Petition for Writ of Certiorari — Fitzsimmons v. United States

Supreme Court brief1991

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61-45 FILE

No. 87-1284/2038; 87-1286/207 8

OFFICE OF THE

JUL 6 199)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

FRANCIS R. FITZSIMMONS and

ROGER TOWNE (Petitioners)

UNITED STATES OF AMERICA (Respondent)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

HAROLD GUREWITZ (P14468)

Attorney for Petitioner Fitzsimmons

3600 Cadillac Tower

Detroit, Michigan 48226

(313) 963-8155

RICHARD ZIPSER (P22747)

Attorney for Petitioner Towne

1760 S. Telegraph Road, Ste. 300

Bloomfield Hills, MI 48302

(313) 253-0740

T( pu )

CLERK |

QUESTIONS PRESENTED

Did the Sixth Circuit err when it

affirmed Fitzsimmons' and Towne's’' RICO

conspiracy conviction by permitting an

invalidly-pleaded substantive RICO offense to

serve as proof of Fitzsimmons' participation

in the conspiracy?

Did the Sixth Circuit err when it

required Fitzsimmons to establish that

evidence obtained in violation of his Sixth

Amendment rights was introduced at his trial?

Did the Sixth Circuit err when it

failed to reverse Towne's conviction where it

was shown that the Government had failed to

disclose pre-trial to Towne exculpatory and

useful to Towne's defense?

LIST OF PARTIES

Francis R. Fitzsimmons and Roger

Towne are Petitioners in this proceeding.

The United States of America is Respondent in

this proceeding.

TABLE OF CONTENTS

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IWL@ GF ABUEROTICIONW « . © «© «+ 2 2 c« te ew WHS

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peuememe OL CO Cag@s. 2 2 2 2o eo ew tw ee 8

sasons for Granting the Writ. ..... 16

Ze The Sixth Circuit Erred When

It Affirmed Fitzsimmons' and

Towne's RICO Conspiracy

Conviction By Permitting An

Invalidly Pleaded Substantive

RICO Offense To Serve As Proof

Of Fitzsimmons' Participation

In The Conspiracy. ...... 16

iii

TABLE OF CONTENTS (Continued)

It F ired Fitzs! :

Establish That Evidence

Obtained In Violation Of His

Sixth Amendment Rights Was

Introduced At His Trial. . 29

A. The Sixth Circuit

Misinterpreted This

Court's Holdings In

Weatherford v

Bursey, 429

US 545 (1977) and U.

8S. v Morrison, 449

US _ 361 (1981) And

Its Own Precedent In

U.S. v Steele, 727

F2qg 580 (1984). ... 31

TABLE OF CONTENTS (Continued)

First Circuit ... . 40

BLE OF CONTENTS (Continued)

Constituted A Denial Of Fair

Trial And Violated Principles

own j u In

Brady v Maryland, 373 US 83

1963 And Its Progeny As The

Tape Recording Contained

Material That Was Exculpatory

As To Towne And/Or Would Have

Greatly Aided In The

Presentation And Preparation

ee Pees ee) ose og ee OO

ae ae a ee

vii

Black v United States,

385 US 26 (1966)... « «© © « « 34

Brady v Maryland,

S73 GER e 6 SS A. ua,

Briggs v Goodwin,

698 F2d 486 (DC Cir, 1983)

cert den 104 S Ct 704 (1984). . 45

Callanan v United States,

881 F2d 229 (6th Cir, 1989)

cert den 110 US 1816 (1990) .. 25

Chiarella v United States,

445 US 222, 100 S Ct 1108,

GS h Be SOR See seeess i-o sc c« 24

Cinelli v City of Revere,

820 F2d 474 (1987),

cert den sub nom

Cutillo, et. al. v Cinelli,

485 US 1037 (1988). ...... 30, 46

viii

— 7 ee

ee ee

\BLE OF AUTHORITIES

SDERAL CASES (Continued)

atillo, et. al. v Cinelli,

cert den, 485 US 1037 (1988).

ugber v Enzor,

841 F2d 450 (2nd Cir, 1988).

ihlmann v Wilson,

477 US 436 (1986).

bary v United States,

395 US 6, 89 S Ct 1532,

23 L Ed 2d 57 (1960)

‘Brien v United States,

386 US 345 (1967).

issell v United States,

369 US 749, 82 S Ct 1038,

8 L Ed 2d 240 (1962)

sarborough v United States,

467 US 1209 (1984)

-eele v Taylor,

684 F2d 1193 (6th Cir, 1982)

025

~35

~24

~ 34

21,

-32,

.50,

TABLE OF AUTHORITIES

FEDERAL CASES (Continued)

Stromberg v California,

283 US 359, 51 S Ct 532,

7a dei Be ART EROS). « + olive 64638

United States v Agurs,

Cae a we Came se 6 ae oO SP

United States v Bagley,

473 US 667, 182 (1985) .... .50, 53,

United States v Costanzo,

740 F2d 251 (1984)

cert den, 105 S Ct 3477 (1985). .30, 45

United States v Glecier,

923 F2d 496 (7th Cir, 1991). . .17

United States v Hamad,

846 F2d 854 (2nd Cir, 1988)

rehearing den, 855 F2d 36,

858 F2d 834, amended opinion,

902 F2d 1062, cert den,

oe fe ee ee 39

TABLE OF AUTHORITIES

FEDERAL CASES (Continued)

United States v Hasting,

S62 Uo. Sen (ives) ss © « « » @ 39

United States v Holzer,

840 F2d 1343 (7th Cir, 1988). . 25

United States v Joseph,

781 F2da 549 (6th Cir, 1986)

cert den 110 S Ct 1816 (1990) . 17, 26

United States v Mandel,

862 F2d 1067 (4th Cir, 1988)

Gert Gen. 469 US O62. . « ss » 2

United States v Marcello,

876 F2d 1147 (5th Cir, 1989) . 25

United States v Levy,

S77 Fad 200 (3rd Cir, 1978). . «41, 43,

44, 45

United States v Morrison,

449 US 361, 101 S Ct 665,

66 bk. OG 2G SO6 C3062) «sss = BAy FB,

Ja, 43

TABLE OF AUTHORITIES

FEDERAL CASES (Continued)

United States v Persico,

832 F2d 705 (2nd Cir, 1987) .

United States v Popenas,

~ 780 F2d 545 (6th Cir, 1985) .

