Petition — Leppo v. United States

Nor * 9 +

Ollice Supreme Court, U.S.

ii Ree a OS 2

sili JUL2 1981

Supreme Court of the Unitid State

ALEXANDER L. 5 EVAS, |

CLERK

——

te rae

OCTOBER TERM, 1980

UNITED STATES OF AMERICA

-V¥s-

CARROLL LEPPO,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

DANIEL W. SHOEMAKER

J. CHRISTIAN NESS

SHOEMAKER, THOMPSON & NESS

Attorneys for Petitioner

103 East Market Street

York, Pennsylvania 17401

(717) 848-5888

THE SUPERIOR APPELLATE PRINTING COMPANY

P. O. BOX 363 AREA CODE 609

CRANBURY, N.J. 08512 443-4202

QUESTIONS PRESENTED FOR REVIEW

I. In a criminal prosecution, can Federal jur-

isdiction exist under the Hobbs Act in the ab-

sence of some actual effect on interstate com-

merce?

11. Does the Fifth Amendment of the U.S. Consti-

tution:

A. Permit an FBI agent in a Federal prosecu-

tion to testify in the presence of the jury that

a Defendant exercised his right to silence during

interrogation and escape the sanctions of prosecu-

torial overreach?

B. Permit a U.S. Attorney to argue that the

Defendant's silence in the face of accusation is

to be considered by the jury as evidence of

guilt?

PARTIES INVOLVED

The parties involved in the proceeding in

the Court below were the United States of America

and Carroll Leppo.

TABLE OF CONTENTS

Questions Presented for Review ...eeeeeeees

Parties Involved eeeeeeveeeeeeeeeeeneeeeeeeeee

Table of Contents eeeeeeaeeeevneeeeeeeeeeeeeeee

Table of Authorities eeeepoeeoseeeeneoeoeeeeeeee0

Reference to Opinions Below ..cecesseececees

Jurisdiction

Constitutional and Statutory

PPOViISIONS INVO!lVEd cesses eeceeeeeeecees

Statement of the Case e*eeeeeeeeeeeeeeeeeeeee

Factual History eeeeoeeeeeeeeweeeeeeeeeaeeeaeeene

Reasons for Allowances of Writ

of Certiorari eeeeoeeweeeeeeeeeeeeeeeeeeeeere

Conclusion

eeeeeeveeveeeeeeeeeeeeeeeeeeeeeeeeene

11

25

TABLE OF AUTHORITIES

Cases Cited:

Doyle Vv. Ohio, 426 im @ 610 (1976) *eeeeeee

Malloy v. Hogan, 378 U.S. 1 (1964)........

Miranda v. Arizona, 384 U.S. 436

Stirone v. United States, 361 U.S.

212 (1960) eeeeeeeeeeeeeeeeeeeeeeeeeeeeeee

U.S. v. Cerilli, 603 F2nd 415 (3d

Cir. 1979) eee eeeeeeeeeeeeeeeeeeeeeeeeeee

U.S. v. Craig, 573 F2d 513 (7th

Cir. 1978) eee eeaeeeeeeeeeeeeeeeeeeeeeeeeee

U.S. v. French, 628 F2nd 1069 (8th

PAGE

12,15

16

Cir. SOE cvon cn bo'000000bb6bccstceesstscc Reena

U.S. v. Hale, 422 U.S. 171 (1DTS)cccccccces

U.S. v. LeFever, 483 F2d 477 (3d

Cir. WUE 6h cb bhd6beskebennesscecacebs ves

U.S. v. Mazzei, 521 F2d 639 (3d

Cir. PRE cbudisccehuesebad badass cece eeues é

U.S. v. Staszcuk, 502 F2d 875 (7th

Cir. | ee ey oy ey eee

Constitutional Provisions Cited:

Amendment V of the Constitution of

20

22

11

16

the United States eee eee ee eee eee eee eeee i,passim

Statutes Cited:

28 OR SS oF $1254 [Vainsvisvekomedesedes sceneus

iv

AUTHORITIES

PAGE

ie et) SE. CIOS . cassesvcctevscss $;9)8,6

Miscellaneous Cited:

A.B.A. Standards Relating to the

Prosecutorial Function and the

Defense Function, 25.8, 5.9 -.seeceeeeees 22

Vv

CONTENTS

APPENDIX A

Judgment Order of the United

States Court of Appeals for

the Third Circuit

APPENDIX B

Order of the United States

Court of Appeals for the

Third Circuit denying Pet-

ition for Rehearing. ccccccccccccce

APPENDIX C

Opinion of the United States

District Court for the Mid-

die District of Pennsylvania

denying Defendant's Motions

for a New Trial and in Arrest

of Judgment, filed November 4,

Se 6 ON6.0 0 Obs 40000600608 O68 68d

APPENDIX D

District Court's Order Denying

Defendant's Motions in Arrest

of Judgment and for a New

Trial, filed November 4,

19BO. wc ccccccccccccccccccccccccces

APPENDIX E

Excerpted Notes of Testimony:

Trial testimony of Charles S.

Warner, Appendix in the Third

Circuit at BOOMs 6 sb See leeee we wae es

PAGE

la

3a

4a

20a

21a

vi

CONTENTS

PAGE

Trial testimony of Charles S.

Warner, Appendix in the Third

Circui t at 354a-359a eee eveeeeeenene 22a

Trial testimony of Charles S.

Warner, Appendix in the Third

Circui t at 378a-38la eee eeveeeeenenee 26a

Trial testimony of Vernon

Shields, Appendix in the Third

Circuit at 473a-474a oeeeeeveeeeeeene 41a

Government's Closing to the

Jury, Appendix in the Third

Circuit at 6908 wcccccccccevvcccees 44a

District Court's Jury Charge,

September 9, 1980, Appendix

in the Third Circuit at 758a ..... 45a

REFERENCE TO OPINIONS BELOW

The Judgment Order of the United States

Court of Appeals for the Third ‘Circuit, dated

April 2, 1981, docketed at No: 80 2528, is re-

produced in the appendix at Page ia The Order

denying Leppo's Petition for Rehearing is repro-

duced in the Appendix at Page 3a . The Order

of the United States District Court of the Middle

of Pennsylvania denying the Motion of Carroll

Leppo for a new trial and in arrest of judgment

is reproduced in the appendix at Page 4a.

JURISDICTION

This Petition seeks review of the Judgment

Order of the United States Court of Appeals for

the Third Circuit, dated April 2, 1981, docketed

at No: 80 2528, affirming the conviction and

judgment sentence of the United States District

Court for the Middle District of Pennsylvania.

Additionally, by Order dated May 5, 1981, the

United States Court of Appeals for the Third

Circuit denied Petitioner's Petition for Rehearing.

Jurisdiction is conferred in this Honorable Court

by 28 U.S.C. $1254 (1), and Rule 17 of the Rules

of this Honorable Court. The United States Dis-

trict Court for the Middle District of Pennsylvania

assumed jurisdiction based onalleged violations

of federal criminal law, specifically, I8 U.S.C.

51951, alleged to have been committed within the

jurisdiction of the Middle District of Pennsylvan-

ain

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

Amendment V of the Constitution of the United

States:

No person shall be held to answer for ral

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand jury,

except in cases arising in the land or naval for-

ces, or in the Militia, when in actual service in

time of War or public danger; nor shall any per-

son be subject for the same offense to be twice

put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty,

or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

18 U.S.C. $1951:

Interference with commerce by threats or

violence

(a) Whoever in any way or degree ob-

structs, delays, or affects commerce or the move-

ment of any article or commodity in commerce, by

a e

robbery or extortion or attempts or conspires so

to do, or commits or threatens physical violence

to any person or property in furtherance of a

plan or purpose to do anything in violation of

this section shall be fined not more than $10,000

or imprisioned not more than twenty years, or

both.

(b) As used in this section---

(1) The term "robbery" means the unlaw-

ful taking or obtaining of personal property from

the person or in the presence of another, against

his will, by means of actual or threatened force,

or violence, or fear of injury, immediate or fu-

ture, to his person or property, or property in

his custody or possession, or the person or

property of a relative or member of his family or

of anyone in his company at the time of the tak-

ing or obtaining.

