Appendix — Moeller v. Connecticut

" FILED |

81 *%2.3.6.0.0 sreitas

DER L. STEVAS,

In THE

Supreme Court of the Anited States

October Term, 1981

Caries D. Moe.ier, and Lowetz Powst1,

Petitioners,

vs.

State oy Connecticut,

Tuomas L. Napgav

Kosxorr, Kosxorr & Biever, P.C.

55 Chapel Street

Bridgeport, Connecticut 06604

(203) 336-4421

Attorney for Petitioner Moeller

Avexanper Hanrinstern, Eso.

Joun A. Buregss, Ese.

181 Middle Street

Bridgeport, Connecticut 06604

(203) 336-6181

Attorneys for Petitioner Powell

——eaeeeEEEEEEEEOEEE

INDEX TO APPENDIX

“A”—Opinion of the Supreme Court of Connecticut... 1a

“B”—Trial Court’s Memorandum of Decision, Deny-

ing Motions to Disqualify cue 10a

“CO”._Bench Warrant Affidavit —...000 0... 17a

“D”—Excerpt of Transcript, May 5, 1980 33a

Appendix A

Opinion of the Supreme Court of Connecticut

Strats or Connzcricut v. Lowst, Powsi.

Strats or Connecticut v. Cuartes D. Mogtizr

Sreziae, C. J., Perens, Pansxey, Suea, Covetzo, Js.

The appeal by the defendants, charged with the crime of

conspiracy to commit arson, from the trial court’s denial

of their motions to have the prosecuting state’s attorney

disqualified on the ground that he had a personal interest

in the outcome of the trial, was dismissed, sua sponte, by

this court. The challenged action by the trial court, be-

cause it involved a claimed right which could be vindi-

cated on an appeal after the trial, was not a final judg-

ment and thus was not immediately appealable.

The decision in State v. Jones (180 Conn. 443), to the extent

it is inconsistent with the conclusion reached herein, is

overruled.

Argued December 3, 1981—decision released March 30, 1982

Motions by each defendant to disqualify the state’s at-

torney of the judicial district of Fairfield and all members

of his staff and office, brought to the Superior Court in the

judicial district of Fairfield at Bridgeport, where the court,

Eielson, J., denied the motions, and the defendants ap-

pealed to this court. Appeals dismissed sua sponte.

John A. Burgess, of the California bar, with whom, on

the brief, was Alexander Harimstein, for the appellant (de-

fendant Powell).

Thomas L. Nadeau, with whom, on the brief, was The-

odore I. Koskoff, for the appellant (defendant Moeller).

la

2a

Appendiz A—Opimion of the

Supreme Court of Connecticut

Richard F. Jacobson, assistant state’s attorney, with

whom, on the brief, was Donald A. Browne, state's at-

torney, for the appellee (state in each case).

Sreziatz, C. J. The defendants in these two cases are

charged with conspiracy to commit arson in connection with

the March 1, 1975 fire at plant No. 4 of the Grand Sheet

Metal Company, known as the Sponge Rubber Factory, in

Shelton. The facts concerning the fire itself are discussed

in State v. Just, —— Conn. (43 Conn. L.J., No. 7, pp. 19,

19-20) (1981), and United States v. Bubar, 567 F.2d 192,

195-96 (2d Cir. 1976).

The arson was the subject of both federal and state in-

age So mam pean me aad gg my ultimately

were convicted and two were acquitted. See United States v. Bubar,

567 F.2d 192 (2d Cir. 1976).

Appendia A—Opinion of the

Supreme Court of Connecticut

have appealed. At oral argument, however, counsel for

Both defendants allege that state’s attorney Browne has

eviaonced a personal interest in the outcome of the prosecu-

tion aga:ust them. The basis of this alleged personal in-

terest is Browne’s status as a defendant in a federal civil

rights action brought by Powell.‘ Both defendants conceded

at oral argument that the existence of the civil rights action

alone would not be sufficient to require Browne’s

cation. The basis of their claim is a statement made in court

they contend demonstrated Browne’s personal interest.‘

both defendants: (1) changed their claim on appeal and

Browne; and (2) further limited this claim to only one

now seek only the disqualification of state’s attorney

ground for such disqualification.’

by Browne in arguing for an early trial of the case which,

iti puss

atl i

Hie i

qi

uhtin

Appendiz A—Opinion of the

Supreme Court of Connecticut

The trial court, in denying the defendants’ motions, re-

jected this reasoning.‘

Before we can reach the merits of the defendants’ claim,

however, it is necessary for us to consider the threshold

question of whether the appeal by each of the defendants is

from a final judgment.’ This court may hear the defen-

dants’ appeals only * che order denying their motions to

disquelify is a final judgment. See Practice Book § 3000;

Genera! Statutes § 52-263.

The finality requirement underlying our appellate review

represents a clear and firm policy against piecemeal ap-

peals. State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761,

F aeatiy:

ih i a i

pf ball ti]

iis i il

sqa <2 :

vile iu Me

Hil al il ane

ini

i

5a

Appendia A—Opinion of the

Supreme Court of Connecticut

(1938) ; Maltbie, Conn. App. Proc. $10. “Appeal gives the

upper court a power of review, not one of intervention.”

Cohen +. Beneficial Industrial Loan Corporation, 337 U.S.

541, 546, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). “Adherence

to this rule of finality has been particularly stringent in

eriminal prosecutions because ‘the delays and disruptions

attendant upon intermediate appeal,’ which the rule is de-

signed to avoid, ‘are especially inimical to the effective

and fair administration of the criminal law.’ DiBella [v.

United States, 369 U.S. 121, 126, 82 8. Ct. 654, 7 L. Ed. 2d

614 (1962)].” Abney v. United States, 431 U.S. 651, 657,

97 8. Ct. 2034, 52 L. Ed. 2d 651 (1977).

The only Connecticut authority relevant to the finality

of the denial of the motion to disqualify holds in effect that

such a denial is appealable. In State v. Jones, 180 Conn.

443, 429 A.2d 936 (1980), this court decided on the merits

an interlocutory appeal from the denial of a motion to dis-

qualify the prosecuting authority. Although the opinion in

State v. Jones, supra, was silent on the appealability ques-

tion, the decision on the merits and the earlier denial of

the state’s motion to dismiss for lack of final judgment both

demonstrate that this court considered the denial of the

motion to disqualify to be a final judgment.

At the time of our decision in State v. Jones, supra, the

question of the appealability of the denial of a motion to

disqualify, in either the civil or criminal context, was cure-

solved and in dispute by federal authorities. See, e.g., Fire-

stone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 n.10,

101 8. Ct. 669, 66 L. Ed. 2d 571 (1981) (detailing split in

federal circuits). Leading cases decided since State v.

