Opposition Brief — Glecier v. United States

No. 90-1692

Jn the Supreme Court of the United States

OCTOBER TERM, 1991

DANIEL GLECiER, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

KENNETH W. STARR

Solicitor General

Ropert S. Mue.cer, Ill

Assistant Attorney General

JosePH C. WYDERKO

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the indictment was sufficient to al-

lege a RICO conspiracy.

2. Whether the district court abused its discre-

‘ tion by denying petitioner’s motion for a bill of par-

ticulars.

3. Whether the RICO statute is unconstitution-

ally vague as applied to the facts of this case.

(1)

TABLE OF CONTENTS

Page

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a spnsnovocnncnccenevoveoes ]

EC snasncenncdsaboorosovcococscces ]

a a soenaenecnonsccorseccecccese 6

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TABLE OF AUTHORITIES

Cases:

Connally v. General Construction Co., 269 U.S. 385 (1926) 14

Grayned vy. City of Rockford, 408 U.S. 104 (1972)........... 14

H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S.

a cenunetocbocoocovoccces 6,13

Hagner v. United States, 285 U.S. 427 (1932).................... 7

Hamling v. United States, 418 U.S. 87 (1974)............0....... 7

Parker v. Levy, 417 U.S. 733 (197A4)........2...--ccccccceeeceeeeeeeee l4

Russell v. United States, 369 U.S. 749 (1962)...........00........ 7,8,9

Stirone v. United States, 361 U.S. 212 (1960)...........0000..... 3)

Stokes v. United States, 157 U.S. 187 (1895)............ Se ~

United States vy. Aleman, 609 F.2d 298 (7th Cir. 1979),

cert. denied, 445 U.S. 946 (1980) .000.0.0.0.0.00.0ccecccceceeeeeeees 14

United States v. Angiulo, 897 F.2d 1169 (1st Cir.), cert.

EE 6,14

United States v. Angiulo, 847 F.2d 956 (1st Cir. 1988)...... 10

United States v. Bailey, 444 U.S. 394 (1980)........00000000...... 7

United States v. Buckley, 689 F.2d 893 (9th Cir. 1982),

cert. denied, 460 U.S. 1086 (1983)........0...000..000:0cceeeeeeees x

United States v. Campanale, 518 F.2d 352 (9th Cir. 1975),

cert. denied, 423 U.S. 1050 (1976)..0....000.00000.00c.ceceeeeeeeees 14

United States v. Coiro, 922 F.2d 1008 (2d Cir.), cert.

denied, No. 90-1521 (June 17, 1991) ........00000000000000000000.. 13

United States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988)... 12-13

United States v. Debrow, 346 U.S. 374 (1953)...000000000000.... 7,8

United States vy. Gordon, 780 F 2d 1165 (5th Cir. 1986)... ~

(111)

ES

IV

Cases—Continued: -Page

United States v. Kaplan, 866 F.2d 536 (2d Cir. 1989)........ 7,13

United States v. Martino, 648 F.2d 367 (5th Cir. 1981),

cert. denied, 456 U.S. 949 (1982) ...............ccccscccesscccessees 14

United States v. Miller, 471 U.S. 130 (1985) .........0....00..... g

United States v. Morelli, 643 F.2d 402 (6th Cir.), cert.

Cae Be Ure te CE taviccccndcccetestcscicercssesccovsccccccee 14

United States v. Neapolitan, 791 F.2d 489 (7th Cir.),

cert. denied, 479 U.S. 939 (1986) .............:.ccccceeceeeeeeeeeees 4, 10,11

United States v. Phillips, 874 F.2d 123 (3d Cir. 1989)........ 9-10

United States v. Powell, 423 U.S. 87 (1975)................00064. 14

United States v. Pungitore, 910 F.2d 1084 (3d Cir. 1990),

cert. denied, 111 S. Ct. 2010 (1991)...............csscccsssereeeees 6, 13-14

United States v. Ruggiero, 726 F.2d 913 (2d Cir.), cert.

ee, Ge Ga, Ce HE ccctebendevescncseccesccessesccccesesscnsee 14

United States v. Sutherland, 656 F.2d 1181 (5th Cir. 1981),

cert. denied, 455 U.S. 949 (1982) ................ccceseceeeeeeeeeeee 8

United States v. Swiderski, 593 F.2d 1246 (D.C. Cir.

