. See

U.S. v. Heithaus, supra, (any possible prejudice was

cured by the court’s full and proper instruction); U.S. v.

Gimelstob, supra, (comment was directed to the failure

of the defendant’s counsel to cross-examine a Govern-

ment witness and was rebuttal to attack on Government

witnesses’ credibility); U.S. v. McCrae, supra, (a refer-

ence of failure of defense to produce witness to rebut

Government’s evidence and court’s curative instruction

cured any possible prejudice that resulted); U.S. v.

Armedo-Sarmiento, supra, (was only response to argu-

ment raised by defendant’s counsel and instruction

cured in any case); U.S. v. Thurmond, supra, (instruc-

tion cured and evidence was overwhelming); U.S. v.

Bartemio, supra, (not a sole-witness case because other

witnesses available who could have challenged or con-

tradicted the Government’s evidence); U.S. v. Thomp-

A-51

son, supra, (not a sole-witness case so comment allowed

because of the failure of defense to call witnesses to re-

fute or contradict the Government’s case); U.S. v.

Taitano, supra, (charge of court cured any possible prej-

udice and no objection made by defense counsel to the

remarks at the time they were made); U.S. v. Nasta,

supra, (responding to argument of defense counsel,

other witnesses available to refute Government’s case,

charge cured, evidence was overwhelming and no objec-

tion at time remark made but only motion for mistrial

and no request for a curative instruction). Most of these

factors have been previously discussed and are present

in the instant action.

Lastly, as some of the aforecited cases show, the

courts have held that the use of the phrase “uncontra-

dicted” by the prosecution can be prohibited under

Griffin “in the exceedingly rare case where the defend-

ant alone could possibly contradict the government’s tes-

timony...” U.S. ex rel. Leak v. Follette, 418 F.2d 1266,

1269 (2d Cir. 1969). As previously shown, the defend-

ants were not the only witnesses who could have contra-

dicted the Government’s evidence because other wit-

nesses were presented or could have been presented by

the defense.

The only Third Circuit decision holding that the use

of the phrase “uncontradicted” was violative of due proc-

ess was Linden v. U.S., 296 F. 104 (3d Cir. 1924). In

Linden, the trial judge, and not the prosecutor, made the

following, statement during the trial:

Now, as to that count there is very little to be said.

If you believe the evidence, and there is no contra-

diction of it at all, these three men were caught ina

boat on the Shrewsbury River, in what is called the

Cove between the Highlands and Sandy Hook, with

a lot of intoxicating liquor on board. You heard the

testimony with reference to that. Now there is not

any evidence at all in explanation of that transac-

tion, and there you have the bare facts.

A-52

296 F. at 105-106 (emphasis in original).

As a direct result, the Linden court held:

Everyone accused of crime is presumed to be

innocent until proven guilty. During the period of

that presumption, one so accused may combat the

evidence brought against him; or he may, if he

choose, meet it in silence. That is his right. For its

proection the law imposes corresponding silence

upon prosecutor and court. Neither can validly refer

or indirectly call attention to his failure to speak in

his own defense. Being innocent in the eyes of the

law, he is not called upon to meet accusing testi-

mony by contradiction or explanation. Therefore, no

presumption can lawfully be raised or comment

lawfully be made upon his failure to do that which

the law expressly says he shall not be required to do.

The apprehension and arrest occurred at night,

out in a stream. The only persons present were the

three defendants and the two customs officers. The

latter were witnesses for the prosecution. It follows,

therefore, that the only persons who could possibly

contradict their testimony were the defendants

themselves. Obviously, then, the only persons to

whom the learned trial judge could have alluded as

not having contradicted the government’s testi-

mony and as not having given an “explanation of

the transaction” were the defendants. This is so

clear that it does not require discussion. We are of

opinion that this part of the court’s charge involved

error and that the conviction thereunder was not

valid.

296 F. at 106 (citation omitted).

The Linden decision can be distinguished from the

present action in several respects. At the outset, Linden

was a sole-witness case and later decisions have distin-

guished Linden on similar grounds. See U.S. v. Giuliano,

383 F.2d 30, 35 (3d Cir. 1967) (unlike Linden, there

A-53

might have been other witnesses available who could

have been produced to contradict the Government’s evi-

dence other than the defendant); Slakoff v. U.S., 8 F.2d

9, 11 (3d Cir. 1925) (other methods available to rebut

Government’s proof including presentation of docu-

ments, use Of cross-examination, therefore, unlike Lin-

den decision). Moreover, in Linden, it was the trial judge

and not the prosecutor who made the remark. Therefore,

any prejudicial effect such a direct remark might have

otherwise had was further intensified because the per-

son making the comment was the trial judge who sits in

the role of the instructor of the law to the jury and whose

comments, for practical purposes, are expected, and

usually do, have a general aura of authority and believ-

ability on a jury.

Also, in Linden, the cumulative curative effect of

the court’s instructions and statements of defense coun-

sel were not present as they are here.

Finally, the defendants also object to the following

set of remarks by the Government in its closing argu-

ment to the jury:

The fourth factor that suggest that, indeed,

these defendants did not honestly believe that what

they were doing was proper is that each of them at

some point in time did not come forward and van-

didly and truthfully tell authorities what had oc-

curred. You know, after the fact, when we get into

courtrooms, there is often a gloss put over earlier ac-

tivities: “Yes, we cooperated with the authorities,”

and, “Yes, we came forward and said we honestly

believed that you could register where you didn’t

live.”

That’s not what occurred in this case.

N.T. 7-16.

As has been previously discussed, the above type of

remarks are not violative of Doyle v. Ohio, 426 U.S. 610

(1976), because they are a permissible comment on the

A-54

failure of the defendants to tell the “whole truth” or re-

main silent to the various authorities prior to indictment

or arrest. Therefore, Doyle is not applicable because it

only concerned the failure to talk to authorities after ar-

rest or indictment.