Jones, supra, however, have now effectively resolved the

question by concluding that the denial of a motion to dis-

6a

Appendiz A—Opinion of the

Supreme Court of Connecticut

qualify is not a final judgment. Firestone Tire & Rubber

Co. v. Riajord, supra, 373-79; Armstrong v. McAlpim, 625

F.2d 433, 437-41 (2d Cir. 1980), overruling Silver Chrysler

Plymouth, Inc. v. Chrysler Motors Corporation, 496 F.2d

800 (2d Cir, 1974).* In view of this recent change, we have

reconsidered our position.

Generally, if the trial court order or action sought to be

appealed “terminates a separate and distinct proceeding,

or if the rights of the parties are concluded so that further

proceedings cannot affect them, then the judgment is final

for purposes of appeal. EZ. J. Hansen Eievator, Inc. v. Stoll,

167 Conn. 623, 627, 356 A.2d 893 [1975]; State v. Roberson,

165 Conn. 73, 83, 327 A.2d 556 [1973].” State v. Bell, 179

Conn. 98, 99, 425 A.2d 574 (1979). Cf. Cohen v. Beneficial

Industrial Loan Corperation, supra. “In a criminal case,

the imposition of sentence is the final judgment of the

court. State v. Moore, 158 Conn. 461, 463, 262 A.2d 166

(1969) ; State v. Smith, 149 Conn. 487, 489, 181 A.2d 446

(1962).” State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871

(1980). Presentence orders or actions by the trial court

7a

Appendia A—Opinion of the

Supreme Court of Connecticut

Thus, an order prior to sentencing in a criminal case is

. immediately appealable only if it involves a claimed right

- “the legal and practical value of which would be destroyed

if it were not vindicated before trial.” United States v.

MacDonald, 435 U.S. 850, 860, 98 S. Ct. 1547, 56 L. Ed. 2d

18 (1978). We nave held, for example, the denial of a

claim that the state’s prosecution places the defendant in

double jeopardy to be immediately appealable. State v.

Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S.

950, 100 8. Ct. 423, 62 L. Ed. 320 (1979). See Abney v.

United States, supra. Such a claim involves not just a right

not to be twice punished but also, in the appropriate cir-

cumstances, the right not even to be tried. Abney v. United

States, supra, 660-61. Other interlocutory orders we have

held to be immediately appealablu include the claimed right

to extend the confidentiality of juvenile proceedings to a

criminal proceeding; State v. Anonymous, 173 Conn. 414,

378 A.2d 528 (1977) ; the claimed right to be adjudicated as

a youthful offender; State v. Bell, 179 Conn. 98, 425 A.2d

574 (1979); and the claimed right to have nolled charges

dismissed on speedy trial grounds. State v. Lloyd, ——

Conn. (43 Conn. L.J., No. 5, pp. 10, 12-13) (1981).°

Where an interlocutory order involves the denial of a

claimed right which may still be vindicated after trial,

such a denial is not immediately appealable. Thus, dis-

covery orders are not immediately appealable; State v.

* The federal courts also have held immediately de-

nials of motions to dismiss based on the mem-

bers of di Se ston bese clause; Helstoski v

Meanor, 442 US. 3

8a

Appendia A—Opinion of the

Supreme Court of Connecticut

Grotton, supra, 293; nor is the claim of a «peedy trial vio-

lation. United States v. MacDonald, supra; State v. Lloyd,

supra, 12-13. In the present case, the defendants are not

claiming a right not to be tried, nor any other right which

would be irreparably lost if the trial were to be held.”

The defendants are claiming, at most, that they should not

be prosecuted by state’s attorney Browne. Even if it is

assumed that the trial court’s denial of the motions to dis-

qualify was erroneous, any harm caused thereby would

clearly be reparable if convictions are obtained.

“Should the present appeals be sustained they would

serve as precedents which might go forth to nullify the

purpose of the Legislature in authorizing an appeal only

from a ‘final judgment.’ . . . To permit appeals from

rulings upon such motions might seriously delay the final

disposition of pending cases. On the one hand, counsel

who sincete‘y felt that by an order upon such a motion

the rights of his client were seriously harmed might feel

compelled to take an immediate appeal; and, on the other

9a

Appendiz A—Opinion of the

Supreme Court of Connecticut

We conclude that the order denying the defendants’ mo-

tions to disqualify is not a final judgment and may not be

immediately appealed. To the extent State v. Jones, 180

Conn. 443, 429 A.2d 936 (1980), is inconsistent with this

conelnsion, it is overruled.

The appeals are hereby dismissed sua sponte.

In this opinion Parskey, Shea and Covello, ”», con-

curred.

Perers, J. (concurring). Because I view with the utmost

seriousness the questions raised by the statement of the

state’s attorney, I want to emphasize that our procedural

resolution of these cases in no way signals a retreat from

the substantive standards of State v. Jones, 180 Conn. 443,

429 A.2d 936 (1980). The state’s attorney’s responsibility

is not limited to avoidance of a possible conflict of interest.

As an officer of the court and of the state, he is, I believe,

in addition, charged with the duty of avoiding the appear-

ance of a conflict of interest. Code of Professional Re-

sponsibility, Canon 9.

No, 25,131

SUPERIOR COURT

Strate or Conngcricut

Cuanies MozLize

Jupic1maL Disraict or Famrre.p at Brivcerort

October 29, 1980

Mzmoraxrpum or Decision

On March 1, 1975, the Sponge Rubber Products Company

in Shelton, Connecticut, was destroyed by fire, which inves-

tigators designated to be caused by arson. Defendant Moel-

ler was charged by the State on May 3, 1977 with conspir-

acy to commit arson. Defendant Powell was arrested on

May 10, 1977 and similarly charged.’

lla

Appendia B—Trial Court’s Memorandum of Decision,

Denying Motions to Disquelif

On February 22, 1980, defendant Powell brought a civil

action in federal court against State’s Attorney Donald

Browne. The suit alleged violations of Powell’s civil rights

under 42 U.S.C. § 1983 arising out of his arrest and pros-

ecution in the arson case. The suit seeks $500,000 in mon-

etary damages.

Defendants now move to disqualify the State’s attorney

and his entire staff on the grounds that Browne’s dual sta-

tus as prosecutor here and defendant in the civil action

creates a conflict of interest which might interfere with

the prosecutor’s duty of impartiality and fairness. For the

reasons hereinafter set forth, the motion is denied.

The question before the court is whether a state’s attor-

ney and his staff are disqualified from continuing a pros-

ecution because the state’s attorney has been sued by one

of the defendants in a civil rights action prior to the start

of the criminal trial.

Neither of the parties has cited nor has the court’s own

research revealed any authority directly on point from

Connecticut or any other jurisdiction. Cases dealing with

disqualification of prosecutors are legion, and many of

these have been amply briefed. Most of this authority, how-

ever, has dealt with factual settings which provide little

guidance in deciding this motion.

