Opposition Brief — Ciambrone v. United States

NOV 21 1996

JOSEPH F. SPANIOL, JR.

CLERK

In the Supreme Court of the Gnited States

Octoper Term, 1986

THOMAS J. CIAMBRONE, JR., PETITIONER

UNITED STATES OF AMERICA

ON PETITION 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

WILiiaM F. WeLp

Assistant Attorney General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the district court abused its discretion in

not declaring a mistrial or discharging a juror after inves-

tigating allegedly prejudicial remarks made by that juror.

2. Whether the district court erred in giving a “con-

scious avoidance” instruction to the jury on the substan-

tive offenses charged in the indictment.

(1)

TABLE OF CONTENTS

Opinions Below

lA UGE Ea eR CN SE A RC

ENG Sg 2 A a Re

Ee

ee ESA a A Ne SE ae A a

TABLE OF AUTHORITIES

Cases:

Arizona v. Washington, 434 U.S. 497 ------------------

Francis v. Franklin, No. 83-1590 (Apr. 29 1985)

Pinkerton vy. United States, 328 U.S. 640 -_--.------------

Shotwell Mfg. Co. v. United States, 371 U.S. 341 =

Tennessee v. Street, No. 83-2143 (May 13, 1985) --------

United States v. Barnes, 604 F.2d 121, cert. denied, 446

U.S. 907

United States v. Ferquson, 758 F.2d 843, cert. denied,

Ne Sk i 5 Seta

United States v. Gigante, 729 F.2d 78, cert. denied, 467

U.S. 1206

l/nited States v. Guzman, 754 F.2d 4182, cert. denied,

No. 84-1604 (Jan. 13, 1986)

United States v. Heller, 785 F.2d 1524...--.----.-------__- 9,

lInited States v. Jewell. 532 F.2d 697, cert. denied, 426

I nitiiinnbeuuintion

United States v. Jones, 763 F.2d 518 --..--.---------------

United States V. Laymon, 621 F.2d 1951 seawecnawnmaed

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

Lnited States v. Mohabir, 624 F.2d 1140 -~.

[

'nited States v. Yonn. 702 F.2d 1341, cert. denied, 464

U.S. 917

Statute:

18 U.S.C. 1951 ---.

(III)

In the Supreme Court of the Anited States

OcTOBER TERM, 1986

No. 86-75

THOMAS J. CIAMBRONE., JR.. PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

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

2505-2533) is reported at 787 F.2d 799.

JURISDICTION

The judgment of the court of appeals (Pet. App. 2505)

was entered on April 4, 1986, and a petition for rehearing

was denied on May 22, 1986 (Pet. App. B). The petition for

a writ of certiorari was filed on July 21, 1986. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of New York, petitioner

was convicted of conspiracy to commit extortion and three

counts of attempted extertion, in violation of 18 U.S.C. ”

1951.1 He was sentenced to concurrent terms of ten years’

imprisonment and a fine of $4,000 on each of the four

counts.

1. The evidence at trial, the sufficiency of which is not

in dispute, is set out in considerable detail in the opinion of

the court of appeals (Pet. App. 2507-2521). Petitioner and

his brother, Jerry Chambrone, owned and operated a

delivery business called T.J. Associates. Chambrone man-

aged the company from its office in New York. Petitioner

resided in Florida, but as president of the company, he

was in regular contact with the New York office and made

major business decisions. In 1982, Computer Sciences

Company (“CSC”) withdrew certain delivery routes from

T.J. Associates and transferred them to Apple Messenger

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

The evidence at trial showed that petitioner participated

in an extortion scheme designed to regain those routes for

T.J. Associates. Pet. App. 2507-2508.

After petitioner’s company lost CSC’s delivery busi-

ness, Jerry Chambrone discussed the situation with

Joseph Riggio. He said that Apple president Miller had

infiltrated a trucking route under contract to T.J. Associ-

ates and asked Riggio to talk to Miller and “make the man

understand what he was doing wasn’t right” (Pet. App.

