# Petition — Leppo v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2461%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 454 U.S. 964 ## Text 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.... --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2461%3A1. Public record. Not legal advice.