# Record and brief — Seregos v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Record and brief
- **Published:** January 1, 1982
- **Citation:** 455 U.S. 940

## Text

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

NICHOLAS SEREGOS,
Petitioner,

V.

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

JOHN D. GORDAN, Ill
LAURIE E. FOSTER

25 Broadway

New York, New York 10004
(212) 344-8480

Attorneys for Nicholas Seregos

PROFESSIONAL PRINTING SERVICES, INC., Successor to The Paul M. Harrod Company
5. O. Box 6594 © Baltimore, Maryland @ 21234

i
QUESTIONS PRESENTED

1, Whether (a) the Government's use of Mr, Seregos’
prior immunized testimony in making tactical decisions in his
prosecution, and (b) its cross examination of Mr. Seregos at
his own trial about matters disclosed in his immunized testimony
and not shown to have had an untainted source, complied with
the rule announced in Kastigar „ United States, 406 U.S, 441
(1972),

2, Whether the Constitution permits the retroactive
application of a decision of this Court to punish conduct under
a statute which, at the time the conduct occurred, had been
held inapplicable to it by the Court of Appeals,

TABLE OF CONTENTS

Page
ä i
ee. cbdb cb ebbe Mboéades iv
eee ...en 2
eee otc e ete davetveccednennd 2
r 2. oe dows cbeedeeedéooeet 2
Dee eee eee 2
eee een ee Pe rere Pre r 2
J 4

C. The First Indictment and The Immunized Testi-
„een eee eee e 4
D. Post-Indictment Proceedings and Trial 5
Se, p 6

F. The Motion under Rules 12 and 34 of Federal
Rules of Criminal Procedure 0
G. The Opinions of the District Court 8
H. The Opinion oſ the Court of Appeals 9

REASONS SUPPORTING ISSUANCE

r ... Padedeeael 10

I, The Court of Appeals has Departed from the
Requirements of Kastiga nnn 11

Il. The Ex Post Facto Application of the Travel
Act to Mr. Seregos Violated the Due Process

iv

TABLE OF AUTHORITIES
Page
Cases
Abbate v. United States, 359 U.S. 187 (1959) ............ 17
Bouie v. City of Columbia,

Z 10,1417
Calder v. Bull, 3 Dall. 386 (1798 00 õ;.: 11,17
Douglas v. Buder, 412 U.S. 430 (1973). 14
Kastigar v. United States,

ER ey 2,5-7,9-13
Marks v. United States, 430 U.S. 188 (1977) ...... 8,10, 14-16
Memoirs v. Massachusetts, 383 U.S. 413 (1966)........... 15
Miller v. California, 413 U.S. 15 (1973) .............. 15,16
New Jersey v. Portash, 440 U.S. 450 (1979)........... 10-12
Perrin v. United States, 444 U.S. 37 (1979) ....... 8-10, 14-16
Rewis v. United States, 401 U.S. 808 (1971777) 17
United States ex rel. Clark v. Anderson,

502 F.2d 1080 (3d Cir. 197 ꝰhᷣ 10,16,17
United States v. Brecht, 540 F.2d 45 (2d Cir. 1976),

cert. denied, 429 U.S. 1123 (1977).......... 8-10,13-17
United States v. Goodheim, 651 F.2d 1294

. 10,15-17
United States v. Maze, 414 U.S. 395 (1974)! 5
United States v. McDaniel, 482 F.2d 305

e Re ree ey Fee 10-12
United States v. Peltier, 422 U.S. 531 (1975)............. 15
United States v. Perrin, 580 F.2d 730 (Sth Cir. 1978),

re. ed et dbbee tees 16
United States v. Persky, 520 F.2d 283

S NEaM se. tick bocvileede ccntens 16
United States v. Pomponio, 511 F.2d 953 (4th Cir.),

cert. denied, 423 U.S. 874 (19777)... 9,16

United States v. Potts, 528 F.2d 883
e. eee 15

Page

United States v. Scotto, 641 F.2d 47 (2d Cir. 1980),

cert. denied, 101 S. Ct. 3109 (1981).......... 4-8, 11,12
Weaver v. Graham, 450 U.S. 24 (19817777777: 11

Constitutional Provisions
U. S. Constitution, Amendment V ............. 2,8,10,14-16
Statutes and Rules

18 U.S.C

o reel 24.5

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! ů²˙²˙¹⅛»AA ͤ , wr Lee ene 15

ness 2,5,8,9,10,13-17
28 U.S.C.

rede bees 2

D .be eee 2,4
N.Y. Penal Law (McKinney’s Supp. 1979-80)

eee ebenes 2.5, 13

r ˙Ü˙Zĩ˖QK—»ůO ...en 2.5, 13
e. eee ese eee 8
e . TT ETT Te 8
e 5

INDEX TO APPENDIX

Opinion of the Court of Appeals A. 1
February 26, 1980 Order of the District Court......... A. 11
Vesdict of the District Court. G A. 14
August 4, 1980 Opinion of the District Court.......... A. 18
August 5, 1980 Order of the District Court............ A. 26
September 15, 1980 Order of the District Court........ A. 28
October 17, 1980 Order of the District Court.......... A. 30
Judgment of the Court of Appeals A. 33
Order of the Court of Appeals Denying Rehearing ....... A. 34

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

NICHOLAS SEREGOS,
Petitioner,

V.

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

The Petitioner, Nicholas Seregos, respectfully requests
*hat a writ of certiorari issue to review the opinion and judg-
ment of the United States Court of Appeals for the Second
Circuit entered on July 28, 1981.

2
OPINIONS BELOW

The opinion of the Court of Appeals is reported at 655
F.2d 33. It appears in the Appendix hereto at A. 1 - A. 10.“
The opinions of the District Court concerning the issues raised
in the petition are found at A. 18 - A. 27 (Kastigar issues) and
A. 28 - A. 32 (Due Process issue).

JURISDICTION

The Judgment of the Court of Appeals was entered on
July 28, 1981 (A. 33). On August 7, 1981, Mr. Seregos filed a
timely petition for rehearing and a suggestion of rehearing en
banc; the petition and suggestion were denied on September 14,
1981 (A. 34). The jurisdiction of this Court is invoked under
28 U.S.C. § 12541).

STATUTES INVOLVED

This case involved application of 18 U.S.C. § 1952, predi-
cated on violation of N. V. Penal Law §§ 180.03 and 180.08,
18 U.S.C. § 371, the federal use immunity statute (18 U.S.C.
§ § 6001 ef seq.), and the Fifth Amendment to the Constitu-
tion of the United States. These are set forth in the Appendix
at A. 35-A. 39.

STATEMENT OF THE CASE
A. The Facts

In 1973 Edward J. Pierson of Moore-McCormack Lines
and Richard Weeks of Weeks Stevedoring Co. negotiated a two-
year lease, with three six-month renewal options, for a floating

*Citations to the Appendix to this petition are in the above form.
References with the prefix “Tr.” refer to the transcript of the trial. Refer-
ences with the prefix “H.Tr.” or “H.GX.” refer respectively to the
transcript of, and to the Government exhibits at, the post-trial Kastigar
hearing. References with the prefix “R.” are to the number of a particu-
lar paper in the Record on Appeal in the Court of Appeals.

3

crane to be furnished by Weeks Stevedoring to the Moore-
McCormack cargo terminal in Brooklyn, N.Y. (Tr. 35-40;
GX. 8). After the lease had been agreed to, Pierson secured
Weeks’ agreement to pay him a monthly kickback of $1,500.00
(Tr. 38-39, 87).

Using a variety of devices, Weeks made the payments
through Pierson’s intermediaries at irregular intervals until
mid-summer 1976, when Weeks was unable to generate the
necessary cash off the books of Weeks Stevedoring (Tr. 44-46).
Pierson then sought assistance from William Montella, who was
also paying him kickbacks; Montella suggested that Nicholas
Seregos, president of Jackson Engineering Co., a ship repair
firm, might be of assistance (Tr. 49-52).

According to Pierson, in August or September, 1976, he
had the first of several meetings with Mr. Seregos, who had had
no previous involvement with Pierson, Weeks or their kickback
arrangement (Tr. 53-55). At Pierson’s behest, Mr. Seregos pre-
pared a fictitious $25,795 invoice to Weeks Stevedoring for
work purportedly done on the crane by Jackson Engineering
(Tr. 59-61; GX. 1). When the invoice was paid in December,
1976, Mr. Seregos turned $18,000 over to Pierson, retaining the
balance to cover Jackson Engineering’s taxes (Tr. 62-64).

Mr. Seregos, who took the stand on his own defense,
admitted preparing the false invoice and that the work reflected
was not performed. He testified, however, that he had not had
the meetings Pierson claimed, that he was unaware of the kick-
back arrangement between Pierson and Weeks, and that his
dealings had been with Montella, to whom he had delivered the
$18,000 (Tr. 487-523).

On cross examination the prosecutor asked whether
Mr. Seregos had testified falsely before the Waterfront Commis-
sion in 1976 and whether he had made payments to employees
of Hellenic Lines, a customer of Jackson Engineering Co.
Mr. Seregos admitted he had done both (Tr. 555-63, 632-38).
The District Judge, who was sitting without jury, referred to
each of these admissions either during summations or in his
findings of guilt (Tr. 720-21; A. 14-15).

B. Pre-Indictment Events

This prosecution grew out of an investigation in the
Southern District of New Vork and elsewhere into waterfront
corruption. A principal target of the investigation was Anthony
Scotto, president of Local 1814 of the International Long -
shoremen’s Association“ (R. 5).

In the winter of 1979, Mr. Seregos came to the attention
of the United States Attorney’s Office for the Southern District
of New York as a potential witness against Scotto. There
followed nearly six months of negotiations during which the
United States Attorney’s Office offered Mr. Seregos a misde-
meanor plea in return for his cooperation.“ Mr. Seregos
refused any such arrangement out of concern for the safety of
his family and his business, although recognizing his obligation
to give truthful testimony if subpoenaed and granted use
immunity under 18 U.S.C. § § 6001 et seq. (R. 5, R. 6).

C. The First Indictment and The Immunized Testimony

On July 24, 1979, an indictment was handed up in the
Southern District of New York charging Mr. Seregos with four
counts of mail fraud (18 U.S.C. § 1341) and one count of
conspiracy to commit mail fraud (18 U.S.C. § 371), arising out
of his involvement in the kickback arrangement between
Pierson and Weeks (R. I). Within an hour of its filing, Mr.
Seregos was granted use immunity and appeared before the
Grand Jury which had just indicted him (R. 8). He testified
not only about his involvement with Scotto but also revealed
that he had been forced to make payments to employees of
Hellenic Lines, one of Jackson Engineering’s customers, in order
to retain its business (H.GX. 2; R. 5, R. 6).

In the fall of 1979, Mr. Seregos testified for three days as
a Government witness under grant of use immunity at the
Scotto trial in the Southern District of New York (R. 17 at 4).

See United tates v. Scotto, 641 F.2d 47 (2d Cir. 1980), cert.
denied, 101 S.Ct. 3109 (1981).

5

In addition to matters involving Scotto, Mr. Seregos was cross
examined at length about (1) the facts underlying his own
indictment; (2) his Hellenic Lines payments; and (3) his sworn
testimony before the Waterfront Commission in 1976, which
he admitted was false. Jd. His appearanc. was given extensive
coverage in the New York Times.“ Id. at 5.

D. Post Indictment Proceedings and Trial

Following Mr. Seregos’ July, 1979 indictmei:* on mail
fraud charges, the Government secured a postponement of Mr.
Seregos’ trial “in the interests of justice” until after the Scotto
trial (R. 4). Thereafter, two of the four substantive counts were
dismissed on the Government’s concession that venue did not
lie in the Southern District of New York (A. 12). The other
counts were abandoned when defense counsel brought to the
Government’s attention that none charged an offense under the
mail fraud statute as construed in United States v. Maze, 414
U.S. 395 (1974) (Tr. 430-31).**

On February 29, 1980, the Government obtained a super-
seding indictment charging Mr. Seregos in two counts with
conspiracy to violate the Travel Act (Title 18, United States
Code, Section 1952), in violation of Title 18, United States
Code, Section 371, and with a substantive violation of the
Travel Act, alleging that he had traveled in interstate commerce
to facilitate the payment of an $18,000 commercial bribe, in
violation of N.Y. Penal Law §§ 180.03 and 180.08 (R. 10).

*The District Court declined to permit either the transcript of Mr.
Seregos’ immunized Scotto testimony or the New York Times reports of
it to be made part of the record of the Kastigur hearing, finding the
connection between these items and the government’s evidence during the
Kastigar hearing to be at best speculative. . .” (A. 27). A copy of the
September 29, 1979 Times article was printed in an appendix to Mr.
Seregos’ main brief in the Court of Appeals, and that Court was requested
to take judicial notice of it pursuant to Rule 201 of the Federal Rules of
Evidence.

**A nolle prosequi was entered as to these counts during the pen-
dency of the case before the Court of Appeals.

6

Trial began on March 27, 1980, and concluded on April 2,
1980, when the Court found Mr. Seregos guilty on both counts.

E. The Kastigar Hearing

The District Court deferred the Kastigar hearing, which the
Government conceded was required, until after trial (A. 11-12).
The Government’s proof at the hearing consisted of the record
before the Grand Juries that had returned the two indictments
and the testimony of Assistant U. S. Attorney Mescon, who
conducted the prosecution, and of Special Agent Cassidy of the
F. B. I., the “case agent” (H.GX. I and 2).

The record before the Grand Jury showed that the evi-
dence in the Government’s case-in-chief at trial came from
witnesses and documents identified prior to Mr. Seregos’
immunized testimony, which followed his first indictment
(H. Tr. 10-12; H.GX. 1).