' Petitioner was acquitted on three counts of attempted extortion.

Co-defendant Jerry A. Chambrone, who was tried with petitioner,

was convicted on the conspiracy count and on four counts of

attempted extortion. Co-defendent Joseph Vincent Riggio, Jr.,

pleaded guilty to the conspiracy count and to one count of attempted

extortion.

3

2508). Riggio went to Millers home on November 20,

1982. Stating that he had been sent by petitioner, Riggio

urged Miller to stop doing business with CSC. He com-

pared the trucking business to the garbage business and

told Miller that truckers have “area rights” and that “the

only way to survive” was to have “respect for each other's

work” (id. at 2508-2508). Riggio also told Miller that peti-

tioner had “obligations” in New York City and that “cer-

tain friends” took a personal interest in petitioner's and

Chambrone’s business dealings and financial obligations

(id. at 2509). In addition, Riggio threatened to burn down

Miller’s house and blow up his car (id. at 2508).

Miller responded by telling Riggio that he wanted to

speak to petitioner, and Riggio agreed to arrange a meet-

ing. Riggio then told Chambrone about his conversation

with Miller. He warned Chambrone that petitioner’s

upcoming meeting with Miller should be “strictly busi-

ness” because Miller might tape-record it. Chambrone

agreed to relay that information to petitioner (Pet. App.

2509). Two days later, petitioner flew to New Jersey from

Florida. On November 23, 1982, petitioner met with Mil-

ler at Miller’s home. Miller taped the conversation, which

was central to the case against petitioner.

Petitioner began the conversation by inquiring

whether Miller was tape-recording him (Pet. App. 2510).

Miller denied that the conversation was being recorded.

Petitioner then stated that his company’s contract with

CSC was “exclusive” and that CSC did not have the right

to do what it was doing. He stated that “all the other

messenger services, heavy, heavy messenger services,

uh, armored trucks « * * they haven’t bothered to touch it

[CSC] because they know the situation * * *” (7d. at

2510-2511). He warned Miller that a ridiculous lawsuit

would result from CSC's transfer of the delivery route to

Apple and cited to Sacco and Vanzetti as an example of

4

what could happen in court. He warned Miller that the

T.J. Associate drivers were “pissed” and that they were

going to take matters into their own hands (7bid.),

When Miller told petitioner that he was being threat-

ened, petitioner stated “[n]ot by me you’re not” (Pet. App.

2511). Miller said that Riggio claimed to have been sent by

petitioner, but petitioner denied that Riggio worked for

him. Miller again complained about the threats, stating

that Riggio had threatened to burn Miller’s house down

(id. at 2513). Petitioner neither expressed outrage nor

stated that he would try to stop Riggio from making or

carrying out such threats; rather, he merely stated that he

“hal[d] no idea about that” and again denied that he had

sent Riggio (ibid.). Petitioner further stated: “As far as

peoplé coming up to talk to you or do things, I have no

idea. [I djon’t wanna’ know about it, I don’t care to know

about it” (7d. at 2516). Finally, petitioner acknowledged

that he was aware that his visit to Miller could cause him

problems: “And uh, if it uh, 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” (7d. at 2517-2518). Petitioner never contacted

Riggio, after the conversation with Miller, to find out

what Riggio had said to Miller or to determine whether

Miller’s allegations that he had been threatened were true

(id. at 2518).

Following petitioner's meeting with Miller, Chambrone

made threats to an Apple driver and a CSC employee. In

addition, someone began following the car of Brinson

Weeks, the CSC employee responsible for transferring

the delivery routes to Apple. Six months later, Weeks’ car

was set on fire as it sat in his apartment parking lot. Later,

Chambrone remarked to CSC employees that whoever

had firebombed Weeks’ car had “only warned him” and

that, if he were to do it, he would make sure Weeks was in

the car (Pet. App. 2519-2520).