(2) The term "extortion" means the ob-

taining of property from another, with his con-

sent, induced by wrongful use of actual or

threatened force, violence, or fear,or under color

of officia] right.

(3) The term "commerce" means commerce

‘ilies

within the District of Columbia, or any Territory

or Possession of the United States; all commerce

between any point in a State, Territory, Possess-

ion, or the District of Columbia and any point

outside thereof; all commerce between points with-

in the same State thruogh any place outside such

State; and all other commerce over which the

United States has jurisdiction.

(c) This section shall not be construed

to repeal, modify or affect section 17 of Title 15,

sections 52, 101-115, 151-166 of Title 29 or sec-

tions 151-188 of Title 45.

June 25, 1948, c. 645, 62 Stat. 793.

J.

STATEMENT OF THE CASE

1. PROCEDURAL HISTORY

The Petitioner, Carroll Leppo, was indicted

by a grand jury sitting in Harrisburg, Pennsyl-

vania, on March 28, 1980, on two indictments

charging violation of the Hobbs Act 18 U.S.C.S1951

and was arraigned on April 14, 1980. The Defen-

dant, Leppo, was named in Counts |! an I! of

four counts in one indictment and multiple counts

in the second.

Counts | and I! were severed from Counts

Ill and IV on request of Leppo, and trial com-

menced on these two counts on June 16, 1980,

after the government had rested its case a mis-

trial was granted based on a at trial violation

of Defendants Fifth Amendment Rights. A new

trial was scheduled to begin September 2, 1/980,

after trial of co-Defendants in the first indictment

and trial on the second indictment. The Defend-

and was acquitted of all charges by a jury on

the second indictment. A Motion to dismiss the

first indictment on the grounds of prosecutorial

a

overreach and thus, double jeopardy was filed,

refused by the District Court, appealed to the

Third Circuit Court of Appeals and still pending

when the second trial took place September 2 -

3 and September 8 - 9, 1980. The jury acquitted

Leppo on Count | which dealt with his receipt of

a political campaign payment in September of 1975

" and was convicted on Count |! which was based

on receipt by Leppo of $300.00 in February, 1976.

Leppo timely filed post-trial motions which the

District Court denied on November 4, 1980. Leppo

was sentenced by Order dated September 29, 1!980.

Leppo appealed to the Third Circuit from that

sentence and verdict. By Order dated April 2,

1981, the Third Circuit affirmed the judgment of

the District Court. Leppo timely filed a Petition

of Rehearing in the Third Circuit, which Petition

was denied by that court on May 5, 1!98I. The

Petition for Writ of Certiorari followed.

In the meantime, on March 5, (1981, the

Third Circuit affirmed the District Court's deni al

of Leppo's pre-trial motion to dismiss on double

jeopardy.

-7=

11, FACTUAL HISTORY

As set forth above, Leppo was indicted on

two counts of Hobbs Act violations. Count | al-

leged that Leppo had received a campaign contri-

bution of $500.00 in September, 1975 from Charles

Warner, who was interested in seeing Leppo and

his running mate, Robert Bowers, elected as York

County Commissioners. Count I! of the indictment

charge Leppo with violating the Hobbs Act by

taking $300.00 payment from Warner on or about

February 13, 1976. Leppo was acquitted on Count

1! and convicted on Count II at his second trial,

the first trial having ended in a mistrial.

The facts, as they were established at

trial, developed that Warner, the chief prosecu-

tion witness, worked for an architectural firm en-

gaged in interstate commerce. Warner received

pay in the nature of a salary as a division of

partnership profits. From his personal funds,

Warner paid Leppo the sum of $300.00.

Thereafter, Warner sought and received reim-

bursement from a fund created from his and his

partners' personal funds for political purposes.

The testimony at trial was that the payment by

alin

Warner was made on a personal friendship basis.

Before the first trial, Leppo filed a Motion

to Suppress Statements allegediy made by him.

As a result, a suppression hearing was held in

advance of the first trial, on June 16, 1980. At

that hearing a government witness, Frank Cryan,

an FBI agent, testified that after submitting to

a polygraph examination, Leppo made certain in-

culpatory statements about the political contribu-

tions. At that time, Cryan posed additional

questions to Leppo who refused to answer the

questions, invoking his Fifth Amendment rights.

That testimony was elicited by the prosecutor.

At the first trial, during direct examina-

tion by the prosecutor, Cryan indicated that, at

a certain point in the conversation, Leppo in-

dicated that he wished to answer no further ques-

tions. Leppo's counsel immediately made a

Motion for Mistrial, which the District Court took

under advisement. After the government rested,

Leppo's counsel made a Motion for Judgment of

Acquittal, which was denied. However, the Dis-

trict Court ordered a mistrial based on Cryan's

statement. The District Court then scheduled a

p

retrial, to begin on September 2, |1980. At that

trial, during his closing remarks to the jury, the

prosecutor made ae reference to the jury about

Leppo's silence in the face of accusation with

regard to the $300.00 alleged to have been paid

to him in Count II of the indictment. After Mis-

trial Motion was refused, Leppo was acquitted of

Count | and convicted of Count I!.

-10-

REASONS FOR ALLOWANCE OF WRIT

1ORARI

The Supreme Court should grant the within

Petition because the questions presented in this

case involve important issues of federal statutory

and constitutional interpretation. Moreover, the

question of how far federal jurisdiction extends

under the Hobbs Act has been dealt with incon-

sistently by different circuits and require that

this Honorable Court rule on the extent of inter-

ference with interstate commerce required under

the Hobbs Act in establishing the interstate com-

merce nexus.

This Court has held that the Hobbs Act,

the federal government has jurisdiction of cases

only on aéeé factual interference with interstate

commerce. Stirone v. United States, 361 U.S. 212

(1960). However, the circuit courts seem to be

unanimous in holding that a minimal depletion or

diminishing of resources of an interstate business

is sufficient to establish jurisdiction. See U.S. v.

Mazzei, 521 F 2d 639 (3d Cir. 1975). Prior to the

-11-

decision in the present case, the Third Circuit

had extended the interstate commerce nexus to in-

clude situations where payment made by inter-

state lessors was a sufficient tie to interstate

commerce, in that those payments reduced the

lessors' capacity to make business purchases in

interstate commerce. United States v. Cerilli, 603

F 2nd 415 (3d Cir. 1979).

However, in the present case, there was

no evidence of any dimunition of depletion of re-

sources of any business. On the contrary,

Charles Warner, the government's chief witness

and the individual who made the payment to

Leppo, cleariy and directly testified on several

occasions during his testimony that the $300.00

payment in February of 1976 was made with per-

sonal after-tax dollars and had absolutely no

effect on the business in which he was involved.

Appendix in the Third Circuit(App. at 21a, 27a-

29a. )

Moreover, two of Warner's partners in the

architectural firm who testified at the trial, also

confirmed that the money paid to Leppo had no

effect on the purchasing power of the business in

-12-

interstate commerce. See testimony of Vernon

Shields, App. at 30a-3la,33a-4la. See also,

testimony of Donald Williams, App. at 4la-44a.

The decision of the Third Circuit in the

present case has the effect of extending federal

jurisdiction under the Hobbs Act to cover any

situation where money is paid from whatever

source, so long as at some point the money has

been income or generated by a business engaged

in interstate commerce.! The Third Circuit has

by its holding, overextended the jurisdictional

limits of the Hobbs Act The decision in the pre-

sent case, which consisted merely of a ‘Tulsi

order with no supporting opinion, is at odds with

decisions in other Circuits, which were support-

ed by full opinions.

