# Petition — Finazzo v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 463 U.S. 1210

## Text

Office - Supreme Court, US.)
* FILED

82-1957 Jon's 1903

No.
tS |
CLERK

IN THE

Supreme Court of the United States

——

October Term, 1982

°

SALVATORE FINAZZO,
Petitioner,
v.
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

I

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?

II

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

iv

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.

18
13

No.

IN THE

Supreme Court of the United States

_—-

October Term, 1982

°

SALVATORE FINAZZO,
Petitioner,
v.
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.

2

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.

3

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.

4
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.

5

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

6

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).

7

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.

8
REASONS FOR ALLOWANCE OF THE WRIT

I

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

9

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.

10

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

11

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

12

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.

13

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

14

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.

15

The circumstantial evidence which was introduced
may be summarized as follows:

1)

2)

3)

4)

5)

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

16

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].

17

(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).

18

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).

19

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.

20

Ul

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.

21

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.

22

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.

23

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

24

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.

(c) Investigations of violations under this section
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.

I.

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

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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

A-39

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.

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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

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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

A-45

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1053%3A1. Public record. Not legal advice.