Opposition — Benedetto v. United States

F

No, 82-1070

Office-Supreme Court, U.S.

ILED

MAR 81 1983

ALEXANDER L. STEVAS,

CLERK

In the Supreme Court of the Hnited States

OctToper TERM, 1982

PAUL ROBERTS BENEDETTO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE !' NITED STATES IN OPPOSITION

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

FRANCIS J, MARTIN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1, Whether the procedures employed by the distict court

to ensure that petitioner's blindness did not interfere with

the fairness of his trial were unreasonably limited and

deprived petitioner of his Sixth Amendment rights to con-

front witnesses and to assistance of counsel.

2. Whether petitioner was deprived of the benefit of the

privilege against self-incrimination by the mere possession

by FBI agents and the federal prosecutor of a statement

made by petitioner to German police after he had been told

by an FBI agent that any statement given would not be

introduced in evidence against him in a federal prosecution,

except for impeachment purposes.

TABLE OF CONTENTS

Page

ES Sab ns bbeddw ceeds sncaciteeeraeneer cs l

SR abs 50 0id bakeeeas Cen bess deren ee bik l

EE vs kcusdwhaeedens baeeekewesaaeiiere l

PORT TEU TTS ETTPCETELT TCL eer Tiree. 3

SEE CA Ch ee dae cba beacidnesscseekauwes 10

TABLE OF AUTHORITIES

Cases:

Chambers v. Mississippi, 410 U.S. 284 ......... 4

Ferrell v. Estelle, 568 F.2d 1128,

opinion withdrawn, 573 F.2d 867 .......... 4,5

People ex rel. Myers v. Briggs, 46 I11.2d

Es Se PE EP 6k ce bakadbadecesecedeces 5

Perovich v. United States, 205 U.S.

Ge hike Wid bee be andes Rae eaes ckeEes 4,5

United States v. Grimes, 641 F.2d 96 ........... 6

United States v. Martinez, 616 F.2d

PU Sa ddios ohcddcaeaes Rawenannsecsdvevaecca 4,5

United States v. McDaniel, 482 F.2d

Be Gudn cb heesececeuehie dedke ondecdenans 9

United States v. Mitchell, 445 U.S.

Mls 60 orac oe bbda en bake end Weed sha seKeeer 8

United States v. Oliver, 626 F.2d 254 .......... 6

Woelke & Romero Framing, Inc. v. NLRB,

No. 80-1798 (May 24, 1982) .......cceeeeeees 9

IV

Page

Constitution, statutes, and rule:

U.S. Const. :

BEE. Fave cvecescecedcvccccccesossces 9

PE EE cdc dec aseccccdsccacnvcssecces 3

Rehabilitation Act of 1973, Section 504,

29 U.S.C. (Supp. V) 794 ..cccccccccccccccces 5

Oe Ns EE cadedeccaakhses se deeseasacsvcouen 2

OI 6 ths pak sic asendueawinsenes 2

Ses COED Sv cavivgcctcceccousccqsonevens 2

PCE nuGdwckes cdeccecusecacnteeenen 2

DP is SED wa wndecccccccmcctccscccceces 3

18 U.S.C. 350O(B) 0... ccccccccccccccccccccess 3

In the Supreme Court of the United States

Octower Term, 1982

No. 82-1070

PAUL Roper Ts BENEDETTO, PETITIONER

Vv.

UnNitep STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The judgment order of the court of appeals (Pet. App.

A-| to A-10) is unreported !

JURISDICTION

The judgment of the court of appeals was entered on

September 15, 1982. A petition for rehearing was denied on

October 27, 1982 (Pet. App. A-11 to A-12). The petition for

a writ of certiorari was filed on December 23, 1982 as of

November 26, 1982. The jurisdiction of this Court is

invoked under 28 U.S.C. 12541).

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of New York, petitioner was con-

victed on 22 counts of mail and wire fraud, in violation of 18

‘Pursuant to Second Circuit “we 0.23 and the terms of the order

itself this unpublished disposition nas no precedential value

J

2

U.S.C. 1341, 1343 and 2, and two counts of causing persons

to travel interstate in connection with a scheme to defraud

in violation of 18 U.S.C. 2314 and 2. Petitioner was sent-

enced to concurrent terms of 21 months’ imprisonment on

11 of the counts; sentence was suspended on the remaining

counts. Petitioner was also placed on probation for a three-

year period to commence with his release from incarcera-

tion.

