Opposition Brief — Marotta v. United States

Nos. naw 85-1901, 85-1902 and 85-1949

P+

In the Supreme Court of the Un , Piatedour. WS.

OCTOBER TERM, 1986 FILED

| JUL 17 1986

THOMAS E. MAROTTA, PerriOntt

JOSEPH F. SPANIOL, JR.

Vv. CLERK .

- UNITED STATES OF AMERICA

DONALD J. PAONE, PETITIONER

Vv.

UNITED STATES OF AMERICA

SAMUEL RUSSOTTI, PETITIONER

Vv.

UNITED STATES OF AMERICA

RENE PICCARRETO, PETITIONER

Vv.

UNITED STATES OF AMERICA

RICHARD J. MARINO and JOSEPH R. RossI,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217 ; o\

LET ANNE nee ie an "J

, ~—/

QUESTIONS PRESENTED

1. Whether the government is precluded under the

Double Jeopardy Clause from including a predicate

offense in a Racketeer Influenced and Corrupt Organ-

izations Act (RICO) indictment where that offense

purportedly could have been, but was not, included in

a prior RICO indictment, charging a separate “pat-

tern of racketeering,” on which petitioners were ac-

quitted.

2. Whether a New York rule requiring corrobora-

tion of accomplice testimony must be applied in a

federal RICO prosecution.

3. Whether the admission of co-conspirator state-

ments violated the Confrontation Clause on the ground

that the court of appeals assertedly failed to require

those statements to be independently analyzed for

reliability.

4. Whether petitioner Marotta was denied his

right to conflict-free counsel at trial because his at-

torney, some ten years earlier, had briefly represented

a government witness on an unrelated matter, and

whether the other petitioners were prejudiced by this

purported conflict of interest.

5. Whether the district court properly refused to

allow petitioner Marino to call Marotta’s attorney as

a witness doring trial.

6. Whether the district court correctly refused to

admit the prior testimony of two of the defendants

where the federal government was not a party to, nor

a participant in, the proceedings giving rise to the

testimony.

7. Whether consecutive sentences may be imposed

for conspiracy and substantive violations of the RICO

statute.

(1)

TABLE OF CONTENTS

Page

ee aparstohioniseisicouatnneatasanes

a EE Se

Statement .... a acdalaeisietaeiniliaiieion

EEE, Es ee oe

Se Ee ERE Te ee eC Re 28

TABLE OF AUTHORITIES

Cases:

Albernaz Vv. United States, 450 U.S. 333 -................ 25, 27

Blockburger v. United States, 284 U.S. 299 _....... 25, 26, 27

Callanan v. United States, 364 U.S. 587 .................. 25

Caminetti v. United States, 242 U.S. 470 _.............. 10-11

Chambers V. Mississippi, 410 U.S. 284 _.................. 24, 25

CN ae 17

Krulewitch v. United States, 336 U.S. 440 _.......... 11

McKee v. Harris, 649 F.2d 927, cert. denied, 456

ge ESSE EE ea ae eee ee 19

Cae 7. peewee, 465 US. & W............................... 13

Ottomano v. United States, 468 F.2d 269, cert. de-

EE Ea ee ee ee 14

People v. Fiore, 112 Misc.2d 45, 445 N.Y.S.2d 960.. 12

People v. Monroe, 125 Misc. 2d 550, 480 N.Y.S.2d

EE AE SPOS ET ESSE Senay ae ea NR 12

Theodore v. New Hampshire, 614 F.2d 817 ............ 19

United States v. Agosto, 675 F.2d 965, cert. denied,

a a ne ee 19

United States v. Ammar, 714 F.2d 238, cert. denied,

EGET ae, ROO 15, 16, 17

United States v. Arbalaez, 719 F.2d 1453, cert. de-

REUSE MERLIN ONT TT ORO 15

United States v. Armedo-Sarmiento, 545 F.2d 785,

eS 8 SE: Seamer 23

United States v. Atkins, 618 F.2d 366 _............-........ 24

United States v. Bagaric, 706 F.2d 42, cert. denied,

RGEC ARR SE ee ae ee Tee TR 26

Cases—Continued : Page

United States v. Bates, 600 F.2d 505 -....................... 23

United States v. Benmuhar, 658 F.2d 14, cert. de-

SI I ei ii dante csiisctlesinidhicemennentionis 11

United States v. Bentvena, 319 F.2d 916, cert. de-

SI sini bacrinticiercectermpsincicincntincisennnpiontine 19

United States v. Brown, 555 F.2d 407, cert. denied,

rg, | EVER ERR RR ros oan meee oT 11

United States v. Cagnina, 697 F.2d 915, cert. denied,

I rs a i adits ciiece renee 26

United States v. Calabro, 467 F.2d 973, cert. de-

I I act eciniescliniginininnncmninireiniariiige 19

United States v. Cerone, 452 F.2d 274, cert. denied,

ee Oo ideimemeeiaobenanenenee 11

United States v. Chindawongse, 771 F.2d 840, cert.

denied, No. 85-735 (Jan. 21, 1986) -..................-.- 14

United States v. Corallo, 413 F.2d 1306, cert. de-

a i ER me 11

United States v. Cunningham, 672 F.2d 1064, cert.

I nn sneeetinieseennes 20

United States v. Dack, 747 F.2d 1172 ..............--..---- 22

United States v. Davis, No. 85-2473 (10th Cir.,

rg IRIN SAIC i bode DAE A Sr meet a RCE 27

United States v. DeLuna, 763 F.2d 897, cert. denied,

\ Se - Fe SS Se | eee 15, 16,17

United States v. Feola, 420 U.S. 671 -....................--- 25

United States v. Inadi, No. 84-1580 (Mar. 10,

EE SEE ESI A Aa CAS ee ee 14

United States v. Jeffers, 520 F.2d 1256, cert. denied,

I a es emtninkammnuhen 20

United States v. Johnston, 690 F.2d 638 -_................. 22-23

United States v. Kapnison, 743 F.2d 1450, cert. de-

nied, No. 84-971 (Apr. 15, 1985) -........................ 24

United States v. Kendall, 665 F.2d 126, cert. denied,

I a, pias 14

United States v. Lanci, 669 F.2d 391, cert. denied,

ee a eiente 24

United States v. Licavoli, 725 F.2d 1040, cert. de-

ee 11

United States v. Malatesta, 583 F.2d 748, cert. de-

I I TI I aaa onintsnacnascnacsicoiaencnanieinnicsctionhdias 11

Vv

Cases—Continued : Page

United States v. Mallah, 503 F.2d 971, cert. denied,

I rls CD nn onthtehjacnakieisienlltaricacteaadidiaatieiciiapaccielelic, 16

United States v. Marrone, 746 F.2d 957 .................. 26, 27

United States v. McGrath, 613 F.2d 361, cert. de-

gE AN at 15

United States v. Nardello, 393 U.S. 286 ..........00...... 11

United States v. Nyman, 649 F.2d 208 ........--.. 23

United States v. Pagan, 721 F.2d 24 0000. 15-16

United States v. Partin, 601 F.2d 1000, cert. de-

Ek RFR AR Ce Oe 19-20

United States v. Peacock, 654 F.2d 339, cert. denied

I Tie Ge casa ee. 14

United States v. Perez, 658 F.2d 654 ......00000002. 16, 17

United States v. Perez, 702 F.2d 33, cert. denied,

462 U.S. 1108 .............. slanilapiddcealiniiniance ated aad ae biiclesei 16

United States v. Puco, 476 F.2d 1099, cert. denied,

BE eT sinisehi tec a techpicceheiaeiceat ln dasta AM ia eiis 13

United States v. Qaoud, 777 F.2d 1105

United States v. Revel, 493 F.2d 1, cert. denied,

GE TI caine tis ttaterieisictnntecaen ei ite 11

United States v. Rodriquez, 585 F.2d 1234, cert.

