Opposition — Bonanno v. United States

, Josern C. BONANNO, SR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR T HE UNITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

D. Lowey JENSEN

Assistant Attorney General

MARGARET I. MILLER

Attorney

a Washington, D.C. 20530

A (202) 633-2217

. ————

i “eg BS :

be, aS a ‘ ;

a. oe “ “ Ss t

PTS aN hp ot Wie Bette Oa aes

QUESTIONS PRESENTED

1. Whether a defendant may be convicted of conspiracy

when the overt acts proved at trial were not enumerated in

the indictment.

2. Whether out-of-court utterances made by petitioner’s

co-conspirator were improperly introduced against peti-

tioner.

“7

TABLE OF CONTENTS

Page

| PPT TT TTT TTTTT TTT TTT ye l

PPT TTT TTT TTT TTT TTT el l

DET 6606060scoesessessecsesoceccecécoccece l

PTT TTTTT TITITT TTT TTT TTT Te 5

SEED ceccccccccesceccccccocesesocecccecee 10

TABLE OF AUTHORITIES

Cases:

Braverman v. United States, 317 U.S.49 ....... 7

Brulay v. United States, 383 F.2d 345,

cert. denied, 389 U.S. 986 ... 2... cc ccc ce eeees 5

Culp v. United States, 131 F.2d 93 ..........++. 5

Dunn v. United States, 442 U.S. 100 ......... 6,8

Tannelli vy. United States, 420 U.S.770 ......... 7

Napolitano v. United States,

PE OU SED cvcceccccccctocececoccccoccece 5

United States v. Adamo, 534 F.2d 31,

cert. denied, 429 U.S. 841 2.2... ccc ccc eee eees 7

United States v. Andreen, 628 F.2d 1236 ....... 7

United States v. Armore, 363 F.2d 385 ......... 5

United States v. Cohen, 518 F.2d 727,

cert. denied, 423 U.S. 926 .......... ccc eeees 7

United States v. Donahue, 539 F.2d 1131 ....... 7

United States v. Harris, 542 F.2d 1283,

cert. denied, 430 U.S. 934 2.2.0... ccc ccc w wees 7

Page

Cases—Continued:

United States v. Johnson, 575 F.2d 1347,

cert. denied, 440 U.S. 907 ... 2... 6. cc eee eeees 7

United States v. Parker, 586 F.2d 1253 ......... 7

United States v. Quesada, 512 F.2d 1043,

cert. denied, 423 U.S. 946 2.2.0... ccc ceceeeees 7

Worthington v. United States, | F.2d 154,

cert. denied, 266 U.S. 626 ...... 6... ceeceeees 5

Constitution, statutes and rule:

United States Constitution, First

Amendment .... 2... c cc ccccccceeceeeeees 4,8

PGE. BOE Kedvccsccccccesccccccccccsccece 2

0B UBC. BERD cccccccccccccccccccccccccess 2,6

BD WBS. FIRB cccccccccccsscccccccccccvescce 3

Fed. R. Evid.:

PEIN cccbcccccdccccccccccccccesses 9

Rule 801(d)(2) . «0. cece eee eee e ee eeeeees 8

Rule 801(d)(2KE) .. «2... cece cece eee eeeee 8

An the Supreme Court of the United States

OctToser Term, 1982

No. 82-877

Joseru C. BONANNO, SR., PETITIONER

A

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR T HE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. D1-D24) is

reported at 685 F.2d 447 (table). The decision of the district

court (Pet. App. C1-C25) is not reported.

JURISDICTION

The judgment of the court of appeals (Pet. App. D16) was

entered on July 30, 1982. A petition for rehearing (Pet. App.

E1-E2) was denied on October 15, 1982. The petition for a

writ of certiorari was filed on November 26, 1982. The

jurisdiction of this Court is invoked under 28 U.S.C.

12541).

STATEMENT

1. Following a bench trial in the United States District

Court for the Northern District of California, petitioner

was convicted of conspiring to obstruct justice, in violation

2

of 18 U.S.C. 371 (Count 1).' The court sentenced him toa

term of five years’ imprisonment and a $10,000 fine (C.R.