United States v Puglisi,

740 F2d 240 (2nd Cir, 1986) .

United States v Sisson,

399 US 267, 90 S Ct 2117,

26 L Ed 2d 608 (1970) ....

United States v Steele,

727 F2d 580 (6th Cir, 1984).

Weatherford v Bursey,

429 US 545, 97 S Ct 83,

51 L Ed 2d 30 (1977). ....

xii

- 22,

o 53

2 54

-30,

32,

37,

TABLE OF AUTHORITIES

FEDERAL CASES (Continued)

Zant v stephens,

462 US 862,

103 8S Ct 2733,

77 L Ed 2d 235 (1982)

USC

usc

USC

usc

FEDERAL STATUTES

1254(1).

1954

1961

1961(1).

1962(c), (da)

3282

FEDERAL RULES

FRCrP 16

FRE 803(24)

FRE 804 (b) (3)

xiii

Petitioners Francis R. Fitzsimmons

and Roger Towne respectfully pray that a Writ

of Certiorari issue to review the Judgment

and Opinion of the United States Court of

Appeais for the Sixth Circuit, entered in the

above-entitled proceeding on February 26,

1991.

OPINION BELOW

The Opinion of the Court of Appeals

for the Sixth Circuit below (Appendix, Volume

VII, page 415 - Volume VIII, page 490) was

not recommended for full text publication.

The Opinions of the District Court for the

Eastern District of Michigan below (Appendix,

Volume V, page 320) were not reported.

JURISDICTION

The Order of the Sixth Circuit

(Appendix, Volume VII, page 415) was entered

on February 26, 1991. Fitzsimmons' Petition

for Rehearing and Rehearing En Banc was

denied on April 22, 1991 (Appendix, Volume

VIII, page 518). Towne's Petition for

Rehearing and Rehearing En Banc, was denied

on April 22, 1991. The jurisdiction of this

Court is invoked under 28 USC 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

Petitioners were prosecuted under

18 USC 1954 and 1962(c) and (d). The Fifth

and Sixth Amendments of the United States

Constitution and 18 USC 1961 are relevant to

the Petition. The full text of all of the

statutes and Amendments V and VI are

contained in the Appendix, Volume II, pages

70-84.

oh elie try ot

A ne a

~ ee ee eee nee

STATEMENT OF THE CASE

The facts necessary to place in

1eir setting the questions raised in this

tition are stated:

On September 19, 1986, in a cause

len pending in the United States District

uurt for the Eastern District of Michigan,

uthern Division, entitled United States of

lerica v Charles F. Collins, et. al.,

‘"iminal Action 84-20715, Petitioner Francis

Fitzsimmons was found guilty by a jury of

ie count of a substantive RICO offense

‘count I), one count of RICO conspiracy

‘count II) and one count of soliciting things

| value in violation of 18 USC 1954 (Count

Co-defendant Roger Towne was found Not

iilty of (Count I), the substantive RICO

fense, guilty of one count of RICO

mspiracy (Count II) and one count of

liciting things of value in violation of 18

C 1954 (Count III).

The Defendant-Petitioners' trial

lasted almost nine months. The 40-page

Indictment alleged that certain defendants,

including Petitioner Towne, gave or promised

to give money or things of value to Petitioner

Fitzsimmons and others who were associated

with the Michigan Conference of Teamsters

Welfare Fund in connection with the awarding

of health care contracts by the Fund to

certain companies which promoted or

administered health care _ plans. The

Indictment charged Towne and Fitzsimmons as

follows: Count I (RICO substantive offense) ;

Count II (RICO conspiracy); Count III (Towne

only - 18 USC 1954); and Count V (Fitzsimmons

only - 18 USC 1954). The allegations in Count

V (as to Fitzsimmons) and Count III (as to

Towne) were incorporated in the Count I RICO

charge as the only racketeering act not

barred by the five-year limit of prosecutions

in 18 USC 3282. The allegations in Counts

III and V were also alleged, in substance, in

the Count II RICO conspiracy charge. Before

sie

— cli i My

ial began, Fitzsimmons and Towne filed a

tion to dismiss Counts I, II, III and V

cause the allegations in Count V improperly

leged a violation of 18 USC 1954 as a

ntinuing offense. Fitzsimmons' and Towne's

etrial Motion to Dismiss was denied. In

Ss instructions to the jury on the RICO

nspiracy charge (Count II), the trial court

id:

The government

satisfies its burden if

it proves, beyond a

reasonable doubt, either

that the Defendant agreed

to personally commit two

acts of racketeering or

that the defendant agreed

that another would commit

two acts of racketeering.

ppendix, Volume II, pages 96-97)

After his convictions, Fitzsimmons

d Towne filed a Motion for Arrest of

igment as to Counts I, II and V (for

Fitzsimmons) and Counts II and III (as to

Towne). The trial court granted Fitzsimmons'

Motion for Arrest of Judgment as to Counts I

and V and Count III as to Towne, because the

Court concluded these Counts improperly

alleged a continuing offense and were invalid

(Appendix, Volume II, page 102). The

conviction on Count I was arrested becaus’. the

only predicate act alleged within the

five-year limitations period was the Count V

offense. Towne had been acquitted of count I

by the jury. The trial court refused to

vacate Fitzsimmons' and Towne's conviction

for RICO conspiracy (Count II) even though

the trial court's instruction to the jury on

the elements of RICO conspiracy permitted the

jury to find that Fitzsimmons and Towne

agreed to participate in the RICO conspiracy

if they found that Fitzsimmons and Towne

agreed to commit the legally invalid offense

alleged in Count V and Count III.

After Petitioners' Notice of

Appeal had been filed with the Court of

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peals for the Sixth Circuit, the Government

tained an order to unseal and produced a

anscript of a tape recorded statement of

tzsimmons which had not been previously

sclosed to the defense because of a

etrial protective order. On the basis of

2 newly unveiled transcript, Fitzsimmons

i Towne moved for a new trial because of

Slations of the Fifth and Sixth Amendments

itzsimmons) or for an evidentiary hearing

i for improperly failing to disclose

sulpatory and useful material. The trial

irt certified that it would grant the

-ion for an Evidentiary Hearing and the

‘th Circuit remanded the case. The trial

irt held a four-day evidentiary hearing.