I I I I elicit ce 26

United States v. Rone, 598 F.2d 564, cert. denied,

OEe Ty TR aiiccicwicmataeee hit es, 26

United States v. Shepard, 675 F.2d 977 _........ cet ea 19

United States v. Southland Corp., 760 F.2d 1366,

cert. denied, No. 84-1951 (Oct. 7, 1985) _.......... 16

United States v. Steele, 685 F.2d 793, cert. denied,

I sicihtricicatitrcicetenieen eit ae ee a 11

United States v. Stratton, 779 F.2d 820... 13, 17

United States v. Sutton, 642 F.2d 1001, cert. denied

A I a aad 26, 27

United States v. Torres, 503 F.2d 1120 _........... 23

United States v. Watchmaker, 761 F.2d 1459 _....... 26, 27

United States v. Wright, 588 F.2d 31, cert. denied,

|, re a are hc DM ONE SLE Te 15, 16, 17

United States ex rel. Spurlark v. Wolff, 683 F.2d

TOUTED schiciaincieicinesininscusmaibaceet te GN a a ae ee eae 19

Walberg v. Israel, 766 F.2d 1071, cert. denied, No.

85-331 (Dec. 12, 1985)

Cases—Continued: Page

Wilson v. Mintzes, 733 F.2d 424, vacated, 469 U.S.

926, on remand, 761 F.2d 275 ..................----------+- 20

Constitution, statutes, and rule:

U.S. Const. :

Amend. V (Double Jeopardy Clause) ................. 9,10

Amend. VI (Confrontation Clause) ........ 12, 13, 14, 15,

16, 17, 18

Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. 1961 e¢ seq.:

p fk ©. |. : | nen Meer cee er 10, 11

Be es, BI cacdsikinssneicesssiicieaniignseapoeiacabianiael 2, 25, 27

Be Ee IED Ainiinetta~nececsecticsnsnieiiiiasiipbeseaiaate 2, 25, 27

BEF Fes Be iititinnntincinicninnsscnnncascstinintnaanichnaiaadbandbii 11

Fa BI ei thi a cineeniciins cies seh ievnnnnscaiicinsiincialdsietadiiadaaialgbialiaic li

FE Fe BE ica sseisenntinesinstanincitasenntiviiendaendiiamaaasteiilelaadaas 26

Bik £ Ree SR ees 26

N.Y. Crim. Proc. Law (McKinney 1982) :

Be IID sia caskig asnibasaiassslacdeabaathes meaanalmed aetna 12

SUITE 5s <isnisdapeaebtssanoniacieiagihamcsaiauaill hide 12

Fed. R. Evid. :

) RS BL | a eenneer on Aeon eee S 14, 15

pT tL > | ae: Sapam annem eT Fee 23, 24, 25

Miscellaneous:

D. Louisell & C. Mueller, Federal Evidence (1980) .. 24

ee i

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-1883

THOMAS E. MAROTTA, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 85-1892

DONALD J. PAONE, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 85-1901

SAMUEL RUSSOTTI, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 85-1902

RENE PICCARRETO, PETITIONER

v.

UNITED STATES OF AMERICA

No. 85-1949

RICHARD J. MARINO and JOSEPH R. RossI,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

A1-A17) is reported at 782 F.2d 386. The opinion

of the court of appeals on a prior interlocutory ap-

peal in the same case (85-1902 Pet. App. B1-B18)

is reported at 717 F.2d 27.*

JURISDICTION

and

The judgment of the court of appeals was entere Fekeabin ¢

on February 5, 1986. Petitions for rehearing( we sai

denied on March 19 and 24, 1986 (Pet. App. A20;

85-1892 Pet. App. A23-A24). The petition for a

writ of certiorari in No. 85-1883 was filed on May

15, 1986; the petitions in Nos. 85-1892, 85-1901, and

85-1902 were filed on May 16, 1986; and the petition

in No. 85-1949 was filed on May 23, 1986. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Western District of New York, peti-

tioners were convicted of racketeering and racketeer-

ing conspiracy, in violation of 18 U.S.C. 1962(c) and

(d). Each petitioner was sentenced to 20 years’ im-

prisonment on each of the two counts. Petitioners

Russotti, Piccarreto. Marino, and Rossi received con-

secutive sentences on the two counts, while petitioners

1 Unless otherwise noted, “‘Pet. App.” refers to the appendix

to the petition in No. 85-1883. “Tr.” refers to the trial

transcript.

8

Marotta and Paone received concurrent sentences.’

The court of appeals affirmed (Pet. App. Al-A17).

The evidence at trial, which was presented over

eight weeks and consumed more than 8,000 pages of

transcript, established that between 1971 and 1982

petitioners belonged to an organized crime group in

the Rochester, New York, area that engaged in the

extortion of gambling clubs. To maintain control over

the gambling clubs—and to discipline dissident mem-

bers, combat rival groups, and avoid prosecution—

the members of the group engaged in murder, at-

tempted murder, arson, and obstruction of justice.

In particular, the indictment charged petitioners with

committing, as acts of racketeering, two murders,

three attempted murders, two acts of extortion, an

attempted arson, and three obstructions of justice.

The evidence showed that in February 1971, Angelo

Monachino and Vincent Massaro were inducted into

a criminal organization known as the “mafia” or “La

Cosa Nostra” in a ceremony at the home of Frank

Valenti, the boss of the organization (Tr. 898-904,

913-915, 920). Thereafter, in 1972, Valenti was de-

posed and petitioner Russotti became the boss (Tr.

927-930). At the same time, Sam Gingello became

the underboss, petitioner Piccarreto became the coun-

selor, and petitioners Marino and Marotta became

captains (Tr. 927). Under Russotti’s direction,

Marino was assigned to supervise Monachino,

Massaro, Spike Lanovara, and Eugene DiF rancesco

(Tr. 932). During the years following Russotti’s

accession to leadership, new recruits were admitted

2 Three co-defendants, Joseph J. Trieste, Joseph L. LaDolce,

and John M. Trivigno, were acquitted at trial. Co-defendant

Anthony M. Colombo was convicted at trial, but he has not

petitioned for certiorari.

4

into the organization, including John Fiorino, Thomas

Didio, and petitioners Paone and Rossi (Tr. 934-937).