5

When it became clear that CSC would not voluntarily

reverse its decision concerning the delivery routes,

Chambrone instructed Riggio to burn one of the Apple

driver's cars. Riggio made two unsuccessful attempts to

do so. Subsequently, Chambrone told Rigg.o that Miller

“should be taught a lesson” and discussed blowing up

Miller’s house. Riggio warned Chambrone that “they are

going to come down like a ton of bricks on us * * *. All of

us, probably your brother, you, me” (Pet. App. 2520).

Chambrone nonetheless stated that he wanted it done and

agreed to pay Riggio $4,000 for the job. Pursuant to those

instructions, Riggio burned down Miller’s house and office

on October 5, 1983. Riggio was arrested the next day.

Later that morning, a brief collect telephone call was

placed from the T.J. Associates office in New York to

petitioner’s residence in Florida (7d. at 2521).

2. In instructing the jury on the elements of the sub-

stantive extortion counts, the trial court gave the follow-

ing “conscious avoidance” charge (Pet. App. 2528-2529;

Tr. 814-816):

In determining whether the defendant you are con-

sidering acted knowingly and wilfully, you may con-

sider whether that defendant deliberately closed his

eyes to wha! otherwise would have been obvious to

him, and that 1s a consideration of some importance in

this case, particularly with regard to [petitioner's]

contentions.

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

nim; “see no evil” is not a maxim in which the criminal

defendant should take any comfort.

Guilty knowledge cannot be established by demon-

strating mere negligence or even foolishness on the

6

part of a defendant. However, it is not necessary, for

instance, that the government prove to a certainty

that [petitioner] knew that Joseph Riggio, for exam-

ple, was directly threatening physical injury and vio-

lence in demanding that Apple stop doing business

with Computer Sciences. You may find [petitioner] 1

had such knowledge if he was aware of a high proba-

bility that it was so, unless he actually believed that

no threats were being employed by Riggio.

Thus, if you find that the defendant you are consider-

ing acted with deliberate disregard of whether

threats were used and with a conscious purpose to

avoid learning the truth, the requirement of knowl-

edge would be satisfied, unless the defendant actu-

ally believed that threats were not used.

3. During the second day of deliberations, juror Rose-

marie Stolfa advised the court that she was having a

problem with one of the other jurors (Tr. 858-859). The

court, in the presence of government and defense counsel,

questioned Stolfa about the problem (Tr. 860-864). Stolfa

informed the court that another juror had stated during

deliberations that the defendants were “part of the mob,”

that they were guilty, and that she “hated them” and

wanted to “crush them” (Tr. 861-862). Stolfa stated that

she resented the remarks and that she felt that the juror

who made those remarks was prejudiced (Tr. 862-863).

After learning from juror Stolfa that the juror in ques-

tion was Elizabeth Haney, the court, in counsel's pres-

ence, twice questioned Haney about the incident (Tr.

866-869, 872-873). Haney explained that her remarks had

not been based on any ethnic bias, but rather on testi-

mony at trial indicating that the defendants were “on the

fringes of tne Mafioso” and had “connections with other

* * * elements * * * in society” (Tr. 869). Haney stated

that juror Stolfa had mistakenly taken her remarks as a

een eiarieamatniaiiilatiin

7

personal insult and denied having stated that “we have to

convict these people” (Tr. 872).

After the initial questioning of juror Haney, the court

stated that her remarks had been prompted by the testi-

mony at trial and that they did not indicate that she was

prejudiced or biased (Tr. 870-871). Counsel for co-defend-

ant Chambrone suggested discharging juror Haney (Tr.

874). Petitioner's counsel did not join that motion, but

suggested that the court instruct all the jurors that the

“Mafia” and the defendants’ ethnic background had

nothing to do with the case and that the jury should decide

the case on the basis of the evidence presented (ibid. ). The

court thereafter explained to juror Stolfa that there

apparently had been a misunderstanding and that juror

Haney’s remarks had not been based on any bias against

Italians but rather on certain evidence at trial (Tr. 876).

The court then instructed the entire jury along the pre-

cise lines suggested by petitioner's counsel and inquired

whether any of the jurors felt unable to follow the instruc-

tions (Tr. 879-880). None of the jurors expressed an

inability to do so.

