Petition — Burke v. United States

Supreme Court brief1983

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82-1799 | 6

IN THE

Supreme Court of the United States

October Term, 1982

JAMES BURKE,

Petitioner,

-against-

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

GERALD L. SHARGEL

Attorney for Petitioner

150 East 58th Street

New York, New York 10155

(212) 486-1717

Question Presented

Whether the trial court erred in quashing, on First

Amendment grounds, petitioner’s subpoena of docu-

ments relating to a directly relevant magazine article?

List of the Parties

Apart from the party named in the caption of this

Petition, the other parties involved in the trial were

Anthony Perla, Rocco Perla, Paul Mazzei and Richard

Kuhn, who were also convicted of the offenses charged.

Table of Contents

Questions Presented ......--.--sseeererrrtrre

List of the Parties..........---:cceeeeeeeeceres:

Ne geet

1 EE

Statutory and Constitutional Provisions Involved

Statement of the Case......---.-cse eset ereeeee:

Wyidence At Trial ...........-. 000s e sree rte

1. The Overall Case... ......- 2c cece cette eee:

2. The Case Against James Burke........-.--

3 The Issue Regarding the Sports Illustrated

A we wee ee ee ee eet

The Court of Appeals Opinion.........---++++5:

Reasons for Granting the Writ ........---++++:-

Appendix A - Opinion of United States Court of

ee ee ae ee

Appendix B - Order of United States Court of

Appeals on Petition for Rehearing and Sug-

gestion for Rehearing Be Oe Cg ca vce ess

iii

Table of Authorities

Cases:

Branzburg v. Hayes, 408 U.S. 665 (1972)........

17, 16, 19, 2, 21, 24, 25, 26, 27

Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d

429, cert. denied, 419 U.S. 966 (1974).......... 24

Caldero v. Tribune Publishing Co., 98 Idaho 288,

Oe Fe Fe iw cine cc eevee cuayucss 28

Davis v. Alaska, 415 UR 308 (1974)............ 21

In Re Farber, 78 N.J. 259, 394 A.2d 330, cert. denied

sub. nom, New York Times Co. v. New Jersey,

Seer Serie. ......... ...... 22, 21, BB

Herbert v. Lando, 441 1.8. 153 (1979)........... 20

In Re Petroleum Products Anti-Trust Litigation,

RT occ cic canes 17

Riley v. City of Chester, 612 F.2d 708 (3rd Cir.

CS ON ee 25

In Re Hoche, 411 N.E.2d 466 (1960) ............. 23

Roviaro v. United States, 353 U.S. 53 (1957) .... 21

State of Vermont v. St. Peter, 132 VT. 266,315 A.2d

Co a ee UE ae 23

United States v. Criden, 633 F.2d 346 (3rd Cir.

1980) cert. denied, 449 U.S. 1118 (1981) ....... 25

United States v. Cuthbertson, 630 F.2d 139 (3rd

Cir. 1980), cert. denied 449 U.S. 1126 (1981)... 25

United States v. Cuthbertson, 651 F.2d 189 (3rd

Cir.) cert. denied, 454 U.S. 1056 (1981) ........ 25

United States v. Liddy, 354 F.Supp. 2U8 (D.C.D.C.

fg ARS aCe nnn oe 19, 21. 22. 24

United States v. Nixon, 418 U.S. 683 (1974)..... 20

Weod v. Georgia, 370 U.S. 375 (1962) ........... 20

United States Constitution:

Firat Amendment........... 2, 15, 17, 18, 19, 22. 23. a

eee PE eck. 2.17

Statutes:

BO eee 3

RO I ikecel ees 3

ee I ee oe eke 3

Be, ek hi obec chai le 2

Other Authorities:

Federal Rules of Criminal Procedure, Rule 17(c). 2

IN THE

Supreme Court of the United States

October Term, 1982

JAMES BURKE,

Petitioner,

-against-

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner, James Burke, respectfully prays

that a writ of certiorari issue to review the judgment of

the United States Court of Appeals for the Second Cir-

cuit, affirming the judgment of conviction entered

against the petitioner by the United States District

Court for the Eastern District of New York (Bramwell, J.).

Opinion Below

The opinion of the Court of Appeals, reported at

700 F.2d 70 (2d Cir. 1983), appears in the appendix

hereto at pp. la-28a.

Jurisdiction

The date of the judgment of the United States

Court of Appeals for the Second Circuit was January 28,

1983. The petitioner filed a timely petition for rehearing,

which was denied on March 8, 1983 (Appendix, pp. 29a-

30a). The Court’s jurisdiction is invoked under Title 28,

United States Code § 1254(1).

Statutory and Constitutional Provisions

«nvolved in the Case

Federal Rules of Criminal Procedure, Rule 17(c):

A subpoena may also command the person

to whom it is directed to produce the books,

papers, documents or other objects designated

therein. The court on motion made promptly

may quash or modify the subpoena if compliance

would be unreasonable or oppressive. The court

may direct that books, papers, documents, or

objects designated in the subpoena be produced

before the court at a time prior to the trial or

prior to the time when they are to be offered in

evidence and may upon their production permit

the books, papers, documents or objects or portions

thereof to be inspected by the parties and their

attorneys.

First Amendment to the United States Constitution:

Congress shall make no law ... abridging

the freedom of speech, or of the press ....

Sixth Amendment to the United States Constitution:

In all criminal prosecutions, the accused

shall enjoy the right ... to have compulsory

process ....

Statement of the Case

James Burke was convicted, after a jury trial, of

a Racketeering Offense, Title 18 U.S.C. § 1962(d):

Sports Bribery, Title 18 U.S.C. § 224: and a Travel Act

violation, Title 18 U.S.C. § 1952. As a result of this con-

viction, Burke was sentenced to a 20-year term of

imprisonment.

Evidence At Trial

1. The Overall Case

The government’s proof showed that in the summer

of 1978 a small group of Pittsburgh gamblers found

an opportunity to corrupt Richard Kuhn, a 21-year-old

senior on the Boston College basketball team. Rocco

Perla, a schoclmate of Kuhn, told his brother, Anthony

Perla (later to become his co-defendant), that Kuhn

“wanted to do business” during the upcoming 1978-1979

basketball season. (T 191-92)! The “business” was a

point shaving scheme with corrupted players attempt-

ing to manipulate the number of points by which the

team won (or in some cases lost) in relation to the

established betting “line” on the game, thus enabling

informed gamblers to make informed bets. For example,

if Boston College were favored by professional book-

makers to win a particular game by ten points, a wager

on Boston College would only be won if the opposing

team were defeated by more than ten points. Thus,

if the points were “shaved” and the corrupt objective

was to win by less than ten points, gamblers could very

comfortably bet on the opposing team. (T 197-99,

1511-17)

' The letter “T” refers to the trial transcript.

> Point shaving is an extraordinarily subtle form of “fixing”

a game. Experienced coaches are rarely able to detect the corrupt

player or players. (T 1999) In fact, such a scheme is so subtle that,

as shown by the proof in this case, it often doesn’t work.

Anthony Perla shared the information about

Kuhn with another Pittsburgh gambler, co-defendant

Paul Mazzei. Mazzei and Anthony Perla believed,

however, that this opportunity was too large for them

to handle alone. Pittsburgh, it seems, was too small

a city to provide the network of bookmakers needed

to fully exploit the rigged games. (T 192) In addition,

this Pittsburgh combine needed protection against

bookmaker-victims who might discover that they were

taking bets on fixed games. (T 193)* In order to satisfy

these needs and to get the scheme off the ground, Mazzei

contacted Henry Hill, a miscreant from New York City

who would later appear at trial as a protected govern-

ment witness.‘ On July 14, 1978, while still a ‘“‘prisoner”

at a Manhattan Community Treatment Center, Hill

flew to Pittsburgh and met with Mazzei. (T 190-91)

Upon learning of the point shaving scheme, Hill

expressed an enthusiastic interest. (T 192) A month or

two later, Hill returned to Pittsburgh and met with

Anthony Perla who supplied further details. (Jd.)

' The fear of discovery was quite realistic. Zacharie Franzi, a

Las Vegas odds maker, noticed radical changes in the betting line

on Boston College games during the 1978-1979 season, indicating

that unusually large bets were placed on these games. This meant,

to Franzi, that the games were either fixed or that bettors had other

kinds of inside information. (T 524-26)

‘ If a tough and hardened criminal were what the Perlas and

Mazzei were looking for it is difficult to imagine that they could have

found any one better suited than Hill. Starting with a military con-

viction in 1965, Hill described his record of arrests and convictions

for bookmaking, tax offenses and extortion. (T 175) Hill also admitted

to robbery, arson, truck hijacking, narcotics trafficking, illegal

possession of weapons and participation in murder. (T 180-81) When

Hill was in a federal prison as a result of his extortion conviction

he engaged in bribery of guards, bookmaking and narcotics traf-

ficking. (T 181-82) After his release from prison in 1978, Hill resumed

his career by selling heroin, cocaine, marijuana and quaaludes in

addition to committing robberies and trafficking in stolen weapons

including pistols, machine guns, rifles and shotguns. (T 182-83)

Hill himself was a drug addict. (T 182) Finally, after apprehension

and indictment by New York State on narcotics offenses carrying

terms of life imprisonment, Hill decided to furnish information to

federal authorities. (T 183-84)

)

At the second meeting the conspiracy was hatched.

The government’s proof of the enterprise and its activ-

ities was quite convincing. Regarding Mazzei, the

Perlas and Kuhn, Hill’s testimony about payoffs to

players and the resultant impact on the games was

strongly corroborated. As a foundation, telephone

and hotel records were introduced to show contact

and meetings between Hill and his fellow conspirators.

But the case against Burke’s co-defendants did not

stand on the word of Hill alone.

James Sweeney, the Boston College team captain

during the 1978-1979 season, testified that Kuhn solli-

cited his participation in the point shaving scheme

in the early Fall of 1978. (T 912-13) Kuhn told Sweeney

that during the past summer he was in touch with

people from Pittsburgh who were interested in point

shaving. (/d.) Sweeney, according to his testimony,

rejected an invitation to participate in the scheme.

(T 913) Sometime in November, after basketball practice,

Kuhn asked Sweeney to come with him to a meeting

with Rocco Perla, whom Sweeney had met before, and

Rocco’s brother Anthony, whom Kuhn described as

his ‘surrogate father.”’ (T 915) That evening, at an

airport motel, Sweeney met the Perlas and Henry Hill.

(T 916) Hill attempted to convince Sweeney to partici-

pate in the scheme, telling the young athlete that the

financial rewards were great and that the team would

not suffer since point shaving would still allow victory.

(T 918-19) According to Sweeney, Hill repeatedly said

that “people in New York”’ were backing the operation

and that it would be in his best interest to cooperate.

(Jd.) Hill said that for each game that was successfully

engineered, the cooperating player would receive $2,500.

(T 923)

Sweeney claimed, at trial, that Hill frightened

him into saying that he would cooperate, although

he never intended to do so. (T 923, 927-28) After review-

ing the Boston College basketball schedule, the group

agreed that Boston’s upcoming game with Providence

would be the trial balloon. (T 925-26)

On the afternoon of the Providence game, Decem-

ber 6, 1978, Kuhn told Sweeney that their mission was

to win the game by fewer than seven points. (T 929-30)

The scheme failed, however, when the Boston team

won by 19 points with Sweeney “trying [his] hardest

to win.” (T 930) After the game, Kuhn berated Sweeney

for failing to keep the game close. (T 931) A few days

later Kuhn told Sweeney that Anthony Perla had

described Sweeney as “unreliable” and that he wanted

Kuhn to speak to players Ernie Cobb and Joe Beaulieu

to see if they were interested in participating. (T 932)

On December 16, 1978, Boston College played

Harvard at the Boston Garden. (T 933) Before the game,

Kuhn told Sweeney that Hill and Rocco Perla would

attend the game to “make certain that all the people

were cooperating.” (/Jd.) Kuhn also told Sweeney that

Ernie Cobb, the team’s leading scorer, would be involved.