In conclusion, and for all of the above reasons, the

Court finds that the rule of Griffin was not violated by

either the “stonewalling” and “come clean” language in

the Government’s rebuttal, or by the “uncontradicted”

language in its closing argument.

II. Jurisdictional Application of 42 U.S.C.

§1973i(c) to 1975 False Voting Registrations

The next assertion raised by the defendants is that

any false voter registration occurring in 1975 is not

within the jurisdiction of 42 U.S.C. §1973i(c) of the Vot-

ing Rights Act of 1965, 42 U.S.C. §1971 et seg., because

there was not a federal election in that year. The defend-

ants rely upon the following jurisdictional language

found in §1973i(c):

Whoever knowingly or willfully gives false in-

formation as to his name, address, or period of resi-

dence in the voting district for the purpose of estab-

lishing his eligibility to register or vote, or conspires

with another individual for the purpose of encourag-

ing his false registration to vote or illegal voting, or

pays or offers to pay or accepts payment either for

registration to vote or for voting shall be fined not

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

years, or both: Provided, however, That this provi-

sion shall be applicable only to general, special, or

primary elections held solely or in part for the pur-

pose of selecting or electing any candidate for the

office of President, Vice President, presidential elec-

tor, Member of the United States Senate, Member

of the United States House of Representatives, Del-

egate from the District of Columbia, Guam, or the

A-55

Virgin Islands, or Resident Commissioner of the

Commonwealth of Puerto Rico.

42 U.S.C. §1973i(c) (emphasis supplied).

Defendants contend that only those people who reg-

istered to vote in 1976 would be subject to §1973i(c) be-

cause there was a federal election in that year. The

Court must note at this juncture that a party who claims

the benefit of a statutory exception has the burden of

proving that his particular claim falls within that statu-

tory exception. U.S. v, First City National Bank of

Houston, 386 U.S. 361, 366 (1967). See also 2A Suther-

land, Statutory Construction, §47.11 (4th ed. 1973).

In order to determine the intent and meaning of

§1973i(c) and the proviso thereto, it is first necessary to

briefly review the congressional history of that section.

The original Senate version of the Voting Rights Act of

1965, designated Senate Bill No. 1564, did not contain

the current §1973i(c). That section was proposed by

Senator Williams on April 13, 1965, after the bill left the

Senate Judiciary Committee and was being debated on

the floor of the Senate. 111 CONG.REC. 7890 (1965).

However, at the time of its introduction, the Williams

amendment did not contain the jurisdictional qualifying

language at issue here. That language was later pro-

posed by Senator Ervin and eventually made part of the

Williams amendment by a vote of the Senate on April 29,

1965. 111 CONG.REC. 8988 (1965).

At the time of the amendment’s introduction, Sena-

tor Williams made several statements as to the purposes

behind the amendment:

I have always been in favor of guaranteeing to

every American citizen an equal opportunity to par-

ticipate in the election process, but I feel just as

strongly that this guarantee is meaningless if that

vote is not counted properly, or if that vote is effec-

tively canceled by a vote that is illegally cast, or if

another person illegally registers to vote. I feel that

A-56

the Congress, in its efforts to see to it that the integ-

rity of a man’s right to vote is protected, is obligated

to see to it that the integrity of his vote itself is pro-

tected.

111 CONG.REC, 8423 (1965).

Senator Miller, a co-sponsor of the amendment, also

made the following remarks about the purposes of the

amendment:

We believe that section 14(d) of the pending

voting rights bill is deficient. First it limits its cover-

age to registration and voting under this act. There

is no reason for limiting such coverage. Registration

under this act or under any other act should be cov-

ered. There should be no loopholes. We should have

clean elections — period; not clean elections under

one act and unclean elections under some other act.

The bill prohibits fraudulent registration. This is

more difficult to prosecute than false registration,

which is what our amendment prohibits. What can-

cels out the registration of an honest citizen is a

false registration — fraudulent or otherwise. . . .

111 CONG.REC, 8813 (1965).

After considerable debate, Senator Ervin proposed

the “provided” language. Of particular interest to this

legislative analysis were the remarks of Senator

Ellender, who engaged in the following dialogue with

Senator Williams over the jurisdictional reach of the

amendment:

Mr. ELLENDER. In other words, the amend-

ment of the Senator from Delaware would apply to

all elections in all States?

Mr. WILLIAMS of Delaware. In all States and

in all elections, it would be ridiculous to say that the

Senate would condone payment to a man to vote

once but would not condone it if he votes twice or

A-57

that votes can be bought in one State and not in an-

other.

Mr. ELLENDER. What is the Senator’s justifi-

cation for making it apply to a purely local election,

say for mayor, for a representative in a legislature,

for sheriff, or for any other local office?

Mr. WILLIAMS of Delaware. Solely because

the bill itself so reads. The legislative counsel tried

to draft this amendment to comply with other lan-

guage of the bill. If a man is going to register and

vote he should do so legally. In the amendment we

are not dealing with the question as to whether the

Federal Government should or should not have the

right to intercede in a local election. The pending

bill if it should be enacted into law answers that

question. To provide otherwise the inference would

be drawn that we were willing to have a fraudulent

election at the local level, which is certainly not the

intention. I believe that in any kind of election a

man has a right to know that his vote after being

cast properly will be counted properly. I «ce no ob-

jection to it being all-inclusive, and it was made all-

inclusive.

Mr. ELLENDER. If the bill is enacted into law

as presently written, and the amendment of the

Senator from Delaware [Mr. Williams] is adopted, is

it not a fact that the Senator’s amendment would

touch upon all elections, even one selecting a jus-

tice of the peace in a State?

Mr. WILLIAMS of Delaware. Yes, the Senator

is correct, and so would the committee bill. It would

follow the same pattern of the bill.

Mr. ELLENDER. If the bill is adopted along

with the Senator’s amendment, it would mean that

in every election which would be held in a State, a

township, or in a ward, the law would become effec-

tive?

