Petition for Writ of Certiorari — Ciambrone v. United States

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

Supreme Court, U.S,

96-75 10 FILED

JUL 21 1908

JOSEPH F. SPANIOL, JR,

CLERK

CASE NO: am

‘ IN THE

wae SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

1 THOMAS J. CIAMBRONE, JR.

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Gertiorari to

the United States Court of Appeals

for the Second Gircuit

BAKRY WITLIN, ESQUIRE

1100 Northeast 125th Street

Suite 109

North Miami, Florida 33161

BONNIE PHILLIPS DEL CORRAL, ESQ.

6556 Northwest 77th Court

Miami, Florida 33166

Member of the Supreme Court of

the State of Florida

July 17, 1966

Counsel for the Petitioner

QUESTIONS PRESENTED FOR REVIEW

I. Whether the decision below irreconcilably

conflicts with the opinion of the Eleventh

Circuit Gourt of Appeals in United States v.

Heller, 785 F.2d 1524 (11th Gir 1966), and

denied the Defendant his constitutional right

to a fair trial by an impartial jury.

II. Whether the decision below presents an

important question of federal law and creates

ipreconcilable conflict with the precedent

established in this and other circuits by

effectively abolishing the scienter element of

a cPiminal offense by authorizing a conscious

avoidance charge when there was no evidence

that the Defendant was personally involved in

the criminal acts, nor purposely ignored said

criminal conduct.

PARTIES TO THE FPROCEEDINGS BELOW

Thomas J. Ciambrone, Jr.

Jerry A. Chambrone

Joseph Vincent Riggio, Jr.

United States of America

Wilh aeeete.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR

REVIEW..... a ae ae Erm P i

PARTIES TO PROCEEDINGS IN

COURTS BELOW.......... wet ee ee Sg ; i

Ne eeecseccce ; 1

ck wwe ccccsecd ees s ; 2

CONSTITUTIONAL PROVISIONS AND

IPED BVOLVED. occ cce cc ccccccce eer 2

Deere GF THE GASE. ck. ccc cccccs . 4-10

REASONS FOR GRANTING THE WRIT....... ‘

I. THE DECISION BELOW CREATES

IRRECONCILABLE CONFLICT WITH

THE OPINION OF THE ELEVENTH

CIRCUIT IN United States vs.

Heller, 765 F.2d 1524 (11th

Cir. 1956), AND DENIED THE

DEFENDANT A FAIR TRIAL......... im 11

II. THE DECISION BELOW PRESENTS

AN IMPORTANT QUESTION OF

FEDERAL LAW AND CREATES AN

IRRECONCILABLE CONFLICT WITH

THE PRECEDENT ESTABLISHED IN

THIS AND OTHER CIRCUITS BY

EFFECTIVELY ABOLISHING THE

SCIENTER ELEMENT OF A CRIMINAL

OFFENSE BY AUTHORIZING THE

CONSCIOUS AVOIDANCE CHARGE

WHEN THERE WAS NO EVIDENCE

THAT THE DEFENDANT WAS PERS

SONALLY INVOLVED IN THE

CRIMINAL ACTS, NOR PURPOSELY

TGHONED SAID CONDUCT... 0c ccccvese 18

CONCLUSION... cece cee eecccccces ove 25

CERTIFICATE OF SERVICE......+++> ° 26

APPENDIX

A. Lower Court Opinion

B. Order Denying Petition

for Rehearing and Rehearing

En Banc.

, chia tae ait Kichaning

Abin AN NS CH A fle Sie ot SPE hag eM

ee eae See

TABLE OF AUTHORITIES

Page

United States v. Campanale, 518 F.2d

352 (9th Cir. 19/75), cert. denied,

G2ZF- GiB. HSS CES s hee eee cae ee 23

United States v. Guzman, 754 F.2d 482

(2d. Cir. 1985), cert. denied, 106

Be GE. Fee CEO eee Sian ee bh eeeecusee 19

United States v. Heller, 785 F.2d 1524

CELE DEES BOOT G64 Ks ob e's ONS 0004 RS Gee &

a; 20, iF

United States v. Henderson, 721 F.2d

t. BEG LBs ae. fs ee eer ere 21

United States v. Jewell, 532 F.2d 697

(9th Cir. 1976), cert. denied, 96

SiC. Rete Case esse sactarwk veterans 19, Z2

United States v. Mankani, 738 F.2d 538

eo) Bn Cae. Oe err er ee zo

United States v. McAllister, 747 F.2d

Eels ABE. CAS 6 ROR 6h hate nes ened es Zi, ae

United States v. Murrieta-Bejarano,

222 F.26 135235 (YER Cif. A977),

rehearing and rehearing en banc

Genied, CISEs hence Fishes sa 0 cade weds 2h. 2

United States v. Suttiswad, 696 F.2d

ME 8 Be te 2 PO e res ey 21

CASE NO:

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

THOMAS J. CIAMBRONE, JR.

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

OFINION BELOW

The Opinion of the lower court is

Feported in United States v. Giambrone, 757

F.2d 799 (2nd Cir. 1986).

JURISDICTION

The Judgment of the Court of Appeals for

the Second Circuit affirming the Petitioner's

conviction was entered on April 24, 1966. On

May 22, 1956, the Second Circuit denied the

Petitioner's Petitions for Rehearing and

Rehearing En Banc.

The jurisdiction of the Court is invoked

pursuant to 2v U.S.G., Section 1254(1) and

Supreme Court Rule 20.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

3

U.S. Const., Amendment VI:

In all criminal prosecutions, the

accused shall enjoy the right to a

speedy and public trial, by an

impartial jury... and to be informed

of the nature and the cause of the

accusation; to be confronted with

the witnesses against him; to have

compulsory process for obtaining

witnesses in his favor, and to have

the assistance of counsel for his

defense.

-2?-

16 U.S.C. Sec. 1951(a), Interference with

commerce by threats or violence

Whosoever in any way or degree obstructs,

delays, or affects commerce or the moves

ment 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.

16 U.S.C. Sec. 1952 Interstate and foreign

travel or transportation in aid or

racketeering enterprises

Whoever travels in interstate or foreign

commerce or uses any facility in

interstate or foreign commerce, including

the mail, with the intent tos (1) distria

bute the proceeds of any unlawful

activity; or (2) commit any crime of

violence to further any unlawful

activity; or (3) otherwise promote,

manage, establish, carry on, of any

unlawful activty, and thereafter pere

forms or attempts to perform any of the

acts specified in subparagraphs (1),

(2), and (3), shall be fined not more

than $10,000.00 or imprisoned for not

more than five years, or both.

-3-

STATEMENT OF THE CASE

A. Nature of the Case

Thomas J. Ciambrone, Jr. was named

as a defendant, along with Jerry A. Ghambrone

and Joseph Vincent Riggio, Jr., in a

sevenecount indictment filed January 10, 1964.

The Defendant was charged with conspiracy, in

violation of 16 U.S.C. Sec. 1951, and with

five counts of attempted extortion, in

violation of 16 U.S.C. Sections 1951 and 1952.

The Defendant was convicted of the conspiracy

count and of three of the substantive counts,

and was sentenced to a period of ten years

incarceration, and fined.

B. Statement of Facts

1. Background

T.J., @ small trucking company

located in New Jersey, had fos years been the

exclusive delivery service for CSC, a large

computer service company with an office in

White Plains, New York. Thomas Ciambrone was

-4-

the president of T.J., but in 1976 he moved

his family to Florida to enable his youngest

son to attend special schools, and left the

business to be run by his brother, Jerry

Chambrone,

On November 15, 1982, CSC began using

another trucking company by the name of Apple

Messenger Service, (hereinafter "Apple"), to

service zone 46, a delivery poute which T.J.

had been servicing for years. On November 17,

1962 pursuant to the contract between T.J. and

CSC arbitration proceedings were commenced by

T.J.e against CSC, alleging that GSC had

violated the exclusive contract between CSC

and T.J. by allowing Apple to service zone 46.

2. The Conspiracy

The evidence at trial showed that Jerry

Chambrone, with Joseph Riggio's assistance

attempted to intimidate Apple into abandoning

zone 46.

Much of the evidence detailing this

conspiracy was of a vivid, sensational kind:

-5-

Miller, the president of Apple, told the jury

that. Riggio threatened to burn down his house

and blow up his car; an Apple driver described

how he was told by Jerry Chambrone to "watch

yourself", and the same day his car was

followed on the highway; tapes were played in

wich Jerry Chambrone railed in obscene and

threatening language against Apple and the CSC

employees who dealt with Apple; a GSC employee

testified that Jerry Chambrone told an Apple

driver that he would "cut his balls off"; and

finally, Riggio, described how, at Jerry

Chambrone's instruction, he had manufactured

firebombs in a friend's basement and threw

them at Miller's home and office in the middle

of the night.