1978), cert. denied, 441 U.S. 933 (1979) .......0....0.00... 14

United States v. Tripp, 782 F.2d 38 (6th Cir.), cert.

denied, 475 U.S. 1128 (1986)............c.ccccccssscccccrresssscceeees 14

United States v. Woods, 915 F.2d 854 (3d Cir. 1990), cert.

I Be is Ses Hi iiidabdhdetkcirsnccscntcbiasevenseoosess 13, 15

United States ex rel. Ballard v. Bengston, 702 F.2d 656

I ao ccebenabiadednianie 8

Village of Hoffman Estates v. The Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982)...................ccccrsccccseeeeees 14

Wisniewski v. United States, 353 U.S. 901 (1957).............. ll

Wong Tai v. United States, 273 U.S. 77 (1927).............:00 1]

Constitution, statutes and rules:

U.S. Const.:

I 2 Tee oa len aseaeseueusindeaadaves 14

ies sa alia sna anaitninshiobsinetee 4,6

ss ul emmiiohiomesinanes 4,6

I I, I eicercinenedcocssctedicnicccndsecdancssncenctas 5,11, 12

Racketeer Influenced and Corrupt Organizations Act,

18 U.S.C. 1961 et seq.:

ee a ilncientignadnchatevsacviseieetonjasrinciddessasenestte 2

Rules—Continued:

Fed. R. Crim. P.:

ELAS SESE Dee eer RAED UE Peete Seep en mea

SESE are eee a nee RRS Ss eee NP ae

In the Supreme Court of the Anited States

OCTOBER TERM, 1991

No. 90-1692

DANIEL GLECIER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals, Pet. App. 1-14,

is reported at 923 F.2d 496.

JURISDICTION

The judgment of the court of appeals was entered

on January 8, 1991. A petition for rehearing was

denied on February 1, 1991. Pet. App. 16. The petition

for a writ of certiorari was filed on May 1, 1991. The

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

1254(1).

STATEMENT

. After a jury trial in the United States District

Court for the Northern District of Illinois, petitioner

(1)

2

was convicted on one count of conspiring to conduct

and to participate in the affairs of an illegal enter-

prise through a pattern of racketeering activity, in

violation of the Racketeer Influenced and Corrupt

Organizations Act (RICO), 18 U.S.C. 1962(d).

1. The evidence at trial, the sufficiency of which

is not in dispute, is described in the government's

brief in the court of appeals. In 1977, petitioner was

an attorney in private practice in Illinois. His prac-

tice included regular appearances before the Fifth

Municipal District, a division of the Circuit Court of

Cook County, and frequent representation of defen-

dants charged with drunk driving. While in private

practice, petitioner paid cash bribes to two state

prosecutors, Cary N. Polikoff and James J. Costello,

and to circuit court judges in return for favorable

dispositions of cases. Gov't C.A. Br. 5-9.

Polikoff first accepted bribes from Alan Masters,

another lawyer who practiced in the Fifth Munici-

pal District. Masters introduced Polikoff to several

other lawyers, including petitioner, Mict.ael Et-

tinger, Richard Pezzopane, and William Kamp-

enga, who also began paying bribes. Costello first

accepted a payment from petitioner following a fa-

vorable disposition of one of petitioner’s cases.