A-58

Mr. WILLIAMS of Delaware. That is true. That

is also true with the bill itself, assuming that it is

adopted as otherwise written.

111 CONG.REC., 8424 (1965).

In the same vein were the following remarks of Sen-

ator Hart:

Mr. President, [the bill]... applies to State and local

elections, as well as to Federal elections. That ques-

tion, whether Congress has the power to insure fair

election procedures in State and local elections, un-

less they are related to insuring the guarantees un-

der the 14th and 15th amendments, is a very open

one and a very serious one. This is the second rea-

son which persuades us to hope that the amend-

ment will not be agreed to.

ad % mK

... [W]e do not attempt to reach State or local elec-

tions with a criminal sanction on payment for fraud-

ulent registration in voting. Why? Because we had

very grave doubt that on that basis we could. It is

that point to which I reply. It is not a piece of

redtape or flimflam. It is a very serious problem.

111 CONG.REC., 8431, 8433 (1965).

It is apparent that Senator Ervin proposed the juris-

dictional addition to the Williams amendment to allevi-

ate these concerns. At that time, Senator Ervin made the

following remarks:

Mr. President, let me state briefly the reason why I

offer my amendment to the pending amendment of

the Senator from Delaware.

I am in favor of amendment No. 82. However,

in my opinion amendment No. 82 in its present

form is unconstitutional because it is not restricted

to Federal elections. By the term “Federal elec-

tions”, I mean elections in which presidential elec-

A-59

tors and Members of the U.S. Senate and Members

of the U.S. House of Representatives are chosen.

The only effect of my amendment would be to

confine the application of amendment No. 82 to

Federal elections and thereby make it constitutional

under the interpretation placed on the 15th amend-

ment by the Supreme Court of the United States in

a number of cases.

111 CONG.REC. 8975 (1965).

After the Senate’s passage of the revised amend-

ment, it was proposed on the floor of the House of Repre-

sentatives during the debate on the House version of the

present Voting Rights Act of 1965. The House amend-

ment was proposed by Representative Cramer on July 8,

1965. Representative Cramer made the following com-

ments concerning the jurisdictional implications of the

amendment:

There is no question about the constitutionality

of the proviso which was adopted on the Senate

floor and which I included in my amendment, mak-

ing this applicable to Federal elections.

ca me me

So there would be no question of constitutionality I

accepted the Senate amendment, and offered it in

amended form before the Judiciary Committee. But,

lo and behold, all these people who want to do so

much about voting showed pretty clearly they want

to do it when it relates to somebody else’s back yard,

but when it gets to their own they take the attitude

“we had better be reserved about Federal powers.”

That is what happened, that is the story. The com-

mittee turned dowi: the Williams-Cramer clean

elections amendments 19 to 15.

111 CONG.REC. 15982 (1965).

At the same time, Representative Cramer made the

following statements concerning the purposes and in-

tent underlying the amendment:

111

A-60

Mr. CRAMER. Therefore, this section 12(e) is

not limited to individuals registered by an examiner.

So they contrived a broad remedy where any person

is not entitled to vote but lo and behold, they would

not give a person a remedy under my amendment if

he falsely votes or falsely makes an application and

lies to a registrar other than an examiner — no rem-

edy. Outside of the places where the examiners are

appointed, there is no remedy relating to lying to a

registrar but there is under my amendment. And,

therefore, I also say that there is nothing at all in the

bill with regard to vote buying. So now if we want to

do something all over America relating to everybody

and not limited only to certain things and certain

areas, you will vote for my amendment. You are go-

ing to have the opportunity to do so in the substitute

offered, the McCulloch-Ford substitute. So I say for

these two basic reasons, if for no others, the Celler

committee bill should be substituted for the

McCulloch bill. I want the citizens in al] States to be

first class citizens and not second class citizens. I

want them to have the same rights as everybody

else and not be discriminated against as it is under

the Celler committee bill and under section 3, the

pocket trigger.

CONG.REC. 15983 (1965).

So if you want clean elections in America, if you

want to clean up the elections throughout this

country, support this amendment. It will apply uni-

versally to the entire Nation. If you want those peo-

ple who will be registered, as minorities, to have

their votes mean something, then you will support

this amendment, because you will not want their

votes “watered down” by the stealing of other votes.

You can register all of the minorities you want,

but if you turn around and permit other people to

A-61

come in and register tombstones, to come in and

provide false and fallacious and illegal absentee bal-

lots, to come in and buy and procure votes, to come

in to float voters from one voting precinct to another

or from one county to another county — who do so

intentionally, knowingly, willfully and purposefully

to affect an election result — then you will just not

give much of a remedy to these people to whom we

are attempting to give voting rights today

This applies to everybody. This provides for re-

lief for everyone as it relates to preventing fraudu-

lent voting.

111 CONG.REC. 16246 (1965).

The amendment was passed without revision by the

House on the day after its introduction. 111

~ CONG.REC. 16281 (1965). The Williams-Cramer

amendment was included without significant alteration

by the Joint Conference Committee.

Therefore, the only interpretive evidence regarding

the intent and meaning of the jurisdictional qualifying

language at issue here are the statements made on the

Senate floor by Senators Williams, Ellender, Hart and

Ervin.

Under Pennsylvania law, registration to vote auto-

matically qualifies the registrant to vote in any election

for a two-year period, unless there is a change of ad-

dress. 25 Pa.C.S.A. §623-21; 25 Pa.C.S.A. §623-40. If

the registrant has voted in any election during that two-

year period, the registration remains intact. If (s)he has

not voted during that period, the registration lapses and

there must be a re-registration. 25 Pa.C.S.A. §623-40.

Furthermore, a single registration entitles the registrant

to vote in local, state and federal elections without the

need for separate registrations for each election. 25

Pa.C.S.A. §623-21; 25 Pa.C.S.A. §623-2; 25 Pa.C.S.A.

§623-38.

