Petition for Writ of Certiorari — Vario v. United States

, =a ae, ieee - 2k Ae oe. se Me 2 ae

| Othe Suprane One, US. |

7 Ria. FD

‘A =5 74 OCT 5 Wwe4

— | ALEXANDER t. STEVAS,

meeps

In the

Supreme Court of the United States

October Term. 1684

PAUL VARIO,

Petitioner.

-VS-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JOEL WINOGRAD

Attorney for Petitioner

950 Third Avenue

New York, New York 10222

(212) 688-1726

Julia Pamela Heit

Of Counsel

PRINTINGHOUSE PRESS —(212) 719-3120

TABLE OF CONTENTS

Page

Question Presented.......ceeeeeeess

ODINION BElOW. cccccccccccsscccsecs

JUEISGICCION. .cccccccccccccceseces

Statement of the Case....ceeeeeeee

Reasons for Granting the Writ.....

CONCLUSION. .cccccccccccccccccccecs

Appendix A — Opinion......ceseeees

TABLE OF CASES

United States v. Birney,

686 F. 1 (2d Cir. 1982).....

United States v. Robinson,

560 F.2d 507 (2d Cir. 1977)...2..

STATUTES CITED

Title 18 U.S.C. §$37Licwccccccccces

Title 18 U.S.C. § 1001............

Title 18 U.S.C. SQ. ccccccccccccees

Fed. R. BVid. GOS. ccccccccccccccces

Pees. Re BVRs GOST: 0 6 664000 ee0et es

i

2

2

3

21

afe

QUESTION PRESENTED

Whether the Second Circuit's use

of the standard of arbitrariness and

irrationality in reviewing whether the

trial court's admission into evidence

Of prior criminal acts pursuant to

Federal Rules of Evidence 403 was

prejudicial to the defendant is at

direct odds with the due process

demands of the Fifth Amendment of the

Federal Constitution and the Federal

Rules of Evidence 403.

In the

SUPREME COURT OF THE UNITED STATES

October Term 1984

No.

PAUL VARIO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT.

TO: THE HONORABLE, THE CHIEF JUSTICE

OF THE UNITED STATES AND THE

ASSOCIATE JUSTICES OF THE UNITED

STATES SUPREME COURT:

The petitioner, Paul Vario,

respectfuly prays that a writ of

certiorari be issued to review the

judgment and opinion of the United

States Court of Appeals for the Second

Circuit entered on August 16, 1984,

affirming a judgment of the United

States District Court for the Eastern

District of New York, rendered on April

2, 1984, convicting him of conspiring

to make false statements and defrauding

the United States by making false and

providing false, fictitious and

fraudulent representations to- various

agencies of the government charged with

administering the prison and parole

laws, all in violation of Title 18

U.S.C. § 371 and with one substantive

violation of Title 18 U.S.C. §1001 and

2.

OPINION BELOW

The opinion of the Court of

Appeals, which is not reported, appears

in the Appendix hereto.

JURISDICTION

The judgment of the Court of

Appeals for the Second Circuit was

entered on August 16, 1984 and is set

forth in the Appendix hereto.

This Court's jurisdiction is

invoked under 28 U.S.C. §1254(1).

No extension of time within which

to file the instant petition has been

sought.

STATEMENT OF THE CASE

On February 7, 1984, petitioner

proceeded to trial before the Honorable

Joseph M. McLaughlin on an indictment

charging him with conspiring with

Philip Basile and Henry Hill in making

false and fraudulent statements to the

Federal Bureau of Prisons and_ the

United States Parole Commission in

order to effectuate Hill's parole from

his place of incarceration at

Allenwood, Pennsylvania. Petitioner

and Basile were also charged with

violating Title 18 U.S.C. §1001 in that

they caused false and fraudulent

statements to be made to the Federal

Bureau of Prisons and the United States

Parole Commission; namely, that Henry

Hill was employed at a business owned

and operated by Basile whereas in

truth, as Basile, Hill and petitioner

knew, Hill was not in fact employed by

Basile.