I. In fact, the trial court so stated in its

charge to the jury, when it said:

You may find that interstate com-

merce was adversely affected if

you find beyond a_ reasonable

doubt that . . . the payments by

Mr. Warner to Mr. Leppo were

made and were from money contri-

buted by the partners from money

they received from the firm and

were made on behalf of the firm,

(cont'd)

a,

As stated in United States v. French, 628

F 2nd 1069 (8th Cir. 1980), the Eighth Circuit

stated:

For reversal the government ar-

gues that the Hobbs Act prohibits

all extortion affecting commerce

not just extortion which has an

"adverse" effect. We have some

difficulty with this theory.

Although the Hobbs Act on _ its

face prohibits all extortion which

"in any way or degree... .

affects commerce," the legislative

history of the Act strongly indi-

cates that Congress intended to

protect the free flow of commerce

and prevent exaction of any un-

lawful tribute from interstate com-

merce, and indicates no Congress-

ional intent whatsoever to punish

activity absent some adverse ef-

fect on interstate commerce.

(Citations omitted.) Moreover,

the government's theory seems to

suggest that a robbery or extor-

tion automatically would = affect

commerce as long as the victim

engages in transactions involving

articles which have been in inter-

state commerce. Courts have

found such an effect where the

evidence shows sudden depletion

of resources which the victim

would otherwise have used _ in

transactions involving articles

which had been in interstate com-

merce, or even in some cases

(cont'd)

thereby depleting the firm's as-

* sets or reducin its profits.

TEmphasis supplied.) App. at 45a-

47a.

-14-

where the evidence showed only

a possiblity that the money taken

would have been in such trans-

actions. The government's

theory in this case would base

federal jurisdiction upon a more

tenuous nexus with interstate

commerce, as there was no testi-

mony that, absent the extortion,

Torrey would have spent less or

more money on the articles that

which he regularly purchased

from interstate commerce, or that

failure to pay appellee off would

tnreaten any consequences’ which

would result in an increase or

decrease in commerce. The gov-

ernment's theory would, therefore,

extend the Hobbs Act coverage to

any money taken by robbery or

extortion from anyone who en-

gaged in transactions involving

goods which had been in _ inter-

state commerce, a reading of the

Hobbs Act which in practicality

would extend federal jurisdiction

over just about any robbery or

extortion. Such an assumption

by the federal government of gen-

eral jurisdiction over common law

crimes traditionally covered by

local law is something we would

not lightly imply.

"See, e.g., United States v-.-

Cerilli, 603 F2d 415 (Third Cir.

1979), Cert. denied, 444 U.S.

1043, 100 S. Ct. 728, 62 L. Ed.

2d 728 (1980); United States v.

Staszcuk, 517 F 2d 53 (Seventh

Cir.) (en banc), cert. denied, 423

U.S. 837, 96 S. Ct. 65, 46 L. Ed.

2d 56 (1975). But see Comment,

66J. Crim. Lb. and Criminology

306, 318-20 (1975) (arguing that

-15-

because the Hobbs Act contains no

legislative finding that extortion

affects interstate commerce, effect

upon commerce must be proven in

every case and a potential effect

would not be adequate to support

invoking the Hobbs Act). See

also Comment, 1972 U. III. L. F.

805." (Footnotes 6,7 and 9 omit-

ted.) (Emphasis supplied.) 628

F2d at 1076-77.

See also U.S. v. Craig, 573 F2d 513 (7th

Circuit, 1978); U.S. v. Staszcuk, 502 F2d 875 (7th

Circuit, 1974). As stated in Staszcuk:

"When the effect never material-

izes - despite the failure or suc-

cess. of the extortion - _ the

commerce element of the Hobbs Act

is not established." 10

"10...if the extortion is success-

ful and there is still no effect on

commerce, the extortioner has not

violated the Hobbs Act." 502 F2d

at 879.

The exact situtation existing in French

and Staszcuk exists in the present case. The

record is clear that the money paid to Leppo was

paid out of private funds of a partner and his

wife and thereafter, reimbursed to them out of

private funds of the partners, which had already

been distributed out of the partnership. That

money having been distributed as profits from the

partnership would never have been used for the

BOY ee

business. App at 21a. Once the funds were dis-

tributed, they were private funds of each indi-

vidual and were no different and can be treated

no differently then salary paid to an employee.

The partnership, as a business entity, had no

further claim upon or use of the profits paid to

the partners.

Therefore, the issue before the Third Cir-

cuit, which it, by issuing a simple judgment

order, failed to address, was the question of

federal jurisdiction over the events which trans-

pired in the present case. The evidence before

the District Court and the Third Circuit on

appeal, was insufficient to show a proper juris-

dictional nexus between the money paid to Leppo

and the business engaged in interstate commerce.

This is an issue of significant importance in fed-

eral law, which should be addressed by this

Honorable Court, particularly because of the in-

creasing popularity of prosecuting public of-

ficials under the Hobbs Act.

Contrary to the holding by the Eighth Cir-

cuit in U.S. v. French, supra, the Third Cir-

-17-

cuit's affirmation of Leppo's conviction is an

acknowledgment by the Third Circuit that the

government no longer needs to prove that the

money paid affected interstate commerce. Rather,

in Hobbs Act prosecutions in the Third Circuit,

the government now need only prove that money

paid had at some point in the past belonged to

or been used by a4 company engaged in trans-

actions involving goods which had been in inter-

state commerce. The Third Circuit's tacit ap-

proval of that extension of the Hobbs Act, by its

affirmation of Leppo's conviction, has extended

the Hobbs Act jurisdiction to any robbery or ex-

tortion, an extreme to which the Court in French

declined to permit. Such a result cannot be sup-

ported by the statutory and case law under the

Hobbs Act. Therefore, it is appropriate that this

Honorable Court consider the present case both to

settle the apparent conflicting views of the

Circuits as to what constitutes a deminimus effect

on interstate commerce and to definitively establish

the jurisdictional limitations to Hobbs Act prose-

cutions.

11. THE SUPREME COURT SHOULD CLEARLY

PROSCRIBE PROSECUTORIAL CONDUCT IN

FEDERAL CRIMINAL JURY TRIALS.

Leppo had been charged with and tried on

two alleged extortionate transactions, the first

occurring in September, 1975, involving a $500.00

contribution to his campaign and the’ second

occurring in February, 1976, involving a $300.00

transfer. At the conclusion of a consentual poly-

graph examination, the FBI agent administering

the examinatin inquired of Leppo concerning the

September transfer of $500.00, to which Leppo

made certain admissions. The agent made no in-

quiry concerning the February, !976 transfer. In

any event, Leppo specifically invoked his Fifth

Amendment privilege and declined to answer any

other specifics concerning the transfer of money.

At Leppo's original trial, Cryan referred to

Leppo's refusal to respond to questions concerning

transfers of other monies and the Court granted

a mistrial. On retrial, in his closing argument,

the prosecutor made the following argument to the

jury:

And now, what about, again, the

various facts regarding this

February transaction? Well, first

of all, again, Agent Cryan's test-

imony, Mr. Leppo didn't even

talk about this $300.00 when he

was talking about improprieties,

not illegalities. It's this, but

it's mot that. He was talking

about campaign money. He was

talking about September. He

never even said anything to Mr.

Cryan about February and his

vacation. App. at 44a,

This reference by the prosecutor was error

in that it constituted an impermissible reference

to Leppo's right to remain silent guaranteed by

by the Fifth Amendment of the Constitution of the

United States. Reference to the silence of the ac-

cused in the face of accusation, is an issue re-

quiring clarification by this Court since other

decisional law has consistently held such refer-

ences by prosecutors to be error. Malloy v.

Hogan, 378 U.S. | (1964); Miranda vy. Arizona,

384 U.S. 436 (1966). See also U.S. v. Hale, 422

U.S. 171 (1975); Doyle v. Ohio, 426 U.S. 610

(1976).

The sole purpose of the prosecutor's refer-

ence to the jury of Leppo's failure to discuss the

February transaction for which Leppo was

-20-

ultimately convicted, was to convey to the jury

the inference that Leppo refused to discuss this

incident with the FBI because of knowledge of his

guilt. That reference is particularly inexcusable

in light of the history of this case, where a mis-

trial was declared in the first trial for a state-

ment very similar to that made by the prosecutor

in this case.