A-62

With these state registration laws in mind, the

Court must apply the proviso in §1973i(c) to the instant

facts, in light of the legislative goals. Two approaches

will be taken.

From a literal viewpoint, the “provided” language

only applies to “federal elections.” That provision does

not include a reference to “registration,” even though

the preceding general language of §1973i(c) prohibits

the use of false information for purposes of registration,

voting or conspiracy to falsely register or illegally vote.

In essence, the section prohibits three separate and dis-

tinct types of criminal behavior. A person can register le-

gally using truthful information but vote illegally in an

improper election district. Alternatively, a person can il-

legally register using false information but never vote at

all. Therefore, interpreting the phrase “federal elections”

in light of the three-part thrust of the statute, the Court

finds the phrase does not include registration activities.

This literal reading of the qualifying language of

§1973i(c) comports with the prior legislative concerns

expressed by Senators Ellender, Hart and Ervin during

the floor debate — namely, that the amendment should

“rot apply to purely state or local “elections” for mayor,

state representative or justice of the peace. 111

CONG.REC. 8424, 8431, 8433, 8975 (1965). A concern

for federal interference with registrations was not ar-

ticulated. Therefore, under §1973i(c), any purely state

or local election occurring in 1975 in which persons ille-

gally voted using false information would not be within

the jurisdicitonal reach of §1973i(c) because there was

not a federal election in 1975.

Furthermore, an extrinsic approach to the qualify-

ing language of the “provided” clause brings us to the

conclusion that false registration alone can be a violation

of the statute even in respect to registrations occurring

in years where there is no federal election — such as

1975. Under state election law, a registrant does not reg-

ister for an election but rather secures a period of eligi-

A-63

bility to vote in any election during that period.°° In

Pennsylvania, this is for a two-year period. Congress was

aware of this pattern of eligibility when it enacted

§1973i(c).°! Accordingly, any false registration can be

the basis of a violation of §1973i(c), because it creates an

eligibility to vote in a federal election. This is true

whether or not that registration occurs in the same year

as a federal election. The construction urged by the de-

fendants would be in derogation of the manifest con-

gressional intent. If the defendants are correct, a person

intending to vote in a federal election by means of a false

registration need only wait until the “off year” to commit

the false registration and then cast a vote in the follow-

ing year. This result would undermine the congressional

purpose under §1973i(c) of providing a statute with “ex-

traordinary scope and sweep” with which to stop illegal

voting practices. This goal was to be achieved under the

statute by prohibiting the actual casting of the illegal

vote and to further prohibit registration using false infor-

mation.*? Congress determined that the evil of false reg-

30. Whether Congress could establish by law a separate fed-

eral registration is unclear under its legislative powers under Article

1, section 4 of the United States Constitution. However, until the

time that a separate federal registration is enacted, a system of gen-

eral registration qualifying the registrant to vote in local, state and

federal elections exists.

-31. Representative Edwards made the following acknowledge-

ment during the House debate over the Cramer amendment:

In the first article of the Constitution which authorizes the

individual States to decide the qualifications of voters in both

Federal and State elections, subject only to the condition that -

whoever is deemed qualified to vote for “the most numerous

branch of the State legislature” is automatically qualified to

vote in Federal elections.

The giving to the States of this responsibility was no casual

decision. It has been reaffirmed again and again... .

111 CONG.REC. 16012 (1965).

32. See statements of Senator Williams during Senate debate

on his amendment, 111 CONG.REC., 8428 (1965), and statements

of Senator Dirksen concerning the testimony of Senator Williams

on his amendment at Hearings before Senate Judiciary Committee

on S.1564, 89th Cong., Ist Sess., April 5, 1965, at 803.

A-64

istration is just as great as the evil of illegal voting —

both present an equally grave threat to the integrity and

honesty of the electoral system of the Nation.**

The major weakness with the defendants’ analysis

is that they are misconstruing the statute by adding into

the statute the concept of an election “year,” when the

statute clearly says nothing about an election “year.” In-

stead, it speaks of the act of “registration” and the act of

“voting.”

In the instant action, the persons who registered in

1975 using false addresses and false periods of residence

became eligible, by that single 1975 act, to vote in the

federal election in 1976.** The statute was aimed at pro-

hibiting the exact type of activities that occurred in this

case, as indicated by the following statements of Senator

Williams during the Senate debate:

33. Senator Williams stated during the Senate debate on his

amendment:

I do not wish any misunderstanding about what we are try-

ing to achieve. We are trying to deal with two subjects — false

registration and paymeiis for registration and voting. First, we

want to make sure that a person in registering does not know-

ingly or willfully give false information; second, we wish to

make sure that anyone who pays or offers to pay a person or

anyone who accepts payment for casting his vote or for register-

ing would be in violation of the law. But beyond that, we do not

intend to touch any of the other activities the Senator de-

scribed.

111 CONG.REC. 8987 (1965). See also 111 CONG.REC. 8425,

8429, 8432, 8988 (1965) (Senator Williams); 111 CONG.REC.

15983, 16246 (1965) (Representative Cramer), quoted supra.

34. The following individuals falsely registered in 1975 using

addresses at which they did not live, and voted in the following year,

as indicated by City of Philadelphia Voter’s Permanent Registration

Affidavits, in the 1976 primary or general elections at which feueral

candidates were on the ballot: Patricia DiGiambattista (defendant);

Joseph Tully (defendant); Maryann Tully (defendant); Catherine

Spagna (defendant); Vincent Spagna (defendant); Sheldon

Keslinger (Government immunized witness); Joan Donaldson

(Government immunized witness).

—_

—s

A-65

Mr. SALTONSTALL. My question is a simple

one. Do I understand the Senator’s amendment to

mean that if, for instance — as I have known it to

happen — 20 people were registered in a house

where there are only a few beds, and the question

would arise of registration of a questionable charac-

ter, could those persons be prosecuted under the

Senator’s amendment?