The evidence showed that petitioner and his co-defend-

ants? participated in a fraudulent scheme to induce persons

seeking bank loans for various business projects to pay the

defendants money in reliance upon their promises to obtain

financing for these projects. During the period charged in

the indictment, the participants in the fraudulent scheme

received over $250,000 in advance fees from would-be bor-

rowers, but none of these borrowers received any of the

financing for their projects that had been promised by

petitioner and his co-defendants. Nor did any of the

defrauded borrowers succeed in securing a refund of the

loan fees paid. Eight sets of borrowers were defrauded in

this manner. Each transaction was an extended affair

involving repeated promises of funding, and repeated assur-

ances designed to allay the borrower's suspicion when the

promised funding was not forthcoming (see Pet. App. A-

3).3

2Eleanore Doroshow, William Mann, Robert Edwards and Ely Ades.

Co-defendant Frank Roder was acquitted.

JBecause petitioner does not dispute the sufficiency of the evidence

* or, indeed, his actual guilt of the offenses of which he was convicted, we

do not summarize further the facts of the eight fraudulent episodes, as

developed during petitioner's | |-week trial. These matters are reviewed

at pages 3-23 of the government's brief in the court of appeals.

.

Petitioner's defense was essentially that he had believed

in good faith that his co-defendant (William Mann) was

able to obtain the promised funding for the loans in

question.

ARGUMENT

1. Petitioner contends (Pet. 25-40) that the special

procedures employed by the district court to insure that his

blindness did not impair his ability to receive a fair trial

were inadeg,. ate and thus deprived him of his Sixth

Amendment rights to counsel and confrontation of wit-

nesses. He also complains that the court did not hold a

hearing to determine whether medication he took to control

an elevated blood pressure condition impaired his ability to

participate in the trial. These claims do not warrant further

review.

a. At the time of trial petitioner was 59 and had been

blind from birth. Because of petitioner's blindness all

government trial exhibits were premarked and provided to

defense counsel long before trial, and Jencks Act material

was provided two days in advance of each witness’ testi-

mony rather than following direct examination. Compare

18 U.S.C. 3500(a) and (b). Petitioner was provided with a

Braille-writer in order to take notes during trial and was

permitted to tape record the trial proceedings. An escort

was provided for petitioner by the Court. During petition-

er’s cross-examination an interpreter stood by his side to

read to him any documents relevant to the questioning.

(7/27/81 Tr. 7-21; see also C.A. App. 282a-283a.)*

Petitioner claims that these measures were insufficient

and that he was denied fundamental rights by the district

court's failure to make further accommodations that he

“C.A. App.” denotes the joint appendix filed in the court of appeals.

4

requested. Petitioner wished to have all trial exhibits trans-

lated into Braille, to have ail Jencks material delivered two

weeks before trial, and to have all trial exhibits read to him

when introduced. In denying this request the court was

careful to note that petitioner would have ample time before

trial to have the exhibits read to him. Furthermore, the

court agreed to grant brief recesses during trial if it were

necessary for defense counsel to consult with petitioner

concerning any document which had not previously been

made available (7/27/81 Tr. 17-19). Significantly, peti-

tioner does not point to any instance in which such a recess

was sought and denied.

Petitioner was entitled to a fair opportunity to defend

against the government's accusations. See Chambers v.

Mississippi, 410 U.S. 284, 294 (1973). This he was afiorded,

for given the special arrangements made his blindness did

not preclude effective participation in the trial. Petitioner

could hear and understand all of the testimony and had

been afforded ample opportunity to become familiar with

all of the trial exhibits. Petitioner's capacity to follow the

trial proceedings was at least equivalent to that of a juror,

who typically hears the testimony but is not given the

opportunity to read the trial exhibits as they are introduced.

A far greater impairment exists if a defendant is deaf and

cannot hear the proceedings at all, Ferrell v. Estelle, 568

F.2d 1128, opinion withdrawn, 573 F.2d 867 (Sth Cir.

1978),5 or if a defendant cannot understand the English

language, see United States v. Martinez, 616 F.2d 185 (Sth

Cir. 1980). Yet even in those contexts the trial court retains

substaritial discretion to determine what special procedures

should be instituted to assure a fair trial. See Perovich v.

5The court's opinion in Ferrell was withdrawn when it learned that

the habeas petitioner had died before issuance of its mandate.

s°

United States, 205 U.S. 86, 91 (1907); United States v.

Martinez, supra, 616 F.2d at 188; Ferrell v. Estelle, supra,

568 F.2d at 1133. See also People ex rel. Myers v. Briggs, 46

Ill.2d 281, 263 N.E. 2d 109, 113 (1970).

The district court did not abuse its discretion in this case.