Much of the authority deals with the prosecutor who is

called upon to prosecute an individual whom he or an asso-

ciate previously represented, thus presenting the danger of

breaching a confidential relationship. See generally Annot.,

31 A.L.R. 3d 953 (1970). No such claim is made in the in-

stant case.

Another commonly encountered situation has arisen

where the prosecuting attorney also represents or bears

12a

Appendia B—Trial Court’s Memorandum of Decision,

Denying Motions to Disqualify

some other close relationship to the victim of the crime

being prosecuted. See e.g., Ganger v. Peyton, 379 F.2d 709

(4th Cir. 1967); People v. Superior Court of Contra Costa

County, 19 Cal. 3d 255, 561 P.2d 1164, 137 Cal. Rptr. 476

(1977); People v. Jimenez, 187 Colo. 97, 528 P.2d 913

(1974) ; State v. Thomason, 353 So.2d 235 (La, 1977) ; State

v. Monk, 315 So.2d 727 (La. 1975); Sinclair v. State, 278

Md. 243, 363 A.2d 468 (1976); Commonwealth v. Tabor,

384 N.E.2d 190 (Mass. 1978); Garton v, State, 454 8.W.2d

522 (Mo. 1970); People v. Krstovich, 72 Misc. 2d 90, 338

N.Y.S. 2d 132 (1972); see also Hall v. State, 44 Ala. App.

406, 210 So.2d 852 (1968) ; People v. Battin, 73 Cal. App. 3d

635, —— P.2d ——, —— Cal. Rptr. —— (1978); State v.

Melerine, 236 La. 881, 109 So.2d 454 (1959); State v. Bos-

worth, 124 Vt. 3, 197 A.2d 477 (1963); Commonwealth v.

Dunlap, 233 Pa. Super. 38, 335 A.2d 364 (Super. Ct. 1975) ;

aff'd by an evenly divided court, 474 Pa. 155, 377 A.2d 975

(1977). Results in all of these cases have varied depending

upon the precise facts. Although these cases are perhaps

closer in terms of the ethical issues raised, these cases, too,

differ from the instant one in that the defendant is not pre-

sented with the opportunity to manipulate the prosecutor’s

handling of the case by the mere expediency of bringing a

lawsuit.

What emerges from the authority is that the decision to

disqualify rests in the discretion of the trial court, guided

by the facts and circumstances with which it is presented

and the ethical duties imposed upon the bar generally, see

Code of Professional Responsibility,? Practice Book 1-52

(1978), Canon 5, Ethical Consideration 5-1, 5-2, Disciplin-

* The ABA Code has been adopted by the judges of the

Court. State v. Jones, 41 Conn. L.J., No. 45, 5 (May 6, 1 ‘

13a

Appendia B—Trial Court’s Memorandum of Decision,

Denying Motions to Disqualify

ary Rule 5-10(A); Canon 9; and on the prosecution specif-

ically, see id., Ethical Consideration 7-13; 8-8; American

Bar Association Project on Minimum Standards for Crim-

inal Justice, Standards Relating to the Prosecution Func-

tion and the Defense Function, The Prosecution Function

$1.2 (Approved Draft 1971).

In deny.ng this motion, the court is influenced by three

factors. First, in State v. Tyler, 587 S.W.2d 918 (Mo, 1979),

the Supreme Court of Missouri was faced with a very sim-

ilar factual situation. In that case the defendant sought to

disqualify the prosecution on the grounds of bias and prej-

udice arising out of the defendant’s civil rights action

against the prosecutor. In upholding the trial court’s de-

nial of the motion, the Supreme Court stated:

“It was not shown that any of the litigation initiated

by the defendant would be affected by the outcome of

the instant case. While it is generally true that the

prosecutor’s personal animus against a defendant dis-

qualifies him from prosecuting . . . there is no such

hostility shown on the part of the prosecutor Harper.

In the case now before us the defendant could paralyze

the prosecution if he could secure the disqualification

of prosecutors and other law enforcement officials by

the simple expedient of filing of lawsuit against them.”

Id. at 930.2 Cf. State v. Lucas, 123 Ariz. 39, 597 P.2d 192

(1979) (county attorney’s office not disqualified from the

prosecution by its representation of the County Board of

Supervisors in civil rights action filed by defendant against

*To a degree, the facts of Tyler are distinguishable from the

but the considerations nevertheless

a expressed

léa

Appendia B—Trial Court’s Memorandum of Decision,

Denymg Motions to Disqualify

occurred in March of 1975. The federal prosecution was

in of 1976. The state prosecution

in May of 1977. The civil suit was not com-

menced until February of 1980, merely four days, accord-

Third, the defendants place much weight on a single

15a

Appendia B—Trial Court’s Memorandum of Decision,

Denying Motions to Disqualify

ing on the disposition of the civil case which has been

pending against me. I’ve been sued for a half a mil-

lion dollars and I think it’s a matter, if your Honor

please, that I’m entitled to an expeditious disposition

of that particular case. I don’t want to go on the

and

but I think that as far as I'm concerned, this is

cations and teaching at seminars and things of that

nature. I think it’s more important for me to get

tion. I put that to your Honor’s consideration.”

When I read in context, the prosecutor’s statements indi-

cate that the above is but one of many arguments raised

for expediting the criminal trial. As Browne indicated at

the same hearing, the prosecution was equally concerned

16a

Appenaia B—Trial Court’s Memorandum of Decision,

Denying Motions to Disqualify

mous, 36 Conn. Supp. 338, 340, 42 Conn. L. J. 16, 2 (October

14, 1980).

All of the foregoing applies equally to defendants Powell

and Moeller, both of whom pursue this motion. With re-

spect to defendant Moeller however a final and more obvi-

ous reason exists for denying this motion. Moeller is not

a party to the civil action and thus no real or apparent

conflict has been created thereby.

The motion is denied.

Eielson, J.

Filed October 30, 1980.

17e

Appendix C

Bench Warrant Affidavit

Stats or Con weEcrTicut )

) ss Fairfield, May 19, 1977

County oF )

Then and there by virtue of the annexed warrant I ar-

rested the body of the. above-named accused, read said

warrant in his hearing—or acquainted him with the sub-

stance thereof—and have presented him before proper

authority.

Sgt. N. Valerio

State Policeman

Sra Cor NEOCTICUT

baa ss Fairfield, May 3, 1977

Arrwavir or Sexoraxt Nicnotas VALERI0

That the affiant is a regular member of the Connecticut

State Police Department and has been for the past seven-

teen years. At the present time he is assigned to the Detec-

tive Division and in that capacity has actively participated

in the investigation of an explosion and fire which occurred

on the evening of March 1, 1975 at a location known as the

Sponge Rubber Products Company in Shelton, Connecticut

and has continually read and reviewed official reports of

both the Connecticut State Police Department and Federal

Bureau of Investigation concerning the cause and identity

of individuals believed to have been involved in that inci-

dent.