(T 936-37) Boston College defeated Harvard by a com-

fortably close margin of three points, enabling the

Hill enterprise to win its bets. Although Sweeney swore

that he did not participate in the effort to make the

game close, Hill, who met him after the game, thought

that he had and promised to send money through Kuhn.

(T 939) When Kuhn finally collected $2,000 from a

Western Union office, Sweeney accepted a $500 payment.

(T 940)

The next relevant conversation that Sweeney

had with Kuhn dealt with the UCLA game, a game

which UCLA was heavily favored to win. (T 941) Before

the game, Kuhn asked Sweeney to help lose the game

by more than the 15-point spread. (T 941-42) Although

Boston did ultimately lose the game by more than

20 points, Sweeney claimed that he had nothing to do

with it. (T 942)

The first game of 1979 was played on January 10th

against Rhode Island. (T 946) Here again, with Rhode

Island favored, Kuhn asked Sweeney to help lose the

game by more than the point spread. (Id.) Sweeney

again refused. Game after game Kuhn unhesitatingly

spoke of the point shaving scheme despite Sweeney’s

unwillingness to participate. Just before the February 3,

1979 Boston College-Fordham game, Kuhn asked

Sweeney to meet with Rocco Perla. (T 949-50) Kuhn

wanted Sweeney to meet Perla because even though

Sweeney wasn’t cooperating, the gamblers thought

that he was a participant. (T 949) Rocco Perla’s February

meeting with Sweeney was simply a pep talk about

past and future performances for the gamblers. (T 950-51)

Rocco Perla also said that he would talk later that

night to player Ernie Cobb. (T 951) Once again, Sweeney

purported to go along even though he intended not

to. (T 952) Despite Sweeney’s non-participation, however,

Boston College won the Fordham game by less than

the point spread, allowing the gamblers to win their

bets. This time, however, Sweeney refused to take

money from Kuhn. (T 954)

Three days later Boston College played St. John’s,

another team which was heavily favored to win. Before

the game, Kuhn told Sweeney that he had been told

by Anthony Perla that the Pittsburgh and New York

people wanted to bet on St. John’s and would be suc-

cessful only if Boston lost by more than nine points.

(T 955) Again, Sweeney did not participate and the

team lost by nine points causing a ‘‘push” with no one

winning or losing. (T 956)

As Kuhn described it to Sweeney, the February 10,

1979 game between Boston College and Holy Cross

would be the “great finale.” (T 958) Since the game was

televised to a wide audience, it was one which would

surely attract large bets. While at Kuhn’s apartment,

Sweeney spoke directly to Anthony Perla on the tele-

phone. Perla told Sweeney that since the stakes were

so high, each player who would participate in point

shaving would receive $10,000 if the bets were suc-

cessful. (T 958) They were not. Sweeney, according to

his testimony, became so unnerved by the pressure

placed upon him that he intentionally “fouled out.”

(T 962) Kuhn later told Sweeney that Perla was “irate”’

and that the bettors had lost an extraordinary sum of

money on the game. (T 965)

Another Boston College player, Arthur Joseph

Beaulieu, gave testimony about the scheme. Beaulieu

recalled a conversation with Kuhn before the Boston

College-Harvard game on December 16, 1978. (T 1277)

Kuhn told Beaulieu that he had friends who would pay

money to have the outcome of the game affected. (T 1278)

The reward would be money and cocaine. (T 1279-80)

Beaulieu told Kuhn, however, that he didn’t want to

have anything to do with the proposal. (Jd.)

Kuhn was further implicated by admissions that

he made to Barbara Reed, who at the time was his live-in

girlfriend. (T 1159-60) Kuhn told Reed about meeting

“big gamblers” from New York. (T 1166) Reed also

described very loose spending by Kuhn, which Kuhn

attributed to “the betting thing.” (T 1170) Finally,

after the Harvard game, Kuhn expressly admitted that

he was shaving points for Henry Hill and his group

including ‘‘a man in New York.” (T 1176-77) As if that

were not all, Kuhn confessed his participation in the

point shaving scheme upon his initial interview with

James Byron, an FBI agent. (T 1679-80)

Another witness, Christine Siano, testified to an

admission made to her by Anthony Perla. Siano, a

school friend of Perla, confronted Perla with an article

in Sports Illustrated Magazine which exposed the

point shaving scheme. According to Siano, Perla ex-

claimed ‘“‘ ...so I shaved a few games, it is no big deal....”’

(T 1654)

2. The Case Against James Burke

As convincing as all this evidence was, it did

absolutely nothing to implicate Burke. Sweeney did

not know Burke, nor did he ever have any conversations

with him. (T 972) Arthur Beaulieu did not say anything

about Burke and Barbara Reed did not know him either.

(T 1205) Indeed, Kuhn, who spoke to FBI agent Byron

about the scheme for a half an hour in September of

1980, never mentioned Burke. (T 1692) In the end, then,

it was only the testimony of Henry Hill which linked

Burke to the scheme charged in this indictment. AI-

though the government may be expected to contend,

as it did at trial, that Hill’s testimony was corroborated,

it remains that Hill was the sine qua non of the govern-

ment’s case against Burke.

In a nutshell, Hill claimed that everything he did

in connection with this scheme was done at the behest

or instruction of Burke. Hill testified that when Mazzei

and Anthony Perla first described the opportunity

to corrupt Kuhn, he envisioned Burke’s participation.

(T 195-96) Hill’s own testimony showed, however, that

he, himself, was directly plugged into a network of

bookmakers. Before allegedly speaking to Burke, Hill

contacted Nick Barta, Martin Krugman and John

Savino, all of whom were described by Hill as major

bookmakers. (T 202-03)

On October 19, 1978, Hill, according to his uncor-

roborated testimony, spoke to Burke about the scheme.

Burke, again according to Hill, said that he was inter-

ested and asked to meet with Paul Mazzei. (T 203-04)

Burke then told Hill not to speak to anyone and that

he would be in contact with the bookmakers, including

Richard Perry, another major gambler. (T 205)

During the first week of November, 1978, Mazzei

came to New York and met with Burke. (T 209) This

meeting was described by a single witness, Henry Hill.

Burke, who was described on this occasion as “en-

thused,” said that he wanted to speak directly to

Anthony Perla. (T 210)

Following this request, Hill arranged a meeting,

on November 16th, with Burke, Perla and Mazzei at

Robert’s Lounge. (T 218) Prior to this meeting, Burke

allegedly spoke to a number of bookmakers including

Krugman, Barta, Savino, Perry, John Yarmosh and

Milton Weckar. (T 213-14) Burke and Hill also spoke

to a ‘““major bookmaker” by the name of Ralph Atlas.

(T 215-16) When Burke met Mazzei and Perla at Robert’s

Lounge on November 16th, Savino, Barta, Krugman

and an individual named Peter Vario were present.

(T 218) Once again, Hill gave an uncorroborated account

of what took place. Anthony Perla “laid the whole

scheme out to Jimmy” and several details were resolved.

(T 219-20) The New York contingent would be respon-

sible for the “bookmaking network” and paying the

players. (Jd.) Later that afternoon Hill, Peter Vario,

Perla and Mazzei went to Aqueduct Racetrack where

they met with Richard Perry who agreed to serve as

the liaison with the amorphous “network of book-

makers,” betting approximately $20,000 on each game

chosen. (T 238-39)

After describing the embryonic phase of the con-

spiracy, Hill testified to the ups and downs of the Boston

College games and the bets placed on them. The only

major difference between Sweeney’s account and Hill’s

account is that Hill implicated Burke. Burke engineered

the payment to the players (T 256-57), obtained the

line on the games (T 258-59), and supervised the betting.

(T 273-74) In fact, Hill described himself as so closely

aligned to Burke that at one point during the season,

he traveled to Florida, where Burke was vacationing,

in order to confer with his mentor. (T 283, et. seq.)

Hill’s trip to Florida provides a perfect example of how

the government “corroborated” his testimony. Hill

testified that he drove to Miami in January of 1979

with his girlfriend, his sister-in-law and his daughter,

Gail. (T 284) In order to bolster Hill’s account of his

conspiratorial meeting with Burke, the government

called Joseph Dragonie, an assistant principal of the

school attended by Hill’s daughter. (T 1326) School

records showed that Gail Hill was absent from Janu-

ary 8th to January 18, 1979 and that her absence was

excused, in a note from her mother, by a trip to Florida.

(T 1336)5

But there was an even more interesting dimension

to this Florida trip. Hill testified that after meeting

with Burke he returned to New York on the Autotrain

on January 17th. (T 289) On that day, Boston College

played Connecticut and Hill didn’t want to lose the

opportunity to bet on the game. (/d.) While en route,

according to Hill, he called Mazzei and Anthony Perla

to find out the line and then called ‘‘the bookmakers”

to place his bet.

Q. Where did you make the telephone call

from?

A. Along the road. Even when the train

stopped at one point, when I got on the auto-

train, I jumped off and I got on the phone and

called another bookmaker that I couldn’t reach

in Florida.

Q. Did you get back on the train?

A. Yes, of course. (T 289-90)

On the defense case, Burke called Robert McMan-

away, the administrative manager for Autotrain.

(T 1815) In 1979 the Autotrain was scheduled to leave

at 4:00 o’clock in the afternoon, but the train consist-

ently left 20 minutes to a half hour late every day.

(T 1818)® The first stop the train made was at a freight

yard in Jacksonville, Florida. At that stop the nearest

public telephone is three miles away and, in any event,

’ This type of “corroboration” brings to mind the innkeeper

who claims that George Washington slept at his inn and, to bolster

his claim, shows the bed.

* At the present time, Autotrain is in bankruptcy. (T1816)

passengers were not allowed to disembark. (T 1819-20)

The next stop on the train was in Savannah, Georgia

where the train was scheduled to arrive at 9:15, but

ordinarily would arrive closer to 10:00 p.m. (T 1821)

Thus, Hill’s categorical assertion that he got off the

train to place his bet on the Connecticut game was

shown to be physically impossible.

The remaining corroborative evidence supplied

by the government in its case against Burke had very

limited worth. In the main, it consisted of telephone

records which showed that various persons alleged

to be conspirators in this case called and received calls

from two telephones located in Burke’s Queens home.

The telephone calls are summarized in a schedule which

was admitted as Government’s Exhibit 19. It was shown

by this evidence that contact was made between Burke’s

telephone and many of the bookmakers described in

Hill’s testimony. (Government Exhibit 19) These

records also showed telephone contact between Burke’s

phone (or the phone registered to his daughter, Cath-

erine) and Paul Mazzei or persons related to him. The

government also isolated for the jury’s attention a call

from the Burke home to the Logan Hilton Inn where

Hill, Mazzei and Anthony Perla were meeting on Novem-

ber 17, 1978.

The limited value of this telephone proof was con-

ceded by the government at trial. (T 2236-37) There

was no evidence, independent of Hill’s testimony, that

Burke himself had made or received these calls. In fact,

it was established by both cross-examination of Hill

and witnesses called for the defense, that Hill was a

frequent visitor to the Burke home, that during this

period he was helping Burke renovate his kitchen and

that he freely used the phones in Burke’s home. William

Bored, a contractor who performed work at the Burke

house in January, 1979, and who knew Henry Hill,

said that during January and February he would fre-

quently see Hill at Burke’s home using the phones,

including the phone in a bedroom. (T 329, 681, 1974-75)

Joseph Razzano, a friend of the Burke family, explained

that it was he who placed the call to the Logan Hilton

Inn in November of 1978 and that Burke was not home

at the time. (T 1787-89) Razzano’s testimony was cor-

roborated by James Grant, Burke’s brother-in-law,

who was present on November 17th when the telephone

call was made. (T 1808-10) Other witnesses, including

Howard Schuchman, Burke’s employer, and John

Yarmosh were called to dispute specific allegations

made by Hill. Yarmosh, who admitted to bookmaking,

testified that he never discussed nor acted upon a point

shaving scheme with either Hill or Burke. (T 1903-04)

3. The Issue Regarding the Sports

Illustrated Subpoena

Henry Hill’s testimony in this case was by no means

his first public discussion of the matter. Indeed, Hill

co-authored an article with Sports Illustrated Magazine

reporter Douglas Looney in the February 16, 1981

issue of Sports Illustrated entitled “How I Put The

Fix In.” This article presented a radically different

account of the Boston College scandal. Hill, described

by a Sports Illustrated caption as “a government

informer seeking immunity in this and other cases,”

described himself as the mastermind of the scheme

and relegated Burke to only a peripheral role as a

“business partner.”’ Further, the article flatly contra-

dicted Hill’s grand jury testimony on the details of

the scheme. Specifically, Hill’s article claimed that

he had fixed nine games. Yet, his grand jury testimony

only alluded to six. Indeed, one of those six games

that Hill testified about in the grand jury was not even

mentioned in the article.

