Opposition Brief — Aiuppa v. United States

| fa Supreme Court, US

nh fy , tig FILED |

Nos. 87-1365, 87-1409, 87-1419, 87-1446 and 87-1543 APR 14 1986

& SPANIOL, a

CLERK

In the Supreme Court of the Gnited

OCTOBER TERM, 1987

JOSEPH JOHN AIUPPA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ANGELO LAPIETRA, PETITIONER

v.

UNITED STATES OF AMERICA

JOHN PETER CERONE, PETITIONER

v.

UNITED STATES OF AMERICA

JOSEPH LOMBARDO, PETITIONER

Vv.

UNITED STATES OF AMERICA

MILTON JOHN ROCKMAN, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

CHARLES FRIED

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

THOMAS E. BOOTH

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the district court’s instruction that

everyone is presumed to know what the law forbids and

what it requires to be done constituted harmless error.

2. Whether the Double Jeopardy Clause forbids

separate convictions and sentences for the offenses of con-

spiracy to violate the Travel Act, 18 U.S.C. 1952, and a

substantive violation of the Travel Act.

3. Whether this Court’s decision in Bourjaily v. United

States, No. 85-6725 (June 23, 1987), should be retroactive-

ly applied.

4. Whether the district court improperly precluded

petitioner Rockman from offering evidence bearing on the

admissibility of certain co-conspirator statements.

5. Whether a defendant who is indicted as an aider

and abettor may be convicted as a principal pursuant to

Pinkerton v. United States, 328 U.S. 640 (1946).

6. Whether the district court correctly instructed the

jury on the law of conspiracy.

7. Whether the indictment sufficiently alleged viola-

tions of the Travel Act.

8. Whether there was sufficient evidence to support

petitioner Cerone’s conviction on one of the substantive

Travel Act counts.

(I)

TABLE OF CONTENTS

Page

eg ease ok dS eee Vd Ae ok Re KR 2

a an os wig ae ek aw Boe 2

Se es a Sirisha pple bey Wika ow 8a Wels 2

a a GR GREET Faas SAS OR Ra en ae aa 7

re ere Re a ee ale eas 6 new held vw 8 20

TABLE OF AUTHORITIES

Cases:

Albernaz v. United States, 450 U.S. 333 (1981) ......... 8

Armour Packing Co. v. United States, 209 U.S. 56

ee te GL by ec ach ne ea oie do 8

Blockburger v. United States, 284 U.S. 299 (1932) ....6, 8, 9, 10

Bourjaily v. United States, No. 85-6725 (June 23, 1987) .. 6,

11, 12

Callanan vy. United States, 364 U.S. 587 (1961) .......... 8

Hamling v. United States, 418 U.S. 87 (1974) ........... 18

Pandelliyv. United States, 635 F.2d 533 (6th Cir. 1980)... 10

Pinkerton v. United States, 328 U.S. 640 (1946) ......... 6, 10,

11, 14, 15, 16

Ee eg UA yt 7,8

Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310

ee cg a ek bone ha ee'e @ 13

Turf Center, Inc. v. United States, 325 F.2d 793 (9th Cir.

a ee eke de tas 3 19

United States v. Alsobrook, 620 F.2d 139 (6th Cir.), cert.

CS AE BERR TE) a 16

United States v. Austin, 529 F.2d 559 (6th Cir. 1976) .... 10

United States v. Bailey, 444 U.S. 394 (1980) ............ 18

United States vy. Bell, 457 F.2d 1231 (Sth Cir. 1972) ...... 15

United Siates v. Blackmon, No. 86-1427 (2d Cir. Feb.

EN Eni gn tara aS ee 12

United States v. Bright, 630 F.2d 804 (Sth Cir. 1980) ..... 16

United States v. Brown, 770 F.2d 768 (9th Cir.), cert.

ER 8 18-19

United States v. Bryan, 483 F.2d 88 (3d Cir. 1973) ....... 15

United States v. Callanan, 810 F.2d 544 (6tii Cir. 1987),

cert. denied, No. 86-6735 (Oct. 5, 1987) ..... 10

(i111)

lV

Cases — Continued:

United States v. Carll, 105 U.S. 611 (1882) ..

United States v. Cook, 745 F.2d 1311 (10th Cir. 1984),

cert. denied, 469 U.S. 1220 (1985) .......