4. The court of appeals affirmed petitioner's convic-

tions (Pet. App. 2505-2533). The court first held that there

was sufficient evidence to support the jury verdict that

petitioner had intentionally conspired to commit extor-

tion. In reaching that conclusion, the court pointed to

petitioner’s control of T.J. Associates, his participation in

the nonextortionate parts of the plan to win back CSC’s

business, the circumstances and content of the critical

conversation with Miller, and Riggio’s statement to Miller

that petitioner had sent him (Pet. App. 2521-2527). The

court also concluded that petitioner was properly con-

victed of the substantive extortion offenses under two

distinct theories (id. at 2527-2528). First, under Pinker-

ton v. United States, 328 U.S. 640 (1946), the court held

8

that petitioner was liable on the substantive counts,

because the attempted extortion offenses were reason-

ably foreseeable and were committed by petitioner's co-

conspirators in furtherance of the conspiracy. Second, the

court ruled that petitioner was liable for the substantive

offenses under an aiding and abetting theory, because

petitioner’s meeting with Miller “lent weight and

authority to the prior and subsequent threatening con-

duct and action by Jerry Chambrone and Riggio” (Pet.

App. 2528).

The court of appeals also rejected petitioner's challenge

to the “conscious avoidance” instruction (Pet. App.

2528-2531). The court found that the instruction had been

given only in connection with the substantive counts of

attempted extortion, not in connection with the conspir-

acy count. Accordingly, the instruction did not run afoul of

United States v. Mankani, 738 F.2d 538, 547 & n.1 (2d Cir.

1984), in which the court had held that membership in a

conspiracy cannot be proven by conscious avoidance,

because the requisite mental state for conspiracy is

intent. The court further concluded that the evidence

warranted giving the charge, because petitioner's failure

to make any inquiry or to take any action after being told

of Riggio’s threats might well be considered conscious

avoidance of knowledge of the threats being made on his

behalf (Pet. App. 2531).

Finally, the court of appeals also rejected petitioner's

claim of jury impropriety (Pet. App. 2531-2532). Assum-

ing the issue had been preserved even though petitioner

made no request to discharge juror Haney or to declare a

mistrial, the court held that there was no probability of

prejudice from the conduct of juror Haney or the jury as a

whole (id. at 2532). The court of appeals reasoned that the

trial court had properly exercised its discretion in ques-

tioning juror Haney and in giving the jury cautionary

9

instructions. By doing so, the court held, the trial court

had ensured that the verdict would not be tainted (ibid.).

ARGUMENT

The decision of the court of appeals is correct and does

not conflict with any decision of this Court or any other

court of appeals. Further review is therefore unwar-

ranted.

1. Petitioner argues first (Pet. 11-17) that his right to

a fair trial was abridged when the district court, after

learning of juror Haney’s alleged bias, refused to dis-

charge Haney from the jury and allowed the trial to

proceed. Petitioner contends that the court of appeals’

ruling on this claim conflicts with the Eleventh Circuit’s

decision in United States v. Heller, 785 F.2d 1524 (1986).

That contention does not warrant review.

To begin with, petitioner has not preserved the issue.

At no time after the identification or questioning of juror

Haney did petitioner’s counsel request either a mistrial or

the discharge of juror Haney.? Although counsel for peti-

tioner’s co-defendant suggested discharging juror Haney

(Tr. 874), petitioner’s counsel recommended instead the

very procedure that the trial court ultimately adopted.

Having proposed that course of conduct, petitioner can-

not now argue that the trial court’s actions constituted

error. See United States v. Jones, 763 F.2d 518, 523-524

(2d Cir. 1985), cert. denied, No. 85-643 (Nov. 12, 1985);

* Prior to learning which juror made the remarks complained of by

juror Stolfa, petitioner’s counsel said that if the juror really was

biased “it seems to me that she’s gone” (Tr. 865). But that comment

was made before counsel heard what the remarks were or whether

they evinced bias. After the interviews with juror Haney, petitioner's

counsel did not request a mistrial or the discharge of the allegedly

tainted juror.