Shortly afterward, several other lawyers, including

Masters, Pezzopane, and Joseph McDermott, also

began making payments to Costello. Petitioner and

the other lawyers also paid cash bribes to police offi-

cers to induce them to alter their testimony. In ad-

dition, petitioner and McDermott referred cases to

one another and paid cash bribes to circuit court

judges to obtain favorable treatment for their clients

in traffic violation cases. Petitioner and the other

lawyers often discussed among themselves which

prosecutors and judges were amenable to taking

bribes. Gov't C.A. Br. 5-9, 14.

In 1979, petitioner became a circuit com associ-

ate judge. He was eventually assigned to the Fifth

3

Municipal District. By that time, Polikoff and

Costello, the two state prosecutors whom petitioner

had bribed, were in private practice. As a judge, pe-

titioner accepted cash bribes from Polikoff in ex-

change for favorable dispositions of Polikoff's cases;

he also accepted bribes for “steering” cases of un-

represented defendants to Polikoff and for allowing

Polikoff to solicit clients in petitioner’s courtroom.

Costello similarly paid cash bribes to petitioner in

return for favorable dispositions of two cases in

1983. Gov't C.A. Br. 9-13.

2. Count 1 of the indictment charged petitioner

and seven co-defendants with participating in a

RICO conspiracy. The indictment described the il-

legal enterprise as the Circuit Court of Cook

County. After identifying petitioner and the other

co-conspirators and reproducing the Illinois

statutes prohibiting bribery and official misconduct,

the indictment charged that petitioner and his

seven co-defendants agreed “to conduct and partici-

pate in the conduct of the affairs of the Circuit

Court of Cook County, directly and indirectly,

through a pattern of racketeering activity, as that

term is defined in [18 U.S.C. 1961], said racketeering

activity consisting of multiple acts involving bribery

under [Ill]. Rev. Stat. ch. 38, §§ 33-1 & 33-3].” Pet.

App. 3. The indictment further alleged that peti-

tioner participated in the scheme before he became

a judge, and it identified him as one of the lawyers

from whom state prosecutors Polikoff, Costello, and

John Brady accepted bribes. Id. at 3—4. The indict-

ment also iden‘ified petitioner as one of the Fifth

Municipal District judges who “did at various times

unlawfully accept cash bribes from or on behalf of

attorneys, including [six of the co-defendants] and

others known and unknown to the Grand Jury,

pursuant to an understanding that they would be

influenced in, and knowing that the cash bribes

were tendered with the intention of influencing

4

them in, the performance of acts related to their

employment and function as judges.” Jd. at 4.

3. Before trial, petitioner moved to dismiss the

indictment. He argued that the indictment’s failure

to specify the individual predicate acts of bribery by

listing the specific bribes by date and case name vio-

lated the Fifth and Sixth Amendments to the Con-

stitution and Federal Rule of Criminal Procedure

7(cM1). The district court ruled that the indictment

was sufficiently specific and informative, and de-

nied the motion. Pet. App. 4—5.

Petitioner later moved for a bill of particulars on

the ground that the indictment’s lack of specificity

created a danger of unfair surprise and prevented

him from adequately preparing his defense. The

district court concluded that a bill of particulars

was not required because the government's post-in-

dictment disclosures during discovery provided pe-

titioner with sufficient information concerning the

charges. The court suggested that petitioner's mo-

tion was intended only to elicit the evidentiary de-

tails of the government's case. Pet. App. 9; Gov't

C.A. Br. 24.

4. The court of appeals affirmed. Pet. App. 1-14.

First, the court rejected petitioner's challenge to the

legal sufficiency of the indictment. Jd. at 2-9. The

court noted that a defendant is entitled to an in-

dictment that “[1] states all of the elements of the of-

fense charged, [2] informs him of the nature of the

charge so that a defense can be prepared, and [3]

enables the defendant to evaluate any possible dou-

ble jeopardy problems presented by the charge.” /d.