The Government's case against

petitioner was premised entirely on the

testimony of Henry Hill, an admitted

long term career criminal, who claimed

that he, along with petitioner and

Basile, conspired to defraud the United

States by knowingly making false

— —_——_— ——-—-

statements to prison and parole

authorities that he was employed by

Basile in order to gain his release

from a Federal prison by first getting

into a work release program at a

halfway house and then by obtaining his

parole.

No doubt aware that a successful

prosecution against petitioner depended

on the jury's acceptance of the

testimony of Henry Hill, a career

criminal of four decades, the

Government, over defense counsel's

vigorous objections, was permitted by

the court to saturate the jury with a

litany of prior heinous crimes comitted

by Hill in conjunction with petitioner.

The Government convinced the _ trial

court that the evidence of the string

of prior crimes was essential to

establish petitioner's motive in

assuring Hill's release from prison so

that the two men could once again

resume their criminal activities. It

was petitioner's position that even

assuming that the evidence of prior

crimes was relevant to demonstrate his

motive to commit the crimes charged,

any conceivable pr. ative value this

evidence might have had was

substantially outweighed by the risk of

unfair prejudice.

Following his conviction,

petitioner in his brief to the United

States Court of Appeals for the Second

Circuit claimed that the trial court's

refusal to exclude the evidence of the

multiple prior crimes attributed to him

sO prejudiced the jury that he was

denied his due precess right to a fair

trial. Instead of weighing whether the

wholesale admission into evidence of

prior crimes violated rudimentary

standards of fundamental fairness

required by the due process clause of

the Federal Constitution, the Second

Circuit invoked the test consisting of

whether the trial court acted

arbitrarily or irrationally in

admitting the prior crimes evidence

against petitioner. It is submitted

that this onerous standard of review

applied by the Second Circuit is not

compatible with the due process demands

of the Federal Constitution.

In order the place the issue in

its proper perspective, it is necessary

to set forth the testimony of Henry

Rill, the sole witness against

petitioner.

HENRY HILL, 40 years old,

testified that he has known petitioner

Vario for approximately 25 years.

(Hill: 179-180). He first started

working for Vario in the late 1950's.

(Hill: 181) It was also during this

period that he became involved in all

types of criminal activities such as

robbery, larceny and gambling. Hill

Claimed that he was then working for

petitioner. (Hill: 182) In 1959, he

entered the United States Army and was

court-martialed twice because he was

absent without leave. While in the

army, he continued to engage in

Criminal activities but was never

apprehended for his crimes. (Hill:

182-184)

Upon leaving the Army in 1963,

Hill returned to Brooklyn where he

NASW bk AIRS tarde ah cake Mee whee ole)

st eT pee ey ae EE Oe ee LY ee ee ee eee y ae as ee tee

again went to work for petitioner Vario

performing different jobs. (Hill:

185) However, still enmeshed in

criminal activities, Hill was convicted

in 1965 of two separate crimes -- petty

larceny and transporting untaxed

cigarettes. During this particular

period, he was also involved in. other

criminal activity with petitioner.

(Hill: 185)*

Hill claimed that he was involved

in robberies, hijackings, assaults,

larceny, and gambling. In furtherance

of his criminal pursuits, he became

involved in 1967 in the Air France

robbery at Kennedy Airport which

* When counsel objected to this line of

testimony, the court overruled’ the

objection and stated that the defense

had a continuing objection. (185)

10

involved a cash theft of approximately

one half million dollars. Following

this robbery, Hill then entered into a

business with petitioner. They

operated a discotheque ramed Tempo

Dance City which was located in the

Canarsie Market of Brooklyn. (Hill:

186-187) In the mid to late 1960's

petitioner introduced Hill to Philip

Basile who owned a discotheque named

Action House on Long [sland. (Hill:

187-188)

In January of 1968, Hill again ran

afoul of the law and was convicted of

assault in Nassau County. Following

his release from jail, he continued

working for petitioner as his driver.