This Court must make federal prosecutors

clearly and acutely aware that if they violate a

defendant's Fifth Amendment right, they do so at

their own peril. In the present case, the pros-

ecutor's remarks drew from facts not of record in

the present case. The total record, including

those parts which the jury was not a part of,

such as the suppression hearing, the side bar

conferences, and transcripts of the interrogation

sessions submitted to counsel, clearly reflect that

Leppo was never asked by the FBI about the

transfer of money in February. Therefore, the

prosecutor, by holding his reference to that in-

cident until he closed to the jury clearly intend-

ed to influence the jury by making reference

to something which was not in evidence. The

a

prosecutor was asking the jury to assume guilt

by Leppo's failure to discuss the matter with the

FBI agent when, in fact, the prosecutor knew full

well that other reasons existed for Leppo's fail-

ure to bring the matter up at the interrogation

following the polygraph examination. See A.B.A.

Standards Relating to the Prosecution Function

and the Defense Function, §5.9 adopted by the

Third Circuit in United States v. LeFever, 483

F2d 477 (3d Cir. 1973). Sections 5.8(a) and 5.9

state:

5.8 Argument to the jury.

(a) the prosecutor may argue all

reasonable inferences from evi-

dence in the record. It is un

professional conduct for the pros-

ecutor intentionally to mistate the

evidence or mislead the jury as

to inferences it may draw.

5.9 Facts outside the record.

It is unprofessional conduct for

the prosecutor intentionally to re-

fer_to or argue on the basis of

fact outside the record whether

at trial or on appeal, unless

such facts are matters of common

public knowledge based on ordin-

ary human experiences or matters

of which the Court may take ju-

dicial notice. (Emphasis suppl-

ied)

The issue of prosecutorial misconduct is an

important one, which this Court has addressed in

~22-

the past. However, both the District Court and

the Third Circuit in the present case, ignored the

admonitions of this Court and, to the extent that

this issue appears to be unclear, this Court

should rule on the matter so that the type of

misconduct evident in the present case will not

reoccur. . .

Finally, it is necessary that this Court

rule on the issue of the admissibility of state-

ments elicited from a defendant during the stages

of a polygraph examination. The statements made

by Leppo which were used against him at his

trial, were made during the third phase of the

polygraph examination, when Leppo was confront-

ed with what was termed to be a deceptive re-

sponse during his test. At that time, Leppo was

discussing with the FBI agent his understanding

of the impropriety of his conduct, which caused

his physical reaction monitored by the polygraph

instrument. However, because the statement was

made during the polygraph examination, the de-

fense was preciuded from fully cross examining

the FB! agent and from attempting to put the

alleged statements in the proper context. The

-23-

effect of permitting testimony of the alleged ad-

missions of Leppo was that the jury was left with

the clear implication that Leppo failed to discuss

the February incident out of a consciousness of

guilt, rather than because he had not been asked

about it and because he had invoked his Fifth

Amendment rights at two specific times and places

during the polygraph examination. This Court

is urged to rule on the admissibility of state-

ments made during a polygraph examination con-

sidering the general rule against admission of

polygraph evidence.

The admissibility ot evidence elicited at

a polygraph examination and the prosecutor's

comment on it is an important issue focusing on

fundamental rights of criminal defendants and

appears to be a question of first impression

before this Court.

-24-

CONCLUSION

For all of the reasons set forth above,

Petitioner, Carroll Leppo, respectfully requests

this Honorable Court to grant a Writ of Certiorari

and to hear the important issues presented.

Respectfully submitted,

SHOEMAKER, THOMPSON &

NESS

BY: s/0.W.S.

ANIEL W. SHOEMAKER,

ESQUIRE

Attorney for Petitioner,

Carroll Leppo

-25-

APPENDIX

la

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

NO. 80-2528

UNITED STATES OF AMERICA

Vv .

CARROLL LEPPO,

Appellant

Appeal from the United States District Court

for the Middle District of Pennsylvania

Crim. No. 80-00034-01

Argued March 26, 1|98I

Before: ADAMS and GARTH, Circuit Judges, and

FISHER, District Judge™

JUDGMENT ORDER

After considering the contentions raised by

appellant, namely, that the lower court erred (1!)

in denying his motion for judgment of acquittal,

and the verdict was against the weight of the

evidence, because the government failed to prove

any effect on interstate commerce by the payment

¥

Honorable Clarkson S. Fisher, Chief Judge,

United States District Court for the District of New

Jersey, sitting by designation.

2a

APPENDIX A

of money to appellant; (2) in failing to grant a

mistrial based on the remarks made by the prose-

cutor in his closing statement; (3) in failing to

suppress a statement made by him at a post-poly-

graph examination; (4) in failing to grant his

motion for judgment of acquittal, because there

was insufficient evidence to support a finding of

extortion; (5) in failing to grant his pretrial

motions to dismiss based on double jeopardy; and

(6) in making numerous procedural and eviden-

tiary errors both before and during trial which

individually and cumulatively created prejudicial

error, it is

ADJUDGED AND ORDERED that the judgment

of the district court be and is hereby affirmed.

BY THE COURT:

Adams

Circuit Judge

ATTEST:

Sally Mrvos, Clerk

3a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 80-2528

UNITED STATES OF AMERICA

Vv.

CARROLL LEPPO,

Appellant

SUR PETITION FOR REHEARING

EN BANC

Present: Seitz, Chief Judge, ADAMS, HUNTER, WEIS, GARTH,

HIGGINBOTHAM aad SLOVITER, Circuit Judges.

The petition for rehearing filed by Appel-

lant in the above entitled case having been sub-

mitted to the judges who participated in the deci-

sion of this court and to all the other available

circuit judges of the circuit in regular active

service, and no judge who concurred in the deci-

sion having asked for rehearing and a majority

of the circuit judges of the circuit in regular

active service not having voted for rehearing by

the court in banc, the petition for rehearing is

denied.

DATED: May 5, 198I

Circuit Judge

4a

APPENDIX C

LOWER COURT'S OPINION DENYING DEFENDANT'S

MOTION FOR A NEW TRIAL AND IN ARREST OF

JUDGMENT FILLED NOVEMBER 4, 1980 .

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : Criminal No. 80-00034-1

y _ (Judge Muir) ’

CARROLL LEPPO :

OPINION

MUIR, District Judge

On September 9, 1980, a jury returned a

verdict finding the Defendant guilty of one count

of a two-count indictment charging extortion in

violation of the Hobbs Act, 18 U.S.C.A. 81951. On

September 15, 1980, the Defendant filed motions for

a new trial and in arrest of judgment pursuant

to Fed.R.Crim.P. 33 and 34. A brief in support

of the motion was filed on September 29, 1980 and

the Government filed a brief in opposition to the

motions on October 10, 1980. For the reasons that

follow, the motions will be denied.

Succinctly stated, Leppo was convicted of

extorting $300.00 from the architectural firm of

Williams, Shields, Snyder & Goas in February 1976

5a

APPENDIX C

at which time Leppo was a county commissioner

and the firm had a contract with York County,

Pennsylvania, to propose plans to rehabilitate or

replace the York County Prison. Leppo raises |3

grounds in support of his motions, each of which

will be discussed separately.