On the basis of this clear discrepancy between

Hill’s two accounts of the Boston College affair, counsel

for Burke issued a subpoena ad testificandum to Looney

and subpoenas duces tecum to Looney, the President,

or any duly authorized representative of Time, Inc.,

and the managing editor of Sports Illustrated Magazine.

The subpoenas duces tecum called for the production

at trial of:

(i) Any and all contracts, agreements, memoranda

of understanding or other document, however it may

be styled, entered into between Time, Incorporated,

or any of its subsidiary or affiliated corporations,

companies, partnerships or other legal entities, and

Henry Hill and/or Robert Simels (Hill’s attorney).

(ii) Any and all notes, memoranda, reports, or

other documentation (regardless of form, type or internal

description), that concerns, encompasses, or is reflective

of the nature, substance or fact of any interview of Henry

Hill, Judith Wicks, James D. Sweeney, and/or Ernie

Cobb pertaining to an article published in the February

16, 1981 issue of Sports Illustrated entitled, “How |

Put The Fix In” by Henry Hill with Douglas S. Looney.

(iii) Any and all audio tape recordings and tran-

scripts of audio tape recordings pertaining to interviews

of, or conversations with, Henry Hill and/or Judith

Wicks, which interviews or conversations relate in

any manner whatsoever to the magazine article referred

to in item (ii) above.

(iv) Any and all “gallies,” page proofs, drafts

of story, “check or” notes (or other document relating

in any way to efforts to verify or confirm any aspect

of information or material furnished by Henry Hiil),

all as pertain to the magazine article referred to in

item (ii) above.

(v) Copies of any and all checks, money orders,

bank drafts, or other financial or security instruments

made payable to Henry Hill (or anyone designated

by him), as payment for information relating to, or

for Henry Hill’s participation in the preparation or

authorship of the magazine article referred to in item

(ii) above.

Time, Inc.’s response to the subpoenas claimed

that Burke’s attorneys had embarked upon a “fishing

expedition”; that they sought to rummage; that they

were turning reporters into defense “investigators”;

and that forced compliance with the subpoenas would

entail revealing internal editorial processes and there-

fore chill the exercise of First Amendment rights.

The trial court’s response was to quash the sub-

poenas in their entirety until Henry Hill actually testi-

fied. Reasoning that Burke had the burden of showing

both a compelling need for the material at trial and

that the materials requested were not available from

any other source before he could overcome “the press’

qualified First Amendment privilege to maintain the

integrity of its news-gathering and editorial functions”

(T! 27),’ the court held that such a showing could not

be made until Hill testified at trial. “It is only at such

point,” said the court, “that the substance of Hill’s

testimony will truly be known and capable of evaluation

to determine the existence of possible inconsistencies

which might exist.” (T! 28)

These “possible inconsistencies” soon became a

reality once the cross-examination of Hill began. In

essence, Hill disavowed the entire article and char-

acterized those statements attributed to him in the

article as lies by Mr. Looney. (See, e.g., T 260-61 and 371)

With this testimony in hand, testimony waich was extra-

ordinarily probative of Hill’s credibility, counsel for

Burke sought and received from the trial court an order

requiring counsel for Time, Inc. te show cause why

the materials called for in the original subpoenas

duces tecum should not be produced for in camera

inspection by the court.

Time, Inc. was, however, never required to make

this showing. Instead the trial court, without hearing

from counsel on the issue, ruled that the subpoenas

7 The notation “T'” refers to the transcript of a September 22, 1981

argument before Judge Bramweil.

would be enforced only to the extent of requiring Looney

to testify. The court stated:

The only thing we have before us is an article

that appeared in Sports Illustrated and was

printed and circulated to a vast number of its

readers, a vast number.

Now, in the cross-examination of Mr. Hill

by Mr. Coiro there are statements in that par-

ticular article which the writer attributes to

Mr. Hill, and which Mr. Hill either denied or

he said the writer made up.

The only issue is credibility.

Now, after I have heard what I have heard

in the case, and consistent with what the court’s

position has been, I would permit Mr. Looney

to be subpoenaed on the basis of the credibility

of Mr. Hill based on the article alone, without

going further than the article.

In other words, Mr. Looney would be shown

the article and be asked did he say this, and

whatever his answer is, is the answer to that.

I would permit that to be done. I do not see

any need for the court to require him to produce

his records, because the only issue here is credi-

bility. And if he says that Mr. Hill said that,

then that resolves what the issue may be.

(T? 8-9)° This ruling was excepted to by counsel. (T? 17)

* Presumably, the trial court was still relying upon its prior

decision that the defendant had the burden of showing both com-

pelling need and lack of alternative sources. Yet the court did not

even express interest in hearing counsel for Burke on this issue

before ruling.

* The notation “T*” refers to the transcript of an October 30, 1981

argument before Judge Bramwell.

The Court of Appeals Opinion

On appeal, petitioner challenged the trial court’s

quashing of his subpoenas duces tecum as being vio-

lative of his Sixth Amendment right to coinpulsory

process. Relying upon this Court’s decision in Branz-

burg v. Hayes, 408 U.S. 665 (1972), petitioner claimed

that Time, Inc. had no First Amendment privilege

upon which it was entitled to rely.

In response, the Court of Appeals held that, even

in a criminal case, journalists have a qualified privilege

to refuse to produce confidential information. In essence,

the court adopted the test it had approved for use in

civil cases:

The law in this circuit is clear that to protect

the important interests of reporters and the

public in preserving the confidentiality of journal-

ists’ sources, disclosure may be ordered only

upon a clear and specific showing that the infor-

mation is highly material and relevant, necessary

or critical to the maintenance of the claim, and

not obtainable from available sources.

(Appendix, p. 9a, quoting In Re Petroleum Products

Anti-Trust Litigation, 680 F.2d 5, 7-8 (2d Cir. 1982) ).

In response to the argument that, in light of Branz-

burg, supra, a different approach must govern in a

criminal case, the court stated:

We see no legally-principled reason for draw-

ing a distinction between civil and criminal]

cases when considering whether the reporter’s

interest and confidentiality should yield to the

moving party’s need for probative evidence. To

be sure, a criminal defendant has more at stake

than a civil litigant and the evidentiary

needs of a criminal defendant may weigh more

heavily in the balance. Nevertheless the standard

of review should remain the same. Indeed, the

important social interests in the free flow of

information that are protected by the reporter’s

qualified privilege are particularly compelling

in criminal cases. Reporters are to be encouraged

to investigate and expose, free from unnecessary

government intrusion, evidence of criminal

wrongdoing.

(Appendix, p. 10a)

Reasons for Granting the Writ

Petitioner contends that the Court of Appeals’

conclusion that the press has a qualified First Amend-

ment privilege to withhold evidence in a criminal case

was erroneous. Where, as here, a criminal defendant

seeks evidence important to his defense, the press has

no First Amendment privilege upon which it may rely

in refusing to supply subpoenaed evidence.

Primary support for this claim can be found in

Branzburg v. Hayes, 408 U.S. 665 (1972), where this

Court held that a newspaper reporter did not possess a

First Amendment privilege entitling him to refuse to

reveal confidential information to a grand jury. As

the Court stated:

Until now the only testimonial privilege for

unofficial witnesses that is rooted in the Federal

Constitution is the Fifth Amendment privilege

against compelled self-incrimination. We are

asked to create another by interpreting the First

Amendment to grant newsmen a testimonial

privilege that other citizens do not enjoy. This

we decline to do.

408 U.S. at 690. (Emphasis supplied)

In so holding, this Court rejected the argument

that if the reporter is nevertheless forced to

reveal these confidences to a grand jury, the

source so identified and other confidential sources

of other reporters will be measurably deterred

from furnishing publishable information, all to

the detriment of the free flow of information

protected by the First Amendment.

408 U.S. at 680. Instead, this Court found that “[c]itizens

generally are not constitutionally immune from grand

jury subpoenas; and neither the First Amendment nor

any other constitutional provision protects the average

citizen from disclosing to a grand jury information

that he has received in confidence.” 408 U.S. at 682.

Branzburg’s rejection of a First Amendment

privilege in the grand jury setting is equally applicable

in those situations where a criminal defendant seeks

to obtain evidence relevant to his defense from the

press. United States v. Liddy, 354 F.Supp. 208, 213

(D.C.D.C. 1972). Throughout the opinion in Branzburg,

this Court made clear that its holding as to the absence

of privilege covered evidence subpoenaed at criminal

trials. For example:

On the records now before us, we perceive no

basis for holding that the public interest in law

enforcement and insuring effective grand jury

proceedings is insufficient to override the conse-

quential, but uncertain, burden on news gathering

that is said to result from insisting that reporters,

like other citizens, respond to relevant questions

put to them in the course of a valid grand jury

investigation or criminal trial.

408 U.S. at 690-91. (Emphasis supplied) Similarly, in

discussing the “frivolous” suggestion that the ‘First

Amendment, in the interest of securing news or other-

wise, confers a license on either the reporter or his

news sources to violate valid criminal laws,” this Court

stated: “Neither [a reporter or his source] is immune,

on First Amendment grounds, from testifying against

the other, before the grand jury or at a criminal trial.”

408 U.S. at 691 (emphasis supplied); see also, 408 U.S.

at 680, 686, 693.

Further, it must also be noted that the holding

in Branzburg was substantially grounded upon the

Court’s recognition that the grand jury stands as a

buffer between the citizen and the state, insuring that

there is a sufficient basis for prosecution. In this regard,

this Court cited Wood v. Georgia, 370 U.S. 375, 390

(1962):

Historically [the grand jury] has been regarded

as a primary security to the innocent against

hasty, malicious and oppressive persecution;

it serves the invaluable function in our society

of standing between the accusor and the accused...

to determine whether a charge is founded upon

reason or was dictated by an intimidating power

or by malice and personal ill will.

408 U.S. at 687. Thus, it cannot be argued that Branzburg

was directed only toward enhancing the role of the

grand jury as a prosecutorial tool. Rather, the disallow-

ance of a “newsman’s privilege” was equally founded

upon a concern for the constitutional rights of potential

defendants. Surely, then, it would be absurd to suggest

that Branzburg applies only to grand jury subpoenas.

The underlying theme of Branzburg is that a

citizen’s right to fair and constitutional treatment by

the criminal justice system is not outweighed by specula-

tive “[e]stimates of the inhibiting effect of ... subpoenas

on the willingness of informants to make disclosures

to newsmen ....” 408 U.S. at 693-94. Indeed, “[e]videnti-

ary privileges in litigation are not favored, and even

those rooted in the Constitution must give way in proper

circumstances.” Herbert v. Lando, 441 U.S. 153, 175

(1979) (footnote omitted). This policy is most relevant

in those circumstances where a criminal defendant’s

Fifth and Sixth Amendment rights are involved. Thus,

in United States v. Nixon, 418 U.S. 683 (1974), this

Court acknowledged the existence of a constitutionally-

based executive privilege to withhold confidential

Presidential communications but ruled that the privilege

must give way to “the constitutional need for production

of relevant evidence in a criminal proceeding ....” 418

U.S. at 712.

We have elected to employ an adversary system

of criminal justice in which the parties contest

all issues before a court of law. The need to develop

all relevant facts in the adversary system is

both fundamental and comprehensive. The ends

of criminal justice would be defeated if judgments

were to be founded on a partial or speculative

presentation of the facts. The very integrity

of the judicial system and public confidence in

the system depend on full disclosure of all the

facts, within the framework of the rules of evi-

dence. To insure that justice is done, it is impera-

tive to the function of courts that compulsory

process be available for the production of evidence

needed either by the prosecution or by the defense.

