Opposition — Fiumara v. United States

-Suprome Court, us. |

fk ILED

No. 80-1800 i yay 29 1981

STEVAS,

An the Supreme Court of the Hn

Octoser Term, 1980

TINO FIUMARA, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

Wane H. McCresr, Jr.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

Joe, M. GersHow!Tz

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the group of individuals associated in this

case to commit unlawful acts for profit constituted an

“enterprise” within the meaning of the Racketeer Influ-

enced and Corrupt Organizations Act (RICO), 18 U.S.C.

1961 et seq. (all petitioners).

2. Whether consensual recordings of petitioners’ conver-

sations with a government informant violated the Fourth

Amendment because they were obtained without a warrant

(all petitioners).

3. Whether the government's electronic surveillance of

petitioner Buzzanca’s office violated the minimization

requirements of 18 U.S.C. 2518(5) (all petitioners).

4. Whether the district court abused its discretion in

denying petitioners’ severance motions (all petitioners).

5. Whether petitioner Buzzanca was entitled to an

entrapment instruction.

6. Whether the district court erroneously instructed the

jury on the elements of the Hobbs Act, 18 U.S.C. 1951

(petitioners Fiumara and Buzzanca).

TABLE OF CONTENTS

Page

Opinions BEIOW .cccccccccccccvesccvecccccccccces l

JUTIGIOTION cccccccccccccncccccccceccseccecccencee l

SUMUOMMONE woccnccccccccvcccccscccveccecceveccees l

ATBUMIORE ccccccccccccccccccccccccccesecnesccens 3

COMCIUBION cocccccccccceccccccsvcccccecceececes 10

TABLE OF AUTHORITIES

Cases:

Busic v. United States, 446 U.S. 398.6... eee eee 4

Katz v. United States, 389 U.S. 347.0... cece 5

Scott v. United States, 436 U.S. 128 wo... cee 6

United States v. Adams, 581 F. 2d 193,

cert. denied, 439 U.S. 1006 2... . cece eee eens 7

United States v. Aloi, 511 F. 2d 585,

cert. denied, 423 U.S. 1OIS wo... cece eee ees 6

United States v. Caceres, 440 U.S. 741 .....555. 5

United States v. Clemente, 482 F. Supp.

BGS vccccccccccvccscteccevonccccencececs 5,6

United States v. Enmons, 410 U.S. 396 ......... 9

United States v. Fury, 554 F. 2d 522,

cert. denied, 433 U.S. 910 .... cece c ee eeeeeeee 5

United States v. Licursi, 525 F. 2d 1164 ........ 7

United States v. Nace, 561 F. 2d 763 ......0065. 6

United States v. Thomann, 609 F. 2d 560 ....... 7

United States v. Turkette, No. 80-808

(argued Apr. 27, 1981)... ccc eee eee eee eees 4, 10

IV

Page

Cases—(Continued):

United States v. Watson, 489 F. 2d 504 .......... 7

United States v. White, 401 U.S. 745 .....6.005- 4

United States v. Wilner, 523 F.2d 68 ......+4+. 8

Constitution, statutes and rules:

United States Constitution, Fourth

PURETAGTR ccc ccccccsventoccsseccecvonves 4

Hobbs Act, 18 U.S.C. 1951 ..ccccsccccccccvees 2

Se Uk. SHOE) ccccndoscvocecseosens 9

Labor-Management Relations Act

(“Taft-Hartley Act”):

(Bip Sede PPPPT TTL TTrrrrrreeee ee

Racketeer Influenced and Corrupt Organizations

Act (RICO), 18 U.S.C. 1961 ef seg. .......+5: 3-4

Fe Ms SUED cocdcccbesecbdsrcocnnecens l

PP Sets CONES ccnconocevesneessseceses 2

Pe Ue EPUNEEE Weaceccevoncedacecvecdones 5,6

DORR FORE Knee secrecancctouesenceeseeces 2

PMs TERED Sheet deveedsarerevscceercees 2

, & ee Ee BPrerrrrrr errr er eer rrerr 6

Fed. R. Crim. P. 14 ..cccccccccvcccccccvcccees 6

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1800

TINO FIUMARA, ET AL., PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-34a) is

not yet reported. The opinion of the district court denying

petitioners’ suppression motions is reported at 482 F. Supp.

