Petition — Finazzo v. United States

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* FILED

82-1957 Jon's 1903

No.

tS |

CLERK

IN THE

Supreme Court of the United States

——

October Term, 1982

SALVATORE FINAZZO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

-__—o-—-—

IVAN E. BARRIS (P-10484)

Attorney for Petitioner

1930 Buhl Building

Detroit, Michigan 48226

(313) 964-5070

etn sn HC EAR ER ohn ce

Interstate Brief & Record Co., Suite 731, David Whitney Building, Detroit, MI 48226

(313) 962-8745

QUESTIONS PRESENTED FOR REVIEW

WHETHER THE PROOFS INTRODUCED AT TRIAL CONSTI-

TUTED A CONSTRUCTIVE AMENDMENT OF THE INDICT-

MENT WHICH DESTROYED THE PETITIONER’S FIFTH

AMENDMENT RIGHT NOT TO BE TRIED EXCEPT ON

CHARGES SET FORTH IN A GRAND JURY INDICTMENT?

WHETHER THE IMPROPER ARGUMENT OF THE SPECIAL

ASSISTANT UNITED STATES ATTORNEY IMPUGNED THE

INTEGRITY OF DEFENSE COUNSEL AND INJECTED THE

PROSECUTOR’S PERSONAL BELIEF OF THE GUILT OF THE

PETITIONER, THEREBY DENYING THE PETITIONER A FAIR

TRIAL AND DUE PROCESS?

LIST OF PARTIES

The parties in this proceeding in the United States

Court of Appeals for the Sixth Circuit were as follows:

1. Salvatore Finazzo, Defendant-Appellant.

2. Dominic Licavoli, Detendant-Appellant.

3. United States of America, Plaintiff-Appellee.

ili

TABLE OF CONTENTS

Page

Questions Presented for Review.................. i

ee Oe ik hhc hoa vckencs i

Re Oe I io oe see bik cc eve necas iv

I I oo sae we nec utes awe cis 1

DO a hihi kn oie ewes 2

Constitutional Provisions and Statutes Involved ... 2

IT Or ok vik ce dc din cedacdcns 4

Reasons for Allowance of the Writ .............. 8

Argument:

I THE COURT OF APPEALS ERRONEOUSLY DE-

CIDED A QUESTION OF CONSTITUTIONAL LAW

IN A WAY WHICH IS IN CONFLICT WITH

APPLICABLE DECISIONS OF THIS COURT, TO-

WIT: THE PROOFS INTRODUCED AT TRIAL

CONSTITUTED A CONSTRUCTIVE AMENDMENT

OF THE INDICTMENT WHICH DESTROYED THE

PETITIONER’S FIFTH AMENDMENT RIGHT NOT

TO BE TRIED EXCEPT ON CHARGES SET FORTH

IN A GRAND JURY INDICTMENT............... 8

II THE COURT OF APPEALS ERRONEOUSLY DE-

CIDED A QUESTION OF FEDERAL CONSTITU-

TIONAL LAW IN A WAY WHICH IS IN CONFLICT

WITH APPLICABLE DECISIONS OF THE COURT,

TO-WIT: THE IMPROPER ARGUMENT OF THE

SPECIAL ASSISTANT UNITED STATES ATTOR-

NEY IMPUGNED THE INTEGRITY OF DEFENSE

COUNSEL AND INJECTED THE PROSECUTOR’S

PERSONAL BELIEF OF THE GUILT OF THE

PETITIONER, THEREBY DENYING THE

PETITIONER A FAIR TRIAL AND DUE PROCESS. 20

Cees «Cd . c 24

Page

Appendix A — Text of Statutes Involved ........ A-1

Appendix B— Judgment and Commitment of the

United States District Court ..... A-3

Appendix C— Opinion of the United States

TE SR cn cenatanesuwanaes A-5

Appendix D— Opinion of the United States

Court of Appeals for the Sixth

RON ooo oe oe kh nse wee eens A-22

Appendix E— Judgment of the United States

Court of Appeals for the Sixth

I oa haw eds chews ne aes A-41

Appendix F— Indictment ..................... A-42

INDEX OF AUTHORITIES

Cases:

Berger v. United States, 295 U.S. 78 (1935) ...... 22

Dalia v. United States, 441 U.S. 238 (1979) ...... 3

Duplex Printing Press Co. v. Deering, 254 U.S.

Me OI oe i ic weds ce ce cee 11

ex Fare Gem, (2) US. 1 Ue) ..... ... 65 cnn. 8

Glasser v. United States, 315 U.S. 60 (1942) ..... 17

Pinkerton v. United States, 328 U.S. 640 (1946).. 12

Stirone v. United States, 361 U.S. 212 (1960) .... 8

United States v. Addonizio, 451 F.2d 49 (3rd Cir.

1971); cert. denied, 405 U.S. 936 (1972) ........ 11

United States v. Cantone, 426 F.2d 902 (2nd Cir.

United States v. Finazzo, 429 F. Supp. 803 (E.D.

cooeiceat bgt hs 2 SNE ete rat rere deepen rere ene mT ani crT ere

United States v. Finazzo, 583 F.2d 837 (1978)....

United States v. Finazzo, 441 U.S. 929 (1979)....

United States v. Kubeck, 487 F.2d 1256 (6th Cir.

United States v. Leon, 534 F.2d 667 (6th Cir. 1976)

United States v. Prince, 529 F.2d 1108 (6th Cir.

United States v. Sperling, 506 F.2d 1323 (1974) ..

United States Constitution:

United States Constitution, Fifth Amendment .. .

United States Constitution, Sixth Amendment...

United States Constitution, Fourteenth

ccmppsteansusnael PT PO ARE CE ere

Statutes:

es ie ees 4,

We og ok oe ce 4,

i | REE eee re 4,

Oe Oe ccs.

Oe is i oc 4,

Ae AP cs I se oo ecs nics.

No.

IN THE

Supreme Court of the United States

_—-

October Term, 1982

SALVATORE FINAZZO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Scensememten. Senate

The Petitioner, Salvatore Finazzo, by his attorney, Ivan

E. Barris, prays that a Writ of Certiorari issue to review

the Judgment heretofore entered against him by the

United States Court of Appeals for the Sixth Circuit on

April 5, 1983.

OPINIONS BELOW

The Judgment and Commitment Order of the United

States Disirict Court for the Eastern District of Michigan,

Southern Division, is unreported, but is set forth in

Appendix B herein. The Opinion of the United States

District Court of Michigan, Southern Division, with

respect to Petitioner's Post-Trial Motions is reported at

520 F. Supp. 1085 (E.D. Mich. 1981), and is set forth in

Appendix C herein.

The Opinion of the United States Court of Appeals for

the Sixth Circuit is reported at — F.2d — (6th Cir. 1983),

and is set forth in Appendix D herein. The Judgment of

that Honorable Court is set forth in Appendix E herein.

JURISDICTION

The Judgment of the United States Court of Appeals

for the Sixth Circuit was entered on April 5, 1983. The

time for filing the Petition for Writ of Certiorari

continues to June 4, 1983. The jurisdiction of the Court is

invoked under Title 28, U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

FIFTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces,

or in the Militia, when in actual service in time of

War or public danger; nor shall any person be

subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use without just

compensation.

SIXTH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law,

and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining Witnesses in his favor, and to have the

assistance of counsel for his defence.

FOURTEENTH AMENDMENT OF THE UNITED

STATES CONSTITUTION.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

THE TEXT OF THE STATUTES INVOLVED ARE SET

FORTH IN APPENDIX A HEREIN.

STATEMENT OF THE CASE

At one o’clock in the morning on October 1, 1973, FBI

agents broke into and entered the premises of AAA Store

Fixtures, a business establishment operated by

Petitioner, Salvatore Finazzo, and planted electronic

equipment (bugs) for the purpose of intercepting oral

communications on the premises. On December 25, 1973

at two o'clock in the morning, FBI agents again broke

into and entered the premises of AAA Store Fixtures and

took the “bugs” out.

Dominic Licavoli, Salvatore Finazzo, Salvatore

Lauricella, John Bobal and Frank Ilacqua were indicted

by a Federal Grand Jury sitting in the Eastern District of

Michigan on April 9, 1975. Petitioner Finazzo was

indicted on four counts. Count I was for aiding and

abetting the giving or promising of something of value

to a public official in violation of 18 U.S.C. §§ 201(f) and

2. Count II was for aiding and abetting a public official

in asking, demanding, exacting, soliciting, seeking,

accepting, receiving and agreeing to receive something

of value, contrary to 18 U.S.C. §§ 201(g) and 2. Count Ill

as renumbered,! was for causing Anna Marie Milano to

travel in interstate commerce, Finazzo having the

intention to carry on and facilitate an unlawful activity,

bribery, in violation of 18 U.S.C. §§ 1952 and 2. Count

IV, as renumbered, was for conspiracy to commit the

offenses in Counts I, II, and III, contrary to 18 U.S.C.

§ 371.

! The original Count III was dismissed pursuant to a Pre-trial

Motion to Quash. The trial court renumbered Count IV as Count III,

and Count V as Count IV when he instructed the jury. All references

to Count III and IV are to the Counts as renumbered. The Indictment

is set forth herein as Appendix F.

Then-Chief Judge of the United States District Court

for the Eastern District of Michigan, Southern Division,

Damon Keith, granted Finazzo’s Motion to Suppress all

evidence obtained by the Government from the

electronic interception of oral communications on the

premises of AAA Store Fixtures. United States v. Finazzo,

429 F. Supp. 803, 808 (E.D. Mich. $.D. 1977). The United

States Court of Appeals for the Sixth Circuit affirmed

Judge Keith’s decision. United States v. Finazzo, 583 F.2d

837 (1978).

Pending the Government's appeal of the granting of

Finazzo’s Motion to Suppress by the District Court and

the affirmance by this Honorable Court, the Government

proceeded to trial against three other persons named in

the Indictment, Salvatore Lauricella, John Bobal and

Frank Ilacqua. They were subsequently acquitted on

August 15, 1979 following a jury trial before the

Honorable Damon Keith.

The remaining defendants, Salvatore Finazzo and

Dominic Licavoli, were tried after this Honorable Court

vacated the Court of Appeal’s opinion in this case in

light of its opinion in Dalia v. United States, 441 U.S. 238,

99 S.Ct. 1682, 60 L.Ed.2d 177 (1979). United States v.

Finazzo, 441 U.S. 929, 99 S.Ct. 2047, 60 L.Ed.2d 657

(1979).

Evidence obtained by electronically intercepting

conversations at AAA Store Fixtures on November 1,

1973, November 8, 1973, December 10, 1973, and

December 12, 1973 was introduced at this trial.

The evidence at trial indicated that during the

November 1, 1973 conversation, Licavoli told Finazzo

that his friend Lauricella, an official in the Bonding

Department of the Small Business Association (SBA) in

Washington had helped Ilacqua of B.I.M. Building

Company of Cleveland, Ohio obtain a bond for a

$3,000,000 excavation job to be done for Forest City, Inc.

(Exhibit 54B, Deferred Joint Appendix 44a-54a). Licavoli

said that Ilacqua had promised Lauricella $18,000.00 for

his help, the bond had already gone through and it was

too late to stop it, and now Ilacqua had reneged on his

promise. (Exhibit 53B, Deferred Joint Appendix 45a,

49a).

Finazzo speculated that Ilacqua must belong to the

union and that the union could “give him a tough way to

go.’ (Exhibit 53B, Deferred Joint Appendix 47a). Licavoli

explained that there was $3,000.00 in it, $1,000.00 for

him, $1,000.00 for Finazzo and $1,000.00 for ‘’Skip.”

(Exhibit 53B, Deferred Joint Appendix 47a).

After further discussion, Finazzo and Licavoli agreed

to write a letter to “Skip” asking him to do them a favor

and collect the money. (Exhibit 53B, Deferred Joint

Appendix 56a-57a). Licavoli apparently wrote the letter,

read it to Finazzo and addressed it to Skippy. (Exhibit

53B, Deferred Joint Appendix 64a-65a). Finazzo said he

would have his daughter, Anna Marie Milano, carry the

letter back with her when she returned home to

Cleveland after her mother’s operation. (Exhibit 53B,

Deferred Joint Appendix, 53a, 56a, 65a).

On November 9, 1973, Licavoli spoke with Finazzo

and asked if he had heard from his daughter. (Exhibit

54B, Deferred Joint Appendix 68a). Finazzo replied that

he had not, but she was coming back tomorrow and

might visit. (Exhibit 54B, Deferred Joint Appendix 68a).

Finazzo said he would talk to her and see what they did.

(Exhibit 54b, Deferred Joint Appendix 68a).

On December 10, 1973, Finazzo received a telephone

call from an unidentified male. (T.T. 375-376, Deferred

Joint Appendix 18a, 19a). The caller referred to a letter

sent to Skip and stated that “everything is gonna be all

right, straightened out in full, December fourteenth.”

(Exhibit 55B, Deferred Joint Appendix 72a). Finazzo

placed a telephone call to Licavoli, but did not reach

him. (Exhibit 55C, Deferred Joint Appendix 74a). On

December 12, 1973, Finazzo told Dominic Talerico that

Licavoli had not returned his call. (Exhibit 56B, Deferred

Joint Appendix 75a).