501).?

The evidence at trial established that petitioner conspired

to influence witnesses to withhold evidence and give false

testimony before a federal grand jury in San Francisco that

was investigating his sons, Salvatore Bonanno and Joseph

Bonanno, Jr. The investigation was begun in late June 1978

after the grand jury received information indicating that the

Bonanno brothers were using their businesses to “launder”

money and commit fraud (R.T. 12-13).

In September 1978, the FBI recovered certain handwrit-

ten notes from petitioner's trash. Those notes, which were

written by petitioner, contained references to the grand jury

investigation, grand jury witnesses and potential witnesses,

the records of some of the companies under investigation,

and answers that certain grand jury witnesses could or

‘Petitioner was tried with Jack DiFilippi, who was convicted of the

conspiracy and three counts of making false statements before a grand

jury, in violation of 18 U.S.C. 1623 (Counts 2, 4, 5) (Pet. App. Al-A2).

The court acquitted DiFilippi of two counts (Counts 3, 7) charging

violations of 18 U.S.C. 1623 and dismissed another (Count 6) as dupli-

cative of Count 5 (C.R. 132, 1-2, 9-10; Pet. App. Al-A2).

™C.R.” refers to the excerpt of record filed in the court of appeals.

“R.T.” refers to the trial transcript.

*Anthony Insanas testified that he was in partnership with Salvatore

Bonanno in Los Gatos Construction Company and that, with the

knowledge and blessing of Salvatore Bonanno, he defrauded elderly

homeowners on home remodeling and repair contracts and split the

fraudulently obtained money with Salvatore Bonanno (17 R.T. 279-

303, 20 R.T. 350-395; 21 R.T. 398-422; 22 R.T. 430-477).

3

should give before the grand jury.‘ In October, the govern-

ment obtained a court order pursuant to 18 U.S.C. 2516

authorizing the interception of the conversations of peti-

tioner and others over petitioner's home telephone. The

government then intercepted several phone conversations

between petitioner and co-defendant Jack DiFilippi and

one conversation between petitioner and Salvatore Bonanno.

These conversations were introduced at trial, together with

petitioner's handwritten notes and consensually recorded

conversations between petitioner and Louis Peters, a grand

jury witness.

In June 1977, Peters told law enforcement officials that

Salvatore Bonanno had offered to purchase his Cadillac

dealership (29 R.T. 1323-1329). At the request of the FBI,

Peters agreed to go along with the proposed deal and to

cooperate with the FBI in its investigation of Salvatore

Bonanno (29 R.T. 1329-1330). During the following

months, Peters met DiFilippi, who said that he would be

handling the arrangements to purchase Peters’ business

because Salvatore Bonanno was “tied up” (29 R.T. 1331-

1334). Peters had many discussions with DiFilippi about

the financing of that purchase and, later, about another

business deal with Salvatore Bonanno (29 R.T. 1334-1392).

‘These were recovered during a “trash cover™ surveillance of peti-

tioner Bonanno in Tucson, Arizona, which agents of the Arizona Drug

Control District had begun in December 1975. The agents collected

petitioner's trash on mornings when it was regularly set out for collec-

tion by city sanitation workers (except on days when it was known that

he was not in town) (1 R.T. 60). The trash was taken from cans that had

been placed for collection approximately one foot from the curb on

what petitioner stipulated was a public easement (1 R.T. 60; 2 R.T.

23-24; Pretrial Ex. No. 1). The trash itself was usually in open grocery

bags inside the cans, but on some occasions it was set beside the cans (2

R.T. 18-19, 47). After collecting the trash, the agents removed the notes

or parts of notes from the rest of the trash; often the notes were torn, but

sometimes they were not (2 R.T. 22-23).