In November of 1973, Eugene DiFrancesco advised

Monachino that Piccarreto had ordered him to “hit”

Vincent Massaro. Massaro, DiFrancesco reported,

had disobeyed the leadership and complained about

not being paid (Tr. 938-940, 947). DiFrancesco

asked Monachino to help him carry out the “hit”

(Tr. 940). When Monachino and DiFrancesco failed

to execute Massaro promptly, Piccarreto met with

Russotti, Marino, Gingello, and Monachino, and di-

rected Monachino to take charge of the project per-

sonally (Tr. 948-952). Marino suggested that the

murder be committed at Monachino’s place of busi-

ness (Tr. 953).

Following orders, Monachino, DiFrancesco, and

Lanovara lured Massaro to Monachino’s office; there,

DiF rancesco shot Massaro in the back of the head and

killed him (Tr. 964-965, 967-968). Monachino,

DiFrancesco, and Lanovara then put Massaro’s body

in the trunk of his car, where it was later discovered

(Tr. 975). Monachino and DiFrancesco thereafter

told Marino that the job was done. Marino congratu-

lated them (Tr. 981-982).’

In 1973, Thomas Pelusio obtained permission from

petitioner Marotta to open an illegal gambling club

in Rochester (Tr. 4159-4160, 4165). Although

Marotta provided no services to the club, Pelusio paid

Marotta a weekly fee for permission to operate (Tr.

4163-4164). During the following years, Pelusio,

again after obtaining permission from Marotta or

another organization member, opened several other

* The murder of Vincent Massaro formed the basis for the

first racketeering act, charging solicitation and conspiracy to

murder Massaro.

gambling clubs in Rochester. In each instance, he

made regular payments to Marotta, Didio, or Paone

(Tr. 4169-4186). Pelusio understood that if he did

not make his weekly payments to the members of the

organization, his clubs would not be allowed to op-

erate (Tr. 4182).

In 1976 and 1977, Gingello and petitioners Russotti,

Piccarreto, Marino, and Marotta were tried and con-

victed in state court for the murder of Vincent

Massaro (Tr. 6535, 6782). They were imprisoned in

early 1977 (Tr. 4190, 6782). Because of his incarcer-

ation, Gingello chose Didio to assume his position in

the organization (Tr. 4185-4186). During this period

of imprisonment, however, because of dissatisfaction

with the performance of Didio and his associates, a

rift developed within the organization (Tr. 4191).

Eventually, a faction led by Didio was expelled from

the organization, and two rival factions vied for con-

trol of the gambling clubs (Tr. 2731-2734, 2738-

2739).

In the fall of 1977, the defendants in the Massaro

murder case were released from prison because it

was discovered that local law enforcement officers had

testified falsely at their trial (Tr. 2723, 2738, 2743-

2746, 6535). Gingello’s release, and his resumption

of a leadership role in the organization, precipitated

further violence between the two competing factions.

In April 1978, a car bomb killed Gingello (Tr. 1687,

2755). The remaining members of Gingello’s faction,

which included the six petitioners and their associates

Anthony Oliveri and John Fiorino, made plans to pur-

sue those they deemed responsible for Gingello’s mur-

der, including Didio, Dominic Celestino, and Rosario

Chirico (Tr. 2756-2758, 2767-2769, 2770, 2823-2824,

3553-3556, 4209-4211, 5882).

aes |

During May 1978, in furtherance of this revenge

scheme, Rossi told Oliveri to follow Chirico in order

to determine if there was any way to “get at him”

(Tr. 2779). Oliveri thereafter recruited co-defendant

Anthony Colombo to shoot Chirico in a wooded area

between Chirico’s home and his place of business

(Tr. 2787-2795). Rossi provided Oliveri with a rifle

and a motorcycle driver to assist in his escape (Tr.

2796-2798). On May 25, 1978, Colombo shot at

Chirico but only wounded him (Tr. 2806, 6548).

When Rossi learned that Chirico had been hit, he

commented that “at least we got that much done”

(Tr. 2806).*

Rossi next directed Oliveri to kill Celestino (Tr.

2813-2814). On June 18, Colombo, Rossi, and Oliveri

lay in wait near Celestino’s home (Tr. 2815-2816).

Their murder attempt failed, however, because Celes-

tino had been arrested earlier that day (Tr. 2816-

2818).°

Following the attempt to shoot Celestino, Rossi told

Oliveri to try to kill Didio, the leader of the rival fac-

tion. Fiorino and Paone were also assigned to find

Didio (Tr. 2830-2832, 2836-2837). On July 5, 1978,

Rossi, Colombo, and Oliveri drove to a motel in the

Rochester area where Didio’s girlfriend had been seen

(Tr. 2852-2853). After the girlfriend departed,

Colombo fired a machine gun into the room she had

left, killing Didio (Tr. 2857-2863, 6429-6430).

* The attempted murder of Rosario Chirico formed the basis

for the second racketeering act, charging solicitation, con-

spiracy, and attempt to murder Chirico.

* The attempted murder of Dominic Celestino formed the

basis for the third racketeering act, charging solicitation,

conspiracy, and attempt to murder Celestino.

7

Oliveri, Colombo, and Rossi then sped from the scene.

After the men abandoned their weapons and car,

Marotta picked them up. Rossi reported, “I think we

got him,” and Marotta responded, “good” (Tr. 2864-

2867).°

Following the murder of Didio, Rossi directed

Oliveri to burn down the automotive body shop owned

by Chirico in order to force him to leave town (Tr.

2883)." Oliveri and an associate unsuccessfully at-

tempted to carry out this order, using gasoline and

an incendiary device known as a “molotov cocktail”

(Tr. 2884, 5598-5607, 5645).

At the same time that the revenge plots were being

executed, Rossi and Oliveri assumed responsibility for

collecting the ongoing payments from the gambling

clubs (Tr. 2739, 2771-2776, 4200). Rossi would take

the money to Russotti, Oliveri and Paone (Tr. 2776-

2778). After Thomas Torpey, who owned one of the

clubs, stopped making his weekly payments, he was

visited by members of the organization, first by Pic-

carreto and Marino, and later by Russotti and Piccar-

retto. Russotti told Torpey, “You’ve got something

going on in this town. I want a piece of it” (Tr.

4955). Finally, John Fiorino threatened to close the

club because Torpey was not paying (Tr. 4976-4978).

Fiorino threatened Torpey, “You know, you’re no su-

*On a later occasion, Paone said he was surprised that it

only took one bullet to kill Didio. He added that he was also

surprised that with all the bullets that were fired, only one had

hit Didio (Tr. 4215). The murder of Thomas Didio formed

the basis for the fourth racketeering act, charging solicitation,

conspiracy, and the murder of Didio.

7 Russotti had earlier tried to obtain some dynamite for the

same purpose (Tr. 5884-5890).

Lee

8

perman. You can bleed and die like anybody else”

(ibid.).*

In January 1979, Angelo DiMarco, an owner of one

of the clubs making payments to Rossi, was sub-

poenaed to appear before a federal grand jury (Tr.