That the aforementioned investigation by the Connecticut

State Police and the Federal Bureau of Investigation has

18a

Appendia C—Bench Warrant Affidavit

established that on March 1, 1975, the Sponge Rubber Prod-

ucts Company, Canal Street, Shelton, Connecticut, a divi-

sion of Grand Sheet Metal, Inc., Spencerville, Ohio, was

engulfed by flames after an explosion and fire. Said explo-

sion and fire began at approximately 11:30 P.M. and

burned into the early morning hours of March 2, 1975, com-

pletely destroying the Plant #4 portion of said company.

That said explosion and fire was reported to the affiant and

other investigators by State Police Fire Investigator Ser-

geant Frederick Moffett and other witnesses who heard the

aforementioned explosion. That during the normal course

of this investigation, members of the Connecticut State

Police Department have reported to said affiant regarding

information received in said investigation and have re-

ported the information contained herein and the affiant has

also personally consulted with and reviewed reports of

members of the Federal Bureau of Investigation concerning

such incidents.

That on March 1, 1975, prior to the fire, at approximately

10:00 P.M., two security guards and a boilerman, the only

three employees at Plant #4 of the Sponge Rubber Prod-

ucts Company, at that time, were kidnapped at gunpoint by

three men wearing over-the-head ski masks. Handcuffs

were placed on their wrists and their eyes were taped. They

were led from the building at approximately 10:45 P.M.,

after having been held at said plant in the bound condition

for aprroximately 45 minutes, placed in the rear seat of one

of the guard’s vehicles and driven to the Town of Monroe,

Connecticut. The victims were left in the car after the per-

petrators removed the handcuffs from their wrists and

bound them with adhesive tape. The above information was

obtained from the three victims on March 2, 1975.

19a

Appendia C—Bench Warrant Affidavit

That on March 6, 1975, Sergeant Frederick Moffett, of

the State Police Public Safety Division, was interviewed

by Sergeant Robert Geoghan of the Connecticut State Po-

lice Department at Plant #4. Sergeant Moffett pointed out

an indentation burned into the concrete of the first floor,

leading past the entrance to tlie ladies room and to a point

in the press room where there was a crater in the floor

caused by an explosion. Sergeant Moffett stated that the

burned indentation was caused in his opinion, by detonating

cord, used as an accelerant to detonate explosives. Ser-

geant Moffett further stated that he determined this by an

alligator pattern left as the trail of the indentation across

a piece of steel.

That on March 7, 1975, Sergeant Robert O’Shaughnessy

of the Connecticut State Police Emergency Services Divi-

sion, reported that after clearing debris at the burned out

plant he found a trail left by the detonating cord indicating

that at least 5000 feet of detonating cord was used. Ser-

geant O’Shaughnessy further stated that the remains of

four paper fiber drums were found in the debris and said

drums had plastic linings inside. That a strong odor of

gasoline or paint thinner was detected at said fiber drums.

That the drums bore the markings of the Kodak Film Com-

pany indicating that they did not belong in the plant. That

the fiber drum remains were examined at the FBI Labora-

tory in Washington, D.C., where gasoline traces were found

in the plastic lining remains of said drums.

During the course of this investigation it was learned

that a person by the name of David Nobel Bubar, of New

York City and Memphis, Tenn., was a personal friend of

Charles Moeller, President of the Sponge Rubber Products

Company and the parent Grand Sheet Metal, Inc. Also at

20a

Appendia C—Bench Warrant Affidavit

one time David Bubar served on the board of directors for

the Grand Sheet Metal, Inc.

That during the latter part of October, 1976, and the

middle of November, 1976, interviews were conducted of

David Bubar by the affiant and members of the Federal

Bureau of Investigation. All of the following information

pertaining to what was said by David Bubar was obtained

from him during the above times.

Bubar stated during these interviews that during the

month of December, 1974, he was contacted by Charles

Moeller of Spencerville, Ohio, whom he had not spoken to

in several months. Bubar stated that several conversations

took place at the Sponge Rubber Plant in Shelton, Connec-

ticut, during this month and the month of January, 1975,

between he, Charles Moeller, and Lowell Powell, of Lima,

Ohio, who is Secretary-Treasurer of Ohio Decorative

tions, Bubar learned that Sponge Rubber was in financial

difficulty and that Moeller wanted the plant destroyed by

and wanted to know if Bubar knew anyone

who could do it. Bubar stated to Moeller that he didn’t

know anyone personally but might be able to find someone

for him.

Bubar stated that as a result of this request by Moeller,

to have someone destroy the plant, he contacted an individ-

ual named Michael Festa, a friend for many years, who

resided at that time in Hudson, Ohio. Bubar said that he

told Festa that Charles Moeller, whom Festa knew, was in

financial difficulty and asked if Festa knew anyone who

could destroy the plant to which Festa said he might be

able to help him after checking on it. After numerous con-

versations with Festa in regard to the matter, Festa told

|

2la

Appendiz C—Bench Warrant Affidavit

him (Bubar) that he believed he had someone who could

help him but it would cost some money.

Bubar said that he was subsequently contacted by

Michael Festa who told him that he made arrangements

for Bubar to meet some people at the Pittsburgh Airport

on February 2, 1975. Bubar stated he recalls contacting

Charles Moeller and Lowell Powell during the last week

of January, 1975, and telling both men that he needed

$10,000. to get the plant destroyed. Powell indicated that

they did not have the money in Shelton and that he didn’t

know where he was going to get it. Bubar stated that fur-

ther conversation was had with Lowell Powell and Charles

Moeller about the money needed to finance the destruction

of the plant and it was finally agreed that Powell and

Moeller would secure the funds and Moeller stated that

they did not have the money in Shelton and he would have

to go out of town to get it. Bubar advised Charles Moeller

that he needed the money prior to February 2, 1975 be-

cause of his arrangement to meet some people in Pitts-

burgh on that date in connection with the matter.

That on June 9, 1975, Lowell Powell made available to

members of the FBI, checks for account #097162 drawn

on the Exchange National Bank of Chicago, Chicago, Illi-

nois. This account was specifically the business account

for Ohio Decorative Products, Inc., 220 South Blizabeth

Street, Spencerville, Ohio. A review of these checks dis-

closed that check #5926, dated January 30, 1975, payable

to Metropolitan Bank for the amount of $10,000. and signed

by Lowell Powell as maker. This check was endorsed Ohio

Decorative Products, name illegible, Metropolitan Bank

of Lima, Ohio. An investigation at the Lima Bank in-

dicated that the above mentioned check was cashed at the

bank on January 30, 1975 by Charles Moeller.