Not one of these acts was ever in any way

connected to Thomas Ciambrone. The evidence

concerning Thomas Ciambrone, was of a much

different -#® and wholly innocent #8 character.

3. Evidence Concerning Thomas Ciambrone

In essence, the Government's entire

-6-

case against Thomas Ciambrone was based on a

tapesrecorded conversation between Miller and

Thomas Ciambrone on November 23, 1962.

According to Miller's testimony, he was

threatened by Joseph Riggio on November 20,

1962. He then told Riggio that he wanted to

meet with Thomas Ciambrone. Thomas Ciambrone

went to Miller's house on November 23. Miller

had spent the day with the New Jersey State

Police and was wearing a recording device to

record his conversation with Ciambrone.

Throughout the conversation with the

Defendant, the only time the subject of

threats was brought up was when Miller brought

the subject up.

The tape shows that after some

pleasantries and an inquiry by Thomas

Ciambrone as to whether the conversation was

being taped, (which Miller denied) the two men

calmly discussed the contract between T.J. and

CSC. Ciambrone told Miller that the contract

had been in force for eighteen years, and that

-7-

cSC was now breaching the contract by dealing

with Apple. He said that all the other

messenger services had declined to "touch" the

CSC account because they knew of the contract.

Ciambrone added that the matter would end up

in court soon and Apple would probably be

named as a party.

Miller responded that he believed that

his work for CSC did not breach any contract

between T.J. and CSC and that CSC had invited

his company to do the work. Miller then made

a reference to the threat by Riggio. Ciambrone

immediately responded that Miller was not

being threatened by him, and that he never has

dealt in business in that manner. He then went

on to express how important his reputation is

to him and his family.

Miller then asked if Riggio worked for

T.J.. Giambrone denied that Riggio had ever

worked for T.J., but did state that Riggio had

worked for CSC in the past.

The government's contention is that this

-8-

portion of the conversation between Miller and

Ciambrone contained veiled threats, and cons

stituted Ciambrone's overt act in furtherance

of the conspiracy. No further evidence was

introduced that claimed to demonstrate Thomas

€iambrone's participation in the extortionate

schemes. No evidence was ever introduced

which in any way linked Thomas Ciambrone to

the extortionate acts that occurred as late as

October 19653. The remaining evidence as to

Thomas Ciambrone consisted of Riggio's

testimony (the Government's lead witness) that

Thomas Ciambrone had absolutely no involvement

in the conspiracy; and evidence of Thomas

Ciambrone's relationship with his brother and

Riggio. The evidence showed that Thomas

Ciambrone called his brother daily, sometimes

more often, and that Riggio was a close frind

of Jerry Chambrone, and an old acquaintance of

the Defendant's.

The Defendant was acquitted of the

substantive count Which was based upon this

-9-

conversation, but was convicted of the other

substantive counts, wherein the government's

Own witnesses stated that he had absolutely

nothing to do with those crimes.

-10-

REASONS FOR GRANTING THE WRIT

I.

The decision below creates

irreconcilable conflict with

the opinion of the Eleventh

Circuit Gourt of Appeals in

United States v, Heller, 755

-20d 1524 (ith Cir. 1966),

and denied the Defendant his

constitutional right to a fair

trial by an impartial jury.

The jury prejudice denied Thomas

Ciambrone his constitutional Fright to a fair

trial. The panel of the Second Circuit

focused its attention almost exclusively on

the sufficiency of the evidence, and in so

doing overlooked the issue of jury prejudice.

The holding directly and expressly conflicts

with the holding of the Eleventh Circuit in

United States v. Heller, 7655 F.2d 1524 (11th

Cir., 1956), and to condone such egregious

juror conduct impunes and threatens the very

basis of our trial system.

In Heller, the Eleventh Gircuit reversed

a -lil-

Defendant Heller's conviction of tax evasion

"and falsely subscribing to an income tax

return, based upon juror misconduct in

the form of racial and religious slurs. The

Court reversed the conviction solely upon the

issue of juror misconduct, refusing to decide

any of the other pending issues.

In Heller, one day after the jury began

deliberations, the following note was sent

Out:

November 9,1963

Your Honor,

Should these actions be addressed?

During the course of this trial,

there were comments in the jury ¥Foom

about various testimony. Also, some

ethnic slurs were made.

During the course of this trial, a

juror asked a "reliable accountant",

the following question (outside the

jury room):

"Is it possible for an

accountant to make out

a person's income tax

Peturn without knowing

about the person's books?"

Answer: No

The juror stated that outside the

jury room, he asked a hypothetical

question of a reliable accountant along

these lines: "What is the

responsibility of an accountant when

he signs his name to a tax return?"

The accountant was reported as saying

-12-

HCN S SEAN

"virtually none in the case of an

individual return. in the case of a

business sBeturn, his involvement would

be considerable."

Please advise.

Thank you. Virginia Davis Starker,

Foreperson,

Upon receipt of this note, the trial

judge ordered the jury to stop deliberating,

and decided to voir dire each juror

individually. During this voir dire one of

the jurors told the judge that when the trial

had barely started another juror said,

apparently in jest, "Well, the fellow we are

trying is a Jew. I sayy, bet's hang him." The

juror further stated that several other

antiseSemitiec slurs had been made throughout

the trial. When Juror Nolan was questioned he

admitted making an anti#Semitic slur. When

questioned further, the juror claimed that his

FemarFks were made outside of the courtroom in

a "joking" or "teasing" manner. He also

admitted that his comments were later Pepeated

to several jurors in the same joking or

teasing manner.

-1 3-

After the trial judge concluded the

individual voir dire in Heller, he asked each

juror whether in light of what had occurred,

they would still be able to reach a decision

in the case based solely on the evidence and

the law without bias or prejudice. Then he

called the entire panel into the courtroom and

asked them to confirm their earlier promises.

After each juror confirmed his#fher promise,

the court allowed the deliberations to

continue,

The Eleventh Circuit reversed holding:

The bigotry displayed in this

case is reminiscent of another less

civilized era when antisSemitic and

racist sentiments were unfortunately

acceptaple even in polite society.

We conclude that we must act in the

only way open to us to ensure that

prejudice plays no role in the funcs

tion of our judicial system, Although

we are aware that the trial in this

case lasted 12 weeks and that retrial

will entail considerable time and

expense, this factor cannot even be

outweighted when the Fight of an

individual to a fair trial has been

so severely compromised. Heller at

1529.

«thu

Similarly, in the case at bar during the

second day of jury deliberations, one juror

approached the Court and recounted statements

made by another juror during the course of the

deliberations about Italians being part of the

mob and expressing her "hate" for Italians.!

The Gourt upon hearing this account, question

the juror who made the statements. As in

Heller, the juror admitted her ethnic bias and

her belief that all italians are part of the

"mob". Instead of either discharging the

juror or declaring a mistrial the court

allowed the deliberations to continue.

1

The statement of the reporting juror was:

This juror said, just like this:

"They are part of the mob."

I said, “What mob do you mean?"

just like that. "That wasn't

told to us. The judge said we

should keep an open mind.”

I said, “If you are bringing into

the situation,” you know. I made a

face.

She said, "What is the difference?"

or something pertaining to that.

"They are all the name people" --

that I remember -- "connected."

I says, “What do you mean? What

are you bringing up? Are you try-

ing to say that is is the Mafia?

That wasn't brought up into this."

o15=

Also, es in Heller, the Gourt gave a

cautionary instruction; simply telling the

jury that the fact that the Defendants are

Italian has nothing to do with the

deliberations, and then the Gourt reminded the

jurors that the verdict cannot be based upon

ethnic values. The Second Circuit held that

this instruction was sufficient to insure that

the verdict was not tainted.

The similarity between the facts

surrounding the jury prejudice presented in

this case and that in Heller cannot be

overlooked, nor can the discrepancies in the

holdings be justified by the factual

differences. In both cases one juror had made

ethnic slurs, indicative of his personal bias

in the presence of the jurors. Both jurors

=

1

con'td,.

She said, "I think -- I have to say this,

and if any juror doesn't in there say the

truth -- she put her hands on the table.