418 U.S. at 709; cf. Davis v. Alaska, 415 U.S. 308 (1974)

(defendant’s constitutional right to confrontation out-

weighs state provisions protecting the anonymity of

juvenile offenders.); Roviaro v. United States, 353 U.S.

53, 60-61 (1957) (“Where the disclosure of an informer’s

identity, or the contents of his communication, is

relevant and helpful to the defense of an accused ...

the [government’s] privilege [of non-disclosure] must

give way.’’)

This analysis of Branzburg is firmly supported

by case law. In United States v. Liddy, 354 F.Supp. 208

(D.D.C. 1972), the court was presented with a situation

almost identical to the one here and sided with the

argument raised now by petitioner. At issue in Liddy

were four newspaper articles, purporting to tell the

inside story of Watergate, that were co-authored by

Alfred C. Baldwin, who had been a grand jury witness

in the case and was expected to be a key government

witness at trial. Claiming that any documents relating

to these articles would be crucial to the preparation

of the defense, subpoenas duces tecum were issued to

pay #)

the Washington Bureau Chief of the Los Angeles Times

and two Times’ staff writers. The respondents then

moved to quash. Noting that “(t]he question arising

here is whether some First Amendment privilege sanc-

tions a newspaper’s refusal to produce evidentiary

material in its possession relevant to a criminal trial,”

354 F.Supp. at 211, the court denied the motion. Speci-

fically, the court interpreted Branzburg as requiring

enforcement of the subpoenas.

It is conceded that the specific question facing

the Supreme Court in Branzburg concerned

grand jury investigations and the confidentiality

of news sources as opposed to the confidentiality

of information in criminal trials. Nevertheless,

the principles there enunciated by the Court are

of sufficient breadth to be controlling here.

354 F.Supp. at 213. (Emphasis supplied)

In In Re Farber, 78 N.J. 259, 394 A.2d 330, cert.

denied sub nom, New York Times Co. v. New Jersey,

439 U.S. 997 (1978), the Supreme Court of New Jersey

upheld judgments of contempt against both the New

York Times and Myron Farber, one of its reporters,

for failure to comply with two subpoenas duces tecum

directing production of documents relating to Farber’s

investigative reporting on alleged criminal activities

by defendant Dr. Mario Jascalevich. Articles written

by Farber were said to have contributed largely to

the defendant’s indictment and the trial court had

ordered production of the documents for in camera

inspection to determine whether they should be turned

over to the defense. The basis for the court’s upholding

of the contempt judgment was its view that Branzburg

required compliance with the court order.

Thus we do no weighing or balancing of

societal interests in reaching our determination

that the First Amendment does not afford appel-

lants the privilege they claim. The weighing and

balancing has been done by a higher court. Our

conclusion that appellants cannot derive the

protections they seek from the First Amendment

rests upon the fact that the ruling in Branzburg

is binding upon us and we interpret it as appli-

cable to, and clearly including, the particular

issue framed here. It follows that the obligation

to appear at a criminal trial on behalf of a defend-

ant who is enforcing his Sixth Amendment rights

is at least as compelling as the duty to appear

before a grand jury.

394 A.2d at 334; see, State of Vermont v. St. Peter,

132 Vt. 266, 315 A.2d 254 (1974).

In In Re Roche, 411 N.E.2d 466 (1980), a lower court

judge had sought to depose a reporter in preparation

for a hearing into charges of misconduct by the judge.

The reporter, who had broadcast many of these charges

in an investigative report, refused to comply with the

subpoenas and was held in contempt. In finding the

contempt citation to be valid, the court rejected the

view that the reporter could in any way rely upon a

First Amendment privilege. Central to this holding

was the recognition that ‘the United States Supreme

Court has established that the First Amendment does

not ‘grant newsmen a testimonial privilege that other cit-

izens do not enjoy’.” 411 N.E.2d at 472 (citation omitted)

On the basis of the record before us, we do not

believe that the First Amendment creates at the

level of constitutional doctrine an exception to

the “long standing principle that ‘the public ...

has a right to every man’s evidence’.” ... While

the question before us involves Roche’s testimony

at a deposition in a civil matter rather than his

appearance before a grand jury in a criminal

case, we cannot discern a constitutionally sig-

nificant difference between the public interest

in securing the accurate resolutions of charges of

judicial misconduct and the corresponding inter-

est in securing accurate criminal convictions.

411 N.E.2d at 473. (Citations omitted)

Last, in Brown v. Commonwealth, 214 Va. 755,

204 S.E.2d 429, 431, cert. denied, 419 U.S. 966 (1974),

the court, relying upon Branzburg and Liddy, stated:

We are of opinion that when there are reasonable

grounds to believe that information in the pos-

session of a newsman is material to proof of any

element of a criminal defense, or to proof of the

defense asserted by the defendant, or to a reduc-

tion in a classification or gradation of the offense

charged, or to a mitigation of the penalty attached,

the defendant’s need to acquire such information

is essential to a fair trial; when such other informa-

tion is not otherwise available, the defendant

has a due process right to compel disclosure of

such information and the identity of the source;

and any privilege of confidentiality claimed by

the newsman must, upon pain of contempt,

yield to that right.

In response to this analysis of Branzburg, there

are two possible but meritless arguments that can be

made. First, it might be urged that Branzburg applies

only to the issue of whether a reporter may be forced

to testify and not to the availability of information con-

tained in files or recordings of interviews. Clearly, this

is an absurd distinction, one which was rejected in

United States v. Liddy, supra.

If then, the First Amendment right to gather

news affords no absolute privilege against the

compelled revelation of news sources, this Court

is hard put to understand how it may find such

a privilege against the disclosure of confidential

information relevant to a criminal trial. The

Court’s reasoning is this: despite the fact that

the newsman’s ability to gather news may be

hampered if he cannot guarantee confidentiality,

the Supreme Court has said that the right to

gather news does not give him a First Amendment

privilege to resist a demand by proper authority

that he divulge his source’s identity. What makes

the need to withhold confidential information

more compelling and therefore more deserving

of constitutional protection?

354 F.Supp. at 214.

Second, and more important, is an argument which

relies upon a section of Justice Powell’s concurring

opinion in Branzburg:

The asserted claim to privilege should be judged

on its facts by the striking of a proper balance

between the freedom of the press and the obli-

gation of all citizens to give relevant testimony

with respect to criminal conduct. The balance

of these vital constitutional and societal interests

on a case-by-case basis accords with the tried

and traditional ways of adjudicating such

questions.

408 U.S. at 710. The Third Circuit, relying upon this

passage, has fashioned a rule which upholds a reporter's

privilege unless it can be demonstrated that (1) an effort

has been made to obtain the information from other

sources, (2) the only access to the information sought

is through the journalist and his sources, and (3) the

information sought is crucial to the claim. Riley v.

City of Chester, 612 F.2d 708 (3rd Cir. 1979); United

States v. Cuthbertson, 630 F.2d 139 (3rd Cir. 1980),

cert. denied, 449 U.S. 1126 (1981);'° United States v.

Criden, 633 F.2d 346 (3rd Cir. 1980), cert. denied, 449 U.S.

1113 (1981); United States v. Cuthbertson, 651 F.2d 189

(3rd Cir.), cert. denied, 454 U.S. 1056 (1981).

‘0 The Court of Appeals in this case cited Cuthbertson with

approval (Appendix, p. 12a).

Quite simply, these decisions quote Justice Powell

out of context and seriously distort this Court’s holding

in Branzburg. While the Court there did recognize the

existence of a qualified First Amendment privilege, it

made clear that the balancing of this privilege against

a grand jury’s or criminal defendant’s need for informa-

tion or testimony should be undertaken only in very

limited circumstances.

Finally as we have earlier indicated, news

gathering is not without its First Amendment

protections, and grand jury investigations if

instituted or conducted other than in good faith,

would pose wholly different issues for resolution

under the First Amendment. Official harassment

of the press undertaken not for purposes of law

enforcement but to disrupt a reporter’s relation-

ship with his news sources would have no justi-

fication. Grand Juries are subject to judicial

control and subpoenas to motions to quash. We

do not expect courts will forget that grand juries

must operate within the limits of the First Amend-

ment as well as the Fifth.

408 U.S. at 707-08. (Emphasis supplied) This passage

makes it clear beyond peradventure that there is a

First Amendment privilege sanctioning non-compliance

with a grand jury’s or a defendant’s subpoenas only

when the subpoena is issued in a bad-faith effort to

“disrupt a reporter’s relationship with his news

sources ..... In the present case, as evidenced by the

trial court’s decision to compel Douglas Looney to

testify, the petitioner’s subpoenas cannot be so char-

acterized.

Further, Justice White’s plurality opinion in Branz-

burg specifically rejected a case-by-case approach to

the issue raised by defendant’s subpoenas:

The privilege claimed here [by the press] is

conditional, not absolute; given the suggested

preliminary showings and compelling need, the

reporter vould be required to testify. Presumably,

such a rule would reduce the instances in which

reporters could be required to appear, but pre-

dicting in advance when and in what circum-

stances they could be compelled to do so would

be difficult. Such a rule would also have impli-

cations for the issuance of compulsory process

to reporters at civil and criminal trials and at

legislative hearings. If newsmen’s confidential

sources are as sensitive as they are claimed to be,

the prospect of being unmasked whenever a

judge determines the situation justifies it is

hardly a satisfactory solution to the problem.

408 U.S. at 702. (Footnote omitted)

Justice Powell’s concurrence does not contradict

this view of Branzburg. Indeed, if one reads that portion

of his opinion which immediately precedes his oft-

quoted passage, it becomes obvious that Justice Powell

was simply reiterating the majority view.

As indicated in the concluding portion of

the opinion, the court states that no harassment

of newsmen will be tolerated. If a newsman

believes that the grand jury investigation is

not being conducted in good faith he is not without

remedy. Indeed, if the newsman is called upon

to give information bearing only a remote and

tenuous relationship to the subject of investi-

gation, or if he has some other reason to believe

that his testimony implicates confidential source

relationships without a legitimate need of law

enforcement, he will have access to the court

on a motion to quash ....

408 U.S. at 709-10. (Emphasis supplied)

Support for this analysis can be found in Jn Re

Farber, supra, where the court rejected the claim that

Justice Powell’s concurrence allowed for a newsman’s

privilege in cases such as the present one.

We do not read Justice Powell’s opinion as in

any way disagreeing with what is said by Justice

White. But even if it did, it would not matter

for present purposes. The important and con-

clusive point is that five members of the Court

have all reached the conclusion that the First

Amendment affords no privilege to a newsman

to refuse to appear before a grand jury and testify

as to relevant information he possesses, even

though in doing so he may divulge confidential

sources. The particular path that any justice

may have followed becomes unimportant when

once it is seen that the majority have reached

the same destination.

394 A.2d at 334. (Emphasis supplied)

Similarly, in Caldero v. Tribune Publishing Co.,

98 Idaho 288, 562 P.2d 791 (1977), the Supreme Court

of Idaho stated:

Mr. Justice Powell filed a special concurring

opinion [in Branzburg| and it is argued that

such detracts from the conclusiveness of the

plurality opinion. We do not agree ... [W]e read

it only to state that if an “investigation ts not

being conducted in good faith [the newsman] is

not without remedy.”

562 P.2d at 793. (Emphasis supplied)

Thus it can be seen that Branzburg required the

trial court to deny Time, Inc.’s motion to quash the

subpoenas. The petitioner had an unquestionably

good-faith basis for requesting the documents sub-

poenaed — the article on its face contradicted the trial

testimony — and Time, Inc., accordingly, had no First

Amendment privilege upon which it could legitimately

rely upon in refusing compliance. The trial court,

therefore, should never have attempted to balance

non-existent conflicting considerations, and the Court

of Appeals should not have affirmed petitioner’s con-

viction. As the court stated in Farber: “The weighing

and balancing has been done by a higher court.”

394 A.2d at 334.

Conclusion

For the foregoing reasons, a writ of certiorari should

issue to review the judgment of the Court of Appeals

for the Second Circuit.

