Petition for Writ of Certiorari — Fazzino v. United States

” | irt, U.S

85 = 3 2 4 Tr ‘ “

AUG 19 1989

- lacey F. >PANIOL, SR

"TLERK a

In the Supreme Court of the United States

OCTOBER TERM, 1985

ALEX J. FAZZINO,

Defendant-Appellant- Petitioner,

vs.

UNITED STATES OF AMERICA,

Plaintiff- Appellee.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Norman O. Sanders

1222 McGee Street

Kansas City, Missouri 64106

(Admitted to U.S. Supreme Court on October 29, 1974)

James L. Lyons

1222 McGee Street

Kansas City, Missouri 64106

(Application for admittance applied for)

Attorneys for Petitioner

terre oo

COMES NOW DEFENDANT-APPELLANT,

ALEX J. FAZZINO, AND PETITIONS THE COURT TO

ISSUE ITS WRIT OF CERTIORARI TO THE COURT OF

APPEALS FOR THE EIGHTH CIRCUIT, AND IN SUPPORT

THEREOF, PRESENTS THE FOLLOWING:

QUESTIONS PRESENTED

L WHETHER THE USE, FOR THE PURPOSE

OF OBTAINING EVIDENCE AND TESTIMONY, OF AN

INFORMANT WHO KNOWS HE FACES POSSIBLE

MULTIPLE PROSECUTIONS, BUT WHO HAS RECEIVED

NO INDICATION OF THE LIKELY QUID PRO QUO HE

WILL RECEIVE FOR HIS COOPERATION CONSTITUTED

DE FACTO AN IMPROPER CONTINGENCY AGREE-

MENT AND DEPRIVED THE “TARGET” OF THE

INVESTIGATION DUE PROCESS OF LAW.

IL WHETHER THE USE OF AN INFORMANT

ACTING ON A“DE FACTO CONTINGENCY” BARGAIN

TAINTS A CONVICTION OBTAINED BY THE TESTIMONY

OF ANOTHER, WHEN THE TESTIMONY OF THE KEY

WITNESS WAS ONLY AVAILABLE TO THE

GOVERNMENT BY REASON OF THE ACTIVITY OF

THE “CONTINGENCY INFORMANT”.

TABLE OF CONTENTS

UIE TIE 6 kas 6k. Sawa ccd anuhae dane cnressncuel i

Option of Ge Corewit Cours... ccc cece eseccccccnen 1

Grounds of Jurisdiction of the Supreme Court........... 1

Constitutional Provisions, Statutes and

pe TCC TC eT TTT eT Tere r re 1

Pe I IE ns cic nsncccacaweseveucuscexes sacun 1

ae EES isk sca cacuwendestunaswcyabe 2,3

pt PTT TTT eT ror re eee 4,5

Ts ices 5:05 bs 40.0604555860800 000 6

APPENDIX:

PeMapomnemt and BeNOR. «oo... oc ic cccccscencscnce ns cen 1A

Constitution of the United States, Amendment V........2A

‘pame BB ULB. Ges SE sik s caccccnccececccens 3A,4A

Opinion of the United States Court of Appeals............

PCT Te Sr ae 5A,6A,7A,8A

TABLE OF AUTHORITIES

Constitution of the United States, Amendment V........

eres BR ae Ges a ee bu oe as en kn occ ces |

United States v. Jones, 362 F. Supp. 114 (E.D.P. 1973)......

United States v. Silyg, 180 F. Supp. 557 (S.D.N. Y. 1959) ..

United States v. Waterman, 732 F.2d 1527 (8th Cir. 1984)... a

Williamson v. United States, 311 F.2d 411 (5th Cir. 1962),

CONE, Get. GE TAS, Tle COs vivo so swdacudec dickens tees

OPINION OF THE CIRCUIT COURT

The opinion of the Circuit Court in United States v.

Fazzino, No. 84-2179, was filed June 20, 1985, and published

at 765 F.2d 125 (8th Cir. 1985).