She said, "I hate them," banging her fists

on the table. She says, "my son is

fighting them."

admitted to these biases when questioned. In

Heller, the court took the time to voir dire

each individual juror and to elicit a personal

promise to put said biases aside and to judge

the defendant solely on the evidence

presented. In this case, the Court gave a

group cautionary instruction, similar to the

one given in Heller, but never bothered to

inquire of each juror whether he or she had

been influenced by the statements made in the

jury room. Using this precedure alone, the

court could not ensure the Defendant a fair

trial, untainted by jury bias.

These two cases are irreconcilable and

create absolutely no standard for the Federal

Courts to follow when similar questions are

presented in the future. For this reason this

Court must take Certiorari to resolve this

conflict and to establish standards to be

applied in future cases.

-17-

II

The decision below presents an

important question of federal law and

creates an irreconcilable conflict with

the precedent established in this and

other circuits by effectively abolishing

the scienter element of a criminal

offense by authorizing a conscious

avoidance charge when there was no

evidence that the Defendant was

personally involved in the criminal

ects, nor purposely ignored said

criminal conduct.

At the Government's request, the district

court instructed the jury that a Defendant

could not avoid "a finding of guilty

knowledge" by "deliberately closing his eyes

to what otherwise would have been obvious to

him." 2 The district court them emphasized the

importance of this instruction as to the

Defendant in particular. The giving of this

é The district court's instruction was the

following:

In determining whether the defendant you

are considering acted knowingly and will-

fully, you man consider whether the defen-

dant deliberately closed his eyes to what

otherwise would have been obvious to hin,

and that is a consideration of some im- ‘

portance in this case, particularly with

regard to Thomas Ciambrone's contentions. .

It is the settled law — a finding of

—j -

instruction in this case denied the Defendant

a fair trial and conflicts with the precedent

established in the Second Circuit as well as

every other Circuit which has considered this

issue.

The federal courts have carefully limited

the situations in which a conscious avoidance

charge is appropriate to circumstances where

the defendant may have avoided learning the

facts that make his own conduct unlawful. See

for eg. United States v. Jewell, 532 F.2d 697

(9th Cir. 1976), cert, denied, 96 S.Ct. 3173

(1976); United States v, Guzman, 754 F.2d 462,

4656 (2d Cir. 1965), cert. denied, 106 S.Ct.

766 (1966).

The facts presented in this case do not

fall within the factual patterns wherein the

courts have held the conscious avoidance

charge as appropriate. On the contrary, the

con'td.

guilty knowledge may not be avoided by a

showing that the defendant simply closed his

eyes to what was going on about him; "see no

evil” is not a maxim in which the criminal

defendant should take any comfort. (Emphasis

added) ato

application of the concious avoidance charge

in the case at bar creates a dangerous new

precedent. To convict the Defendant on any

count the Government had to demonstrate that

Thomas Ciambrone specifically intended that

his alleged cosconspirators accomplish their

illegal aims. There is no question that

Thomas Ciambrone was not directly involved in

any of the substantive extortianate crimes.

His only link to those crimes comes from his

alleged involvement in the conspiracy as a

whole. Therefore, the Defendant's "intent"

was the most crucial issue at trial.

To allow the District Court to give this

charge, which in effect takes from the jury

the issue of scienter, by imputing to the

Defendant knowledge of the co#Defendant's

actions simply because of his involvement in

the conspiracy unquestionably denies the

Defendant a fair trial and directly conflicts

with the established precedent.

-20-

H +

4

:

i

:

The Second Circuit cites United States v.

McAllister, 747 F.2d 1273 (9th Cir. 1984), to

support its position condoning the

appropriateness of a conscious avoidance

charge in the instant case. However,

even a cursory reading of McAllister

demonstrates that the court's reliance is

erroneous, and that the conscious avoidance

charge as given in the instant case denied the

the Defendant a fair trial and creates a

frightening precedent. in McAllister, the

Ninth Circuit held that the conscious

avoidance charge is "properly given only when

a defendant claims a lack of guilty knowledge

and there are facts in evidence to support an

inference of deliberate ignorance." At 1275,

citing United States v. Henderson, 721 F.2d

276, 277 (9th Cir. 1953); United States v,

Suttiswad, 696 F.2d 645, 651 (9th Cir., 1962);

United States v. MurrietaeBejarano, 552 F.2d

1323, 1325 (9th Cir., 1977). In all of the

cases cited, and a feed in any

other circuit, the conscious avoidance charge

has only been given in situations in which the

Defendant avoided knowledge of his own

conduct. The instruction has been upheld as

proper where the Defendant was driving a truck

filled with illegal aliens, United States v.

McAllister, supra; where the Defendant entered

the United States driving an automobile with

marijuana hidden in secret compartments in

the vehicle, United States v. Jewell, 532 F.2d

697 (9th Cir., 1976), cert, denied, 96 S.Ct.

3173 (1976); and where the defendant was the

sole driver of a truck where marijuana was

located inside the flatbed of the truck,

United States v, Murrieta-Bejarano, 552 F.2d

1323 (9th Cir. 1977), rehearing and rehearing

en_banc denied, (1977). But there is no

precedent authorizing the instruction where

the government admits that the Defendant did

not participate in the alleged criminal

activity, and the prosecution is based upon a

co*#conspirator or accessory theory.

-22-

The precedent is firmly established that

this instruction is not appropriate for a

conspiracy charge on the grounds that it is

impossible for a person to avoid participating

in a conspiracy and yet be a member of the

conspiracy. United States v. Mankani, 735

F.2d 535, 547 (2d Cir. 1954). Since the

Defendant was prosecuted in this case on the

substantive counts under the guise of a

conspiracy theory, the reasoning behind the

holding in Mankani is applicable and binding.

Giving this instruction under these

circumstances directly violates the

limitations imposed by the courts, and denied

Thomas Ciambrone his constitutional right to

be tried on each element of each offense.

Furthermore, the fact that the Defendant was

singled out in the court's instruction to the

jury, only aggravates the prejudicial effect

of this instruction. United States v,

Campanale, 516 F. 2d 352, 362 (9th Cir. 1975),

cert. denied, 423 U.S. 1050 (1976).

-23-

Certiorari must be granted to resolve

the conflict created between this opinion and

those of the other Circuits, and to remedy the

injustice suffered by Thomas Ciambrone.

e sdechdiindy i iddil i adits 5°. => seems ctnsl pat anata denna sec Saas

athe

CONCLUSION

The case below characterizes a radical

departure from the substantive body of case

law developed by this and other circuits

directly conflicts with the holding of the

Eleventh Circuit. The issues involved in this

case are of extreme judicial significance.

The maintenance of uniformity in the

administration of criminal justice in the

federal courts is jeopardized by the decision

below. For the reasons and authority advanced

above, the Petitioner strenuously urges this

Court to grant its Writ of Certiorari in this

case.

BARRY WITLIN, ESQUIRE

BONNIE PHILLIPS DEL CORRAL, ESQ.

Attorneys for the Petitioner

1100 Northeast 125th Street

Suite 109

North Miami, Florida 33161

(305) 6891+#0970

Vil

a%% a

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that all parties

required to be served herein have been served

and further certify that three copies of the

foregoing Petition have been served by United

States mail this 16th day of July, 1956 upon

the office of the United States Solicitor

General, 170th and Gonstitution Avenue, N.W.,

Washington, D.C. 20530, and a copy upon Ann

Ryan, Esquire, Assistant United States

Attorney, at 1 Saint Andrews Plaza, New York,

By: Lamy Widen ij

BARRY WITLIN, ESQUIRE

New York 10007.

ADA ES REN i NT RENE IIT AY

~26=

APPENDIX A

Opinion of the Lower Court

CC CO CC aS Sa ee TP ee ——~ z - >

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

—+

No. 255—August Term, 1985

(Argued October 21, 1985 Decided April 4, 1986)

Docket No. 84-1249

—t-

UNITED STATES OF AMERICA,

Appellee,

—_—V.—

THOMAS J. CIAMBRONE, JR.,

Appellant.

Before:

OAKES, NEWMAN, and KEARSE,

Circuit Judges.

nod

Appeal from conviction in the United States District

Court for the Southern District of New York, Robert L.

Carter, Judge, of conspiracy to extort and substantive

convictions of attempted extortion or acts of extortion on

2505

the basis of insufficiency of the evidence, a conscious

avoidance charge, and juror taint.

Affirmed.

>

SIMON H. RIFKIND (Robert S. Smith, Eric S.

Goldstein, Paul, Weiss, Rifkind, Whar-

ton & Garrison, New York, N.Y., of

counsel), for Appellant.