at 5 (quoting United States v. Neapolitan, 791 F.2d

489, 500-501 (7th Cir.), cert. denied, 479 U.S. 939

(1986)). After examining the RICO conspiracy

charge in detail, the court found that the indictment

properly alleged the essential elements of the of-

fense. Since “Section 1962(d), like all conspiracy pro-

visions, has as its target the act of agreement,” the

S eee oe --_—

5

court explained, “an indictment need only charge—

after identifying a proper enterprise and the defen-

dant’s association with that enterprise—that the de-

fendant knowingly joined a conspiracy the objective

of which was to operate that enterprise through an

identified pattern of racketeering activity (here the

‘pattern’ being multiple acts of bribery prohibited by

specified provisions of the Illinois criminal code).”

Pet. App. 6. “By specifying the time period during

which the alleged conspiracy operated, the locations

and courts, the principal actors, and, with some de-

tail, the specific types of predicate crimes to be

committed and the modus operandi of the conspir-

acy,” the court found that “the indictment ade-

quately enabled [petitioner] to prepare a defense.”

Id. at 6-7. “Similarly,” the court noted, “the specific

limiting information contained in [the conspiracy

count] is sufficient to bar any subsequent prosecu-

tion for RICO conspiracy during the same time pe-

riod and involving the same co-conspiretors, enter-

prise and racketeering activities.” Id. at 7. The court

concluded that “these notice and double jeopardy

factors do not require the recitation of specific case

names, dates, times and places of alleged bribes.”

Ibid.

Second, the court of appeals rejected petitioner's

claim that the district court abused its discretion by

denying his motion for a bill of particulars. Pet.

App. 9-11. In addition to the indictment, the court

pointed out, petitioner “had the information that the

government made available through discovery,

which included voluminous public records and po-

tential Brady material * * *, all tape recordings of

the defendants, and all material covered by the

Jencks Act, 18 U.S.C. § 3500.” Id. at 10-11. The court

noted that “[t]he government also gave notice to any

interested defendant of the names of all co-conspir-

ators not identified in the indictment, as well as the

names of cooperating co-conspirators it intended to

6

call at trial, one of whom was made available to

[petitioner’s] counsel for pre-trial interview.” Jd. at

11. The court further noted that “the individuals, lo-

cations, methods, and case details relating to the

specific bribes involving [petitioner] * * * were in

fact listed in the government’s Santiago proffer

[identifying the co-conspirator statements to be of-

fered at trial], which [petitioner's] counsei received

well before any of thése witnesses testified or this

evidence was introduced.” Ibid.' The court con-

cluded that “the district court’s refusal to order the

government to [reveal the names and dates of the

state court cases in a bill of particulars) was not a

clear abuse of discretion in light of the extensive

pre-trial disclosure that did take place.” Ibid.

Third, the court rejected petitioner's challenge to

the constitutionality of the RICO statute. The court

“join{ed] the First and Third Circuits in re-affirm-

ing that the RICO statute is not unconstitutional

despite Justice Scalia’s statements” in his concur-

ring opinion in H.J. Inc. v. Northwestern Bell Tele-

phone Co., 492 U.S. 229, 255-256 (1989). Pet. App. 2 n.1

(citing United States v. Pungitore, 910 F.2d 1084,

1102—1105 (3d Cir. 1990), cert. denied, 111 S. Ct. 2010

(1991), and United States v. Angiulo, 897 F.2d 1169,

1178-1180 (ist Cir.), cert. denied, 111 S. Ct. 130

(1990)).

ARGUMENT

1. Petitioner contends that the RICO conspiracy

charge in the indictment was legally insufficient

under the Fifth and Sixth Amendments because it

failed to describe in detail the “multiple acts involv-

! The court noted that “the fact that [petitioner's] counsel

referred to the subject state cases by name during his open-

ing argument indicates that [petitioner] was in fact apprised

of these cases before trial.” Pet. App. 11.