Appendiaz C—Bench Warrant Affidavit

Bubar stated that on January 30, 1975, he was in con-

tact with Charles Moeller by phone and Moeller advised

that he had ten green pillows which would be delivered to

him at the McAlpine Hotel in New York, where Bubar

was residing, the following day by Lowell Powell. Bubar

indicated that the term “green pillows” was agreed upon

by the same parties as the code for the words money or

dollars. Bubar further stated that sometime in January,

1975, after it was agreed upon to destroy the plant, he

recalled a conversation that hr ad with Charles Moeller

at which time Lowell Powell was present and it was

agreed that in connection with their planning to destroy

the plant they would use as a subterfuge the water treat-

ment process, of which Bubar had spoken to Moeller prior

to that date. It was further agreed that in order to make

the necessary payments to people to destroy the plant, they

would use company checks payable to Southern Supply,

Bubar’s Company, and allege that the checks were for the

water treatment process. Bubar said that the Southern

Supply Company was his personal company and did not

do any work for any of Charles Moeller’s companies and

that Southern Supply never before had received any

checks from any of Moeller’s companies. Bubar stated the

following cash payment from Charles Moeller was the only

cash payment made with the other payments being made

by check.

Bubar said that on January 31, 1975, while at the Mc-

Alpine Hotel, Lowell Powell arrived at his apartment with

some pillows and he and Powell went into his bedroom

where Powell removed a shoe box from among the pillows

and handed it to Bubar. Bubar stated that the box con-

tained $10,000. cash money. Bubar said that a friend of

his named Cayse Wilson was present in his apartment

23a

Appendix C—Bench Warrant Affidavit

when Lowell Powell appeared with the pillows. Bubar

said that he placed the money in his safe deposit box, #27,

at the McAlpine.

On March 10, 1975, members of the FBI interviewed

Cayse Wilson at his office in Atlanta, Georgia, and he

stated that he was in David Bubar’s apartment in the

latter part of January and the early part of February,

1975, and that during that time an unidentified male came

to the apartment with some pillows and this man and

Bubar went into the bedroom where they remained until

he, Wilson, left.

William Povalaitis, of Derby, Connecticut, a driver for

Sponge Rubber Products, stated that he recalls bringing

Lowell Powell to the McAlpine Hotel from the plant in

Shelton sometime during the early part of 1975. Povalaitis

said that several pillows were taken from the plant with

them to the McAlpine Hotel where they were left. He said

that after bringing Powell and the pillows to the McAlpine

Hotel, he brought Powell to Tweed New Haven Airport.

That a check of the flight records of John Gardner, 135

Sereff Drive, Lima, Ohio, pilot for Ohio Decorative Prod-

ucts, revealed that on January 31, 1975, he flew from Allen

County, Ohio; to New Haven, Connecticut, and returned

to Allen County with a passenger, Lowell Powell.

Bubar said that after the delivery of the $10,000. on

January 31, 1975, he telephoned Michael Festa and made

arrangements to meet Festa at the Pittsburgh Airport

about 6:00 P.M. on February 2, 1975. Bubar said he flew

to Pittsburgh, Penn. on February 2, 1975, where he met

Michael Festa, a person identified as Jack Mazza and an-

other person who was later identified as Jack Mazza’s

brother. Bubar said that he removed $5,000. cash from his

safety deposit box before he left New York and took it

24a

Appendia C—Bench Warrant Affidavit

with him to Pittsburgh. Bubar said that while at the Pitts-

burgh Airport he, Festa, and the two Mazzas went into a

restaurant and while there he and Festa went into a mens

room and he gave Festa two envelopes each with $2,500.

in it. He said that he suggested to Festa that he hold onto

one of the envelopes and give the other to the person he

had to deliver it to. Bubar said that he later saw Festa

give one of the envelopes to Jack Mazza. Just prior to

leaving the restaurant Jack Mazza told Bubar that some-

one would be in touch with him in New York.

Flight verifications by members of the FBI showed that

David Bubar took a flight from New York, via Allegheny

Airlines, on February 2, 1975, to Pittsburgh, Penn., and

returned to New York on the same date.

Bubar said that subsequent to this meeting in Pitts-

burgh, he contacted Charles Moeller and told him what

had transpired between himself, the Mazzas and Festa.

Bubar said that during the conversation with Moeller,

Moeller said that the plant had to be destroyed as soon

as possible as he was in bad financial condition.

Bubar said that during the latter part of the week of

February 2nd to 8th, he received a phone call from a man

who identified himself as Mike Jamisor. Jamison indicated

that he would be coming to New York in the afternoon and

that Bubar should meet him at the airport. Jamison gave

a description of himself to Bubar and Bubar did the same

to Jamison. Bubar said that he made arrangements for

the company driver to pick he and Jamison up at the air-

port. Bubar said that he did meet Jamison, whom he later

identified as Peter Betres (who resided in Butler, Penn.),

and they were brought to the Shelton Plant of Sponge

Rubber in a company car driven by a company employee.

Bubar said that the reason for the trip was for Betres to

25a

Appendix C—Bench Warrant Affidavit

look over the plant. Bubar said that while at the plant

he told Betres that the owner wanted to make sure the

smoke stack and power plant were left undamaged and

all he wanted was one building destroyed. Bubar said that

the owner didn’t want anyone hurt in the destruction of the

plant. Bubar said that he and Betres were then brought

to New York where he was taken to the McAlpine Hotel

and he told the company driver to take Betres wherever

he wanted to go.

William Povalaitis said that he did pick up Bubar and

another person at Allegheny Terminal at LaGuardia Air-

port in New York on one occasion and he fixed the time

as about 3:30 P.M. He said that he drove the two men

from the airport to the Sponge Rubber Plant arriving

there at about 5:00 P.M. and both Bubar and the other

person went into the factory and stayed there for two and

one half to three hours. Povalaitis said he then drove

Bubar and this other man to New York and left Bubar

at the McAlpine Hotel, and then was instructed to take

the other unidentified person to wherever he wanted to go.

Povalaitis said that this person wanted to be taken to

Long Island via the Long Island Expressway. Povalaitis

said that while on the Expressway he was instructed to

stop at a pay phone where the passenger made a brief

phone call and then instructed Povalaitis to take him to

Exit 50. Povalaitis said that he complied and dropped

this person off at a gas station and returned alone to

Connecticut. Povalaitis later identified this unknown per-

son as Peter Betres.