ANNE C. RYAN, Assistant United States

Attorney (Rudolph W. Giuliani, United

States, Attorney for the Southern District

of New York, Warren Neil Eggleston,

Assistant United States Attorney, of

counsel), for Appellee.

ee

OAKES, Circuit Judge:

Thomas Ciambrone appeals from a conviction in the

United States District Court for the Southern District of

New York, Robert L. Carter, Judge, for one count of

conspiracy to commit extortion and three counts of at-

tempted extortion in violation of the Hobbs Act, 18

U.S.C. § 1951 (1982). Ciambrone was sentenced to a term

of imprisonment of ten years on each of the counts on

which he was convicted, the sentences to run concur-

rently, and to pay a fine of $4,000 on each count. We

affirm.

Rsspnlibiescure ame

There is no question that there was a conspiracy to

commit extortion and that numerous overt acts were

committed in furtherance of that conspiracy. Thus, the

major question before us is whether there was sufficient

evidence of appellant Ciambrone’s participation in the

conspiracy. Additional questions are raised as to the

admission of co-conspirator statements against him, the

district court’s instruction On conscious avoidance, the

possibility that a juror’s remarks that the defendants

“were on the fringe of the Mafioso” or “part of the mob”

tainted the jury deliberations, and whether appellant

should have been tried with his obviously guilty younger

brother, Jerry Chambrone, and with Joseph Vincent Rig-

gio, Jr., who among other things sought to blow up the

car of one of the victims and did manage to burn down

another victim’s house and business office with Molotov

cocktails. Jerry Chambrone was convicted and did not

appeal. Riggio pled guilty and testified for the Govern-

ment.

BACKGROUND

The goal of the extortion scheme was to regain for T.J.

Associates (“T.J.”), a company owned and operated by

Thomas Ciambrone and his brother Jerry, certain delivery

business of Computer Sciences Company (“CSC”), a

nationwide computer services company. CSC had trans-

ferred that business from T.J. to Apple Messenger Service

(“Apple”), a company operated by Donald Miller. Appel-

lant Thomas Ciambrone was president of T.J., and

though he lived in Florida during the time period covered

by the indictment—May 1982 shrough January 1984—

was in regular contact with the T.J. office in White

2507

_———

Plains, New York, and responsible for major business and

operations decisions. Jerry Chambrone was the on-the-

spot manager of T.J. and responsible for the day-to-day

operations of the business.

CSC provided accounting and payroll services to a

number of businesses, and using its data base, it would

print out payroll checks that were delivered to clients in

various geographical areas. For some time prior to

November 1982, T.J. made CSC deliveries to Zone 48,

which is in Westchester, Putnam, and Dutchess Counties

in the state of New York. After Brinson Weeks, a CSC |

employee, was transferred from corporate headquarters |

in California to the White Plains office, however, he hired

Apple to replace T.J., and on November 15, 1982, Apple

began servicing the Zone.

About the time that T.J. lost the Zone 48 business to

Apple, Jerry Chambrone spoke about 1 to Joseph Rig-

gio, a childhood friend of Jerry and of his brother

Thomas. Chambrone told Riggio that Apple president

Miller had “infiltrated a trucking route which was under

contract by T.J. and had made no attempt to come and

try and talk to us abfo]ut it.” Chambrone asked Riggio to

talk to Miller and “make the man understand what he

was doing wasn’t right.”

As a result, Riggio went to Miller’s home in West

Milford, New Jersey, on November 20, 1982. Riggio

urged Miller to stop doing bueiness with CSC. Although

Riggio denied it, Miller testified that during this conversa-

tion Riggio threatened to burn down his house and blow

up his car. Riggio himself admitted at trial that he had

compared the payroll delivery business to the garbage

business, suggesting that truckers have “area rights” and

2508

that “the only way to survive” is to have “respect for each

other’s work.” Miller also testified that Riggio “said he

was sent by Tom Ciambrone.” Riggio told Miller, as they

both testified, that the [Ch/Cijambrones had “obligations

in New York City” and that “{t}here are certain friends

that take a personal interest in their business dealings and

financial obligations.” Miller told Riggio he wanted to

speak to Thomas Ciambrone, and Riggio agreed to ar-

range a meeting.

Riggio then relayed his conversation with Miller to

Jerry Chambrone and warned Jerry that Thomas Ciam-

brone’s conversation with Miller should be “strictly busi-

ness” since Miller might be tape recording the

conversation. Jerry Chambrone said he would relay Rig-

gio’s description of the conversation with Miller to

Thomas and told Riggio that his brother would take an

11:30 flight from Florida to New York the following day,

November 21, 1982. Riggio relayed this information to

Miller, who agreed to meet with Thomas Ciambrone on

November 22, 1982.

Thomas Ciambrene caught his 11:30 flight and made

several altempts to reach Miller during the day and

evening of the 22nd. The Apple president, however, spent

the day with the New Jersey State Police, and Ciam-

brone’s initial efforts to contact him at work were thus

unsuccessful. At 9:30 p.m., after making numerous

phone calls and after going to the Apple office and

banging on the door, Thomas Ciambrone finally reached

Miller by telephone at home and they agreed to meet the

following day.

Miller wore a microphone and transmitter during his

meeting with Ciambrone so that the conversation that

2509

ee TT a TT

took place was recorded by the New Jersey State Police.

A transcript and tape recording of that conversation were

in evidence at trial with only a few details of the conversa-

tion in dispute. This court has listened to the tape record-

ing. The conversation is important to the case and

therefore will be recounted here at some length.

After some preliminary amenities, Miller asks Ciam-

brone, “So what do you have to talk to me about?”

Ciambrone responds, “I just thought there was a couple

things you should know so, the rest of it is up, up to

you.” According to the Government's version of the tape,

Thomas Ciambrone then says, “We have a contract with

them. | want you to realize that, ya know. And uh, are

you facing me because I am on tape recorder or . . . ?”

According to the appellaat’s version, he says, “We have a

contract with them. I want you to realize that, ya know.

And, uh, are you facing that way because I’m not tape

record—|[unintelligible}].” We think the Government’s ver-

sion makes more sense and, having listened to the tape,

are convinced that in any event Thomas Ciambrone,

following up on Riggio’s suggestion to Jerry Chambrone,

was—almost in a laughing manner—checking out whether

he was being tape recorded. Miller replies, “No. You want

me to sit this way?” Appellant says, “I don’t care.” He

then begins to talk about his contract with CSC and T.J.’s

eighteen years of work for the computer company. Partly

unintelligible conversation takes place in the course of

which Thomas Ciambrone says that “we're goin{g] to

court,” and then he says that

all the other messenger services, heavy, heavy mes-

senger services, uh, armored trucks, (unintelligible)

they haven't bothered to touch it because they know

the situation and I guess you didn’t know so I just

2510

figured | let you know because what it will end up

being is we’re going to court. You'll probably be

named in it which will be very stupid. You’d have to

be.

After discussing the litigation, Ciambrone adds, “I just

figured when the drivers, for some reason have been

pissed, and said they were gonna take things in their own

hands and all the rest of that shit, I said that’s stupid.

Right!” This last comment could clearly be taken as a

hint at violence on the part of T.J.’s drivers.

After some more discussion, Ciambrone informs

Miller,

i felt personally, okay, I can’t speak for other people

but since I’m the owner of the company uh, I think

you should just. . . . You’re turning open a big can

of worms here. They’re using ya. And I know you

want the business. They’re holdin[g] back. Show you

letters, payment that they owe us for some work that

we've done.

Miller tells Ciambrone that CSC asked him to apply for

the business, that he gave the company a price on Zone

48, and that CSC accepted his offer.

The conversation then turns to a subject of critical

importance in determining whether Ciambrone was in-

volved in the conspiracy. With obvious reference to Rig-

gio’s comments of two days before, Miller says, “Alright

now I’m being threatened. Where, where do I come down

there. Where do | stand?” Ciambrone abjures, “Not by

me you’re not [being threatened].” Miller responds,

“Well, Joe Riggio came here and said he was sent by you.

Said he. . . .” Ciambrone interrupts,

2511

No sir, not by me. I don’t, I don’t threaten anybody.

I never threatened anybody in my life. Ever. Like |

said, and I say this very seriously. The drivers have

gotten really, they grew up with everybody here and

some of the people that work for you grew up with

them. Okay. Uh, I don’t deal in business that way, |!

never have.”

Parenthetically, it may be noted that the reference to the

drivers is presumably to Ciambrone’s earlier comment

that they were “pissed off.”

Ciambrone continues,

The one thing that I have, and I’ve had all my life,

including right here . . . is a reputation. I have my

word, my bond and if anything, all the customer

relationships that we have with regards to the areas.