7

ing bribery” that were alleged to constitute the

“pattern of racketeering activity.” Pet. 5-14.

a. It is well settled “that ‘an indictment is suffi-

cient if it, first, contains the elements of the offense

charged and fairly informs the defendant of the

charge against which he must defend, and, second,

enables him to plead an acquittal or conviction in

bar of future prosecutions for the same offense.”

United States v. Bailey, 444 U.S. 394, 414 (1980)

(quoting Hamling v. United States, 418 U.S. 87, 117

(1974)); see Russell v. United States, 369 U.S. 749,

763-764 (1962); United States v. Debrow, 346 U.S. 374,

376 (1953); Hagner v. United States, 285 U.S. 427, 431

(1932).

Petitioner does not dispute that the indictment

adec uately described the elements of the offense. He

argues instead that the indictment failed to inform

him of the charges against which he was required

to defend because it failed to describe the predicate

acts of bribery with sufficient specificity. Pet. 7-8. As

the court of appeals explained, however, the RICO

conspiracy charge, read as a whole, adequately en-

abled petitioner to prepare a defense because it

“specif[ied] the time period during which the al-

leged conspiracy operated, the locations and courts,

the principal actors, and, with some detail, the spe-

cific types of predicate crimes to be committed and

the modus operandi of the conspiracy.” Pet. App. 6—

A

Petitioner's insistence that the indictment set

forth the specific “facts, circumstances, dates, loca-

tions, parties present, case names or bribe

amot:nts” with respect to each bribe, Pet. 8, misper-

ceives the degree of specificity required of a RICO

conspiracy indictment. Every indictment reflects a

balance between specificity and conciseness, be-

tween reciting evidence and making allegations. It

nas long been established that an indictment

shou.d be “a plain, concise and definite written

8

statement of the essential facts constituting the of-

fense charged.” Fed. R. Crim. P. 7(c); see also Rus-

sell vy. United States, 369 U.S. at 762-763. It is not the

function of an indictment to set forth the evidence; a

more thorough preview of the evidence is properly

provided, if at all, through a bill of particulars. See

United States v. Debrow, 346 U.S. at 378: Stokes v.

United States, 157 U.S. 187, 191 (1895); United States

v. Gordon, 780 F.2d 1165, 1172 (5th Cir. 1986); United

States v. Buckley, 689 F.2d 893, 897 (9th Cir. 1982),

cert. denied, 460 U.S. 1086 (1983). In this case, the al-

legations against petitioner specified that the

“pattern of racketeering activity” consisted of

“multiple acts involving bribery”; it was not neces-

sary for the indictment to go further and include a

recitation of the circumstances surrounding each

of the separate acts of bribery. Pet. App. 3; see United

States v. Sutherland, 656 F.2d 1181, 1197 (5th Cir.

1981), cert. denied, 455 U.S. 949 (1982).

Petitioner asserts that the indictment was defec-

tive because it provided an insufficient double jeop-

ardy bar against future prosecutions for the same

offense. Pet. 8-9. But as the court of appeals ex-

plained, “the specific, limiting information con-

tained in [the indictment] is sufficient to bar any

subsequent prosecution for RICO conspiracy dur-

ing the same time period and involving the same

co-conspirators, enterprise and racketeering activi-

ties.” Pet. App. 7. Moreover, petitioner is entitled to

rely on parts of the record other than the indictment

to raise a double jeopardy claim in the event future

proceedings are initiated against him. See Russell

v. United States, 369 U.S. at 764; United States ex rel.

Ballard v. Bengston, 702 F.2d 656, 660 (7th Cir. 1983)

(“An indictment need not plead offenses in such de-

tail as to be self-sufficient as a bar against further

prosecution for the same offense; it is the judgment

that constitutes the bar.”).