26a

Appendix C—Bench Warrant Affidavit

told him that the man wanted $20,000. Moeller told him

that it would be tough to get the money but he would get

a check and deliver it to him on February 10, 1975. Bubar

also said that on February 10, 1975, a Monday, he went

to LaGuardia Airport sometime in the morning and met

Charles Moeller and recalled Moeller giving him an Ohio

Decorative check in the amount of $20,000. payable to

Southern Supply. Bubar stated that he deposited the

check into the Southern Supply account and withdrew

$10,000. by writing out a check for this amount.

A review of account #097162 of Ohio Decorative Prod-

ucts revealed that check number 6031, dated February 10,

1975, was made payable to Southern Supply for the amount

of $20,000. This check was deposited to account #007-

047029, The Chemical Bank, New York Trust Company,

New York. A review of this bank statement for Southern

Supply by members of the Federal Bureau of Investiga-

tion revealed that on February 10, 1975 a deposit of

$20,000. was made. It further indicates that on February

11, 1975 check number 201 was written out “Cash David

Bubar” and endorsed David Bubar. This check was for

the amount of $10,000.

Bubar further reported that on February 11, 1975 he

was with Peter Betres at an airport in New York and

while at the airport they ate at a restaurant and he went

into the mens room with Betres and at that time he gave

Betres $10,000. cash and Betres said that he needed more

money. Bubar said that he then wrote out two $3,000.

checks and gave them to Betres. The checks were drawn

on Southern Supply with payee left blank on request of

Betres.

A further review of the Southern Supply account re-

vealed check number 200 for the amount of $3,000. from

David N. Bubar to Peter Betres. This check was endorsed

Appendix C—Bench Warrant Affidavit

by Peter Betres and a stamp showed it was cleared by

the Chemical Bank on February 12, 1975. The records

also show that check number 201 in the amount of $3,000.

written by David Bubar to Peter Betres and was endorsed

by Peter Betres. A stamp on the check showed that it

was cleared by the Chemical Bank on February 14, 1975.

Bubar further stated to investigating officials that after

the visit to the plant by Betres other visits were made to

the Sponge Rubber Plant by people other than Betres who

were involved in the destruction. These took place during

the month of February, 1975.

Bubar said that on Friday, February 28, 1975, he went

to the Sponge Rubber Plant in Shelton with Peter Betres.

Bubar said he initially left Betres at a Howard Johnson

Restaurant in Derby, Connecticut, and went to the plant

with Lowell Powell, where he received a check for $15,000.

which was to be used for a payment for the destruction

of the plant. Bubar further stated that on the 28th while

at the plant he called Charles Moeller at Horse Cave,

Kentucky and informed him that the plant was going to

be destroyed the following day. Bubar said that he also

told Moeller that he had given the man up to that time

a total of $30,000. and that the man wanted an additional

$30,000. Moeller told Bubar that he didn’t have $30,000.

but would give him $15,000. that date and to tell the man

he would give an additional $15,000. after the plant was

destroyed. After this conversation with Bubar, Moeller

asked to speak to Lowell Powell and Bubar said that

Powell got on the phone. Bubar said that Powell was

present during the entire conversation he had with Moeller.

Bubar said that after Powell finished talking to Moeller

he and Bubar went into another office where Powell told

him that he would write out a check for $15,000. but would

need an invoice and it was agreed that Bubar would type

28a

Appendia C—Bench Warrant Affidavit

an invoice for $15,000. and list the purpose for the pay-

ment as “Water Treatment”. Bubar said that he went to

the office of Jeanette Kordiak and typed out an invoice

for $15,000. and gave it to Lowell Powell who in turn

gave him a check for $15,000. drawn on the Sponge Rubber

Company made payable to Southern Supply.

Jeanette Kordiak, Moeller’s Secretary, stated that on

Friday, February 28, 1975 she saw Bubar and Powell at

the plant at 1:00 P.M. at which time they entered Moeller’s

office and closed the door. She said that in about fifteen to

thirty minutes Bubar came out of the office and wanted

to use her typewriter. She said that she offered to type

that the check was to pay for work on the water

purification system. Fiore said that the check was issued.

Bubar said that he went to New York during the after-

noon of February 28, 1975, and cashed the check, then re-

turned to Connecticut where he picked up Betres near the

Howard Johnson Restaurant in Derby and they went to

the Sponge Rubber Plant.

Bubar stated that on Saturday, March 1, 1975, he brought

three men into the Sponge Rubber Plant who were to set

the explosives within the plant. Bubar said that he also

plosives men, he left Shelton and went to New York.

Bubar said that he drove the company car to LaGuardia

Airport in New York where he made a phone call to the

residence of Michael Festa and learned he was not at home.

Bubar stated that during the course of the arrangements

to have the plant destroyed at Shelton, Connecticut, he

made numerous phone calls to Peter Betres, Mike Festa

and others, and charged these calls to the Custom Beverage

account in Ohio.

John Shaw of Harrisburg, Pennsylvania, in a confession

to members of the Federal Bureau of Investigation, and the

Connecticut State Police Department, stated that he par-

telephone survey. Shaw also said that because of the in-

:

|

:

Fs

;

;

:

F

i

F

:

7

BF

et

:

EF

:

i

1

it

F

i

3la

Appendiz C—Bench Warrant Affidavit

On March 12, 1975, Michael R. Festa of Hudson, Ohio,

who is president of Custom Beverage, was interviewed by

members of the FBI and at that time he admitted that he

met Charles Moeller through David Bubar and he met with

Moeller in order to interest him in investing a sum of

money into Custom Beverage.

Festa said on March 2, 1975, he was at his other apart-

ment in New York and at about 3:00 P.M. David Bubar ap-

peared at the apartment. Festa said that Bubar stayed

there for about three hours. Festa said that Bubar made

only a passing comment regarding an explosion and fire

which took place the night before at the Sponge Rubber

Plant. Festa said that Bubar made no mention of the fact

that he had been at Sponge Rubber on March 1, 1975, and

made no mention of the fact that he was conducting a water

treatment survey.

On December 15, 1975, Michael Festa testified under oath

in Federa] District Court, New Haven, Connecticut, during

the trial of several people accused of Federal Violations in

this same bombing of the Sponge Rubber Plant. Mr. Festa

on that date was asked “Did you, during the month of Feb-

ruary of 1975, have occasion to go to Pittsburgh?” to which

Festa answered, “No.” He was then asked, “You're cer-

tain?” to which he replied, “I might have. What date did

you say?” to which he was told, “During the month of Feb-

ruary of 1975.” Festa then answered, “I am not sure.” He

was then asked, “You're not sure you went, and you're not

sure you didn’t go?” to which Festa answered, “That is

right.”

Festa was later asked, “Do you recall calling Reverend

Bubar on February 1, 1975, from your home to the Emer-

gency Spiritualism Society at New York City, which is at

the McAlpine Hotel?” Festa replied: “It’s quite possible.