10

United States v. Ferguson, 758 F.2d 843, 851-852 (2d Cir.

1985), cert. denied, No. 84-6967 (Oct. 7, 1985).

On the merits, petitioner’s argument rests on a critical

mischaracterization of the record. Petitioner twice states

in his petition (Pet. 15, 16-17) that, when questioned by

the trial court about the incident in question, juror Haney

admitted her ethnic bias. As the court of appeals noted

(Pet. App. 2531), however, that is not what occurred.

Juror Haney did not admit to ethnic bias, and the district

court found that her remarks were based on the evidence

at trial and not on prejudice against any ethnic group (Tr.

869-871). Thus, the premise of petitioner's argument of

juror taint is simply incorrect.

More broadly, the record shows that petitioner was not

deprived of a fair trial. The trial court, being in the best

position to evaluate the effect on the jury of events at trial,

is afforded broad discretion when confronted with allega-

tions of juror misconduct or prejudice. United States v.

Gigante, 729 F.2d 78, 82 (2d Cir.), cert. denied, 467 U.S.

1206 (1984); United States v. Yonn, 702 F.2d 1341,

1344-1345 (11th Cir.), cert. denied, 464 U.S. 917 (1983);

United States v. Barnes, 604 F.2d 121, 144 (2d Cir. 1979),

cert. denied, 446 U.S. 907 (1980); ef. United States v.

Laymon, 621 F.2d 1051, 1053 (10th Cir. 1980). For the

same reason, the trial court’s determination whether a

mistrial is warranted is entitled to special weight. A77-

zona v. Washington, 434 U.S. 497, 510 (1978). Here, the

trial court fully questioned jurors Stolfa and Haney and

determined that juror Haney was not laboring under any

preconceived notion of petitioner's guilt and did not har-

bor any ethnic bias against petitioner. Thereafter, at the

suggestion of petitioner’s counsel, the court carefully

instructed the jury that thoughts about the “mob” or the

defendant’s ethnic background were to play no role in the

deliberations and that the verdict was to be based entirely

ll

on the evidence. No juror voiced an inability to comply

with those instructions, and it must be presumed that the

jury complied with them. Tennessee v. Street, No. 83-2143

(May 13, 1985), slip op. 5, 7-8; Francis v. Franklin, No.

83-1590 (Apr. 29, 1985), slip op. 16, n.9; Shotwell Mfg. Co.

v. United States, 371 U.S. 341, 367 (1963).3 In these

circumstances, the court of appeals correctly held that

the trial court’s actions eliminated any question of juror

taint.

Finally, the decision of the court of appeals is not in

conflict with the Eleventh Circuit’s decision in United

States v. Heller, supra. There, several jurors had com-

mented on the testimony during the course of the trial,

they had made numerous blatantly anti-Semitic and racial

slurs in the presence of the entire jury, they had stated a

predisposition to “hang” the Jewish defendant, and one of

the jurors had independently consulted an accountant

about issues pertaining to the trial and reported the

results to the jury. The court of appeals reversed the

conviction on three grounds: (1) that the obvious bigotry

displayed by the jury denied the defendant a fair trial (785

F.2d at 1527-1528) (bigotry here was “so shocking to the

conscience and potentially so damaging to public con-

fidence in the equity of our system of justice, that we must

act decisively to correct any possible effects on this

appellant”); (2) that several jurors had entertained a pre-

sumption of guilt at the beginning of the trial; and (3) that

the jury had received extrinsic evidence concerning a

material matter in the case (7d. at 1528).

Nothing similar occurred in petitioner’s case. Not only

was there no resort to extrinsic evidence, but there was

* The jury's acquittal of petitioner on three counts is also signifi-

cant. Such a discriminating verdict supports the finding that the

jury’s decision was based on an examination of the evidence, and not

on bias or prejudice. United States v. Gigante, 729 F.2d at 82.