JURISDICTION OF THE

UNITED STATES SUPREME COURT

The Court of Appeals affirmed Petitioner’ s conviction

by an opinion dated June 20, 1985. No petition for rehearing

was filed. Certiorari jurisdiction is in the Supreme Court by

reason of Title 28, U.S. Code, Section 1254.

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES AND RULES INVOLVED

Constitution of the United States, Amendment V

18 U.S.C. Section 1951

(Full texts reproduced in appendix)

STATEMENT OF THE CASE

Petitioner was convicted of one count of extortion in

violation of 18 U.S.C. § 1951 (The “Hobbs Act”) by reason

of demanding and receiving money in return for using his

position as a Representative in the General Assembly of the

State of Missouri to prevent adoption of a bill pending before

the Assembly; and acquitted of one count each of extortion

and of attempted extortion for taking money and attempting

to get money (from another individual) for “killing” bills

pending. He was sentenced to serve four years in prison and

to pay a fine of $10,000.00.

EVIDENCE AT TRIAL

The bills involved were related to fireworks and the

“victims” and principal witnesses, Jerry Wald and James

Meyers, were fireworks dealers(T. 265-267, 484-485). The

earlier of the two bills, House Bill 1078. considered during

the 1982 session (T. 272), would have prohibited sale of

Class “C” (consumer) fireworks, which would have seriously

cut into Wald’s wholesale business (T. 272) and put Meyers’

retail fireworks sales operation out of business (T. 206).

The second of the bills, House Bill 449, considered in

1983, would have allowed continued retail sales of Class “C”

fireworks, but with more stringent regulations and a high

licensing fee (T. 282-283). Wald testified to having paid

Fazzino $3,000.00 each (T. 277, 280, 286), some from his

own funds and some raised from other dealers, to get the bills

killed. Meyers testified to giving Mr. Fazzino $1,800.00 as

payment for having killed the first bill (T. 502). The money

paid by Meyers was supplied by the government (T. 519).

This transaction was the subject of the “attempt” charge.

Both Wald and Meyers were granted immunity from

prosecution in return for testifying against Mr. Fazzino.

Wald’s immunity apparently involved only the money he

allegedly solicited for and paid to Mr. Fazzino (T. 287-289,

295-302). Meyers’ involved other federal crimes uncovered

before the investigation into Fazzino began (T. 495-498).

The effect of the manner in which Meyers “earned” immunity

is the central point of this petition.

EVIDENCE Re JAMES MEYERS

Meyers had been Missouri State President of the

AFL-CIO as well as a fireworks dealer, until losing an election

to one “Duke” McVey, amidst charges of misuse of union

funds (T. 484-485, 202-203). At trial, Meyers and McVey

disagreed as to whether a “Union Trial” substantiated these

charges (T. 486-487, 779-787).

2

An F.B.L “sting” operation obtained evidence that

Meyers cooperated in bogus thefts of a town car belonging to

the union and a truck belonging to his business. The vehicles

apparently went into a “chop shop” operation, and Meyers

turned in false insurance claims (T. 495-498). His contact

with the theft ring was an F.B.I informant (T. 496).

Confronted by the F.B.L, he agreed to cooperate (T. 498).

During discussion of Meyers’ participation in the

ring and possible cooperation with the F.B.L, Mr. Fazzino’s

name came up (T. 396). An F.B.L agent had attempted to

record a conversation in a Jefferson City bar during the

“sting” operation. Meyers was present. The recording was

unintelligible but Mr. Fazzino had been listed as “present

and possibly intercepted” (T. 391, 392). The inquiry about

Fazzino led to Meyers’ asserting that they had discussed the

first fireworks bill, and that Mr. Fazzino had said that it

would take $3,000.00 to kill it (T. 504). It was soon decided

that Meyers’ “cooperation” would involve getting evidence

against Fazzino(T. 396). There was no specific promise as to

whether Meyers would be allowed to plead to a lesser charge,

or completely discharged from prosecution at this time

(August 1982). Meyers was told his charges would not be

discussed again “until it was time to sit down with the United

States Attorney” (T. 423). It was not until July 1983 that it

was decided to give Meyers a ‘complete pass” (T. 481-482).