102.

JURISDICTION

The judgment of the court of appeals was entered on

February 26, 1981. The petition for a writ of certiorari was

filed on April 27, 1981. The jurisdiction of this Court is

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

STATEMENT

After a jury trial in the United States Distr‘ct Court for

the Southern District of New York, petitioner * samara was

convicted on one count of participating in an enterprise

through a pattern of racketeering activity, in violation of

the RICO statute, 18 U.S.C. 1962(c) (Count 1); one count of

2

conspiring to commit that offense, in violation of 18 U.S.C.

1962(d) (Count 2); 35 counts of extortion, in violation of the

Hobbs Act, 18 U.S.C. 1951 (Counts. 14-48); 35 counts of

bribery, in violation of the Labor-Management Relations

Act (“Taft-Hartley Act”), 29 U.S.C. 186(b) (Counts 49-83);

and two counts of evading taxes and filing false tax returns,

in violation of 26 U.S.C. 7201 and 7206(1) (Counts 210 and

211). Petitioner Buzzanca was convicted on each of the

above counts, except the tax counts, and on one additional

count of violating the Taft-Hartley Act (Count 84). Peti-

tioner Copolla was convicted on the RICO conspiracy

count.

Petitioner Fiumara was sentenced to 20 years’ imprison-

ment on Count 1, to be served concurrently with a sentence

he is presently serving in another case; 5 years’ imprison-

ment on Count 2, to be served consecutively to the sentence

on Count 1; 20 years’ imprisonment on each of Counts 14

through 48, to be served concurrently with each other and

with the sentence on Count 1; 6 months’ imprisonment on

each of Counts 49 through 83, to be served consecutively to

each other but concurrently with the sentence on Count 1;

2 1/2 years’ imprisonment on each of Counts 210 and 211,

to be served concurrently with each other but consecutively

to the sentence on Count 2; and a total fine of $15,000.

Petitioner Buzzanca was sentenced to concurrent 10-year

terms of imprisonment on Counts |, 2 and 14 through 48; 3

months’ imprisonment on each of Counts 49 through 84, to

be served concurrently with each other and with the sen-

tence on Count 1; and a fine of $5,000.' Petitioner Copolla

was sentenced to 13 years’ imprisonment on the RICO

conspiracy count. The court of appeals affirmed (Pet. App.

la-34a).

'Petitioner Buzzanca was also ordered to forfeit his position as

president of the International Longshoremen’s Association union.

3

The evidence at trial is related in detail in the opinion of

the court of appeals (Pet. App. 4a-13a). Briefly, it estab-

lished the existence of an association of persons organized

for the purpose of controlling all aspects of the New York

and New Jersey waterfront business. The ringleader of the

enterprise was co-defendant Michael Clemente. Petitioner

Fiumara acted as the New Jersey waterfront “boss,” peti-

tioner Copolla was a personal assistant to Fiumara, and

petitioner Buzzanca was president of two New York locals

of the International Longshoremen’s Association (ILA).

Other members of the enterprise, who were co-defendants

at petitioners’ trial, included the presidents of two New

Jersey locals of the ILA and a vice-president of a shipping

company in New York (id. at 4a).

The foundation of the enterprise was its control of the

ILA in New York and New Jersey. By threatening work

stoppages, the enterprise was able to extort money from

shipping companies and to influence their decisions regard-

ing the allocation of ship-servicing contracts. Using its con-

trol over such contracts, the enterprise was likewise able to

extort money from the ship-servicing companies. Only

those shipping and ship-servicing companies that paid the

amounts demanded and otherwise cooperated with the

enterprise had their ships’ cargo loaded and unloaded with-

out interruption or obtained and retained contracts to pro-

vide their services (Pet. App. 4a).

The proof against petitioners and their co-defendants

largely concerned their individual dealings with William

Montella, the principal government witness, who was

employed by several ship-servicing companies during the

period covered by the indictment (Pet. App. 5a-13a).