First of all, they’re with, they’re with the unions,

which I’m not. Understand that, I never have been.

Miller presses Ciambrone by asking, “Is Joe Riggio with

the union?” Ciambrone replies, “They. . . everybody’s

with the unions. I’m not with the unions.”

Miller asks Ciambrone, “Does he [Riggio] work for

you?” According to the Government's version, the T.J.

president replies, “Joe Riggio never worked for me at

all.” According to Ciambrone’s version, he replies, “Joe

Riggio don’t work for me at all.” We are inclined to take

the latter version since Miller’s next question—“Did he

ever work for you?”—makes sense only as a follow-up to

Ciambrone’s version of his statement. In any case, Ciam-

brone answers the question, “Uh, ten years ago, five or

eight years ago, nine years ago. Worked for the same

company. They got rid of him.” Miller next asks Thomas

2512

Ciambrone, “They did or you did [fire Riggio}?” Ciam-

brone says, “They didn’t want him. See, part of the

contract reads they have the right. If they don’t like

somebody, they don’t give a shit who he is, they have the

right to release him.”

‘Thomas Ciambrone tries tc change the subject. He

says, “If you have a driver that could be the best in your

business and they don’t like him, they have the right to do

that. Now ... .” But Miller leads him back to the

threat. “[O]ne thing that I don’t particularly like Tom, is

the fact that whea I was approached on this, it was

through a threat. My driver was threatened, | was per-

sonally threatened that my house would be blown up or

burned down.” Ciambrone asserts, “Well, I, I have no

idea about that.” Miller persists, “He came as a direct

messenger from you... .” “No sir,” Ciambrone inter-

rupts. Miller then pointedly comments, “And after |

spoke to him I said I’d like to talk to you and the next

day you’re flying up here to talk to me.” Miller’s observa-

tion implies that Riggio’s and Ciambrone’s activities were

closely connected and that Ciambrone had knowledge of

Riggio’s behavior since Ciambrone had traveled from

Florida to New Jersey in response to a request made by

Miller to Riggio. Ciambrone fails to rebut the implica-

tion. He confusedly says, “I was flying up hereto...

no, | was gonna see you anyway. I had a meeting, uh with

CSC. We were in a meeting right now for four hours.” He

again changes the subject, “They’re ready. . . . Because

of the last letters that we sent which is gonna uh, the next

letter which will be sent I guess legally which will incorpo-

rate the constitution of our services and it will incorporate

you so uh, | mean we know where the service comes

from.” He follows this with, “I don’t do things like that

2513

{threaten people]. Uh, that can be only verified by uh,

500 people in this town. Some of them don’t like me,

jealous or whatever, okay, 1 don’t do things that way.

Never have, don’t intend to, don’t want to.” There is not

a word spoken in outrage at Riggio’s threats, much less a

statement that Ciambrone will try to stop Riggio from

making or carrying out such threats. Ciambrone merely

tries to distance himself from Riggio’s actions.

What people may want to do and Say is their prerog-

ative, okay, they and the company, which pays us for

this service, okay, we pay unions to stay out of our

hair. Since the company has cut back and not paid

me my dollars and my monies and everything else

that’s involved, okay. The unions have the preroga-

tive to do whatever the hell they want. I don’t pay

them. I paid them for 15 years. Leave me alone,

what do you want, policemen’s ball or whatever the

hell they call it.

Ciambrone is obviously alluding to the fact that he has

had to pay off the unions to keep them from creating

problems for his company and he implies that Riggio is a

union person. He then discusses CSC: “[{T]hey’re

hurtin[g] because they put somebody in the job [Brinson

Weeks] that didn’t know what the hell’s goin[g] on and

they don’t have the right to go and do what they’re

doin[g]. 1 come to speak to you because I was comin([g} to

speak to you anyway,” suggesting that he did not come

because Riggio asked that he do so. Ciambrone con-

tinues,

I came to speak to you because the drivers thought

that I should speak to the people that are involved

and tell {’Jem, explain to [’Jem that hey, we do have a

2514

contract, ah what they’re doing is creating a hurt on

the people that should be working. All you’re doing

is taking work off somebody that was working

This statement alludes back to the drivers being angry. He

then goes on to say,

The only point of issue is that the service that we

have, and the only service that we have is the whole

total effort. . . . If you like you can call the lawyer,

you can go see the contract yourself. You can read it

and make your own decision. I just think that it’s

gonna get to be a real stupid, ridiculous nonsense of

a lawsuit. ...

He says that CSC owes T.J. over half a million dollars

and that “[wJhen it comes to damages and claims, we’re

gonna have to include all the people that have created us

damages and claims. You’re gonna be one of them, that’s

what the lawyer told us.” He says, “You could do

business with [CSC]. Ali their business is supposed io

come to us.”

Miller suggests that it would bé “stupid” for Apple to

stop working for CSC. Thomas Ciambrone replies, “No,

I’ll tell ya, at this stage of the game I don’t think that uh,

uh, anything you want to do is stupid, you have [to] go to

work and do what you gotta do.” After asserting that T.J.

won its contract with CSC through competitive bidding,

he refers again to the “big lawsuit.” And Ciambrone says,

“] was told not even to bother to come [to see Miller]. |

said, well, I live in town. 1 do know the guy. And | did

know you. Well, let me go talk to him.” Then he refers

back to the threats:

2515

As far as people coming up to talk to you or do

things, I have no idea. Don’t wanna know about it, |

don’t care to know about it. And you can tell

{"Jem—anybody. It has nothing to do with... .

Don’t ever let them use my name. I don’t use people.

I use myself as an individual. | do it by the law. I’ve

done it that way. Good, bad or indifferent, if it

comes out that’s what God meant it to be. If it comes

out good, then I’m right. If it comes out bad, then

I’m stupid. I’ve been there before . . . many years

ago, uh, it came out bad but it ended up coming out

good because uh, a year down the road uh, it was a

reversed decision. . . . Hey listen, there are a lot of

people out there that prostitute, 1 don’t believe that

you should do that in your business.

Ciambrone continues,

I don’t think that you come from the areas where

people would just do it [whatever “it” is] to be

spiteful. They’re using whatever method they can to

try to bring iny company to its knees. . . . Uh, for

your own knowledge, let them show you a contract,

if they will.

He then stresses that T.J.’s contract is an “exclusive” one.

Miller says that he is going to stay in business with CSC

but asks Ciambrone to give him a copy of the contract so

that he can evaluate the situation. Ciambrone replies,

“[W]hy don’t you ask them for the contract. See if they’ll

allow you to read the contract?” Miller says that CSC will

not allow him to do so. Ciambrone says, “I’d show you,

but I would like you to ask them first. There’s a reason

for this. The story of Moses uh, and the pharaohs.” The

story that Ciambrone relates is that of two women who

2516

come with a baby and one says we'll split it in half

and the other one says no give the baby whole. The

pharaoh knows which one is the mother because the

mother wants the baby in one piece. Just see what

they’ll say. What else can I tell you. |

Ciambrone says if CSC refuses to allow Miller to examine

the contract, “[t]hat’s gonna tell ya somethin{g}. I'll still

let you read mine. I'll tell my lawyer, you know.” Miller

asks him if he has a copy of the contract and Ciambrone

says, “I don’t have it here.”

After some further conversation, Ciambrone returns to

a topic previously discussed.

It’s your prerogative. The rest is up to you. I just

figured it’s gonna be shit. You know, its gonna be,

excuse the expression, it is gonna be uh, a big uh

hullabaloo. It’s gonna be uh, wh litigation, it’s gonna

be arbitration, part of the contract, and part of the

court you’re innow, . . . [WJe’ll have to subpoena

whoever the hell, is gonna be involved in this thing.

After a brief interchange, Ciambrone delivers a long

monologue and urges Miller to “feel them out first,”

“[s]ee who’s on the right side or the wrong side of the

coin,” “get a hold of the contract.” He continues: “I

came which, for all practical purposes I shouldn’t even

have bothered. I mean, I’m being up front with ya. What

happens only comes out in the wash. And uh, if it uh, if it

comes down, it may be very bad for me for being here.”

He does not explain what “# comes down” means or why

his meeting with Miller could “be very bad” for him.

2517

Ciambrone tells Miller,

I’m being very up front with you. [’}Cause they

could say [whoever “they” are] well 1 came to see

you and whatever else is involved. 1 came to just

explain to you exactly what they’re doing, okay.

Whether you do or don’t do business with them is

none of my God damn business, okay. . . . If it’s

fair, competition is the greatest thing in the world.