United States v. Debrow, 346 U.S. 374 (1953)

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

United States v. Finazzo, 704 F.2d 300 (6th Cir.), cert.

denied, 463 U.S. 1210 (1983) ............

United States v. Garner, 837 F.2d 1404 (7th C

United States v. Gordon, 812 F.2d 965 (Sth Cir. 1987),

certs. denied, No. 86-6801 (June 1, 1987) and No.

SOG CHE 2, FSD non s c eccaccases

United States v. Hernandez, 829 F.2d 988 (10th Cir.

ra sees aaa adda eae eee

United States v. Kegler, 724 F.2d 190(D.C. C

United States v. Knigge, 832 F.2d 1100 (9th C

United States v. Larkin, 605 F.2d 1360 (1979), modified,

611 F.2d 585 (Sth Cir.), cert. denied, 446 U.S. 939

SER i ccaksacdd arte ceed aaa d ones

ir. 1987)...

ir. 1983)...

“A 1 oe

United States v. McCullah, 745 F.2d 350 (1984) .........

United States v. McGowan, 423 F.2d 413 (4th

United States v. Meester, 762 F.2d 867 (11th Cir.), cert.

denied, 474 U.S. 1024 (1985) ............

United States v. Miller, 552 F. Supp. 827 (N.D. IIl.

Cir. 1970) .

1982), aff'd mem., 729 F.2d 1464 (7th Cir. 1984) ......

United States v. Nickerson, 606 F.2d 156 (6th Cir.), cert.

denied, 444 U.S. 994 (1979) .............

United States v. Polizzi, 500 F.2d 856 (9th Cir. 1974),

cert. denied, 419 U.S. 1120 (1975) .......

United States v. Redwine, 715 F.2d 315 (7th Cir. 1983),

cert. denied, 467 U.S. 1216 (1984) .......

United States v. Rodriguez, 585 F.2d 1234 (Sth Cir. 1978),

cert. Genied., 669 U.S. G35 CIDER) . ww ccc cc case

United States v. Roselli, 432 F.2d 879 (9th Cir. 1970),

cert. denied, 401 U.S. 924 (1971) ........

United States v. Scandifia, 390 F.2d 244 (2d Cir. 1968),

vacated, 394 U.S. 310 (1969) ............

United States v. Stanley, 765 F.2d 1224 (Sth C

United States v. Wylie, 625 F.2d 1371 (9th Cir. 1980), cert.

denied, 449 U.S. 1080 (1981) ............

Whalen v. United States, 445 U.S. 684 (1980)

ir. 1985)...

19

Constitution, statutes and rules: Page

U.S. Const.:

Amend. V (Double Jeopardy Clause) ........... . 7, ao

Dae UE Cc ck cn oe ba ER eee 7

Travel Act, 060.3. FOSS oo nc cen sia sasasese cas 3

TEES © old emetic mein An pat ry yy fe borin er rie ser es 15

Oe BS Se occa can th cud Ose eRe 2-3

oe Rae oe. ose dk ae see ee 8

Oe ROE Ons cwacck sara dneeeaeea’ aaa 8

Fed. R. Crim. P.:

Oo E |) Pe eererrerrre rr er Cre rey To tx 18

OE . PP PETE ere Ter ee ere ee 3

Fed. R. Evid.:

a) rrr rere er ree ys tr 13

Rule 801(d)(2)(E)

7,11, 24, 3,

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No. 87-1365

JOSEPH JOHN AIUPPA, PETITIONER

_f

UNITED STATES OF AMERICA

No. 87-1409

ANGELO LAPIETRA, PETITIONER

Ws

UNITED STATES OF AMERICA

No. 87-1419

JOHN PETER CERONE, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 87-1446

JOSEPH LOMBARDO, PETITIONER

v.

UNITED STATES OF AMERICA

No. 87-1543

MILTON JOHN ROCKMAN, PETITIONER

V-

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

(1)

2

OPINION BELOW

The opinion of the court of appeals (87-1365 Pet. App.

A1-A25) is reported at 830 F.2d 938.'