Assistant U. S. Attorney Mescon testified that the Kastigar
problem had been recognized from the outset and that once it
had been decided to indict Mr. Seregos, the United States
Attorney, Mr. Fiske,* instructed Mr. Mescon to avoid any
exposure to Mr. Seregos’ immunized Grand Jury or trial testi-
mony in the Scotto case. Mr. Mescon as a consequence did not
discuss Mr. Seregos with any other prosecutors working on the
Waterfront investigation, did not read Mr. Seregos’ immunized
Grand Jury or trial testimony in the Scotto case or newspaper
reports of the case, and did not discuss Mr. Seregos’ involve-
ment in the Scotto case with anyone except Special Agent
Cassidy (H.Tr. 10, 18-20).

Nevertheless, Mr. Mescon admitted that the Government’s
decisions to seek the postponement of Mr. Seregos’ trial until
after the Scotto trial and its refusal of a disposition of the
charges against Mr. Seregos after the Scotto trial had been made
by Mr. Fiske and Assistant U. S. Attorney Levine, both of

*Mr. Fiske tried the Scotto case, assisted by Assistant United States
Attorney Alan Levine, who had taken Mr. Seregos’ immunized testimony
before the Grand Jury (H. Tr. 37; H.GX. 2). The decision to obtain the
indictment against Mr. Seregos was made by Mr. Fiske (H. Tr. 45, 47).

7

whom were necessarily fully aware of the content of Mr.
Seregos’ immunized testimony from having conducted the
Scotto trial (H. Tr. 131-34, 71-74, 117-18). The record also
showed without contradiction that the Government’s stated
reason for refusing to reduce or dismiss the charges against
Mr. Seregos had been because of the nature of his admissions in
his immunized testimony (H.Tr. 71-74, 117-18, 137-39).*
In addition, Mr. Mescon admitted that his decision at Mr.
Seregos’ trial not to call Montella as a rebuttal witness, made
just before Mr. Seregos’ cross examination began, was reached
in consultation with Mr. Fiske and Mr. Levine** (H. Tr. 32-
33, 128-29).

Mr. Mescon testified that, shortly before trial, Special
Agent Cassidy informed him of Mr. Seregos’ Waterfront Com-
mission testimony, claiming to have learned of Mr. Seregos’
appearance before the Commission from electronic surveillance,
conducted before Mr. Seregos was immunized, “in which Mr.
Seregos was discussed” (H. Tr. 20-24, 55). He testified also that
his cross examination of Mr. Seregos concerning payments to
Hellenic Lines employees had been suggested by Cassidy the
day before Mr. Seregos was cross examined, and that this was
his first knowledge of the subject (H. Tr. 78-80, 118). Mr.
Mescon did not inquire what information prompted Cassidy’s
suggestion (H. Tr. 119).

et was stipulated that, if called as a witness, defense counsel
would have testified that at a meeting with Mr. Fiske and his Assistants,
including Mr. Mescon, following the Scotto trial, one of the reasons given
for the Government's rejection of a disposition of the charges “was the
information that Mr. Seregos had revealed while under his grant of
immunity. . .”, a ground defense counsel further said had been advanced
as “the principal one” by Mr. Mescon in their telephone conversation the
day after the meeting (H. Tr. 139). When asked at the Kastigar hearing
whether he recalled saying that in the telephone conversation, Mr. Mescon’s
response was: “I don’t, but I don’t recall not telling you that either.”
(H. Tr. 74).

**Mr. Montella, who had also been a Government witness at the
Scotto trial, was at the time in the Federal Witness Protection Program
(H. Tr. 129-130).

In his testimony, Special Agent Cassidy never explained
the source of his suggestion about the Hellenic Lines payments.
In contrast to Mr. Mescon, Cassidy claimed to have learned
about Mr. Seregos’ Waterfront Commission testimony from a
recording made by Montella of a conversation with Mr. Seregos
in August, 1978, but he did not disclose what or who had
led him to consult that recording (H.Tr. 95-96). Finally,
Cassidy admitted that his instructions for avoiding taint were
that he should not discuss “matters about Mr. Seregos as they
pertained to things happening post-indictment,” but that
Aal nything prior to that we discussed.” (H. Tr. 88-89, 103).
Cassidy also said that he had been involved in the prosecution
and trial preparation of the Scotto case and had “sat with
Montella kind of on a daily basis.” (H. Tr. 85-87, 102).

F. The Motion under Rules 12 and 34 of the Federal Rules
of Criminal Procedure

After the verdict, Mr. Seregos made a timely motion in
arrest of judgment and for dismissal of the indictment (R. 26,
R. 27 at 3 n. I) on the grounds that the evidence at trial showed
that all of his conduct had taken place in the latter part of
1976, after the decision of the Court of Appeals in United
States v. Brecht, 540 F.2d 45 (2d Cir. 1976), cert. denied, 429
U.S. 1123 (1977), holding that a Travel Act prosecution could
not be predicated, as this one was, on violation of the New
York commercial bribery statute, and that the retroactive
application of this Court’s contrary decision in Perrin v. United
States, 444 U.S. 37 (1979), overruling Brecht three years later,
violated the Due Process Clause of the Fifth Amendment.
Marks v. United States, 430 U.S. 188 (1977).

G. The Opinions of the District Court

The District Court denied the motion in arrest of judgment
on the ground that Rule 12 required the Due Process claim be
raised before trial (A. 28-32). It did not address the merits of
the claim.

neither Mr, Mescor nor Special Agent Cassidy had known “the
‘substance’ of Mr, Seregos’ immunized testimony (A, 23)
The District Court gave no consideration to the admitted use
of that testimony in making prosecutorial decisions or to the
involvement in such decisions of those who were fully aware of
the content of such testimony, It also did not address the
Government's failure to show that its cross examination of Mr,
Seregos about the Hellenic Lines payments and his Waterfront
Commission testimony derived from sources untainted by his
immunized testimony,

H, The Opinion of the Court of Appeals

The Court of Appeals, although recognizing that the
Kastigar claims did not concern the Government's direct case

at trial, did not discuss those claims and affirmed on the find-
ings of the District Court,

On the Due Process claim, the Court of Appeals appar:
ently disagreed with the District Court's conclusion that the
point had to have been raised before trial, an issue which its
opinion did not address, Instead, the Court of Appeals rejected
the claim on the merits on three grounds, First, the Court
relied on this Court's decision in Perrin „, United States, supra,
as clearly demonstrating that the Travel Act nad been intended
to include commercial bribery as U predicate offense, Second, it
pointed to an earlier decision of the United States Court of
Appeals for the Fourth Circuit, United States v, Pomponio, $11
F. 2d 953 (4th Cir,), cert, denied, 423 U8, 874 (1975), which
the Second Circuit expressly refused to in Brecht,
holding that the Travel Act did apply to the New York com-
mercial bribery statute, Finally, the Court held that, given its

10

REASONS SUPPORTING ISSUANCE
OF THE WRIT

This petition raises two issues of general importance to the
administration of justice, both arising under the Fifth Amend-
ment.

1. The proper application of Kastigar v. United States,
supra, touches fundamental values of our society. 406 U.S. at
444, In enacting the use immunity statute, the Congress
stripped away a valued constitutional right in return for what
the Court emphatically required in Kastigar must be its full
equivalent, To permit the Government to treat its obligations
under Kastigar as merely symbolic, as the lower courts have
done here, will erode the standard set by Kastigar, confirmed
in New Jersey v. Portash, 440 U.S. 450 (1979), and correctly
applied in United States v. McDaniel, 482 F.2d 305, 311
(8th Cir, 1973), a standard from which the Court of Appeals
on this record necessarily departed. This case offers the Court
the opportunity not only to correct a dangerous erosion of the
principles of Kastigar and Portash but also to settle that those
principles extend outside the courtroom to bar the use of
immunized testimony in making prosecutorial decisions and
tactical judgments in a subsequent prosecution of the immun-
ized witness.

2. The Court of Appeals has permitted the retroactive
application of this Court's construction of the Travel Act in
Perrin . United States, supra, to conduct which, when per-
formed, was not prohibited by the statute as construed in con-
trolling precedent, United States v. Brecht, supra. Such a ruling
departs from settled constitutional principles. Marks v. United
States, supra; Boule v. City of Columbia, 378 U.S. 347 (1964).
It is in direct conflict with a decision of the United States
Court of Appeals for the Ninth Circuit filed only one day
earlier, United States v. Goodheim, 651 F. 2d 1294 (9th Cir.
1981), and with United States ex rel Clark „ Anderson, 502
F. 2d 1080 (3d Cir. 1974) (Hastie J.). The result reached by the
Court of Appeals calls into question fundamental constitutional

principles nearly as old as the Court itself, Calder v, Bull, J Dall,
386 (1798), and reaffirmed as recently as the last Term. Weaver
„ Graham, 450 U.S, 24 (1981).

The Court of Appeals has Departed from the Require-
ments of Kastigar.

The familiar teachings of Kastigar are that both statutory
provision and constitutional requirement prohibit the Govern-
ment from using “in any respect,” 406 U.S. at 453 (emphasis
in original), a witness’s immunized testimony in connection
with his subsequent prosecution, The “heavy” burden of
showing that no such use has been made is imposed on the
Government, and its discharge requires not only the negation of
taint, but also an affirmative demonstration that the Govern-
ment's case has been derived from sources wholly independent
of the immunized testimony, 406 U.S. at 460.

The constitutional and statutory bar against any use of
immunized testimony clearly extends beyond the Government's
direct case at trial and includes cross examination of the defen-
dant. New Jersey v. Portash, supra, Kastigar also shows that
subtler forms of use outside the courtroom—“leads, names of
witnesses, or other information not otherwise available, . are
similarly embraced in the statute's constitutionally mandated
“sweeping proscription of any use, direct or indirect, of the
compelled testimony and any information derived therefrom.”
406 U.S, at 459-460, The breadth of this prohibition has been
correctly understood by the United States Court of Appeals for
the Eighth Circuit as potentially including assistance in focus
ing the investigation, deciding to initiate prosecution, refusing to
plea-bargain, interpreting evidence, planning cvoss-examination,
and otherwise generally planning trial strategy.” United States
v. McDaniel, supra, 482 F. 2d at 311,

The record before the Court of Appeals in this case estab-
lished that the United States Attorney had refused to agree to a
favorable disposition of the charges, following Mr. Seregos’
immunized testimony at the Scotto trial, on the stated ground

12

of the admissions made in his immunized testimony (H.Tr. 71-
74, 117-18, 137-39). It also showed that critical trial strategy
was planned by the prosecutor in consultation with the United
States Attorney and another Assistant United States Attorney
who had conducted the Scotto trial and the Grand Jury pro-
ceedings at which Mr. Seregos testified at length under grant of
use immunity (H. Tr. 32-33, 128-29, 131-34). Finally, the
record reflected that two of the subjects of cross examination
with the greatest impact on the District Judge at this bench
trial were Mr. Seregos’ payments to Hellenic Lines employees
and his admittedly false testimony before the Waterfront Com-
mission, both of which had been revealed in his immunized
testimony (R. 17; H.GX. 2; Tr. 720-21; A. 14-15). No untainted
source—indeed no source at all—was offered at the Kastigar
hearing for the questioning about the Hellenic Lines payments,
and the source advanced for the Waterfront Commission testi-
mony was the subject of inconsistent and incomplete testimony.
(Compose H. Tr. 22-23 with H. Tr. 95-96, 100-101).

The District Court passed over all of this in silence, and the
Court of Appeals, although recognizing the nature of Mr.
Seregos’ claims, could “see no reason to question” findings
which the District Court had never made (A. 10). Although in
this case the violence to the constitutional principles announced
in Kastigar is hidden by the silence of the lower courts, that
fact lessens not at all the conflict between the decisions below
and those in Kastigar, Portash and McDaniel.

Two further reasons suggest the appropriateness of the
Court’s exercise of its discretionary jurisdiction.

First, from the time that it was decided to indict Mr.
Seregos to enhance his credibility as an immunized Govern-
ment witness against Scotto, the United States Attorney, his
Assistants, and the F. B. I. were well aware of the Kastigar
problem thus created. Thus, in contrast to the usual case, the
failure to comply with Kastigar’s requirements lacks the sym-
pathetic circumstance of the recognition by the Government of
a duty to prosecute an immunized witness unforeseen at the
time that it was exposed to his immunized testimony. Here, the
Government proceeded from the outset with a full awareness of

13

its Kastigar obligations, or perhaps, judging from Cassidy’s
transparently inadequate instructions, despite them.

Second, the integrity of the constitutional imperatives of
Kastigar is crucial to the administration of justice. There is no
other instance in which the law provides a compulsory substi-
tute for a recognized constitutional privilege. The constitution-
ality of the immunity statute rests upon the Court’s conclusion
in Kastigar that it “is coextensive with the privilege and suffices
to supplant it.” 406 U.S. at 462. Its erosion, even in the studied
silence which pervades the opinions below, jeopardizes not only
the rights of citizens to whom it is applied but also its continued
availability as a legitimate tool in the fight against crime.

The Ex Post Facto Application Of The Travel Act To
Mr. Seregos Violated The Due Process Clause.

Having originally been indicted on mail fraud charges the
Government could not prove, Mr. Seregos was subsequently
charged and convicted in the Southern District of New York for
a substantive violation of the Travel Act and for conspiracy to
violate the Travel Act. The state law predicate for both counts
was commercial bribery in violation of the N, Y. Penal Law
§ § 180.03 and 180.08.

Both the indictment and the proof at trial, taken most
favorably to the Government, showed that Mr. Seregos’ involve-
ment had begun no earlier than August or September, 1976
(Tr. 51-52, 54) and concluded in December, 1976.

