# Petition for Writ of Certiorari — Fitzsimmons v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 858

## Text

61-45 FILE

No. 87-1284/2038; 87-1286/207 8
OFFICE OF THE

DB
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.

ii

TABLE OF CONTENTS

ee a ee ee ee ee
Ee eee ee © |
IWL@ GF ABUEROTICIONW « . © «© «+ 2 2 c« te ew WHS
ES Ee ee ee ee
ES ee eee ee
ee a ee ee ee a
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)

iv

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

vi

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,

55
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)

ix

025

~35

~24

~ 34

21,

-32,

.50,

46

34

wn

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,

5S

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

xi

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,

23

34

32,
37,

45

TABLE OF AUTHORITIES
FEDERAL CASES (Continued)

Zant v stephens,

28

18

18

18

18

18

462 US 862,

103 8S Ct 2733,

77 L Ed 2d 235 (1982)

USC

usc

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

24

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

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sc

US

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

co

sa

an

Ju

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).

Sct
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Gov
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Fit

Fit

rec
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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.

10

— 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

a2

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

12

ee ee ee

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

13

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,

14

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).

15

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.

16

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

17

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.

18

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

19

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

21

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

22

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.

23

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).

24

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

25

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),

26

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,

27

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 —

28

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.

29

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.

tha‘
Ame!
inte
Fit:
inf
cla)
and

bas.
sho'
hol
429

and

S Ci

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

31

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

32

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

33

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

~

34

gri
thi

thé
de:
col
che
da}
pre
by
the
Fit
inc
cit
(1¢
Fit
use
inf
ave
tri
toc
was

inc

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,

35

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

36

co

thi
sti

the

pre

an
the
anc
cri
pre
fac
the
pos

ben

the
pre
tri
Fit
mis
app
Six

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

37

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

38

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

39

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

41

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

42

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

43

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

44

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

45

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

46

vi
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).

47

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

48

tr.
of
ex]
wit

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

49

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

50

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

5]

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

~

52

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,

53

. ae, See Pee el ee a ke ee ee i,
y v fe
i)

ie
:

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

54

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

55

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.

56

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2348%3A01. Public record. Not legal advice.