After the evidentiary hearing, the

al court made findings of fact and

iclusions of law (Appendix, Volume VI, page

LD The trial court determined that the

fernment violated Fitzsimmons' Sixth

ndment right to counsel by permitting

nard Schultz, a longtime confidential

informant for the FBI, to record a

conversation between Fitzsimmons and Schultz

in May 1985, after Fitzsimmons was indicted in

this case and after his retained counsel had

made an appearance. Schultz had become

involved in narcotics trafficking and had

been told by the Government that his

cooperation would result in the amelioration

of his own case.

The FBI gave emergency

authorization for the clandestine recording

upon a representation that Strike Force

Attorney Keith Corbett had determined that no

entrapment would result by the recording. At

the evidentiary hearing, Corbett testified

that he did not remember being asked about a

Schultz-Fitzsimmons conversation. The trial

court found that the FBI agent who discussed

the matter with AUSA Corbett "either omitted

or failed to make clear that the conversation

would be between Schultz and Fitzsimmons"

(Appendix, Volume VI, page 398).

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The recorded conversation between

1ltz and Fitzsimmons lasted approximately

hour. At the evidentiary hearing,

irnment agents testified that they had

-sructed Schultz not to discuss’ the

.ctment or to recommend that Fitzsimmons

id guilty oor approach the Government

iout counsel. However, Schultz blatantly

pred his alleged instructions and

berately elicited information from

‘simmons regarding the Indictment and

‘Simmons' views of his own conduct.

Two days after this conversation was

rded, a confidential source told an FBI

it that Fitzsimmons wanted to meet with

} without his attorney to discuss

eration with the Government. The FBI

t told trial attorney AUSA John Newcomer

t Fitzsimmons' request for a meeting and

. informed Newcomer of the existence of the

rded conversation. Newcomer then

ened to the tape. Newcomer assumed that

recording had been authorized by Strike

Force Attorney Corbett, but Corbett later

told Newcomer that he knew nothing of the

recording. In a written internal memorandun,

AUSA Newcomer stated that he did not plan to

use the tape at trial, except for possible

impeachment should Fitzsimmons testify.

Newcomer concluded the memorandum by stating,

"(ijt is too late to isolate trial counsel

from any taint that might accompany the |

existence of or knowledge of the statement of

Fitzsimmons."

Newcomer submitted a Motion for a

Protective Order, plus an Offer of Proof

regarding the recorded conversation and the

transcript on October 30, 1985, before trial

began. On November 20, 1985, the Court

ordered the transcript and recording sealed

(Appendix, Volume II, page 99). The Court

stated that the transcript and the recording

would have been discoverable under FRCrP 16,

but that the Protective Order was required by

the "special circumstances" of the case.

— a ee ee

As to Petitioner Towne, the Sixth

Circuit concluded that as to Towne, some of

the statements made by Fitzsimmons and tape

recorded by Schultz, could be interpreted by

a finder of the facts as attempts to explain

the dealings with unindicted Coconspirator

Brown and that the actions alleged to be

taken by Towne were not criminal but as bona

fide activities by Petitioner Towne

(Appendix, Volume VII, page 465). The trial

court made a finding that the tape itself may

have been useful to both Towne and

Fitzsimmons (Appendix, Volume VII, page 465).

Towne's defense was that anything of value

that may have been given was given after

Fitzsimmons was no longer a trustee, had

nothing to do with his position or action as

a trustee and was given for a bona fide

purpose. Towne had argued that things of

value were given after Fitzsimmons was no

longer working for the union, motivated by

Fitzsimmons coming to work for Towne's

company, because Fitzsimmons had substantial

connections with trade unions. His father

was president of the entire Teamsters' Union.

The surreptitious taped conversation had

Fitzsimmons stating these things and

confirming a noncriminal purpose as to

activities by Towne. Fitzsimmons did not

take the stand at his trial. Towne argued

Fitzsimmons' words, on the previously

described tape recording, were deprived of

being presented into evidence by Towne, who

had requested a severance on numerous

occasions. The jury would have been able to

weigh these words as they were exculpatory to

Towne and consistent with Towne's total

defense as to bona fide purpose and time of

action. At the post-trial hearing,

government counsel admitted that he wanted

the flexibility to use the tape recordings in

case Fitzsimmons did take the stand, to use

the tape recording for whatever purpose. He

did not want to be deprived of its (the

tapes') usefulness. At the post-trial

hearings the government conceded the tape

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recording was "mildly" inculpatory as to

Fitzsimmons. Towne's defense was the giving

of things of value for a bona fide reason

(Appendix, Volume VII, page 468).

Towne maintained the evidence on

the tape as to him was admissible,

exculpatory as to Towne, material, aided in

the preparation of a defense, would have

assisted in determinations as to Towne or

other Co-Defendants taking the stand to aid

in Towne's defense. Towne maintained that

the evidence--the tape recording--was

admissible under FRE 803(24), FRE 804(b) (3),

as reliable and trustworthy evidence. The

evidentiary hearing established that

Fitzsimmons made these statements to the

undercover government informant in private,

seeking help or advice and with no knowledge

that Fitzsimmons (the declarant) was being

recorded.

After making findings of fact, the

trial court concluded that Fitzsimmons' Sixth

Amendment rights had been violated, but

denied Fitzsimmons a new trial. The trial

court determined that Fitzsimmons had to show

actual prejudice to be entitled to any remedy

for the Sixth Amendment violation.

Fitzsimmons then per tected his appeal to the

Sixth Circuit.

The trial court concluded that, as

to Towne, the failure to disclose the tape

and provide its content did not violate Brady

vV Maryland, 373 US 83 (1963) and did not

constitute a failure to disclose exculpatory

material.