He alludes to his pride in his years of service and

continues,

I don’t care in the least, I really don’t. It’s just that

when somebody prostitutes what they’re doing, and I

use that word in the fashion that it’s meant. Uh,

that, that bothers me, they’re not being sincere and

up front about what they’re doing and | think that

you should at least, at least have the privilege to

know what they’re doing. ©

He continues,

I don’t know what the hell is gonna come about. Uh,

where it’s gonna go from that point. It may go 100

percent in your favor. You know, I don’t know

what’s gonna happen when you go to the court. You

know uh, Sacco and V{a]nzetti, if you remember that

case. Two of the most innocent guys in the world and

. . they nearly put [’Jem to death.

Milier informs Ciambrone that until he sees a contract

he will continue to do business with CSC. Ciambrone

says, “Fine,” and Miller reminds him that “right now, I

have nothing to read.” Ciambrone reassures him that he

will give him a copy of the contract if he is allowed to, “if

it’s legal or whatever.” When Miller subsequently refers to

2518

Ciambrone as “Joe,” confusing him with Riggio perhaps,

Ciambrone takes umbrage: “Tom. . . . Please don’t call

me that.”

Ciambrone again asks him to ask CSC for the contract

and adds a rather odd allusion, .

Okay, you ask them. That’s all. You know, who gives

blood and who won’t. If I come up and say here’s

my arm take the blood, the other guy says I will but

he doesn’t . . . who’s your friend? You know what

I'm trying to say? I’m not saying I’m their friend,

I’m just explaining what’s going on .... You

know? But, uh and I don’t send anybody knocking

on your door. Ever. Before I do that. I have four

children, I have a home, I believe very strongly in

God, I don’t believe in that shit. Excuse the expres-

sion. I believe in talking to people like you’re sup-

posed to ialk.

“Okay,” says Miller, and Ciambrone says, “Thank you

very much for the time.” Miller says, “Take care.”

On November 24, 1982, the day afier the meeting

between Miller and Ciambrone, Brinson Weeks of CSC

was followed by three men in a truck after pulling out of

the CSC lot, but he was able to evade them, return to

CSC, and secure an escort home. On December 21, 1982,

when Scott Kunzelman, the Apple driver then assigned to

Zone 48, arrived at work Jerry Chambrone told him to

“watch yourself” and as he drove away Kunzelman was

then followed by a car with “T.J. Trucking” written on

the side. He, too, eluded his pursuer. During this same

period Jerry Chambrone told a CSC employee, Norman

Harrison, “that he was aware of where Scott [Kun-

zelman] socialized when he was not working, and that if

2519

he didn’t stop. . . if they didn’t give him back Zone 48,

that he was going to cut his balls off.” All defendanis

were convicted on the subsiantive count that this threat

involved.

Six months later, on June i, 1983, Brinson Weeks’s car

was set On fire as it sat in a numbered space in a lot

outside of his apartment complex in Greenwich, Connect-

icut, at an early hour of the morning. Jerry Chambrone

told two men at CSC in a recorded conversation that

whoever firebombed Weeks’s car “only warned him,” and

added that “If I doit. . . I’ll make sure that fucker is in

ii. He deserves to be in it.” At the trial, Riggio testified

that in a conversation with Jerry Chambrone during the

summer of 1983 “{ijt was said that Mr. Weeks had a

probiem” and that Jerry was “in a good mood” in

discussing Weeks’s house being blown up and his summer

home catching fire in Colorado.

in early September 1983, when Miller made no further

attempt to contact T.J. Trucking and CSC continued to

have Apple do the delivery work, Chambrone asked

Riggio to burn one of the Apple driver’s cars. Riggio

twice drove to CSC with a Molotov cocktail ready to light

and throw, but each time he arrived after the cars had left

for the day. After the second of these occasions Cham-

brone indicated to Riggio that Miller “should be taught 2

lesson” and they later discussed blowing up Miller’s

house. Riggio testified that he warned Chambrone that

“they are going to come down like a ton of bricks on us

. All of us, probably your brother, you, me.”

Chambrone said he wanted the house to be blown up and,

according to Riggio’s testimony, “made a gesture with his

hand going down towards the ground as he said that.”

The price for the job was to be $4,000. On October 5,

2520

anand

1983, Riggio, accompanied by a friend, Frank Romano,

went to the Miller home and one hurled a Molotov

cocktail in the front of the house and the other threw one

at the window of Apple’s office, which adjoined the

house. Both buildings caught fire.

The police arrested Riggio during the early morning

hours of October 6, 1983. Later that morning a brief

collect telephone call was placed from the T.J. office in

White Plains to Thomas Ciambrone in Florida.

Chambrone paid Riggio $4,000 in cash for the fire-

bombing and Riggio gave his partner Romano half of

that. In addition, Riggio subsequently received $20,200

from Jerry Chambrone. The firebombings of the Miller

home and the Apple office were the subjects of Counts

Five and Six of the indictment; Ciambrone was found

guilty of attempted extortion on both counts.

About a month after the firebombings, Jerry Cham-

brone blocked the path of Apple driver Linda Daly in the

CSC lot and followed her back and forth as she loaded

her car, telling her in an angry voice, “I want you to tell

Don Miller that I’ll never forgive him for as long as } live,

and I’il remember him for a long time to come.” The

threat was the subject of Count Seven in the indictment;

Jerry Chambrone was convicted on that count, but

Thomas Ciambrone was found not guilty.

DISCUSSION

It is clear that there was a conspiracy to commit

extortion. There was overwhelming evidence that Jerry

Chambrone and Riggio were participants in such a con-

spiracy and there were repeated incidents of threats as

2521

well as violence in seeking to force Apple and CSC to

abandon their business relationship. The question is, of

course, whether there was sufficient evidence to link

Thomas Ciambrone to that conspiracy. In answering that

question, we are required, in view of the jury verdict, to

consider the evidence in its totality and make all permissi-

ble inferences in the light most favorable to the Govern-

ment. United States v. Orozco-Prada, 732 F.2d 1076,

1081 (2d Cir.), cert. denied, 105 S. Ct. 154 (1984); United

States v. Carson, 702 F.2d 351, 361-62 (2d Cir.), cert.

denied, 462 U.S. 1108 (1983). Moreover, as this court has

recently held, “{o}nce a conspiracy is shown to exist, the

‘evidence sufficient to link another defendant to it need

not be overwhelming.’” United States v. Provenzano,

615 F.2d 37, 45 (2d Cir.), cert. denied, 446 U.S. 953 (1980)

(quoting United States v. Head, 546 F.2d 6, 9-10 (2d Cir.

1976), cert. denied, 430 U.S. 931 (1977)); United States v.

Paone, Nos. 84-1454 e1 al., slip op. at 1476 (2d Cir. Feb.

5, 1986). It is necessary only that there be “evidence of

such substantiality as to justify a reasonably minded jury

in believing beyond a reasonable doubt that the defendant

was, in fact, connected with the conspiracy.” United

States v. Malatesta, 583 F.2d 748, 762 (Sth Cir. 1978)

(Coleman, J., concurring), aff'd en banc, 590 F.2d 1379

(Sth Cir.), cert. denied, 440 U.S. 962 (1979). Bul cf.

United States v. Tyler, 758 F.2d 66 (2d Cir. 1985) (con-

spiracy conviction reversed on sufficiency grounds where

no evidence of an agreement between the only two alleged

Participants).

On balance, we find there was sufficient evidence to

support Thomas Ciambrone’s conviction. Ciambrone was

intimately involved with T.J.’s operations. He was presi-

dent of T.J. and stood to lose or gain as much as anyone

2522

depending on the outcome of the conspiracy. He made

major decisions and, although he lived in Florida, he

talked with his brother, the day-to-day manager of the

company, as often as three times daily. Ciambrone also

clearly participated in the nonextortionate part of the

campaign to win back the business that Apple had taken:

he met with Brinson Weeks on three occasions to discuss

arbitration or settlement of the Zone 48 problem. Of

course, these facts and incidents alone would not have

permitted the jury to infer that Ciambrone and his

brother consulted about the extortion scheme and the

hiring of Riggio. But combined with the Miller-Ciam-

brone conversation, its context, and both prior and subse-

quent events, they adequately supported Ciambrone’s

conviction.

According to Miller’s testimony, at the meeting at

which Riggio threatened the Apple president, Riggio

informed Miller prior to the threat that he had been “sent

by Tom Ciambrone and that he [presumably Ciambrone]

had friends and obligations in New York City and that

those friends were also his [presumably Riggio’s]

friends.” The question eliciting this testimony was ob-

jected to on unspecified grounds, presumably hearsay.