1688-1697, 1691-1693, 1726, 2775-2776). When he

appeared, DiMarco described to the grand jury how

he had given envelopes of cash to an employee every

week for delivery to Rossi (Tr. 1728). Shortly there-

after, Rossi directed Anthony Oliveri to kill DiMarco,

and he provided the weapons and a car for the mur-

der (Tr. 2900, 2904, 2907). As Oliveri and Colombo

waited near DiMarco’s house, armed with a shotgun

and pistol, a police car approached them and the two

men were arrested (Tr. 2909, 2916).°

Vincent Rallo, an insurance broker, had arranged

on Marino’s behalf to register and insure in the

names of fictitious persons the cars that were used in

the murder of Thomas Didio and the attempted mur-

der of Angelo DiMarco (Tr. 5892-5907, 5921-5934).

After Oliveri and Colombo were arrested in one of

those cars, Rallo told Marino that he was afraid the

car would be traced to him (Tr. 5934). When Rallo

was subsequently subpoenaed to appear before a fed-

eral grand jury, Marino told him to testify falsely

by inventing descriptions of the fictitious persons in

whose names the cars had been registered (Tr. 5936).

* Extortions from two of the clubs formed the basis of the

eighth and ninth racketeering acts, each charging the con-

spiracy, attempt, and actual commission of a federal extortion

offense.

* The attempted murder of DiMarco and the related obstruc-

tion of justice formed the basis for the fifth and sixth rack-

eteering acts, charging the state offenses of solicitation, con-

spiracy, and attempted murder of DiMarco, and the federal

offense of obstruction of justice.

9

Early in 1981, Rallo decided to cooperate with the

government. In that capacity, he tape-recorded three

discussions he had with Marino regarding the prog-

ress of the government’s investigation. In the course

of those discussions, Marino gave Rallo instructions

about how to testify before the grand jury (Tr.

5938). The recordings of those discussions were

played for the jury at trial (Tr. 5955, 5974, 5977).

ARGUMENT

1. Petitioners Piccarreto and Marino renew their

contention (85-1902 Pet. 6-13; 85-1949 Pet. 18-25)—

previously raised and rejected by the court of appeals

in an interlocutory appeal (85-1902 Pet. App. B1-

B18)—that the Double Jeopardy Clause precluded

the government from including the 1973 Massaro

homicide as a racketeering predicate in this indict-

ment. The Massaro homicide should not have been

included, they argue, because that crime could have

been charged as a predicate act in a 1976 racketeer-

ing indictment on which petitioners were acquitted.

In rejecting this argument once before, the court of

appeals held that the two indictments charged two

distinct patterns of racketeering: the earlier indict-

ment had charged an arson-for-insurance scheme,

while the present one charged a pattern of extortion.

85-1902 Pet. App. B10-B16. The Massaro murder,

the court of appeals noted, was charged “as one of

several unlawful acts designed to maintain control

over the enterprise’s membership in furtherance of

its extortion scheme—a scheme which had no rela-

tionship to the 1976 arson-for-hire activity” (85-

1902 Pet. App. B15-B16 (emphasis in original) ). Be-

1 The obstruction of justice with regard to Vincent Rallo

formed the basis for the seventh racketeering act, charging

the federal offense of obstruction of justice.

10

cause the two indictments could be separately prose-

cuted without offending the Double Jeopardy Clause,

and because the Massaro murder was properly

charged as part of the pattern of racketeering ac-

tivity alleged in the second indictment, the govern-

ment was not barred from including that offense as

a predicate act in this case.

Following the court of appeals’ earlier rejection of

their double jeopardy claim, petitioners sought cer-

tiorari and made the same arguments they are mak-

ing now. We argued in our brief in opposition to

certiorari (Nos. 83-696 and 83-713) that the de-

cision of the court of appeals was correct, and this

Court denied review. In the present case, the court

of appeals once again rejected petitioners’ arguments

(Pet. App. A16). Nothing has changed that would

warrant further review of this issue at this time.

We therefore rely on our previous submission in op-

posing this claim.”

2. Petitioners Marino and Rossi assert (85-1949

Pet. 3-8) that the definitional section of the Racketeer

Influenced and Corrupt Organizations Act (RICO),

18 U.S.C. 1961(1), incorporates state procedural pro-

visions—in this case, the New York rule requiring

that the testimony of accomplice witnesses be corrobo-

rated. Because the district court purportedly failed

to require corroboration in this case, petitioners con-

tend that the six predicate acts involving murder or

attempted murder did not qualify as acts of “racke-

teering activity” within the meaning of Section

1961(1).” The court of appeals rejected that argu-

11 We are providing petitioners with copies of our brief in

opposition in Nos. 83-696 and 83-713.

12 It is well established that under federal law a conviction

can properly rest on the uncorroborated testimony of an ac-

complice. See Caminetti vy. United States, 242 U.S. 470, 495

11

ment, as has every other circuit that has considered

it.

The courts of appeals have uniformly held that the

reference in Section 1961(1) to crimes “chargeable

under State law” is intended “simply to define the

wrongful conduct, and not to incorporate state pro-

cedural law.” United States v. Licavoli, 725 F.2d

1040, 1047 (6th Cir.), cert. denied, 467 U.S. 1252

(1984). The courts have consistently refused to in-

corporate state procedural rules such as the require-

ment that accomplice testimony be corroborated, see

United States v. Brown, 555 F.2d 407, 418 n.22 (5th

Cir. 1977), cert. denied, 435 U.S. 904 (1978); the

law of merger, see United States vy. Licavoli, 725

F.2d at 1046-1047; state speedy trial rules, see

United States v. Malatesta, 583 F.2d 748, 758 (5th

Cir. 1978), cert. denied, 440 U.S. 962 (1979); and

state statutes of limitations, see United States v.

Brown, 555 F.2d at 418 n.22.% See generally United

States v. Nardello, 393 U.S. 286 (1969) (reference in

Travel Act to state “extortion” statutes encompasses

any conduct that would generally be classified as ex-

(1917) ; Krulewitch v. United States, 336 U.S. 440, 454 (1949)

(Jackson, J., concurring).

18 The same principle appiies to other federal statutes that

incorporate state criminal charges for definitional purposes.

See United States v. Steele, 685 F.2d 793, 807 (3d Cir.), cert.

denied, 459 U.S. 908 (1982) (18 U.S.C. 1952) ; United States

v. Benmuhar, 658 F.2d 14, 18 (1st Cir. 1981), cert. denied,

457 U.S. 1117 (1982) (18 U.S.C. 1952); United States v.

Cerone, 452 F.2d 274, 286-287 (7th Cir. 1971), cert. denied,

405 U.S. 964 (1972) (18 U.S.C. 1952); United States v.

Corallo, 413 F.2d 1306, 1322-1323 (2d Cir.), cert. denied, 396

U.S. 958 (1969) (18 U.S.C. 1952); United States v. Revel,

493 F.2d 1, 2-3 (5th Cir. 1974), cert. denied, 421 U.S. 909

(1975) (18 U.S.C. 1955).

12

tortionate, regardless of the label given to the con-

duct by state law).