The Sixth Circuit upheld the trial

court's denial of relief for the Sixth

Amendment violation on the grounds that

Fitzsimmons had failed to establish prejudice

(Appendix, Volume VII, page 462). The Court

of Appeals affirmed Towne's and Fitzsimmons'

RICO conspiracy conviction on the grounds

that "[e)ven though non-offenses, the acts

alleged were sufficient to demonstrate that

Fitzsimmons and Towne agreed to commit two

racketeering acts" (Appendix, Volume VIII,

pages 485-86). Fitzsimmons' and Towne's

Petition for Rehearing and Rehearing En Banc

Was denied on April 22, 1991 (Appendix,

Volume VIII, page 518).

The Sixth Circuit erroneously

affirmed the Petitioners' RICO conspiracy

conviction. The Sixth Circuit held that the

invalid allegations in Count III (Towne) and

Count V- (Fitzsimmons), as substantially aga.

aphrased in th «fCO conspiracy count,

ld serve as the basis of a finding that

zsimmons and Towne agreed to participate

the RICO conspiracy.

To sustain a RICO conspiracy

viction, the Sixth Circuit requires proof

t the Defendant agreed to the commission

any two of the racketeering acts charged

the indictment. United States v Joseph,

F2d 549 (6th Cir, 1986), cert den 110 S

1816 (1990). In another petition, this

rt has been asked to determine the

ficiency of pleading of racketeering acts

re the Indictment did not identify the

ividual predicate acts which allegedly

stituted the "pattern" of racketeering

ivity required by 18 USC 1962(c). United

tes v Glecier, 923 F2d 496 (7th Cir,

l), petition for certiorari filed May 31,

l. However, in this case, the Indictment

2>ged specific racketeering acts against

ZzSimmons and specific racketeering acts

inst Towne, and the jury was instructed

that they could convict Petitioners of

conspiracy if they found that either agreed

to personally commit two acts of racketeering

or that they agreed that someone else would

commit two acts of racketeering.

In this case, the trial court

granted arrest of judgment on Counts I, III

and V. (Towne was acquitted of Count I

before the jury.) The granting of arrest of

judgment is based on the language of the

Indictment, and not on any evidence adduced

at trial. United States v Sisson, 399 US

267, 90 S Ct 2117, 26 L Ed 2d 608, 618

(1970). By granting arrest of judgment on

Counts I, III, and V, the trial court

determined that those counts did not charge

crimes. The allegations in Counts III and Vv,

which were restated in Count I and were

paraphrased in the RICO conspiracy charge,

did not state offenses. Acts which are not

offenses cannot be racketeering acts in a

RICO prosecution.

Under 18 USC 1961(1), an act of

cketeering activity" means "any act which

indictable" under certain criminal

visions of the United States Code and

te law. The Sixth Circuit adopted a

row and incorrect view, proffered for the

st time on appeal by the Government, of

arrested Count III and Count V charge:

The government offers a

narrower

characterization.

Although the predicate

acts are technically not

offenses because they are

time-barred (or more

appropriately invalidly

pleaded continuing

offenses in an attempt to

defeat the time bar),

they nonetheless are

sufficient to demonstrate

that defendant had agreed

to participate in the

joint objectives of the

conspiracy to perform two pI

predicate acts. To the tc

extent the jury relied on Ce

the actual acts alleged le

in those non-offenses, it it

relied on acts which were re

sufficient to demonstrate ce

defendant's participation a

in the conspiracy. We V.

agree with the latter ji

characterization. Even ar

though non-offenses, the ac

acts alleged were tr

sufficient to demonstrate uy

that Fitzsimmons agreed cc

to commit two e]

racketeering acts. By ac

agreeing to commit those | he

acts, Fitzsimmons entered 74

into the conspiracy. ir

(Appendix, Volume VIII, pages 485~86) e]

When the Sixth Circuit used the

rase “acts alleged in those non-offenses"

describe the allegations in the arrested

ints I and V, it clearly meant something

ss than indictable offenses. Only

lictable offenses may be alleged as

sketeering acts or predicate acts. In this

se, the Indictment failed to allege an

idictable offense" in Count III and Count

That is why the trial court arrested

igment on Count III and Count V. Count III

i Count V offenses were not racketeering

-s and should not have been considered by

> jury. The opinion is apparently based

yn the questionable proposition that a RICO

ispiracy indictment need not allege all

ments of offenses charged as racketeering

-S. That proposition is contrary to the

ding in Russell v United States, 369 US

), 82 S Ct 1038, 8 L Ed 2d 240 (1962). An

lictment must allege at least the essential

ments of the offense charged, apprise the

‘endant of what he must defend against and

permit a defendant to plead double jeopardy

to bar his prosecution. Russel], at 764.

The Sixth Circuit adopted a

constitutionally suspect and substantially

lesser standard of proof of RICO conspiracy

which violates the admonition in Russel] v

United States, supra, that an indictment must

inform a defendant of the offense charged.

The essence of a RICO conspiracy is the

agreement to conduct the affairs of an

enterprise through a pattern of racketeering

activity. 18 USC 1962(c) and (d). The Sixth

Circuit determined that circumstantial proof

of an agreement was sufficient to sustain a

RICO conspiracy conviction without regard to

existence of the requisite racketeering

activity. This analysis ignores the plain

language of the RICO statute, the

requirements of the Fifth Amendment and

Russell, supra.

Furthermore, the Sixth Circuit's

reliance on United States v Persico is

misplaced. In Persico, the Court of Appeals

r the Second Circuit upheld RICO conspiracy

nvictions which relied on predicate acts

r which the defendants had been convicted

re than five years earlier. United States

Persico, 832 F2d 705, 714 (2nd Cir, 1987).

e defendants argued that the conduct for

ich they were convicted could not serve as

edicate acts because it occurred more than

ve years before their Indictment. The

cond Circuit held that the Government's

oofs established that the conspiratorial

reement continued until the filing of the

jictment and no limitations error occurred.

rsico, at 713. Persico did not address the

sue of the sufficiency of the allegations

the predicate acts charged in the

jictment.

This Court has frequently held

that a conspiracy charge and conviction are

fatally defective where a*~conspiracy

conviction is based upon allegations that the

objects of the conspiracy were violations of

criminal statutes, and the allegations fail

to state an offense, and the jury may have :

premised the conspiracy conviction on conduct

which is not criminal. Stromberg v |

California, 283 US 359, 51 S Ct 532, 75 L Ed

1117 (1931); Leary v United States, 395 US 6,

89 S Ct 1532, 23 L Ed 2d 57 (1960); Chiarella |

v United States, 445 US 222, 100 S Ct 1108, |

63 L Ed 348 (1979); Zant v Stephens, 462 US

862, 103 S Ct @733, 77 L Ed 2a 235 (1982).