During this period, Hill observed

Basile and petitioner together. The

two men would meet at Geffken's Bar in

ikon) CA a tha belt PPA A IE I AL

ll

Brooklyn, where petitioner conducted

his business. (Hill: 188-190)

Hill next opened up a bar known as

the Suite on Queens Boulevard in 1970.

Petitioner was likewise involved in

this business enterprise. (Hill: 190-

191) In the meantime, Hill added to

his list of crimes when he was

convicted in 1972 of usury and assault

in Nassau County. Hill claimed that

petitioner posted the bail for him both

then and in the sixties. (Hill: 191)

Up to this point, Hill was still

involved in such assorted crimes as

robbery, hijacking, extortion and

gambling. He also played a role in a

murder as he was directed to bury a

body. (Hill: 191-192)

When Hill left the Nassau County

jail in the early 1970's, he continued

12

working for petitioner. (Hill: 192)

However, he was convicted of extortion

in the Federal court in Tampa, Florida,

in 1974 and was sentenced to a ten year

prison term. Even when incarcerated at

Lewisburg Federal Penitentiary, Hill

continued to maintain a relationship

with petitioner who would send him

money. (Hill: 193-194) Imprisonment

did not deter his criminal activities.

Hill continued to commit crimes’ for

which he was never charged. He dealt

in contraband and repeatedly resorted

to bribing prison guards in order to

receive certain favors. (Hill: 194)

In August of 1977, Hill was

transferred from Lewisburg to Allenwood

and still maintained his contact with

petitioner. (Hill: 194) In October of

1977, Hill applied for parole. He had

13

told his caseworker, Mr. Garbo, that he

had a definite offer of employment at a

restaurant on Long Is.and. He conveyed

this information hoping to obtain a

favorable decision from the parole

board. He also made the false

statement on his parole application

that he would have a position as an

assistant manager at a restaurant

should he be granted parole. (Hill:

194-197) When asked if he had any

conversation with petitioner before

making these representations to the

Parole Board, Hill responded that at

the end of 1976, he told a petitioner

that he needed a job so that his parole

application would be considered

favorably. When he mentioned Speaks or

Philly (Basile) out on Long Island,

petitioner said he would speak to him

14

and not worry about it. (Hill: 197)

Petitioner later told Hill that he had

taken care of it and that he would make

Basile put him on the books. (Hill:

198-200)

After his parole application was

granted on the national level, Hill

again spoke with petitioner and told

him that he now needed a job for the

halfway house. Petitioner said that he

would straighten it out with Basile.

Subsequently, petitioner told him that

he would make Basile put him on the

books, meaning that it would be a no-

show or dummy job. (Hill: 198-200)

Following the notification that

his parole date would be effective on

October 8, 1978, Hill applied for a

transfer to a halfway house. (Hill:

203, Gov. Ex. 17) He did not check the

15

job placement assistance on the

application because he already had a

job. (Hill: 203-204) However, he did

check off the work release part of the

form.

While still at Allenwood, Hill

obtained a furlough to go with other

inmates to Atlantic City for a Jaycee

convention. He clandestinely left

Atlantic City and traveled to Brooklyn

where he met petitioner at Geffkens'.

When he asked petitioner if he had

spoken to Basile, petitioner responded

that he had and that everything was

okay. (Hill: 204-205)

On July 12, 1978, Hill was sent to

the Community Treatment Center in New

York City where he was advised of the

rules and regulations of the center.