4

By early February 1979, it had become apparent to Peters

and the FBI that the business deals proposed by Salvatore

Bonanno and DiFilippi were not nearing culmination. It

was decided that Peters’ part in the investigation should be

ended in such a way as to avoid disclosure of his coopera-

tion with the FBI. Accordingly, it was decided that Peters

should testify before the grand jury, and on February 15,

1979, he was served with a grand jury subpoena (29 R.T.

1392-1393). Peters then telephoned petitioner and told him

of the subpoena. He also informed petitioner that he had

sold Salvatore Bonanno’s Cadillac and had given him the

proceeds in cash. Petitioner then told Peters not to reveal

that sale to the grand jury and to hide any records of it (Ex.

105-2, at 2-3, 7-11, 21-26).5 Petitioner also instructed Peters

to deny that they had engaged in the conversation during

which these matters were discussed (Ex. 105-2, at 17-19, 26).

2. On appeal, petitioner contended that the government

had violated the First Amendment in searching and seizing

the contents of his trash can. On its own motion, the court

of appeals remanded the case to the district court to make

“specific findings as to the basis for the court's judgment,”

and, in particular, “as to whether there was sufficient evi-

dence, beyond a reasonable doubt,” apart from the evidence

taken from petitioner’s trash can (Pet. App. B1-B2). On

remand, the district court found that the remaining evi-

dence was sufficient beyond a reasonable doubt and relied

upon the evidence of petitioner’s attempt to influence Peters

“Ex.” refers to the government's exhibits at trial. It was apparent

from the evidence at trial that petitioner Bonanno was concerned about

what conclusions the grand jury would draw from certain of his son's

financial dealings—particularly those involving cash. Bonanno was

aware that his son's financial dealings were a major subject of inquiry

during earlier proceedings in 1978 to revoke his son's probation (27

R.T. 1117-1120, 1122-1123). The Cadillac in this case was nominally

owned by Salvatore Bonanno's business.

5

to testify falsely regarding the sale of Salvatore Bonanno’s

Cadillac (Pet. App. C1-C25). The court of appeals then

affirmed petitioner's conviction without reaching the issue

of the legality of the trash can searches (Pet. App. D1-D24).

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or of any other

court of appeals. Accordingly, further review by this Court

is not warranted.

1. Petitioner contends (Pet. 18-25) that his conspiracy

conviction must be reversed because his attempt to influ-

ence Peters to testify falsely was not listed in the indictment

as an overt act. This argument is invalid. It has long been

established that a conspiracy conviction may rest upon

proof of an overt act not charged in the indictment, unless

the omission affects the defendant's substantial rights. See,

¢.g., Brulay v. United States, 383 F.2d 345 (9th Cir.), cert.

denied, 389 U.S. 986 (1967); United States v. Armone, 363

F.2d 385 (2d Cir. 1966); Napolitano v. United States, 340

F.2d 313 (1st Cir. 1965); Culp v. United States, 131 F.2d 93

(8th Cir. 1942); Worthington v. United States, | F.2d 154

(7th Cir.), cert. denied, 266 U.S. 626 (1924).

In the present case, petitioner does not point to any basis

for concluding that he was prejudiced by the omission. On

the contrary, it is clear that petitioner was not surprised at

trial by the introduction of the evidence relating to his

dealings with Peters. Not only did petitioner's efforts to

influence Peters’ testimony fa!l squarely within the allega-

tion in the charging paragraph of the conspiracy count,

which alleged that petitioner and DiFilippi conspired “to

corruptly obstruct justice” (Pet. App. G4), but that conduct

was clearly described in succeeding paragraphs alleging that

the defendants had attempted to achieve the objectives of

the conspiracy by endeavoring to influence grand jury wit-

nesses to testify falsely and withhold evidence (Pet. App.

6

G5-G6). Moreover, the government provided petitioner

with copies of the tapes and the transcript of the Peters

conversations (1 R.T. 41, 144), and matters involving Peters

were the subject of defendants’ pretrial motions (C.R. 235,

at 16; C.R. 101, at 12) and a pretrial hearing at which

petitioner was present and testified (3 R.T. 271-277; 5 R.T.