JURISDICTION

The judgment of the court of appeals was entered on ~

October 8, 1987. The petition for rehearing and rehearing

en banc in No. 87-1543 was denied on December 15, 1987

(87-1543 Pet. App. Cl). On February 12, 1988, Justice

Blackmun granted an extension of time to and including

March 14, 1988, within which to file a petition for a writ

of certiorari, and the petition in No. 87-1543 was filed on

that date. The petition for rehearing and rehearing en banc

in No. 87-1365 was denied on December 16, 1987 (87-1365

Pet. App. B1), and the petition for a writ of certiorari in

that case was filed on February 12, 1988. Petitions for

rehearing and rehearing en banc in Nos. 87-1409, 87-1419, _

and 87-1446 were denied on December 23, 1987 (87-1409

-Pet. App. B1; 87-1419 Pet. App. Bl), and petitions for a :

writ of certiorari in Nos. 87-1409 and 87-1419 were filed

on February 22, 1988 (a Monday). The petition for a writ

of certiorari in No. 87-1446 was filed on February 19,

1988. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1). )

STATEMENT

Following a jury trial in the United States District Court |

for the Western District of Missouri, petitioners were each |

convicted on one count of conspiring to travel in interstate

commerce and to use interstate commerce facilities with

intent to promote an unlawful activity, in violation of 18

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

petition in No. 87-1365.

U.S.C. 371; and on seven counts of traveling in interstate

commerce or using interstate commerce facilities to pro-

mote unlawful activities, in violation of 18 U.S.C. 1952.

Petitioners Aiuppa and Cerone were each sentenced to

consecutive terms of imprisonment for four years on the

conspiracy count and three and one-half years on each of

the substantive Travel Act counts, for a total of 28 and

one-half years’ imprisonment. Petitioners Lombardo and

LaPietra were each sentenced to consecutive terms of im-

prisonment for two years on each count, for a total of 16

years’ imprisonment. Petitioner Rockman was sentenced

to consecutive terms of imprisonment for three years on

each count, for a total of 24 years’ imprisonment. The

court imposed cumulative fines of $10,000 on each count

as to each petitioner. On February 2, 1988, the district

court, pursuant to Fed. R. Crim. P. 35, modified the

sentences of Lombardo, Rockman, and LaPietra by re-

quiring their sentences on the conspiracy count (Count 1)

to run concurrently with their sentences on the first

substantive count (Count 2), but leaving unchanged the

consecutive sentences on Counts 2 through 8. The court

modified Cerone’s sentence by requiring his sentence on

Count | to run concurrently with his sentences on Counts

2 and 3, but leaving unchanged the consecutive sentences

on Counts 2 through 8. The court delayed ruling on

Aiuppa’s Rule 35 motion. 87-1543 Pet. App. B1-B6. The

court of appeals affirmed (Pet. App. Al-A25).

1. The evidence at trial is summarized in the opinion

of the court of appeals. It shows that petitioners and

others sought to maintain hidden financial and manage-

ment interests in Las Vegas casinos, particularly the Star-

dust and the Fremont casinos, in violation of Nevada gam-

ing laws. The casinos were owned by the Argent Corpora-

tion which, in turn, was owned by Allen R. Glick. Glick’s

4

purchase of the casinos was financed by the Teamsters

Union Central States Southeast and Southwest Areas Pen-

sion Fund. The conspirators achieved control of the

casinos by helping Glick obtain the financing to purchase

them and by placing two of their confederates, Frank

Rosenthal and Carl Thomas, in management positions at

Argent. The conspirators also maintained control over the

Teamsters Union and its pension fund through Allen

Dorfman, who secretly controlled the fund, and Roy

Williams, a Teamsters official. Pet. App. A2-A3.

The conspirators exercised control over Argent and the

Teamsters Union by virtue of their membership in

organized crime groups in various Midwestern cities. Peti-

tioner Aiuppa was the boss of the Chicago organized

crime group, petitioner Cerone was its underboss, and

petitioners LaPietra and Lombardo were members of that

group. Petitioner Rockman was an associate of the

Cleveland organized crime group; co-conspirator Nick

Civella headed the Kansas City organized crime group;

and co-conspirator Frank Balistrieri was the boss of the

Milwaukee organized crime group. Pet. App. A3.

In early 1974, Balistrieri agreed to help Glick obtain a

loan from the Teamsters pension fund to buy the Stardust

and Fremont casinos. Balistrieri obtained the assistance of

Civella and Rockman, who each controlled a trustee of the

pension fund. After Glick obtained the loan and pur-

chased the casinos, Balistrieri and others required Glick to

appoint Frank Rosenthal to a management position at

Argent. In that capacity, Rosenthal supervised the skim-

ming of gambling proceeds from the casinos. Initially, the

Kansas City, Milwaukee, and Cleveland groups shared the

skimmed money. Shortly after the operation began,

however, a dispute arose among the groups, and the

Chicago group, including Aiuppa, Cerone, Lombardo,

5

and LaPietra, began sharing in the skimming proceeds.