(Hill: 206) Although he was told that

16

he could not leave the jurisdiction of

New York or Long Island, he flew to

Pittsburgh to pick up some narcotics to

sell on Long Island. (Hill: 208, 229;

A. 59, 80) He also met with a

basketball player from Boston College

to discuss point shaving. (Hill: 208)

When Hill filled out the job

information form (Gov. Ex. 20) for the

halfway house, he set forth Breakout

Management Corp. as his employer and

Philip Basile as his immediate

supervisor. Other than obtaining pay

stubs from Basile, Hill maintained that

he never did any work for him. (Hill:

210-213) Since the people at the

halfway house were informed that he

held this job, he was granted

additional privileges such as

permission to spend weekends away from

17

the center. (Hill: 212)

Hill admitted that even while he

was at the halfway house, he continued

to commit crimes such as_ selling

narcotics, selling guns, and planning

to fix basketball games. (Hill: 214)

He also continued to work for

petitioner while at the halfway house

and after his parole on October 6,

1978. He sold drugs and committed

other crimes. (Hill: 214-215)

However, he was not involved in drug

dealing with petitioner despite the

fact that he told the F.B.I. that

petitioner had been dealing in drugs.

Petitioner had even asked him to stop

selling drugs when Hill told him that

he was engaging in this activity.

(Hill: 249-250)

In the spring of 1980, Hill was

18

arrested on multiple narcotic charges

in Nassau County. Hill was now

confronted with seven different

indictments and was aware that he was

facing a fifteen year to life penalty

on each count. He had been selling

drugs in various communities on Long

Island, Queens, Pennsylvania,

California, and Florida. (Hill: 216,

232-233)

After the charges had been lodged

against him, Hill began cooperating

with the Federal Government. As a

result of his cooperation, he received

immunity and the Nassau County drug

case was dismissed. (Hill: 220) Hill

did not initially tell the government

that petitioner had arranged for him to

obtain a job at Breakout Management.

(Hill: 264) He relayed this

19

information possibly a year and a half

to three years later. (Hill: 265)

When subsequently questioned by the

Government as to why he did not

immediately tell the Federal

authorities about his activities with

Vario, Hill responded that he was

afraid of him. (Hill: 299) He had

also been informed by the F.B.I. that a

contract had been placed on his life.

(Hill: 216, 220)

Over objection, Hill was permitted

to testify on redirect that he did not

ask Basile for a dummy job at the

Breakout Management because he did not

want Basile to refuse him. He asked

petitioner since Basile could not

refuse him. Hill explained that in the

late 1960's petitioner directed him and

a group of people to go to one of

Basile's clubs and break it up. Basile

then began making regular payments of

money to petitioner. During the period

from 1968-1969, Hill, pursuant to

petitioner's directive, went to

Basile's club where he was given

$15,000 by Basile to give to

petitioner. In 1979 or 1980, Hill also

observed Basile give petitioner

$10,000. (Hill: 297-298)*

*It cannot be argued that the jury did

not connect petitioner to the

proliteration of crimes admitted to by

Hill. The Government clearly dispelled

any such doubts in its rebuttal

summation when the jury was informed:

“How about the other crimes, the

robbery, the hijacking, the loan

sharking, the gambling, the

extortion, the wrecking of the

Club? Mr. Vario wants Mr. Hill

out of jail. He wanted him out on

the street to do his bidding and

there is your corroboration,

ladies and gentlemen. He was

succesful. He got him out. Mr.

Zz

REASONS FOR GRANTING THE WRIT

As a general proposition, when the

government seeks to introduce evidence

of uncharged crimes against a

defendant, the prosecution is required

to satisfy a two-pronged test. First,

the proferred evidence must be relevant

to some disputed issue in the trial

[PFed. R. Evid. 404(b)], and second its

probative value must not be

substantially outweighed by the risk of

unfair prejudice. [Fed. R. Evid. 403)

However, in its review of cases raising

Hill was out for thankfully, a

short period of time before he

finally was apprehended." (398)

The Government had already

previously told the jury, "The evidence

was the Henry Hill and Paul Vario had a

relationship for over twenty years;

that Paul Vario was Henry Hill's boss;

that Henry Hill had committed crimes at

the direction of Paul Vario; that Paul

Vario was involved in businesses with

Henry Hill." (354)

this precise issue, the Second Circuit

has steadfastly declined to assess the

prejudicial impact of such evidence on

a defendant's due process right to a

fair trial as mandated by Fed. R. Evid.