107, 152-156). As the court of appeals stated, “the govern-

ment repeatedly advised the trial court, beginning with the

opening statement, that it was the theory of the prosecution

that a conspiracy to obstruct justice could be sustained

based solely on the instructions given by [petitioner and his

codefendant] to Peters” regarding his grand jury testimony

(Pet. App. Dil; 14 R.T. 75-76, 83-86). No objection was

made to the introduction of the Peters evidence on the

grounds of variance. Nor did defense counsel seek a bill of

particulars or claim surprise at trial (Pet. App. Dll).

Petitioner's reliance upon this Court's decision in Dunn

v. United States, 442 U.S.100 (1979), is misplaced. In Dunn,

the defendant was convicted of violating 18 U.S.C. 1623 by

making two inconsistent declarations in proceedings “before

or ancillary to[a] court or grand jury of the United States.”

The inconsistency between the two statements alleged in the

indictment was the sole theory upon which the case was

tried and submitted to the jury (see 442 U.S. at 106). The

court of appeals affirmed, however, based upon the incon-

sistency between one of those statements and a third decla-

ration. This Court reversed, holding (as the government

conceded) that the defendant could not be convicted “ona

charge that was neither alleged in [the] indictment nor

presented to [the] jury at trial” (ibid.).

In the present case, petitioner's conviction was affirmed

on the basis of the charge alleged in the indictment and

proved at trial: conspiring with DiFilippi and others at a

7

particular place and time to obstruct justice.* The essence of

a conspiracy is the illegal agreement (see Jannelli v. United

States, 420 U.S. 770, 777 (1975)), not the overt acts commit-

ted in furtherance of it. An overt act need not be criminal

and may in itself be entirely innocent. See, e.g., United

States v. Andreen, 628 F.2d 1236, 1248 (9th Cir. 1980);

United States v. Donahue, 539 F.2d 1131, 1136 (8th Cir.

1976). Nor need the government prove that each conspira-

tor committed an overt act in order to convict; it must show

only that one overt act was committed by one conspirator.

Braverman v. United States, 317 U.S. 49, 53 (1942). A

conspiracy indictment need not enumerate every overt act,

and the government may prove overt acts not listed in the

indictment. See, e.g., United States v. Johnson, 575 F.2d

1347, 1357 (Sth Cir. 1978), cert. denied, 440 U.S. 907 (1979);

United States v. Harris, 542 F.2d 1283, 1300 (7th Cir.

1976), cert. denied, 430 U.S. 934 (1977); United States v.

Cohen, 518 F.2d 727, 733 (2d Cir.), cert. denied, 423 U.S.

926 (1975). United States v. Quesada, 512 F.2d 1043, 1046

(Sth Cir.) cert. denied, 423 U.S. 946 (1975). Likewise, the

government is not required to prove all overt acts listed in

the indictment. See, e.g., United States v. Parker, 586 F.2d

1253, 1258 (8th Cir. 1978); United States v. Adamo, 534

F.2d 31, 38 (3d Cir.), cert. denied, 429 U.S. 841 (1976). And,

as previously noted (see page 5, supra), the courts of appeals

have consistently held that a conspiracy conviction may be

based upon an overt act not enumerated in the indictment.

Thus, affirming a conspiracy conviction on the basis of an

overt act proven at trial but not alleged in the indictment is

entirely different from “uphold[{ing] a conviction on a

*Certainly petitioner was not convicted on the basis of a charge not

presented to the trier of fact, since the trial judge in this case explicitly

stated he had found petitioner guilty of conspiracy to obstruct justice

based on the Peters evidence (Pet. App. A7-Al 1; C1-C25).

charge that was neither alleged in [the] indictment nor

presented to [the] jury at trial” (Dunn v. United States,

supra, 442 U.S. at 106).’