9

b. Petitioner relies on Russell v. United States,

supra, and Stirone v. United States, 361 U.S. 212

(1960), for the proposition that the indictment al-

lowed him to be convicted on the basis of facts not

found by or presented to the grand jury. Pet. 9. Un-

like the indictment in Russell, however, the indict-

ment here did not “simply repeat the language of

the criminal statute” or omit an allegation going to

“the very core of criminality.” 369 U.S. at 764. Nor

does petitioner's conviction rest, as in Stirone, on a

charge that was not contained in or was different

from the allegations of the indictment. 361 U.S. at

215-219. To the contrary, the evidentiary proof in

this case was simply a more refined version of the

factual allegations made in the indictment. See

United States v. Miller, 471 U.S. 130 (1985).

c. Contrary to petitioner's contention, Pet. 10-11,

the court of appeals’ decision is consistent with

United States v. Phillips, 874 F.2d 123 (3d Cir. 1989).

The RICO conspiracy count in Phillips charged two

attorneys with conspiring to conduct the affairs of a

local court through a pattern of racketeering activ-

ity. Like the indictment in this case, the RICO con-

) spiracy count in Phillips did not allege specific in-

| dividual acts of racketeering; it simply stated that

the defendants conspired to commit “multiple” acts

of bribery and extortion in violation of state law. 874

F.2d at 125. In response to the defendants’ claim

that the evidence at trial was insufficient to sustain

their convictions, the Third Circuit noted that “[wle

were initially troubled by the sufficiency of [the

RICO conspiracy count] of the indictment because

of its failure to specify, with particularity, which

acts of bribery and extortion appellants allegedly

agreed to commit.” Jd. at 127 n.4. The court went on

arterial

10

to conclude, however, that the RICO conspiracy

count was legally sufficient. Jd. at 127-128 nn.4 & 5.?

The court of appeals’ decision is also consistent

with United States v. Angiulo, 847 F.2d 956 (1st Cir.

1988). In Angiulo, the First Circuit held that the

commission of overt acts is not required for a RICO

conspiracy conviction. 847 F.2d at 964. In so holding,

the court found that an overt act requirement would

be superfluous “because, in any RICO conspiracy

indictment the government must allege agreement

to commit or the commission of specified predicate

crimes or, alternatively the collection of unlawful

debts.” Ibid. The court reasoned that the specificity

must be “sufficient to alert defendants to the nature

of the conspiracy for which they are being charged.”

Ibid. Consistent with that reasoning, the indict-

ment here alleged an agreement to commit speci-

fied predicate crimes: bribery in violation of state

law. Nothing in Angiulo suggests that the predicate

racketeering acts must be described in detail in the

indictment, rather than generally identified as was

done in this case.

d. Petitioner claims that the court of appeals’ de-

cision conflicts with its earlier decision in United

States v. Neapolitan, 791 F.2d 489 (7th Cir.), cert.

denied, 479 U.S. 939 (1986). Pet. 11-14. The court

carefully reviewed Neapolitan, however, Pet. App.

7-9, and concluded that it “most certainly does not

stand for the proposition that RICO conspiracy in-

2 Later, in addressing the defendants’ claim that the jury

instructions were erroneous, the Phillips court noted that “the

Seventh Circuit [in United States v. Neapolitan, 791 F.2d 489

(7th Cir.), cert. denied, 479 U.S. 939 (1986),] required that the

predicate acts underlying the RICO conspiracy charge be

specified, rather than generally identified as here.” 874 F.2d

at 130 n.7. The Third Circuit in Phillips, however, did not

adopt such a requirement. As discussed below, the court of

appeals in this case made clear that its decision in

Neapolitan imposes no such requirement.

oe

A I

ll

dictments must list specific predicate acts in which

the defendant was involved,” id. at 8. In any event,

ever. if the decision in this case conflicted with the

Seventh Circuit's earlier decision in Neapolitan,

the conflict would not warrant review by this Court.

Intracircuit conflicts are to be resolved by the court

of appeals and do not ordinarily require this Court's

intervention. Wisniewski v. United States, 353 U.S.

901, 902 (1957).