403, but has limited its review of such

issues to a summary determination of

whether the trial court acted

"arbitrarily or irrationally" in

admitting the prior crimes into

evidence. United States v. Robinson,

560 F.2d 507, 515 (2d Cir. 1977);

United States v. Birney, 686 F.2d 102,

106 (2d Cir. 1982).

It is submitted that the Second

Circuit's use of the standard of

arbitrariness and irrationality in

reviewing the prejudicial effects of

prior crimes evidence is at direct odds

with the due process demands of the

23

Fifth Amendment of the Federal

Constitution and the Federal Rules of

Evidence 403. The present case

squarely poses the issue concerning

whether the stringent test of

arbitrariness and irrationality is

consistent with the due process demands

of fundamental fairness.

In this case, the Government

convinced the trial court that’ the

evidence of the string of prior crimes

was essential to establish petitioner's

motive in assuring Hill's release from

prison so that the two men could once

again resume their criminal activities.

Hence, over strenuous objection by the

defense, Hill was permitted to relate a

twenty five year prolonged history of

outrageous criminal conduct that

Clearly implicated petitioner. The

crimes admitted by Hill when working

for petitioner ran the gambit from

robberies, larcenies, arsons,

hijacking, loansharking, extortion, the

Kennedy Airport’ theft, the Boston

College pointshaving scheme, to even

murder, when Hill was directed to bury

a body. There can be no question but

that the jury understood that

petitioner was the mastermind behind

these heinous crimes especially since

the Government stressed petitioner's

role in these nefarious crimes in its

rebuttal summation.

Given these circumstances,

petitioner maintained in the Court of

Appeals that this chain of evidence had

to have an adverse and prejudicial

impact upon the “jury. It was

petitioner's position that once exposed

25

to evidence revealing that he was

guilty of a multitude of crimes, the

jury had to be convinced that

petitioner was in fact an evil man and

thus deserved to be convicted of the

crimes charged irrespective of the

quality of the Government's’ proof.

According to petitioner, this

inflammatory evidence so contaminated

the jury's verdict that a fair trial

was thereby rendered impossible.

Instead of assessing the

prejudicial impact of the prior crime

evidence on petitioner's due process

right to a fair trial or whether the

admission of such evidence violated the

fairness requirement under Fed. R.

Evid. 403, the Second Circuit in effect

circumvented the due process issue.

Once the Court of Appeals made the

26

determination that the prior crimes

evidence was relevant to the issue of

motive under Fed. R. Evid. 404 (b),

the Court by relying on its. prior

decision of United States v. Birney,

supra, focused solely on whether the

trial court in admitting this evidence

acted arbitrarily or irrationally. In

applying such a rule for the first time

in United States v. Robinson, supra,

the Second Circuit stated ". . . we are

persuaded the preferable rule is to

uphold the trial judge's exercise of

discretion unless he acts arbitrarily

Or irrationally." United States v.

Robinson, 560 F.2d at 515. See also

United States v. Birney, 686 at 106.

It is submitted that this harsh

test of arbitrariness and irrationality

[a

27

is totally incompatible with the

dictates of the due process clause of

the Federal Constitution. In other

words, by imposing this standard, the

Second Circuit is in effect ruling that

no due process violation can be found

premised on the admission of prior

criminal acts unless the trial court

acted in an irrational manner. Such a

ruling dilutes the due process

requirement of a fair trial. Under the

standards applied by the Second

Circuit, the erroneous admission of

such evidence would not be reviewable

absent a showing of arbitrariness or

irrationality on the part of the trial

court. While the trial court in

admitting such evidence may not have

acted irrationally or even arbitrarily,

the evidence nonetheless may still be

28

so prejudicial that the defendant could

not receive a fair trial.