These precedents have been routinely followed

by Courts of Appeals, including the Sixth

Circuit: Callanan v United States, 881 F2d

229 (6th Cir, 1989) cert den 110 US 1816

(1990); United States v Marcello, 876 F2d

1147 (5th Cir, 1989); United States v Mandel,

862 F2d 1067 (4th Cir, 1988) cert den 469 US

862; United States v Holzer, 840 F2d 1343

(7th Cir, 1988); Ingber v Enzor, 841 F2d 450

(2nd Cir, 1988).

In this case, the jury was

specifically instructed that the Government

could prove either that Towne or Fitzsimmons

personally agreed to commit two of the

predicate acts alleged in the Indictment or

agreed that someone else would commit two of

those acts. The RICO conspiracy charge

included allegations which paraphrased the

allegations in the invalid Count III and

Count V. The jury was allowed to consider

the invalid allegations in determining

whether Fitzsimmons agreed to participate in

the alleged RICO conspiracy. A RICO

conspiracy requires the jury to find that the

Defendant agreed to the commission of two of

the predicate acts alleged in the Indictment.

Joseph, supra.

When the trial court determined

that Counts I, III and V were legally

defective, it determined that an act of

racketeering alleged against Fitzsimmons

personally or Towne personally was legally

insufficient. It also implicitly determined

that subparagraphs 5 and 6 of the conspiracy

count did not state legally-sufficient

objects of the criminal conspiracy because

subparagraphs 5 and 6 paraphrased defective

- Count V and defective Count III.

Additionally, Towne had been acquitted of

other alleged predicate acts in the

substantive conspiracy by the jury.

It is clear from the convictions

on Count I, Count III, and Count V that the

jury did focus on the invalid allegations in

Count III and Count V. The Count V offense

(Fitzsimmons - 18 USC 1954 violation),

re-alleged in Count I as a racketeering act,

was the only act in Count I within a period

not barred within the statute of limitations.

Without a finding that Fitzsimmons committed

the Count V offense, the jury could not have

found Fitzsimmons guilty of the RICO

substantive offense alleged in Count I.

Similarly, the parallel is true analyzing the

content of Counts I, II and III as to Towne.

Furthermore, the record does not

reveal any other alternative grounds for the

jury's conspiracy conviction. It is a

reasonable assumption that the conspiracy

conviction on Count II was based on the

convictions rendered in Counts V and I and,

as to Towne, Count III. During its

deliberations, the jury sent a note to the

court clerk asking for clarifications as to

the verdicts it could render on Counts II and

III (Towne's 1954 substantive charge). In

response to the trial court's inquiry, the

jury indicated that it had already reached

unanimous decisions on Counts I, IV, V, VI,

VII and VIII. Since the jury indicated that

it had already reached verdicts as to Counts

V and I at the time it sent its note to the

trial court, it is reasonable to assume that

convictions on Counts V and Count I formed

the grounds for the jury's conviction of

Fitzsimmons on Count II. Because Fitzsimmons

oe been convicted of RICO conspiracy

based on the legally-invalid allegations of

Counts V and I, his conviction on Count II

should be vacated. Similarly, analysis of

Towne's acquittal of Count I and the legally

invalid allegations of Count III establish

that his conviction as to Count II should be

vacated.

Stromberg, supra, has long held

that a conspiracy charge and conviction must

be set aside if some of the alleged objects

of the conspiracy failed to state offenses

and it is possible that the jury relied on

the invalid charges in reaching its verdict.

The jury may have relied on the invalid Count

III, Count V and Count I as incorporated into —

ind substantially restated in Count II to

convict Towne or Fitzsimmons of RICO

conspiracy. Because Fitzsimmons was

convicted by the jury on Count V and Towne on

count III, the obvious conclusion is that the

ury convicted on the RICO conspiracy charge,

ased upon a finding that either had agreed

oo the commission of the racketeering acts

estated from Count V or Count III into the

onspiracy charge. There are no other

ubstantive convictions which can be used to

nfer the basis of the jury's decision on

ount II. Fitzsimmons RICO conspiracy

onviction should be vacated. Towne's

onspiracy conviction should be vacated.

II. The Sixth Circuit Erred When It

Required Fitzsimmons To Establish

That Evidence Obtained In

Violation of His Sixth Amendment

Rights Was Introduced At His

Trial.

In Cutillo et. al. v Cinelli, this

Court declined to grant certiorari to ao

petitioner who asked the Court to determine

whether the burden of establishing prejudice

from a Sixth Amendment violation rests on the

defendant or the prosecution. Cutillo, et.

al. v Cinelli, cert den, 485 US 1037 (1988), —

opinion below: Cinelli v City of Revere, 820.

F2d 474 (lst Cir, 1987). Justice White

dissented from denial of certiorari in

Cutillo, supra, and cited Cinelli, the Sixth

Circuit opinion in United States v Steele,

infra, and the Third Circuit's opinion in

United States v Costanzo, infra as

establishing a conflict among the Circuits

for which certiorari should be granted.

Chief Justice Renquist and Justice O'Connor

joined Justice White in his dissent. The

Sixth Circuit's Opinion in Fitzsimmons

establishes that the conflict in the circuits ©

remains unresolved and requires resolution by

this Court.

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A. The Sixth Circuit Misinterpreted

is Co 's ings in

Weatherford v Bursey, 429 US 545

(1977) and U. 8. v Morrison, 449

US 361 (1981) And Its Own

Precedent In U. 8. v Steele, 727

F2d 580 (1984).

The Fitzsimmons' opinion concluded

tC, even though there had been a Sixth

ndment violation based upon the

entional elicitation of information from

zSimmons through the use of a confidential

Irmant and communication of the

idestine information to the prosecution

ta che investigating agents, there was no

is for a new trial because no prejudice was

mm (Appendix, Volume VII, page 462). This

jing misinterprets Weatherford v Bursey,

US 545, 97 S Ct 837, 51 L Ed 2d 30 (1977)

United States v Morrison, 449 US 361, 101

-. 665, 66 L Ed 2d 564 (1981) and misapplies

Sixth Circuit's analysis in United states

v Steele, 727 F2d 580 (6th Cir, 1984) cert

den, Scarborough v United States, 467 US 1209

(1984). Neither Weatherford, Morrison, nor

Steele, require that a showing of actual

prejudice must be made before a remedy for a

Sixth Amendment violation will be tailored.