2. Petitioner contends that the district court

erred in denying his motion for a bill of particulars.

Pet. 14-17. The decision whether to require a bill of

particulars, however, rests in the discretion of the

district court. Wong Tai v. United States, 273 U.S.

77, 82 (1927). As the court of appeals correctly con-

cluded, the district court did not abuse its discretion

by refusing to supplement the government’s exten-

sive pretrial discovery with a bill of particulars dis-

closing the names and dates of the bribes in which

petitioner was involved. Pet. App. 9-11.

Petitioner is incorrect when he claims that the

pretrial discovery in this case was not an adequate

substitute for a bill of particulars. The principal

witnesses at trial whose testimony related directly

to petitioner were Costello, Polikoff, Kampenga, and

McDermott. Although petitioner complains that the

proffers identifying the co-conspirator statements to

be offered through those witnesses were made only

five days before the beginning of the trial, Pet. 16, the

proffers were made nearly two weeks before Mc-

Dermott testified and more than two weeks before

Costello and Polikoff testified. Moreover, petitioner's

trial counsel interviewed Kampenga three weeks

prior to Kampenga’s testimony. Gov't C.A. Br. 27-

29. In addition, as the court of appeals noted, the

government turned over pertinent public records,

potentially exculpatory material, and all Jencks Act

statements prior to trial. Pet. App. 11.

12

Petitioner also complains that the court of ap-

peals incorrectly stated that the government turned

over “tape recordings of the defendants” when there

were no such tape recordings of petitioner. Pet. 16—

17. The court’s statement refers to the fact that the

government turned over all tape recordings involv-

ing co-conspirators and cooperating witnesses.

Gov't C.A. Br. 27. Petitioner does not dispute that

during pretrial discovery he received all the tape

recordings that were introduced into evidence at

trial.

There is no merit to petitioner’s claim that the

court of appeals’ decision conflicts with United

States v. Davidoff, 845 F.2d 1151 (2d Cir. 1988). Pet.

14-16. In Davidoff, the RICO conspiracy count al-

leged that the defendant conspired to commit extor-

tion offenses including, but not limited to, four sub-

stantive extortion counts in the indictment that in-

volved a particular air freight company. At trial, as

part of its proof of the RICO enterprise element, the

government presented evidence of extortions di-

rected against three entirely different air freight

companies not identified in the indictment. 845 F.2d

at 1153.

The Second Circuit in Davidoff held that “the

trial judge exceeded his discretion * * * by denying a

bill of particulars identifying at least the victims of

discrete extortionate schemes that the prosecution

intended to prove.” 845 F.2d at 1154. The court found

it “simply unrealistic to think that a defendant

preparing to meet charges of extorting funds from

one company had a fair opportunity to defend

against allegations of extortions against unrelated

companies.” Ibid. The court concluded that neither

the Jencks Act statements of prosecution witnesses

turned over during jury selection and trial nor the

6,000 pages of material concerning wiretap applica-

tions and transcripts of wiretapped conversations

provided “an adequate substitute for a straightfor-

EE —————————————EE—

13

ward identification in a bill of particulars of the

identity of victims of offenses that the prosecution

intends to prove.” Jd. at 1155.

The court of appeals’ decision in this case is con-

sistent with the Second Circuit’s decision in David-

off. The court in Davidoff expressly cautioned that

it “[did] not mean to imply that even in a RICO case

the prosecution must always disclose in advance of

trial every act it will prove that may violate some

criminal statute.” 845 F.2d at 1154; see also United

States v. Kaplan, 886 F.2d 536, 543-544 (2d Cir. 1989).

Here, the indictment described the bribery scheme

and identified the time period, the locations and

courts, and the principal actors and their roles. The

government's proof at trial did not go beyond those

allegations. In addition, the government’s pretrial

disclosures revealed “the individuals, locations,

methods, and case details relating to the specific

bribes involving [petitioner].” Pet. App. All; id. at

All n.5 (“The extent of pre-trial discovery is the

primary factor that distinguishes this case from

United States v. Davidoff.”).