But the admission of the statement was still proper under

United States v. Geaney, 417 F.2d 1116 (2d Cir. 1969),

cert. denied, 397 U.S. 1028 (1970). There we held that if

the trial court judge is properly satisfied that a fair

preponderance of nonhearsay evidence indicates that the

defendant participated in the conspiracy, a statement

made during the course of and in aid of the conspiracy is

adinissible under the coconspirator exception to the hear-

say rule, Fed. R. Evid. 801(d)(2)(E). Thus, Riggio’s

2523

comment was admissible under this exception.' As Judge

Carter correctly found, a fair preponderance of the non-

hearsay evidence, i.e., Ciambrone’s control of T.J., the

circumstances and context of his meeting with Miller, and

the statements he made at that meeting, indicated that

Ciambrone was a member oi the conspiracy.

In response to Riggio’s threats, Miller asked to meet

with Thomas Ciambrone. The rapidity with which that

request was satisfied bolsters the conclusion that Ciam-

brone was involved in the conspiracy. The jury was

certainly entitled to infer that Jerry Chambrone relayed

to Ciambrone Miller’s request of Riggio to see Tom; in

accordance with the schedule established by Riggio and

Miller, Ciambrone flew from Miami to New York the

following day, as Riggio informed Miller Ciambrone

would. The latter’s repeated calls and banging on the

Apple office door, coupled with his lame excuses about

having been in the area to meet with CSC, reinforce the

conclusion that Riggio had indirectly conveyed to Ciam-

brone that it was urgent that he meet promptly with

Miller. Moreover, the jury was surely entitled to infer

from Thomas Ciambrone’s question of Miller at the very

beginning of their conversation that Riggio’s caution that

Miller might be wired had also been relayed to Ciam-

brone. Ciambrone’s reaction to Miller’s assertion that

Riggio had threatened him is especially significant. He

was apparently not surprised by what Miller told him. We

'. Ciambrone objects, not just to Riggio’s statement that he was sent

by Ciambrone, but to the admission of a whole series of coconspirator

statements on the grounds that they were inadmissible hearsay. Ciam-

bronc’s argument with respect to cach of these statements is that there

is insufficient evidence linking Ciambrone to the conspiracy and that

the requirements of Geaney were thus not satisfied. Since we find there

was adequate evidence under Geaney, Ciambrone’s objections fail in

cach mstance.

2524

Ss ee ewwe ical

also note that Ciambrone never got angry or attempied to

Suggest that a threat to blow up or burn down Miller’s

house was outrageous, illegal, should be investigated, or

the like. There is not a shred of evidence through cross-

examination of Riggio or otherwise that, having been

informed of these threats by Miller, Thomas Ciambrone

even made further inquiry about the threats, let alone did

anything to prevent them from being carried out.

Riggio’s comment to Miller that he was “sent” by

Ciambrone, the way in which the Miller-Ciambrone meet-

ing was set up, Ciambrone’s reaction to Miller’s state-

ments about Riggio, and the nature and extent of

Ciambrone’s ties with T.J. in general and Riggio in

particular taken together warrant the inference that

Ciambrone knew of the conspiracy. This inference is

supported by the fact that the conversation with Miller

shows a consciousness of guilt. Surely Ciambrone’s ques-

tion relative to his being tape recorded conveys the

suggestion that perhaps he will not go as far as he would

like to because he believ~s he might be tape recorded,

which in turn would convey to Miller more apprehension

than he might otherwise feel. Ciambrone’s statement that

“if it comes down, it may be very bad for me for being

here. . . . ["}Cause they could say well I came to see you

and whatever else is involved, implies, at least as one

inference, that the “they” he refers to there is not just

CSC, though only a sentence later his use of “they” does

refer to CSC. Ciambrone also atiempted to distance

himself from Riggio in a way that suggests consciousness

of guilt. He stated that Joe Riggio had not worked for

him for years, though the jury could fairly infer that he

must have known from his brother Jerry that Riggio had

indeed set up the meeting with Miller two days before. In

2525

apparent reference to Riggio’s threats, Ciambrone says,

“Don’t wanna know about it, 1 don’t care to know about

it.”

The jury could also validly find that the conversation

with Miller was an act in furtherance of the extortionate

scheme. Admittedly, the conversation contains repeated

disavowals by Ciambrone that he himself would do busi-

ness through threats, and the menacing interpretations

urged by the Government are too tenuous to accept. Al

the same time, Ciambrone’s reference to other messenger

services, especially those in armored cars, as not bother-

ing to touch CSC “because they know the situation” as

well as the reference to T.J. drivers being “pissed off” and

ready to take things into their own hands left to Miller’s

imagination just what Riggio’s relationship to the T.J.

drivers was, if any, and certainly did nothing to allay

Miller’s fears. As Judge Carter said in ruling on Ciam-

brone’s motion for a judgment of acquittal prior to

submission to the jury pursuant to Federal Rules of

Criminal Procedure 29(c): “Viewing this conversation

. aS a whole, the implication is that Mr. Thomas

Ciambrone is warning Mr. Miller that although he ‘s not

at fault and he may be innocent, there will be serious

trouble for him unless he gets out of his association with

Computer Sciences.” And when the references to poten-

tial violence are seen in light of the visit Riggio had paid a

couple of days before, the jury could readily infer that

Ciambrone knowingly aided the conspiracy by attempting

to convey to Miller that violence was an appropriate

response if Miller refused to back down.

United States v. Cianchetti;315 F.2d 584, 587 (2d Cir.

1963}, does not help Ciambrone. There, the evidence

showed that defendant “abstain[ed]” from criminal activ-

2526

BEST AVAILABLE COPY

ity. Here, all that is necessary for proof of guilt is that an

overt act or act were performed by one or more of the

conspirators, coupled with evidence that Ciambrone

joined in the unlawful agreement. See United Siates v.

Prampiano, 271 F.2d 273, 275 (2d Cir. 1959). It is true

that Ciambrone in portions of the conversation denied

threatening Miller and portrayed himself as a man who

acts in accordance with law. Nevertheless, the conversa-

tion sufficiently related to violence so that, when coupled

with Ciambrone’s inquiry as to whether the conversation

was being tape recorded, it was proper for the jury to

treat the conversation as if Ciambrone was simply trying

to protect himself while nevertheless lending weight to the

conspiratorial scheme. In sum, there was an adequate

basis for the conviction on Count One, the conspiracy

count.

Ciambrone’s guilt of the crimes charged in Counts

Four, Five, and Six involving the threat to the bodily

parts of the driver Scott Kunzelman, the firebombing of

Miller’s house, and the firebombing of the Apple office

was properly founded on correctly charged aliernative

theories. The first is based on PinrkerTon v. United States,

328 U.S. 640 (1946), by virtue of which a member of a

conspiracy may be held criminally liable for substantive

offenses committed by his co-conspirators in furtherance

of the conspiracy when those crimes were a “reasonably

foresee[able]” consequence of the agreement. Jd. at 647-

48. Proof that a defendant knew of the conspiracy’s

essential nature is sufficient. See Untted-Stetes+. Proven-

zano, 615 F.2d 37, 44 (2d Cir.), cert. denied, 446 U.S. 953

(1980). Given Ciambrone’s participation in the con-

spiracy, the threat made jo Harrison about Kunzelman as

well as the firebombings themselves were reasonably fore-

2527

BEST AVAILABL

seeable within the meaning of Pinkerton, 328 U.S. a

646-48. See also United States V- Cirillo, 468 F.2d 1233,

1239 (2d Cir. 1972), cert. denied, 410 U.S. 989 (1973.

Ciambrone’s convictions on the substantive counts cf

attempted extortion were also proper under the alterné-

tive aiding and abetting theory, which was also charged 0

the jury. By virtue of Ciambrone’s meeting with Mille,

Ciambrone lent weight and authority to the prior and

subsequent threatening conduct and action by Jerry

Chambrone and Riggio, especially by referring to the

steps and possible retaliation that the T.J. drivers might

take if Miller kept the CSC contract. It was immaterial

that Ciambrone was not proven to be specifically aware

of the particular means used to carry out the criminal

activity, see United States v--BéCR, 615 F.2d 441, 448-{2

(7th Cir. 1980); United States v. -tstin,~SB5 F.2d 1271,

1277 (Sth Cir. 1978); United States+—Erb, 543 F.2d 433,

445-46 (2d Cir.), cert. denied, 429 U.S. 981 (1976), or o

have “participated in every phase of the criminal vei-

ture.” United States v. Diecidue, 603 F.2d 535, 557 (Sh

Cir. 1979), cert. denied, 445 U.S. 946 (1980).