ARGUMENT

1. Petitioners contend (Pet. 5-10) that the conduct for

which they were charged and convicted does not fall within

the Racketeer Influenced and Corrupt Organizations Act

4

(RICO), 18 U.S.C. 1961 et seg. They argue that the RICO

counts in this case were based on an alleged “enterprise”

consisting of an association organized for exclusively illegal]

ends, and that the RICO statute is applicable only to“ ‘leg-

itimate business enterprises * * * [that are] preyed upon

and taken over by racketeers’ ” (Pet. 6).

The issue whether a group of individuals associated in

fact to commit unlawful acts for profit can constitute an

enterprise under RICO is currently before this Court in

United States v. Turkette, No. 80-808 (argued Apr. 27,

1981). Accordingly, consideration of this aspect of the peti-

tion should be deferred pending the Court’s decision in

Turkette.?

2. On 16 occasions from June through December 1978,

William Montella met with petitioners or their co-de-

fendants and secretly recorded the meetings (Pet. App. Sa).

Petitioners contend (Pet. 11-16) that these consensual

recordings violated their Fourth Amendment rights be-

cause they were made without a warrant. While acknowl-

edging that in United States v. White, 401 U.S. 745(1971),

this Court decided that such consensual monitoring does

not implicate the Fourth Amendment, petitioners question

the continuing validity of White because it was a plurality

2We note that, as in Turkette (see Brief for the Uniied States at 41-42

n.32), the illegal association in this case had a predatory effect on

legitimate businesses—here, several shipping and ship-servicing firms.

Unlike Turkette, however, petitioners’ operation entailed the actual

infiltration and subversion of the waterfront business through its extor-

tion of shipping firms. As the court of appeals noted (Pet. App. 26a;

footnote omitted), “the purpose of the ‘enterprise’ here was the estab-

lishment of a pattern of racketeering activity in a legitimate business,

the waterfront industry.” Accordingly, even if this Court narrowly

construes the RICO statute in Turkette, there would remain the ques-

tion whether RICO is applicable to the corruption of the legitimate

waterfront industry involved in this case. That issue, if necessary to be

resolved after Turkette, should properly be considered by the court

below in the first instance. See, e.g., Busic v. United States, 446 U.S.

398, 412 n.19 (1980).

5

opinion and because it is allegedly inconsistent with the

“reasonable expectation of privacy” doctrine of Katz v.

United States, 389 U.S. 347, 360 (1967). However, any

doubt concerning the continuing validity of White was

settled by this Court’s opinion in United States v. Caceres,

440 U.S. 741, 750-751 (1979), in which it expressly reaf-

firmed that decision.

3. Petitioners additionally contend (Pet. 17-20) that the

government failed to comply with the minimization require-

ments of 18 U.S.C. 2518(5) during court-authorized elec-

tronic surveillance of petitioner Buzzanca’s office. At the

outset, we note that only petitioner Buzzanca has standing

to raise this claim. Petitioner Copolla had no privacy inter-

est in Buzzanca’s office and does not identify particular

intercepted conversations in which he participated that

were not pertinent to the investigation but were nevertheless

subjected to surveillance. Petitioner Fiumara did not even

participate in any of the intercepted conversations. See

United States v. Fury, 554 F. 2d 552, 525-526 (2d Cir.),

cert. denied, 433 US. 910 (1977). In any event, as the district

court correctly held (United States v. Clemente, 482 F.

Supp. 102, 108-110(S.D.N.Y. 1979)), the statutory minimi-

zation requirement was met.

As the evidence adduced at the pretrial suppression hear-

ing showed, the supervising prosecutor gave the monitoring

agents detailed instructions with respect to minimization.

The agents were told to listen to a conversation for no more

than two minutes to determine if it was pertinent. Whenever

it became evident that a conversation was not pertinent,

monitoring was to terminate immediately.’ The agents were

'The agents could continue to monitor beyond the two-minute period

if they could not determine whether the conversation was pertinent

(App. 1609). “App.” refers to the joint appendix to the briefs filed in the

court of appeals.

6

permitted to “spot monitor” thereafter by waiting one min-

ute and then listening for up to two minutes to determine if

the conversation had become pertinent. United States v.