On July 16, 1976, prior to any act by Mr. Scregos in this
case, the United States Court of Appeals for the Second Circuit
had held in United States v. Brecht, supra, that the Travel Act
did not apply to acts of commercial bribery in violation of the
New York Penal Law. The decision of the Court of Appeals in
Brecht, of which the Government did not seek review in this
Court,* remained the law of the Second Circuit for over three

*The denial of certiorari noted in the citation to Brecht is of

Brecht's petition for review of his Hobbs Act conviction, which the Court
of Appeals had affirmed.

14

years until this Court held that the Travel Act did apply to
commercial bribery and in substance overruled Brecht. Perrin v.
United States, supra.

The District Court described the circumstances of the
superseding indictment as follows:

The superseding indictment filed on February 29, 1980
was merely designed to change the government’s legal
theory from one based upon the mail fraud statute to one
based upon the Travel Act, following a Supreme Court
decision in United States v. Perrin (sic), 48 U.S.L.W. 4009
(November 27, 1979), which changed the law in this
Circuit.

(A. 23). But whatever the Government’s purpose, the retro-
active application of the construction of the Travel Act in
Perrin to Mr. Seregos’ conduct three years earlier, at a time
when Brecht was the governing law, violated the Due Process
Clause of the Fifth Amendment under Boule v. City of Colum-
bia, supra, and Marks v. United States, supra, which teach that
“an unforeseeable judicial enlargement of a criminal statute,
applied retroactively, operates precisely like an ex post facto
law, such as Art. I, § 10, of the Constitution forbids.” Boule v.
City of Columbia, supra, 378 U.S. at 353, quoted with approval
in Marks v. United States, supra, 430 U.S. at 192. See also
Douglas v. Buder, 412 U.S. 430 (1973).

Bouie, in which the “foreseeability’’ test was formulated,
involved the “expansive construction,” Marks v. United States,
supra, 430 U.S. at 195, of a state criminal statute to conduct to
which it had not been previously applied, although no prece-
dent stood in the way. There the Court examined the language
of the statute and its application for the preceding century to
determine whether these gave sufficient warning, that is, made
it “foreseeable,” that the statute would be construed to forbid
the conduct of the petitioners in that case. Answering that
question in the negative, the Court held that the Due Process
Clause precluded application of the statute to petitioners’
conduct.

15

Marks posed a similar issue but with the added element,
present in this case but not in Bouie, that the newly expanded
construction of the statute overturned existing precedent to the
contrary. In Marks the Court found the Bouie test of foresee-
ability satisfied simply by its determination that the most
recent definition of obscenity in Miller v. California, 413 U.S.
15 (1973), criminalized conduct under 18 U.S.C. § 1465 which
had been beyond the scope of the statute under the Court’s
earlier formulation in Memoirs v. Massachusetts, 383 U.S. 413
(1966). Because of its conclusion that, under the new Miller
standard, “some conduct which would have gone unpunished
under Memoirs would result in conviction under Miller”, the
Court held in Marks that “the Due Process Clause precludes the
application to petitioners of the standards announced in Miller
v. California, to the extent that those standards may impose
criminal liability for conduct not punishable under Memoirs.”
430 U.S. at 194, 196.

Precisely this principle precludes the application to Mr.
Seregos of the construction of the Travel Act announced in
Perrin v. United States, supra, to the extent that it imposes
criminal liability for conduct not punishable under Brecht, for
there is no dispute that under Brecht the Travel Act did not
then apply to what Mr. Seregos has been convicted of doing.
While Brecht was not, as Memoirs was, a decision of this Court,
that fact is immaterial to the application of the constitutional
principle. United States v. Peltier, 422 U.S. 531, 541-42 (1975).
See also United States v. Goodheim, supra; United States v.
Potts, 528 F.2d 883, 886 (9th Cir. 1975) (en banc).

The rule of law for which we contend is precisely that
adopted by the Ninth Circuit in Goodheim. There the Court
of Appeals held that Bouie and Marks precluded the retroactive
enforcement in that Circuit of a decision of this Court which
overruled the restrictive construction of the predicate felony
provisions of the federal firearms laws followed in the Ninth
Circuit, and which adopted instead a more expansive reading of
those statutes favored by other Courts of Appeals. In this case,
the Second Circuit has taken the opposite position in an indis-
tinguishable context on grounds that do not survive even
cursory analysis.

16

First, relying with hindsight on Perrin, the Court of
Appeals found that “there is nothing vague or indefinite about
‘bribery’ as used in the Travel Act. (A. 7). Such a suggestion
is sufficiently refuted. by the fact that in the three cases in the
Court of Appeals prior to this Court’s decision in Perrin, United
States v. Pomponio, supra; United States v. Brecht, supra; and
United States v. Perrin, 580 F.2d 730 (Sth Cir. 1978), the
judges of the Courts of Appeals had divided five to four on
whether “bribery” in the Travel Act was meant to include com-
mercial bribery. The uncertainty was no greater in Goodheim.

Second, the Court of Appeals thought that Perrin could
not be viewed as “unforeseeable” within the meaning of Bouie
because of the Fourth Circuit’s conclusion in United States v.
Pomponio, supra, that the Travel Act applied to commercial
bribery. However, this view of retroactivity, diametrically
opposed to the Ninth Circuit’s in Goodheim, both ignored that
it was Brecht, and not Pomponio, which was the law of the
Second Circuit until Perrin and necessarily read Bouie too
narrowly for contexts where, as here and in Marks, what is
involved is the overruling of controlling precedent and not
merely an expansive interpretation of a statute by a court
writing on an arguably clean state. Moreover, the view that a
Due Process claim resting on Brecht was foreclosed by the con-
trary view of the Fourth Circuit in Pomponio overlooked that
Marks was written against the background of a splintered
division of the Court, see id. at 193-194 and Miller v. California,
supra, 413 U.S. at 20-22, and that judicial disagreement on the
scope of a statute does not supply the “clear and definite state-
ment of the conduct proscribed,” United States v. Persky, 520
F.2d 283, 288 (2d Cir. 1975), required by the Due Process
Clause. Indeed, the. uncertainty prior to Miller was as clearly a
harbinger of doctrinal change as the disagreement between the
Fourth and Second Circuits on the scope of the Travel Act, but
Marks shows that such premonitions are no basis for criminal-
izing conduct retrospectively. The “speculative anticipation of a
series of future judicial rulings is not the stuff out of which
adequate notice can be fashioned.” United States ex rel. Clark
v. Anderson, supra, 502 F.2d at 1083.

17

Finally, the Court of Appeals found that a retroactive
application of Perrin’s expansive construction of the Travel Act
was authorized by its conclusion that Mr. Seregos’ conduct
violated the New York commercial bribery statute. However,
the contrary is clearly shown by the principle underlying Bouie
that the required criminal law must have existed w.ien the
conduct in issue occurred. 378 U.S. at 354. See also United
States v. Goodheim. It is also demonstrated by this Court’s
refusal to borrow precedent from other jurisdictions or from
local tort law to sustain the retroactive application of the
expansive construction of the statute at issue in Bouie v. City of
Columbia, supra, 378 U.S. at 357-60, anc by persuasive author-
ity which has rejected the same position taken here by the
Court of Appeals in a context analytically more sympathetic
to it. United States ex rel. Clark v. Anderson, supra.

Moreover, Mr. Seregos was convicted, not of commercial
bribery, but rather of the quite different offense of “‘interstate
travel with the intent to ‘promote, manage, establish, carry on,
or facilitate’ certain kinds of illegal activity,” Rewis v. United
States, 401 U.S. 808, 811 (1971). The prohibitions of the
former can hardly be said to authorize retroactive application of
the latter, particularly in light of the substantially greater penal
and civil consequences of conviction under a federal felony
statute, rather than a state law misdemeanor provision. See
Bouie v. City of Columbia, supra, 378 U.S. at 353; Calder v.
Bull, supra, 3 Dall. at 390. Furthermore, since in imposing
penalties for violation of the Travel Act the United States acts
as a separate sovereign enforcing its own laws, Abbate v. United
States, 359 U.S. 187 (1959), its constitutional obligation to give
fair notice of what its law forbids can hardly be satisfied by
reference to the notice provided by a different sovereign for a
violation of such a different character. See Bouie v. City of
Columbia, supra, 378 U.S. at 353 n.4. Instead, since the con-
stitutional issue here arises because of ambiguity in the definition
in Section 1952(b) of state law predicate offenses under the
Travel Act, the existence of a state law against commercial
bribery, far from supplying fair notice of the breadth of the
Travel Act, is simply irrelevant. See Rewis v. United States,
supra, 401 U.S. at 811-12.

18
CONCLUSION

If permitted to stand, the decision of the Court of Appeals
will create uncertainty and perpetuate division in the Circuits
about two fundamental and recurring issues of Constitutional
principle. The decision of the Court of Appeals departs substan-
tially from settled authority of this Court and from the decision
of other Courts of Appeals which have adhered to it.

For the foregoing reasons, the petition for a writ of
certiorari should be granted.

Respectfully submitted,

JOHN D. GORDAN, III
LAURIE E. FOSTER

25 Broadway

New York, New York 10004
(212) 344-8480

Attorneys for Nicholas Seregos

APPENDIX

A. 1

UNITED STATES COURT OF APPEALS
For THE SECOND CIRCUIT

+

No. 732—September Term, 1980
(Argued February 24, 1981 Decided July 28, 1981)
Docket No. 80-1403

—

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

—v.—

NICHOLAS SEREGOS,
Defendant-Appellant.

Before:

FEINBERG, Chief Judge,
Oakes, Circuit Judge, and
NEAHER, District Judge.*

—

Appeal from a judgment of conviction entered after a
bench trial in the United States District Court for the

- Honorable Edward R. Neaher, Judge of the United States District
Court for the Eastern District of New York, sitting by designation.

A. 2

Southern District of New Vork, Lawrence W. Pierce,
Judge, convicting appellant of conspiracy to violate the
Travel Act, 18 U.S.C. §§ 1952 and 371, and of a substan-
tive violation of that Act.

Affirmed.

*

Jom D. Gorpban, III, New York, N.Y.
(Laurie E. Foster, of Counsel), for De-
Sendant-Appellant.

RICHARD A. MESCON, Assistant United States
Attorney, New York, N.Y. (John S. Mar-
tin, Jr., United States Attorney for the
Southern District of New York, New
York, N.Y., of Counsel; Mary Jo White,
Assistant United States Attorney, on the
Brief), for Appellee.

*

NEAHER, District Judge:

This appeal presents another facet of the unlawful
activiy “that has plagued waterfront businesses in New
York and New Jersey.” See United States v. Clemente, 642
F.2d 1069, 1071 (2d Cir. 1981). The actors here were all
businessmen on the waterfront who might have been
expected to shun the illicit conduct which led to appel-
lant’s indictment and conviction.

Appellant (hereinafter “Seregos”) was convicted after a
bench trial in the Southern District of New York before
Lawrence W. Pierce, J., for traveling from New Jersey to
New York to facilitate the payment of a commercial bribe
and conspiracy to commit that offense, 18 U.S.C.
56 1952, 2 and 371, in connection with a business trans-

A. 3

action between a shipping company and a stevedoring
concern. Since appellant challenges th. sufficiency of the
evidence to support his conviction, a more detailed recital
of the essential facts established at trial is required. The
evidence must, of course, be viewed in the light most
favorable to the government. Glasser v. United States,
315 U.S. 60, 80 (1942).
In 1976, and for some years before, Seregos was
president of Jackson Engineering Co., a ship repair
business founded by his father in Hoboken, New Jersey,
in which State Seregos lives and works. Seregos’ difficul-
ties began when he was induced to assist the carrying out
of a corrupt kickback arrangement between two other
businessmen, who later testified against him at trial after
pleading guilty to mail fraud charges. One of these
businessmen was Edward Pierson, then an executive of
Moore-McCormack Lines, whose terminal and office was
in Brooklyn; the other was Richard Weeks, president of
Weeks Stevedoring Co., headquartered in New Jersey.

In 1973 Pierson and Weeks had negotiated the rental of
a Weeks Stevedoring Co. floating crane for use by Moore-
McCormack during a two-year period with three six-
month renewal options. The rental to be paid Weeks was
$15,500 monthly, a figure that included a $1500 per
month kickback to Pierson to be paid in cash. Weeks had
difficulty raising the cash to make the kickback payments
and by 1976 had fallen behind by some $18,000. Pierson
then sought the assistance of William Montella,' who
suggested that Seregos might be able to provide a false
invoice that Pierson proposed as a way to raise cash for
Weeks.

' Montella, an employee of Quin Marine Division of McGrath Indus-
tries, was a key government witness in United States v. Scotto, 641
F.2d 47 (2d Cir. 1980), cert. denied, 49 U.S. L. W. 3954 (U.S. June 22,
1981), and United States v. Clemente, supra.

A. 4

Seregos, testifying in his own behalf, denied knowledge
of the illicht arrangement between Weeks and Pierson,
maintaining that his only contacts were with Montella,
not Pierson, He admitted, however, that after a series of
telephone conversations with Montella and an inspection
of the Weeks crane at Moore-McCormack’s Brooklyn
termir ul, he submitted a Jackson Engineering Co, invoice
to Weeks Stevedoring for repairs to the crane totaling
$25,795, which in fact were never performed, The books
of Jackson Engineering and other trial exhibits reflected
that the invoice was paid by Weeks by check dated
December 2, 1976,

Seregos also admitted that on December 3 he prepared
two Jackson Engineering checks, each in the amount of
$9,027,50, one drawn to James Cannino and the other to
Alvin Raphael, He testified he gave both to Cannino on
December 7 and received a package containing $18,000 in
cash, which he then delivered to Montella in Brooklyn.
Seregos further admitted meeting Pierson and Montella
that night at Ponte’s restaurant in Manhattan, but testi-
fied he stayed only five minutes and there was no discus-
sion of money

Pierson, testifying for the government, contradicted
Seregos’ disclaimer of knowledge regarding the kickback
arrangement, According to Pierson, Seregos came to his
office at the Moore-MeCormack terminal in Brooklyn, in
August or September 1976, where Pierson told him that
he “had a private arrangement with Mr, Weeks, and |
needed an invoice because he had to pay me some money
„ and could he, Mr, Seregos, write up an invoice on

A. 5

was Seregos who arranged to meet him at Ponte’s restau-
rant and delivered to him in the men’s room the envelope
containing the $18,000 in cash.