3. Finally, petitioner contends that the RICO

statute is unconstitutionally vague. Pet. 17-20. He

primarily relies, Pet. 18, on the concurring opinion

in H.J. Inc. v. Northwestern Bell Telephone Co., 492

U.S. 229, 255-256 (1989), in which Justice Scalia,

joined by three other Justices, expressed doubts

about whether the RICO “pattern of racketeering

activity” requirement could withstand a constitu-

tional vagueness challenge. The court of appeals

‘here correctly rejected petitioner’s vagueness chal-

lenge to RICO, and its holding is consistent with the

holding of every other court of appeals that has con-

sidered that contention in the wake of H.-J. Inc. See

United States v. Coiro, 922 F.2d 1008, 1016-1017 (2d

Cir.), cert. denied, No. 90-1521 (June 17, 1991); United

States v. Woods, 915 F.2d 854, 862-864 (3d Cir. 1990),

cert. denied, 111 S. Ct. 1413 (1991); United States v.

14

Pungitore, 910 F.2d 1084, 1102-1105 (3d Cir. 1990),

cert. denied, 111 S. Ct. 2010 (1991); United States v.

Angiulo, 897 F.2d 1169, 1178-1180 (1st Cir.), cert. de-

nied, 111 S. Ct. 130 (1990).3

In any event, absent First Amendment considera-

tions, a defendant must show that the statute is

vague as applied to the particular conduct with

which the defendant is charged. See Village of

Hoffman Estates v. The Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 494-495 & n.7 (1982); United States

v. Powell, 423 U.S. 87, 92 (1975); Parker v. Levy, 417

U.S. 733, 756 (1974) (“One to whose conduct a statute

clearly applies may not successfully challenge it for

vagueness.”). To sustain such a vagueness attack,

the defendant must show that the statute fails to

give a person of ordinary intelligence reasonable

notice that his conduct is forbidden. See Grayned v.

City of Rockford, 408 U.S. 104, 108 (1972); Connally v.

General Construction Co., 269 U.S. 385, 391 (1926).

Whatever ambiguity there may be at the margins of

the RICO statute, petitioner’s participation—both as

a lawyer and later as a judge—in an ongoing

bribery scheme to fix cases in the local court over a

period of several years unmistakably fell within the

3 Before H.J. Inc., as well, the courts of appeals had uni-

formly held that the RICO statute is not unconstitutionally

vague. See, e.g., United States v. Tripp, 782 F.2d 38, 41-42 (6th

Cir.) (reference to state law in predicate acts did not render

statute vague), cert. denied, 475 U.S. 1128 (1986); United States

v. Ruggiero, 726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S.

831 (1984); United States v. Martino, 648 F.2d 367, 381 (5th Cir.

1981), cert. denied, 456 U.S. 949 (1982); United States v.

Morelli, 643 F.2d 402, 412 (6th Cir.) (collecting cases), cert.

denied, 453 U.S. 912 (1981); United States vy. Aleman, 609 F.2d

298, 305 (7th Cir. 1979) (enterprise element), cert. denied, 445

U.S. 946 (1980); United States v. Swiderski, 593 F.2d 1246, 1249

(D.C. Cir. 1978) (RICO conspiracy), cert. denied, 441 U.S. 933

(1979); United States v. Campanale, 518 F.2d 352, 364 (9th Cir.

1975), cert. denied, 423 U.S. 1050 (1976).

- Le ND Oe ED RN OS ee ee

15

scope of the RICO statute. Cf. United States v.

Woods, 915 F.2d at 862-864. Petitioner’s attack on

the constitutionality of the RICO statute is therefore

without merit.

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

JOSEPH C. WYDERKO

Attorney

JULY 1991

2,OVERNMENT PRINTING OFFICE 1991- 282