32a

Appendia C—Bench Warrant Affidavit

I am not sure.” He was further asked, “Do you recall ar-

ranging with him to meet him in Pittsburgh on February

2, 19757” Festa answered, “No way.”

That on March 16, 1977 Michael Festa was again inter-

viewed by agents of the Federal Bureau of Investigation in

Sarasota, Florida and at that time Michael Festa did admit

that he had in fact met with David Bubar at the Pitts-

burgh Airport on February 2, 1975 and that he had in fact

received the sum of $2,000 cash money from David Bubar

on that occasion, but that that payment was actually a par-

tial payment on a pre-existing $14,000 debt owed to him by

David Bubar. Festa further admitted that John Mazza and

Frank Mazza were present at the Pittsburgh Airport at

said time.

That an examination of long distance telephone call toll

charges charged to the account of Michael Festa personally

or his telephone credit card or his business known as Cus-

tom Beverage reflect long distance toll cails to the residence

of David Bubar in New York, on January 30, 1975, January

—— Le ee

Farther, an examination of the long distance telephone

call toll charges charged to the account of Michael Festa or

his credit card or his business reflect long distance toll

calls to the telephone number of John Mazza in Pitts-

(e-6pe asa te ream ase rele

Sznczant NicHoias VALerio

Subscribed and sworn to before me this 3rd day of May,

1977.

Notary Public

Appendix D

Excerpt of Transcript, May 5, 1980

SUPERIOR COURT

Faterietp County at BrivcEport

May 5, 1980

No. 25, 131

Micuag. Festa

Before: Howonastz Roserr J. CatLanan,

Judge

34a

Appendix D—Excerpt of Transcript, May 5, 1980

APPEARANCES:

For the State:

Donald A. Browne, Esq.

Chief State’s Attorney

1061 Main Street

Bridgeport, Connecticut

For the Defendant Moeller:

Koskoff, Koskoff & Bieder, Esqs.

1241 Main Street

Bridgeport, Connecticut

By: Theodore I. Koskoff, Esq.

For the Defendant Festa:

Zeldes, Needle & Cooper, Esqs.

333 State Street

Bridgeport, Connecticut

By: Jacob D. Zeldes, Esq.

Roberta Olson

Court Reporter

Mr. Browne: If your Honor please, assigned for a hear-

ing this morning is a motion for a continuance in the mat-

ter of docket number 25,131 entitled Charles Moeller.

I should indicate to your Honor I was handed this morn-

ing by Attorney Zeldes a motion in a similar matter that’s

25,129, Michael Festa. It is a motion entitled Motion By

Defendant Festa For Continuance and Mr. Zeldes is here

this morning.

I should also indicate to your Honor that it’s been called

ty my attention that in mv mail, my personal mail delivered

to my office this morning, I received a motion in a com-

35a

Appendix D—Excerpt of Transcript, May 5, 1980

panion matter of docket number 25,130, State of Connec-

ticut vs. Lowell Powell. This is entitled Defendant’s Mo-

tion For Continuance. This has been signed by John A.

Burgess, Esquire, of the State of Vermont who has been

granted permission to represent Mr. Powell in this matter.

It occurs to me initially that these matters probably

should all be heard at the same time. Mr. Burgess has now

filed this motion on behalf of Mr. Powell. Mr. Burgess is,

obviously, not here this morning, so that I think that what-

ever, I assume we ought to get this down some day where

Mr. Burgess can come in and argue his motion as well.

Mr. Koskoff: I talked to Mr. Burgess this morning. He

is on trial in Vermont. He said to me that he would stand

on the papers submitted. I believe your Honor has a copy

of it. It’s a motion to which he says he couldn’t add any-

thing to the motion.

The Court: Well, what papers has he submitted?

Mr. Koskoff: The same kind of motion. Do you have a

copy in your file?

The Court: What’s that you have there?

Mr. Browne: I have a copy of a motion entitled The

Defendant’s Motion For A Continuance, the original of

which I am working on the assumption that was filed by

the clerk.

The Clerk: Yes.

The Court: You indicate to me, Mr. Koskoff, that you’ve

talked to Mr. Burgess and that he wil’ stand on his motion

dated April 30th wherein he asks for a date of August ist;

is that right?

Mr. Koskoff: Yes, your Honor.

The Court: All right.

Mr. Koskoff: We also have filed similar motiuns, all

three codefendants.

36a

Appendix D—Ezcerpt of Transcript, May 5, 1980

The Court: All right. I will proceed with the motion

today on the representation by Mr. Koskoff as an officer of

the court. It has been scheduled for June 17th. I ask you

gentlemen, what do you have in mind?

Mr. Koskoff: Your Honor, our motion and Mr. Bur-

gess’s motion calls for August 4th for the reasons stated

in both his motion and mine.

The Court: Mr. Zeldes, it would be too much to expect

that you would ask for August 4th, too; right?

Mr. Zeldes: Yes, your Honor, and if I may just give a

little bit of a history of the background, I'll try to explain

why I think that’s inappropriate.

Apparently, there are three defendants charged with con-

spiracy in this matter. The State has never made a motion

to consolidate the cases to my knowledge. At a time when

I was not present, as our papers say, there were discus-

sions with Mr. Burgess and Mr. Koskoff and Mr. Browne

and I gather, your Honor, the June 17th ruling was made

which people seem to assume also applied to the Festa case,

although we had no knowledge. I’m not absolutely certain

if the same type of amendments to the information were

filed in that case at the same time they were in ours, but at

any rate, it was not until March 19th that the State filed

their amended information. We will file very shortly our

motions directed to the amended information in compliance

As for the reasons I object to the August 4th date, your

Honor, I’ve set those out in the moving papers and I think

I should perhaps also say that August is generally the date

that is associated with summer plans and things and courts

are usually working at a less than full head of steam during

that period of time. It seems to me that after Labor Day

when we get back into the regular business of the courts, it

37a

Appendix D—Excerpt of Transcript, May 5, 1980

would be more appropriate to have the case scheduled at

that time. I don’t know what Mr. Browne’s reasons are.

He did indicate to me the other day he was going to present

them on the record today for thinking that the June 17th

date or even the August date is a significant time to start,

but it just seems to me from everything that I have re-

counted including everything that’s in our moving papers,

that September 2nd, the day after Labor Day when the

courts open in the fall would be an appropriate time to

commence the case. Everyone would then have time to get

their dockets lined up and we could proceed at that time.

The Court: Of course, August 4th, you have a vacation

problem. Mr. Koskoff, how do you fee] about September

2nd?

Mr. Koskoff: As long as it’s beyond August 4th or later.

I don’t think a matter of a couple of weeks makes that much

difference. We would agree to September 2nd.

The Court: How about Mr. Burgess?

Mr. Koskoff: He would agree.