Here, even assuming that the

evidence of prior crimes was admissible

to establish the issue of petitioner's

motive, Fed. R. Evid. 403 still

mandates that an assessment must then

be made to determine whether its

probative value is substantially

outweighed by the risk of unfair

prejudice. The Second Circuit, while

finding that the prior crimes evidence

was relevant to establish petitioner's

motive, relinquished its obligation to

review the prejudicial effects of such

evidence as mandated by Fed. R. Evid.

403.

In this context, it is critical to

note that no other Circuit uses the

test of irrationality or arbitrariness

29

in determining the prejudicial effects

of such evidence. Not only is such a

standard impossible to establish but

also it is in direct conflict with the

due process requirement of according a

fair trial to the defendant. Because

the evidence of prior crimes was

overwhelming in this case, this case

presents the perfect vehicle for this

Court to review whether the test of

irrationality and arbitrariness is

compatible with the due process clause

of the Fifth Amendment and with Fed. R.

Evid. 403.

Accordingly, we urge that this

Court grant petitioner's application

for a writ of certiorari in order to

resolve this important issue.

30

CONCLUSION

FOR THESE REASONS, A WRIT OF CERTIORARI

SHOULD BE ISSUED TO REVIEW THE JUDGMENT

AND OPINION OF THE COURT OF APPEALS FOR

THE SECOND CIRCUIT.

Respectfully submitted,

JOEL WINOGRAD

Attorney for Petitioner

950 Third Avenue

New York, New York 10222

JULIA PAMEL HEIT

Of Counsel

31

Appendix A

Opinion

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on

the 16th day of August , One Thousand

Nine Hundred and Eighty-four,

PRESENT:

HON. ELLSWORTH A. VAN GRAAFEILAND,

Circuit Judge

HON. RALPH K. WINTER, Circuit

Judge

HON. ALBERT W. COFFRIN, Chief

District Judge

UNITED STATES OF AMERICA,

Appellee,

Vv.

PAUL VARIO,

Defendant-Appellant.

ennaceqsoaseaqeesnequeaaeseneed x-

Paul Vario appeals from a judgment

of conviction of the United States

District Court for the Eastern District

32

of New York (McLaughlin, J.) which

followed a jury's finding that

appellant was guilty of conspiring to

make false statements to the United

States and to defraud the Government,

in violation of U.S.C. 371, and making

false statements to the United States,

in violation of 18 U.S.C. §1001.

Appellant's sole contention is that the

district court erred in permitting the

Government to introduce evidence of

prior crimes which he is alleged to

have committed in conjunction with the

Government's principal witness, Henry

Hill. This contention is without

merit.

Evidence concerning Vario's

criminal association with Hill was

relevant to establishing motive which

33

is a permissible use of other crimes

evidence under Fed. R. Evid. 404(b).

See United States v. Birney, 686 F.2d

102, 106 (2d Cir. 1982); United States

v. Buffalino, 683 F.2d 639, 647 (2d

Cir. 1982), cert. denied, 103 S.Ct. 727

(1983). Because there was no abuse of

discretion by the district court, its

determination that the probative value

of Hill's testimony outweighed its

prejudicial effect requires affirmance.

See United States v. Birney. supra, 686

F.2d at 106. Appellant may not be

heard to complain about his counsel's

tactical decision to refuse the

district court's offer of a limiting

instruction regarding the appropriate

use of the other crimes evidence. See

United States v. Levy, 578 F.2d 896,

900 (2d Cir.1978).

34

Affirmed.

N.B. Since this statement doe snot

constitute a formal opinion of this

court and is net-uniformly available to

all parties, it shall not be reported,

cited or otherwise used in uscelated

cases before this or any otiver court.

Hon. Ellsworth A. Van Graafeiland

Hon. Ralph K. Winter

Hon. Albert W. Coffrin