Mr. WILLIAMS of Delaware. The man who

knowingly and wilfully falsely registers would be

subject to prosecution.

Mr. ELLENDER. You mean more people

might be registered at an address on X Street than

actually live there?

Mr. WILLIAMS of Delaware. Yes, if 20 people

registered at the same address on X Street, and it

could be proved they did not live there, they could

be prosecuted. If only 5 eligibie persons lived at that

address and 25 others had fraudulently registered,

under my amendment those 25 persons who had

fraudulently registered as living at that address

would be considered as having registered illegally

and could be subject to prosecution.

Likewise, if in the general election they voted

as the result of this fraudulent registration, under

my amendment they could be prosecuted. The per-

son himself could be prosecuted under the amend-

ment because he had given false information in reg-

istering.

By the same token, if a ward leader or someone

else conspired with this person he too could be pros-

ecuted. if there is a conspiracy between those ille-

gally registering and a second party they can both

be held responsible. Why should there not be some

responsibility on the part of the man registering?

I support the section of the civil rights bill

which was enacted last year which guaranteed our

citizens the right to vote. I thought then we had

A-66

dealt with the problem, but apparently we did not do

it adequately. I am willing to guarantee that every

man and woman shall have the right to vote, but if

he does not wish to vote without being paid he

should not be eligible to vote.

By the same token, when we guarantee that

man the right to register he should have some re-

sponsibility that when he goes before the registrar

he is giving the registrar the proper information and

is not registering in a State or a district in which he

does not qualify to vote.

111 CONG.REC. 8425 (1965) (emphasis supplied).

Therefore, based on both a literal and extrinsic ap-

proach to the meaning and intent behind §1973i(c), the

Court finds that the statute was intended to include false

registrations occurring in federal and non-federal elec-

tion years and was intended to include only illegal voting

activities using false information in federal elections.

III. 1975 Registration Form and Residence Under Penn-

sylvania Election Law

Defendants argue that the indictment fails to allege

sufficient facts to constitute a federal criminal offense

because the 1975 voter registration form only specifies

“No. - Street - House, Floor, Apt. or Room” without fur-

ther explanation and is, therefore, vague and mislead-

ing. As a result, the defendants could not have misrepre-

sented any material facts in completing the 1975

registration form, and could not have violated §1973i(c).

The Court finds their arguments to be without merit for

two reasons. First, the 1975 Pennsylvania voter registra-

tion form is neither vague nor misleading and, accord-

ingly, there can be a “knowing and willful” misrepresen-

tation as to a material fact on that form under §1973i(c).

To determine if the question on the 1975 form re-

questing the registrant’s “No. - Street - House, Floor,

A-67

Apt. or Room” is vague or misleading, the entire form

must be examined to determine what a reasonable per-

son would perceive that question to mean. See Bronston

v. U.S., 409 U.S. 352, 355-356 n.3 (1973). As the form

shows,”° two other questions asked of a registrant per-

tain to the registrant’s “address” and a reading of all

three questions in conjunction can only lead to the con-

clusion that the form was asking for the person’s address

or residence, as those terms are used by the most ele-

mentary person in every walk of life in contemporary

America.

The form also contains an attestation clause, repro-

duced as follows:

| hereby swear, or affirm, that | am a citizen of the United States,

that on the day of the next election | shall be of legal age, and shall have

resided in the State of Pennsylvania for thirty days next preceding said

election, and in the election district thirty days, that | am legally quali-

fied to vote, that | have read (or have had read to me) the foregoing

statements made in connection with my registration, and that they are

true and correct. Any willful false statement made by me is perjury and

punishable as such. MIS OR HER

MARK

SIGNATURE OF VOTER

SUBSCRIBED AND SWORN TO BEFORE ME THIS

Day oF 9

SIGNATURE OF REGISTRAR OR PERSON AUTHORIZED 10 ACT AS REGISTRAR

(Actual size.) (Emphasis supplied).

By this clause, the registrant swears or affirms un-

der oath to the truthfulness of the information in the

presence of an official from the Philadelphia Voter Reg-

istration Division. In addition, it appears directly above

the signature line and is not obscured in any way. See

U.S. v. Squires, 440 F.2d 859, 865-866 (2d Cir. 1971)

(Moore, J., concurring). Part of this attestation clause

states that the signatory swears to be a “legally qualified

35. See the complete text of the 1975 Pennsylvania Voter Reg-

istration Form at Appendix, infra.

A-68

voter,” which, in turn, means that: (1) the person is le-

gally registered to vote under Pennsylvania election law;

and, (2) the person has registered using a valid legal

residence as defined under state law. These provisions of

law are based on Pennsylvania statutory and decisional

law. The statute provides:

In determining the residence of a person desii-

ing to register to vote, the following rules shall be

followed so far as they may be applicable:

(a) That place shall be considered the residence

of a persu: ig which his habitation is fixed, and to

which, whenever he is absent, he has the intention

of returning. ’

(b) A person shall not be considered to have lost

his residence who leaves his home and goes into an-

other state or another election district of this State

for temporary purposes only, with the intention of

returning.

(c) A person shall not be considered to have

gained a residence in any election district of this

State into which he comes for temporary purposes

only, without the intention of making such election

district his permanent place of abode.

(d) The place where the family of a married

man or woman resides shall be considered and held

to be his or her place of residence, except where the

husband and wife have actually separated and live

apart, in which case the place where he or she has

resided for two months or more shall be considered

and held to be his or her place of residence.

(e) If a person removes to another state with

the intention of making such state his permanent

residence, he shall be considered to have lost his

residence in this State.

(f) If a person removes to another state with the

intention of remaining there an indefinite time and

making such state his place of residence, he shall be

A-69

considered to have lost his residence in this State,

notwithstanding he may entertain an intention to

return at some indefinite future period.