Pet. App. A3-A4.

Carl DeLuna, a member of the Kansas City group,

maintained records of the conspirators’ transactions and

was the liaison between Las Vegas and Kansas City, and

between Chicago and Kansas City. During the operation,

LaPietra became DeLuna’s contact with the Chicago

group. Rockman was DeLuna’s contact in the Cleveland

group and also served as an intermediary in DeLuna’s

dealings with the Chicago group. Pet. App. A4.

The skimmed money was ordinarily delivered from Las

Vegas to Chicago. LaPietra would deliver the money to a

member of the Chicago group who, in turn, would deliver

shares to DeLuna for the Kansas City group and to

Rockman for the Cleveland group. Pet. App. A4.

During 1976-1979, the conspirators had several conver-

sations in which they discussed replacing Rosenthal, who

had become embroiled in widely publicized disputes with

the Nevada licensing authorities. During the same period,

Glick expressed reluctance to accept the conspirators’ con-

trol of Argent through Rosenthal. Civella and DeLuna

threatened to kill Glick if he did not acquiesce in their con-

trol of Argent through Rosenthal. Glick yielded to their

demands. Sometime later, DeLuna told Glick that his

“partners” were dissatisfied, and DeLuna threatened to

kill Glick unless Glick sold Argent. In December 1979,

Glick sold Argent to another company. Pet. App. A4-AS.

In October 1977, independent investment managers

took control of the pension fund assets, hindering the con-

spirators’ ability to control the fund. The conspirators,

principally Lombardo and Allen Dorfman, held numerous

strategy discussions concerning efforts to replace the in-

dependent managers with persons controlled by the con-

spirators. Between 1979 and 1981, the conspirators, in-

6

cluding Aiuppa, Cerone, Lombardo, and Rockman, sup-

ported Roy Williams to succeed Frank Fitzsimmons as

Teamsters president and later supported Jackie Presser to

succeed Williams, in an effort to secure influence within

the Teamsters’ Union. Pet. App. AS.

2. The court of appeals affirmed (Pet. App. Al-A25).

The court first held (/d. at A8) that although petitioners

were indicted as aiders and abettors in the Travel Aci

counts, there was no error in submitting those charges to

the jury on a theory of vicarious liability under Pinkerton

v. United States, 328 U.S. 640 (1946). Next, applying the

analysis in Blockburger v. United States, 284 U.S. 299

(1932), the court concluded (Pet. App. A9-A13) that the

Double Jeopardy Clause does not forbid separate convic-

tions on the conspiracy and substantive Travel Act

counts —even where, as here, liability on the substantive

offenses is predicated on Pinkerton. The court rejected

(Pet. App. Al3-A15) on harmless error grounds peti-

tioners’ challenge to a portion of the jury charge that

stated that “the presumption is that every person knows

what the law forbids, and what the law requires to be

done” (id. at Al3). The court next found (id. at A1l7-A18)

sufficient evidence to support the admission of the co-

conspirator statements in the case. In reaching that con-

clusion, the court applied this Court’s recent decision in

Bourjaily v. United States, No. 85-6725 (June 23, 1987),

but also found “direct evidence of the conspiracy and

[petitioners’] participation in it” (Pet. App. Al8 n.10). The

court then upheld (/d. at A20-A21) the instructions on

conspiracy, rejecting as meritless the claim that the trial

court had permitted the jury to convict on the conspiracy

count if it found evidence that petitioners had aided and

abetted a substantive offense. The court next determined

(id. at A21) that the evidence, although circumstantial,

—

7

was sufficient to show that petitioner Cerone had traveled

from Chicago, Illinois, to Kansas City, Missouri, for il-

legal purposes, as alleged in Count 7 of the indictment.

The court also concluded (id. at A23) that the substantive

Travel Act counts in the indictment were sufficient, noting

that the indictment contained lengthy allegations of fact

and provided ample notice of the acts with which peti-

tioners were charged. Finally, the court held (Pet. App.

A24-A25) that petitioner Rockman was not prejudiced by

the trial court’s exclusion of certain defense testimony

regarding Glick’s sale of his business interests in

1979—testimony that Rockman had offered purportedly

to show that post-1979 co-conspirator statements were not

made in the course of the conspiracy, as is required by

Fed. R. Evid. 801(d)(2)(E).