By this time Meyers had participated in a series of tape-

recorded telephone conversations, with Mr. Fazzino (e.g. Ex

10, 11 and 13) and two conversations with Mr. Fazzino at

Meyers’ house, which were videotaped (Ex. 12, 14). At the

two videotaped meetings, Meyers handed cash, provided by

the government, totaling $1,800.00, to Fazvino.

Meyers had also participated in a series of telephone

conversations with Wald, recorded by Meyers or with his

consent, wherein Wald was led to discuss having paid money

to Fazzino (T. 510). He also agreed to testify in return for

immunity after being confronted with this evidence (T. 287-

289, 295-302).

ARGUMENT

Petitioner contends that each of the questions

presented is a novel issue, and that if the ruling of the Court

of Appeals is allowed to stand, the right of persons accused or

persons under suspicion to Due Process of Law may be

circumvented by the authorities.

I.

Avowedly “contingent” or “bounty” arrangements

between the authorities and informants, wherein the pay or

other consideration to be given depends on the obtaining of

an indictment or conviction of a certain individual or number

of individuals, appear to be rare. At least they have seldom

been discussed in reported cases since they were condemned

in Williamson v. United States, 311 F.2d 441 (5th Cir. 1962),

cert. den. 381 U.S. 950 (1965), wherein the court found

entrapment in violation of the due process clause of the Fifth

Amendment to the Constitution. Where an informer has

been paid on a “piecework” basis according to the nur ber of

deals in which he participates, or is coerced to “get” a

specific defendent by use of his still undetermined State

charges, trial courts have held that the informers were thus

rendered so incredible that the government failed to carry its

burden of proving beyond a reasonable doubt the absence of

entrapment. United States v. Jones, 362 F.Supp. 114

(E.D.P. 1973); United States v. Silva, 180 F.Supp. 557,

(S.D.N.Y. 1959).

A case involving the “penal interest” of the informant

in the Eighth Circuit was United States v. Waterman, 732

F.2d 1527 (8th Cir. 1984). The District Court’s denial of

post-conviction relief was affirmed because the court en banc

was evenly div'.Jed(id, 1955). The reasoning of the divisional

opinion is sound.

The principal conspirator had already entered a

negotiated plea of “guilty”, and then agreed to testify against

his co-defendants. The U.S. attorneys agreed to stand mute

on the informant’s motion under Rule 35, Federal Rules of

Criminal Procedure, for reduction of sentence if he testified,

and to recommend that it be granted if his grand jury

testimony led to an indictment. The divisional opinion found

a great incentive to lie both before the grand jury and at trial

Without an express contingency arrangement, the

government crvated an incentive to lie, as well as to manufacture

evidence on the part of the informant, a de facto contingency

arrangement. Meyers, of dubious basic honesty but possibly

himself a victim of entrapment (the representative of the

“chop shop” operation who suggested he allow the union’s

automobile to be stolen was an F.B.L informant, T. 496). The

F.B.L wanted his “cooperation”, and he stood to be convicted

on at least two federal fraud counts (T. 495-498). He soon

learned the F.B.L had considerable interest in Mr. Fazzino

(T.396), such an interest that they quickly shifted their

investigation from “property crimes” to one “targeted” on

proving Mr. Fazzino corrupt. Without being expressly given a

“contingent” agreement he was told his charges would not be

placed before the United States Attorney. The inescapable

implication of this situation is that the better the “job” done

on Mr. Fazzino, the better the result he would obtain in his

own case. The incentive to lie and to manufacture evidence by

manipulating situations would be great. For example, Mr.

Fazzino insisted the $800.00 and $1,000.00 payments were

part of a “no strings” political contribution (T. 702). The

incentive to manipulate the conversation to make a legitimate

contribution look like a bribe-extortion transaction would be great.