On or about December 14, 1973, Bobal and Ilacqua

each wrote an $11,500.00 check on their company

account, (T.T. 513, Deferred Joint Appendix 24a), which

they converted to $23,000.00 in cash on that date. (T.T.

514, Deferred Joint Appendix 25a, 27a). On December 14,

1973, Lauricella flew to Detroit from Washington, D.C.

(T.T. 412-414, Deferred Joint Appendix 20a-22a). On

January 3, 1974, Lauricella asked the Financial Services

Division of the Smali Business Administration to delay

the sending of their official letter to the bank that the

application for a guaranteed loan for Bobal and Ilacqua’s

company had been declined. (T.T. 526, Deferred Joint

Appendix 32a).

Following the trial, Petitioner Finazzo was

jury-convicted on each count in the Indictment.

Judgment was entered on March 12, 1981. Petitioner

Finazzo was sentenced to a term of two years

imprisonment on Counts I and II, three years

imprisonment on Counts III and IV, such terms to run

concurrently, and a fine of Ten Thousand ($10,000.00)

Dollars on each Count, totaling Forty Thousand

($40,000.00) Dollars.

On April 5, 1983, the United States Court of Appeals

for the Sixth Circuit affirmed the conviction on each

count.

REASONS FOR ALLOWANCE OF THE WRIT

THE COURT OF APPEALS ERRONEOUSLY DECIDED A

QUESTION OF CONSTITUTIONAL LAW IN A WAY

WHICH IS IN CONFLICT WITH APPLICABLE DECISIONS

OF THIS COURT, TO-WIT: THE PROOFS INTRODUCED

AT TRIAL CONSTITUTED A CONSTRUCTIVE AMEND-

MENT OF THE INDICTMENT WHICH DESTROYED THE

PETITIONER’S FIFTH AMENDMENT RIGHT NOT TO BE

TRIED EXCEPT ON CHARGES SET FORTH IN A GRAND

JURY INDICTMENT.

The United States Court of Appeals for the Sixth

Circuit erred when it held that there is no substantial

likelihood that the Petitioner was convicted of an offense

other than that charged by the Grand Jury. By so

holding, that Court is in conflict with applicable

decisions of this Honorable Court. The issue is an

important une as it involves a substantial Constitutional

right — the Fifth Amendment right not to be tried except

on charges set forth in a Grand Jury indictment.

The Fifth Amendment of the Constitution of the

United States provides, in pertinent part:

“No person shall be held to answer for a capital,

or otherwise infamous crime unless on a pre-

sentment or indictment of a Grand Jury * * * .”

In Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849

(1886), this Honorable Court set forth a per se rule

prohibiting judicial amendments to the terms of an

indictment. In Stirone v. United States, 361 U.S. 212, 218,

80 S.Ct. 270, 4 L.Ed.2d 252 (1960), this Honorable Court

held that where there was a variance, in the sense of a

variation between pleading and proof, which destroyed

the defendant's substantial right to be tried on charges

presented in the indictment returned by the Grand Jury,

the effect is the same as if the trial court had permitted a

formal amendment. The Court held that “[dJeprivation of

such a basic right is far too serious to be treated as

nothing more than a variance and then dismissed as

harmless error.” Id. at 218.

The indictment in the instant case charged a

conspiracy between Finazzo, Licavoli, Lauricella, Bobal

and Ilacqua from on or about May 1, 1973 and

continuously thereafter up to January 31, 1974. It was

specifically charged that, as part of this conspiracy:

1. Finazzo, Licavoli, Bobal and Ilacqua would directly

and indirectly give Lauricella, a public official,

$18,000.00 for and because of efforts by him to cause

and effectuate guarantees by the Small Business

Administration of certain surety bonds.

2. Lauricella, through Finazzo and Licavoli, would

directly and indirectly ask, demand, exact, solicit, seek,

accept, receive and agree to receive $18,000.00 from

Bobal and Iacqua for and because of efforts by Lauricella

to cause and effectuate guarantees by the Small Business

Administration of certain surety bonds.

3. Finazzo and Licavoli would cause Anna Marie

Milano to travel in interstate commerce; Finazzo and

Licavoli having the intention to promote and carry on

and facilitate the promotion and carrying on of an

unlawful activity, bribery, and thereafter Finazzo and

Licavoli would promote, carry on and facilitate the

promotion and carrying on of the said unlawful activity,

bribery.

The proofs at trial indicated that Bobal and Ilacqua

promised Lauricella $18,000.00 to effectuate Small

Business guarantees of certain surety bonds issued by

Cincinnati Insurance Company to assure performances

by B.I.M., Inc. on certain construction and excavation

projects. The proofs also indicated that after the

guarantees were effectuated, Bobal and Ilacqua reneged

on their promise and refused to pay the $18,000.00. The

proofs show that on November 1, 1973 Co-Defendant

Licavoli, a “buddy” of Lauricella’s, told Petitioner of the

arrangement between Bobal, Ilacqua and Lauricella and

that Ilacqua reneged on the agreement. The

Co-Defendant Licavoli also indicated that Lauricella

would pay Three Thousand ($3,000.00) Dollars to have

Licavoli and Petitioner collect the meney promised by

Ilacqua. During the discussion, Petitioner stated that

$3,000.00 wasn’t enough money to collect $18,000.00 and

that the price ought to be half. Petitioner and Licavoli

also discussed how they could force or threaten Bobal

and Ilacqua to pay the money. They agreed to write a

letter to “Skippy,” whom the Government inferred was

John Felice, an officer of a Teamster’s Local, who would

“sive him a tough way to go” and “can put this guy out

of business.’’ Petitioner and Licavoli agreed that

Petitioner would give the letter to his daughter, Anna

Marie Milano, to take back to Cleveland when she

returned home.

In the instant case, Petitioner was charged with

conspiracy to commit acts of bribery with co-

conspirators, Lauricella, Bobal, Ilacqua and Licavoli. The

proofs establish, however, that rather than Petitioner

being in concert of action and having a common purpose

with Bobal and Ilacqua as required to establish a

conspiracy, [Duplex Printing Press Co. v. Deering, 254 U.S.

443, 465, 41 S.Ct. 172, 65 L.Ed. 349 (1921) ], Petitioner

was in an antagonistic relationship to Bobal and Ilacqua.

According to the Government's proofs, Petitioner was

attempting to collect money for Lauricella, for a price, by

putting Teamster Union pressure on Bobal and Ilacqua.

This is not the type of activity which connotes a

conspiratorial relationship, much less a conspiracy to

bribe. Bribery involves a voluntary payment to influence

another’s actions. Extortion involves duress, a threat of

physical or economic harm, which induces another's

actions. United States v. Addonizio, 451 F.2d 49, 72 (3rd

Cir. 1971), cert denied, 405 U.S. 936 (1972). Rt is

inconceivable that Bobal and Ilacqua agreed to conspire

to be threatened with economic harm by Teamster

officials. The only conceivable concert of action proven at

trial on the part of Petitioner was a conspiracy with

Licavoli to extort money from Bobal and Ilacqua and to

cause Anna Marie Milano to travel interstate for the

purpose of facilitating the extortion.

Introduction of this evidence and the complete lack of

proof of a conspiratorial agreement between Petitioner

and Bobal and Ilacqua created a substantial likelihood

that Petitioner was convicted of an offense other than

that charged by the Grand Jury.

Petitioner was further prejudiced because the Trial

Court submitted the substantive bribery and Travel Act

offenses alleged in Counts I, II, and III to the jury on the

theory of aiding and abetting and gave the following

“Pinkerton” charge:

‘Moreover, if you find that a particular De-

fendant is guilty of conspiracy as charged in

Count IV, you may also find that Defendant

guilty of the substantive offenses charged in

Counts I, II and III of the Indictment, provided

that you find that the essential elements of the

conspiracy Count have been established beyond a

reasonable doubt and provided you also find

beyond a reasonable doubt that first, the offense

defined in the substantive Count was committed

pursuant to the conspiracy; and second, that the

particular Defendant was a member of the

conspiracy at the time the substantive offense was

committed.

Under the conditions just defined, a Defendant

may be found guilty of a substantive Count in

which he is named, even though he did not

participate in acts constituting the offense as

defined in the substantive Count. The reason for

this is that the co-conspirator committing a

substantive offense pursuant to a conspiracy is

held to be the agent of the other conspirators.”

(T.T. 792).

The charge allowed the jury to consider the acts and

deeds of Bobal and Ilacqua, who were not, as a matter of

law, co-conspirators, as being the acts and deeds of the

Petitioner.

In Pinkerton v. United States, 328 U.S. 640, 66 S.Ct.

1180, 80 L.Ed. 1489 (1946), this Honorable Court held

that although there was no evidence introduced to show

that one of the defendants actually committed the

substantive offense of which he was convicted, he could

be found guilty of the substantive crime:

“if it was found at the time those offenses were

committed petitioners were parties to an unlawful

conspiracy and the substantive offenses charged

were in fact committed in furtherance of it.”’ Id. at

645.

It has been said that the “‘Pinkerton” instruction

should not be given automatically and that a failure of

proof on the conspiracy count might taint conviction on

a substantive count, unless the evidence on the

substantive counts is strong. United States v. Sperling, 506

F.2d 1323, 1341-1343 (2nd Cir. 1974).

In United States v. Cantone, 426 F.2d 902, 905 (2nd Cir.

1970), the United States Court of Appeals for the Second

Circuit held that where there is no direct proof that a

defendant committed a substantive offense for which he

is charged and where the evidence was insufficient to

establish beyond a reasonable doubt that he was a

member of the conspiracy in furtherance of which the

substantive offense was committed, it was reversible

error to give the ‘’Pinkerton”’ charge as means of

obtaining a conviction on the substantive count. The

Court also held that this error tainted the conspiracy

conviction. Id.

In the instant case, Petitioner was charged with three

substantive offenses. Count I charged aiding and

abetting the violation of 18 U.S.C. § 201(f), which

provides in pertinent part:

“Whoever, otherwise than as provided by law for

the proper discharge of official duty, directly or

indirectly gives, offers, or promises anything of

value to any public official * * * for or because of

any official act performed or to be performed by

such public official [commits an offense in

violation of the laws of the United States].”’

Count II charged aiding and abetting the violation of

18 U.S.C. § 201(g), which provides in pertinent part:

“Whoever, being a public official * * * otherwise

than as provided by law for the proper discharge

of official duty, directly or indirectly asks,

demands, exacts, solicits, seeks, accepts, receives,

or agrees to receive anything of value for himself

for or because of any official act performed or to

be performed by him [commits an offense in

violation of the laws of the United States].”

There is substantial evidence that Petitioner did not aid

and abet the “promising or offering” aspect of Count I

and did not aid and abet the ‘‘asking, demanding,

exacting, soliciting, seeking or agreeing to receive’’

aspect of Count II. The Government’s evidence, as

summarized above revealed that prior to November 1,

1973, the first time there is evidence of any activity on the

part of Finazzo, Lauricella agreed to use his efforts as an

official of the Small Business Administration to cause

and effectuate guarantees by the SBA of certain surety

bonds in return for payment of $18,000.00. It is

established, therefore, that prior to any activity on the

part of Finazzo, the promise or offer had been made and

the public official had asked, demanded, exacted,

solicited, sought or agreed to receive the unlawful

gratuity. Thus, there is no evidence that the Petitioner

aided or abetted these aspects of the substantive offenses

charged in Count I and Count IL.

There is no direct evidence that the unlawful gratuity

was given or received. Therefore, there is no direct

evidence that Petitioner aided and abetted the “giving”

or “receiving” aspects of substantive Count I and Count

II.

There was circumstantial evidence introduced with

respect to the “‘giving’”’ or ‘‘receiving’’ aspects of

substantive Count I and Count II. However, very little of

this evidence involves the conduct of Petitioner.

The circumstantial evidence which was introduced

may be summarized as follows:

On November 1, 1973, Petitioner and Licavoli

agreed to write a letter to Skip and ask him to use

his position with the Union to pressure Ilacqua

into paying the $18,000.00 Ilacqua owed to

Lauricella. (Exhibit 53B, Deferred Joint Appendix

47a-56a).

Petitioner received a phone call on December 10,

1973, from an unidentitied person saying that with

respect to the letter to Skip, everything would be

straightened out in full by December 14, 1973.

(Exhibit 55B, Deferred Joint Appendix 72a).

Bobal and Ilacqua each wrote a check for

$11,500.00 on the company checking account (T.T.

513, Deferred Joint Appendix 24a), which they

converted to $23,000.00 in cash on December 14,

1973 (T.T. 514, 521, Deferred Joint Appendix 25a,

27a).

On December 14, 1973, Lauricella flew to Detroit

from Washington, D.C. (T.T. 412-414, Deferred

Joint Appendix 20a-22a).

On January 3, 1974, Lauricella asked the Financial

Services Division of the SBA to delay the sending

of a letter telling a bank that an application of

Bobal and Ilacqua’s company for a guaranteed loan

has been declined. (T.T. 526, Deferred Joint

Appendix 32a).