(g) If a person removes to the District of Co-

lumbia or other Federal territory or foreign country

to engage in the government service, he shall not be

considered to have lost his residence in this State

during the period of such service, and the place

where the person resided at the time of his removal

shall be considered and held to be his place of resi-

dence.

(h) If a person goes into another state and while

there exercises the right of a citizen by voting, he

shall be considered to have lost his residence in this

State.

25 Pa.C.S.A. §2814.

Pennsylvania cases have established certain legal

principles that are to be applied in addressing a question

of residence under this statute. Perhaps the landmark

decision in this area was by the Pennsylvania Supreme

Court in Stabile Registration Case, 348 Pa. 587 (1944),

which held, in relevant part:

The fact of‘any person’s residence, for any legal pur-

pose, whether for voting, or for holding office, or for

taxation, has never been determined merely by that

person’s “say so”. In determining that question the

state brushes aside all colorable pretences and finds

the reality behind the guise.

... In Fry’s Election Case, 71 Pa. 302. . ., this court

quoted with approval from Story’s Conflict of Laws,

sec. 41, as follows: “By the term ‘domicil’ in its ordi-

nary acceptation, is meant the place where a person

lives or has his home. In a strict legal sense that is

properly a domicil of a person where he has his true,

fixed, permanent home and principal establish-

ment, and to which, whenever he is absent, he has

A-70

the intention of returning.” Justice Agnew added:

“The term residence [as used in the Constitution]

means the place where the elector makes his per-

manent and true home, his principal place of busi-

ness, and his family residence, if he have one” (ital-

ics supplied).

... When Stabile and his wife come to that home

they come as they would come to a lodging house

where they have the right to sleep and to eat and to

entertain friends. It is not their permanent home,

their place of domestic abode. It is a place where

they are only transients, exactly as they would be at

a hotel where they had similar privileges.

... If by merely obtaining the privilege of occasion-

ally lodging and eating and entertaining in another

man’s habitation, a person can obtain “legal resi-

dence” there, our decision in the Dorrance case,

supra, and the decision of the U.S. Supreme Court

in the Green case (State of Texas v. State of Flor-

ida), supra, must be erroneous. We do not so con-

sider them.

+ » *

Residence indicates permanency of abode as

distinct from mere lodging and boarding.

348 Pa. at 591, 593-594.

In the case before us, the Court duly instructed the

jury on the above-settled principles of Pennsylvania

voter registration law concerning “residence.” [N.T. 8-

64 to 67.| The Court also instructed the jury that persons

registering to vote are presumed to know state election

law concerning registration. [N.T. 8-65 to 7], 85, 86.]

That instruction was given based on the evidence pre-

sented at trial as a conclusion of law, for the following

reasons.

When a person swears under oath that (s)he is a “le-

gally qualified voter,” (s)he is affirming that (s)he has

A-71

registered using a valid, legal residence for purposes of

that registration. This presumption does not run afoul of

the legal doctrine that, “Ignorance ... as to a matter of

law is a defense if ... the ignorance negatives [sic] the

... knowledge ... required to establish a natural ele-

ment of the offense ... U.S. v. Squires, supra, 440 F.2d

at 864, Model Penal Code §2.04(1)(a) (A.L.I. Prop. Offi-

cial Draft, 1962). As the Court instructed the jury, this

means that, if a person acts inadvertently, accidentally

or by good faith mistake, (s)he is not acting “knowingly

or willfully” in giving false information as to their resi-

dence for purposes of establishing eligibility to register

to vote, as required under §1973i(c).2° However, this de-

fense is not without limitation. A person cannot act in

bad faith by deliberately ignoring what is obvious®’ or

close his eyes to facts that are true to a high probability.

See Leary v. U.S., 395 U.S. 6, 46 n.93 (1969); U.S. v

Jewell, 532 F.2d 697, 700 (9th Cir. 1976); U.S. v.

36. As Senator Tydings, a member of the Senate Judiciary

Committee, stated during debate on the floor of the Senate as to the

general meaning of the phrase “knowingly and willfully,” used

throughout the Voting Rights Act of 1965, 42 U.S.C. §1971 et seq.:

Subsection 12(a) provides for the imposition of criminal

penalties for “willfully and knowingly” depriving or attempting

to deprive other persons of rights secured by certain enumer-

ated sections of the act or for “willfully and knowingly” violat-

ing section 11. The phrase “willfully and knowingly” was in-

serted by the Judiciary Committee to make it clear that no

criminal violation is involved where a person acts with due care

and without knowledge of the relevant facts. To put it another

way, action or inaction which deprives others of rights secured

by the act but which is done or omitted inadvertently is not a

basis for prosecution. This language was not intended to re-

quire a showing of any specific intent similar, for example, to

that presently required under judicial constructions of 18

U.S.C. 242. The same language was inserted by the committee

in section 12(c) for the same reason.

111 CONG.REC. at 8369 (1965).

37. Defendants agree with this doctrine, as indicated in their

Verbatum |sic| Jury Instruction as Proposed by Defendants Joseph

R. Ricca, Ramon Meirino and Anthony Fiorentino, at 2.

A-72

Squires, supra, 440 F.2d at 863. A person cannot delib-

erately fail to read or attempt to understand clear lan-

guage to which (s)he is swearing under oath. See U.S. v.

Jewell, supra, 532 F.2d at 702-703. Therefore, the Court

concluded that, if a person attests that (s)he satisfies

certain legal requirements under state election law, that

person cannot be excused on the ground that (s)he did

not understand the law (s)he attested to have knowledge

of. As the court in Ketchum v. Ward, 422 F.Supp. 934

(W.D.N.Y. 1976), held:

Fundamental fairness no doubt requires that an in-

dividual be given the opportunity to discover a stat-

ute’s existence, applicability and meaning. Not ev-

ery layman will read the Penal Code from cover to

cover. But, if the statute in question is either clear in

meaning upon reading, or sufficient to warn the lay-

man that he should seek legal advice as to its appli-

cability and meaning, it is proper to charge the po-

ential violator with such knowledge of a law’s

applicability as he could obtain through competent

legal advice ... If a competent lawyer is consulted,

he should be able to predict whether the statute

might be used as a basis for prosecuting his client.