IL

The Opinion of the Court of Appeals insists that

even should the conduct of the government have created a

situation wherein Meyers had too much incentive to lie, the

fact that the only conviction obtained was for the payments

made by Wald, relieved the taint, because the testimony of

Mev ors was unnecessary to establish proof of that count. It is

sub.aitted that this conclusion ignores the facts of the

manner in which it was obtained Wald was confronted with

evidence against him obtained by recording telephone

conversations between him and Meyers. ‘| ..«° same motivation

to “get” Mr. Fazzino could have induced the informant to

further strengthen the case against Mr. Fazzino by “setting

up” Wald in a series of telephone conversations. Unrecorded

conversations could have insinuated into Mr. Wald’s mind

that legitimate political contributions were actually regarded

by Mr. Fazzino as direct peyments for defeat of the fireworks

bills, before Meyers made the recorded calls which gave the

F.B.L the ammunition with which to force Wald to testify.

Only Meyers’ very limited credibility supports the proposition

that this was not done.

CONCLUSION

The testimony of both Meyers and Wald was obtained

by reason of the de facto contingency agreement with

Meyers. The incentive to lie or misrepresent situations this

arrangement gave to Meyers was such that the testimony of

both of these key witnesses was tainted, with violation of the

due process clause of the Fifth Amendment to the United

States Constitution. It is submitted that certiorari should be

granted in order to explore (1) the effect of a “de facto”

contingency agreement on the validity of an informant’s

testimony, and (2) the admissibility vis a vis the due process

clause of testimony obtained, solely as a result of the activity

of the “contingency informant’.

6

Respectfully submitted,

NORMAN 0. SANDERS

JAMES L. LYONS

1222 McGee Street

Kansas City, Missouri 64106

221-3922

ATTORNEYS FOR DEFENDANT-

APPELLANT - PETTTIONER

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above document

was mailed, postage prepaid, this________ day of August,

1985, to:

John Osgood

Asst. United States Attorney

549 U.S. Courthouse

811 Grand Avenue

Kansas City, Missouri 64106

James L. Lyons

In the Supreme Court of the United States

OCTOBER TERM, 1985

ALEX J. FAZZINO,

Defendant-Appellant- Petitioner,

- VS-

UNITED STATES OF AMERICA,

Plaintiff- Appellee.

APPENDIX TO APPELLANT'S PETITION FOR WRIT

OF CERTIORARI

JUDGEMENT AND SENTENCE

This document will be supplied later.

1A

CONSTITUTION OF THE UNITED STATES

Amendment V

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.

2A

TITLE 18 U.S.C. SECTION 1951

§ 1951. Interference with commerce by threats or

violence

(a) Whoever in any way or degree obstructs, delays,

or affects commerce or the movement of any article or

commodity in commerce, by robbery or extortion or attempts

or conspires so to do, or commits or threatens physical

violence to any person or property in furtherance of a plan or

purpose to do anything in violation of this section shall be

fined not more than $10,000.00 or imprisoned not more

than twenty years, or both

(b) As used in this section --

(1)The term “robbery” means the unlawful

taking or obtaining of personal property from

the person or in the presence of another,

against his will, by means of actual or threatened

force, or violence, or fear of injury, immediate

or future, to his person or property, or property

in his custody or possession, or the person or

property of a relative or member of his family or |

of anyone in his company at the time of the

taking or obtaining.

(2) The term “extortion” means the obtaining

of property from another, with his consent,

induced by wrongful use of actual or threatened

force, violence, or fear, or under color of official

right.

(3) The term “commerce” means commerce

within the District of Columbia, or any Territory

or Possession of the United States; all commerce

between any point in a State, Territory, Possession,

or the District of Columbia and any point

3A

outside thereof; all commerce between points

within the same State through any place outside

such State; and all other commerce over which

the United States has jurisdiction.

(c) This section shall not be construed to repeal,

modify or affect section 17 of Title 15, sections

52, 101-115, 151-166 of Title 29 or sections

151-188 of Title 45.

(June 25, 1948, c. 645, 62 Stat. 793.)

4A

a

United States Court of Appeals

FOR THE EIGH1d CIRCUIT

No. 84-2179

United States of America,

Appellee,

Appeal from the United States

v. District Court for the Western

District of Missouri

Alex J. Fazzino,

Appellant.