Leppo argues that there was no evidence

from which the jury could find beyond a reasona-

ble doubt that interstate commerce was affected

or that the money was obtained under color of

official right or by the wrongful use of fear of

financial injury. While it is true that neither

Charles Warner nor his’ partners’ specifically

testified that they acted under duress and Warner

testified that he believed that the money was

paid on the basis of friendship, there was other

evidence from which the jury could conclude be-

yond a reasonable doubt that Leppo in fact ex-

torted the money. Warner and his partners testi-

fied that a factor in their determination whether

to make the payment was Leppo's position as

county commissioner and the architectural firm's

relationship to the county commissioners under the

6a

APPENDIX C

contract. In addition, Warner throught it neces-

sary to discuss Leppo's request for money with

his partners. Further, Warner was approached by

Leppo for the money while they were alone in

Leppo's office very shortly after the contract was

let to the architects. From these facts, the jury

could have concluded beyond a reasonable doubt

that Leppo extorted the money under color of offi-

cial right or by the wrongful use of fear of

financial injury.

ee Insofar as the nexus to interstate commerce

is concerned, there was ample evidence of that

as well. Leppo makes much of the fact that the

money paid to him was contributed to Warner by

his partners after partnership profits had been

distributed. If Leppo had been given a check

drawn on the partnership account, there would be

no question that the payment of that money by

the architectural firm, which was engaged in

business in states other than Pennsylvania and

which purchased goods in interstate commerce,

would have resulted in a diminution of the firm's

profits or in an increase in the cost of doing

7a

APPENDIX C

business, thereby constituting an effect on inter-

state commerce. See United States vs. Provenzano

334 F.2d 678, 693 (3d Cir.); cert. denied, 379

U.S. 947 (1964).

The fact that the money took a less direct

route does not alter the analysis. There was

testimony that the architects believed that it was

illegal for the firm to make a direct contribution

and for that reason the fund from which the pay-

ment was made was created by after-tax dollars.

There is no question that the money was paid by

members of the firm with the intent to further the

firm's business interests. This was not a case

where an individual made a payment of money,

the ultimate source of which may have had some

impact on interstate commerce. Rather, this case

involved the payment of money on behalf of a

firm engaged in interstate commerce by members

of that firm for the purpose of avoiding adverse

consequences to the firm. Consequently, the

Government proved the required nexus to inter-

state commerce.

Leppo renews his argument that the Court

APPENDIX C

should have suppressed testimony relating to

statements made by Leppo following a polygraph

examination of the Defendant. This matter was

thoroughly argued and briefed before trial. At

no time did the Government attempt to admit the

results of the polygraph examination or even to

characterize the examination to the jury as a

polygraph examination. The Court concludes now

as it did then that the Government did not agree

that statements by Mr. Leppo in connection with

the polygraph examination would not be introduc-

ed into evidence, that the statementswere not ob-

tained in violation of Mr. Leppo's Fifth Amend-

ment rights and that the fact that the statements

were made in connection with the polygraph ex-

amination did not render them inadmissible.

Leppo renews his argument, rejected in the

Court's order of August 14, 1980, that his retrial

following a mistrial constituted double jeopardy.

The Court adheres to the reasoning and result set

forth in its order of August 14, 1980 and con-

cludes that Leppo's retrial did not constitute

double jeopardy.

9a

APPENDIX C

Leppo argues that the Court erred in ad-

mitting testimony of conversations between Charles

Warner and his partner. The Court, in ruling

on Leppo's contemporaneous objections, admitted

only hearsay statements that were admissible un-

der Fed.R.Evid. 803(3) as showing the declarant's

state of mind. Despite Leppo's arguments to the

contrary, each partner's state of mind was rele-

vant because the crime charged required that the

victims part with money either under color of

official right or because of fear of financial in-

jury. In order to meet its burden of proof, the

Government could properly show the state of mind

of each victim of the alleged extortion in an at-

tempt to prove that the victims paid the money

because of Leppo's office or because they feared

financial injury if they did not pay. It was for

the jury to conclude based on the other evidence

in the case whether Leppo induced those fears

and whether the victims' reactions to the circum-

stances were reasonable. There was, therefore,

no error in admitting the hearsay statements.

Leppo argues that the Court erred in pre-

10a

APPENDIX C

venting his counsel from asking certain hypothet-

ical questions of Warner and his partners. Spec-

ifically, counsel sought to learn what the wit-

nesses' reactions would have been if they believ-

ed that they were being "shaken down." The

government's objection to questions along this

line was properly sustained because they called

for the witnesses to speculate as to what their

actions would have been had certain events taken

place. Testimony of that kind had no probative

value because the issue in dispute was that the

witnesses' reactions were to the facts as they ex-

isted. Leppo explored in depth those reactions

and the Court's refusal to permit the hypothetical

questions was not erroneous.

Leppo also claims that the Court committed

an error requiring a new trial when it limited

his cross-examination of a witness with respect

to Government exhibit 5.20, which was a multi-

paged document showing campaign’ contributions

to the York County Democratic Committee. On

direct examination of Maureen Chambers, the

Government directed questions relating to the

lla

APPENDIX C

first three pages of the report. On cross-exam-

ination, Leppo's counsel attemped to delve into

the fourth page of the report. The objection

to this line of questioning was sustained because

it went beyond the scope of direct examination.

Lis vs. Robert Packer Hospital, 579 F.2d 819 (3d

Cir. 1978), cert. denied, 99 S.Ct. 354.

The Court is aware of no rule of evidence

that requires the admission of every page of the

multi-page document. The Government's questions

were limited to certain aspects of the document

and the attempted cross-examination went beyond

those issues into other matters. The Court's rul-

ing did not prevent Leppo from recalling Ms.

Chambers as his witness if he thought she had

information favorable to his case. Instead, coun-

sel chose to limit Leppo's defense to the testimony

of character witnesses. The Court finds no error

in its evidentiary ruling.

Leppo also contends that an error was

committed by permitting Mr. Shields, a partner

in the architectural firm, to testify about mater-

ials used in the construction of the York County

12a

APPENDIX C

Prison that were purchased from sources outside

of Pennsylvania. In light of the theory of inter-

state commerce presented to the jury, this evid-

ence was irrelevant. Its admission, however,

was not prejudicial to Leppo and did not confuse

the jury in any way. During its closing, the

Government did not refer to this testimony and its

admission, if error, was harmless.

Leppo also claims that the Court erred by

permitting testimony that showed Leppo violated

a Pennsylvania law requiring that he report cam-

paign contributions. The Court admitted this

evidence because it determined that its probative

value in relation to issures other than propensiiy

to commit crimes outweighed any prejudicial effect

of the testimony. See United States vs. Trotter,

529 F.2d 806, 813 (3d Cir. 1976). The evidence

was probative because it tended to show Leppo's

state of mind as to the receipt of the September

1975 contribution. The prejudicial impact was

slight in that the reporting law was a technical

matter, involved no social stigma and was not

emphasized by the Government. A _ strong indica-

l3a

APPENDIX C

tion that the testimony was not prejudicial is

that Mr. Leppo was acquitted of Count | of the

indictment which involved the alleged receipt of

money prior to the 1976 election. This was the

money the Government contended was not properly

reported. The Court is unwilling to assume that

the testimony about the Pennsylvania reporting

law tainted the jury's deliberations with respect

to Count II, which did not relate to those laws.

Consequently, the admission of the evidence does

not require a new trial.

Leppo contends that the Court erred in per-

mitting the Government to ask leading questions

of Donald G. Williams, one of Warner's partners.

The questioning of Williams by the Government re-

lating to crucial conversations between Williams

and Warner was not leading. The Court sustain-

ed several of counsel's objections to leading

questions and the Government proceeded with the

examination without the use of such questions.

Consequently, the Government's method of examin-

ation of Williams is not grounds for a new trial.

Leppo next contends that remarks by

l4a

APPENDIX C

Government counsel in closing called attention to

Mr. Leppo's exercise of his Fifth Amendment

rights and require a new trial. Leppo must, in

addition to showing that the remarks were impro-

per demonstrate that the improprieties were such

that they probably resulted in prejudice to him

and that the prejudice had not been neutralized

by the Court's instructions to the jury. United

States vs. Homer, 545 F.2d 864, 868 (3d Cir.

1976)(per curiam), cert. denied, 431 U.S. 954

(1977). Leppo has failed to meet this burden.