8. Petitioners Paone, Marino, and Rossi challenge

(85-1892 Pet. 9-18; 85-1949 Pet. 15-18) the admis-

sion of certain co-conspirator declarations. They

argue that under the Confrontation Clause a trial

court may not admit co-conspirator declarations un-

less it first finds that they contain special “indicia of

reliability.” The short answer to this claim is that

the court of appeals employed precisely the analysis

urged by petitioners; the court simply reached a

result with which petitioners disagree. Because

petitioners have already had the benefit of the con-

stitutional rule they propose, their claim reduces to

the fact-bound contention that the court of appeals

misapplied that rule in this case.

a. In rejecting petitioners’ claim, the court of ap-

peals based its analysis on the court’s earlier decision

14 Petitioners’ argument, taken to its logical limits, would

significantly impair the effectiveness of the RICO statute.

For example, New York grand jury law—in addition to the

rule requiring corroboration of accomplices—prohibits the

use of hearsay, see N.Y. Crim. Proc. Law § 190.30 (McKinney

1982), and the government’s impeachment of witnesses it has

called before the grand jury, see People v. Fiore, 112 Misc. 2d

45, 48, 445 N.Y.S.2d 960, 961-962 (Nassau County Ct. 1981).

Every grand jury witness, moreover, is automatically entitled

to immunity, see N.Y. Crim. Proc. Law § 190.40 (McKinney

1982), and the government may seek an indictment only

where there is sufficient evidence to convict at trial, see People

v. Monroe, 125 Misc. 2d 550, 480 N.Y.S.2d 259 (Sup. Ct.

1984). If, as petitioners suggest, the RICO statute adopts

state procedural rules, the effectiveness and uniform applica-

tion of the statute would be substantially undermined because

of the wide assortment of applicable state procedural rules

that would govern the conduct of federal grand jury and trial

proceedings.

13

in United States v. Puco, 476 F.2d 1099, 1107 (2d

Cir.), cert. denied, 414 U.S. 844 (1973). As in Puco,

the court of appeals in this case held that when a co-

conspirator’s out-of-court statement is offered into

evidence, the trial judge must determine whether the

statement bears “ ‘sufficient indicia of reliability to

assure the trier of fact an adequate basis for evaluat-

ing the truth of the declaration in the absence of any

cross-examination’” (Pet. App. A7 (quoting Puco,

476 F.2d at 1107)). The court further noted that it

had previously recognized that “‘a higher standard

of reliability is imposed if the hearsay statements are

“crucial” to the Government’s case.’” Ibid. (quoting

United States v. Stratton, 779 F.2d 820, 830 (2d Cir.

1985) ). Nonetheless, the court observed, only rarely

will a statement otherwise admissible under the hear-

say rules fail to contain the indicia of reliability re-

quired by the Confrontation Clause. Because of the

nature of the statements at issue in this case, the

court held, no detailed reliability analysis was re-

quired (Pet. App. A7).

Contrary to petitioners’ assertion, this Court’s de-

cision in Ohio v. Roberts, 448 U.S. 56 (1980), does

not require a different result. In Roberts, this Court

rejected a Confrontation Clause challenge to the ad-

mission at trial of testimony that had been given at

a preliminary hearing. The Court stated (448 U.S.

at 65-66) that the Confrontation Clause requires that

out-of-court statements offered at trial must ordi-

narily be shown to be reliable. Significantly, how-

ever, the Court added that “[r]Jeliability can be in-

ferred without more in a case where the evidence falls

within a firmly rooted hearsay exception.” Jd. at 66.

Because the rule governing co-conspirator statements

is just such a firmly rooted hearsay exception, we

submit that Roberts supports the view that the Con-

14

frontation Clause does not require a separate inquiry

into the reliability of statements that are found to

satisfy the traditional co-conspirator declaration rule,

see Fed. R. Evid. 801(d) (2) (E).”

To be sure, there is a conflict among the circuits

on the question whether the Confrontation Clause re-

quires a further “reliability review” beyond the re-

liability judgment assured by the requirements of

Rule 801(d)(2)(E). Several circuits do not require

a further examination of a statement’s reliability,

once that statement has been found to satisfy the co-

conspirator declaration rule. See United States v.

Chindawongse, 771 F.2d 840, 845-847 (4th Cir.

1985), cert. denied, No. 85-7385 (Jan. 21, 1986);

United States v. Kendall, 665 F.2d 126, 133 (7th

Cir. 1981), cert. denied, 455 U.S. 1021 (1982);

United States v. Peacock, 654 F.2d 339, 349 (5th

Cir. 1981), cert. denied, 464 U.S. 965 (1983); Otto-

mano v. United States, 468 F.2d 269, 273 (1st Cir.

1972), cert. denied, 409 U.S. 1128 (1973). Other

courts, including the Second Circuit, require a sepa-

rate reliability analysis under the Confrontation

15 Much of what this Court said about co-conspirator decla-

rations in United States v. Inadi, No. 84-1580 (Mar. 10, 1986),

underscores this point. There, the Court refused to apply to

co-conspirator statements a rule, applicable to prior testimony,

requiring a preliminary determination of the declarant’s un-

availability. While expressly declining to decide whether trial

courts must subject such statements to an independent reli-

ability test (slip op. 4 n.3), the Court took special account of

the “evidentiary significance of statements made when the

conspiracy was operating in full force” (id. at 8). In light of

these special features, the Court chose “to affirm the validity

of the use of co-conspirator statements” and “decline[d] to

require a showing of the declarant’s unavailability as a pre-

requisite to their admission” (id. at 12-13).

15

Clause, even after the statements have passed muster

under the rules of evidence. See, e.g., United States

v. DeLuna, 763 F.2d 897, 909-911 (8th Cir. 1985),

cert. denied, No. 85-423 (Nov. 12, 1985); United

States vy. Arbalaez, 719 F.2d 1453, 1459-1460 (9th

Cir. 1983), cert. denied, 467 U.S. 1255 (1984);

United States v. Ammar, 714 F.2d 288, 256-257 (3d

Cir.), cert. denied, 464 U.S. 936 (1983). As a prac-

tical matter, however, this difference in approach has

proved to be of little significance: there apparently

has never been a case in which a court of appeals has

excluded a co-conspirator’s statement under the Con-

frontation Clause after finding that the statement

satisfied Rule 801(d)(2)(E). For that reason, the

conflict among the circuits on this issue is not one

that warrants this Court’s attention. In any event,

the Second Circuit is one of the courts that requires

an independent reliability review under the Confron-

tation Clause. Petitioners had the benefit of the more

generous standard in this case, so review by this

Court is particularly inappropriate here.

b. Under the reliability analysis urged by peti-

tioners—and applied by the court of appeals in this

case—it is clear that the co-conspirator statements

in this case were correctly admitted at trial. First,

almost all the statements related to contemporaneous

events. There was therefore no risk of inaccuracy

stemming from faulty recollection on the part of the

declarants. See United States v. McGrath, 613 F.2d

361, 368 (2d Cir. 1979), cert. denied, 446 U.S. 967

(1980) ; United States v. Wright, 588 F.2d 31, 37-39

(2d Cir. 1978), cert. denied, 440 U.S. 917 (1979).