Petitioner’s ability to participate in his trial was not

impaired. He was able to hear and comprehend all of the

proceedings; an interpreter was provided to read docu-

ments to him during cross-examination. Absent a particu-

larized claim of prejudice there is no warrant for further

consideration of petitioner’s contention that the district

court abused its discretion in declining to accede to peti-

tioner’s additional demands.°®

In any event, the unpublished judgment order of the

court of appeals does not explicitly address this claim. That

order, moreover, has no precedential value. See page | note

1, supra. Petitioner asserts (Pet. 27) that his contention

embodies a matter of first impression in the federal court

system. Plainly there is no conflict of authority here such as

would warrant further review.

b. Petitioner also contends (Pet. 35-39) that approxi-

mately four weeks after the trial began he became unable

properly to participate therein as a result of alleged side

effects of certain medication he was taking to relieve high

‘Petitioner also contends (Pet. 57-58) that he was prejudiced by an

alleged failure to comply with Section 504 of the Rehabilitation Act of

1973, 29 U.S.C. (Supp. V) 794, which prohibits certain discrimination

against handicapped individuals. As shown above, sufficient accom-

modation was made to assure that petitioner's blindness did not inter-

fere with his right to a fair trial, and accordingly he cannot claim to have

been discriminated against on that basis. In any event, Section 504

applies only to federally assisted activities and programs or activities

conducted by executive branch agencies of the United States. We

question whether a federal criminal trial can be deemed a“program or

activity conducted by an{] Executive agency”(29 U.S.C. (Supp. V) 794).

6

blood pressure. This condition was brought to the attention

of the district court. Following a telephone conversation

with one of petitioner’s doctors the district court decided to

proceed with the trial. Petitioner now argues (Pet. 36-38)

that the district court should have conducted a hearing to

determine petitioner’s competence to continue with the

trial. But petitioner does not claim that he made any con-

temporaneous request for an evidentiary hearing, or that

timely objection was made to the procedures employed by

the court. (Moreover, petitioner did not raise this claim in

the court of appeals, and consideration here is accordingly

inappropriate). In the circumstances the trial judge could

justifiably rely upon his ample opportunity to observe peti-

tioner during the trial (coupled with his communication

with petitioner’s physician) in deciding to proceed with the

trial. See United States v. Grimes, 641 F.2d 96, 98-99 (3d

Cir. 1981); United States v. Oliver, 626 F.2d 254, 258-259

(2d Cir. 1980).

2. Petitioner contends (Pet. 41-56) that the government’s

case was tainted by a statement he had voluntarily given to

German police investigators, who were accompanied at the

time by an FBI agent and translator as a matter of interna-

tional courtesy. Petitioner was told by the FBI agent on that

occasion that he was not a target of the German investiga-

tion but that he was a subject of an ongoing FBI investiga-

tion (7/29/81 Tr. 126-129). A tape recording of the session

with German police, admitted in evidence at a pre-trial

hearing on petitioner’s motion to quash his indictment,

reveals that FBI Agent Zane told petitioner, before he

began his statement:

Any statement that you do make to the German

police at this time will not be held against you i. the

United States Courts in the event of any eventual

rf

prosecution of yourself except for impeachment pur-

poses if you take the stand in your defense in any

subsequent criminal trial.

In the pretrial proceedings petitioner argued that this

statement effected a grant of transactional immunity with

respect to his activities as a loan broker disclosed to the

German police. After an evidentiary hearing at which peti-

tioner and the FBI agent testified, and the tape was played,

the court rejected that claim, noting that Agent Zane’s

statement is “explicitly inconsistent with any concept of

transactional immunity” because the possibility of prosecu-

tion of petitioner was mentioned (7/29/81 Tr. 179). The

court reserved for post-trial determination the question

whether “the government has used [petitioner’s] statement

in a manner inconsistent with” the representation made by

Agent Zane (id. at 182).’

After petitioner was convicted, the court held a second

evidentiary hearing to determine the issue previously re-

served. After hearing the testimony of the only prosecutor

connected with the investigation, the court tentatively con-

cluded that improper use had not been made of petitioner's

statement, and that petitioner's claim that the investigation

had been tainted in an unspecified manner was based, at

most, upon the theory that prosecutorial interest in peti-

tioner was heightened after petitioner made his statement.

Mere generation of prosecutorial interest, the court ob-

served, was not impermissible even if full use immunity had

been granted. Petitioner's “taint” claim accordingly fell

with his previously rejected transactional immunity claim

’This question incorporated two subsidiary inquiries, first, whether

Agent Zane’s statement granted derivative use immunity, and second, if

so, whether the government's investigation somehow had made indirect

use of the statement. The government represented that the statement

would not be employed at trial (7/29/81 Tr. 168), and it was not.