Respectfully submitted,

GERALD L. SHARGEL

Attorney for Petitioner

150 East 58th Street

New York, New York 10155

(212) 486-1717

Dated: May 3, 1983

Appendix A

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 26, 27, 28, 29 — August Term, 1982

(Argued September 20,1982 Decided January 28, 1983)

Docket Nos. 82-1028, 82-1030

82-1032, 82-1056

UNITED STATES OF AMERICA.

Appellee,

JAMES BURKE, ANTHONY PERLA.

ROCCO PERLA, and RICHARD KUHN,

Defendants-Appellants.

Before:

LUMBARD, MESKILL and CARDAMONE.

Circuit Judges.

Appeal from the judgment of the United States

District Court for the Eastern District of New York,

Bramwell, J., convicting the appellants of conspiracy

to violate the Racketeer Influenced And Corrupt Organi-

zations Act, 18 U.S.C. § 1961 et seg. (1976 & Supp. V

1981), conspiracy to commit sports bribery, 18 U.S.C.

§ 224 (1976), and interstate travel with the intent to

commit bribery, 18 U.S.C. § 1952 (1976).

Affirmed.

Appendix A - Opinion of United States Court of Appeals

GERALD L. SHARGEL, New York, New York,

for Defendant-Appellant Burke.

JAMES K. O’MALLEY, Pittsburgh, Pennsyl-

vania, for Defendants-Appellants Rocco

and Anthony Perla.

GARY B. ZIMMERMAN, Pittsburgh, Pennsy]-

vania, for Defendant-Appellant Kuhn.

EDWARD A. McDONALD, Attorney-in-Charge,

U.S. Department of Justice, Organized

Crime Strike Force, Eastern District of

New York, Brooklyn, New York (Edward

R. Korman, United States Attorney,

Eastern District of New York, Lawrence

H. Sharf, Special Counsel, Eastern District

of New York, Brooklyn, New York of counse)),

for Appellee U.S.A.

James C. Goodale, John G. Koeltl, Gary

W. Kubek, Debevoise & Plimpton, New

York, New York, for Amicus Curiae Time,

Incorporated.

MESKILL, Circuit Judge:

The defendants appeal from the judgment of the

United States District Court for the Eastern District of

New York, Bramwell, J., convicting them, after a four

week jury trial, on charges of conspiracy to violate the

Racketeer Influenced And Corrupt Organizations Act,

18 U.S.C. § 1961 et seq. (1976 & Supp. V 1981) (RICO),

conspiracy to commit sports bribery, 18 U.S.C. § 224

(1976), and interstate travel with the intent to commit

bribery, 18 U.S.C. § 1952 (1976). They challenge several

rulings made by the trial court and ask this Court to

reverse their convictions.

The judgment of the district court is affirmed.

Appendix A - Opinion of United States Court of Appeals

Background

The appellants’ convictions arise from their parti i-

pation in the Boston College (B.C.) basketball “poir.c

shaving scandal.’”' The evidence presented at trial,

although somewhat sketchy, revealed that the point

shaving scheme was born in Pittsburgh during the sum-

mer months of 1978 and was the brainchild of Rocco

Perla and his brother Anthony (Tony). The Perla

brothers were small-time gamblers with big-time ideas

who viewed the 1978-79 B.C. basketball season as a

perfect opportunity to implement these ideas. Their

optimism was fueled by the prospect that they might

recruit Richard Kuhn to join the scheme. Kuhn, a high

school friend of Rocco Perla, was entering his senior

year at B.C. and was expected to be a key member of

the 1978-79 B.C. basketball team.

The Perlas proposed a simple scheme. They would

select, in concert with Kuhn, certain basketball games

where the projected point spread separating B.C. from its

opponents was expected to be significant.2 Kuhn would

' This scandal reached national prominence when Sports I]lus-

trated (SI), in its February 16, 1981 issue, published an article by

Henry Hill, in collaboration with Douglas Looney, entitled How /

Put The Fix In. This article purported to be Henry Hill’s first-hand

account of the point shaving scheme and implicated the appellants

in this scandal.

* Much of the defendants’ trial was devoted to an explanation

of the practical operation and nuances of professional gambling.

Fundamentally, the process begins when participating bookmakers

agree to establish a “line’’ on an upcoming sporting event. Book-

makers create this “line” by determining, on the basis of prior records,

injuries, home field advantage and other pertinent factors, which

team should be favored to win the upcoming game. The bookmaker

then must establish the so-called “point spread.” If the teams are

fairly even in the competitive sense, the point spread will be low.

Thus, for example, if teams A and B are relatively equal, the better

team generally would be favored to win by a small margin, perhaps

1-3 points. Conversely, if one team is far superior, the point spread

would be much larger. To prevail, the gambler must pick the team

that will beat the point spread. Hence, if Team A is favored by 5

points, the gambler who bets on that team wins if it beats Team B

by more than five points. The bettor who wagers money on Team B

will win if that team wins the game or even if it loses by less than

5 points.

Appendix A - Opinion of United States Court of Appeals

be responsible for ensuring, by his play on the court,

that B.C. fell short of the point spread. Thus, for example,

if participating bookmakers determined B.C. to be an

eight-point favorite in a particular game, Kuhn would

be paid his bonus, usually $2,500, if B.C. won by less

than eight points. Kuhn agreed to participate in this

scheme.

Rocco and his brother Tony then mobilized a betting

syndicate to maximize their potential gain from this

illegal operation. They contacted a local friend, Paul

Mazzei, who was known to have influence within major

New York gambling circles. Mazzei in turn contacted

Henry Hill, a reputed underworld figure from New York

who had befriended Mazzei while both men were serving

sentences in a federal penitentiary. Mazzei and the

Perlas were particularly hopeful that Hill would enlist

the support of his reputed underworld “Boss,” defendant

James Burke, to ensure protection for their enterprise

in the event that the bookmakers discovered they were

being swindled. Hill and Burke were brought into the

scheme.

On November 16, 1978, Burke instructed Hill, Mazzei

and Tony Perla to meet in Boston with Kuhn and any

other member of the B.C. team interested in participating

in their scheme. Hill, Mazzei and Tony Perla flew to

Logan Airport in Boston and, after discussing their

strategy with Kuhn, the defendants agreed that the up-

coming Providence game would be an appropriate test

for their scheme. Hill then paid Kuhn several hundred

dollars good-faith money and Mazzei furnished him

with some cocaine to seal the conspiracy.

The Providence game was played on December 6,

1978 and Boston College was favored to win by six to

seven points. Kuhn was thus expected to keep the score

below the six to seven point margin. The test run for

the scheme proved unsuccessful, however, when B.C.

established an early lead and ultimately won the game

Appendix A - Opinion of United States Court of Appeals

by nineteen points. Apparently enraged by their gamb-

ling loss, the appellants decided to recruit additional

B.C. players to enhance their control over the outcome

of the games. They approached Ernie Cobb, the leading

scorer on the team, and Joseph Beaulieu, who shared

the center position with Kuhn. Cobb agreed to cooperate,

while Beaulieu rejected this offer.

The December 16 Harvard game was chosen as the

second test for the scheme. B.C. was favored by twelve

points, but won the game by only a three-point margin,

86 to 83. The bettors were very happy with this result and

Kuhn was paid $2,500 for his efforts. The scheme con-

tinued to work successfully in the December 23 U.C.L.A.

game,’ where U.C.L.A., a fifteen to eighteen-point

favorite, won the game by twenty-two points.

Suspecting that some bookmakers might be getting

wise to the scheme, the defendants temporarily revised

their strategy after the U.C.L.A. game. To allay any

suspicions of foul play, the defendants decided to bet

on B.C. to win by more that the point spread in a game

that they were confident B.C. would win handily. The

conspirators chose the January 17 University of Con-

necticut (UCONN) game to implement this plan. Their

strategy was effective; B.C., a two to three point favorite,

beat UCONN by amargin greater than the point spread. ‘

‘The U.C.L.A. game was the first game that the players agreed

to lose intentionally.

' The trial testimony relating to the UCONN game highlights

the inconsistencies between Henry Hill's testimony at trial and his

representations in the SI article. Hill maintained at trial that the

game was played on January 17, that B.C. was favored by two or

three points and that B.C. ultimately won by a margin greater than

the point spread. The SI article indicates that the game was played

on January 27, that B.C. was a five to six point favorite and that

B.C. won the game by one point, 78-77. We are, however, bound by

the evidence presented at trial and our discussion of the facts reflects

this limitation.

Appendix A - Opinion of United States Court of Appeals

In early February, B.C. was scheduied to play two

New York teams, Fordham and St. John’s. The defend-

ants decided that these games presented especially good

opportunities because New York bookmakers generally

accepted large bets for New York teams. They reintro-

duced the original strategy and it proved successful

for the February 3 Fordham game when B.C., a thirteen-

point favorite, won by seven points. The February 6

St. John’s game was a “push”: the bettors neither won

nor lost when St. John’s prevailed by the exact betting

margin established by participating bookmakers.

Confident from their recent success, the defendants

viewed the February 10 Holy Cross game as an opportu-

nity to reap the full benefits of their scheme. They were

aware that bookmakers generally accepted large bets on

this game because B.C. and Holy Cross were traditional

rivals and also because the game was being televised

nationwide. Holy Cross was favored to win and, consis-

tent with the scheme, the defendants bet on Holy Cross

to win by a margin greater than the point spread. Holy

Cross ultimately won by only two points, however, and

the defendants lost a substantial amount of money. The

scheme thus concluded on an unsuccessful note.

The criminal conspiracy unraveled when Henry Hill

was indicted by state authorities on drug conspiracy

charges and subsequently was implicated in the Luf-

thansa robbery at Kennedy Airport in New York.° While

being questioned on these charges, Hill revealed that he

had recently participated in a point shaving scheme

involving the B.C. basketball team and various under-

world figures. Hill offered to relate the full story of the

swindle if federal officials would guarantee him full

5 On Friday, December 8, 1978, one of the largest armed robberies

in United States history occurred at the Lufthansa cargo warehouse

in Kennedy Airport. The criminals involved in that robbery ab-

sconded with $5 million in cash and $1 million in jewelry. See gen-

erally United States v. Werner, 620 F.2d 922, 924-27 (2d Cir. 1980).

Appendix A - Opinion of United States Court of Appeals

immunity and would agree to intercede on his behalf

to convince state officials to drop the drug charges

pending in state court. The grand jury indicted Burke,

Mazzei, Kuhn, Rocco Perla and Tony Perla on the basis

of testimony given by Hill. Hill was indicted as a co-

conspirator, but was not named as a defendant.

At trial, the government’s case consisted principally

of the testimony of Henry Hill and three other witnesses,

James Sweeney and Joseph Beaulieu, both B.C. players,

and Barbara Reed, a 23-year-old nurse who lived with

Kuhn during the 1978-79 B.C. season. The government

also introduced two confessions, one made by Kuhn and

the other by Tony Perla. Finally, the government pre-

sented telephone records showing evidence of extensive

communications between the conspirators during the

1978-79 season, and records provided by Western Union

and various hotels which further corroborated govern-

ment testimony.

Each appellant was convicted, after a four week jury

trial, on charges of RICO conspiracy, 18 U.S.C. § 1962(d)

(1976 & Supp. V 1981), conspiracy to commit sports

bribery, 18 U.S.C. § 224 (1976), and interstate travel with

the intent to commit bribery, 18 U.S.C. § 1952 (1976).

Judge Bramwell sentenced defendant Burke to a twenty

year prison term. Appellants Kuhn, Mazzei and Tony

Perla were sentenced to ten year prison terms on the

RICO count, and concurrent five year terms on the two

remaining counts. The court imposed a four year jail

term on Rocco Perla. See 18 U.S.C. § 1963 (1976).®

* 18 U.S.C. § provides in part:

§ 1963. Criminal penalties

(a) Whoever violates any provision of section 1962

of this chapter shall be fined not more than $25,000 or

imprisoned not more than twenty years, or both, and

shall forfeit to the United States (1) any interest he has

acquired or maintained in violation of section 1962, and

(2) any interest in, security of, claim against, or property

or contractual mght of any kind affording a source of

influence over, any enterprise which he has established,

operated, controlled, conducted, or participated in the

conduct of, in violation of section 1962.