Second, the statements were virtually all against

the penal interest of the declarants. Again, this fac-

tor decreased the likelihood that the statements would

be false or mistaken. See United States v. Pagan,

16

721 F.2d 24, 31 (2d Cir. 1983); United States v.

Perez, 702 F.2d 88, 87 (2d Cir.), cert. denied, 462

U.S. 1108 (1983) ; United States v. Perez, 658 F.2d

654, 662 (9th Cir. 1981).

Third, contrary to Paone’s assertion (85-1892 Pet.

14), the declarants in this case had no apparent mo-

tive to dissemble; most of the statements were made

among the co-conspirators at a time when they knew

each other to be members of the conspiracy. See United

States v. Mallah, 503 F.2d 971, 980 (2d Cir. 1974),

cert. denied, 420 U.S. 995 (1975). Moreover, most

of the statements were made while the declarants

were reacting to, planning, or carrying out signifi-

cant events in the operation of the enterprise. It was

therefore most unlikely that the co-conspirators would

have intentionally misreported those important events

to their associates. See United States v. DeLuna, 763

F.2d at 910 & n.3; United States v. Southland Corp.,

760 F.2d 1866, 1877 (2d Cir.), cert. denied, No. 84-

1951 (Oct. 7, 1985); United States v. Ammar, 714

F.2d 256-257 & n.16; United States v. Wright, 588

F.2d at 37-38."

Finally, the co-conspirators’ declarations in this

case were well corroborated by the test?mony of the

principal government witnesses and by other evidence.

16 Tn attacking the reliability of the co-conspirator declara-

tions, Paone (85-1892 Pet. 4-8, 17-18) has erroneously focused

on the motivations of the witnesses at trial to lie in recounting

those declarations. The probity or lack of probity of the wit-

nesses who reported the declarations, however, has little to do

with the admissibility of the declarations themselves under

the Confrontation Clause, since the trial witnesses were avail-

able to be cross-examined on the accuracy of their reports.

It is the declarants’ motivations that are important; and in

this case there is no basis to believe that the declarants had

any motivation to dissemble at the time they made the state-

ments.

17

See United States v. DeLuna, 763 F.2d at 910-911;

United States v. Ammar, 714 F.2d at 256-257; United

States v. Wright, 588 F.2d at 38. The bulk of the

government’s case was based on the first-hand obser-

vations of witnesses Oliveri, Monachino, Pelusio,

Rallo, and gambling club operator Thomas DiGiulio.

Their testimony was extensively corroborated with

respect to particular events by physical evidence and

by police surveillance evidence.” In sum, because the

court of appeals applied the same reliability test that

is urged by petitioners, and because, after applying

that test to the lengthy and complex factual record

in this case, the court of appeals found the statements

to be admissible, this issue does not warrant further

review.

4. Petitioner Marotta contends (85-1883 Pet. 16-

18) that he was denied his right to conflict-free coun-

sel when the district court refused to grant him a

severance or a continuance so that he could discharge

To the extent that Confrontation Clause analysis must

also include consideration whether the statements are “crucial”

to the prosecution or “devastating” to the defense (see Dutton

v. Evans, 400 U.S. 74 (1970)), as petitioners also suggest

(85-1892 Pet. 18-21; 85-1949 Pet. 17-18), the statements in

this case were neither. The co-conspirator declarations did

fill in certain details about which the government witnesses

did not have first-hand knowledge. But because of the sub-

stantial additional evidence inculpating the defendants, and

the extensive corroboration of the testimony of the principal

witnesses, the co-conspirator declarations played a relatively

limited independent role in inculpating the defendants. See

United States v. Perez, 658 F.2d at 662. The court of appeals

was therefore correct in concluding that this was not a case

calling for the application of the Second Circuit rule that

imposes a higher standard of reliability when the hearsay

statements are “crucial” to the government’s case (Pet. App.

A7, quoting United States v. Stratton, 779 F.2d 820, 830 (2d

Cir. 1985) ).

18

his attorney and substitute new counsel during the

trial. Building on this claim, petitioners Marino and

Rossi assert (85-1949 Pet. 11-13) that the other de-

fendants were prejudiced by the continued involve-

ment of Marotta’s lawyer in the case. These argu-

ments are meritless.

a. During his cross-examination, government wit-

ness Angelo Monachino disclosed that when he was

arrested in 1975 on unrelated charges, attorney Rich-

ard Miller, who represented Marotta in this trial, had

sought to obtain bail for him. At a bench confer-

ence, Miller explained that he had shared an office

with Monachino’s lawyer at that time, and that on

several occasions between February and June 1975

he had assisted Monachino’s lawyer in representing

Monachino on the pending charges, all of which were

unrelated to the charges involved in this case. Miller

added that he had not represented Monachino on any

matter since 1975 (Tr. 1000-1002).

At that point, Marotta requested that Miller be

discharged as his attorney, and he asked for permis-

sion to retain new counsel (Tr. 1018). The court

then held a lengthy colloquy with Monachino, in

which Monachino agreed cw waive his attorney-client

privilege with regard to any disclosures he may have

made to Miller in the course of that representation

(Tr. 1038-1052; see also Tr. 1112-1113). Following

that colloquy, the district court declined to grant

Miller leave to withdraw from the case.

The court of appeals correct'y held that the district

court’s action did not abridge Marotta’s Sixth Amend-

ment rights. First, the court noted that a criminal

defendant does noi have an unfettered right to sub-

stitute new counsel, particularly after trial has com-

menced, when such a step will require a severance, a

19

delay in the trial, or some other disruption in the

proceeding. See United States ex rel. Spurlark v.

Wolff, 683 F.2d 216, 219-220 (7th Cir. 1982) ; McKee

v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. de-

nied, 456 U.S. 917 (1982); United States v. Calabro,

467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410

U.S. 926 (1973). Certain restraints must be placed on

the reassignment of counsel lest the right be “ ‘manip-

ulated so as to obstruct the orderly procedure in the

courts or to interfere with the fair administration of

justice.” McKee vy. Harris, 649 F.2d at 931 (quot-

ing United States vy. Bentvena, 319 F.2d 916, 936 (2d

Cir.), cert. denied, 375 U.S. 940 (1963)). In this

case, to have permitted Marotta to change counsel

would have required either a lengthy postponement in

the trial or, more likely, a severance and a separate

trial for Marotta alone. In these circumstances, it

was perfectly proper for the court to deny the request

for substitution of counsel.

Moreover, as the court of appeals correctly held,

Miller’s purported conflict of interest was highly at-

tenuated. Miller’s representation of Monachino had

occurred ten years earlier, it was extremely limited in

nature, and it was unrelated to any of the present

charges. In addition, Monachino expressly waived

any attorney-client privilege he had, which author-

ized Miller to use, on Marotta’s behalf, any informa-

tion he may have secured during the prior representa-

tion. Under these circumstances, Marotta could not

have been prejudiced by Miller’s prior representation

of Monachino. See United States v. Agosto, 675 F.2d

965, 972 (8th Cir.), cert. denied, 459 U.S. 834

(1982); United States v. Shepard, 675 F.2d 977, 980

(8th Cir. 1982); Theodore v. New Hampshire, 614

F.2d 817 (1st Cir. 1980); United States v. Partin,

601 F.2d 1000, 1009 (9th Cir. 1979), cert. denied,

20

446 U.S. 964 (1980); United States v. Jeffers, 520

F.2d 1256, 1265 (7th Cir. 1975), cert. denied, 423

U.S. 1066 (1976); see generally United States v.