Ciambrone argues that the district court’s instruction

to the jury on conscious avoidance lacked any basis in

evidence and suggested that the Government was mt

required to establish that he was a willful participant in

the conspiracy. The instruction given is set forth in he

margin.” It was given, however, in connection with te

substantive counts of attempted extortion rather thanin

. In determining whether the defendant you are considering aced

knowingly and wilfully, you may consider whether that defendini

deliberately closed his eyes to what otherwise would have ben

obvious to him, and that is a consideration of some importance in

this case, particularly with regard to Thomas Ciambrone’s contn-

tions.

2528

connection with the conspiracy count. As we held in

United States v. Kankent-738 F.2d 538, 547 & n.1 (2d

Cir. 1984), membership in a conspiracy cannot be proven

by conscious avoidance, since the requisite mental state

for conspiracy is intent. Conscious avoidance of partici-

pating in a conspiracy and agreeing to be a member of a

conspiracy are mutually exclusive concepts. But the in-

Structions here were given in accordance with Judge

Carter’s previous indication that he would “explain the

charge of conspiracy after I have explained the other

substantive counts in the indictment”; they were given

only in respect to the substantive counts. The judge

repeated after giving the conscious avoidance instruction

that “I have just reviewed with you the elements of the

substantive charges set forth in Counts Two through

Seven. In a moment I will review with you the elements of

the conspiracy charge set forth in Count One.”

He then discussed in depth Count One, the conspiracy

count, and clearly stated that “[t}he gist or essence of the

it is settled law that a finding of guilty knowledge may not be

avoided by a showing that the defendant simply closed his eyes to

what was going on about him; “see no evil” is not a maxim in which

the criminal defendant should take any comfort.

Guilty knowledge cannot be established by demonstrating mere

negligence or even foolishness on the part of a defendant. However,

it iS MOL necessary, for instance, thal the government prove to a

certainty that Thomas Ciambrone knew that Joseph Riggio, for

example, was directly threatening physical injury and violence in

demanding that Apple stop doing business with Computer Sciences.

You may find the defendant had such knowledge if he was aware of.

a high probability that it was so, unless he actually believed that no

threats were being employed by Riggio.

Thus, if you find thai the defendant you are considering acted

with deliberate disregard of whether threats were used and with a

conscious purpose to avbid learning the truth, the requirement of

knowledge would be satisfied, unless the defendant actually be-

lieved that threats were not used.

2529

offense is a combination or mutua: agreement by two or

more persons to disobey or disregard the law.” He spelled

out that the evidence on the conspiracy count must show

beyond a reasonable doubt that “two or more persons in

some way Or manner positively or tacitly came to a

mutual understanding to try to accomplish a common

and unlawful plan”; that the defendant “whom you are

considering wilfully became a member of such con-

spiracy”; that “one of the conspirators during the exist-

ence of the conspiracy knowingly committed at least one

of the means or methods or overt acts described in the

indictment” and that such act was “knowingly commit-

ted” in an effort to accomplish some object or purpose of

the conspiracy. He then essentially repeated these ele-

ments in more depth and made clear that in determining

whether a given defendant was a member of an alleged

conspiracy “the jury should consider only that evidence,

if any, pertaining to his own acts and statements” and

that a defendant is not responsible for the acts or declara-

tions of other alleged participants until it is established

beyond a reasonable doubt, first, that a conspiracy ex-

isted and, secondly, from the evidence of his own acts and

Statements that the defendant was one of its members.”

In standard language he charged that

mere presence at the scene of an alleged transaction

or mere similarity of conduct among various persons

and the fact that they may have associated with each

other and may have assembled together and dis-

cussed common aims and interests does not necessar-

ily establish proof of the existence of a conspiracy.

He added: “Also, a person who has no knowledge of a

conspiracy but who happens to act in a way which

2530

advances some object or purpose of a conspiracy does not

thereby become a conspirator.”

In short, the conscious avoidance charge was given

only as to the substantive counts as to which the evidence

warranted the giving of the charge. The charge thus

guided the jury as it deliberated about those counts and

considered Ciambrone’s conversation with Miller and

Riggio’s testimony that, after Ciambrone’s conversation

with Miller, Ciambrone never contacted Riggio to find

out what he had said to Miller or to determine whether

Miller’s allegation that he had been threatened was true.

See, e.g., United States v. McAllister, 747 F.2d 1273, 1275

(Mh Cir. 1984) (upholding conscious avoidance charge),

cert. denied, 106 S. Ct. 92 (1985).

Appellant also claims juror taint. On the second day of

deliberations, Juror Number Tweive informed the court

that during those deliberations Juror Number Four had

remarked that the defendants were “on the fringe of the

Mafioso” or “part of the mob.” With the consent of all

counsel, the court promptly questioned Juror Number

Four, who declared that she was “absolutely. . . not”

concentrating on the defendants’ ethnic background in-

stead of on the issues. She said that she had instead been

thinking of the evidence which indicated that the defen-

dants had “connections with other. . . elements. . . in

society.” When she had expressed her thought in the jury

room, Juror Number Twelve had asserted that as an

Italian she took Juror Number Four’s remarks as a

personal insult. The trial judge, after interviewing the

jurors involved and satisfying himself that there was not

enough in the record to warrant discharging either of

them, at the suggestion 6f counsel recalled the jury and

told it that there was

2531

nothing about the Mafia, about the Mafioso, there is

nothing whatever to interfere with your delibera-

tions.

The fact that they are Italian has nothing to do with

anything in your deliberations. .. .

This case can’t be based upon ethnic values.

.. . And the evidence that was introduced, the

statements of Mr. Riggio that the Ciambro[njes had

friends in New York, was admitted for your consider-

ation as to whether or not it constituted a threat. It

was not admitted for any other purpose and it is only

to be utilized by you for the purpose for which it was

received, that is, whether you feel that that statement

constituted a threat.

On the assumption that this point has been preserved in

the absence of an explicit request for the discharge of a

juror or the failure to seek a mistrial, there is no probabil-

ity of prejudice either on the part of one juror or the jury

as a whole. Judge Carter properly exercised his discre-

tion: by closely questioning the allegedly biased juror and

by giving the jury clarifying instructions, he ensured that

the verdict would not be tainted. See United States v.

Read, 658 F.2d 1225, 1241-42 (7th Cir. 1981).

Ciambrone’s argument that the district court abused its

discretion in denying his motion for a severance is un-

availing. While the case against Ciambrone’s brother was

considerably stronger than the case against him, there is

frequently a disparity in the proof offered against co-

defendants. See United States v. Carson, 702 F.2d at

366-67. As the different verdicts against the two men

Suggest, the jury was able to consider the case against

Ciambrone without a significant spillover effect from the

2532

case against his brother. Moreover, this was not a case in

which incompatible defenses cast one defendant in the

position of proving the case against the other. In short,

Ciambrone has failed to show “substantial prejudice

amounting to a miscarriage of justice,” United States v.

Wilkinson, 754 F.2d 1427, 1435 (2d Cir.), cert. denied,

105 S. Ct. 3482 (1985), and in the absence of such a

showing his severance argument fails.

Judgment affirmed.

2533

APPENDIX B

Order Deriying Motion for

Rehearing and Rehearing En Banc

'

CuCTED STAVES COURT OF APPEALS

rom TEs Secomp CIACUIT

At @ stated tere of the Gaited States Court of Appesis,

is eaeé tor the Second Circuit, held st the Onited States Courthouse,

ia the City of Mew York, om the i704 Gay of ney

one thousend sine bundred aad cighty-siz.

OSITED STATES OF AMERICA,

Appellee,

¥. Bo. 84-1249

ae

JTRRT A. CRARPROWE, THOMAS J. CLIAMBROUE, J8.,

Defendasts,

THOMAS J. CLAMEEOEE, JR.

Defendast-Appelilast.

A petition for rebesring coatasining «4 suggestion that

the ection be rebeard is banc bevieg been filed hereia by

counsel for the édefendant~-eppellast, Themes J. Clambrone, Jr.,

Opes comsidgeretice by the pemel thet beard the eppesl, it is

Ordered that said petitice fee rehearing is OEFIED.

It ie farther seted that the suggestion for rehearing ia

banc has bees tranemitted to the judges of the court ia requler

active service and te any other jutge thet beard the eppesl and

thet so euch jedq@e hese requested thet « vote be taken therece.

BEST AVAILABLE COPY