If the words of the statute and other related law

make it impossible to make such a prediction, a stat-

ute comes close to inadequate advance notice...

422 F.Supp. at 941.

A person does not have to know with certainty that

these laws exist or that a particular statute or decisional

authority is applicable. A person need only be aware with

a high probability of certainty that some illegality exists.

Leary v. U.S., 395 U.S. 6, 46 n.93 (1969). Furthermore,

if a person chooses to swear that an act is legal when

(s)he is uncertain that it is in fact legal, the choice car-

ries with it the duty of investigating the law. In the

present case, there is a high probability that a registrant

would be aware that the phrase “legally qualified to vote”

A-72

might have a particular legal meaning, separate and dis-

tinct from the meaning those words might convey in ca-

sual conversation.*® This is reinforced by the statement

on the form that a penalty will be incurred for false

swearing. Although there is a strong public policy sup-

porting the mistake-of-law doctrine and the requirement

that a person present a compelling justification to over-

come it, U.S. v. Barker, 546 F.2d 940, 948 n.23 (D.C. Cir.

1976), there are obvious and necessary exceptions to it.

Such an exception is articulated in U.S. v. Barker,

supra, at 952-954. There, the court relied upon the Mod-

el Penal Code, §2.04(3)(b), which states:

A belief that conduct does not legally constitute an

offense is a defense to a prosecution for that offense

based upon such conduct when: ... (b) he acts in

reasonable reliance upon an official statement of the

law, afterward determined to be invalid or errone-

ous, contained in (i) a statute or other enactment;

(ii) a judicial decision, opinion or judgment; (iii) an

administrative order or grant of permission; (iv) an

official interpretation of the public officer or body

charged by law with responsibility for the interpre-

tation, administration or enforcement of the law

defining the offense.

In this case, the defendants presented no such defense.

Mauney v. U.S., 388 F.Supp. 1078, 1079 (E.D.Tenn.

1971). The defendants did try to introduce the testimony

of a solicitor to the Election Commission for the

obstensible purpose of orally discussing what consti-

tuted his opinion of local law concerning residence. The

Court refused the offer because defendants were unable

to show that: (1) they had relied upon these opinions or,

(2) that these opiniions were premised on some form of

written or reported rulings of the Commission. [N.T. 6-

38. The 1976 mail-in voter registration form also involved in

the present action similarly contains the same attestation clause

that appears on the 1975 form.

A-74

189 to 194.] Also, an exception applies if the applicable

law is vague or unclear because, then, a person’s con-

duct can only be based on guesswork or uncertainty.

As the Supreme Court, in Connally v. General Con-

struction Co., 269 U.S. 385 (1926), held:

[A] statute which either forbids or requires the do-

ing of an act in terms so vague that men of common

intelligence must necessarily guess at its meaning

and differ as to its application, violates the first es-

sentials of due process of law .. . [T]he decisions of

the court upholding statutes as sufficiently certain

[in other cases], rested upon the conclusion that

they employed words or phrases having a technical

or other special meaning, well enough known to en-

able those within their reach to correctly apply them

.. or a well-settled common law meaning, not-

withstanding an element of degree in the definition

as to which estimates might differ.

269 U.S. at 391, quoted in Ketchum v. Ward, supra, 422

F.Supp. at 940 (citations omitted).

This exception was evidenced in the case of U.S. v.

Squires, supra, where a firearms purchase form re-

quired the purchaser to state whether (s)he had been a

convicted felon under certain specified federal statutes.

The Squires court held that:

[W]e do believe that when the Government adopted

the form it imposed upon itself an unusually diffi-

cult burden of proof as to a signer’s knowledge of his

criminality. It can safely be said that many lawyers

would not have understood, without the benefit of

research, the import in the original form of the certi-

fication provision. To require a layman, without any

explanation, to sign such a certification at his peril

appears to us to be quite unrealistic. While it is pos-

sible that a defendant may be shown to have suffi-

cient familiarity with the cited statutes, all that we

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are saying here is that the obscure language of the

certification provision was highly relevant to [the

defendant’s] knowledge, and that the trial court

should have so instructed the jury.

440 F.2d at 865.

A parallel decision on this notion is U.S. v. Bishop,

412 U.S. 346 (1973), which discussed the requirement

that the defendant be shown to have “willfully” submit-

ted a false tax return. The Court stated:

This longstanding interpretation of the purpose

of the recurring word “willfully” promotes coher-

ence in the group of tax crimes. In our complex tax

system, uncertainty often arises even among tax-

payers who earnestly wish to follow the law. The

Court has said, “It is not the purpose of the law to

penalize frank difference of opinion or innocent er-

rors made despite the exercise of reasonable care.”

Spies, 317 U.S., at 496. Degrees of negligence give

rise in the tax system to civil penalties. The require-

ment of an offense committed “willfully” is not met,

therefore, if a taxpayer has relied in good faith on a

prior decision of this Court. The Court’s consistent

interpretation of the word “willfully” to require an

element of mens rea implements the pervasive in-

tent of Congress to construct penalties that separate

the purposeful tax violator from the well-meaning,

but easily confused, mass of taxpayers.

412 U.S. at 360-361 (citations omitted).

The law is clear that a person must be legally regis-

tered in order to vote. 25 Pa.C.S.A. §2811. It is also clear

that a person must have some factual connection or

nexus with the address from which (s)he registers to

vote. 25 Pa.C.S.A. §2814. One basic principle particu-

larly pertinent here is that a person cannot register from

a residence with which (s)he has no nexus whatsoever.

For example, defendant Fiorentino registered from 1433

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South 6th Street, 3rd floor, using the 1975 voter registra-

tion form. However, before trial, he admitted to the fed-

eral grand jury that he had never lived at that address.