Cunningham, 672 F.2d 1064, 1072 (2d Cir. 1982)

(“we are aware of [no case] in which an attorney

has been disqualified on grounds of conflicting prior

representation solely at the behest of a person other

than the former client or its privy”), cert. denied,

466 U.S. 951 (1984). Finally, the district court care-

fully informed the jury of the insubstantial nature

of the prior representation and advised the jurors

that they were to draw no adverse inferences from

that representation (Pet. App. Al0; Tr. 1114-1116).

The court of appeals correctly concluded that in view

of the detailed instruction to the jury, Monachino’s

waiver of the attorney-client privilege, and the ab-

sence of any showing of prejudice to Marotta,” no

substitution of counsel was necessary.”

% Marotta complains (85-1883 Pet. 12-15) that as a result

of his inability to obtain substitute counsel, he was unfairly

bound by the stipulations entered into by other counsel, to

which he did not agree. That is incorrect. In fact, Marotta

signed certain of the stipulations and declined to sign others.

The court repeatedly acknowledged that Marotta would not

be bound by the stipulations that he did not sign, and it so

instructed the jury (Tr. 5332, 5596, 6509-6512, 6530-6535).

1® Petitioner’s claim (85-1883 Pet. 16) of a conflict among

the circuits on this issue is insubstantial. Petitioner relies

on Walberg v. Israel, 766 F.2d 1071 (7th Cir. 1985), cert.

denied, No. 85-331 (Dec. 12, 1985) and Wilson v. Mintizes,

733 F.2d 424 (6th Cir.), vacated, 469 U.S. 926 (1984), on

remand, 761 F.2d 275 (6th Cir. 1985), in which the courts

ruled that substitution of counsel should have been allowed.

Those cases, however, are readily distinguishable. In Walberg

the court of appeals granted relief because it concluded that

the trial court’s hostility to defense counsel had denied the

defendant a fair trial. In Wilson, the court of appeals likewise

concluded that the trial judge’s antagonism toward defense

ine

21

b. Petitioners Marino and Rossi argue (85-1949

Pet. 11-13) that the remaining defendants were

prejudiced by Miller’s continued representation of

Marotta at trial. They reason that Miller’s previous

representation of Monachino, coupled with his on-

going representation of Marotta, bolstered in the

minds of the jurors the government’s theory “that an

organization/enterprise existed * * * and that one

of its objectives was to subvert law enforcement ef-

forts by supplying legal assistance to its alleged mem-

bers” (85-1949 Pet. 12). This is a most speculative

inference to draw; certainly nothing in the one line

of testimony about Miller’s prior representation of

Monachino suggested that Miller had been hired to

represent Monachino by the “enterprise’—much less

that Miller was subsequently reassigned to Marotta

in some sort of “mob legal services” arrangement

(ibid.). Indeed, in the setting in which the Miller epi-

sode arose, it is particularly unlikely that the jury

drew any parallel between that episode and the two

instances in which members of the enterprise had ob-

tained legal assistance for others. The testimony

about those two instances came much later in the

trial and involved defendants other than Marotta.

Moreover, the court’s curative instruction put to rest

any possible adverse inference the jury might have

drawn from the Miller episode; the court carefully

explained to the jury that Miller was simply accom-

modating an attorney with whom he shared office

space when he represented Monachino, that he per-

formed a relatively minor service, and that such an

accommodation is not at all uncommon among crimi-

nal defense lawyers (Tr. 1114-1115).

counsel, which included suggestions that counsel was incom-

petent, resulted in real prejudice to the presentation of a

defense.

5. Petitioner Marino claims (85-1949 Pet. 14-15)

that he was denied a fair trial when the court did not

permit him to call Marotta’s lawyer as a defense wit-

ness. The court of appeals correctly found that this

argument was without merit (Pet. App. A16).

One morning late in the trial, counsel for Marino

announced to the court that he had just learned from

Marotta’s attorney, Richard Miller, that Miller had

been present at a gathering at Marino’s home on the

day of Gingello’s funeral (Tr. 4052). Marino’s coun-

sel said that Miller would testify that the event was

a quiet and entirely innocuous after-funeral affair,

and not a meeting to plan revenge against the rival

faction for the murder of Gingello. The trial court

noted that if counsel wished to establish that point,

Miller was not an essential witness, because there

were many other persons present at that gathering

who could testify on the point (Tr. 4053).” After a

formal proffer was made at the close of the defense

case, the district court ruled that because Miller was

an attorney for a party in the case, it would be im-

proper for him to appear as a defense witness (Tr.

6876).

It is well settled that a district court should not

permit an attorney for a party to testify as a witness

absent compelling reasons or extraordinary circum-

stances. See United States v. Dack, 747 F.2d 1172,

1176 n.5 (7th Cir. 1984); United States v. Johnston,

* Contrary to petitioner’s contention, there was no sugges-

tion by the government at trial that the post-funeral gathering

at Marino’s house was anything but an innocuous post-funeral

affair, as Miller would have testified. The government’s evi-

dence was that the critical meeting among the co-conspirators,

at which they planned the campaign of revenge against Didio’s

faction, occurred at Rossi’s apartment several days later (see

Tr. 2766-2770, 3488, 3519-3523, 3552-3553).

23

690 F.2d 638, 644 (7th Cir. 1982); United States v.

Bates, 600 F.2d 505, 510-511 (5th Cir. 1979) ; United

States v. Armedo-Sarmiento, 545 F.2d 785, 793 (2d

Cir. 1976), cert. denied, 480 U.S. 917 (1977) ; United

States v. Torres, 503 F.2d 1120, 1126 (2d Cir. 1974).

Only if the proposed testimony is important, and

there is no other way to present that evidence, is it

appropriate to permit a participating lawyer to tes-

tify. United States v. Bates, supra; United States v.

Nymin, 649 F.2d 208, 211 (4th Cir. 1980). Here,

the court of appeals, with the entire record before

it, concluded that the minimal value of Miller’s pro-

spective testimony did not warrant departing from

the traditional proscription against testimony by a

party’s attorney. That decision was plainly correct:

the post-funeral gathering at Marino’s home was ap-

parently a well-attended affair, and there were pre-

sumably other persons who could have testified about

the nature of the affair, to the extent that that evi-

dence was relevant at all.

6. Petitioners Russotti, Piccarreto, Marino, and

Rossi contend (85-1901 Pet. 6-9; 85-1902 Pet. 16-

19; 85-1949 Pet. 8-10) that the district court erred

when it failed to admit the recorded testimony of two

of the defendants from prior state proceedings. The

defendants had offered testimony given by Colombo

pefore a state grand jury and testimony given by

Piccarreto in a state criminal trial. They argued

that, although the prior testimony was hearsay as to

the two declarants, it was admissible on behalf of the

other defendants, under Fed. R. Evid. 804(b) (1), as

the former testimony of an unavailable declarant.