Appendix A - Opinion of United States Court of Appeals

Appellant Mazzei decided to pursue his appeal

separate from his co-defendants. See United States v.

Mazzei, Docket No. 82-1146, slip op. 1571 (2d Cir. Jan. 28,

1983).

Discussion

The appellants point to eight rulings made by the

trial court to support their claims of judicial error. Only

two of these rulings merit extended discussion. We will

deal with the other claims briefly.

A. Propriety of Quashing Subpoena

On February 16, 1981, Sports Illustrated (SI) pub-

lished an article written by Henry Hill, in collaboration

with Douglas Looney, entitled How I Put The Fix In.

This article purported to be Hill’s first-hand account of

the point shaving scheme. Prior to trial, counsel for

appellant Burke served a subpoena on Time, Incorpo-

rated,’ the parent company of SI, seeking production

of virtually every document and tape in the possession

of SI that in any way related to the Looney article.

Time, Inc. moved to quash the subpoena pursuant to

Fed. R. Crim. P. 17(c), relying on the First Amendment

reporter’s privilege and arguing that broad-ranging

production of SI documents would be unreasonable and

unnecessary. Judge Bramwell ordered the subpoena

quashed prior to trial, but permitted the appellant leave

to renew his request after Henry Hill had testified. The

court explained that the decision whether to grant or

deny disclosure of SI documents relating to the Looney

article could be made more intelligently after Hill had

testified to his recollections of the point shaving scheme.

? Sports Illustrated is a subsidiary of Time, Inc. Burke also

served subpoenas on reporter Looney and the Managing Editor

of Sports Illustrated. For convenience, we refer to these entities

collectively as “Time, Inc.” Counsel for Time, Inc. submitted a brief

as amicus curiae.

Appendix A - Opinion of United States Court of Appeals

Burke renewed the subpoena request after Hill had

concluded his testimony. Time, Inc. again moved to

quash. Judge Bramwell granted the Rule 17(c) motion

again, explaining that Burke had not satisfied his

burden of showing that the subpoenaed documents were

highly material and necessary to his case and not

obtainable from other sources. The court noted that the

only important evidentiary purpose served by pro-

duction of these documents, i.e., impeaching the credi-

bility of Henry Hill, did not defeat Looney’s First Amend-

ment privilege. Hill had been thoroughly impeached at

trial and thus the SI materials, even if relevant, would

save a solely cumulative purpose. Judge Bramwell did

order Looney to testify at trial, and he testified over the

objection of Time, Inc., to any inconsistencies between

Hill’s in-court testimony and what he told Looney while

preparing the SI article.

On appeal, Burke contends that Hill’s testimony

was the sine qua non of the government’s case against

him. He asserts that the court committed reversible

error when it refused to review the SI documents in

camera to determine if they would have substantially

contradicted Hill’s testimony and thus enhanced his

chances for acquittal. When a litigant seeks to subpoena

documents that have been prepared by a reporter in

connection with a news story, this Circuit’s standard

of review, at least in civil cases, is well settled:

The law in this Circuit is clear that to protect

the important interests of reporters and the

public in preserving the confidentiality of

journalists’ sources, disclosure may be ordered

only upon a clear and specific showing that

the information is: highly material and rele-

vant, necessary or critical to the maintenance

of the claim, and not obtainable from other

available sources. Baker v. F & F Investment,

470 F.2d 778, 783-85 (2d Cir. 1972), cert. denied,

10a

Appendix A - Opinion of United States Court of Appeals

411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686

(1973). Accord, Zerilli v. Smith, 656 F.2d 705,

713-15 (D.C. Cir. 1981); Silkwood v. Kerr-

McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).

In re Petroleum Products Antitrust Litigation, 680 F.2d 5,

7-8 (2d Cir. 1982) (per curiam). This demanding burden

has been imposed by the courts to “reflect a paramount

public interest in the maintenance of a vigorous, aggres-

sive and independent press capable of participating in

robust, unfettered debate over controversial matters, an

interest which has always been a principal concern of the

First Amendment, see, e.g., New York Times v. Sullivan,

316 US. 254, 84 S.Ct. 710, 11 LEd.2d G86 (1964).”

Baker v. F & F Investment, 470 F.2d 778, 782 (2d Cir.

1972), cert. denied, 411 U.S. 966 (1973).

We see no legally principled reason for drawing a

distinction between civil and criminal cases when con-

sidering whether the reporter’s interest in confidentiality

should yield to the moving party’s need for probative

evidence. To be sure, a criminal defendant has more at

stake than a civil litigant and the evidentiary needs ofa

criminal defendant may weigh more heavily in the bal-

ance. Nevertheless, the standard of review should remain

the same. Indeed, the important social interests in the

free flow of information that are protected by the

reporter’s qualified privilege are particularly compelling

in criminal cases. Reporters are to be encouraged to

investigate and expose, free from unnecessary govern-

ment intrusion, evidence of criminal wrongdoing.

This Circuit has recognized, albeit implicitly, that

the reporter’s qualified privilege extends to both civil

and criminal cases. In United States v. Orsini, we

affirmed the district court’s finding that:

{[T]here exists no absolute rule of privilege

protecting newsmen from disclosure of confi-

dential sources. Instead, what is required is a

lla

Appendix A - Opinion of United States Court of Appeals

case by case evaluation and balancing of

the legitimate competing interests of the

newsman’s claim to First Amendment pro-

tection from forced disclosure of his confi-

dential sources, as against the defendant’s

claim to a fair trial which is guaranteed by

the Sixth Amendment.

424 F.Supp. 229, 232 (E.D.N.Y. 1976), aff'd mem., 559

F.2d 1206 (2d Cir.), cert. denied, 434 U.S. 997 (1977).

This view has been adopted by courts in other juris-

dictions. See, e.g., United States v. Cuthbertson, 630 F.2d

139, 146-47 (3d Cir. 1980), cert. denied, 449 U.S. 1126

(1981); United States v. Hubbard, 493 F.Supp. 202, 205

(D.D.C. 1979); see also Baker v. F & F Investment, 470

F.2d at 784-85 (this Court observed that the Supreme

Court’s decision in Branzburg v. Hayes, 408 U.S. 665

(1972), recognized the need to balance First Amendment

values even where a reporter is asked to testify before a

grand jury). Having resolved this threshold issue, we

proceed to balance the First Amendment interests of

reporter Looney against the evidentiary needs of

defendant Burke.

The Petroleum Products test requires the moving

party to make a clear and specific showing that the

subpoenaed documents are “highly material and

relevant, necessary or critical to the maintenance of the

claim, and not obtainable from other available sources.”

680 F.2d at 7. The Looney work papers may have been

material and relevant inasmuch as they might have

contradicted the trial testimony of Henry Hill. However,

the appellant has completely failed to make the clear and

specific showing that these documents were necessary

or critical to the maintenance of his defense.®

8 The appellant has also failed to satisfy the third prong of the

Petroleum Products test, i.e., a clear and specific showing that the

materials could not be obtained from another source. Attorney Robert

Simels acted as counsel to Hill and was present during each interview

(Footnote continued on following page)

12a

Appendix A - Opinion of United States Court of Appeals

Counsel for Burke admitted at trial that the principal

evidentiary purpose served by the Looney materials

would be to impeach the credibility of Henry Hill. Judge

Bramwell observed, however, that Hill had been im-

peached thoroughly during trial and thus any further

impeachment evidence introduced against him would

serve a solely cumulative purpose. The trial record fully

supports the finding of the court that Hill’s credibility

was effectively attacked without resort to the SI docu-

ments. Specifically, Hill conceded that he was a career

criminal who had committed many heinous crimes,

including armed robbery, arson and hijacking. The wit-

ness admitted during direct examination that he had

been convicted for his involvement in an extortion ring,

and for loansharking, trafficking in heroin, cocaine and

other illicit drugs. After counsel had exposed this litany

of abuses, Judge Bramwell was prompted to remark:

Now, with what’s come out as to this witness,

I see—I mean—it couldn’t be worse as far as

what would show as to aman in his condition.

I mean he’s done everything, every type of

crime and situation.

Brief for Appellee at 26.

In addition to this wealth of impeachment evidence,

Judge Bramwell also ordered that a redacted version of

Hill’s immunity agreement be read to the jury. Thus, the

jury was aware that Hill, in an effort to curry favor with

the government and thereby seal his immunity, might be

(Footnote continued from preceding page)

between Hill and Looney, yet Burke has not moved to subpoena

Simels’ work papers or to compel Simels to testify to his recollections.

The appellant offers the lame excuse that Simels will merely claim

attorney-client privilege. Of course, no privilege could have been

asserted regarding Hill’s conversations with Looney overheard by

Simels. In any event, this ‘“prediction’”’ does not insulate defense

counsel from his duty to exhaust all reasonable alternatives. Petro-

leum Products demands that effort. See 680 F.2d at 8-9; United States

v. Cuthbertson, 651 F.2d 189, 196 (3d Cir.), cert. denied, 454 U.S. 1056

(1981).

l3a

Appendix A - Opinion of United States Court of Appeals

expected, regardless of his actual beliefs, to testify favor-

ably for the prosecution. Finally, the court required

Looney to testify at trial and defense counsel was able to

expose inconsistencies between Hill’s trial testimony and

his representations to Looney. In light of this extensive

impeachment evidence, the district court properly con-

cluded that any information to be gleaned from the SI

work papers would be merely cumulative and thus

would not defeat Looney’s First Amendment privilege.?

B. Instruction on Partial Verdict

While the jury was deliberating, it submitted the

following note to Judge Bramwell:

Do we have to reach a verdict for all five

defendants; that is, can some be guilty of one

or more counts, and the others be undecided?

Brief for Appellant Burke at 44. The court responded:

Well, it’s the desire of the Court and of all

parties that if possible you return veridct [sic]

on all five defendants if you can do so without

violating your individual conscience.

Id.

The appellants argue that there is but one reasonable

interpretation of this inquiry, namely, that the jury was

considering the possibility of rendering a partial verdict

and was unsure whether it was permitted to return such a

* Our holding should not, however, be read as an indictment or

criticism of in camera review. We encourage the courts to inspect

potentially sensitive documents, especially in situations where, as

here, the record reveals that the SI work papers were not sufficiently

voluminous to render in camera review impracticable. We would

have been troubled by the court’s failure to undertake in camera

review if there were any reasonable grounds to believe that inspection

of the SI work papers would yield any probative evidence, other than

cumulative impeachment evidence, to support the appellant’s case.

No such showing was made here.

l4a

Appendix A - Opinion of United States Court of Appeals

verdict during the course of its deliberations. The appel-

lants further contend that the district judge committed

reversible error when he failed to instruct the jury under

Fed. R. Crim. P. 31(b) that it could return a partial

verdict at any time and reserve judgment on any remain-

ing defendants or counts. Finally, the appellants main-

tain that their convictions should be reversed because

the court’s response to the jury inquiry was unduly

coercive.

The appellants rely principally on this Court’s

decision in United States v. DiLapi, 651 F.2d 140 (2d Cir.

1981), cert. denied, 50 U.S.L.W. 3668 (U.S. Feb. 22, 1982),

to support their Rule 31(b) claim. In DiLapi, the jury

reported during deliberations that it had reached verdicts

on some of the defendants, but did not express at that

time a preference for reporting a partial verdict. Defense

counsel asked the court to give a Rule 31(b) instruction,

but this request was denied. The defendant objected to

the court’s ruling, arguing that the judge committed

reversible error under Rule 31(b) when he failed to

instruct the jury of its right to render a partial verdict.

On appeal, we reviewed the important function that

the jury serves in the American criminal justice system.

We then focused on the unique problems that juries

confront in multiple defendant trials, particularly in

fulfilling their constitutional duty to ensure that the

evidence against each defendant be given separate and

individual consideration. See id. at 146-47: United States

v. Calabro, 449 F.2d 885, 893 (2d Cir. 1971), cert. denied,

405 U.S. 928 (1972). We explained that juries must be

afforded “considerable latitude in determining for

themselves the structure of the deliberative process that

will best assure individual consideration of each defend-

ant,” including full discretion to decide when to report

its verdict. United States v. DiLapi, 651 F.2d at 146.