The conflict in the testimony bearing upon Seregos’
knowledge and intent obviously presented an issue of
credibility for the trier of the fact. United States v. Minor,
398 F.2d 511, 512 (2d Cir. 1968), , 396 U.S. 87
(1969). In resolving that issue against Seregos, Judge
Pierce properly considered appellant’s demeanor, his
qualificd answers and his admitted false testimony under
oath before the Waterfront Commission, as well as the
inferences that could reasonably be drawn from Seregos’
readiness to participate in plainly dishonest conduct.
Factual findings by the trial judge as to the requisite
knowledge and intent to engage in unlawful conduct may
not be set aside unless on review of the record they are
found to be clearly erroneous. United States v. Rischard,
471 F.2d 105, 107 (8th Cir. 1973); see United States v.
Abel, 258 F.2d 485, 494 (2d Cir. 1958), aff'd, 362 U.S.
217 (1960). See also United States v. Sheard, 473 F.2d
139, 146 (D.C. Cir. 1972), cert. denied, 412 U.S. 943
(1973). On this record such a finding cannot be made,
and the critical issues of credibility having been resolved
against appellant, the evidence was clearly sufficient to
establish all elements of the offenses charged.

We now turn to the three principal arguments advanced
by appellant, none of which we conclude warrants rever-
sal of his conviction.

Lack of Fair Notice

Appellant contends that he did not have fair notice that
his conduct in the latter part of 1976 was in violation of
the Travel Act. That contention is premised on this
Court’s decision on July 16, 1976, in United States v.

A. 6

Brecht, 540 F.2d 45 (2d Cir. 1976), cert. denied, 429 U.S.
1123 (1977), holding that the Travel Act did not apply to
acts of commercial bribery in violation of the New York
Penal Law. The Brecht court, however, acknowledged
that its ruling was in conflict with the prior decision of
the Fourth Circuit in United States v. Pomponio, 311
F. 2d 953 (4th Cir.), cert. denied, 423 U.S, 874 (1975), id.
at 48, which had held that the Travel Act applied not only
to bribery of public officials but extended to interstate
travel to facilitate commercial bribery as defined in N.Y.
Penal Law § 180.00, the predecessor of the statutes in-
volved in this case, 511 F.2d at 955-56,

This Court's decision in Brecht was subsequently over-
ruled by the Supreme Court in Perrin v. United States,
444 U.S. 37, decided Novem er 27, 1979, which, after
noting the conflict among circuits, upheld the views of the
Fourth and Fifth Circuits that bribery of private employ-
ees prohibited by State criminal statutes could also violate
the Travel Act. See United States v. Pomponio, supra,
and Perrin v. United States, 580 F. 2d 730 (Sth Cir. 1978).

Following the Supreme Court's ruling in Perrin, the
government filed a superseding indictment on February
29, 1980, charging appellant with the Travel Act offenses
of which he was convicted.’ Relying on Boule v. City of
Columbia, 378 U.S. 347 (1964), and Marks v. United
States, 430 U.S. 188 (1977), his basic contention is that
the Perrin ruling was “an unforeseeable judicial enlarge-
ment of a criminal statute,” which, when “applied re-
troactively, operates precisely like an es post facto law”
forbidden by the Constitution, quoting from Boule, su-
pra, 378 U.S. at 353. Our reading of those cases satisfies

2 was originally indicted July 24, 1979 on five counts of mail
fraud on the same transactions as the Travel Act charges.

A.7

us that they provide no support for a claim of lack of fair
warning here. Granted that the deprivation of such a right
can result from “vague statutory language” or “an un-
foreseeable and retroactive judicial expansion of narrow
and precise statutory language,” Bowie, supra, at 352,
neither element is present in this case.

As the Supreme Court pointed out in Perrin, at the
time the Travel Act was enacted in 1961, both “federal
and state statutes had extended the term bribery well
beyond its common law meaning.” 444 U.S. at 43. And
New York as early as 1905 was one of the States which
had outlawed commercial bribery generally. Id. at 44, n.9.
Thus there is nothing vague or indefinite about “bribery”
as used in the Travel Act; nor can Perrin be viewed as an
unforeseeable judicial expansion of the scope of the Act
in light of Pomponio, supra, which dealt specifically with
the New York commercial bribery statute. And in view of
Seregos’ admittedly illicit activities, which we conclude
below violated that statute, the argument that he was
denied fair notice must be rejected.’

Absence of “Bribery” Under State Law

Appellant argues next that the underlying transaction
between Weeks and Pierson that he facilitated did not
constitute the crime of commercial bribery under State
law. Essentially he contends that the kickback payment
arrangement was actually either a fraud upon or embez-
zlement from Moore-McCormack and lacked the element

A. 8

of “intent to influence” necessary for commercial bribery
under the New York statute.‘

We disagree. Accepting as we must the trial court’s
findings that the $1500 monthly kickback paid by Weeks
to Pierson personally was an integral part of the negotia-
tions resulting in the crane rental agreement, without the
knowledge or consent of Pierson’s employer, all the
requisite elements of commercial bribing and commercial
bribe receiving were present. Section 180.03 is drawn in
terms of conferſring] any benefit” upon an “employee,
agent or fiduciary. . . with intent to influence his con-
duct in relation to his employer s.. . affairs... .”
Weeks’ conduct precisely satisfied those terms. By agree-
ing to Pierson’s proposal, Weeks not only assured the
contract for his company but also provided the means
whereby Pierson could receive the benefit of the kickback
payments unknown to his employer. And Weeks’ acquies-

4 N.Y. Penal Law criminalizes both the giving and receiving of a
commercial bribe in separate provisions as follows:

Ҥ 180.03 Commercial briting in the first degree

A person is guilty of commercial bribing in the first degree when
he confers, or offers or agrees to confer, any benefit upon any
employee, agent or fiduciary without the consent of the latter's
employer or principal, with intent to influence his conduct in
relation to his employer's or principal's affairs, and when the value
of the benefit conferred or offered or agreed to be conferred
exceeds one thousand dollars.”

Ҥ 180.08 Commercial bribe receiving in the first degree

An employee, agent or fiduciary is guilty of commercial bribe
receiving in the first degree when, without the consent of his
— L NN

understanding

A.9

cence in the scheme clearly influenced Pierson to commit
Moore-McCormack to rent the crane at the higher
monthly rate.’ That the source of the funds was Pierson’s
employer does not mean that Weeks and Pierson were not
engaging in commercial bribery. See Palmer v. Doull
Miller Co., 233 F. 309, 312 (S. D. N. V 1916) (construing
predecessor bribery statute, N.Y. Penal Law § 439, as
condemning scheme to charge corporate customer in-
flated factor’s commissions so as to provide undisclosed
payments by factor to customer’s president). Concluding
that the arrangement for the kickback payments was
commercial bribery under New York law, we find it
unnecessary to consider whether such conduct also vio-
lated other criminal laws, as appellant suggests.

Impermissible Use of Immunized Testimony

Appellant’s final argument accuses the government of
having cross-examined him at trial regarding matters as to
which he had previously testified under a grant of immu-
nity before the grand jury which indicted Anthony Scotto
and as a government witness at Scotto’s trial.* In addi-
tion, Seregos claims that the government’s decisions not
to renew an offer of a misdemeanor plea he had pre-
viously rejected, and not to call William Montella as a
rebuttal witness at his trial, were also tainted by knowl-
edge of his immunized testimony imputable to the prose-
cutor.

In view of these allegations, Judge Pierce properly
conducted a Kastigar’ hearing to determine whether the

3 Weeks testified that absent the kickback payments to Piers wn, the
rental charge to Moore-McCormack would have been “about $14,
000.” Tr. 320.

6 See United States v. Scotto, supra, n. l.

See Kastigar v. United States, 406 U.S. 441, 460 (1972).

A. 10

government could meet its burden of showing that the
evidence used against Seregos was free from the taint of
compelled testimony. After two days of testimony from
the Assistant United States Attorney responsible for Sere-
gos’ prosecution, and the F. B. I. case agent who con-
ducted the investigation, both of whom he found “highly
credible,” Judge Pierce concluded in a detailed opinion
that the evidence against Seregos was independently de-
rived from subpoenaed records and documents and the
debriefing of Pierson and Weeks and was not tainted by
Seregos’ testimony in the Scotto case. He also found that
the prosecutor and agent had sufficiently insulated them-
selves from the Scotto proceedings and those responsible
for that prosecution. From our independent review of
that record we see no reason to question Judge Pierce’s
findings. See United States v. King, $60 F.2d 122, 131 (2d
Cir.), cert. denied, 434 U.S. 925 (1977). Accordingly, we
find this claim to be without merit.

We have considered appellant’s other contentions and
find them also to be without merit.

Affirmed.

A. 11

UNITED STATES OF AMERICA,
Plaintiff-A ppellee,

V.

NICHOLAS SEREGOS,
Defendant-A ppellant.

79 Cr. 564

United States District Court,
Southern District of New York.

Filed: February 26, 1980
ORDER

Defendant Nicholas Seregos has made a number of pre-
trial motions; the Court rules on these motions as follows:

(1) Defendant's motion to dismiss the indictment with
prejudice upon the grounds that the Government's evidence is
in part derived from the defendant’s testimony given under
orders of immunity is hereby denied. The Government, through
an uncontested affidavit, has demonstrated that the evidence
leading to an indictment in this matter was presented to the
Grand Jury prior to defendant’s immunized testimony. The
Court has conducted an in camera inspection of the minutes of
defendant’s immunized testimony and finds the Government’s
affidavit to be substantiated by the minutes. Thus, since no
immunized testimony existed at the time of the filing of the
instant indictment, it is not necessary for the Court to conduct
a hearing on this issue under Kastigar v. United States, 406 U.S.
441 (1972).

(2) A hearing is mandated with respect to the defendant's
claim that the Government's trial evidence may be tainted by
his immunized testimony. See Kastigar, supra. This hearing

A. 12

should be conducted after the jury’s verdict, should the defen-
dant be found guilty. A number of factors lead the Court to
make this discretionary decision [see Nardone v. United States,
308 U.S. 338, 342 (1939)]; the primary factors are: (a) that it
is obvious that even if there were a pre-trial taint hearing, a
post-trial hearing would still be required based upon thus far
unknown testimony which may be elicited on cross-examina-
tion and possible rebuttal evidence; and (b) to avoid giving the
defendant an unfair preview of the Government’s evidence.

(3) Defendant’s motion for an order pursuant to Rule
16 of the Fed. Rules of Civ. Proc. requiring the Government
to produce a copy of the minutes of his testimony before the
Grand Jury is denied. As stated above, the Court has made an
in camera inspection of these minutes and finds that the testi-
mony given is not related to the offenses charged in the instant
indictment. Defendant is given leave to renew this motion at the
time of the post-trial taint hearing, if one is required in this
case.

(4) Defendant is not entitled to the requested order for
production of all grand jury testimony relating to the charges
in the instant indictment, as he has not made the requisite
showing of particularized need“. United States v. Dennis,
384 U.S. 855, 870-71 (1966).

(5) Defendant’s motion for an order directing the
Government to compiy with the mandates of Brady v. Mary-
land, 373 U.S. 83 (1963) and its progeny is hereby granted.

(6) Defendant’s motion for an order adjourning the date
for filing motions is denied, but defendant is granted leave to
renew this motion, with permission of the Court, upon a

showing of good cause.

(7) Defendant’s motion for an order dismissing Counts
4 and 5 of this indictment (79 Cr. 564) is hereby granted pur-
suant to Rules 12 and 18 of the Fed. Rules of Crim. Proc., on

A. 13

the grounds that this Court is without jurisdiction over the
offenses charged, since venue does not lie in the Southern
District of New York.

SO ORDERED.

Dated: New York, New York
February 22, 1980
/s/

LAWRENCE W. PIERCE
U.S.D.J.

A. 14

UNITED STATES OF AMERICA,
Plainiiff-A ppellee,

V.

NICHOLAS SEREGOS,
Defendant-A ppellant.

879 Cr. 564

United States District Court,
Southern District of New York.

(Pages 727-732 of the Trial Transcript,
April 2, 1980)

Filed: October 31, 1980

VERDICT OF THE COURT

„„

(T. 727) THE COURT: All right.

Mr. Dearie has made a Rule 29 motion. The motion is
denied. The defendant is found guilty of counts one andtwo. .

The first issue to be addressed is that of credibility. I have
sat here and I have observed the inflections of the voices of the
witnesses, their conduct and their demeanor while testifying. I
have reviewed the testimony searching for consistencies and
inconsistencies, and while Mr. Dearie has noted Mr. Pierson’s
inability to recall certain events with great particularity, | noted
as well the inability of the defendant to recall over and over
again without the use of qualifying words so many of the
matters about which Mr. Seregos testified, seemingly constantly
hedging his answers, answers relating to where certain events
occurred, who was present, in what sequence did events occur
and what was said.

In a case involving very closely as here the issue of who to
believe, the acknowledgment by the defendant Seregos that on

A. 15

a prior occasion, while testifying under oath he lied, assumes
greater importance in resolving whether to find that witness’s
testimony credible here.