In Weatherford, supra, this Court

agreed that there was no Sixth Amendment

violation based upon trial court's findings

of fact that Weatherford had not discussed

with or passed on to the prosecution

information concerning Bursey's trial plans

or strategy or anything having to do with the ©

defense. 429 US at 554. This Court noted

that Bursey's claim of violation would have

been stronger if, inter alia, "those

overheard conversations [had] been used in

any other way to the substantial detriment of

Bursey .. ." Id., at 545.

In Morrison, supra, this Court

assumed that a Sixth Amendment violation had

occurred, 449 US at 364. The Morrison

holding was specifically limited to the

stion of dismissal of the Indictment as an

ropriate remedy. Morrison did not require

howing of actual prejudice. This Court

ely held that the Third Circuit's

missal of the indictment was

appropriate" and "drastic" where no

jJudice was pled or shown. 449 US at 367.

The Sixth Circuit's determination

t there must be some direct use of the

ormation obtained from Fitzsimmons

interprets Weatherford, supra.

therford requires only a finding that

re is "at least a realistic possibility of

ury to [the defendant] or benefit to the

te." 429 US at 558. Weatherford does not

uire a showing of actual use of the

endant's surreptitiously obtained words as

jence at trial. The question is whether

"overheard conversations have produced,

=ctly or indirectly any of the evidence

2>red at trial." Id. at 552 (emphasis

2d). This view is consistent with the

jestion in Morrison, supra, that a new

trial may be an appropriate remedy to remove

the taint of information obtained by the

government in violation of a defendant's

Sixth Amendment rights. This Court has also

held that a new trial is the most appropriate

means of affording a defendant an opportunity

to protect himself from the use of evidence

obtained in violation of the Sixth Amendment

even when the evidence might otherwise be

inadmissable. Black v United States, 385 US

26 (1966); O'Brien v United States, 386 US

345 (1967).

The Fitzsimmons panel was not

bound by the Sixth Circuit's prior holding in

United States v Steele, 727 F2d 580, cert den

sub nom Scarborough v U. 8., 467 US 1209

(1984). In Steele, there was no tainted

information, no communication to the

prosecution, no purposeful intrusion and no

Sixth Amendment violation. The Steele panel

did not reach the issue of what prejudice

must be shown before a remedy would be

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anted because the Sixth Circuit determined

it no constitutional violation occurred.

Here, the Sixth Circuit concluded

it Schultz and Fitzsimmons did not discuss

frense matters. However, most of their

iversation did relate to the pending

irges against Fitzsimmons. After a four

y evidentiary hearing and a review of

yposed findings of fact and law submitted

the parties, the trial court found that

> majority of the conversation between

-ZSimmons and Schultz related to the

lictment. The trial court also found,

-ing Kuhlmann v Wilson, 477 US 436, 477

86), that the information obtained from

-zsimmons was deliberately elicited by the

. Of a highly experienced confidential

‘Ormant who had a substantial incentive to

id his own serious drug charges. The

al court stated, “without a doubt, Schultz

k some action beyond mere listening that

; designed deliberately to elicit

riminating remarks" (Appendix, Volume VI,

page 389). The Schultz-Fitzsimmons

conversation on May 1, 1985, lasted more

than an hour. Schultz led Fitzsimmons

through a discussion of the nature of the

charges and Fitzsimmons' view of the facts

relating to his case as well as his

potential defenses. Fitzsimmons was led to

relate his views of his conduct and the

charges against him. Fitzsimmons' views were

obviously formed after consultations with his

attorney over the months after his

arraignment.

After listening to the recording

of the Schultz-Fitzsimmons conversation, the

FBI agent in charge of the Fitzsimmons

investigation was of the view that the tape

recorded evidence was damaging to the

defendant and highly important to the

government. Within three weeks of the

recording, the prosecutor listened to the

tape, discussed it with the case agent and

wrote to his superior at the Department of

Justice that "it is too late to isolate trial

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insel from any taint which might accompany

2 existence or knowledge of the recorded

itements of Fitzsimmons." The Government

2n proceeded with its trial and witness

pparations.

At the evidentiary hearing, AUSA

i trial attorney Newcomer testified that

> tape clearly established what Fitzsimmons

| his retained counsel thought of the

minal charges. These ingredients were not

‘sent in Weatherford. Based upon the

‘tual findings of the trial court below,

re is in this case a "realistic

Sibility of injury to the defendant or

efit to the state." Weatherford, supra.

The Sixth Circuit concluded that

. prosecutor's misconduct had not

judiced Fitzsimmons. However, neither the

al court nor the Sixth Circuit addressed

zsimmons' argument that the prosecutor's

conduct had violated the rules of conduct

licable to Government attorneys. The

th Circuit acknowledged its supervisory

authority to remedy prosecutorial misconduct,

but ignored Fitzsimmons' alternative grounds

for relief.

Model Code of Professional

Responsibility DR 7-104 (A) (1) provides that

an attorney shall not "communicate or cause

another to communicate on the subject of the

representation with a party he knows to be

represented by a lawyer in that matter unless

he has the prior consent of the lawyer

representing such other party or is

authorized by law to do so."

The United States District Court

for the Eastern District of Michigan has

adopted the Rules of Professional Conduct for

the State of Michigan as the guidelines for

attorneys before that Court. Rule A-4, Local

Rules of Eastern District of Michigan. In

1985, when the clandestine reddrding was

made, the Code of Professional Responsibility

for the State of Michigan included CPR 7-104,

which is identical to DR 7-104 of the Model

Code. This rule applies to federal

prosecutors. United States v Hamad, 846 F2d

854 (2nd Cir, 1988), cert den, 111 S Ct 192;

ABA Standards Relating to the Administration

of Criminal Justice, Standard 3-4.1

(commentary).