The prosecutor's comments related to a

conversation Leppo held with F.B.!. agent Cryan

following a polygraph examination. Of course,

the jury was not informed that the conversation

related to a polygraph examination. The Govern-

ment noted that the discussion between Cryan and

Leppo related only to the first alleged payment,

that of September 1975, and nothing was said as

to the February 1976 payment, for which Leppo

was convicted. The Government's comments were

not prejudicial in light of the fact that in his

opening statement, Leppo's counsel stated that

15a

APPENDIX C

Leppo had told Cryan that Leppo had received

money from Warner on several occasions and that

such conduct was improper but not illegal. More-

over, the Government's argument was in the con-

text of marshalling the evidence relating to each

of the separate counts of the indictment. The

Court instructed the jury concerning Leppo's right

to remain silent and charged the jury they could

draw no _ inferences from the exercise of that

right. Based on all the circumstances of the

case, including other evidence of Leppo's guilt,

the Court concludes that a new trial is not war-

ranted.

Leppo also assigns as an error the Court's

order of June 5, 1980, 10 days prior to the first

trial of this matter, permitting the Government to

amend its bill of particulars to state that Leppo

received money from Warner on or about February

13, 1976 rather than on February 13, 1976. The

amendment was allowed after Leppo served on

the government a notice of alibi for February 13,

1976. The amendment to the bill of particulars

did not prejudice Leppo. He had notice of it 90

16a

APPENDIX C

days before the start of the second trial and

counsel conceded in his opening that Leppo re-

ceived two payments from Warner, thereby dilut-

ing the effect of the alibi. Consequently, the

order permitting the Government to amend its bill

of particulars is not grounds for a new trial.

Leppo next contends that the Court erred

in granting the Government's points for charge

and denying the Defendants' points for charge.

Although Mr. Leppo submitted proposed points for

charge during the first trial, he did not do so

during the second trial. Leppo has cited no

authority in support of his proposition that the

points submitted during the first trial had con-

tinued vitality in the second trial. In Roberson

vs United States, 249 F.2d 737, 743 (Sth Cir 1957)

cert. denied, 356 U.S. 919 (1958), the Court of

Appeals for the Fifth Circuit held that the De-

fendant must resubmit mew points for charge.

Inasmuch as "(t]he identity of the offered in-

structions was not necessarily the same and the

district attorney should not be expected to assume

that they would be nor to search for copies of

17a

APPENDIX C

them," The Fifth Circuit's observations apply

with more force to the burden placed on the dis-

trict court by counsel's tactics in this case.

In addition, prior to closings Mr. Leppo's

counsel was asked by the Court whether he in-

tended to submit points for charge and he re-

plied that he did not. After the Court ruled on

the Government's points, Leppo's counsel did not

request rulings on his. Leppo has not stated

how he was prejudiced by the court's failure to

rule on his points, nor does he state which of the

Government's points were erroneous. Moreover,

Mr. Leppo did not object to the Court's failure

to give his points for charge before the jury had

retired and pursuant to Fed.R.Crim.P. 30 he may

not assign the Court's failure to give his points

as error.

Leppo also argues that error was committed

when the Court corrected an erroneous statement

counsel made to the jury. In his opening re-

marks, Leppo's counsel impugned the integrity of

the jury by stating that they had given an in-

correct answer when they stated during voir dire

18a

APPENDIX C

that none had heard of other extortion cases in-

volving political figures. As evidence of such

knowledge, counsel referred to the then recent

conviction of Representative Myers in an ABSCAM

prosecution. Inasmuch as Congressman Myers was

convicted of bribery and not extortion, the Court

felt that the unfair attack on the jury should be

corrected and did so. If the jury was prejudiced

against the Defendant as a result of this encount-

er, a proposition the Court does not subscribe to,

prejudice occurred when Leppo's counsel improper-

ly insinuated that the jury either deliberately or

accidentally gave false answers to a voir dire

question. The Court's action in correcting

counsel's misstatement was not prejudicial or im-

proper.

Leppo's final contention is that the Court

erred in sending to the jury copies of exhibits

that were redacted to eliminate those portions of

the exhibits that were not read in court. At the

beginning of the first trial and again at the be-

ginning of the second trial, the Court informed

counsel that only portions of exhibits actually

19a

APPENDIX C

read during trial would be sent to the jury.

This was done to prevent potentially prejudicial

material from being considered by the jury. This

procedure protects both parties and saves the

jury from wading through large amounts of ir-

relevant and extraneous material. Such proced-

ure, which was disclosed in advance to counsel,

is not improper and did not prejudice Leppo.

Based on the foregoing, the Court conclud-

es that Mr. Leppo's motions in arrest of judgment

and for a new trial will be denied.

An appropriate order will be entered.

s/Muir

MUIR, U.S. District Judge

DATED: November 4, 1980

20a

APPENDIX D

LOWER COURT'S ORDER DENYING DEFENDANT'S

MOTIONS IN ARREST OR JUDGMENT AND FOR A NEW

TRIAL FILED NOVEMBER 4, 1980

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

vs. : Criminal No. 80-00034-1

(Judge Muir)

CARROLL LEPPO

ORDER

Leppo's motion in arrest of judgment and

for a new trial are denied.

s/Muir

MUIR, U.S. District Judge

DATED: November 4, 1980

2la

APPENDIX E

A To the best of my knowledge, it was

created from this check listing.

Q And whose monies goes towards those

checks?

A During that year it would have been,

to the best of my recollection, from all my four

partners.

Q And you indicated that there is no firm

equivalent of that particular check book. Why,

again, did you establish that or why was it es-

tablished?

A Well, the partners gave me funds. |

didn't have any place else to put them, and |

put them in my checking account. The reason the

partners gave me funds is because it was our un-

derstanding that it was illegal for corporations or

partnerships to make political contributions in

firm names. So consequently we did it by the

partners taking their own personal after-tax dol-

lars -- after they had paid the tax and every-

thing on them -- withdrew money from their sav-

ings account or out of their checking accounts,

or whatever cash they had available, and gave

en

22a

APPENDIX E

it to me at some irregular intervals. And |

would deposit it in that checking account.

Q For whose benefit were these ads pro-

cured?

A For the people who the check was made

to.

be that you, as a partner, and each of your

other partners, would receive, during a _ period

of time, a given year -- tax year -- a payment

which represented the profit earned by, hopefully

profit, earned by your partnership?

A That's correct.

Q And, of course, all of the expenses

would have been paid either by the partnership

or through the corporation that subcontracted?

A That's correct.

Q Now, directing your attention specific-

ally to this personal account that you maintained

at the Hamilton -- the then National Central Bank

in Harrisburg --

A Yes.

Q I! gather that you had one such account

23a

APPENDIX E

in the same bank in York? That is, your person-

al, personal account?

A That's correct.

Q You apparently used, maybe your wife

used, or whatever, for household things?

A That's correct.

Q Then you had this separate account for

convenience in Harrisburg, out of the Harrisburg

branch in the same bank, but a different ac-

count?

A Thet's correct.

Q Now, specifically, the money, the dol-

lars, that went into that account, is it not a

fact that all of those dollars were to your know-

ledge, at least, dollars which were paid not by

the partnership, or by the corporation that you

subcontracted to, but were paid by the individual

partners with monies that were after taxed, after

expenses, they were their salary or their division

of net profits, isn't that a fact?

A That's exactly right, sir.

a x * *

Q Now, with regard to whatever sum of

money, whether three of five hundred dollars,

24a

APPENDIX E

given to Mr. Leppo in September, and $300 given

to Mr. Leppo in February of 1976, and any other

sum that you may have given to Mr. Leppo in the

year 1975, in the primary, if you did, okay,

with regard to whatever that total sum was, did

that money, in any way, diminish the buying

power of the partnership of your architectural

form or its ancillary corporation?

A No.

Q So that you are saying that there was

no effect by virtue of those contributions on the

amount of commerce that your firm might have

engaged in during that period of time?

MR. MARTIN: Your Honor, | will object.

it's an ultimate question for the jury to decide

and this witness is not in a position to answer

that question.

MR. SHOEMAKER: | think, Your Honor,

that that is specifically the very text of the

issue and if the Government has profferred an in-

dictment which indicates in its text that the

transfer of funds did effect, obstruct, or delay

Interstate Commerce and the movement of articles

25a

APPENDIX E

and commodities in commerce, | should be entitled

to examine or cross examine how, if at all, that

commerce might have been effected. And | am

trying to eliminate one of the possibilities that

has been suggested by virtue of certain questions

and answers and documents that have previously

been testified to by this witness and others.