Applying one’s common sense to the evidence, (T. 728) at
least attempting to do so, and undertaking to assess how illegal
deals are worked out, the discussion of the details of criminal
acts in specific terms over the telephone on the facts presented
in this particular case is an unreasonable and unwarranted con-
clusion here in my view.

Accepting as credible the testimony of Mr. Pierson as to
what he told Mr. Seregos about the lease by Moore-McCormack
of a crane from Weeks Stevedoring Company, and the reference
to an arrangement with Richard Weeks, and the need for a
known phony invoice, I find, and the reasonable inferences
to be drawn from the evidence sufficient to establish that Mr.
Seregos knowingly and willfully traveled interstate to facilitate
and promote a violation of commercial bribery and commercial
bribery receiving statutes as set forth as prohibited in sections
180.03 and 180.08 of the New York State Penal Law.

I additionally make the following findings of fact: In May
of 1973, Moore-McCormack Lines, Inc. and Weeks Stevedoring
Company, Inc. entered into an agreement whereby Moore-
McCormack rented a floating crane from Weeks for $15,500
per month. The rental agreement was for a period of two years
to commence 90 days after the crane was delivered to Moore-
McCormack.

(T. 729) Moore-McCormack had the option to extend the
agreement for three six month periods.

The individuals who negotiated this agreement were
Edward Pierson, assistant vice-president of Moore-McCormack,
and Richard Weeks, president of Weeks Stevedoring.

In 1973 Pierson and Richard Weeks also agreed that Weeks
Stevedoring would pay a kickback to Pierson in the amount of
$1,500 per month for the duration of the crane rental agree-
ment.

The crane rental agreement went into effect in 1973.
Moore-McCormack, acting through Pierson, exercised its six
month options effective November, 1975, May of 1976 and

A. 16

November of 1976. Pierson received payments from Richard
Weeks during this three and a half year period with payments in
the approximate amount of $1,500 per month.

Pierson accepted these kickbacks without the knowledge
or consent of Moore-McCormack. During 1976, Pierson had a
conversation with William Montella, who was employed by
Quin Marine Services, and who was found by this court to be a
co-conspirator with reference to the conspiracy charged in
count one.

Pierson told Montella that Weeks Stevedoring (T. 730) was
having difficulty raising cash to pay Pierson and needed a third
party means of collecting from Weeks, such as a false invoice.
Montella told Pierson that Nick Seregos of Jackson Engineering
might be able to prepare a false invoice to Weeks Stevedoring
for repair of the crane and pay Pierson after Jackson Engineer-
ing received payment on the invoice.

During the summer of 1976, Seregos met with Pierson at
Pierson’s office in Brooklyn. During this meeting, Pierson told
Seregos that Moore-McCormack was renting a crane from Weeks
Stevedoring, and that Pierson was receiving money from Weeks
Stevedoring, at least from Richard Weeks of Weeks Stevedoring.
Pierson asked Seregos if Jackson Engineering could submit a
false invoice to Weeks Stevedoring and after the invoice was
paid, give Pierson the money.

Seregos said he would do this but would have to keep
some of the money received from Weeks Stevedoring.

Subsequently, Seregos gave Pierson a detailed invoice for
repair work on the Weeks crane rented by Moore-McCormack.
Pierson gave the invoice to Richard Weeks who told Pierson it
needed correction.

Pierson returned the invoice to Seregos.

On or about October 18, 1976, Seregos gave the (T. 731)
corrected invoice to Pierson who in turn gave it to Richard
Weeks. That would be Government’s Exhibit I in evidence.

Jackson Engineering never did any of the work set forth in
1 in evidence. In early December, 1976, Weeks Stevedoring
issued its check, check bearing No. 8363, Government’s Exhibit
2 in evidence in the amount of $25,795 to Jackson Engineering
in payment of the false invoice.

A. 17

(T. 732) In December of 1976 Seregos called Pierson and
told Pierson that he wanted to meet with him.

Seregos and Pierson arranged to meet at Ponte’s Restau-
rant in Manhattan.

In December of 1976 Seregos gave approximately $18,000
in cash to Pierson in the men’s room at Ponte’s Restaurant in
Manhattan, which money he knew to be the proceeds of a
commercial bribe.

During 1976 Seregos lived and worked in New Jersey, and
traveled to Brooklyn and Manhattan for his meeting with
Pierson, with the intent to further the payment of cash kick-
backs to Pierson.

Now there is an outstanding motion - -

Well, to conclude, then, the Court finds beyond a reason-
able doubt the defendant to be guilty of Counts | and 2.

Sentence will be deferred. No date is set at this time while
we await the Government’s response to Mr. Dearie’s motion.

How long do you wish, Mr. Mescon?

A 16

UNITED STATES OF AMERICA,
Plaintiff-A ppellee,

v,

NICHOLAS SEREGOS,
Defendant-Appellant.

879 Cr, 564

United States District Court,
Southern District of New York,

RAYMOND A, LEVITAS, 180.
Assistant United States Attorneys
Attorneys for United States of America

RAYMOND J, DEARIE, £80,
LESTER M. KIRSHENBAUM, £80.
SURREY & MORSE

465 Maison Avenue

New York, New York 10022

JOHN D. GORDAN, Ill, E80.
LORD DAY & LORD

25 broadway

New York, New York 10004
Attorneys for Defendant

LAWRENCE W. PIERCE, DJ,

A. 19
OPINION

On April 2, 1980, following a five day non-4ury trial,

found guilty of to violate the Federal Travel Act
under 18 U.S.C, § 371 and of violating the federal Travel Act,
18 USL. § 1952. On January 10, 1980, the then attorney
for Seregos, Raymond Dearie, Esq.,' filed a pre-trial motion
requesting, among other things, an Order of this Court pursuant
to Rule 12, Fed. R. Cr. P., and under the inherent and supervisory
powers of this Court, dismissing the indictment with prejudice
upon the grounds that the government's evidence was in part
derived from immunized testimony of Seregos. In the alterna-
tive, defendant sought an Order directing that a hearing be held
and that the government be required to demonstrate to the
satisfaction of this Court that the evidence presented to the
grand jury and at the trial was derived from a source wholly
independent of the immunized testimony of Seregos which was
given in connection with the indictment and trial of Anthony
Scotto (a “Kastigar hearing).

In an Order dated February 22, 1980, the Court denied
the request for pre-trial dismissal of the indictment, but re-
served decision on the Kastigar motion directing that a post-
trial hearing be conducted, if necessary, under Kastigar „.
United States, 406 US. 441 (1972), to determine if the

The defendant was found guilty on Apr 2, 1980, and a

Kastigar hearing was held on July | and 2, 1980. It is initially
noted that under Kastigar „ United States, supra, the burden is

‘Raymond Dearie, Esq., was relieved as counsel in this case via an
Order dated July 10, 1980 upon the Court having been informed that he
had accepted s governmental appointment.

A. 20

has met its burden and therefore denies defendant's motion to
dismiss the indictment under Kastigar v, United States, supra.

In this Opinion the Court also denies defendant's post-
trial motion seeking an Order dismissing the indictment under
the Court's supervisory powers because the government failed
to comply with two Department of Justice policies which
appear in The Department of Justice’s United States Attorney's
Manual, They are: (1) Title 1-11.400 which allegedly requires
prior Justice Department approval of prosecutions of immu-
nized witnesses, and (2) Title 9.2. 100, et seq., which allegedly
requires prior approval of Travel Act prosecutions,

DISCUSSION
1. The Kastigar Hearing

The evidence presented at the hearing establishes that the
government did not rely in any way upon any of Seregos’
immunized testimony in presenting evidence to the grand jury
or at trial, After observing their demeanor on the stand, the
Court finds the two witnesses testifying at the Kastigar hearing,
Assistant United States Attorney (“A. U.S. A.“) Richard Mescon
and Federal Bureau of Investigation (“FBI”) Agent Robert
Cassidy, to be highly credible witnesses. Through their testi-
mony the following was established concerning the prosecution
of Seregos in the instant case,

In September, 1978, A. U.S. A. Mescon was assigned to the
Organized Crime Unit of the United States Attorney's Office,
He was assigned to the prosecution of cases arising out of the
“Unirac” investigation relating to businessmen on the water-
front. In particular, he was assigned to cases involving alleged
payments made to employees of shipping companies (e. g., to
port captains) in connection with obtaining business of those
companies (Tr. at p. 32).? FBI Agent Cassidy was assigned as a
case agent in the Seregos matter in 1979,

The case against Seregos developed after persons in the
United States Attorney's Office, including A. U.S. A. Mescon,
were informed by one Sonny Montella in January, 1979, that

r.“ refers to the transcript of the Kastigar hearing conducted
om July I and 2, 1980,

A. 21

he had made a number of payments to employees of shipping
companies and to others in order to obtain the business of those
companies (Tr. at p. 32). One of the persons he stated he made
a payment to was Edward Pierson. Edward Pierson was
eventually debriefed by the United States Attorney's Office and
he mentioned the name of Seregos as a person that a case could
probably be developed against if the port captains cooperated
(Tr. at p. 34). Mescon’s real evidence against Seregos for
purposes of the indictment against him grew out of the testi-
mony of Richard Weeks, a person whose name was supplied
by Pierson (Tr. at p. 9).

In early 1979 Mescon was aware that Seregos was engaged
in discussions with the United States Attorney's Office concern-
ing a possible guilty plea to certain charges in return for his
testimony as a cooperating witness at the Scotto trial. See Tr.
at p. 9. During the spring of 1979, A. U.S. A. Mescon was
informed by United States Attorney Robert Fiske, Jr., that the
negotiations between the government and Seregos concerning
Seregos’ cooperation at the Scotto trial had broken down, and
that, therefore, Mescon should proceed quickly in obtaining
an indictment against Seregos. A.U.S.A. Mescon perceived the
immunity problems likely to occur, and took steps to insulate
himself from the grand jury proceedings and trial in United
States v. Anthony Scotto, 79 Cr. 32 (S.D.N.Y.) (Stewart, J.).

Also, in light of his awareness of the potential immunity
problems, A. U.S. A. Mescon presented all documents and
testimony to the grand jury returning the original indictment
against Seregos prior to Seregos’ grand jury and trial testimony
in the Scotto case. The documents used in obtaining the Seregos
indictment came from the following sources: (1) a grand jury
subpoena served on Seregos cooperation (sic), Jackson Engincer-
ing Co., in January, 1979;(2) the reports made and filed by Agent
Cassidy in the investigation conducted by the FBI (the 30278);
(3) documents from Richard Weeks, and (4) other documents
which had been supplied by a potential trial witness, James
Canino. In its presentation of evidence to the grand jury as well
as at the trial of Seregos, the government also relied upon the

A. 22

testimony of Richard Weeks and Edward Pierson, and a trans-
cript of a consensually monitored tape recording of a conversa-
tion between Seregos and Montella which was made prior to the
spring of 1979 (see Tr. at p. 51 and government’s Kastigar
hearing exhibits 1 and 3 — the transcript of the Seregos grand
jury proceedings).

The documents received from Weeks were marked before
the grand jury on April 5, 1979; the materials with respect to
Mr. Canino were marked on July 19 and 24, 1979; and the
documents received from Mr. Dearie on behalf of Jackson
Engineering were marked on July 24, 1980 (Tr. at p. 11).

The indictment against Seregos was voted by the grand
jury some time around noon on July 24, 1979 and was filed
immediately thereafter (Tr. at pp. 11 and 59). Seregos appeared
before the grand jury in the Scotto matter on the afternoon of
July 24, 1979, after it had been verified by the AUSA in the
Scotto matter that the indictment against Seregos has been
filed (see Tr. at p. 60).

A. U.S. A. Mescon did not discuss Seregos’ role in the
Scotto case with any member of the United States Attorney’s
Office or any other person except Agent Cassidy who was the
FBI agent assigned to prepare the Seregos case for trial.
A.U.S.A. Mescon did not attend any portions of the Scotto trial
and did not read any newspaper reports of the Scotto trial. He
continued this insulation policy up to the conclusion of the
Seregos trial (Tr. at p. 19), and up until the conviction of
Seregos herein, A.U.S.A. Mescon had no knowledge of the sub-
stance of Seregos’ grand jury or trial testimony in the Scotto
case (Tr. at p. 20), although he may have been aware that it was
of an important nature.

Similarly, Agent Cassidy insulated himself from conversa-
tions and information concerning post-Seregos-indictment testi-
mony of Seregos. He informed his FBI supervisor, the adminis-
trative case agent, and Special Agent Louis Freh and others,
that they were not to make him privy to any post-indictment
information concerning Seregos (Tr. at p. 89). He did not have
any conversations with anyone which revealed the substance

A. 23

of Seregos’ testimony in the Scotto case. He did read a news-
paper summary which indicated that Seregos had appeared as a
witness in the Scotto trial but the article did not give the sub-
stance of the testimony (Tr. at p. 90).

In the continuing effort to insulate themselves from
Seregos’ immunized testimony, Agent Cassidy, in carrying out
A. U.S. A. Mescon’s request for a copy of Seregos’ earlier Water-
front Commission testimony, obtained the Scotto trial copy
directly from the Waterfront Commission and not from the trial
judge in the Scotto case who he was informed had a copy under
seal (Tr. at p. 101). Similarly, when Seregos broached the topic
of payments to Scotto and Anastasia, A.U.S.A. Mescon relied
solely upon pre-indictment information which had been ob-
tained by Agent Cassidy in a debriefing of Sonny Montella on
June 13, 1978 (Tr. at p. 91).

The superseding indictment filed on February 29, 1980
was merely designed to change the government’s legal theory
from one based upon the mail fraud statute to one based upon
the Travel Act, following a Supreme Court decision in United
States v. Perrin, 48 U.S.L.W. 4009 (November 27, 1979), which
changed the law in this Circuit. In obtaining the superseding
indictment, the same evidence was resubmitted to the grand
jury (Tr. at p. 17; see also, government’s Kastigar hearing Ex. 3
— the transcript of the grand jury minutes for the superseding
indictment).