The district court refused to admit the p-ior testi-

mony because the United States had not been a party

to the state proceedings, and thus, as “the party

against whom the testimony is now offered,” the

24

United States did not have “an opportunity and simi-

lar motive to develop the testimony by direct, cross,

or redirect examination.” Fed. R. Evid. 804(b) (1).

See United States v. Kapnison, 743 F.2d 1450, 1458-

1459 (10th Cir. 1984), cert. denied, No. 84-971

(Apr. 15, 1985); United States v. Lanci, 669 F.2d

391, 394 (6th Cir.), cert. denied, 457 U.S. 1134

(1982); United States v. Atkins, 618 F.2d 366, 372-

373 (5th Cir. 1980); see also D. Louisell & C.

Mueller, Federal Evidence § 487, at 1102 n.3 (1980).

Recognizing that Rule 804(b)(1) does not allow

the admission of this proffered evidence, petitioners

maintain that the rule is unconstitutional as applied.

In making this argument, petitioners rely principally

on this Court’s decision in Chambers v. Mississippi,

410 U.S. 284 (1973). Chambers, however, is readily

distinguishable from this case. In Chambers, the

defendant was prevented by sttate hearsay rules from

introducing several statements made by a person who

confessed to the very crime for which the defendant

was on trial. The statements were thus directly ex-

culpatory of the defendant, amounting to evidence

“critical to Chambers’ defense” (410 U.S. at 302).

Moreover, the statements had considerable assurances

of reliability: they were corroborated by other evi-

dence; they were quite clearly against the penal in-

terest of the declarant; and the declarant was in fact

available for cross-examination (410 U.S. at 300-

301).

Here, by contrast, the proffered testimony consisted

of little more than bare self-serving denials of cul-

pability by Piccarreto and Colombo (see Piccarreto

App. 507-528, 6263-6264).” Piccarreto simply denied

having been personally involved in the Massaro mur-

21 “Piccarreto App.” refers to the appendix to Piccarreto’s

brief in the court of appeals.

25

der plot; his testimony did nothing to exculpate the

other defendants. Similarly, in his state grand jury

testimony, Colombo simply denied that he and Oliveri

had attempted to murder DiMarco. Thus, Colombo’s

| testimony exculpated Colombo—who clearly was pre-

cluded from offering his own prior testimony—but it

did nothing to exculpate the remaining defendants.

Finally, in the prior state proceedings, both defend-

ants were testifying under circumstances giving them

i a powerful motivation to lie.

Thus, the proffered testimony in this case was not

critical to the defense, nor did it possess any of the

assurances of reliability that characterized the evi-

dence in Chambers. This would therefore be a highly

unsuitable case in which to consider, as petitioners

urge, whether to fashion a novel constitutional excep-

tion to Rule 804(b) (1).

7. Finally, petitioners Marino and Rossi contend

(85-1949 Pet. 25-27) that the court of appeals erred

in permitting consecutive sentences for their convic-

tions under the RICO substantive and conspiracy pro-

visions, 18 U.S.C. 1962(c) and (d). That contention

flies in the face of this Court’s analysis of closely

analogous statutory schemes as well as the rule

adopted in the great majority of circuits.

This Court has long held that it is permissible to

impose consecutive sentences for ordinary substantive

offenses and conspiracies to commit those offenses.

See United States v. Feola, 420 U.S. 671, 693 (1975);

Callanan v. United States, 264 U.S. 587 (1961).

That rule is based on the so-called Blockburger test,

see Blockburger v. United States, 284 U.S. 299

(1932), which is the principal device for determining

whether different statutes permit cumulative punish-

ment. In Albernaz v. United States, 450 U.S. 333

Shewne ee

26

(1981), this Court reaffirmed the Blockburger test

and held that absent a clear expression of congres-

sional intent to the contrary, consecutive sentences

under separate statutory provisions are appropriate

where each provision requires proof of at least one

fact not required by the other. Thus, the Court in

Albernaz permitted the imposition of consecutive sen-

tences for violations of 21 U.S.C. 963, charging con-

spiracy to import marijuana, and 21 U.S.C. 846,

charging conspiracy to distribute marijuana. Because

there was no contrary expression of legislative intent,

and because each offense required proof of at least

one element not required by the other, the Court up-

held cumulative punishments, even though the proof

at trial supporting the two conspiracy charges was

identical, see United States v. Rodriguez, 585 F.2d

1234, 1239 (5th Cir. 1978), cert. denied, 449 U.S.

835 (1980).

Applying the same analysis, the courts of appeals

that have considered the issue have noted that RICO

substantive and conspiracy provisions require proof

of separate elements; they have therefore almost uni-

formly concluded that the two provisions permit con-

secutive punishments. United States v. Watchmaker,

761 F.2d 1459, 1477 (11th Cir. 1985); United States

v. Bagaric, 706 F.2d 42, 63 n.18 (2d Cir.), cert. de-

nied, 464 U.S. 840 (1983) ; United States v. Marrone,

746 F.2d 957, 959 (3d Cir. 1984); United States v.

Cagnina, 697 F.2d 915, 923 (11th Cir.), cert. denied,

464 U.S. 856 (1983); United States v. Rone, 598

F.2d 564, 570-571 (9th Cir. 1979), cert. denied, 445

U.S. 946 (1980). The only exception is the Sixth

Circuit’s decision in United States v. Sutton, 642

F.2d 1001, 1040 (en banc), cert. denied, 453 U.S.

912 (1981). In Sutton, the court held that be-

cause the same evidence at trial supported both the

27

RICO substantive and conspiracy convictions, the

convictions merged for purposes of sentencing. As

later cases have pointed out, however, the Sutton

court overlooked the fact that the Blockburger test

focuses not on the evidence adduced at trial, but on

the elements of the crimes charged. United States v.

Davis, No. 85-2473 (10th Cir. June 9, 1986), slip

op. 6-8; United States v. Watchmaker, 761 F.2d at

1477; United States v. Marrone, 746 F.2d at 959. As

long as the elements of the two crimes are different,

there is no constitutional impediment to imposing

cumulative punishments for conduct that violates both

statutory provisions—even if the same proof at trial

supported both convictions.

Although there is a conflict among the circuits on

this issue, it is not one that requires resolution by

this Court. The Sutton case was decided before this

Court’s decision in Albernaz and before most of the

circuit court decisions that have rejected Sutton’s

analysis of the consecutive sentencing issue. In light

of these subsequent developments we believe that

when the Sixth Circuit once again squarely confronts

the issue, it is highly likely that that court will con-

clude that consecutive sentences are permissible under

18 U.S.C. 1962(c) and (d).”

22In United States v. Qaoud, 777 F.2d 1105, 1118 (1985),

the Sixth Circuit referred to its previous decision in Sutton,

but it did not have occasion to revisit the merits of the con-

secutive sentencing issue.

28

CONCLUSION

The petitions for a writ of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

STEPHEN §S. TROTT

Assistant Attorney General

KATHLEEN A, FELTON

Attorney

JULY 1986

be U. S&S. GOVERNMENT PRINTING OFFice; 1986 491507 20266