THE COURT: What is your view on the

objection about the ultimate issue?

MR. SHOEMAKER: | am not asking the

witness to pass judgment on the ultimate issue of

whether or not the Defendant is guilty or in-

innocent, |! am merely attempting to determine

whether or not a specific area, a portion of the

text of an indictment, in a particular area,

qualifies for submission to constitute a portion of

that which is required. I'm not asking the ulti-

mate issue which is in the province of the jury

and the finding of facts.

THE COURT: Rule 704 of the congression-

ally adopted Rules of Evidence, reads as follows:

"Testimony in the form of an opinion or inference,

26a

APPENDIX E

otherwise admissible, is not objectionable because

it enbraces an ultimate issue to be decided by

the trier of the fact," and the Advisory Committee

notes specifically says, "The so-called ultimate

issue rule is specifically abolished by the instant

rule," so we will overrule the objection.

You may answer the question.

BY MR. SHOEMAKER:

Q Do you recall the question?

A No, sir.

Q 1 wanted to know, and specifically

asked, whether or not the payment of whatever

funds you paid to Mr. Leppo in any way, with

regard to your firm and its -- either the part-

nership or the corporation -- whether it in any

way had any effect on the quantity or quality or

the business that you did in Interstate Commerce.

. ss A he:

BY MR. SHOEMAKER:

Q Did, at any time, Mr. Leppo, in Sep-

tember of -- September 29, 1975, or thereabouts,

did he ever attempt to use some sort of fear of

financial injury to you in the transaction of that

27a

APPENDIX E

exchange of money?

MR. MARTIN: Objection, Your Honor, for

the same reasons. | think the question could be

asked without reference to the fear of financial

injury which is a legal phrase.

MR. SHOEMAKER: | don't understand the

objection, Your Honor. | don't agree with it.

THE COURT: We'll overrule the object-

ion. You may answer the question, if you can.

THE WITNESS: The question was --

THE COURT: Do you want it read back?

THE WITNESS: Please.

(Question read.)

THE WITNESS: No.

BY MR. SHOEMAKER:

Q Did he ever express to you any explan-

ation or reason that he would have to demand

from you such payment?

A No,

Q With respect to the February transact-

ion, February whatever date, whether it was 12th,

13th, whatever, at that time did Mr. Leppo ex-

press to you some -- in some way -- some right

28a

APPENDIX E

that he had to solicit some help from you?

A No.

Q Did he, at that time, express to you

some -- in some way -= some reason that you

should have fear of financial injury at the time

he made the request?

A No.

Q At the time of that last transaction,

the contract that ultimately your firm did its

work under, was in affect, had been signed and

was in affect, is that right?

A. That last transaction you mean in

February?

Q February, yes.

A Yes.

Q And after that time, the work that you

did, was it, indeed, at all times competitive,

and was it uninfluenced, to your knowledge, by

whatever had theretofor transpired?

A Yes.

Q Was the fee a fair fee?

A | certainly think so.

MR SHOEMAKER: We have “no _ further

questions.

29a

APPENDIX E

THE COURT: Do you have redirect?

MR. MARTIN: Yes, | do, Your Honor.

THE COURT: All right. Well, will it

take more than a couple of minutes?

MR. MARTIN: | think it will, Your

Honor.

THE COURT: All right. it's now 3:58.

We will adjourn until Monday morning.

Thank you.

(At 3:58 P.M. the trial was adjourned

until Monday, September 8, 1980, at

10:00 A.M.)

30a

APPENDIX E

BY MR. MARTIN:

Q Mr. Shields, from time to time, or --

what, if on any occasion, have you given Mr.

Warner sums of money?

A For political contributions.

THE COURT: Counsel, are you now get-

ting into a slightly new subject? We're past the

recess time. I'd like you to pick a convenient

place, or maybe you're about to finish.

MR. MARTIN: Just about, Your Honor.

THE COURT: All right.

BY MR. MARTIN:

Q And how do you contribute, if at all

do you contribute to Mr. Warner in such re-

quests?

A From my personal funds.

Q And where do your personal funds come

from, Mr. Shields?

A Either from my salary from G&L Engi-

neering or from my share of the profits’ in

Williams, Shields, Snyder & Goas.

MR. MARTIN: No other questions of the

Witness, Your Honor.

3la

APPENDIX E

THE COURT: All right. Do you wish to

take a recess now?

MR. SHOEMAKER: At the Court's discretion.

Mine may be a little while, so perhaps it would

be appropriate.

THE COURT: All right. We'll take a 15

minute recess.

) (A short recess.)

CROSS EXAMINATION

BY MR. SHOEMAKER:

Q Mr. Shields, how long have you been

a partner in this firm?

A Since 1967.

Q And your job with the firm is what?

A Is overseeing the preparation of con-

tract documents and specifications and reviewing

and checking shop drawings.

Q You're not involved, | assume, in the

public relations promotional end of it?

A No, I'm not.

Q You were not a participant in any of

the promotions of the York County jail contract

32a

APPENDIX E

with the County Commissioners or the Jail Board or

the Courts down there?

A No, | wasn't.

Q And | gather from that that you are

not particularly motivated or, say, interested in

that aspect of your firm's work?

A I'm interested but not too well qualif-

ied to do it.

Q | gather that you have a good deal of

familiarity with the materials that went into the

jail?

A That's correct.

Q And the subcontractors?

A Yes.

Q You dealt with them in the course of

construction, checked the material and had cer-

tain approvals to make concerning the qualifica-

tions of those materials?

A That's correct.

Q Your job then allows you to know that

indeed the materials came for this actual con-

struction from all over the United States?

33a

APPENDIX E

A That's correct.

Q Mr. Shields, assume for the moment

that despite you instructions to Mr. Warner con-

cerning giving any money to Mr. Leppo, assume

for the moment that he disobeyed your instruct-

ions and did give some money to Mr. Leppo from

his personal account -- which | gather you may

have contributed to at some time or another -- is

that correct? You did contribute to it?

A For this --

Q No, you contributed to the personal

account that Mr. Warner had available to him?

A Yes.

Q Assume for the moment that he took -

- Mr. Warner took some money from that personal

account and gave Mr. Leppo some money, okay?

A Yes.

Q Did that change anything in these lists

of suppliers?

A Not that | know of.

Q Did it make any difference whatsoever

as to the quanitities, the quality or the nature

34a

APPENDIX E

of the materials that went into the ultimate con-

struction?

A No, it didn't.

Q You're telling me that it doesn't make

any difference whether he did or didn't give

money to Leppo from that personal account, it

had no bearing on what the construction actually

was?

A That's right.

Q Didn't diminish it or enlarge it?

A No.

Q Of course, the monies for these mater-

ials all came from the County, did they not?

A That's correct.

Q You don't know anything about the act-

ual transactions that Mr. Warner had with Mr.

Leppo, that is to say, you never personally par-

ticipated in or had any personal knowledge of

any of these transactions?

A No, | didn't.

Q You weren't present at any time when

any of them took place, if they did?

>

35a

APPENDIX E

A No, | wasn't.

Q And | gather that except for the one

inquiry, your weren't consulted about it?

A That's -- to the best of my knowledge,

that's the only time | was consulted.

THE COURT: Sir, | couldn't hear that.

THE WITNESS: | said, to the best of my

knowledge that was the only time | was consult-

ed.

BY MR. SHOEMAKER:

Q You, apparently back in the '60's,

‘60's, '70's, sometime substantially before we

reached the York County deal -- prison contract

-- at some time the individual members of your

firm had reached some understanding about

political contributions, is that correct?

A Yes.

Q You and your partners knew that it

was improper under the law as it was then in

extistence, for a corporation or firm, a business,

to directly make political contributions, is that

correct?

36a

APPENDIX E

A Yes.