The Court: That’s no problem as far as he’s concerned?

Mr. Koskoff: No. I’ve discussed that with him, too.

The Court: All right. Now, Mr. Browne, let me hear

you.

Mr. Browne: I want to be heard as being vigorously

opposed to September 2nd.

The Court: I assumed you would.

Mr. Browne: In fact, I would like the record to show I

am as vigorously opposed to June 18th. Your Honor has

heard lengthy arguments and your Honor has decided on

June 17th. ;

For the purpose of this motion I would like to cite some

dates in connection with Mr. Moeller’s motion for continu-

ance which is the motion that was assigned for a hearing

this morning.

38a

Appendiz D—Excerpt of Transcript, May 5, 1980

Your Honor will note from the court file, and [’'m sure

your Honor has that court file in front of you, that Mr.

Moeller entered a plea of not guilty on April 14th of 1977

or some three years and a month ago. On May 25th of

1977, Mr. Moeller filed a motion to dismiss the proceeding

on an allegation of a claim of double jeopardy. On July

7th of 1977, counsel filed a memorandum in support of

his motion to dismiss. On August 24th of 1977, the State

filed a memorandum in opposition to his motion to dis-

miss. On December 2ist of 1977, the judge denied his

motion to dismiss with a written memorandum. On June

6th of 1978, an appeal was filed with the Connecti ut

Supreme Court relative to the tria] court’s denial of the

motion to dismiss. On June 19th of 1979, the Connecticut

Supreme Court released a decision affirming the decision

$F SO Ss Snare eee Sane me eee Oo

dismiss. On September 14th of 1979, Mr. Moeller’s coun

sel filed an application tr anatiiien Soe enbtaieds with

the United States Supreme Court for a review of the deci-

sion of the Connecticut Supreme Court and on November

13th of 1979, the application for certiorari was denied by

the Connecticut Supreme Court.

So, this case has been pending initially over three years

waiting for a trial and the delay of the case from being

tried, obviously, has been a result of counsel exercising

then applying to the United States Supreme Court.

The State is put in a very precarious position because

of the long delay in that it’s becoming more and more

difficult for us to get our witnesses together. Already I

can indicate to your Honor at least one individual

would be testifying as a witness for the State

in the interim and the longer this is delayed,

39a

Appendix D—Excerpt of Transcript, May 5, 1980

difficult it is going to be for the State to accumulate its

witnesses and the more difficult it’s going to be on those

witnesses to recollect fairly and accurately incidents which

have occurred now probably over five years ago. The al-

leged incident occurred, I can inform your Honor, back

in the beginning of 1975. So, it’s been over five years since

this alleged incident. It makes it al] the more difficult for

the State to have witnesses who are able to come in here

and testify with a good recollection of what has occurred.

Further, I should indicate to your Honor that in my

own particular situation I have been sued by one of these

defendaats and it’s been alleged by one of those defen-

dants that I have abused my office and have issued a

process against him from malicious purposes and whatnot

and, if your Honor please, I’m entitled to some considera-

tion as far as getting this matter rer~lved as well. I think

the disposition of this criminal case is going to have a

very heavy bearing on the disposition of the civil case

which has been pending against me. I’ve been sued for a

half a million dollars and I think it’s a matter, if your

Honor please, that I’m entitled to an expeditious disposi-

tion of that particular case. I don’t want to go on the

record and make a personal argument to your Honor, but

I think that as far as I’m concerned, this is weightier than

the request for a continuance for vacations and teaching

at seminars and things of that nature. I think it’s more

important for me to get that civil matter resolved than

it is to have counsel go and instruct seminars somewhere

or take a vacation. I put that to your Honor’s considera-

tion.

Farther, in that motion, in that civil case that has been

filed against me, counsel for one of the defendants here

har made a request for production and for interrogatories

40a

Appendiz D—Excerpt of Transcript, May 5, 1980

addressed to myself in which they are, in my opinion, I

submit to your Honor a copy of the motion, requesting

matters that I think are privileged to the extent that they

have a heavy bearing upon the preparation of the State’s

case for trial here and I don’t think that I should be com-

pelled to delay the criminal prosecution while they go

through the civil case and require me to submit to them

items which I think are privileged matters in connection

with the prosecution here.

This case has been pending for five years. Your Honor

assigned a trial date of June 17th. The State is ready to

proceed. We will never be any more ready than we are

at the present time. I don’t think the reasons submitted

for a continuance are adequate reasons to justify a con-

tinuance in the matter and I want to state very em-

phatically, if I possibly can, that I feel that any continu-

ance anywhere near the date of September is going to

put the State in very heavy jeopardy. I’m in a situation

where I have reason to believe at least one or more State’s

witneszes will not be available to the State after the months

of July and August and I want to be recorded as em-

phatically as I can for the reasons that I have stated as

saying this case should start as scheduled or as shortly

thereafter as possible and in no event should this case be

continued to September. That’s my position.

The Court: Thank you.

Mr. Koskoff: Your Honor, may I respond just briefly?

The Court: Yes. Certainly.

Mr. Koskoff: I don’t know just how to say this. It’s

clear to me that Mr. Browne feels personally involved.

If he feels that personally involved, he’s looking for jus-

tification for his actions from the results of this case, he

ought to disqualify himself because he has expressed to

you a personal motivation.

4la

Appendix D—Excerpt of Transcript, May 5, 1980

The Court: I think Mr. Browne is quite capable of

making that decision, Mr. Koskoff, without help from either

you or L.

Mr. Koskoff: I’m not sure it’s a matter of the defen-

dants as well, in any event, the delay, I should call to the

Court’s attention, that Mr. Moeller, who was indicted in

the Federal Court and tried and found not guilty, was not

arrested in the State case until some almost three years,

I think, after ’77 was the— He was arrested— What was

the date?

Mr. Browne: He was arraigned on April 4th of 1977.

So, I would assume he was arrested within days.

Mr. Koskoff: So, you know, it is true what Mr. Browne

said about the fact that we did take these steps which any

lawyer would have taken.

Mr. Browne: I’m not being critical of the motions or

the fact that the appeals were taken as Mr. Koskoff says.

Those were legitimate pleadings and I’m just trying to

explain to your Honor why it has taken this length of time.

The Court: I understand.

Mr. Browne: Again, my persona! situation is not, I’m

not asking your Honor to really give that any considera-

tion. I’m just trying to tell your Honor my position. The

incident occurred five years ago. The case has been pend-

ing here for over three years. There are relevant reasons

why this case should be expeditiously tried, particularly,

the ability of the State to get its witnesses here and I

think that it is a more over-weighing factor and superior

to the fact of vacations or teaching or participating in

seminars. That’s my opinion. I’m not going to take any

vacation this year. I’ve got my duty here to put this on

and that’s what I’m intending to do.