This circumstantial evidence does not constitute

sufficient proof that the gratuity was given or received or

that Petitioner aided and abetted the ‘‘giving” or

“receiving” of the gratuity. Bobal and Ilacqua had

promised Lauricella $18,000.00, not $23,000.00. There is

no evidence that Bobal and Ilacqua went to Detroit on

December 14, 1973 or sent anyone to meet Lauricella

there. There is no evidence that Petitioner did anything

on December 14, 1973 which could be construed as

“giving” the gratuity or aiding and abetting the “giving”

or “receiving” of the gratuity. Further, Bobal, Ilacqua

and Lauricella were acquitted of these charges in a

separate trial.

The Government's failure to prove Petitioner's

participation in the conspiracy charged, along with the

lack of sufficient evidence that he committed the

substantive offenses alleged in Counts I and II, raises the

substantial likelihood that the convictions on the

substantive counts were tainted by the giving of the

“Pinkerton” charge.

The third substantive count that Petitioner was

charged with is violation of 18 U.S.C. §§ 1952 and 2.

Section 1952 of Title 18, United States Code, provides

in pertinent part:

(a) Whoever travels in interstate or foreign

commerce or uses any facility in interstate or

foreign commerce, including the mail, with intent

to + +

(3) otherwise promote, manage, establish,

carry on, or facilitate the promotion, man-

agement, establishment, or carrying on, of

any unlawful activity, and thereafter

performs or attempts to perform any of the

acts specified in subparagraph * * * (3)

[shall be guilty of an offense against the laws

of the United States].

(b) As used in this section ‘unlawful activity

means * * *(2)* * *, bribery, * * * in violation of

the laws of the State in which committed or of the

United States.” (Emphasis supplied).

Count III of the Indictment charged a violation of the

above statute, commonly known as the Travel Act, in

that Petitioner and Licavoli, with the intention to

promote and carry on and facilitate the promotion and

carrying on of the unlawful activity of bribery, caused

Anna Marie Milano to travel in interstate commerce from

Mount Clemens, Michigan to Cleveland, Ohio and that

Petitioner and Licavoli did thereafter promote, carry on,

and facilitate the promotion and carrying on of the said

bribery.

The evidence adduced by the Government at trial was

insufficient to sustain a finding of guilt beyond a

reasonable doubt of this statute because of the failure of

proof that Petitioner performed some act in furtherance

of the bribery after the alleged interstate travel of Anna

Marie Milano. Again, the substantial likelihood exists

that giving the “Pinkerton” charge tainted Petitioner's

conviction on Count III.

The test for determining whether the evidence is

sufficient to sustain a finding of guilt is “whether, taking

the evidence in the view most favorable to the

government, there is substantial evidence to support the

verdict.” Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct.

457, 86 L.Ed. 860 (1942); United States v. Leon, 534 F.2d

667, 676 (6th Cir. 1976). ‘‘Substantial evidence

supporting conviction on appeal is such relevant

evidence as a reasonable mind might accept as adequate

to support a conclusion.” United States v. Kubeck, 487

F.2d 1256, 1258 (6th Cir. 1973).

Viewing the evidence in the light most favorable to the

Government, the tape of November 1, 1973 shows that

Petitioner and Licavoli agreed to write a letter to Skippy

asking him to put pressure on Ilacqua to collect money.

Petitioner said he would give the letter to his daughter,

Anna Marie Milano, to take back to Cleveland with her,

when she returned home after her mother’s operation, to

give to Skippy. Eight day later another conversation

between Licavoli and Petitioner was taped. Licavoli

asked Petitioner if he had heard from his daughter. He

replied that he had not heard from her, that she was

going to come back tomorrow, and then he would see

what they did. On December 10, 1973, a conversation

between Petitioner and an unknown caller was taped.

(Exhibit 55B, Deferred Joint Appendix 69a). The caller

referred to a letter sent to Skip and said, ‘Did you want

him to do something?” (Exhibit 55B, Deferred Joint

Appendix 71a). Petitioner said, “Yeah,” and the caller

told Petitioner that “everthing would be straightened out

in full by December fourteenth.’’ Petitioner replied,

“Okay.” (Exhibit 55B, Deferred Joint Appendix 72a). A

few minutes after this call, Petitioner tried to call

Licavoli, but was unable to reach him. On December 12,

1973, a conversation was taped between Petitioner and

Dominic Talerico. (Exhibit 56B, Deferred Joint Appendix

75a). Petitioner said that, ‘‘Dominic (Licavoli) was

supposed to call;” “a guy from Cleveland had called’

and that “Dominic makes me do all calls.” (Exhibit 56B,

Deferred Joint Appendix 75a).

The Travel Act requires that the illegal acts, which

form the basis of the prosecution, be performed after the

use of a facility in interstate commerce. United States v.

Eisner, 533 F.2d 987, 992-993 (6th Cir. 1976); United States

v. Prince, 529 F.2d 1108, 1111 (6th Cir. 1976).

This record is devoid of substantial and competent

evidence that Petitioner promoted or carried on or

facilitated the promotion or carrying on of the bribery

after Mrs. Milano allegedly returned to Cleveland. The

only evidence that could possibly be so interpreted is

Petitioner's response of “Okay” to the statement that

everything would be straightened out in full by

December 14th, which he made during the conversation

of December 10, 1973. Petitioner submits that this was

not “such rcievant evidence as a reasonable mind might

accept as adequate to support a conclusion’ that he

promoted, carried on or facilitated the promotion or

carrying on of the bribery. There is no proof that this

statement contributed to the progress or the furtherance

of the bribery or that it was so intended.

The statement was in response to a question as to

whether Petitioner had asked Skip to do something and

being told it would be taken care of by December 14th.

What Petitioner had asked Skip to do was put Union

pressure on Ilacqua. If anything, the statement was in

furtherance of extortion, not the bribery.

Petitioner’s conviction on Count III, like his conviction

on Counts I and II, was tainted by the giving of the

“Pinkerton” charge in light of the Government's failure

to prove Petitioner's participation in the conspiracy

charged and the lack of substantive proof of an essential

element of the substantive offense.

A review of the record in the instant case reveals that

there was a variation between the pleading and proof

which destroyed the Petitioner's substantial right to be

tried on charges presented in the Indictment returned by

the Grand Jury. The taint of this variation spilled over to

the substantive offenses because the Trial Court gave a

“Pinkerton” charge.

THE COURT OF APPEALS ERRONEOUSLY DECIDED A

QUESTION OF FEDERAL CONSTITUTIONAL LAW IN A

WAY WHICH IS IN CONFLICT WITH APPLICABLE DECI-

SIONS OF THE COURT, TO-WIT: THE IMPROPER AR-

GUMENT OF THE SPECIAL ASSISTANT UNITED STATES

ATTORNEY IMPUGNED THE INTEGRITY OF DEFENSE

COUNSEL AND INJECTED THE PROSECUTOR'S PER-

SONAL BELIEF OF THE GUILT OF THE PETITIONER,

THEREBY DENYING THE PETITIONER A FAIR TRIAL

AND DUE PROCESS.

The Special Assistant United States Attorney began his

rebuttal argument with the following remarks:

‘MR. NEWCOMER. May it please the Court,

counsel for the Defendants and members of the

jury.

There is a wonderful series on Channel 56 about a

lawyer named Rumpole, a story about an English

barrister, who says of his colleagues, who

represent criminal Defendants in Old Bailey in

London, that the second most rewarding

experience for a barrister is to, the second most,

were his words, is for a barrister to achieve the

acquittal of an innocent man, and I leave, as does

Rumpole, for you to speculate what the first

greatest achievement is. No, I won’t leave it to

your speculation. / will tell you that the greatest

achievement for a counsel, for counsel in this case,

would be acquittal of a guilty person.” (Emphasis

supplied). (T.T. 740).

Defense counsel promptly objected, and at the

appropriate time moved for a mistrial based upon the

weeve-yauted remarks. Although the Trial Court found

that the remarks were improper, the motion was denied.

At the close of trial, defense counsel moved for a

Judgment of Acquital Notwithstanding the Verdict, Or,

In the Alternative, For a New Trial. Both motions were

denied.

On appeal, the United States Court of Appeals for the

Sixth Circuit found that these remarks were “unseemly,”

but held “any possible taint from the unseemly comment

was in our judgment removed by the curative and

sensible instructions given by the able trial judge.”’ The

Court did not set forth which instructions they deemed

to have “cured” the error.

The instructions which the Trial Court gave

immediately following his ruling on the Motion for

Mistrial were as follows:

“I want to say preliminarily that this has been a

very well tried case by all attorneys. I think we

have seen excellent counsel on both side here

who have conducted’ themselves well,

professionally, and I think, as I say , it has been a

very well tried case, and that it is important and

also caused this case to move along properly.

Now let me make a few preliminary remarks, if |

may, before I start into discussing this charge.

First of all, I want to remind you what I reminded

you at the very beginning of this case. In

deciding this case, you must decide it solely and

completely from the sworn testimony you heard

from that witness stand and from such Exhibits as

the Court has received in evidence. Incidentally,

if you want any of the Exhibits in your juryroom,

you may have them merely by asking for them,

but the evidence consists of the testimony of the

witnesses and the Exhibits received into evidence

and nothing more.

Argument of counsel, colloquy between the Court

and counsel, opening statements of the lawyers,

final arguments of the lawyers, all of these things

are important in pointing up the issues in the

case, but when you come to decide it, you must

decide it solely and completely from the

evidence.”

The record reveals no other instructions which could

be characterized as curative instructions on the issue.

This Honorable Court set forth the proper role of the

United States Attorney in Berger v. United States, 295

U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935):

“The United States Attorney is the representative

not of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern

impartially is as compelling as its obligation to

govern at all; and whose interest therefore, in a

criminal prosecution is not that it shall win a

case, but that justice shall be done. As such, he is

in a peculiar and very definite sense the servant

of the law, the two fold aim of which is that guilt

shall not escape or innocents suffer. He may

prosecute with earnestness and vigor — may

strike hard blows, he is not at liberty to strike foul

ones. It is as much his duty to refrain from improper

methods calculated to produce a wrongful conviction

as it is to use every legitimate means to bring about a

just one.’’ (Emphasis added).

The Government may not inject improper or

prejudicial material that deprives an accused of his right

to a fair trial. More importantly, the United States

Attorney may not express his personal knowledge vf tine

guilt of the Defendant to the jury.

In the instant case, the comments by the Special

Assistant United States Attorney impugn the integrity of

defense counsel and can be reasonably construed to be

based on personal belief. He said, ‘‘the greatest

achievement for counsel, for counsel in this case would

be acquittal of a guilty person.’’ This is tantamount to

saying the defense counsel will attain a great

achievement in this case, if they obtain an acquittal,

because the defendant is guilty.

The above-quoted remarks by the Special Assistant

United States Attorney, in the last, unrebuttable,

statement this jury would hear from the United States,

are wholly improper. Both of the lower courts found the

remarks to be improper. These remarks were specific,

directing the jury’s attention to the case, not general

comments about a lawyer's duty to defend the guilty as

well as the innocent — ‘the greatest achievement for

counsel in this case would be acquittal of a guilty

person.’’ The remarks were flagrant and deliberate.

Because they were made in the last, unrebuttable

statement that the jury heard before they began

deliberating, there was a greater tendency to mislead the

jury and prejudice the defendant than if they had been

made earlier in the trial. There was no opportunity for

defense counsel to respond to the improper remarks.

The instructions given by the Trial Court did not

remove the prejudicial taint of the Prosecutor’s remarks.

The Trial Judge did not admonish the jury immediately

after the remarks were made. After the Motion for

Mistrial was heard, the Court made no direct reference to

the remarks at issue. Instead, the Trial Court told the

jury that they had “seen excellent counsel on both sides

who have conducted themselves weil professionally.’

Rather than cautioning the jury regarding the

Prosecutor's improper conduct, the Trial Court

complimented him in front of the jury. If anything, the

Trial Court’s remarks gave credence to those of the

Prosecutor. The rest of the so-called ‘‘curative’’

instructions are nothing more than general remarks that

could be made at any trial with respect to what

constitutes evidence for the jury to consider. They cannot

be fairly read as instructions which cured the taint of the

Prosecutor's improper remarks.

The Prosecutor’s remarks went right to the main issue

in this case — the guilt or innocence of the Petitioner. As

set forth more fully in Argument I, supra, proof of guilt

in this case was not so overwhelming that it can be said

that the Petitioner was not prejudiced by the improper

remarks.

Petitioner was deprived of his right to a fair trial under

the Sixth and Fourteenth Amendments to the United

States Constitution.

CONCLUSION

For the foregoing reasons, Petitioner respectfully urges

that the Petition for Writ of Certiorari be granted, or, in

the alternative, that the Opinion and Order of the United

States Court of Appeals for the Sixth Circuit affirming

Petitioner's conviction be summarily reversed.

Respectfully submitted,

By: /s/ IVAN E. BARRIS (P10484)

Attorney for Petitioner

1930 Buhl Building

Detroit, Michigan 48226

(313) 964-5070

DATED: May 27, 1983.