We cautioned, however, that since unrestricted jury

discretion poses a serious threat to the integrity of the

l5a

Appendix A - Opinion of United States Court of Appeals

judicial system, it is incumbent on the district judge to

ensure that such discretion be exercised intelligently.

Consistent with this duty to “inform,” the district

judge would be expected to give a Rule 31(b) instruction

under appropriate circumstances:

We think that juries should be neither encour-

aged nor discouraged to return a partial verdict,

but should understand their options, especially

when they have reached a stage in their deliber-

ations at which they may well wish to report a

partial verdict as to some counts or some defend-

ants. In this case, the jury reported that it had

reached a decision as to four of the defendants, was

divided on the remaining two defendants, and

awaited further instructions. At that point,

particularly in view of counsel’s request, an

appropriate response by the trial judge should

have included a neutral explanation of the jury’s

options either to report the verdicts reached, or

to defer reporting of all verdicts until the con-

clusion of deliberations.

Id. at 147.

Upon concluding our review of the difficult pro-

cedural issues raised in multiple defendant trials, we

ruled that the district judge’s failure to give an instruc-

tion on partial verdicts did not violate rule 31(b):

Plainly Rule 31(b) would be violated if a trial judge

were to tell a jury it may not return a partial verdict

or were to refuse a jury’s request to return a partial

verdict. But that is not what occurred here. Though

the jury reported that it had reached verdicts as to

some of the defendants, it did not indicate any

preference for reporting a partial verdict. The

request for return of a partial verdict came from

counsel, and it was that request that Judge Bram-

well refused.

l6a

Appendix A - Opinion of United States Court of Appeals

. .. However, the absence of such an explanation

[on partial verdicts] did not deny the appellants

any protected right in a case such as this where the

jury neither attempted to return a partial verdict

nor even asked if it could do so.

Id. at 146-47.

In this appeal, there are three plausible interpre-

tations of the disputed jury request. The jury might

have been inquiring whether it would ultimately be

requested to reach a verdict as to each defendant. The

request for instruction may have been intended as a

preliminary inquiry to determine the various options.

available to the jury during deliberations. Finally, the

question may have been a reflection of the jury’s wish

to render a partial verdict. We do not propose to second-

guess the trial court in difficult situations where, as here,

the request for instruction is ambiguous. The district

judge is able to observe first hand the tenor of the trial

and is best suited to make informed judgments upon

requests for instruction. We will not overturn those

judgments under Rule 31(b) or DiLapi except upon a

specific showing that the court refused to accept a partial

verdict or specifically instructed the jury that it would

not be permitted to return a partial verdict.

The DiLapi case presented a much closer question

of reversible error under Rule 31(b). In DiLapi, the jury

sent a note to the judge stating: ‘“‘We have reached a ver-

dict on four of the defendants. We are sharply and evenly

split on the remaining two. We await further instruction

from the Court.” Jd. at 144. Counsel then requested that

the jury be given a Rule 31(b) instruction, but the judge

refused. On the next day, the jury sent another note to

the judge: ‘We have reached a unanimous decision on

seven counts, but remain hopelessly deadlocked on the

remaining five counts.” Jd. at 145. Counsel again sug-

gested that the jury be given a Rule 31(b) instruction,

17a

Appendix A - Opinion of United States Court of Appeals

and the court rejected this request despite the clear pos-

sibility that the jury might have desired to render a

partial verdict at that time.

In DiLapi, we questioned the district judge’s failure

to give a Rule 31(b) instruction under these circum-

stances, but nonetheless held that “the absence of such

an explanation did not deny the appellants any pro-

tected right.” Jd. at 147. This conclusion applies with

equal force to the present dispute. Rule 31(b) requires only

that the district judge accept a partial verdict upon

request, and refrain from instructing the jury that they

may not return a partial verdict.

We also find that the appellants were not prejudiced,

nor was the jury coerced by the court’s instruction. See

generally United States v. Robinson, 560 F.2d 507, 517

(2d Cir. 1977) (en bance), cert. denied, 435 U.S. 905 (1978):

United States v. Rao, 394 F.2d 354, 355 (2d Cir.), cert.

denied, 393 U.S. 845 (1968). Judge Bramwell’s response

to the jury’s request for instruction was even-handed

and did not “tend[]to coerce undecided jurors into reach-

ing a verdict by abandoning without reason conscien-

tiously held doubts.” United States v.Robinson, 560

F.2d at 517, citing United States v. Green, 523 F.2d 229.

236 (2d Cir. 1975), cert. denied, 423 U.S. 1074 (1976).

We have recognized that the district court may instruct

the jury in an evenhanded, noncoercive manner that it

would prefer a unanimous verdict if accomplished

“without any juror yielding a conscientious conviction

which he or she may have.” United States v. Rao, 394

F.2d at 355; see United States v. Barash, 412 F.2d 26. 32

(2d Cir.), cert. denied, 396 U.S. 832 (1969). This charge,

first recognized by the Supreme Court in Allen v. United

States, 164 U.S. 492 (1896), remains valid in our Circuit.

See United States v. Robinson, 560 F.2d at 517.

Finally, the length of time between the court's

instruction and the actual rendering of the jury verdict

is probative of the fact that the jury was not coerced or

18a

Appendix A - Opinion of United States Court of Appeals

unduly influenced by the judge’s remarks. The request

for instruction occurred shortly after 12:00 noon on

Saturday and the jury submitted additional requests and

continued to deliberate until 6:25 p.m. When deliber-

ations resumed on Monday, the jury submitted several

other requests for instruction and did not reach a verdict

until 5:20 p.m. on that day. This substantial interval

between Judge Bramwell’s remark and the rendering of

the verdict indicates that the jury freely exercised its

decisionmaking authority and was not unduly influ-

enced by the court’s instruction. See United States v.

O’Connor, 580 F.2d 38, 44 (2d Cir. 1978) (Court permits

two modified Allen charges, “especially since the jury,

which had reported that it was hung, continued to

deliberate for several hours after the second charge was

given.”); United States v. Robinson, 560 F.2d at 517.

C. Rule 30 Claim

During the course of trial, the government called

Christine Siano to testify to the substance of a conver-

sation between herself and her neighbor, Tony Perla. She

testified that Perla, when asked about the SI article

implicating him in the B.C. scandal, had remarked:

“[S]o I shaved a few games, it is no big deal, and they’re

not going to put me away for this.”’ At the close of trial,

the government submitted a request to charge asking

the court to instruct the jury that the Perla statement

constituted an admission. Judge Bramwell read this

request during his charge conference and then inquired

whether the defendants objected to the government’s

proposal. The following colloquy occurred at that point:

Mr. Zimmerman (counsel for Kuhn); I object

to that.

The Court: That is request number 13.

Mr. Zimmerman: I object to the wording.

The Court: What do you say”

19a

Appendix A - Opinion of United States Court of Appeals

Mr. McDonald (the prosecutor): My objection

is that you did not include Anthony Perla in there.

The statement which he made to Christine Cianna

[sic].

The Court: Just a moment. I’m going to leave

that out.

Counsel for appellant Tony Perla argues on appeal

that he interpreted Judge Bramwell’s remark to mean

that the court would not instruct the jury that Perla’s

statement to Siano constituted an admission. He asserts

that his closing arguments were prepared with the

expectation that Perla’s statement to Siano would not be

included in the court’s instruction. Perla contends that

Judge Bramwell committed reversible error under Fed. R.

Crim. P. 30 when he later revised the jury instruction

to include the Perla admission after closing arguments

had been completed.

Counsel’s arguments are not persuasive because

Perla’s statement clearly constituted an admission.

Given that fact, it is readily apparent that Judge Bram-

well’s remark at the charge conference, albeit somewhat

unclear, referred not to his decision to forego an instruc-

tion on Perla’s admission, but rather reflected his

decision not to use the government’s proposed instruc-

tion. If counsel did not fully understand this remark,

he should have asked for clarification because he could

not have reasonably expected that the court would gloss

over this important testimony. Indeed, when counsel

for Perla objected to the admissibility of the Siano

testimony earlier in the trial, the court specifically

stated that Perla’s inculpatory statement “{clomes in

as an admission.”

20a

Appendix A - Opinion of United States Court of Appeals

D. Failure to Instruct the Jury on a

Theory of the Case

Appellants Kuhn, Rocco Perla and Tony Perla argue

that their complicity, if any, in the point shaving scheme

was limited to buying and selling inside information on

B.C. games, but did not extend to “point shaving” as

the government had alleged. They argue that the “inside

information” theory constituted a legally sufficient

defense to the government’s RICO charges and assert

that the district judge committed reversible error under

Fed. R. Crim. P. 30 when he failed to instruct the jury

on this theory.

Every criminal defendant is entitled to have his

theory of the case, if it could amount to a legally suf.

ficient defense based upon the evidence presented at

trial, fairly submitted to the jury. Fed. R. Crim. P. 30.

The request to charge under Rule 30 must identify, with

some reasonable degree of clarity, the theory of the case

desired by the defendant. See United States v. Gram-

matikos, 633 F.2d 1013, 1022 (2d Cir. 1980) (defenses

must be “squarely interposed”’).

In this action, the appellants did not request that

the jury be instructed on their “inside information”

theory. They did not object to the court’s failure to give

that specific charge. “In the absence of clear error

by the trial court in its instructions, failure to make

timely request for, or objection to, instructions to the

jury waives all objections to the charge given. Fed. R.

Crim. P. 30.” United States v. Bermudez, 526 F.2d at 97:

see also United States v. Grammatikos, 633 F.2d at

1022; United States v. Barash, 412 F.2d 26, 33 (2d Cir.),

cert. denied, 396 U.S. 832 (1969).

The court’s failure to instruct on the “inside informa-

tion” theory was not clear error. Defense counsel never

even hinted at trial that the appellants had paid or

received money for providing inside information on B.C.

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Appendix A - Opinion of United States Court of Appeals

basketball games. The court properly limited its instruc-

tion to those defenses that could be fairly gleaned from

the evidence. No error is shown here.

F. Denial of Hearing on Preindictment Publicity

The appellants maintain that their right to a fair,

impartial trial was jeopardized due to the widespread,

adverse publicity generated by the SI expose of the B.C.

conspiracy. They argue that the district judge committed

reversible error when he denied their request for a pre-

indictment hearing to determine whether the grand jury

could give fair and impartial consideration to their

case.

When a person is brought before the grand jury and

charged with a criminal offense, that individual is

constitutionally entitled to have his case considered by

an impartial and unbiased grand jury. See Lawn uv.

United States, 355 U.S. 339, 349-50 (1958); Costello v.

United States, 350 U.S. 359, 363 (1956). The grand jury

need not deliberate in a sterile chamber, however, to

satisfy this constitutional guarantee, see United States

vu. Nunan, 236 F.2d 576, 593 (2d Cir. 1956), cert. denied,

353 U.S. 912 (1957); United States v. Myers, 510 F.Supp.

323, 325 (E.D.N.Y. 1980), and a criminal conviction

appealed on grounds of adverse preindictment publicity

will not be overturned unless the moving party can “bear

the heavy burden of demonstrating that he has suffered

actual prejudice as a result of the publicity.” United

States v. Myers, 510 F.Supp. at 325-26; see United States

v. Mandel, 415 F.Supp. 1033, 1061-65 (D. Md. 1976),

aff'd in part, vacated and remanded in part, 591 F.2d

1347, aff'd on rehearing, 602 F.2d 653 (4th Cir. 1979) (en

banc).

The appellants have failed to cite any persuasive

evidence of actual grand jury prejudice in the preindict-

ment stage of this criminal action. They contend in very

general terms that the SI article and the adverse

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Appendix A - Opinion of United States Court of Appeals

publicity generated by this story prejudiced them, an

argument which is clearly insufficient to warrant

reversal under prevailing law. See, e.g., Beck v. Washing-

ton, 369 U.S. 541, 549 (1962); United States v. Nunan,

236 F.2d at 593.

G. Limit on Cross-Examination/ Refusal to Sever

Counsel for appellant Burke indicated at the com-

mencement of trial they were concerned that Henry Hill

would implicate Burke in criminal activities, including

the Lufthansa robbery, that were unrelated to the

pending charges. Counsel asked the court to restrict any

examination of Hill that might elicit answers impli-

cating Burke in other crimes. Judge Bramwell made two

significant evidentiary rulings at this point in the trial.