** &©& © & & & ©

Submitted: June 14, 1985

Filed: June 20, 1985

Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge,

and NICHOL,* District Judge.

PER CURIAM.

Appellant Alex J. Fazzino seeks a reversal of his

conviction for extortion on the ground that his conviction was

obtained in violation of the due process clause. Fazzino

claims that the government's use of James Meyers as an

informant and as a trial witness deprived him of fundamental

due process protected by the United States Constitution.

We disagree and affirm his conviction.

* The HONORABLE FRED J. NICHOL, Senior Judge, United States

District Court for the District of South Dakota, sitting by designation.

5A

Fazzino, a member of the Missouri State Legislature,

was charged by indictment on April 19, 1984, with two counts

of extortion and one count of attempted extortion in violation

of the Hobbs Act, 18 U.S.C. § 1951. The alleged extortions

and attempted extortion involved the request for and payment

of money to Fazzino in return for his assistance in defeating two

nieces of proposed legislation involving the state’s regulation

of the fireworks industry.

A trial was held in July, 1984. The government's case

included, among other things, the testimony of-fames Meyers

who had been cooperating with the government since sometime

in 1982, and videotapes and recordings of conversations and

meetings between Meyers and Fazzino. Both Wald and

Meyers testified that in 1983 they paid money to Fazzino in

exchange for his promise to defeat the pending legislation.

Both of the bills were assigned to a committee which Fazzino

chaired; neither were ever called up for a hearing and

consequently both died at the expiration of the legislative

session.

At trial Fazzino denied ever receiving any money from

Wald prior to 1983 and that amounts he received from Wald

in 1983 and from Meyers were campaign contributions.

Fazzino reported the money as “contributions” in January

1984 after an interview with FBI agents.

The jury convicted Fazzino of extorting $3,000.00 from

Wald during 1983 (count III) and acquitted him of the other

charges. Fazzino was sentenced to four years and a $10,000.00

fine. Fazzino appeals.

6A

On appeal, Fazzino claims that an agreement between

the government and the government's witness, Meyers,

irreparably tainted Meyers trial testimony, depriving Fazzino

of the fair procedures guaranteed by the due process clause

of the fifth amendment. It is Fazzino’s contention that

Meyers, who was under investigation by the FBI for mail

fraud, was cooperating with the government pursuant to a

“de facto contingency agreement” (Appellant's Brief, p. 14),

whereby the outcome of any criminal prosecution against

Meyers would depend upon the quality of evidence he

obtained against Fazzino. The essence of Fazzino’s argument

is that he was denied due process because the government's

agreement with Meyers improperly affected Meyers’ conduct

and, more importantly, Meyers’ trial testimony thereby

hampering the truth-finding function of the jury. Fazzino

relies on the panel opinion in United States v. Waterman, 732

F.2d 1527 (8th Cir. 1984) in which the panel reversed the

district court, holding that a contingency agreement between

the government and the star prosecution witness violated

Waterman’s due process rights. '

We have carefully considered Fazzino’s argument and

based upon our review of the record, conclude that it is

totally without merit. There is no factual basis to support his

allegation of a constitutional violation involving the testimony

of Meyers. Fazzino failed to establish that there was any

contingent agreement between Meyers and the government

and, more importantly, failed to demonstrate how Meyers’

testimony was critical to his conviction for extorting money

from Wald Fazzino was acquitted of attempting to extort

money from Meyers.

7A

In addition, there is no legal basis to support Fazzino’s

argument that can be premised upon United States v.

Waterman, supra Neither the panel opinion nor the en banc

decision in United States v. Waterman, supra, has any

precedential value and even if the panel opinion had prece-

dential value its holdings would not apply under the facts of

this case. See United States v. Daily, 759 F.2d 192, 196-98

(1st Cir. 1985).

Accordingly, we affirm Fazzino’s conviction.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

! This case was considered by the court en banc and the judgement of

the district court denying Waterman's section 2255 motion was affirmed

by an equally divided court. 732 F.2d at 1533.

8A