A-1

APPENDICES

APPENDIX A

TEXT OF STATUTES INVOLVED

18 U.S.C. § 2. Principals

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or

procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which

if directly performed by him or another would be an

offense against the United States, is punishable as a

principal.

18 U.S.C. § 201. Bribery of public officials and

witnesses

(f) Whoever, otherwise than as provided by law for

the proper discharge of official duty, directly or

indirectly gives, offers, or promises anything of value to

any public official, former public official, or person

selected to be a public official, for or because of any

official act performed or to be performed by such public

official, former public official, or person selected to be a

public official; or

(g) Whoever, being a public official, former public

official, or person selected to be a public official,

otherwise than as provided by law for the proper

discharge of official duty, directly or indirectly asks,

demands, exacts, solicits, seeks, accepts, receives, or

agrees to receive anything of value for himself for or

because of any official act performed or to be performed

by him; ... shall be fined not more than $10,000 or

imprisoned for not more than two years, or both.

A-2

18 U.S.C. § 371. Conspiracy to commit offense or to

defraud United States

If two or more persons conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manner or

for any purpose, and one or more of such persons to any

act to effect the object of the conspiracy, each shall be

fined not more than $10,000 or imprisoned not more than

five years, or both.

If, however, the offense, the commission of which is

the object of the conspiracy, is a misdemeanor only, the

punishment for such conspiracy shall not exceed the

maximum punishment provided for such misdemeanor.

The Travel Act, 18 U.S.C. § 1952. Interstate and foreign

travel or transportation in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign commerce

or uses any facility in interstate or foreign commerce,

including the mail, with intent to —

(1) distribute the proceeds of any uniawfui

activity; or

(2) commit any crime of violence to further any

unlawful activity; or

(3) otherwise promote, manage, establish, carry

on, or facilitate the promotion, management,

establishment or carrying on, of any

unlawful activity,

and thereafter performs or attempts to perform any of the

acts specified in subparagraphs (1), (2), and (3), shall be

fined not more than $10,000 or imprisoned for not more

than five years, or both.

A-3

(b) As used in this section “unlawful activity”

means (1) any business enterprise involving gambling,

liquor on which the Federal excise tax has not been paid,

narcotics, or prostitution offenses in violation of the laws

of the State in which they are committed or of the United

States, or (2) extortion, bribery, or arson in violation of

the laws of the State in which committed or of the United

States.

involving liquor or narcotics shall be conducted under

the supervision of the Secretary of the Treasury.

APPENDIX B

JUDGMENT AND COMMITMENT

(United States District Court

Eastern District of Michigan

Southern Division)

(United States of America vs. Salvatore Finazzo a/k/a Sam

Jacobs, Sam Finazzo, Defendant — Docket No.

75-80597-01)

Counsel In the presence of the attorney for the

government the defendant appeared in person on this

date: March 12, 1981, with counsel Ivan Barris.

Finding & Judgment There being a finding/verdict of

Guilty, Defendant has been convicted as charged of the

offense(s) of

Count 1: Giving a Bribe 18:USC:201(f) and 2.

Count 2: Receiving a Bribe 18:USC:201(g) and 2.

Count 3: Causing a Person to Travel in Interstate

Commerce 18:USC:1952 and 2.

Count 5: Conspiracy 18:USC371

A-4

Sentence or Probation Order The court asked whether

defendant had anything to say why judgment should not

be pronounced. Because no sufficient cause to the

contrary was shown, or appeared to the court, the court

adjudged the defendant guilty as charged and convicted

and ordered that: The defendant is hereby committed to

the custody of the Attorney General or his authorized

representative for imprisonment for a period of

Count 1: Two (2) years and a fine of $10,000.

Count 2: Two (2) years and a fine of $10,000.

Count 3: Three (3) years and a fine of $10,000.

Count 5: Three (3) years and a fine of $10,000.

All terms of confinement to run concurrently. All fines as

imposed are cumulative the total amount being $40,000.

Special Conditions of Probation This Defendant To

Surrender To The U.S. Marshall On April 1, 1981 Unless

His Claim Of Appeal Has Been Filed And An Appeal

Bond Has Been Set.

Additional Conditions of Probation In addition to the

special conditions of probation imposed above, it is

hereby ordered that the general conditions of probation

set out on the reverse side of this judgment be imposed.

The Court may change the conditions of probation,

reduce or extend the period of probation, and at any

time during the probation period or within a maximum

period of the years permitted by law, may issue a

warrant and revoke probation for a violation occurring

during the probation period.

Signed By: Horace W. Gilmore

U.S. District Judge

Date: March 12, 1981

It is ordered that the Clerk deliver a certified copy of this

judgment and commitment to the U.S. Marshall or other

qualified officer.

(certification omitted)

A-5

APPENDIX C

OPINION

(United States District Court

Eastern District of Michigan

Southern Division)

(August 27, 1981)

(United States of America, Plaintiff, v. Salvatore Finazzo

and Dominic Licavoli, Defendants — Crim. A. No.

75-80597-2.)

Gilmore, District Judge.

This matter is before the Court upon a motion by

defendant Licavoli to correct allegedly illegal sentences

imposed upon him. The claim is that the sentences

violate the double jeopardy clause of the Fifth

Amendment to the Constitution.! The Court concludes

they do not.

Defendant was convicted of inducing, procuring and

causing the giving of an unlawful gratuity to a public

official, in violation of 18 U.S.C. § 201(f) and 18 U.S.C.

§ 2 (Count 1); aiding and abetting the asking,

demanding, exacting, soliciting, seeking, accepting, re-

ceiving, or agreeing to receive, an unlawful gratuity, in

violation of 18 U.S.C. § 201(g) and 18 U.S.C. § 2, (Count

2); and conspiracy to violate 18 U.S.C. §§ 201(f), 201(g),

1952 (Travel Act — Count 4) and 2, all in violation of 18

U.S.C. § 371. Defendant Licavoli was acquitted of the

offense charged in Count 4, the Travel Act count (18

* “... nor shall any person be subject for the same offence to be

twice put in jeopardy of life or limb.”

A-6

U.S.C. § 1952), and convicted of the other counts. He

was sentenced to two years imprisonment on Count 1;

two years imprisonment on Count 2, and three years

imprisonment on Count 5, the conspiracy count. The

sentences of imprisonment are to run concurrently. In

addition, Licavoli was fined $10,000 on each count, for a

total of $30,000.

Defendant's contention is that the sentences were

imposed in violation of the Fifth Amendment double

jeopardy clause. Relying principally upon United States v.

Austin, 529 F.2d 559 (CA6 1976), and Pandelli v. United

States, 635 F.2d 533 (CA6 1980), defendant claims that

because the ‘‘same evidence’ was used to convict him of

both the substantive counts and the conspiracy count,

and the facts alleged in the indictment required a concert

of action for each of the counts, his punishment for three

offenses violates the double jeopardy prohibition of the

Constitution.

[1] The Constitutional prohibition against double

jeopardy encompasses three guarantees: 1) protection

against a second prosecution for the same offense after

acquittal; 2) protection against a second prosecution for

the same offense after conviction, and 3) protection

against multiple punishments for the same offense.

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23

L.Ed.2d 656 (1969). In the instant case, the Court is

concerned only with the third of these three guarantees.

[2] In Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53

L.Ed.2d 187 (1977), Justice Powell, writing for the

majority, articulated the principal test for determining

whether two offenses are the same for the purpose of

barring successive prosecutions. Quoting from

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76

A-7

L.Ed. 306 (1932), which in turn relied on Gavieres v.

United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489

(1911), the Court held:

“The applicable rule is that where the same act

or transaction constitutes a violation of two

distinct statutory provisions, the test to be

applied to determine whether there are two

offenses or only one, is whether each provision

requires proof of a fact which the other does not

_...” Brown, 432 U.S. at 166, 97 S.Ct. at 2225.

Thus the Blockburger test focuses on the proof

necessary to prove the statutory elements of each offense,

rather than the actual evidence to be presented at trial.

As states in a significant footnote in lannelli v. United

States, 420 U.S. 770, 785 n.17, 95 S.Ct. 1284, 1293 n.17, 43

L.Ed.2d 616 (1975):

“The test articulated in Blockburger v. United

States, 284 U.S. 299 [52 S.Ct. 180, 76 L.Ed. 306]

(1932), serves a generally similar function of

identifying congressional intent to impose

separate sanctions for multiple offenses arising in

the course of a single act or transaction. In

determining whether separate punishment might

be imposed, Blockburger requires that courts

examine the offenses to ascertain ‘whether each

provision requires proof of a fact which the other

does not’. Id. at 304 [52 S.Ct. at 182]. As

Blockburger and other decisions applying its

principle reveal . . . the Court's application of the

test focuses on the statutory elements of the offense.

If each requires proof of a fact that the other does

not, the Blockburger test is satisfied, notwithstanding

a substantial overlap in the proof offered to establish

the crimes.” (Emphasis added).

A-8

Recent United States Supreme Court cases reiterate

that Court’s understanding that the Blockburger test

focuses on the statutory elements of the offense rather

than on the actual evidence presented at trial or the facts

alleged in the particular indictment. See Illinois v. Vitale,

447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980);

Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63

L.Ed.2d 715 (1980), and Albernaz v. United States, 450

U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981). The

critical question, therefore, is whether each count

requires proof of a fact that the other does not.

Application of the test emphasizes the statutory elements

of the substantive offense involved, rather than the

particular manner in which the offense was committed in

the indictment, or the particular evidence offered to

prove it in a specific trial — that is, whether it is possible

to sustain a conviction under the offense charged, on

grounds that differ from those necessary to sustain a

conviction on the conspiracy count. See United States v.

Previte, 648 F.2d 73 (CA1 1981).

[3, 4] Generally, of course, separate punishment can be

imposed for conspiracy to do an act, and for the

subsequent accomplishment of that act, without

violating the double jeopardy clause. Allegation of an

independent crime as an overt act of a conspiracy does

not necessarily immunize the defendant from

indictment. lannelli, supra; United States v. Mayes, 512

F.2d 637 (CA6 1975), cert. den. 422 U.S. 1008, 95 S.Ct.

2629, 45 L.Ed.2d 670 (1975); United States v. Bradley, 421

F.2d 924 (CA6 1970); United States v. Shelton, 573 F.2d 917

(CA6 1978) cert. den. 439 U.S. 827, 99 S.Ct. 99, 58

L.Ed.2d 120 (1978).

In Nye & Nissen v. United States, 336 U.S. 613, 69 S.Ct.

766, 93 L.Ed. 919 (1949), the Supreme Court affirmed one

defendant's convictions for conspiracy as well as aiding

A-9

and abetting. The court rejected the contention that there

was insufficient evidence to support the conviction for

aiding and abetting, stating:

“The fact that some of the evidence may have

served double duty by also supporting the charge

of conspiracy is of course immaterial.’’ Id. at 619,

69 S.Ct. at 770.

In Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98

L.Ed. 435 (1953), in the course of affirming one

petitioner's conviction for conspiracy as well as aiding

and abetting, the court stated:

“Aiding, abetting, and counseling are not

terms which presuppose the existence of an

agreement. Those terms have a _ broader

application, making the defendant a principal

when he consciously shares in a criminal act,

regardless of the existence of a conspiracy ... .

Thus, the charge of conspiracy requires proof not

essential to the convictions on the substantive

offenses — proof of an agreement to commit an

offense against the United States ... ”’ id. at

11-12, 74 S.Ct. at 364.

In the Pereira case, the same evidence was used to

support both the conspiracy conviction and the

substantive offense. See also United States v. Shelton,

supra; United States v. Bright, 630 F.2d 804 (CA5 1980);

United States v. Cowart, 595 F.2d 1023 (CA5 1979); United

States v. Fife, 573 F.2d 369 (CA6 1976); United States v.

Rodriguez, 612 F.2d 906 (CA5 1980).

In United States v. Sutton, 642 F.2d 1001 (CA6 1980), the

Sixth Circuit recently explained that:

“Scholarly debate has not ceased concerning

whether or not Congress should make conspiracy

A-10

to commit unlawful acts a crime separate from the

substantive offense. The law pertaining to this

issue has, however, been settled at least since

1945, when the Supreme Court decided Pinkerton

v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90

L.Ed. 1489 (1946). In that case . . . the late Justice

William O. Douglas spelled out in detail the law

pertaining to the proofs necessary to establish a

criminal conspiracy and the relationship between

conspiracy and substantive crimes... .

‘It has been long and consistently

recognized by the Court that the commission

of the substantive offense and a conspiracy

to commit it are separate and distinct

offenses .... A conviction for the con-

spiracy may be had though the substantive

offense was completed... . And the plea of

double jeopardy is no defense to a conviction

for both offenses ... . It is only an identity

of offenses which is fatal... .’

‘Moreover, it is not material that overt acts

charged in the conspiracy counts were also

charged and proved as substantive offenses. As

stated in Sneed v. United States, supra, 298 F.[911]

p. 913, [(5th Cir.)] ‘If the overt act be the offense

which was the object of the conspiracy, and is

also punished, there is not a double punishment

of it.’ The agreement to do an unlawful act is even

then distinct from the doing of the act.