Clemente, supra, 482 F. Supp. at 108-110.

The above procedure, which the agents scrupulously fol-

lowed,* was well within the requirements of Section

2518(5). This is especially true in view of the fact that

petitioner Buzzanca was a “central member” of the “wide-

spread criminal conspiracy” in this case, and that “[mJany

conversations were ambiguous, guarded or in code” and

“often took place in low tones * * * at the same time that

other conversations in the office occurred or with back-

ground noise.” 482 F. Supp. at 110. See Scott v. United

States, 436 U.S. 128, 140-142 (1978).

4. Petitioners contend (Pet. 23-24) that the district court

erred in denying them a severance pursuant to Fed. R.

Crim. P. 14 because certain evidence introduced against

their co-defendants was inadmissible against them. In addi-

tion, petitioner Copolla argues that he should have been

tried separately because he was convicted only onthe RICO

conspiracy count.’ However, it is well settled that denial of

severance is not improper merely because evidence that is

introduced against one defendant is not admissible against

the others (see United States v. Nace, 561 F. 2d 763, 769-770

(9th Cir. 1977)), or because of “differences in degree of

guilt” among the defendants. United States v. Aloi, 511

F. 2d 585, 598 (2d Cir.), cert. denied, 423 U.S. 1015 (1975).

4Nonpertinent interceptions lasting longer than two minutes consti-

tuted fewer than one percent of total interceptions (App. 308).

5In their “QUESTIONS PRESENTED,” petitioners also challenge

the joinder of defendants in this case under Fed. R. Crim. P. 8(b), but

they offer no elaboration of the claim in the text of their petition. Inthe

absence of any argument identifying the reasons for objecting to joinder

of particular counts, there is no basis for granting review of this

contention.

7

Moreover, in the instant case, the vast majority of evidence

would have been admissible at separate trials of each peti-

tioner to establish the existence and character of the RICO

enterprise in which he was charged with participating.

Finally, any danger of evidentiary spillover was largely

minimized by the district court’s instruction to the jury to

consider each count of the indictment and the evidence

against each defendant separately (Tr. 12539-12540).° Peti-

tioners, in short, have failed to meet their “heavy burden” of

demonstrating that they were entitled to a severance. See

United States v. Thomann, 609 F. 2d 560, 564 (Ist Cir.

1979); United States v. Adams, 581 F. 2d 193, 19% (9th

Cir.), cert. denied, 439 U.S. 1006 (1978).

5. Petitioner Buzzanca contends (Pet. 20-23) that he was

entitled to an entrapment instruction on Count 84, which

charged him with accepting $1 ,000 from a representative of

Quin Marine Services ( Montella) on December 12, 1978, in

violation of 29 U.S.C. 186(b). We note at the outset that

reversal of Buzzanca’s conviction and three month sentence

on this count, which was concurrent with longer sentences

on other counts, could not possibly affect the length of his

imprisonment or have other significant collateral conse-

quences. In any event, this claim is without merit.

A defendant is entitled to an entrapment instruction only

if there is evidence that the government induced him to

commit the offense and he introduces some evidence negat-

ing the government's proof of his propensity to commit the

crime. United States v. Licursi, 525 F. 2d 1164, 1168-1169

(2d Cir. 1975); United States v. Watson, 489 F. 2d 504,

508-509 (3d Cir. 1973). Here there was no significant evi-

dence that Montella induced Buzzanca to take the December 12

payment. The statement on which Buzzanca chiefly relies—

*That the jury did so was demonstrated by its inability to reach a

verdict on five counts (Counts |, 36, 43, 71, and 78), including the

substantive RICO count, against petitioner Copolla.

8

Montella’s statement “I’m forcing this on you” (GX 414;

App. 6384)—was made some five minutes after Buzzanca

had taken the money and placed it in his pocket (App. 6381;

Tr. 7248-7249).