The tape recording was not an

isolated instance of contact by the

prosecution with Fitzsimmons without notice

or consent of Fitzsimmons' counsel. Within

weeks of the recording, the prosecutor

attempted to engage Fitzsimmons in

discussions aimed toward a plea resolution of

the case without the involvement of

Fitzsimmons' retained counsel. These actions

Clearly violate the rules of conduct which

apply to all counsel, but which should have

compelling application to prosecutors. The

Court's supervisory power exists to protect

the integrity of the judicial process and to

deter government misconduct. United States v

Hasting, 461 US 499 (1983). The use of an

informant first to deliberately elicit

information relating to the pending

indictment, followed by the use of another

informant to attempt to engage Fitzsimmons in

plea negotiations without his counsel,

violated the then applicable section of the

Michigan Code of Professional Responsibility,

DR7-104(A)(1) and Standard 3-4.1(b) of the

ABA Code of Professional Responsibility.

' These rules prohibit contact by counsel with

an opposing party to litigation who is

represented by counsel. The Sixth Circuit

erred when it ignored the clear evidence of

the prosecutor's repeated violations of

disciplinary rules.

The Sixth Circuit's determination

that Fitzsimmons must show actual prejudice

to obtain relief for the Government's

deliberate violation of his rights conflicts

with the holding of the Court of Appeals for

the Third Circuit in United States v Levy,

577 F2d 200 (1978). The Third Circuit has

rejected an analysis of remedies for Sixth

Amendment violations which require the

defense to show actual prejudice. The Third

Circuit expressed concern over the trial

court's ability to determine prejudice to the

defense occasioned by a knowing invasion of

the attorney-client privilege and the

disclosure of confidential information to the

Government:

- « « ([W)je think that

there are overwhelming

considerations mitigating

against the standard

which tests the Sixth

Amendment violations by

weighing how prejudicial

to the defense the

disclosure is. .. [i]t

is highly unlikely that a

court can, in such a

hearing, arrive at a

certain conclusion as to

how the Government's

knowledge of any part of

the defense strategy

might benefit the

Government in its further

investigation of the

case, in the subtle

process of pretrial

discussion with potential

witnesses, in the

selection of jurors or in

the dynamics of trial

itself ... [{t]Jhe Sixth

Amendment violations

might be disclosed, if at

all, late in the trial or

after the trial has been

completed. At that

point, the trial court

applying an actual

prejudice test would face

the virtually impossible

task of re-examining the

entire proceeding to

determine whether the

disclosed information

influenced the

Government's

investigation or

presentation of its case

or harmed the defense in

any other way. Levy,

Supra at 208.

The Third Circuit also considered ‘

ind rejected analogies to remedies for Fourth

mendment violations as failing to protect

the broader concerns of the Sixth Amendment:

We think that the inquiry

into prejudice must stop

at the point where

attorney-client

confidences are actually

disclosed to the

government enforcement

agencies responsible for

investigating and

prosecuting the case.

Any other rule would

disturb the balance

implicit in the adversary

system and thus would

jeopardize the very

process by which guilty

and innocence are

determined in our

society. Levy, supra at

209.

The Third Circuit rejected the

inference that Weatherford v Bursey, supra,

required a separate showing of prejudice for

relief after actual disclosure of

confidential information occurred. Levy at

210. Again citing the policies implicated by

ie Sixth Amendment, the Third Circuit

ncluded that Weatherford did not "lay down

e rule" that additional prejudice beyond

‘tual disclosure must be shown. Id. The

ird Circuit has reaffirmed its position in

ited States v Costanzo, 740 F2d 251 (1984),

rt den, 105 S Ct 3477 (1985).

The Sixth Circuit's opinion also

nflicts with the holding of the Court of

peals for the District of Columbia in

iggs v Goodwin, 698 F2d 486, 493 (DC Cir,

83), cert den, 104 S Ct ‘94 (1984). Citing

United States v Morrison, supra, the

iggs Court stated that the amount of

ejudice to be shown before a remedy will be

anted need not require a showing that the

tual outcome of the trial was affected.

The Sixth Circuit's holding in

tzsimmons also conflicts with the approach

the First Circuit, which shifts the burden

proof to the prosecution once the

fendant establishes a prima facie case of

prejudice resulting from the violation of his

Sixth Amendment rights. Cinelli v City of

Revere, 820 F2d 474 (1987), cert den sub nom

Cutillo, et. al. v Cinelli, 485 US 1037

(1988).

III. The Petitioner Towne's

re"

(1!

Presentation And Preparation

Of His Case.

The Petitioner Towne's trial was

‘ejudiced by the Government's failure to

sclose the secret tape recording of

tzsimmons made by the Government Informant

hhultz. He did not receive a fair trial or

nmstitutional Due Process within the meaning

United States v Agurs, 427 US 97 (1976).

me of the words spoken by Fitzsimmons on

e tape recording, made after the Indictment

Fitzsimmons and Towne but prior to trial,

re exculpatory as to the Petitioner Towne.

rtainly these words went to the heart of

wne's defense. The actions by the

vernment and the unavailability of the

idence, exculpatory and useful to the

fendant in preparation and conduct of his

fense at trial constitute a Due Process

Olation and his conviction must be

versed. Brady v Maryland, 373 US 83

963).

The gravamen of the only count to

which Towne stands convicted is centered in

the intent and purpose for Towne giving

things of value to Fitzsimmons. 18 USC

Section 1954 makes it a crime only if the

things of value were given to influence the

actions, decisions and duties of Fitzsimmons

related to his ERISA function, when he was

Trustee of the Teamsters Welfare Fund.

Towne's defense maintained that his

purpose was bona fide, not criminal.

Whatever was given to Fitzsimmons was not at

a time when he was Trustee, nor were his

actions as a Trustee--but at a later time--

after Fitzsimmons had long resigned his

position as Trustee. It was for the purpose

of getting Fitzsimmons to come to work for a

company associated with Towne if such

employment were to be allowed.

The trial court conceded (at a

post-trial hearing) that the tape itself may

have been useful to the Defendant (Appendix,

Volume VII, page 465). Additionally, the

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VI.

act

al court conceded that the recorded words

Fitzsimmons as to Towne contained

ylanations that the dealings of Fitzsimmons

+h Towne were bona fide (Appendix, Volume

.» page 468).