+ + +

A-11

‘Much more recently, the Supreme Court has

cited the Pinkerton case with approval in United

States v. lannelli, supra. There, Justice Powell said

for the Court:

‘Traditionally, the law has considered

conspiracy and the completed substantive

offense to be separate crimes. Conspiracy is

an inchoate offense, the essence of which is

an agreement to commit an unlawful act

... . Unlike some crimes that arise in a

single transaction, ... the conspiracy to

commit an offense and the subsequent

commission of that crime normally do not

merge into a single punishable act... .

Thus, it is well recognized that in most cases

separate sentences can be imposed for the

conspiracy to do an act and for the

subsequent accomplishment of that end

... . Indeed, the Court has even held that

the conspiracy can be punished more harshly

than the accomplishment of its purpose

... ” Id. at 1018-1020.

[5] Thus, the essence of conspiracy is proof of a

conspiratorial agreement, while aiding and abetting, in

contrast, occurs where the defendant in some manner

associates himself with the adventure, participates in it

as in something he wishes to bring about, and geeks by

his action to make it succeed.

Defendant, however, argues that, pursuant to the Sixth

Circuit’s decision in Austin, his sentences for both the

substantive counts and the conspiracy count are violative

of the double jeopardy clause. Austin was convicted in

the trial court of aiding and abetting and offering a bribe

in violation of 18 U.S.C. § 201(f) and 18 U.S.C. § 2,

accepting a bribe in violation of 18 U.S.C. § 201(g) and

A-12

conspiracy to violate 18 U.S.C. § 201(f) and (g). The court

sentenced the appellant to two years on each of the

substantive counts and to four years on the conspiracy

count. All sentences were to run concurrently, and on

appeal the defendant alleged that he was denied his Fifth -

Amendment rights against double punishment for the

same offense when he received sentences both on the

two substantive counts and on the conspiracy count.

While noting that a defendant generally does not

receive double punishment in violation of the Fifth

Amendment when he is convicted and sentenced for a

substantive offense and also for a conspiracy offense, the

Sixth Circuit nevertheless held that the substantive

offenses merge with the conspiracy count for purposes of

sentencing. In so doing, the court focused on the

evidence actually adduced at trial and on the facts as

alleged in the indictment, rather than on the statutory

elements of the offenses charged:

“... The test to be applied to determine

whether the offenses are separate or essentially

congruent is the ‘same evidence’ test. As the

Supreme Court has held, whenever it appears

that the proof of one offense proves every

essential element of another growing out of the

Same act, the Fifth Amendment limits the

punishment to the single act.

“Our examination of the record persuades us

that essentially the same evidence in this case was

relied upon to prove both the conspiracy count

and the substantive offenses. The proof was

offered indiscriminately on all three counts and it

would be difficult, if not impossible, to weed out

any item of evidence that was not pertinent to all

counts. The overt acts in the fourth count were all

relevant in proving the substantive offenses as

well as the conspiracy.

A-13

“Our ruling does not mean that proof of

bribery offenses condemned by 18 U.S.C. Secs.

201(f) and 201(g) would necessarily in all cases

require proof of an agreement or joint action —

the essence of a conspiracy. For these statutory

offenses may or may not involve an agreement or

a concert of action between two or more persons.

Both subsections condemn certain acts of a single

individual as well as acts of two or more persons.

“In the present case, however, the substantive

offenses charged in counts one and three in effect

charged the same agreement or concert of action

on the part of Austin and others, as charged in

the conspiracy count. Since proof of the

substantive offenses, as alleged in counts one and

three of the indictment, also proved every

essential element of the conspiracy, as charged in

count four, appellant was doubly punished in

violation of the Fifth Amendment.” United States

v. Austin, supra, 529 F.2d at 562-64.

However, the Sixth Circuit has apparently limited

Austin to those situations in which an indictment is

drawn in such a way that the substantive offense in

effect charges the same agreement or concert of action as

that charged in the conspiracy count. In United States v.

Fife, 573 F.2d 369 (CA6 1976), the defendant was

convicted of conspiracy to travel in interstate commerce

for the purpose of committing arson and of conspiracy to

use the mails to defraud. The defendant was also

convicted of three substantive counts of interstate travel

to commit arson. On appeal, the defendant, relying on

Austin, contended that the conspiracy and substantive

counts charged him with identical offenses and that the

counts therefore merge, precluding separate punishment

A-14

on the two counts. The court disagreed, distinguishing

Austin in the process:

“The test for determining if an indictment

charges one offense or separate offenses was

established by the Supreme Court in Blockburger

v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,

[182] 76 L.Ed. 306 (1932). In Jannelli v. United

States, 420 U.S. 770, 785, 95 S.Ct. 1284, 1294, 43

L.Ed.2d 616 (1975), the Court pointed out that

there may be a ‘substantial overlap’ in the proof

offered to support two charges but that the

Blockburger test is satisfied so long as ‘each

provision requires proof of a fact that the other

does not .... ’ In United States v. Austin, 529

F.2d 559 (6th Cir. 1976), the indictment was

drawn in such a way that the substantive offenses

‘in effect charged the same agreement or concert

of action. . .’ involving the defendant and other

persons as was charged in the conspiracy count.

Under these circumstances we held that there was

a merger of offenses. The indictment in the

present case is not drawn in the same way as the

indictment which the court considered in Austin.

Of course the essence of a conspiracy is an

agreement to commit an offense. A conviction

under count one required proof of an agreement.

Count three, on the other hand, charged

interstate travel and causing interstate travel by

the arsonist. The fact that the offenses charged in

the substantive counts all related to a single event

which was the ultimate purpose of the conspiracy

is immaterial. The substantive offenses do not

require an agreement whereas the conspiracy

does. There may be conviction and punishment

both for a conspiracy and for aiding and abetting

__ Soe genre ETE es yg

A-15

in commission of a substantive offense so long as the

‘separate offense’ test of Rlockburger is met ..

Essentially the same arguments as those made by Klein

in this case were considered by the court in United States

v. Bradley, 421 F.2d 924, 927-28 (6th Cir. 1970) where the

court stated:

‘The commission of a substantive offense

and a conspiracy to commit it are separate

and distinct crimes, and a plea of double

jeopardy does not arise on a conviction for

both ... . Neither does a conviction for a

substantive offense in any way merge a

conspiracy charge into the substantive crime

-o + « oe Peremm, supra, 307 US., & 1, 74

S.Ct. 358, the Court specifically held that

aiding and abetting, under the facts in that

case, was a separate crime from conspiring.

We can find no meaningful distinction in the

facts presented here.’ ” United States v. Fife,

supra, 573 F.2d at 372-73.

Other circuits have adhered to the view that

application of the Blockburger test focuses on the

statutory elements of the charged offense, not on the

particular manner in which the offense was committed or

described in the indictment. See United States v. Kearney,

560 F.2d 1358 (CA9 1977) cert. den., 434 U.S. 971, 98 S.Ct.

522, 54 L.Ed.2d 460 (1977); United States v. Solano, 605

F.2d 1141 (CA9 1979) cert. den., 444 U.S. 1020, 100 S.Ct.

677, 62 L.Ed.2d 652 (1980); United States v. Wylie, 625

F.2d 1371 (CA9 1980); United States v. Cowart, 595 F.2d

1023 (CA5 1979); United States v. Bankston, 603 F.2d 528

(CA5 1979); United States v. Rodriguez, 612 F.2d 906 (CA5

1980); United States v. Bright, 630 F.2d 804 (CA5 1980).

A-16

In its most recent consideration of the issue, the Sixth

Circuit, in Pandelli v. United States, 635 F.2d 533 (CA6

1980) examined a double jeopardy claim in the context of

a multi-purpose statute — violation of the Travel Act, 18

U.S.C. § 1952. The court construed the Supreme Court

cases of Whelan, supra, and Vitale, supra, as “modif[ying]

the abstract approach to the double jeopardy clause”

traditionally employed by courts applying the

Blockburger test. The court stated:

“... The Blockburger test has traditionally

focused ‘on the proof necessary to prove the

statutory elements of each offense, rather than on

the actual evidence to be presented at trial.’ . . .

Whalen and Vitale make clear, however, that the

requisite statutory elements must be examined

from the vantage point of the particular case

before the court.

“The Blockburger test, as modified in Whalen

and Vitale, comes into play only after other

techniques of statutory construction have proved

to be inconclusive. The first step is for the court

to inquire ‘whether Congress intended to punish

each statutory violation separately’ ... . To

determine the congressional intent it is necessary

to examine the statutory language and the

legislative history, as well as to utilize other

techniques of statutory construction ... . The

Court reaches the Blockburger test only when

those prior techniques of construction have failed

to resolve the question of whether the legislature

intends to allow cumulative punishments for

violation of two statutes.” Id. at 536.

The Court, however, recognized that the Blockburger

test properly focuses on the statutory elements of each

offense rather than on the facts as alleged in the

indictment:

A-17

“The Court states in each opinion, however,

that the Blockburger test in its modified form still

‘focuses on the proof necessary to prove the

statutory elements of each offense, rather than on

the actual evidence to be presented at trial’. . . or

‘the facts alleged in a particular indictment’... .

Courts have always looked to the Jaw the

indictment claims the defendant violated. If they

did not do so, they would not know even what

Statutes are at issue under the Blockburger rule.

What the reviewing court must do now in

applying Blockburger is go further and look to the

legal theory of the case or the elements of the

specific criminal cause of action for which the

defendant was convicted without examining the

facts in detail.” Id. at 538. (Emphasis in original)

In the instant case, an examination of the elements of

the respective offenses demonstrates that defendant

Licavoli was convicted of separate and distinguishable

offenses. A comparison of the three statutes and counts

indicates that each “requires proof of a fact that the other

does not.”

[6] The substantive offenses charged in Counts I and II

require neither no more than one person for their

commission, nor do they require proof of an agreement

to commit an offense against the United States. See

United States v. Fife, supra, at 373; lannelli v. United

States, supra, 420 U.S. at 777, n.10, 95 S.Ct. at 1289-90

n.10. § 201(f); the basis of Count I of the indictment,

proscribes the giving, offering or promising of an

unlawful gratuity. It does not by its express terms

include the element of criminal agreement. § 201(g), the

basis of Count II, proscribes the asking, demanding,

exacting, soliciting, seeking, accepting, receiving, or

agreeing to receive an unlawful gratuity. Although the

A-18

defendant suggests that the agreements charged in

Counts II and V of the indictment are the same for

purposes of double jeopardy analysis, this argument fails

for two reasons.

(7, 8] First, an “agreement to receive” an unlawful

gratuity is an alternative element of the offense charged

in Count II. As such, it is not required to be proven by

the Government in order to sustain a § 201(g) conviction

within the meaning of Blockburger. Unlike the statutory

provisions of the Travel Act involved in Pandelli, supra,

§ 201(g) is not a multipurpose statute written with

alternative jurisdictional elements and identifying

alternative wrongs. § 201(g) prohibits one wrong —

corruption of a public official — which can be

accomplished by a variety of means, including ‘‘agreeing

to receive” an unlawful gratuity. All of the means set

forth in § 201(g) were alleged in the indictment; the

Government was not required to particularize the means

used by defendant in violating the statute. Thus,

although evidence of an “agreement to receive’’ may

have been introduced at trial, it was but one alternative

means of proving a § 201(g) offense. The Blockburger test

looks to what elements of proof a statute requires to

establish its violation, not what may be incidentally

alleged and proved. The existence of a double jeopardy

violation turns on whether the same evidence is required

to prove the two offenses, not the identity of the

evidence actually produced at trial.

[9] Second, the “agreement to receive” an unlawful

gratuity, an alternative element of § 201(g), does not

require proof of a ‘‘conspiratorial agreement’ under

§ 371:

“(T]he giving and receiving of an unlawful

gratuity are not interdependent offenses; the

A-19

donee’s intent may differ from the donor's.”

United States v. Evans, 572 F.2d 455, 480 (CA5

1978).

The donor need not be found criminally culpable in

order for the donee (in this case the public official) to be

found guilty of agreeing to receive an unlawful gratuity.

To the extent that a concert of action is required within

the meaning of Wharton’s Rule,? the indictment falls

within the “third party exception” to Wharton's Rule.

See United States v. Foster, 566 F.2d 1045, 1046-48 (CA6

1977); United States v. Finazzo, 407 F.Supp. 1127, 1130-31

(E.D.Mich. 1975).

Moreover, the indictment in the case at hand is not

drawn in the same way as the indictment which the

Sixth Circuit considered and focused on in Austin. In the

instant case, Salvatore Lauricella, the public official and

principal actor, was not charged in Count I of the

indictment. This contrasts with the manner in which the

indictment was drawn in Austin, where Count I charged

American Motors Corporation and one of its agents with

offering and promising an unlawful gratuity to Austin,

the public official and principal actor, and charged

Austin with procuring AMC to offer and promise him

the unlawful gratuity in the same count.