Q And so that your business would not be

in any way involved -- that is, your achitectural

firm or the corporation that handled some of the

subcontracting for your firm -- so that neither

of those businesses would be invoived, each of

the partners agreed to, from their personal funds

from their after tax monies, to contribute to a

fund so that you could promote by making polit-

ical contributions, is that correct?

A Not quite correct. We didn't contribute

to a fund. As a contribution was made we gave

the money.

Q You gave the money to Warner so that

Warner could make political contributions?

A That's correct.

Q Once you made the gift or transferred

the money to Warner, as far as you're concerned,

it was Warner's money to handle, not the firm's?

A No.

Q No?

A It was our money, each individual's

37a

APPENDIX E

money, not Warner's money.

Q Okay. It was each individual's money

Now, “hen you say "each individual's money",

you mean that it was not the corporation's

money?

A That's correct.

Q It was not the architectural partner-

ship's money?

A That's correct.

Q It was your personal money and your

partners' personal money taken out of your per-

sonal pocket?

A That's correct.

Q Now, would this have been done after

you paid your taxes on it?

A Yes.

Q Would it have been done after you paid

all the expenses of your businesses?

A No, because it was our personal money.

Business expenses were paid out of the business

funds. This came out of our personal money.

Q So this would be after expenses? In

38a

APPENDIX E

other words, the partnership had certain expenses

as | understand it, from what Mr. Warner said,

the partnership hired the corporation to hire

personnel and pay, or supply the wiggets and

typewriters and paper and do those mundane

things that go into the business operations,

right?

A That's correct.

Q And the partnership paid certain ex-

penses but mostly they paid the corporation to

pay the expenses?

A That's correct.

Q Okay. Now, you got a salary from the

corporation?

A Yes.

Q And you got some profits, the split of

profits --

A Correct.

Q_ ...from the partnership?

A That's correct.

Q And then you paid your taxes on that

and put it in your -- figuratively -- put it in

39a

APPENDIX E

your pocket?

A Correct.

Q That was your money to do with as you

saw fit?

A That's correct.

Q Now, one of the things you saw fit to

do was to contributeto this fund that Mr. Warner

handied, is that right? You, personally, togeth-

er with your other partners, you all saw fit to

contribute to this bank account that Mr. Warner

maintained which you eventually, or which he

eventually made political contributions out of?

A Only as a political contribution came

up, yes.

Q My inquiry was really this: assuming

for the moment that a political contribution was

made to Carroll Leppo, okay?

A Yes.

Q Apparently you can't say whether it

was or wasn't, because you didn't do it or have

anything to do with it, but assuming that one

was back in 1975, or maybe several, from this

40a

APPENDIX E

fund that we've been talking about, can you tell

me if that diminished your corporation's ability to

buy anything or do business?

A No.

Q Had no affect on it whatsoever, did it?

A No.

Q Would you tell me whether it diminished

in any way your partnership's ability to buy

things?

A No.

Q In other words, it had no direct rela-

tionship to either the partnership or the corpor-

ation as far as their financial resources?

A That's correct.

Q Are you telling me then, Mr. Shields,

that assuming that Mr. Warner did give some

money form this fund to Mr. Leppo, A, as a po-

litical contribution back in 1975, or B, as a

loan, gift or whatever, in February of '76, that

it had absolutely no affect on the operation of

your corporate or partnership business?

A That's correct.

Q So then it did not diminish what you

4la

APPENDIX E

bought or sold in Interstate Commerce?

A Not to my knowledge.

Q And you also said that it had no affect

-- if it happened -- it had no affect whatsoever

on what was bought and transferred and the

business in Interstate Commerce in the building

of the jail?

A Not that | know of, no.

Q Mr. Shields, you apparently had some

sort of conversation with Mr. Warner. | don't

want you to repeat what Mr. Warner said, but

you were asked about your, apparently, sort of

your frame of mind, your attitude toward this

transaction, whatever it was, and you expressed

yourself negatively. You were disinclined to do

something?

A That's correct.

Q Isn't it a fact, Mr. Shields, that if

you had been concerned that it would affect your

contract, you would have thought it over careful-

ly and perhaps suggested...

Q These monies -- assuming that Charlie

42a

APPENDIX E

Warner did, in fact, give money in the campaign,

to Carroll Leppo -- assuming for the moment that

Charlie Warner did, in fact, take some money

down to Carroll sometimes after the 10th when you

had this contract signing -- and assuming those

monies did indeed come from this bank account

that | have loosely called the fund, Okay?

A Yes.

Q ...aS opposed to Charlie Warner's per-

sonal pocket or otherwise. Did that have any

effect on the amount of pencils or paper or things

of any kind that your firm, either your partner-

ship firm or your corporate firm, bought on the

market?

A No.

Q Had no effect on that firm at all, did

it?

A No.

Q So it didn't diminish your resources of

the firm?

A No.

Q Either one, corporate or partnership?

43a

APPENDIX E

A No.

Q In other words, whatever money was

involved was your own personal money. You can

give it to the church or you can throw it away

or you can go by lollipops or spend it at the

fair or make a political contribution or make a

loan or make a gift and it was your own person-

al money. It had nothing at all to do with the

business per se, did it?

A No.

Q We have a document here that has been

proffered in evidence which Mr. Shields testified

describes all these various suppliers and subcon-

tractors that -- all over the country -- that put

materials and stuff into this prison, labor and

so forth. I'd like you to tell this jury whether

or not there was any effect whatever on the act-

ual prison construction because Mr. Warner -- if

he did, indeed -- give to Carroll Leppo, was

there any change whatsoever in the nails and

timbers and doors and glass and the things that

went into that construction of the prison? Did

44a

APPENDIX E

that have any effect whatsoever on the construct-

ion of the prison?

A No.

Q None whatsoever?

A Not that | would know.

Q To your knowledge, none of your part-

ners, as individuals, as opposed to your partner-

ship or the partnership corporation, none of your

partners are engaged in a business or their own,

are they?

A Not that | know of.

a ae

February, the next incident. Now, this

was a golden opportunity for Mr. Warner, if he

wanted to, to give a persone! campaign, or --

excuse me -- it was not a compaign contribution.

It was a golden opportunity, though, to help his

friend, Carroll Leppo, with his own money, from

his own checking account, apart from Williams,

Shields, Snyder & Goas. It was his opportunity

to give his friend $300. He didn't do it. In-

stead, he went back to the firm and got reim-

45a

APPENDIX E

bursed. The deposit slip shows that. The check

shows that. The checking account shows that.

The depth of his friendship for Mr. Leppo.

Now, what about, again, the various facts

regarding this February transaction? Well, first

of all, again, Agent Cryan's testimony, Mr.

Leppo didn't even talk about this $300 when he

was talking about improprieties, not illegalities.

It's this, but it's not that. He was talking

about campaign money. He was talking about

September. He never even said anything to Mr.

Cryan about February and his vacation.

MR. SHOEMAKER: Your Honor, I'd like to

approach the bench on this.

(At sidebar.)

MR. SHOEMAKER: | move for a mistrial.

a a

You may find that interstate commerce was

adversely affected if you find beyond a reason-

able doubt that the firm of Williams, Shield,

Snyder and Goas did business outside Pennsy!van-

ia and purchased goods outside of Pennsylvania,

46a

APPENDIX E

that the payments by Mr. Warner to Mr. Leppo

were made and were from money contributed by

the partners from money they received from the

firm and were made on behalf of the firm, there-

by depleting the firm's assets or reducing its

profits.

The term extortion means the obtaining of

property from another person with his consent in-

duced either by wrongful use of fear -- that is

the one category -- or under color of official

right.

Now, the term fear as used in the statute

has the commonly, accepted meaning. It is a

state of anxious concern, apprehension, alarm -

- and when | say apprehension | mean apprehen-

sion of anticipated harm -- to a business or of

a threatened loss.

| am going to read that to you again.

The term extortion means the obtaining of pro-

perty from another person with his consent in-

duced either by wrongful use of fear or under

color of official right. The term fear as used

47a

APPENDIX E

in the statute has the commonly accepted mean-

ing. It is a state of anxious concern, alarm,

apprehension of anticipated harm to 4a....