The Petitioner Towne maintains the

ions of the Government in suppressing the

e and therefore making unavailable words

Fitzsimmons that exculpate Towne are part

the Due Process violation and the denial

him of a fair trial. The Government, in

ting the trial court's Protective Order

pressing the tape recording from pre-trial

covery and its use by Petitioner, resorted

repeated false representations to the

al court. This is a conclusion reached by

trial court (Appendix, Volume VI, pages

-398).

The deprivation of exculpatory and

ful material, when reviewed in the context

the control of 18 USC 1954 offenses

ablishes that had the evidence been

closed, there is a reasonable probability

that the result of the proceedings would have

been different. United States v Bagley, 473

US 667, 182 (1985).

The actions of the Government and

misuse of the trial court in obtaining the

Protective Order (an Order that also held

that the tape recording was FRCrP 16 material

(Appendix, Volume II, pages 100-101) was the

equivalent of conduct frowned upon in earlier

Court of Appeals' decisions. Prior

statements, given by a witness (herein

potential words of witness/co-defendant

Fitzsimmons) made unavailable due to the

wrongful conduct of a party (in the instant

matter the Government obtaining in a false

manner the Protective Order), is admissible

against the party, where the statements would

have been admissible had the witness been

available to testify on behalf of the

Petitioner; e.g., Steele v Taylor, 684 F2d

1193 (6th Cir, 1982). The Government made

Fitzsimmons unavailable, knowing he is

charged as a co-defendant. They wrongfully

pag

osed a severance and deprived Towne of the

trial use or knowledge of Fitzsimmons’

‘ds on the tape recording that contained a

1a fide purpose as to receipt of things of

ue from Towne. The reason for reversal of

conviction under such Government conduct is

ed in part on public policy recognition by

' courts that protects the integrity of the

ersary process. The protection deters

igants from acting on strong incentives to

wingly make unavailable adverse testimony

idence) on a principle of reciprocity

ilar to the equitable doctrine of clean

ds. This principle applies to the

ernment as a party to litigation. steele

aylor, supra. It cannot be lost upon the

rt that the Government made the secret

e of Fitzsimmons unavailable to Towne

ough its unnecessary and falsely

resented need for the Protective Order.

The portion of the tape transcribed

part of the record (Appendix, Volume III,

es 183-190) established Fitzsimmons

commenting on the innocent reason for receipt

by his wife of a job and some Eleven Thousand

Dollars. Fitzsimmons stated he was not

working for the union at the time. He was

not at ERISA employee or Trustee of the Fund

at the time of receipt. Receipt of things of

value from Towne had nothing to do with the

union. They were interested in future

connections with Fitzsimmons' father. The

things of value and purpose with respect to

time and date were in December of 1981--long

after Fitzsimmons had resigned as a Trustee

of the Fund. It was claimed this was bona

fide compensation.

The jury had trouble as to

Petitioner Towne. He was acquitted of the

RICO substantive count containing predicate

acts of giving for an unlawful purpose. The

bona fide purpose as to Fitzsimmons' words

spoken to the Informant and secretly recorded

were crucial and important. They go to the

reasonable probability that the outcome may

have been different. United States v Bagley,

Supra, page 50.

The trial court, in its post-trial

opinion, by implication seems to accept the

admissibility of the taped words of

Fitzsimmons (Appendix, Volume VI, page 401-

402). However FRE 803(24) provides that the

taped words of the unavailable Fitzsimmons (a

co-defendant, who did not take the stand and

could not be compelled to do so; a severance

was not allowed Towne and Towne knew nothing

of the tape recording) were admissible

evidence at trial. Intent was key to Towne's

charges. United States v Popenas, 780 F2d

545 (6th Cir, 1985) provides guidance on the

issue. Here the taped words as to Towne:

(a) would be offered as evidence of a

material fact--probative of a bona fide

intent; (b) the circumstances had guarantees

of trustworthiness, including some things

Fitzsimmons said as inculpatory to

Fitzsimmons; (c) admissibility was consistent

with the interest of justice; (d) lastly,

. ae, See Pee el ee a ke ee ee i,

y v fe

there was no way notice of intent to offer

the taped statement of Fitzsimmons could be

given as Towne had no pre-trial knowledge of

its existence. See also United States v

Puglisi, 740 F2d 240 (2nd Cir, 1986) (dicta

court condemns the structure of a trial and

-activity used by the Government to keep out

evidence that was relevant and material to a

defense).

The instant matter troubled the

jury as to Towne. They split on their

verdict, acquitting Towne of the RICO

substantive offense! A reasonable doubt

could be found and the result, had the hidden

evidence been presented or the Petitioner

allowed the use for the preparation of his

defense; i.e., taking the stand, support for

a severance, getting Fitzsimmons to take the

stand; produces under a fair interpretation

of Brady and Bagley, supra, at pages 46 and

50 and page, that the outcome would have been

@ifferent. If fair trials, constitutional

protections and procedural rules promoting

fairness are to have real meaning, the sole

conviction, RICO conspiracy, on the single

count the Petitioner Town has set against

him, should be reversed by this Honorable

Court.

CONCLUSION

Fitzsimmons' and Towne's RICO

conspiracy convictions were affirmed on the

basis that proof of an agreement to commit

acts which are not crimes is sufficient to

establish participation in a RICO conspiracy.

Fitzsimmons was denied any relief for the

Government's deliberate violations of his

right to counsel because the lower courts

required him to show that the Government made

direct use of the clandestine tape recordings

at Fitzsimmons' and Towne's trial. Both of

these decisions are erroneous. Further,

Towne was denied a fair trial. The

Government improperly failed to disclose

exculpatory and useful evidence that violated

Constitutional and procedural protections

that require the reversal of Towne's

conviction. The Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

HAROLD GUREWITZ (P 14468)

Attorney for Petitioner Fitzsimmons

3600 Cadillac Tower

Detroit, MI 48226

(313) 963-8155

RICHARD ZIPSER (P22747)

Attorney for Petitioner Towne

1760 S. Telegraph Road, Ste. 300

Bloomfield Hills, MI 48302

(313) 253-0740

Dated: July 1, 1991.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.