Finally, assuming arguendo that the legal theory of a

particular case should be accorded some weight in

assessing a double jeopardy claim, the theory of the

Government's case was not the same for each count. The

Government did not suggest that defendant Licavoli

2 Wharton’s Rule precludes an indictment for conspiracy to

commit a substantive offense where the agreement of two persons 15

necessary for the completion of the substantive crime.

A-20

aided and abetted Lauricella, the public official, in

“agreeing to receive’’ the unlawful gratuity; the

prosecution asserted that the conspiratorial agreement

was already in existence when defendant Licavoli joined

it.

[10, 11] The dispositive fact is that Count V requires

proof of an element — conspiratorial agreement — that

the two substantive offenses alleged in Counts I and II

do not. An overlap in factual allegations is immaterial.

lannelli, supra. Under the circumstances of the present

case, the general rule applies: Ultimate consummation of

the scheme is not essential to completing the crime of

conspiracy; conversely conviction on a substantive count

lies without proof of an agreement to commit the crime.

The rationale underlying this rule was aptly set forth by

the Sixth Circuit in Sutton, supra, at 1020:

“The consistent rationale of this long line of

decisions rests on the very nature of the crime of

conspiracy. This Court repeatedly has recognized

that a conspiracy poses distinct dangers quite

apart from those of the substantive offense.

‘This settled principle derives from the

reason of things in dealing with socially

reprehensible conduct: collective criminal

agreement — partnership in crime —

presents a greater potential threat to the

public than individual delicts. Concerted

action both increases the likelihood that the

criminal object will be successfully obtained

and decreases the probability that the

individuals involved will depart from their

path of criminality. Group association for

criminal purposes often, if not normally,

A-21

makes possible the attainment of ends more

complex than those which one criminal could

accomplish. Nor is the danger of a

conspiratorial group limited to the particular

end toward which it has embarked.

Combination in crime makes more likely the

commission of crimes unrelated to the

original purpose for which the group was

formed. In sum, the danger which a

conspiracy generates is not confined to the

substantive offense which is the immediate

aim of the enterprise.’ Callanan v. United

States, supra, [364 U.S. 587] at 593-594, 81

S.Ct. [321] at 325 [5 L.Ed.2d 312].

The sentences on all three counts will remain

undisturbed, as will the imposition of fines.

An order in conformity to this opinion may be

presented.

A-22

APPENDIX D

OPINION

(United States Court of Appeals

for the Sixth Circuit)

(Decided and Filed April 5, 1983)

(United States of America, Plaintiff-Appellee, v.

Salvatore Finazzo and Dominic Licavoli, Defendants-

Appellants — Nos. 81-1218/1219; Appeal from the United

States District Court for the Eastern District of Michigan,

Southern Division.)

Before: Engel and Jones, Circuit Judges; and Neese,

Senior District Judge."

Engel, Circuit Judge. Defendants Finazzo and Licavoli

appeal from a judgment entered by the United States

District Court for the Eastern District of Michigan

following a jury trial in which each was convicted of (1)

commanding, inducing, procuring or causing the giving

of an unlawful gratuity to a public official in violation of

18 U.S.C. §§ 201(f) and 2 (count I); (2) aiding and

abetting a public official in asking, demanding, exacting,

soliciting, seeking, accepting, receiving or agreeing to

receive an unlawful gratuity, in violation of 18 USC.

§§ 201(g) and 2 (count II); and (3) conspiracy to violate

18 U.S.C. §§ 201(f), 201(g), 1952 and 2, all in violation of

18 U.S.C. § 371 (count V). In addition, Finazzo was

convicted of count IV, which charged that he and

Licavoli had aided and abetted a violation of the Travel

Act contrary to 18 U.S.C. §§ 1952 and 2. Licavoli,

however, was acquitted on this count.

“Hon. C. G. Neese, Senior United States District Court Judge for

the Eastern District of Tennessee, sitting by designation. Judge Neese

became a Senior District Judge at midnight on August 31, 1982.

A-23

In his direct appeal to this court, defendant Finazzo

raises the following issues:

(1)

(2)

(3)

(4)

That the proofs introduced at trial constituted a

constructive amendment of the indictment,

thereby depriving him of his Fifth Amendment

right not to be prosecuted except on charges set

forth in the grand jury indictment.

The trial court erred in giving a ‘’Pinkerton”’

charge! to the jury which permitted the defendant

to be convicted of substantive crimes committed

by others.

His conviction on counts I, II, IV, and V

amounted to double jeopardy contrary to his

rights guaranteed by the Fifth Amendment.

The trial court erred in denying a judgment of

acquittal notwithstanding the verdict or in the

alternative for a new trial because of improper

argument made by the government prosecutor.

On his part the defendant Licavoli, while adopting the

arguments of codefendant Finazzo by reference, also lists

the following claims on appeal:

(1) That the court erred in denying his motion for a

judgment of acquittal, there being insufficient

proof that he was a member of the conspiracy

charged.

1 The “Pinkerton” charge arises from Pinkerton v. United States,

328 U.S. 640 (1946), in which the Supreme Court held that a party toa

continuing conspiracy co

uld be held responsible for substantive

offenses committed by a coconspirator in furtherance of the

conspiracy even though the party does not participate in the

substantive offenses nor have any knowledge of them.

A-24

(2) The trial court erred in giving a “Pinkerton”

instruction which allowed the jury to convict him

of substantive crimes committed before the

defendant was shown to have joined the

conspiracy.

(3) The prosecutor was guilty of gross misconduct in

making improper rebuttal argument which

impugned the credibility and reputation of

appellant’s attorney and in presenting his

personal opinion as to the appellant’s guilt. This

misconduct deprived petitioner of his rights

under the Due Process Clause to a fair trial.

(4) Because the language in the substantive count of

the indictment indicates the same agreement

described in the conspiracy count and because

the proofs of each offense at trial were the same,

there was a violation of Licavoli’s rights under the

Double Jeopardy Clause of the Fifth Amendment.

For the reasons which follow we affirm.

The convictions underlying these appeals were based

upon events which commenced in the summer of 1973

when a small construction company, BIM, Inc., sought to

obtain two contracts for the excavation and underground

installation work at a proposed shopping center in

Akron, Ohio. The two contracts were together worth

approximately $3,000,000.00, and in order to bid thereon

the company was required by the principal contractor to

secure performance bonds for the full amount of the

contract. No surety company would write performance

bonds in the amount required without a guarantee from

the Small Business Administration (“SBA”) that, should

BIM default on the contract, the SBA would indemnify

the surety company for up to 90% of the face value of the

bond. The principals of BIM, John Bobal and Frank

Ilacqua, contacted one Salvatore Lauricella, Chief of the

A-25

Surety Bond Guarantee Program of the SBA in

Washington, D.C. Bobal and Ilacqua offered and

promised Lauricella $18,000.00 in return for the latter's

assistance in obtaining SBA guarantees for the requisite

performance bonds. With Lauricella’s assistance, BIM

eventually obtained the guarantees from the SBA and

performance bonds from the Cincinnati Insurance

Company. Thereafter, Bobal and Ilacqua refused to pay

Lauricella the $18,000.00 which they had promised and

instead stated that they would give him only $10,000.00

in full payment. Lauricella, obviously desiring to obtain

the entire $18,000.00 promised him, approached his

“buddy,” defendant Dominic Licavoli, and asked for

help. Licavoli in turn brought the problem to the

attention of defendant Salvatore Finazzo. During a

November 1, 1973 meeting between Licavoli and Finazzo

— a meeting intercepted and recorded on tape by the

Federal Bureau of Investigation (‘’FBI’’) — Finazzo

agreed to help Lauricella recover the promised $18,000.00

from Bobal and Ilacqua.

At the November 1 meeting the two defendants

drafted a letter to an individual referred to as “Skippy.”

This letter sought to enlist Skippy’s aid in obtaining the

full $18,000.00 promised to Lauricella.2 This letter was

delivered to Skippy by Finazzo’s daughter who was at

the time visiting her hospitalized mother in Detroit. On

December 10, 1973, Finazzo received a telephone call

(also intercepted and recorded on tape by the FBI) from

an unidentified person, who told Finazzo that the matter

Finazzo requested “Skip” to handle in Finazzo’s ietter to

Skip would be “straightened out in full’ on December

14, 1973. On or about December 14, 1973, Bobal and

2 Richard Crino, the Deputy Area Administrator of the Labor

Management Services Administration in Cleveland, Ohio, testified

that “Skippy” is the nickname for John J. Felice, Jr., who in 1973 was

the treasurer of Local 293 of the Teamster’s Union in Ohio, and also a

trustee for Joint Council 41 of the Teamster’s Union in Ohio.

A-26

Ilacqua each wrote a check in the amount of $11,500.00

on their company account, which they then cashed.

Lauricella flew to Detroit on the same day, and the

government claimed at trial that the $18,000.00 debt

owed Lauricella was paid by Bobal and Ilacqua in Detroit

on December 14, 1973.

Finazzo and Licavoli contend that the Double Jeopardy

Clause of the Fifth Amendment prevents their

cumulative punishment for the substantive bribery

charges of counts I and II and for the conspiracy charges

of count V. Finazzo in addition contends that the Double

Jeopardy Clause prevents his cumulative punishment for

the same substantive bribery counts and his conviction

on the Travel Act violation (count IV).

The Double Jeopardy Clause provides that no person

shall “be subject for the same offense to be twice put in

jeopardy of life or limb.” U. S. Const. Amend. V. It was

held in North Carolina v. Pearce, 395 U.S. 711, 717 (1969)

that the Double Jeopardy Clause provides three separate

protections. It ‘‘protects against a second prosecution for

the same offense after acquittal. It protects against a

second prosecution for the offense after conviction. And

it protects against multiple punishments for the same

offense.’’ North Carolina v. Pearce, 395 U.S. at 717.

Defendants’ claims here involve only the third

protection, that against multiple punishments for the

same offense.

* Defendant Finazzc was sentenced to a term of two years on

count I, two years on count II, three years on count IV and three years

on count V, all sentences to run concurrently. Licavoli was sentenced

to two years on count I, two years on count II, and three years on

count V, those sentences to run concurrently. In addition, however,

the court imposed a $10,000.00 fine against Finazzo in connection

with each count for a total of $40,000.00 and a like sum of $10,000.00

on each of the three counts which Licavoli was found guilty of, for a

total of $30,000.00.

A-27

In a careful and articulate opinion, United States

District Judge Horace W. Gilmore, who presided at the

jury trial, rejected each of the defendants’ double

jeopardy claims. United States v. Finazzo, 520 F.Supp.

1085 (E.D. Mich. 1981). Recent decisions of the United

States Supreme Court and indeed of our circuit have

discussed the application of the Double Jeopardy Clause

and, with respect to federal criminal offenses at least,

have made it clear that where separate offenses have

been charged and tried in the same proceeding, the

question whether separate punisnimentts Hay ve mipuoes

is primarily one of Congressional intent.

In Whalen v. United States, 445 U.S. 684 (1980), the

Supreme Court considered a District of Columbia court's

imposition of consecutive punishment for rape and

felony murder committed in the course of rape. The

Court held that the rape itself was a lesser and included

offense of the felony murder charge and that Congress

had not authorized consecutive sentences under such

circumstances. The Court observed:

The Double Jeopardy Clause at.the very. least

precludes federal courts from imposing

consecutive sentences unless authorized by

Congress to do so. The Fifth Amendment

guarantee against double jeopardy embodies in

this respect simply one aspect of the basic

principle that within our federal constitutional

framework the legislative power, including the

power to define criminal offenses and to prescribe

the punishments to be imposed upon those found

guilty of them, resides wholly within the

Congress. If a federal court exceeds its own

authority by imposing multiple punishments not

authorized by Congress, it violates not only the

specific guarantee against double jeopardy, but

A-28

also the constitutional principle of separation of

powers in a manner that trenches particularly

harshly on individual liberty.

Whalen, 445 U.S. at 689 (citations and footnotes omitted).

Left uncertain in Whalen was whether the Double

Jeopardy Clause would prohibit multiple punishment in

a situation where Congress clearly intended for multiple

punishment to exist. That question was answered in

Albernaz v. United States, 450 U.S. 333 (1981). While

eee cere py CEM R eM Mem ata nras ae Ae FO

“veritable Sargasso Sea which could not fail to challenge

the most intrepid judicial navigator,” Justice Rehnquist

in Albernaz v. United States, 450 U.S. 333, 343 (1981),

affirmed a Fifth Circuit determination that upheld

consecutive sentences on counts of conspiracy to import

marijuana, 21 U.S.C. § 963, and conspiracy to distribute

marijuana, 21 U.S.C. § 846.4 The Court observed that

“the question of what punishments are constitutionally

permissible is not different from the question of what

punishment the Legislative Branch intended to be

imposed. Where Congress intended, as it did here, to

‘impose multiple punishments, imposition of such

sentences does not violate the Constitution.” 450 U.S. at

344. We conclude that whatever tension may have

existed between existing decisions in the Sixth Circuit,5

our inquiry under Albernaz is to determine whether

Congress intended cumulative punishment for the

separate offenses charged in the indictment under

scrutiny here.