(1/7/82 Tr. 178-180, 185, 205-206). Nevertheless, in re-

sponse to petitioner’s request, the court directed the United

States Attorney’s Office to submit affidavits {0m supervi-

sory prosecutors to be certain that petitioner’s statement

had not affected their actions in the case. Those affidavits

confirmed that the statement played no role in the investiga-

tion. See Affidavit of Shirah Neiman, Assistant United

States Attorney (Jan. 11, 1982).

The district court issued a comprehensive opinion on

post-trial motions on January 29, 1982 (C.A. App. 279a-

293a).* The court found, based upon the evidentiary hear-

ing testimony and the affidavits submitted (id. at 285a):

“{T}here has been no use of the statement or use of informa-

tion derived therefrom contrary to the representations

made to [petitioner].”

On appeal petitioner abandoned his taint contention,

pursuing only the claim that transactional immunity had

been granted (Br. 23-33). The court of appeals rejected that

contention, noting, as had the district court, that the possi-

bility of prosecution was made explicit in Agent Zane’s

statement to petitioner (Pet. App. A-5 to A-6). The court

also observed, sua sponte (id. at A-6):

[T]he district judge found that the Government did not

use any of the information it may have received in

violation of Agent Zane’s representations, and [peti-

tioner] has not shown that the court's findings are

clearly erroneous.

Petitioner now seeks to revive his taint claim, which he

elected not to press below. Consideration of such a claim is

ordinarily inappropriate. See United States v. Mitchell,

445 U.S. 535, 546 n.7 (1980). We recognize that the court of

Petitioner has neither reproduced this opinion in the appendix to the

petition nor adverted to its contents in recounting the facts of the case.

9

appeals reached out to reject petitioner’s present fact-bound

contention in passing. But because the court of appeals did

not decide any legal question of general importance in the

process its comment on this score provides no basis for

departure from the Court's usual practice of declining to

review claims not advanced on appeal. Cf. Woelke &

Romero Framing, Inc. v. NLRB, No. 80-1798 (May 24,

1982), slip op. 20-21. In any event, as the court of appeals

observed, petitioner has not demonstrated that the district

court’s finding was clearly erroneous. Given the fact-bound

nature of the ruling and the absence of any published opin-

ion, further review is not warranted.’

*Petitioner’s suggestion that the decision below conflicts with United

States v. McDaniel, 482 F.2d 305 (8th Cir.. 1973), is incorrect. In

Mc Daniel the court emphasized that the United States Attorney had

twice read the defendant's immunized grand jury testimony prior to

indictment without knowing the testimony had been given under a

grant of immunity. The court of appeals held that under such circum-

stances the government faced an insurmountable task in establishing

that there was no taint. 482 F.2d at 311-312. In petitioner's case the

prosecution was fully aware of the immunized nature of the testimony

and did not attempt to make any use of it. See Pet. App. A-21 to A-29.

The McDaniel court stressed that the circumstances in that case were

extraordinary and that the question of impermissible use is ordinarily to

be decided (as it was here) on the basis of an evidentiary hearing, rather

than an irrebuttable presumption. 482 F.2d at 312.

McDaniel is additionally distinguishable because there, unlike the

present case, the defendant invoked his Fifth Amendment privilege.

The scope of any “immunity” here is dictated not by the Fifth

Amendment—petitioner was not compelled to make a statement to the

German authorities—but by the terms of Agent Zane’s representation

respecting use. That representation on its face merely precludes intro-

duction of petitioner's statement in evidence, and does not preclude

indirect investigatory use. Petitioner's claim that such use was made

here was, of course, determined to be unfounded. But even if that

determination were incorrect, Agent Zane’s representation plainly was

not dishonored.

10

Petitioner’s further complaint (Pet. 23-24, 41-42, 48; see

also Pet. 16-22) that the district court improperly limited

the scope of the taint inquiry is based upon a distortion of

the record. Contrary to the impression the petition fosters

(see page 8 note 8, supra), the district court did not rule

upon the taint claim at the close of the hearing on January 7,

1982. Rather the court required the government to supply

affidavits from the very Assistant United States Attorneys

that petitioner claims should have been heard from (see

page 8, supra). Only after receiving those affidavits did the

court rule, on January 29, 1982, that there had been no

improper use of the statement made by petitioner to Ger-

man police.!°

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

FRANCIS J. MARTIN

Attorney

MARCH 1983

‘Petitioner's speculative charges (Pet. 48) respecting a meeting

between FBI Agent Fuller and Assistant United States Attorney

Neiman are directly contrary to AUSA's uncontradicted statement that

“{a}t no time during that meeting was there any reference to any

interview or meeting with [petitioner] attended by the FBI” (Affidavit

of Shirah Neiman, supra, at 1).

DOJ-1983-03