Accordingly, for the reasons stated above, the Court finds
that the government has sustained its burden of proving that the
evidence presented to the grand jury and to the Court at the
time of trial was derived from sources wholly independent of
the defendant’s immunized testimony. The government pre-
sented its evidence to the grand jury prior to Seregos’ testimony
and A.U.S.A. Mescon and Agent Cassidy went out of their way
to successfully avoid learning the “substance” of Seregos’
immunized testimony. The government has demonstrated that
up until the conclusion of the Seregos trial, the prosecutor and
the assigned FBI case agent did not know the “substance” of
Seregos’ testimony before the Scotto grand and petit juries.
Therefore, the motion to dismiss the indictment under United
States v. Kastigar, supra, is denied.

A. 24

2. The alleged violations of Department of Justice policies.

Defendant alleges that the government has not complied
with two Department of Justice policies in obtaining the
present indictment against Seregos, and therefore requests that
the Court use its supervisory powers to dismiss the indictment.
The policy statements at issue here were provided by the
government in its memorandum in opposition to defendant’s
motion. Contrary to defendant’s assertions, these policy state-
ments were not violated.

The first policy statement allegedly violated requires prior
Justice Department approval of prosecution of immunized
witnesses. The government did not violate this policy provision,
first, because in contrast to the policy requirement, the instant
prosecution was initiated before, not after, the immunized
testimony was given; and, secondly, because the crimes charged
against Seregos herein are not related to his Scotto testimony,
again in contrast to the policy provision restriction.

Still further, the government did not violate the Justice
Department policy provision in Title 9-2.100, since, contrary to
defendant’s assertions, the Travel Act apparently is not one of
the statutes included in this policy provision.

Furthermore, even if there was a violation of Department
of Justice policy, neither of the alleged violations constitutes
grounds for dismissal of the indictment. See United States v.
Caceres, 440 U.S. 741 (1979); United States v. Shulman, 466
F.Supp. 293, 297-301 (S.D.N.Y. 1979). The Department of
Justice policies stated in its manual do not create rights, see The
Department of Justice United States Attorney’s Manual, Title
1-100, “Purpose of the Manual”; nor is there case or statutory
law adopting or ratifying the policies at issue here, see
Thompso. v. United States, 100 S.Ct. 512 (1980) (the “Petite”
policy allegedly violated was not only Department of Justice

policy, but was policy promulgated in the wake of two Supreme
Court decisions).

See Petite v. United States, 361 U.S. 529 (1960) and Abbate v.
United States, 359 U.S. 197 (1959).

A. 25
CONCLUSION

Defendant’s motions to dismiss the indictment based upon
an alleged violation of his Fifth Amendment rights under
United States v. Kastigar, supra, and because of alleged viola-
tions of departmental policies are hereby denied. The judgment
of conviction stands, Defendant shall appear for sentencing on
September 10, 1980, at 4:30 in the afternoon.

SO ORDERED.

Dated: New York, New York
August |, 1980

/s/
LAWRENCE W. PIERCE
U.S.D.J.

A. 26

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

V.

NICHOLAS SEREGOS,
Defendant-Appellant.

879 Cr. 564

United States District Court,
Southern District of New Vork.

Filed: August 5, 1980
ORDER

On July 25, 1980, defendant moved for an Order granting
him permission to present, through his new counsel, oral
argument in connection with his motion filed under Kastigar
v. United States, 406 U.S. 441 (1972). In addition, he seeks
to supplement the record of the evidentiary hearing held in
connection with his Kastigar motion.

The Kastigar motion was initially raised in defendant’s
pre-trial motions and arguments in support of the motion were
made in the accompanying memorandum of law. The Kastigar
motion was renewed post-trial, and once again a memorandum
of law accompanied the motion. During the Kastigar hearing
the then attorney for defendant, Raymond Dearie, Esq., was
given an opportunity to orally address the Court in support of
his motion and a schedule was established for post-hearing sub-
missions. On July 10, 1980, the Court by written order with-
drew its request for post-trial submissions; this was done with
the belief that the Court already received sufficient submissions,
presentations of evidence and arguments to rule on the motion.
In its recent motion, defendant has not presented any convinc-
ing reason why the Court should act to the contrary. Therefore,
the motion for oral argument is hereby denied.

A. 27

Deiendant also seeks to supplement the record of the
Kastigar hearing by offering the sealed transcript of his Scotto
trial testimony (while at the same time requesting that the
Court not read it for fear it will prejudice the Court in imposing
sentence) and copies of New York Times articles concerning
his Scotto testimony. The Court finds the connection between
these items and the government’s evidence during the Kastigar
hearing to be at best speculative, thus there is no nexus offered
for the receipt of these items as an aid to the Court in its
determination of the Kastigar motion. Therefore, the Court
also denies defendant’s request to supplement the record.

SO ORDERED.

Dated: New York, New York
August 1, 1980
/s/

LAWRENCE W. PIERCE
U. S. D. J.

A. 28

UNITED STATES OF AMERICA,
Plaintiff-Appellee.

V.

NICHOLAS SEREGOS,
Defendant-A ppellant.

879 Cr. 564

United States District Court,
Southern District of New York.

Filed: September 15. 1980
ENDORSEMENT ORDER 1

The defendant moves (1) to have no sentence imposed,
(2) to vacate this Court’s finding of guilt, and (3) to dismiss the
indictment on the ground that his Fifth Amendment due
process rights were violated because he was not afforded fair
notice that his conduct violated the Travel Act, 18 U.S.C.
§ 1952.

Federal Rule of Criminal Procedure 12(b)(2) requires that
“defenses and objections based on defects in the indictment
or information (other than that it fails to show jurisdiction in
the court or to charge an offense . .)“ must be raised prior to
trial. The defendant does not claim that the Court lacks juris-
diction or that the indictment fails to charge an offense. Rather,
he claims that his due process rights were violated.

Defendant’s failure to raise his objection prior to trial
constitutes a waiver. United States v. Viserto, 596 F.2d 531,
538 (2d Cir. 1979), cert. denied, 100 S.Ct. 80; United States
v. Rodriguez, 556 F.2d 638, 641 (2d Cir. 1977), cert. denied,
434 U.S. 1062. Accordingly, defendant’s motion is denied.

SO ORDERED.

A. 29

Dated: New York, New York
September 11, 1980

a /s/

LAWRENCE W. PIERCE
U. S. D. J.

A. 30

UNITED STATES OF AMERICA,
Plaintiff-Appellee.

V.

NICHOLAS SEREGOS,
Defendant-A ppellant.

879 Cr. 564

United States District Court,
Southern District of New York

Filed: October 17, 1980
ORDER

On April 2, 1980, the defendant, Nicholas Seregos, was
found guilty by this Court on each of two counts charged in an
indictment bearing number S79 Cr. 564. Count One charges
a conspiracy, in violation of 18 U.S.C. § 371, to violate the
Travel Act, 18 U.S.C. § 1952. Count Two charges a substantive
violation of the Travel Act. The predicate state law offense
underlying both counts is commercial bribery in violation of
N.Y. PENAL LAW §§180.03 and 180.08. The first count
charges a conspiracy between May 1973 and May 1977; the
overt acts averring the defendant’s participation refer to dates
ranging from October 18, 1976 to December 1976.

On July 16, 1976, the Second Circuit held that the Travel
Act did not apply to acts of commercial bribery in violation of
the New York Penal Law. United States v. Brecht, 540 F.2d
45 (2d Cir. 1976), cert. denied, 429 U.S. 1123 (1977). On
November 27, 1979, the Supreme Court of the United States
held that the Travel Act did apply to acts of commercial bribery
and in effect overruled the decision of the Second Circuit in
Brecht. Perrin v. United States, 444 U.S. 37 (1979). The super-
seding indictment upon which Seregos was found guilty was
returned following the decision in Perrin.

A.31

By notice of motion filed September 8, 1980, four days
prior to the defendant’s scheduled sentencing, the defendant
moved (1) to have no sentence imposed, (2) to vacate this
Court’s finding of guilt, and (3) to dismiss the indictment on the
ground that his Fifth Amendment due process rights were vio-
lated because he was not afforded fair notice that his conduct
violated the Travel Act.

By endorsement order dated September 11, 1980, the
Court denied the defendant’s motion. After receiving the
defendant’s reply papers, the Court granted the defendant’s
motion for reconsideration made on September 12, 1980.
On September 12, 1980, the defendant was fined $5,000 on
each of the two counts of the indictment. Execution of the
sentence was stayed pending resolution of the present motion.

Federal Rule of Criminal Procedure 12(b)(2) requires that
“defenses and objections based on defects in the indictment
or information (other than [failure] to show jurisdiction in the
court or to charge an offense. . .)” must be raised prior to trial.
Failure to do so constitutes a waiver.

The defendant does not claim that the Court lacks juris-
diction or that the indictment fails to charge an offense. Rather,
he claims that his due process rights were violated.

Although neither Rule 12 nor the Advisory Committee
notes make explicit reference to a due process claim of insuf-
ficient notice, the Court finds that such an objection is of the
type that must be raised prior to trial. Indeed, several motions
were made on defendant’s behalf before trial commenced.
Despite his contentions to the contrary, the defendant knew or
could have known prior to trial that his then alleged illegal
conduct occurred at a time when Brecht was the prevailing law
in this jurisdiction.“ Thus, he could have raised an objection
based on a denial of fair notice prior to trial. His failure to do

' Brecht was the law of this Circuit from June (sic) 16, 1976 until
November 27, 1979. All of the overt acts charged in Count One and the
substantive offense charged in Count Two occurred during this period.
The defendant could certainly have timely moved, on the due process
grounds now asserted, to dismiss the portions of the indictment relating
to events that occurred when Brecht was the rule.

A. 32

© constituted a waiver, Accordingly, the defendant's motion is
denied.

The defendant's sentence shall be executed, within twenty
days of the entry of this Order, pursuant to this Court's

sentencing order dated September 2, | 980.
0 ORDERED.

Dated: New York, New York
October 15, 1980

/s/

LAWRENCE W, PIERCE
U. 8. U. J.

A. 33

UNITED STATES COURT OF APPEALS
FOR THE
SECOND CIRCUIT

Filed: July 28, 1981
A. Daniel Fusaro, Clerk

At a stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the

City of New York, on the twenty-eichth day of July, one
thousand nine hundred and eighty-one.

Present:
HON. WILFRED FEINBERG, Chief Judge
HON. JAMES L. OAKES, Circuit Judge
HON, EDWARD R NEAHER, District Judge

Circuit Judges,

UNITED STATES OF AMERICA,
Plaintiff-Appellee
.
NICHOLAS SEREGOS,
Defendant-Appellant.

#80-1403

Appeal from the United States District Court for the
Southern District of New York.

This cause came on to be heard on the transcript of record
from the United States District Court for the Southern District
of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged, and decreed that the judgment of said
District Court be and it hereby is affirmed in accordance with
the opinion of this court.

A. DANIEL FUSARO, Clerk
by Edward J. Guardaro, Deputy Clerk

A. 34

UNITED STATES COURT OF APPEALS
SECOND CIRCUIT

Filed; Sept, 14, 1981
A. Daniel Fusaro, Clerk

At a stated term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the 14th day of September,
one thousand nine hundred and eighty-one.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
* No, 80-1403
NICHOLAS SEREGOS,
Defendant-Appellant.

A petition for rehearing containing a suggestion that the
action be reheard in banc having been filed herein by counsel
for the defendant-appellant, Nicholas Seregos,

Upon consideration by the panel that heard the appeal it

ORDERED that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc
has been transmitted to the judges of the court in regular active
and to any other judge on the panel that heard the
and no sich judge has requested that a vote be
taken thereon.

A. DANIEL FUSARO, Clerk

(of
FRANCIS X. GINDHART
Chief Deputy Clerk

A. 35
STATUTES INVOLVED

The Fifth Amendment to the United States Constitution
provides:

No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indict-
ment of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person 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.

The Travel Act, 18 U.S.C. § 1952, provides:
Interstate and foreign travel or transportation in aid of
racketeering enterprises.

(a) Whoever travels in interstate or foreign com-
merce or uses any facility in interstate or foreign com-
merce, including the mail, with intent to

(1) distribute the proceeds of any unlawful
activity; or

(2) commit any crime of violence to further
any unlawful activity; or

(3) otherwise promote, manage, establish,
carry on, or facilitate the promotion, management, estab-
lishment, or carrying on, of any unlawful activity,
and thereafter performs or attempts to perform any of the
acts specified in subparagraphs (1), (2), and (3), shall be
fined not more than $10,000 or imprisoned for not more
than five years, or both.

(b) As used in this section “unlawful activity”
means (1) any business enterprise involving gambling,
liquor on which the Federal excise tax has not been paid,
narcotics, or prostitution offenses in violation of the laws
of the State in which they are committed or of the United

A. 36

States, or (2) extortion, bribery, or arson in violation of
the laws of the State in which committed or of the United
States.

(c) Investigations of violations under this section
involving liquor or narcotics shall be conducted under the
supervision of the Secretary of the Treasury.

18 U.S.C. § 371 provides:
Conspiracy to commit offense or to defraud United States.

If two or more persons conspire either to commit any
offense against the United States, or to defraud the United
States, or any agency thereof in any manner or for any
purpose, and one or more of such persons do any act to
effect the object of the conspiracy, each shall be fined not
more than $10,000 or imprisonment not more than five
years, or both.

If, however, the offense, the commission of which is
the object of the conspiracy, is a misdemeanor only, the
punishment for such conspiracy shall not exceed the max-
imum punishment provided for such misdemeanor.