* The Fifth Circuit decision is reported as United States v.

Rodriguez, 612 F.2d 906 (Sth Cir. 1980).

5 Compare Panelli v. United States, 635 F.2d 533 (6th Cir. 1980), with

United States v. Fife, 573 F.2d 369 (6th Cir. 1976).

A-29

At issue here are three separate statutes:

18 U.S.C. § 2. Principals

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands,

induces or procures its commission, is

punishable as a principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another

Wud VE ait Vireiise apaiiist Ule UTliltead States,

is punishable as a principal.

18 U.S.C. § 201. Bribery of public officials and

witnesses

(f) Whoever, otherwise than as provided by law for

the proper discharge of official duty, directly or

indirectly gives, offers, or promises anything of

value to any public official, former public

official, or person selected to be a public

official, for or because of any official act

performed or to be performed by such public

official, former public official, or person

selected to be a public official; or

(g) Whoever, being a public official, or person

selected to be a public official, otherwise than

as provided by law for the proper discharge of

official duty, directly or indirectly asks,

demands, exacts, solicits, seeks, accepts,

receives, or agrees to receive anything of value

for himself for or because of any official act

performed or to be performed by him; . . . shall

be fined not more than $10,000 or imprisoned

for not more than two years, or both.

18 U.S.C. § 371. Conspiracy to commit offense or to

defraud United States

A-30

If two or more persons conspire either to commit

any offense against the United States, or to defraud

the United States, or any agency thereof in any

manner or for any purpose, and one or more of such

persons to any act to effect the object of the

conspiracy, each shall be fined not more than $10,000

or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is

the object of the conspiracy, is a misdemeanor only,

the punishment for such Conspiracy smau nor exceed

the maximum punishment provided for such

misdemeanor.

The language of the conspiracy statute (section 371), and

that of the bribery statute (section 201), authorize

punishment for each violation and do not place

limitations on cumulative punishment for violation of

other sections by a single transaction. Therefore, the

statutes on their face suggest that Congress intended to

allow the imposition of multiple punishments in the

instant case. A further examination of Congressional

intent supports this conclusion.

As Judge Gilmore correctly observed below, one tool

for determining Congressional intent in this area is the

test articulated by the Supreme Court in Blockburger v.

United States, 284 U.S. 299 (1932). Under Blockburger,

courts are directed to determine whether each of the

offenses charged requires proof of a fact which the others

do not. 284 U.S. at 304; see also Brown v. Ohio, 432 U.S.

161, 166 (1977). Therefore, it is necessary to determine at

this point the statutory elements of the offenses charged

here.

For a violation of the conspiracy statute, 18 U.S.C.

§ 371, the government had to prove that:

(1) the defendants conspired or agreed to violate the

bribery statute and that

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(2) there existed an overt act in furtherance of the

conspiracy.

For a violation of 18 U.S.C. §§ 201(f) and 2, the

government had to prove that:

(1) Appellants aided or caused

(2) the giving, offer, or promise of something of

value

\7 iv a puree Webdwsues

(4) for or because of an official act performed by the

public official.

Likewise, for a violation of 18 U.S.C. §§ 201(g) and 2,

the government had to prove:

(1) Appellants aided or caused

(2) the asking, demanding, exacting, soliciting,

seeking, accepting, receiving or agreeing to

receive something of value

(3) by a public official

(4)---for-acts- performed by him. ----—---- )

Thus examined, it is apparent that the bribery statute

contains the elements of giving and receiving a bribe,

while the conspiracy statute requires only an agreement

and some overt act. The substantive bribery counts

therefore clearly require proof of an additional element.

The question then arises whether the conspiracy count

requires an additional element that the bribery count

does not. The government contends that the conspiracy

count requires an additional element of proof of

agreement while appellants contend that the government

proved aiding and abetting by showing the very same

agreement between appellants — i.e., the agreement to

put pressure on Bobal and Ilacqua to pay the SBA official

a bribe as they had previously promised.

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An examination of the bribery provisions reveals that

proof of a conspiratorial agreement is not required for a

conviction under these statutes. Defendants here

mistakingly point to the evidence submitted at trial; the

relevant inquiry focuses not on the evidence actually

submitted, but rather examines the proof necessary to

establish the statutory elements of each offense. lannelli

v. United States, 420 U.S. 770, 785 n.17 (1975). Since each

offense here requires “proof of a fact that the other does

not,” the Blockburger test is satisfied, and defendants’

Double Jeopardy arguments must fail.

Defendants’ arguments also implicate ‘“Wharton’s

Rule,” however, which in brief holds that a defendant

cannot be punished for conspiracy and a substantive

offense if the substantive offense requires the

participation of two persons. See Iannelli v. United States,

420 U.S. 770, 773 (1975). The rule traditionally was

applied to offenses which by their nature required the

acts of more than one person, such as adultery, incest,

bigamy and duelling. Jannelli, 420 U.S. at 782. Wharton's

Rule is not grounded in double jeopardy law, but rather

has current.vitality only as a judicial presumption, to be_

applied in the absence of legislative intent to the

contrary.” Id. In any case, application of Wharton’s Rule

here does not support defendants’ arguments on appeal.

In lannelli v. United States, 420 U.S. 770 (1975),

defendants were charged with conspiracy and a

substantive gambling offense. The Court rejected the

defendants’ argument that Wharton’s Rule barred

prosecution and punishment for both offenses focusing

on three factors: (1) Are the parties to the agreement

the only persons who participate in the substantive

offense? (2) Does the crime have consequences only on

those parties or also on society at large? (3) Does the

agreement connected with the substantive offense pose

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the same threat to society “that the law of conspiracy

seeks to avert?” 420 U.S. at 782-83. In addition the Court

made it clear that Wharton’s Rule “is essentially an aid to

the determination of legislative intent’’ and as such

would in any event give way to a “discernible legislative

judgment.” Id. at 786.

Application of the factors listed in lannelli indicates

that AAszhtlaA purstechenent ras isuctcuirded tu be aliowed in

the present case. First, not only did there exist an

unlawful conspiracy to bribe Lauricelia, the SBA official,

in violation of 18 U.S.C. § 371, but Bobal and Ilacqua

were also guilty of aiding and causing the receipt of the

bribe when they delivered the money to Lauricella.

Therefore, it is clear in this case that ‘the parties

prosecuted for the conspiracy need not be the same

persons who are prosecuted for commission of the

substantive offense.” Id. at 784. The government was free

to prosecute defendants for either the conspiracy or the

substantive offense, or to prosecute the defendants for

both offenses. Since the pool of persons who could have

participated in the commission of the substantive offense

_ here was not limited to only those persons who were

parties to the original agreement, the first test of lannelli

is satisfied. Likewise, the second lannelli test is met

because the consequences of bribery not only affect the

parties to the crime but also have a negative effect on

society at large. Thus, bribery is distinguishable from

the classic Wharton Rule offenses cited in Jannelli. Third,

the agreement connected with the substantive offense of

bribery here poses “the distinct kinds of threats to

society that the law of conspiracy seeks to avert.”’

lannelli, 420 U.S. at 783. As in lannelli, the agreement

connected with the substantive offense is “likely to

generate additional agreements to engage in other

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criminal endeavors.” Id, at 784. Finally, Wharton’s Rule

applies where not only the conspiracy but also the

substantive offense requires “concerted criminal activity,

a plurality of criminal agents.” Id. at 785. Under the

bribery statutes here, concerted activity is not required

to convict; a donor may be convicted of a bribe even

though the donee is not. United States v. Evans, 572 F.2d

455, 480 (5th Cir.), cert.denied, 439 U.S. 870 (1978).

The traditional rule of law is that conspiracy and a

completed substantive offense are separate crimes.

lannelli, 420 U.S. at 777. It has not been shown to us that

there exists any legislative intent on the part of Congress

to prevent the government from seeking the imposition

of separate sentences for the conspiracy and bribery

offenses involved here. Therefore, defendants’

arguments on this point are rejected. Finazzo contends,

however, that his cumulative punishment for bribery

and for count IV, the Travel Act offense, also violates the

Double Jeopardy Clause.

The Travel Act, 18 U.S.C. § 1952, provides:

§ 1952. Interstate and foreign travel or transportation

in aid of racketeering enterprises

(a) Whoever travels in interstate or foreign

commerce or uses any facility in interstate or

foreign commerce, including the mail, with

intent to —

(1) distribute the proceeds of any unlawful

activity; or

(2) commit any crime of violence to further any

unlawful activity; or

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(3) otherwise promote, manage, establish, carry

(b)

(c)

on, or facilitate the promotion, management,

establishment or carrying on, of any

unlawful activity,

and thereafter performs or attempts to perform

any of the acts specified in subparagraphs (1),

(2) and (3), shall be fined not more than $10,000

or imprisoned for not more than five years, or

both.

As used in this section ‘unlawful activity”

means (1) any business enterprise involving

gambling, liquor on which the Federal excise

tax has not been paid, narcotics, or prostitution

offenses in violation of the laws of the State in

which they are committed or of the United

States,or (2) extortion, bribery, or arson in

violation of the laws of the State in which

committed or of the United States.

Investigations of violations under this section

involving liquor or narcotics shall be conducted

under the supervision of the Secretary of the

Treasury.

Again we note that nothing on the face of the statute

indicates an intention in Congress to prohibit

cumulative punishment for the two offenses.

As we noted earlier, to prove the bribery counts the

government had to show that:

(1) Finazzo aided or caused

(2) the giving (for § 201(f)) or receiving (for § 201(g))

of something of value

(3) to or by a public official

(4) for acts performed by the official.

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In contrast, under the Travel Act the government was

required to show that:

(1) Finazzo caused someone to travel in interstate

commerce (here, his daughter);

(2) the person had intent to commit unlawful

activities while so traveling; and

(3) that the person did commit the unlawful activity.

Clearly the Travel Act requires proof of interstate travel

while the bribery statute does not. Finazzo claims,

however, that there is no additional element for the

bribery counts because the Travel Act requires interstate

travel plus bribery. Thus he argues that in this instance

bribery is a lesser included offense. The government's

response is that the bribery counts require proof that

someone actually committed the crimes defined in 18

U.S.C. §§ 201(f), 201(g) (that is, that someone actually

gave, offered or promised a bribe to Lauricella under

count I, and that Lauricella asked for, demanded,

exacted, solicited, sought, accepted, received, or agreed

to receive a bribe under count II), while the Travel Act

does not require a completed offense. Therefore, actual

commission of the bribery offenses here provide the

additional element which satisfies Blockburger. The

government urges that the Travel Act does not require

that the intended criminal offense actually be completed,

but only that unlawful activity leading towards the

completion of the offense has taken place.

In United States v. Goldfarb, 643 F.2d 422 (6th Cir.) cert.

denied __ U.S. __, 102 S.Ct. 118 (1981), Goldfarb was

convicted both of substantive offenses proscribed by the

Travel Act, 18 U.S.C. § 1952, and of a conspiracy to

violate the Travel Act, 18 U.S.C. § 371. It was the

government's theory, supported by evidence, that

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Goldfarb a Birmingham, Michigan bondsman, had

traveled to Las Vegas for the purpose of engaging in a

scheme whereby he would participate in the clandestine

ownership of a Nevada hotel’s gaming operations in

violation of a Nevada statute. In his defense, Goldfarb

asserted that he was merely a valued customer of the

casino, a former investor, and possibly a future

stockholder and officer of the corporation whose efforts

to acquire owenership in the casino had not as yet been

acted upon by Nevada. Holding that the evidence

presented a disputed question of fact for the jury, our

court observed that while proof of the commission or an

attempted commission of a Federal or state defined

criminal offense is an essential element of a Travel Act

conviction, “it is certainly true that the . . . crime need

not be actually accomplished.”” 643 F.2d at 426. See also

United States v. Pomponio, 511 F.2d 953, 957 (4th Cir.),

cert denied, 423 U.S. 874 (1975). Applying those principles

to this case, we observe that the ultimate consummation

of the conspiratorial scheme was not required for a

Travel Act conviction here. Since each bribery offense

required that the offense be accomplished, while the

Travel Act requires only unlawful activity in furtherance

of the underlying offense, the cumulative punishment

imposed on Finazzo does not violate the Double

Jeopardy Clause.

Il.

Defedants further claim that the government's

presentation of proofs amounted to an unlawful

constructive amendment of the indictment. Count V of

the indictment charged a conspiracy between Finazzo,

Licavoli, Lauricella, Bobal and Ilacqua from on or about

May 1, 1973 and continuously thereafter until January 1,

1974. Finazzo and Licavoli claim their convictions on

A-38

count V of the indictment (/.e., of conspiracy to violate 18

U.S.C. § 201(f) ) cannot stand because the conspiracy to

bribe was complete upon the making of the offer and the

promise of benefit in exchange for official action. United

States v. Shulman, 624 F.2d 384, 387 (2d Cir. 1980). Thus

it is daimed that the completed offer and promise were

made before the two defendants here were brought in to

provide the necessary muscle to make the final

collection. Therefore, defendants conclude, the

government proved two separate conspiracies although it

had alleged only one conspiracy in the indictment.