2. Petitioner also asserts (Pet. 25-30) that DiFilippi’s

statements were improperly admitted against him as co-

conspirator declarations (Fed. R. Evid. 801(d)(2)(E)) because

the government failed to introduce sufficient independent

evidence to prove the existence of the conspiracy. The court

of appeals correctly concluded (Pet. App. D15), however,

that petitioner’s own statements during those conversation

were admissible as admissions (Fed. R. Evid. 801(d)(2)) a2"

provided sufficient independent evidence of the conspiracy.

This factual conclusion was correct and in any event does

not warrant further review by this Court.

In a conversation recorded on February 15, 1979, Peters

informed petitioner that he had received a grand jury sub-

poena and that he was concerned about testifying regarding

the cash sale of Salvatore Bonanno’s Cadillac. Petitioner

’Petitioner appears to advance several other claims related to his

contention that his conviction could not properly be affirmed on the

basis of an overt act not charged in the indictment, but those claims are

clearly without merit. Petitioner states (Pet. 20) that “the Ninth Circuit

remanded the case for what amounted to a new, summary trial upon an

old record” and that at this “retrial” he was denied “the right to prepare

his defense, confront the witnesses against him, and have his case tried

before an impartial trier of facts” (Pet. 25). However, petitioner was

afforded all those rights at trial and no new evidence was introduced on

remand. The court of appeals merely remanded so that the district court

could make specific findings as to the basis for the court's original

judgment.

Petitioner also suggests (Pet. 20 & n.19) that the court of appeals was

required to decide whether the government violated his First Amend-

ment rights by removing his torn-up handwritten notes from the trash

and assembling them. Howeverc, resolution of that question was not

necessary in order to decide petitioner's appeal.

9

instructed Peters not to give the grand jury the records

concerning that sale and not to reveal their conversations to

anyone (Pet. App. C2-C12). Petitioner asserts (Pet. 28) that

the only legitimate inference that may be drawn from this

evidence is that he acted alone in seeking to induce Peters to

withhold evidence. However, the following additional evi-

dence permitted the district court to infer that petitioner

and DiFilippi were acting in concert: (1) a few days after

Peters spoke with petitioner, DiFilippi also sought to have

Peters withhold evidence regarding the cash sale of the car

and assisted Peters in hiding the records of the sale (Pet.

App. C12-C22);8 (2) Peters had not told DiFilippi about his

February 15 conversation with Bonanno (Ex. 108-111, 12-

13; Pet. App. C12). It was therefore reasonable for the

district court to infer, as it did (Pet. App. A8-A10, C21-

C22), that petitioner and DiFilippi had conferred about the

implications of Peters’ subpoena and his potential grand

jury testimony and had agreed that they should attempt to

have Peters withhold information about the cash sale of

petitioner’s scon’s car.

Moreover, it is apparent that none of the utterances of

DiFilippi upon which the court of appeals relied in sustain-

ing petitioner’s conviction was “offered in evidence to prove

the truth of the matter asserted” (Fed. R. Evid. 801(c)) and

thus none was hearsay. The court of appeals relied upon the

following two statements made by DeFilippi (Pet. App.

D14; emphasis added):

*DiFilippi's instructions for Peters to withhold evidence (see Pet.

App. D14) were introduced simply to prove that they were given and

not “to prove the truth of [any] matter asserted” (Fed. Rev. Evid.

801(c)). Thus, they were not hearsay, as petitioner maintains (Pet. 29 &

n.23), and could be used to establish the predicate for the admission of

co-conspirator statements.

10

5. The taped conversation between DiFilippi and

Peters on February 27, 1979, indicates that DiFilippi

directed Peters to put documents relating to the sale of

Bill Bonanno’s Cadillac in a “place where nobody

thinks that it would be.” Ex. 112-1 at 23.

7. The taped conversation between DiFilippi and

Peters on March 21, 1979 shows that DiFilippi sug-

gested Peters give inaccurate responses to the grand

jury if questioned about any conversation Peters had

with Bonanno.

These commands were obviously introduced simply to

show that they were made and not to prove the truth of any

matter asserted. Indeed it is difficult to read them as assert-

ing the truth of anything.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

MARGARET I. MILLER

Attorney

FEBRUARY 1983

DOJ-1883-02