He ordered the prosecutor to warn Hill that he should

limit his testimony to facts relevant to the pending

criminal charges. The court also ruled that, due to the

widespread publicity surrounding Lufthansa and

Burke’s reputed involvement in that crime, any testi-

mony relating to Lufthansa would be limited to general

discussion of a significant robbery. Counsel for Kuhn,

Anthony Perla and Rocco Perla then moved to sever

their trial from the Burke action, arguing that they

were unduly prejudiced by the court’s evidentiary

rulings. This motion was denied by the court.

The Perlas and Kuhn charge on appeal that Judge

Bramwell committed reversible error when he denied

them the right to conduct wide-ranging cross-examin-

ation of Hill that would have exposed a serious incident

of misconduct reflecting on credibility. They argue that

Hill was a critical prosecution witness whose motive to

fabricate—i.e., to curry favor with the government and

thus gain immunity for his many criminal offenses—

was not fully developed at trial due to the court’s eviden-

tiary rulings. Finally, the appellants contend that the

court should have at least granted their motion to sever,

thereby eliminating any prejudice to their defense.

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Appendix A - Opinion of United States Court of Appeals

Regarding the admissibility of impeachment

evidence, we have recognized that the trial judge, who

can observe first hand the credibility of witnesses and

general tenor of the trial, is especially well suited to

resolve these issues. Hence, we have accorded the trial

judge considerable discretion in this area. United States

v. Stahl, 616 F.2d 30, 33 (2d Cir. 1980); see also United

States v. Rogers, 549 F.2d 490, 496-97 (8th Cir. 1976),

cert. denied, 431 U.S. 918 (1977).

The trial court’s decision to circumscribe defense

counsel’s efforts to impeach Hill was an appropriate

exercise of its discretion. The only possible advantage

to be gained by pursuing the Lufthansa line of question-

ing, v.e., further impeaching the credibility of Hill, was

substantially outweighed by the strong possibility that

the jury would exaggerate the importance of this testi-

mony. Moreover, the court did permit counsel to establish

that Hill had been linked to a significant robbery.

Counsel was allowed to introduce a redacted version

of Hill’s immunity agreement and thus the jury was

fully aware of his motives for testifying. This evidence,

viewed together with the additional impeachment testi-

mony independently introduced against Hill, reveals

that Hill had been thoroughly impeached at trial. No

error is shown here.

We also affirm the district judge’s decision to deny

counsel's motion to sever. The judge is empowered under

Fed. R. Crim P. 14 to sever the trials of criminal

defendants if he determines that the parties will be

unduly prejudiced by a joint prosecution. That decision

is committed, however, to the broad discretion of the

trial judge, see United States v. Werner, 620 F.2d 922,

928 (2d Cir. 1980); United States v. Ochs, 595 F.2d 1247,

1260-61 (2d Cir.), cert. denied, 444 U.S. 955 (1979), and

a denial of a Rule 14 motion will not be overturned on

appeal unless the defendant meets the following heavy

burden:

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Appendix A - Opinion of United States Court of Appeals

The burden is upon a moving defendant to show

facts demonstrating that he will be so severely

prejudiced by a joint trial that it would in effect

deny him a fair trial. The defendant must demon-

strate that he suffered such prejudice as a result

of the joinder, not that he might have had a better

chance for acquittal at a separate trial.

United States v. Rucker, 586 F.2d 899, 902 (2d Cir. 1978),

citing United States v. Borelli, 435 F.2d 500 (2d Cir.

1970), cert. denied, 401 U.S 946 (1971). The court did

not abuse its discretion when denying the appellants’

motion to sever. Important judicial economies were

served by joining these criminal trials and the appellants

have been unable to show that they were severely preju-

diced or denied a fair trial because their cases were

tried together.

H. Kuhn Inculpatory Statement

On September 3, 1980, FBI agents James Byron and

Thomas Sweeney visited the family home of appellant

Kuhn in Swissvale, Pennsylvania. The agents asked

Kuhn whether he would be willing to discuss events

surrounding the 1978-79 B.C. basketball season. Kuhn

inquired whether he was required to talk, and the agents

responded that, although they would appreciate his

cooperation, he was not legally obligated to answer

their questions.

Kuhn agreed to talk with the agents, but asked that

the conversation be continued outside his home. They

agreed to continue the discussion in the FBI car parked

outside the Kuhn home. Once inside the car, Kuhn again

asked whether he was required to speak with the agents

and they explained that he was not legally bound to

answer their questions. Kuhn then made several incul-

patory statements.

25a

Appendix A - Opinion of United States Court of Appeals

At trial FBI Agent Byron testified to the substance of

Kuhn’s admission, but omitted any reference to remarks

that implicated Kuhn’s co-defendants in the criminal

enterprise. On appeal, Kuhn argues that the court should

have suppressed this testimony because it was obtained

in violation of his Fifth Amendment rights. Specifi-

cally, Kuhn asserts that since his admissions were the

product of a custodial interrogation, the FBI agents

should have given Miranda warnings before questioning

him. See Miranda v. Arizona, 384 U.S. 436 (1966). Both

parties agree that Agents Sweeney and Byron did not

apprise Kuhn of his Miranda rights before he admitted

complicity in the point shaving scheme.

The courts have frequently been asked, in the wake

of the Supreme Court’s landmark Miranda decision,

to determine the precise point at which the Fifth Amend-

ment demands that Miranda warnings be given. The

Supreme Court has stated that warnings are consti-

tutionally required where the accused has been arrested

or 1s required to submit to a “custodial interrogation.”

Id. at 444; see Oregon v. Mathiason, 429 U.S. 492, 494

(1977) (per curiam); Beckwith v. United States, 425 U.S.

341, 345 (1976). “Custodial interrogation” has been

defined to include situations in which the accused is

“taken into custody or otherwise deprived of his free-

dom of action in any significant way.” Miranda v.

Arizona, 384 U.S. at 444; see Oregon v. Mathiason,

429 U.S. at 494. Miranda warnings need not be delivered

in a non-custodial interrogation even if the govern-

ment’s criminal investigation has reached a stage

where the defendant is the focus of the inquiry. See

Beckwith v. United States, 425 U.S. at 345.

In this action, Judge Bramwell properly ruled that

Kuhn’s admissions were not the product of a custodial

interrogation. The FBI agents advised Kuhn, at two

separate points during their conversation, that he was

not legally obligated to speak with them. In fact, even

26a

Appendix A - Opinion of United States Court of Appeals

after he admitted complicity in the point shaving

scheme, the agents left the Kuhn property without

arresting or otherwise restricting his freedom. The

defendant has failed to convince us on appeal that his

freedom of movement was impaired or restricted by

Agents Byron and Sweeney. See Oregon v. Mathiason,

429 U.S. at 495 (after bringing the defendant into an

interrogation room at the police station, officer [falsely]

stated that defendant’s fingerprints were found at the

scene of the crime: held, no Miranda problems because

the defendant was not arrested, nor was his freedom

of movement restricted in any way when he voluntarily

confessed to the crime).

I. Bruton Claim

When Kuhn admitted to his complicity in the point

shaving scheme, he also implicated appellants Tony

Perla, Rocco Perla and Paul Mazzei. At trial, FBI Agent

Byron testified to the substance of Kuhn’s inculpatory

statements, but omitted any specific reference to the

co-defendants.'!° The appellants contend on appeal

that even though Agent Byron did not specifically

identify them when recounting Kuhn’s statements, the

jury could readily infer from his testimony that Kuhn

was referring to them when confessing to complicity

in the scandal. The Perlas and Mazzei argue that their

Sixth Amendment right of confrontation was violated

by the court’s decision to permit Agent Byron to testify

to the redacted confession. They contend that Kuhn’s

statements, as recounted by witness Byron, referred

to them by implication and thus should have been

excised because Kuhn never testified at trial.

'0 The prosecution initially proposed that a redacted version

of Kuhn’s statement be read to the jury. Judge Bramwell ruled that

Agent Byron should testify to his recollection of the meeting with

Kuhn, using this statement to refresh his recollection.

27a

Appendix A - Opinion of United States Court of Appeals

In Bruton v. United States, 391 U.S. 123 (1968), the

Court held that the admission of a non-testifying defend-

ant’s statement which implicated a co-defendant vio-

lated the Sixth Amendment Confrontation Clause.

The Bruton rule has been fully explored by this Court.

A redacted statement of a non-testifying defendant

is admissible if not clearly inculpatory as to a co-

defendant or vitally important to the government’s

case against the co-defendant, and if the court provides

cautionary instructions limiting the use of the statement

against its maker. See United States v. Wingate, 520

F.2d 309, 313 (2d Cir. 1975), cert. denied, 423 U.S. 1074

(1976). To be clearly inculpatory, the redacted statement,

standing alone, must connect a co-defendant with the

crime. Thus, where the redacted statement does not

mention a co-defendant’s name or provide a physical

description, its admission would not violate Bruton.

See United States v. Knuckles, 581 F.2d 305, 313 (2d Cir.),

cert. denied, 439 U.S. 986 (1978). However, a redacted

statement is clearly inculpatory where the jury is aware

that names have been redacted and, in light of other

evidence, could infer that the omitted names may have

included a co-defendant’s. See United States v. Danzey,

094 F.2d 905, 917-18 (2d Cir.), cert. denied, 441 U.S. 951

(1979).

This Circuit has consistently dismissed Bruton

claims in situations where, as here, the inculpatory

statement of a co-defendant does not independently

implicate the appellant. See United States v. Knuckles,

581 F.2d at 313; United States v. Wingate, 520 F.2d at

314. In United States ex rel. Nelson v. Follette, 430 F.2d

1055 (2d Cir. 1970), the co-defendant confessed that he

and “Oliver” had been involved in a robbery and murder.

Nelson objected to the admissibility of his co-defendant’s

confession at their joint trial on the ground that the

jury could infer from independently introduced evidence

that he was “Oliver.” The Court rejected this Bruton

claim, holding that the contested admission was not

28a

Appendix A - Opinion of United States Court of Appeals

“clearly inculpatory” to Nelson because it alone did

not serve to connect him with the crime. Jd. at 1058.

In this action, the court properly limited Agent

Byron’s testimony to exclude all specific references to

Mazzei or the Perla brothers. The court correctly in-

structed the jury that the Byron testimony could be

used as evidence only against Kuhn. Moreover, the

jury was not aware that Agent Byron edited Kuhn’s

statements to exclude specific reference to co- conspira-

tors identified by Kuhn. Cf. United States v. Danzey,

594 F.2d at 917 (jury aware that names redacted). Nor

was Agent Byron’s testimony such that the jury could

infer with confidence, based upon Kuhn’s admissions

standing alone, that Kuhn was identifying a particular

appellant when he related his story to Agent Byron.

We reject this claim as well.

The judgment of the district court is affirmed.

29a

Appendix B

Order of United States Court of Appeals

on Petition for Rehearing and Suggestion for

Rehearing In Banc

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a stated term of the United States Court of

Appeals, in and for the Second Circuit, held at the

United States Courthouse, in the City of New York, on

the eighth day of March, one thousand nine hundred

and eighty-three.

Nos. 82-1028, 1030, 1032, 1056

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JAMES BURKE, ANTHONY PERLA, ROCCO PERLA,

and RICHARD KUHN,

Defendants-Appellants.

A petition for rehearing containing a suggestion

that the action be reheard in banc having been filed

herein by counsel for the defendant-appellant, James

Burke,

Upon consideration by the panel that heard the

appeal, it is

Ordered that said petition for rehearing is DENIED.

30a

Appendix B

Order of United States Court of Appeals

on Petition for Rehearing and Suggestion for

Rehearing In Banc

It is further noted that the suggestion for rehearing

in banc has been transmitted to the judges of the court

in regular active service and to any other judge on the

panel that heard the appeal and that no such judge

has requested that a vote be taken thereon.

A. Daniel Fusaro, Clerk

by s/s Francis X. Gindhart,

Chief Deputy Clerk

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.