Emphazing the fact that 18 U.S.C. § 201(f) contains the

word “give’’ as well as “offer’’ and ‘‘promise,”’ the

government asserts that under section 201 the giving of

the bribe was also a violation of the statute. United States

v. Michaelson, 165 F.2d 732 (2d Cir.), aff'd, 335 U.S. 469

(1948); United States v. Barnes, 431 F.2d 878 (9th Cir.

1970), cert. denied, 400 U.S. 1024 (1971). Since the conduct

is described in the disjunctive, a violation of any element

is sufficient to complete the crime. Therefore, argues the

government, since the bribe was not actually given to

Lauricella before Licavoli’s entrance into the conspiracy,

it is evident that the conspiracy had not terminated since

its ultimate object, the actual payment of the bribe to

Lauricella, had not yet been accomplished. Because

Licavoli (and Finazzo) joined the conspiracy before it

ended, he is liable for any “acts and agreements which

took place before he had joined.’’United States v. Peraino,

645 F.2d 548, 551 (6th Cir.) cert. denied, __ U.S. —, 102

S.Ct. 586 (1981); United States v. Cimini, 427 F.2d 129, 130

(6th Cir.), cert. denied, 400 U.S. 911 (1970).

We believe the foregoing review of the evidence belies

the assertion that there was any constuctive amendment

of the indictment. While defendants would have us

construe the circumstances as proving a wholly separate

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and distinct conspiracy on the part of Finazzo and

Licavoli to extort the money which was already owed by

Bobal and Ilacqua to Lauricella under their illegal

agreement, there can be little doubt that the defendants

played a vital effective role in carrying out and assisting

the original offenses set forth in counts I and II. A review

of the proofs fully satisfies us that there is no substantial

likelihood that defendants were convicted of an offense

other than that charged by the grand jury. United States

v. Beeler, 587 F.2d 340, 342 (6th Cir 1978), cert. denied, _

U.S. —, 102 S.Ct. 315 (1981).° The proof submitted at

trial of a single conspiracy also justifies the trial judge’s

Pinkerton instruction with reference to the substantive

offense in counts I and II. Pinkerton v. United States, 328

U.S. 640 (1946); see note 1, supra.

Finally, it is claimed that the prosecutor was guilty of

improper argument in making derogatory comments

about defense counsel and in expressing his opinion of

the guilt of the defendants. The language employed,

though perhaps ambiguous, was not construed by the

trial judge as actually conveying the prosecutor's

personal opinion of guilt. Since the trial judge was

present and heard the language in the context and

atmosphere in which it was given, we are not disposed

to disturb that finding. We agree with the defendant that

the remarks objected to were unseemly. These remarks

however, were provoked by arguments made by the

6 Similarly, it is unnecessary to consider Licavoli’s argument that

a defendant can not be convicted of aiding and abetting a completed

crime. The crime at issue here was not complete at the time Licavoili

entered the conspiracy. The payment of the bribe to Lauricella took

place after Licavoli joined the conspiracy, and under 18 U.S.C.

§ 201(f) the conspiracy to ‘‘give’’ Lauricella a bribe did not terminate

until the bribe was actually paid to Lauricella.

A-40

attorneys for Finazzo and Licavoli, remarks which in our

view were equally inappropriate. This fact does not of

course excuse attorneys representing the United States

from compliance with the higher duty cast upon them.

See Berger v. United States, 295 U.S. 78 (1935). The

prosecutor here committed similar misconduct in United

States v. Smith, 500 F.2d 293 (6th Cir. 1974). This fact

alone suggests that further sanctions might have been

appropriate. At the same time any possible taint from

the unseemly comment was in our judgment removed by

the curative and sensible instructions given by the able

judge.

Affirmed

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APPENDIX E

JUDGMENT

(United States Court of Appeal

for the Sixth Circuit)

(Filed April 5, 1983)

(United States of America, Plaintiff-Appellee, vs.

Salvatore Finazzo (81-1218), Dominic Licavoli (81-1219),

Defendants-Appellants — Nos. 81- 1218/1219)

Before: Engel and Jones, Circuit Judges; and Neese,

Senior District Judge.

JUDGMENT

On Appeal from the United States District Court for

the Eastern District of Michigan.

This Cause came on to be heard on the record from the

said District Court and was argued by counsel.

On Consideration Whereof, it is now here ordered an

adjudged by this court that the judgment of the said

District Court in this case be and the same is hereby

affirmed.

No costs taxed.

Entered By Order of the Court

si John P. Hehman, Clerk

Issued as Mandate: May 3, 1983

A true Copy.

Attest: /s/ Linda L. Brinson

Deputy Clerk

A-42

APPENDIX F

INDICTMENT

(United States District Court

Eastern District of Michigan

Southern Division)

(Filed April 19,1975)

(United States of America vs. Salvatore Finazzo,

Dominic Joseph Licavoli, Salvatore Angelo Lauricella,

John P. Bobal, Frank C. lacqua—Criminal No. 5-80597;

Violation: 18 U.S.C. 201, 1952, 371 and 2)

The Grand Jury charges:

COUNT I

From on or about the First day of May, 1973, up to

approximately the Thirty First day of January, 1974, in

the Eastern District of Michigan and elsewhere, Salvatore

Finazzo, Dominic Joseph Licavoli, Joesph P. Bobal, and

Frank C. Ilacqua, defendants herein, did directly and

indirectly give and promise something of value, to wit

eighteen thousand dollars ($18,000.00) to Salvatore

Angelo Lauricella, who was then and there a public

official as that term is defined in Section 201(a) of Title

18, United States Code, the said gift and promise being

otherwise than as provide by law for the proper

discharge of the official duty of the said Salvatore Angelo

Lauricella, and the said gift and promise being for and

because of official acts performed and to be performed

by the said Salvatore Angelo Lauricella, to wit efforts by

the said Salvatore Angelo Lauricella to cause and

effectuate guarantees by the Small Business

Administration of certain surety bonds issued by

Cincinnati Insurance Company to assure performance by

B.I.M., Inc. on certain construction and excavation

projects.

All of the above in violation of Title 18, United States

Code, Sections 201(f) and 2.

A-43

COUNT II

The Grand Jury further charges:

Between approximately the First day of November, 1973

and approximately the Thirty First day of December,

1973, in the Eastern District of Michigan and elsewhere,

“alvatore Angelo Lauricella, defendant herein, being

then and there a public official as that term is defined in

Section 201(a) of Title 18, United States Code, through

certain confederates to wit Salvatore Finazzo and

Dominic Licavoli, defendants herein, did directly and

indirectly ask, demand, exact, solicit, seek, accept,

receive, and agree to receive something of value, to wit

payment of eighteen thousand dollars ($18,000.00) from

Frank C. Ilacqua and John P. Bobal; the said payment

being otherwise than as provided by law for the proper

discharge of the official duty of the said Salvatore Angelo

Lauricella, and the said payment being for and because

of official acts performed and to be performed by the

said Salvatore Angelo Lauricella, to wit efforts by the

said Salvatore Angelo Lauricella to cause and effectuate

guarantees by the Small Business Administration of

certain surety bonds issued by Cincinnati Insurance to

assure performance by B.I.M., Inc. on certain

construction and excavation projects.

All of the above in violation of Title 18, United States

Code, Sections 201(g) and 2.

COUNT IV

The Grand Jury Further Charges:

That shortly after the first day of November, 1973, in

the Eastern District of Michigan, Salvatore Finazzo and

Dominic Joseph Licavoli, defendants herein, did cause

Anna Marie Milano, not named as a defendant herein, to

A-4

travel in interstate commerce from Mount Clemens,

Michigan, in the Eastern District of Michigan to

Cleveland, Ohio, the said Salvatore Finazzo and Dominic

Joseph Licavoli having then and there an intention to

promote and carry on and facilitate the promotion and

carrying on of an unlawful activity, the said unlawful

activity being bribery in violation Title 18, United States

Code, Section 201; and the said Salvatore Finazzo and

Dominic Joseph Licavoli did thereafter promote, carry

on, and facilitate the promotion and Carrying on of the

said unlawful activity, to wit, bribery in violation of Title

18, United States Code, Section 201.

All of the above in violation of Title 18, United States

Code, Sections 1952 and 2.

COUNT V

The Grand Jury Further Charges:

1.) That from on or about the First day of May, 1973,

and continuously thereafter up to and including the

Thirty First day of January, 1974, in the Eastern District

of Michigan and elsewhere, Salvatore Finazzo, Dominic

Joseph Licavoli, Salvatore Angelo Lauricella, John P.

Bobal and Frank C. Ilacqua, defendants herein, did

unlawfully, wilfully, and knowingly combine, conspire,

confederate, and agree together and with each other, to

commit offenses against the United States. to wit:

2.) It was part of the said conspiracy that, Salvatore

Finazzo, Dominic Joseph Licavoli, John P. Bobal, and

Frank C. Iacqua, would directly and indirectly give and

promise something of value, to wit eighteen thousand

dullars ($18,000.00) to Salvatore Angelo Lauricella who

would be then and there a public official as that term is

definded in Section 201(a) of Title 18, United States

Cote, which said gift and promise would be otherwise

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than as provided by law for the proper discharge of the

official duty of the said Salvatore Angelo Lauricella, and

which said gift would be for and because of official acts

performed and to be performed by the said Salvatore

Angelo Lauricella, to wit efforts by the said Salvatore

Angelo Lauricella to cause and effectuate guarantees by

the Small Business Administration of certain surety

bonds issued by Cincinnati Insurance Company to

assure performance by B.I.M., Inc. on certain

construction and excavation projects; all of which would

be in violation of Title 18, United States Code, Sections

201(f) and 2.

3.) It was further a part of the said conspiracy that

Salvatore Angelo Lauricella, who would be then and

there be a public official as that term is defined in

Section 201(a) of Title 18, United States Code, through

certain confederates, to wit, Salvatore Finazzo and

Dominic Licavoli, would directly and indirectly ask,

demand, exact, solicit, seek, accept, receive, and agree to

receive something of value, to wit, payment of eighteen

thousand dollars ($18,000.00) from Frank C. Ilacqua and

John P. Bobal; which said payment would be otherwise

than as provided by law for the proper discharge of the

official duty of the said Salvatore Angelo Lauricella, and

which said payment would be for and because of official

acts performed and to be performed by the said Salvatore

Angelo Lauriceila, to wit efforts by the said Salvatore

Angelo Lauricella to cause and effectuate guarantees by

the Small Business Administration of certain surety

bonds issued by Cincinnati Insurance Company to

assure performance by B.I.M., Inc. on certain

construction and excavation projects; all of which would

be in violation of Title 18, United States Code, Sections

201(g) and 2.

A-46

4.) It was further a part of the said conspiracy that

Salvatore Angelo Lauricelia, aided and abetted by John

P. Bobal and Frank C. llacqua, would travel in interstate

commerce from Detroit, Michigan, in the Eastern District

of Michigan to Akron, Ohio with intent to promote,

carry on, and to facilitate the promotion and carrying on

of an unlawful activity, which said unlawful activity

would be bribery in violation of Title 18, United states

Code, Section 201; and the said Salvatore Angelo

Lauricella aided and abetted by John P. Bobal and Frank

C. Ilacqua would thereafter Promote, carry on, and

facilitate the promotion and carrying on of the said

unlawful activity, which would be bribery in violation of

Title 18, United States Code, Section 201; all of which

would be in violation of Title 18, United States Code,

Sections 1952 and 2.

5.) It was further a part of the said conspiracy that

Salvatore Finazzo and Dominic Joseph Licavoli would

cause Anna Marie Milano, not named as a defendant

herein, to travel in interstate commerce from Mount

Clemens, Michigan, in the Eastern District of Michigan

to Cleveland, Ohio, and, the said Salvatore Finazzo and

Dominic Joseph Licavoli, would then have an intention

to promote and carry on and facilitate the promotion and

carrying on of an unlawful activity, which said unlawful

activity would be bribery in violation of Title 18, United

States Code, Section 201; and the said Salvatore Finazzo

and Dominic Joseph Licavoli would thereafter promote,

carry on, and facilitate the promotion and carrying on of

the said unlawful activity, which would be bribery in

violation of Title 18, United States Code, Section 201; all

of which would in violation of Title 18, United States

Code, Sections 1952 and 2.

A-47

OVERT ACTS

At the times hereinafter mentioned, the defendants

committed the following overt acts in furtherance of the

Said conspiracy and to effect the objects thereof:

1.) On November 1, 1973, Salvatore Finazzo and

Dominic Joseph Licavoli engaged in a meeting and

conversation with each other.

2.) On October 8, 1973, Salvatore Angelo Lauriceila,

John P. Bobal, and Frank C. Ilacqua met with each other

and with Eugene Saulcy and Charles T. Davis.

All of the above in violation of Title 18, United States

Code, Section 371.

A True Bill

‘si James H. Bailey

Foreman

s/ Ralph B. Guy, Jr.

United States Attorney

Eastern District cf Michigan

is! Robert C. Ozer

Special Attorney

United States Department of Justice

940 Federal Building

Detroit, Michigan 48226

Dated: April 9, 1975

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