18 U.S.C. § 6001 provides:
Definitions.
As used in this part —

(1) “agency of the United States” means any execu-
tive department as defined in section 101 of title 5, United
States Code, a military department as defined in section
102 of title 5, United States Code, the Atomic Energy
Commission, the China Trade Act registrar appointed
under 53 Stat. 1432 (15 U.S.C. sec. 143), the Civil Aero-
nautics Board, the Commodity Futures Trading Commis-
sion, the Federal Communications Commission, the
Federal Deposit Insurance Corporation, the Federal
Maritime Commission, the Federal Power Commission, the
Federal Trade Commission, the Interstate Commerce
Commission, the National Labor Relations Board, the
National Transportation Safety Board, the Railroad
Retirement Board, an arbitration board established under

A. 37

48 Stat. 1193 (45 U.S.C. sec. 157), the Securities and
Exchange Commission, the Subversive Activities Control
Board, or a board established under 49 Stat. 31 (15 U.S.C.
sec. 715d);

(2) “other information” includes any book, paper,
document, record, recording, or other material;

(3) “proceeding before an agency of the United
States” means any proceeding before such an agency with
respect to which it is authorized to issue subpoenas and to
take testimony or receive other information from wit-
nesses under oath; and

(4) “court of the United States” means any of the
following courts: the Supreme Court of the United States,
a United States court of appeals, a United States district
court established under chapter 5, title 28, United States
Code, a United States bankruptcy court established under
chapter 6, title 28, United States Code, the District of
Columbia Court of Appeals, the Superior Court of the
District of Columbia, the District Court of Guam, the
District Court of the Virgin Islands, the United States
Court of Claims, the United States Court of Customs and
Patent Appeals, the Tax Court of the United States, the
Court of International Trade, and the Court of Military

Appeals.

18 U.S.C. § 6002 provides:
Immunity generally.

Whenever a witness refuses, on the basis of his privi-
lege against self-incrimination, to testify or provide other
information in a proceeding before or ancillary to —

(1) acourt or grand jury of the United States,

(2) an agency of the United States, or

(3) either House of Congress, a joint committee of
the two Houses, or a committee or a subcommittee of
either House,

A. 38

basis of his privilege against self-incrimination; but no testi-
mony or other information compelled under the order (or
any information directly or indirectly derived from such
testimony or other information) may be used against the
witness in any criminal case, except a prosecution for
perjury, giving a false statement, or otherwise failing to
comply with the order.

18 U.S.C. § 6003 provides:
Court and grand jury proceedings.

(a) In the case of any individual who has been or
may be called to testify or provide other information at
any proceeding before or ancillary to a court of the United
States or a grand jury of the United States, the United
States district court for the judicial district in which the
proceeding is or may be held shall issue, in accordance
with subsection (b) of this section, upon the request of
the United States attorney for such district, an order
requiring such individual to give testimony or provide
other information which he refuses to give or provide on
the basis of his privilege against self-incrimination, such
order to become efiective as provided in section 6002 of
this part.

(b) A United States attorney may, with the approval
of the Attorney General, the Deputy Attorney General, or
any designated Assistant Attorney General, request an
order under subsection (a) of this section when in his
judgment —

(1) the testimony or other information from such
individual may be necessary to the public interest; and

(2) such individual has refused or is likely to refuse
to testify or provide other information on the basis of his
privilege against self-incrimination.

A. 39

N.Y. Penal Law § 180.03 (McKinney's Supp. 1979-80)
provides:
Commercial bribing in the first degree.

A person is guilty of commercial bribing in the first
degree when he confers, or offers or agrees to confer, any
benefit upon any employee, agent or fiduciary without the
consent of the latter’s employer or principal, with intent
to influence his conduct in relation to his employer's or
principal’s affairs, and when the value of the benefit con-
ferred or offered or agreed to be conferred exceeds one
thousand dollars.

Commercial bribing in the first degree is a class A
misdemeanor.

N.Y. Penal Law § 180.08 (McKinney’s Supp. 1979-80)
provides:
Commercial bribe receiving in the first degree.

An employee, agent or fiduciary is guilty of commer-
cial bribe receiving in the first degree when, without the
consent of his employer or principal, he solicits, accepts or
agrees to accept any benefit from another person upon an
agreement or understanding that such benefit will influ-
ence his conduct in relation to his employer's or principal’s
affairs, and when the value of the benefit solicited,
accepted or agreed to be accepted exceeds one thousand
dollars.

Commercial bribe receiving in the first degree is a
class A misdemeanor.

“lice Supreme Court, U.S. |
I

JAN 29 1990

No. 81-895
— Evas.
CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1981

NICHOLAS SEREGOS, PETITIONER
V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

REx E. LEE
Solicitor General
D. LOWELL JENSEN
Assistant Attorney General
FRANK J. MARINE
Attorney
Department of Justice
Washington, D.C. 20530
(202) 633-2217

—— — ſ — —

QUESTIONS PRESENTED

1. Whether the indictment should be dismissed on
the ground that improper use was made of petition-
er’s immunized testimony.

2. Whether petitioner’s conviction for a violation
of the Travel Act, 18 U.S.C. 1952, based on conduct
that occurred before this Court’s decision in Perrin v.
United States, 444 U.S. 37 (1979), violates the Due
Process Clause.

(1)

TABLE OF CONTENTS

Page
Opinions below 1
Jurisdiction 1
Statement 2
1111111 9
Conclusion 22
TABLE OF AUTHORITIES
Cases:
Bouie v. City of Columbia, 378 U.S. 347 .................. 19, 20
Goldberg v. United States, 472 F.2d 518 .................. 6
James v. United States, 366 U.S. 218 ...................... 17
Kastigar v. United States, 406 U.S. 441 4, 5, 9, 10, 12
Lego v. Twomey, 404 U.S, 477 10
Lewis v. United States, 445 U.S. 55 5 18
Marks v. United States, 480 U.S. 188 19, 20
Miller v. California, 413 U.S. 15 19
Perrin v. United States, 444 U.S. 37 16, 19
United States v. Apfelbaum, 445 U.S. 1155 11, 12
United States v. Brecht, 540 F. 2d 45, cert. denied,

429 U.S. 1123 16, 17, 20, 21
United States v. Feola, 420 U.S. 671 17
United States v. Goodheim, 651 F.2d 1294, rehear-

e 18
United States v. Harriss, 347 U.S. 61222 15
United States v. McDaniel, 482 F.2d 30 11
United States v. Mercado, 478 F.2d 118 17, 20
United States v. Perrin, 580 F.2d 730, aff’d, 444

US, 37 17, 21
United States v. Polizzi, 498 F.2d 570 16-17
United States v. Pomponio, 511 F.2d 953, cert. de-

A ce a een 20
Weatherford v. Bursey, 429 U.S. 5453. 11

Constitution and statute:
United States Constitution:
Article I, Section 10 14

Fifth Amendment, Due Process Clause . 14-15, 16

()

IV

Constitution and statute—Continued Page
Travel Act, 18 U.S.C. 1952......2, 9, 14, 15, 16, 18, 19, 20, 21
18 U.S.C, 2 2
18 U.S.C. 371 2
18 U.S.C. 3237 21
N.Y. Penal Law (McKinney’s Supp. 1979-1980):
§ 180.03 14, 15
§ 180.08 — 14,15
Miscellaneous:

J. Hall, General Principles of Criminal Law (2d
ed. 1960) 19

In the Supreme Court of the United States
OCTOBER TERM, 1981

No. 81-895

NICHOLAS SEREGOS, PETITIONER
V.
UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-
Al0) is reported at 655 F.2d 33. The opinion of the
district court (Pet. App. A18-A25) is unreported.

JURISDICTION

The judgment of the court of appeals was entered
on July 28, 1981. A petition for rehearing was de-
nied on September 14, 1981. The petition for a writ
of certiorari was filed on November 12, 1981. The
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

(1)

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itial indictment was filed before petitioner gave any
immunized testimony; he then scheduled a post-trial
Kastigar hearing to determine whether the govern-
ment’s trial evidence was tainted (Pet. App. A11-
Al2).

After petitioner was convicted, Richard Mescon, the
Assistant United States Attorney who conducted the
grand jury investigation and petitioner's trial, and
FBI Agent Robert Cassidy, the case agent on peti-
tioner’s case, testified for the government at the Kas-
tigar hearing. Mescon testified that the investigation

developed both Pierson and Weeks as witnesses; they
guilty to criminal informations on April 5, 1979,
May 10, 1979, respectively (H. Tr. 8-9). Peti-
through his counsel, was simultaneously en-
in periodic negotiations with United States At-
and Assistant United States At-

iis
5
3

13
f
:
:
f
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i

broke down, Fiske instructed Mescon to proceed
th the indictment of petitioner (H. Tr. 10). The
indictment was returned on July 24, 1979, and peti-
tioner first gave immunized testimony later that day
— (Pet. App.

Mescon testifled that he took special precautions to
protect the integrity of petitioner’s prosecution from

4

the indictment (H. Tr. 10-12; H. GX 1).“ He did not
read petitioner’s grand jury or trial testimony, nor
did he discuss petitioner’s involvement in the case with
any person other than Agent Cassidy. He did not at-
tend any portions of the Scotto trial at which peti-
tioner testified, and he did not read any newspaper
accounts of that trial. Up to the conclusion of peti-
tioner’s trial in April 1980, he had no knowledge of
the substance of petitioner’s testimony before the
grand jury or at the Scotto trial (H. Tr. 17-20).

Mescon further testified that, in addition to the tes-
timony of Pierson and Weeks, the government’s direct
case at trial consisted exclusively of documents sub-
poenaed from Weeks Stevedoring and Jackson Engi-
neering prior to the indictment of petitioner (H. Tr.
20-21). Mescon also explained the independent sources
of topics and documents he used during the cross-
examination of petitioner. Information concerning
payoffs petitioner made to Scotto and Anastasio was
provided Mescon by Agent Cassidy in the form of Cas-
sidy’s notes of his debriefing of Montella in June
1978, a tape recording of a consensually monitored
conversation between Montella and petitioner in Au-
gust 1978, and certain “302 reports” by FBI agents
made in 1977 (H. Tr. 26-27). Mescon explained that
he also learned from Agent Cassidy, based on certain
conversations overheard before petitioner gave his im-

* The superseding indictment on which petitioner went to
trial was voted by a different grand jury but was based on
the same evidence that had been presented to the first grand
jury (H. Tr. 16-17; H. GX 8).

This procedure of presenting all of the available evidence
to the grand jury served the purpose of certifying the gov-
ernment’s evidence prior to immunizing the defendant. See
— v. United States, 472 F.2d 513, 516 n.5 (2d Cir.

7
1

munized testimony, that petitioner had testified before
the Waterfront Commission in 1976. The actual
transcript of petitioner’s testimony obtained from the
Waterfront Commission supplied the basis for the
cross-examination on this subject (H. Tr. 21-23).
Mescon described a meeting in early Murch 1980
that he had with Fiske, Levine, and Raymond Dearie,
petitioner’s counsel, during which Dearie requested
that the government drop the indictment against peti-
tioner or offer him an opportunity to plead guilty to
a misdemeanor charge, which had been offered to him
during the earlier negotiations before the Scotto trial.
After the meeting, Mescon and Fiske decided to pro-
ceed with trial and not renew the misdemeanor offer
(H. Tr. 70-72). Mescon testified that he did “not pre-
cisely” recall telling Dearie the reasons for the deci-
sion, but that “[t]he basic reason was that having
made an offer for the misdemeanor disposition at one
time, and having had that offer refused at the time

his share” (H. Tr. 73).

With respect to his cross-examination of petitioner
concerning his payments to employees of Hellenic
Lines, Mescon stated that his “first knowledge of that

information was when [petitioner] told me during his
cross-examination” (H. Tr. 79). He also stated that,

might be a fruitful area (H. Tr. 80, 118). Mescon
also testified that the decision not to call Montella as
a rebuttal witness was his alone (H. Tr. 130), al-
though he did consult with Fiske, Levine, and others
before making the decision, which turned on one pri-

mary consideration—whether problems could arise in
the event there were inconsistencies between Mon-
tella’s testimony in this case and his testimony in the
related Scotto and Clemente trials (H. Tr. 125-130).
FBI Agent Robert Cassidy testified that he had
worked on the waterfront investigation for four and
a half years. Cassidy testified that when petitioner
was indicted in July 1979, both Mescon and Fiske in-
structed him to insulate himself from conversations
pertaining to any post-indictment testimony of peti-
tioner. To that end, Cassidy spoke with his super-
visor and other agents working on the investigation,
telling them not to reveal to him any information re-
lating to petitioner’s immunized testimony (H. Tr.
89). Prior to the verdict in petitioner’s case, Cassidy
never read petitioner’s grand jury or trial testimony,
never spoke to any FBI Agent, Assistant U.S. Attor-
ney, or any other person concerning the substance of
that testimony, and, except for a single summary arti-
cle, which stated only that petitioner was a witness
at the Scotto trial, never read anything in the news-
paper about that testimony (H. Tr. 89-90). Cassidy
further testified that he learned of petitioner’s pay-
ments to Anastasia on June 13, 1978, during his de-
briefing of Montella (H. Tr. 91) and that he learned
that petitioner had testified before the Waterfront
Commission from the August 1978 taped conversa-
tions between Montella and petitioner (H. Tr. 96).
Petitioner presented no witnesses at the hearing.
It was stipulated that, if called as a witness, Dearie
would testify that one of the reasons given at the
meeting with Fiske, Levine and Mescon for declining
to offer a misdemeanor disposition was “the informa-
tion that [petitioner] had revealed while under his
grant of immunity” (H. Tr. 139). Dearie also would

have stated that Mescon later identified this as the
principal one of many reasons for declining to offer
an opportunity to plead guilty to a misdemeanor
(ibid.). Mescon, however, testified that he did not
recall making this statement; moreover, while he did
not specifically recall not making the statement, the
basic reason for the decision was that petitioner had
failed to perform his part of the bargain that had
been the predicate for the original misdemeanor offer
(H. Tr. 73-74).