12

nothing resembling the pervasive misconduct that tainted

the jury in Heller. The only conduct alleged to taint the

jury deliberations in this case was limited to a single

incident involving the remarks of a single juror within the

hearing of only one other juror. Most important, however,

this case differs critically from Heller in that the district

court here found that the challenged remarks were not

indicative of prejudice at all, but were based on evidence

at trial.

2. Petitioner also argues (Pet. 18-23) that the “con-

scious avoidance” charge to the jury lacked any basis in

the evidence and improperly relieved the government of

the obligation to prove intent, an essential element of both

the conspiracy count and the substantive counts of

attempted extortion. The court of appeals properly

rejected that contention.

First, the court of appeals did not relieve the govern-

ment of the obligation to prove that petitioner inten-

tionally joined the conspiracy. That obligation, as the

court held in United States v. Mankani, 738 F.2d at 547

n.1, cannot be met by establishing conscious avoidance,

since the requisite mental state for conspiracy is intent,

and not mere knowledge. The court of appeals in this case

followed its earlier ruling on that point. See Pet. App.

2529 (“Conscious avoidance of participating in a conspir-

acy and agreeing to be a member of a conspiracy are

mutually exclusive concepts”). In this case, the court

found (id. at 2528-2529) that the conscious avoidance

instruction was given only in connection with the substan-

tive counts of attempted extortion, and not in connection

with the conspiracy count.4 Thus, without the aid of a

4 As other Second Circuit cases make clear, a conscious avoidance

charge may properly be given on a conspiracy count if it is directed

only to guilty knowledge of the specific details of the conspiracy and if

the court otherwise makes clear that the government must prove that

13

conscious avoidance charge, petitioner was proved to have

intentionally joined the conspiracy to commit extortion.

Second, the conscious avoidance charge was properly

given on the substantive counts of the indictment. It is

well established that when an essential mental element of

acrime is “guilty knowledge,” a defendant may not escape

responsibility for his actions by deliberately shutting his

eyes to avoid learning what otherwise would be obvious.

See, e.g., United States v. Jewell, 532 F.2d 697, 700 (9th

Cir.), cert. denied, 426 U.S. 951 (1976); United States v.

Guzman, 754 F.2d 482, 488 (2d Cir. 1985), cert. denied,

No. 84-1604 (Jan. 13, 1986).

It is undisputed in this case that guilty knowledge was

an essential element of the attempted extortion counts.

Moreover, there was an ample evidentiary basis for giving

the “conscious avoidance” charge. During petitioner's

November 23 conversation with Miller, after being told

that Riggio had made threats in petitioner’s name, peti-

tioner replied that he “had no idea” about that and that he

“(didn’t ] wanna’ know about it, I don’t care to know about

it.” Following the November 23 conversation, petitioner

never contacted Riggio either to ask what he had said to

Miller or to stop him from making further threats in

petitioner’s name and on behalf of petitioner’s business.

The court of appeals thus correctly concluded that the

evidence permitted the inference that petitioner, who

the defendant willfully participated in the conspiracy with the spe-

cific intent to further its criminal objective. See, e.g., United States v.

Guzman, 754 F.2d 482, 488 (1985) (“After—and only after—reiterat-

ing the government's burden of proof * « « [as to willful participation

in the conspiracy with specific intent to further its criminal objec-

tive], the district court correctly instructed the jury [on conscious

avoidance] as to a quite distinct matter—the knowledge of individual

defendants with regard to the specific details of the conspiracy’s

operation.”); United States v. Mohabir, 624 F.2d 1140, 1154 (1980).

14

willfully participated in the overall plan to force Miller to

relinquish the delivery routes formerly held by T.J. Asso-

ciates, was aware of the high probability that threats had

been made to Miller, yet deliberately avoided knowing all

the details of those threats.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

DEBORAH WATSON

Attorney

NOVEMBER 1986

Ww U.S. GOVERNMENT PRINTING OFFICE; 1986 163883 42001