[N.T. 4-217.] Therefore, the jury found under Pennsyl-

vania law that defendant Fiorentine © ..24&*claim he

was a resident of an address at which he had no factual

nexus whatsoever. He attested, as did all registrants, on

the 1975 registration form that he was “legally qualified

to vote,” thus, in effect swearing that, under Pennsylva-

nia law, the registration was legally proper. Therefore,

the jury was unquestionably entitled to find that defend-

ant Fiorentino did not act inadvertently, by mistake or

accident or by mistake of law, but acted “knowingly or

willfully” in providing a false address with which to reg-

ister to vote.

Defendant Ricca also completed a 1975 voter regis-

tration form and attested that he, too, was “legally quali-

fied to vote” at 1427 South 6th Street on the 2nd floor.

He told the federal grand jury that he had “stayed there

a few times, but that’s not my permanent address.” [N.T.

2-183.] He also told the FBI that “he stayed there on a

couple of occasions in both 1974 and 1975 as a result of

marital problems . . . never intend[ed] to abandon his

residence.” [N.T. 5-31] There was no evidence to cor-

roborate Ricca’s claim that he was having marital prob-

lems or that he was separated from his wife. See 25

Pa.C.S.A. §2814. The testimony of several witnesses at

trial indicated that Ricca had frequented the first floor

apartment of defendant Cianciulli.*° Ricca’s counsel ar-

gued in her closing argument to the jury that Ricca did,

in fact, live in the first floor apartment with defendant

Cianciulli based on the above testimony and Ricca’s

prior statements. [N.T. 7-63 to 66.] However, Ricca’s

registration forrn indicated that he lived on the second

39. See testimony of the following witnesses: Anthony

Lucidino and Dr. Leopold Salkind, who testified on September 20,

1979, as indicated in the Court's bench notes and the Court Report-

er’s official notes; Salvatore Cannistraci, N.T. 1-165, 166, 177.

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floor and not the first floor of that building. The Pennsy|l-

vania registration law provides, and the jury was so in-

structed, that staying at an address infrequently, or sim-

ply stating that you reside at an address, is not sufficient

to establish residence. See Stabile Registration Case,

supra, 348 Pa. at 591, 593-594; 25 Pa.C.S.A. §2814.

Based on these facts and the appplicable law, the Court

finds the jury had a clear basis to find that Ricca acted in

deliberate disregard of state law on residence and did not

act by mistake, accident or inadvertence and did so

“knowingly or willfully.”

In conclusion, the defendants’ claim on these

grounds lacks merit.

IV. Jury-Tampering Incident

Finally, defendants Ricca and Fiorentino claim that

they were deprived of a full, fair and public trial because

the jurors were prejudiced by a possible jury-tampering

incident. The Court rejects the defendants’ contentions

for several reasons.

The factual background surrounding this incident

is as follows: On Friday, September 14, 1979, which was

the second full day of the trial, alternate juror Joan

Olejkowsky was approached by an unidentified male at

the elevators outside the courtroom after the Court had

recessed for the day. The male asked her where she lived

and whether he could give her a ride home. She declined

the offer and left the courthouse. On Monday, Septem-

ber 17, 1979, juror Olejkowsky told other jurors of the

incident and asked them whether she should report the

incident to the Court. Some of the jurors said that she

should notify the Court, which she did that day by in-

forming the courtroom deputy clerk of the incident,

who, in turn, notified the trial judge. The Court in-

structed the clerk to tell the juror, out of the presence of

the other jurors, to immediately advise the clerk if she

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noticed the male in the courtroom. She did not see the

male in the courtroom that day, but did see him the fol-

lowing day, September 18, and so notified the clerk. Pur-

suant to the Court’s instruction, the male was ques-

tioned by agents of the FBI. The person identified

himself to the FBI as the brother of defendant

Fiorentino. When this information was reported to the

Court, the trial was recessed and the Court notified the

defendants and their counsel of the incident. [N.T. 5-

83.] Thereafter, the Court undertook an individual voir

dire of the juror involved, as well as a separate voir dire

of all of the other jurors. This was done in the presence

of the defendants and counsel and was on the record.

The Court asked the juror involved whether she had

talked to any other jurors about the incident and

whether she had been prejudiced by the incident in any

way. She said that she had only told the other jurors ini-

tially about the occurrence of the incident but had not

talked about the case with them. She also stated, under

oath, that she did not know the identity of the male who

had approached her and that some of the other jurors

had told her that they also had seen him. [N.T. 5-86 to

90, 5-100 to 102.] The other jurors were asked: (1)

whether they knew about the incident involving juror

Olejkowsky and whether she had told them about it or if

they knew who the male was; (2) if they would be

prejudiced in any way by the incident; and, (3) whether

they could still render a fair and impartial verdict based

solely on the evidence presented. All of the jurors testi-

fied, under oath, that they did not know who the male

was; that they did not associate him with either the Gov-

ernment or the defense; and, that the incident would not

affect their impartiality and fairness to decide the instant

action. [N.T. 5-104 to 133, 5-3 to 12.] The Court ruled

that the jury should be sequestered forthwith for the re-

mainder of the trial. [N.T. 5-82.] None of the jurors were

told then or at any time during the remainder of the trial

why they had been sequestered and they were not ad-

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vised of the identity of the male who had approached ju-

ror Olejkowsky.

Counsel for Ricca filed an affidavit on October 1,

1979, five days after the trial, and attached to Ricca’s

post-trial motion, advising the Court for the first time of

another related matter. She says in her affidavit that,

while the jury was deliberating, she was approached by

a person in the courthouse corridor who identified him-

self as the boyfriend of juror Olejkowsky. He supposedly

told her that juror Olejkowsky had told him of being

approached by an unknown male and that he had ad-

vised her to notify the Court. The affidavit stated, “He

also stated that Ms. Olejkowsky has

This text is long and has been trimmed here. Open the source document for the complete record.