Furthermore, even assuming there was sufficient evi-

dence of inducement to require the government to come

forward with evidence of predisposition to commit the

offense, the government met that burden with evidence that

Buzzanca did not in any way negate. Buzzanca had become

a member of the RICO enterprise no later than December

1975, when he promised Clemente that he would replace

co-defendant Carol Gardner and Vincent Colucci in collect-

ing certain illegal labor and extortion payments from Mon-

tella (Pet. App. 9a-10a). From that time until December

1978, Buzzanca accepted $2,000 in cash from Montella

almost every month (id. at 10a-lla). In addition, he

received $500 from Montella in 1977 for his efforts to obtain

additional business for Quinn Lumber, a ship-servicing

company for which Montella was general manager (Tr.

3592-3593, 3609). Having violated 29 U.S.C. 186(b) on

more than 30 prior occasions, Buzzanca cannot be heard to

, complain that Montella improperly induced him to violate

the statute again by accepting $1,000 on December 12.

Buzzanca argues (Pet. 22), however, that his other Taft-

Hartley offenses do not establish predisposition because on

those occasions he acted as an agent for others and did not,

as on December 12, accept the money for himself. The short

answer is that his acceptance of money for an employer was

no less a violation of the Taft-Hartley Act than an accep-

tance for himself, and it is no less an indication that he was

predisposed to accept the $1,000 payment on December 12.

On this record, there was simply no basis for the giving of an

entrapment instruction. See United States v. Wilner, 523

F. 2d 68, 74 (2d Cir. 1975).

9

6. Extortion, as defined in the Hobbs Act, 1% U.S.C.

1951(b)(2), consists of the use of wrongful means to achieve

a wrongful objective. See United States v. Enmons, 410

U.S. 396 (1973). Petitioners Fiumara and Buzzanca con-

tend (Pet. 24-27) that the district court erroneously instruct-

ed the jury that it could convict them under the Hobbs Act

solely upon finding that they used fear of economic loss to

obtain money, arguing that use of such fear is routine in

legitimate business transactions and not wrongful in itself.

The court of appeals properly rejected this claim.

While we agree that the use of fear of financial injury is

not inherently wrongful, the district court expressly advised

the jury that in order to convict it must find beyond a

reasonable doubt that property to which the petitioners

“had no lawful right * * * was obtained because of the

victim’s fear of economic loss” (Tr. 12576; emphasis added).

It further instructed that “a union officiai or anyone else

cannot threaten economic injury or arouse fear for a non-

legitimate purpose* * *” and that the jury should convict if

it found that “threats were made or that fear was reasonably

aroused, and * * * that the purpose of the defendant * * *

was to obtain money for himself or others to which they

were not entitled” (Tr. 12578; emphasis added). Accord-

ingly, it is simply not true that the jury was permitted to

convict petitioners for extortion based solely on a finding

that they used fear of economic loss to obtain money.

Rather, the jury was required to find that such inducement

of fear was wrongful because it was employed for an illegit-

imate purpose.’

"In any event, we note that the court's extortion charge more than

satisfied the instructions requested by petitioners. Petitioner Buzzan-

ca’s proposed instruction made only brief mention of the “wrongful-

ness” requirement (App. 1274-1277), and petitioners Fiumara and

Copolla did not even include the requirement in their requests (App.

12-1303).

10

Nor was the charge improper because its definition of

extortion would embrace a broad spectrum of legitimate

business transactions (Pet. 26-27). In particular, petitioners

object to the district court's statement that “any company or

individual has the right to obtain business from another

company or individual without making payments to a third

party” (Tr. 12577). When read in context, however, it is

obvious that the court was referring to third-party extortion

payments and not to legitimate business transactions.

Indeed, the jury was unequivocally instructed (Pet. App.

18a) that the Hobbs Act “does not prohibit any person from

using his position of power or influence to obtain legitimate

economic ends.” In short, the instruction insured that the

jury would distinguish between the legitimate and the illeg-

itimate use of economic fear.

CONCLUSION

The petition should be held pending the decision in

Turkette, and the RICO “enterprise” issue should be dis-

posed of in light of that decision. In all other respects, the

petition should be denied.

Respectfully submitted.

Wave H. McCree, Jr.

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

Joe. M. GeRsHowiTz

Attorney

May 1981

DOJ .1981.05