3. On August 1, 1980, the district court issued an
opinion concluding that “the government has sus-
tained its burden of proving that the evidence pre-
sented to the grand jury and to the Court at the time
of trial was derived from sources wholly independent
of [petitioner’s] immunized testimony” (Pet. App.
A23). Finding Mescon and Cassidy to be “highly
credible witnesses” (id. at A20), the court rejected
petitioner’s claim of taint and denied his motion to
dismiss the indictment. On appeal, the court of p-
peals affirmed, stating that “[f]rom our independent
review of [the] record we see no reason to question
Judge Pierce’s findings” (id. at A10). The court also
rejected petitioner’s contention that he did not have
fair notice that his conduct violated the Travel Act
(id. at A5-A7).

ARGUMENT

1. Petitioner contends (Pet. 10-13) that the gov-
ernment improperly used his immunized grand jury
testimony, in violation of the principles enunciated in
Kastigar v. United States, 406 U.S. 441 (1972).
Specifically, while petitioner does not dispute that
the evidence introduced at trial was obtained with-
out use of the immunized testimony, he contends
(Pet. 11-12) that the United States Attorney refused

10

to agree to a more lenient disposition of the charges
because of admissions made in petitioner’s immunized
testimony, that the trial prosecutor planned trial
strategy in consultation with other government at-
torneys who had been exposed to petitioner’s im-
munized testimony, and that the idea of cross-
examining petitioner at trial about two subjects—
his payments to Hellenic Lines employees and his
false testimony before the Waterfront Commission—
was suggested by his immunized testimony. These
contentions do not merit review by this Court.

The government has the burden of proving by a
preponderance of the evidence (see Lego v. Twomey,
404 U.S. 477, 487-489 (1972)) that “the evidence it
proposes to use is derived from a legitimate source
wholly independent of the compelled [immunized]
testimony.” Kastigar v. United States, supra, 406
U.S. at 460. Based on the testimony offered by the
government’s witnesses at the post-trial Kastigar
hearing, the district court found that the government
met this burden. The district court’s findings here
that there was no improper use of petitioner’s im-
munized testimony are supported by the record, and
its ruling was affirmed by the court of appeals. Fur-
ther review of this factbound issue is therefore un-
warranted.

Petitioner’s first claim of taint rests upon the
participation of Fiske and Levine in the denial of
petitioner’s eve of trial request for a misdemeanor
disposition and the statement of petitioner’s trial
attorney that he had been told that the request was
denied because of petitioner’s immunized testimony.
However, Mescon testified that he did not recall that
this was the basis for the denial of petitioner’s re-
quest. Rather, Mescon testified that “the basic rea-

11

son” for not agreeing to a misdemeanor disposition
was that petitioner had rejected a similar proposal
previously, and the prosecutors did not consider it
appropriate to let petitioner “have the benefit of the
bargain without having done his share” (H. Tr. 73).
While the district court made no specific finding on
this point, it found that Mescon was a “highly credi-
ble” witness (Pet. App. A20), and thus the record
supports the conclusion that the decision to deny
petitioner’s request was not tainted by information
gleaned from his immunized testimony.

In any event, petitioner would not be entitled to
relief even if his immunized testimony had somehow
influenced the decision not to permit petitioner to
plead guilty to misdemeanor charges. Such reference
to immunized testimony does not involve the im-
permissible use of immunized testimony or any of
its fruits against a defendant. A defendant has
no right to plead guilty to reduced charges or to
require the government to engage in plea bargaining.
Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
The fact that the government did not offer petitioner
a benefit to which he had no entitlement would not
be an impermissible “use” of his immunized testi-
mony against him. See United States v. Apfelbaum,
445 U.S. 115, 124-125 (1980).*

* Petitioner’s reliance (Pet. 10-12) upon dictum to the con-
trary in United States v. McDaniel, 482 F.2d 305 (8th Cir.
1973), is misplaced. In McDaniel, the federal prosecutor, un-
aware that the testimony was immunized, read the three vol-
umes of the defendant's state grand jury testimony prior to
presenting the case against the defendant to a federal grand
jury. The cowrt held that, under these circumstances, it could
not conclude that the prosecutor had not made some use of the
immunized testimony. In listing possible uses, the court noted
that a refusal to plea bargain was one area in which im-

In addition, petitioner’s trial counsel knew that
Fiske and Levine had prosecuted the Scotto case and
therefore that they were familiar with petitioner’s
immunized testimony. Yet, on his own initiative,
petitioner requested a meeting with Fiske on the eve
of trial to take his “last crack at the U.S. Attor-
ney’s Office“ (see H. Tr. 71-72, 137). Thus, if
the decision not to offer petitioner an opportunity

ment’s decision to request a postponement of peti-
tioner’s trial until after the trial of the Scotto case.

Mescon, who discussed the matter with Fiske and
Levine only after his decision had been made (H. Tr.
132). In any event, petitioner does not suggest how

—— — —
decision at the close of the trial not to call Montella
as a rebuttal witness to contradict parts of peti-
tioner’s testimony. While Mescon testified that that

its dictum does not accord with this Court’s later explanation
in Apfelbaum, supra, of the scope of use immunity.

13

decision was his alone (H. Tr. 130), he did consult
with Fiske, Levine, and others who may have been
familiar with the immunized testimony. But the
record makes clear that the only consideration in
deciding whether to call Montella was the possibility
that, under cross-examination, he would testify in-
consistently with his testimony at other trials, thus
opening the door to possible requests for post-trial
relief in those other prosecutions (H. Tr. 125-130).
Thus, there is no basis for speculating that peti-
tioner’s immunized testimony, which was totally ir-
relevant to this consideration, had any bearing on the
decision not to call Montella. Moreover, petitioner
suffered no harm from the government’s decision not
to call Montella, who had already testified in other
trials contrary to crucial elements of petitioner’s testi-
mony (see Tr. 22). Indeed, petitioner himself was
free to call Montella if he believed his testimony would
be of benefit (see Tr. 724).

Petitioner also contends that the government
failed to establish a basis independent of the im-
munized testimony for two separate topics of cross-
examination. This claim is belied by the record.
With respect to the question concerning payments to
Hellenic Lines, Mescon testified at the hearing that
he did not learn of these payments until he heard
petitioner’s admissions during cross-examination (H.
Tr. 79).“ Indeed, because neither Mescon nor Cassidy

‘The record shows that the natural development of the
cross-examination led directly to the challenged inquiry. Thus,
petitioner first testified that from 1974-1978, he generated
$12,000 in cash per month (Tr. 535-536). He was then asked
about his payments to Anastasio, which petitioner freely ad-
mitted (Tr. 545). Petitioner was then asked if he made pay-
ments for any other company’s business and answered that
there was one other company. Then the prosecutor asked if

14

was aware of the substance of petitioner’s immunized
testimony (H. Tr. 17-20, 89-90), there is no ground
for conjecturing that that testimony was the source
of this question. Similarly, both Cassidy and Mescon
testified that Cassidy learned of the Waterfront Com-
mission testimony from tape recordings of petitioner
(H. Tr. 21-23, 96). In sum, there is no basis for
disturbing the findings of the two courts below that
the prosecution did not use petitioner’s immunized
testimony or any evidence derived from it.

2. Petitioner also contends (Pet. 13-17) that his
conviction violates the Due Process Clause because
he did not receive fair notice that his participation
in an illegal commercial bribery scheme violated the
Travel Act, 18 U.S.C. 1952. This contention is with-
out merit.

Clearly, the constitutional prohibition against ex
post facto laws, Article I, Section 10, has no applica-
tion here. The Travel Act was enacted in 1961 and
thus was in force for many years before petitioner
committed the crimes for which he was convicted.
Similarly, the underlying state statute that petitioner
violated, N.Y. Penal Law §§ 180.03, 180.08 (McKin-
ney’s Supp. 1979-1980), and its essentially identical
predecessor, had prohibited the conduct at issue for
many years before petitioner committed the acts that
gave rise to this indictment. The Due Process

this remaining company was Hellenic Lines, a logical question
in light of that company’s status as Jackson’s primary cus-
tomer (Tr. 554-555).

*The present version of N.Y. Penal Law §§ 180.03 and
180.08 became effective on September 1, 1976. But the only
changes in the prior law effected by the 1976 amendment were
subdivision of the crime into different degrees depending upon
the amount of money in question, and enhancement of the
penalty for the greater offense.

15

Clause, however, also requires that a criminal statute
afford fair notice of what conduct is deemed criminal
because “no man shall be held criminally responsible
for conduct which he could not reasonably under-
stand to be proscribed.” United States v. Harriss,
347 U.S. 612, 617 (1954). Here, however, there
can be no doubt that petitioner had fair notice that
his conduct was proscribed.

Petitioner does not dispute that the state commer-
cial bribery statute unambiguously proscribes his
conduct.’ Thus, petitioner clearly had fair notice
that his conduct was criminal, in violation of the
statute listed in the indictment as the predicaie for
the Travel Act offense. By the same token, the
Travel Act, by its express terms, plainly covers com-

The indictment listed two New York statutes as predicate
state offenses. N.Y. Penal Law § 180.03 (McKinney’s Supp.
1979-1980) provides:

A person is guilty of commercial bribing in the first
degree when he confers, or offers or agrees to confer,
any benefit upon any employee, agent or fiduciary with-
out the consent of the latter’s employer or principal, with
intent to influence his conduct in relation to his em-
ployer’s or principal’s affairs, and when the value of the
benefit conferred or offered or agreed to be conferred
exceeds one thousand dollars.

N.Y. Penal Law § 180.08 (McKinney’s Supp. 1979-1980)
provides :

An employee, agent or fiduciary is guilty of commer-
cial bribe receiving in the first degree when, without the
consent of his employer or principal, he solicits, accepts
or agrees to accept any benefit from another person
upon an agreement or understanding that such benefit
will influence his conduct in relation to his employer’s
or principal’s affairs, and when the value of the benefit
solicited, accepted or agreed to be accepted exceeds one
thousand dollars.

F
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* The Travel Act, 18 UBL, 1

17

oe 1974); United States v. Mercado, 478

1111 (2d Cir. 1973). See also James v.

82

i

U.S. 213, 241 (1961) (opinion of
of

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As petitioner notes (Pet. 10, 15), in United States
v. Goodheim, 651 F.2d 1294, rehearing denied,
664 F.2d 754 (1981), the Ninth Circuit has
recently taken a position at odds with the

the predicate conviction, because

Similarly, petitioner’s reliance (Pet. 14-15) on
Marks v. United States, 430 U.S. 188 (1977), and
Bouie v. City of Columbia, 378 U.S. 347 (1964), is

In Bowie, a case involving the judicial
expansion of 4 state trespass statute to cover a civil
rights demonstrator’s refusal to leave a restaurant,
ee een eee oe Ree

and
indefensible by reference to the law which had been
expressed prior to the conduct in issue,’ it must not be
given retroactive effect.” Id. at 354, quoting J. Hall,
General Principles of Criminal Law 61 (2d ed. 1960)
(emphasis added). In Marks, the Court applied Bouie
in holding that its decision in Miller v. California,
413 U.S. 15 (1973), which expanded criminal lia-

commercial bribery was neither unforeseeable nor an
expansion of the Travel Act’s scope. As a unani-
mous Court stated in Perrin v. United States, supra,
444 U.S. at 45, when the Travel Act was enacted
the defendant is charged. Since Goodheim's conduct appar-
ently was criminal only under the federal firearm laws, the
court of appeals had no occasion to consider or decide the
point, Thus it remains unclear how the Ninth Circuit would
rule on a case such as petitioner's, and there is no inter-

“the common understanding and meaning of ‘bribery’
had extended beyond its early common-law defini-
tions” and encompassed commercial bribery. More-
over, even prior to the Brecht decision, the Fourth
Circuit had held that the Travel Act covered com-
mercial bribery as defined by New York’s commercial
bribery statute. United States v. Pomponio, 511 F.2d
953, cert. denied, 423 U.S. 874 (1975). There-
fore, it was readily foreseeable at the time of
petitioner’s criminal conduct that his conduct violated
the Travel Act. See United States v. Mercado, supra,
478 F.2d at 1111. In contrast to Marks, where the
conduct proscribed by the statute could be understood
only by reference to this Court’s constitutional deci-
sions regarding “obscenity” (see 430 U.S. at 195),

within it by an act of judicial construction” (378
U.S. at 352), petitioner’s conduct here violated the

plain language of a specific criminai statute.

—— 2 —— —
cate state commercial bribery offense is the require-
ment of interstate travel. While it was, of course,
essential for the government to prove such travel,
the statute does not require that petitioner have any
particular mental state concerning that travel or any
knowledge that his crime became a federal one be-

state travel, he did have notice of the criminality of
the actions that underlay his conviction.”

Finally, whatever the theoretical merits of peti-
tioner’s contentions, his case is fatally flawed in an-

While this offense was completed in New York, which
is within the Second Circuit, it was begun in New
Jersey, which is within the Third Circuit. As is
clear from 18 U.S.C. 3237, petitioner could as read-

erroneously
Thus, if it was fair for this Court to uphold Perrin’s

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CONCLUSION

The petition for a writ of certiorari should be
denied.

Respectfully submitted.

JANUARY 1982

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No. 81-895

IN THE

Supreme Court of the United States
OCTOBER TERM, 1981
—
NICHOLAS SEREGOS,
Petitioner,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0710%3A0. Public record. Not legal advice.