ARGUMENT

1. Petitioners first argue (87-1365 Pet. 11-18) that the

trial court violated the Fifth and Sixth Amendments when

it gave the following instruction (Pet. App. A13):

It is not necessary for the prosecution to prove that

the defendant knew that a particular act or failure to

act is a violation of the law. Unless and until

outweighed by evidence in the case to the contrary,

the presumption is that every person knows what the

law forbids, and what the law requires to be done.

The court of appeals did not approve of that instruction.

Rather, it assumed (Pet. App. A15) that the instruction

was erroneous. Applying this Court’s decision in Rose v.

Clark, 478 U.S. 570 (1986), however, the court of appeals

held that on the present record the error was harmless.

Petitioners acknowledge (87-1365 Pet. 17) that Rose v.

Clark, supra, applies, and they do not take issue with the

court of appeals’ analysis of the record. They simply con-

8

tend that it is “unclear” (87-1365 Pet. 18) whether the court

of appeals found the challenged instruction to be-harmless

-beyond a reasonable doubt. That claim is meritless.

Although the court of appeals did not articulate the

harmless error standard in so many words, it expressly

adopted the analysis employed by this Court in Rose v.

Clark, supra. There is no reason to believe that it did so

erroneously.

2. Next, petitioners contend (87-1409 Pet. 8-19; 87-1419

Pet. 18-22) that the Double Jeopardy Clause prohibits

separate convictions and sentences for conspiracy and

substantive violations of the Travel Act. That contention

is mistaken.

This Court has long held that separate convictions and

punishments are permissible for ordinary substantive of-

fenses and conspiracies to commit those offenses. See

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

v. United States, 364 U.S. 587 (1961). That rule is based

on the so-called Blockburger test, see Blockburger v.

United States, 284 U.S. 299 (1932), which is the principal

device for determining whether different statutes perimit

the imposition of separate judgments and cumulative

punishment. In A/bernaz v. United States, 450 U.S. 333

(1981), this Court reaffirmed the Blockburger test and

held that absent a clear expression of congressional intent

to the contrary, consecutive sentences under separate

statutory provisions are appropriate where each provision

requires proof of at least one fact not required by the

other. Thus, the Court in A/bernaz permitted the imposi-

tion of consecutive sentences for violations of 21 U.S.C.

963, charging conspiracy tO impurt marijuana, and 21

U.S.C. 846, charging conspiracy to distribute marijuana.

Because there was no contrary expression of legislative in-

tent, and because each offense required proof of at least

one element not required by the other, the Court upheld

9

cumulative punishments, even though the proof at trial

supporting the two conspiracy charges was identical, see

United States v. Rodriguez, 585 F.2d 1234, 1239 (Sth Cir.

1978), cert. denied, 449 U.S. 835 (1980).

Under that standard, a conspiracy to violate the Travel

Act and a substantive violation of the Act are separate of-

fenses and may be separately prosecuted and punished. A

conspiracy requires proof of an agreement, while a

substantive offense does not; a substantive offense re-

quires proof that the offense was consummated, while a

conspiracy does not. The courts of appeals have uniformly

2 Citing this Court’s decision in Whalen v. United States, 445 U.S.

684 (1980), petitioners contend (87-1409 Pet. 12-13; 87-1419 Pet.

19-21) that the analysis under Blockburger should focus not on the

elements of the offense but on the evidence introduced at trial. The

Whalen case does not alter the traditional test. That case involved a

prosecution for the offenses of rape and felony murder. Under the

governing statute, felony murder could be committed in the course of

any one of six specified felonies, including rape. The defendant was

separately punished for both the rape and the felony murder com-

mitted in the course of the rape. The government contended that

because felony murder could be proved by establishing a predicate

other than rape, it followed that under Blockburger rape and felony

murder could be separately prosecuted and punished. Applying the

Blockburger test, this Court disagreed. The Court reasoned that the

felony murder statute— which listed the six predicate felonies in the

alternative —was functionally indistinguishable from a statute that

separately proscribed six different species of felony murder under six

statutory provisions. The Court therefore regarded each category of

felony murder as, in substance, a separate offense, each with its own

lesser-included predicate. Under the Court’s analysis, therefore, all the

elements of rape were included in the offense of felony murder by

rape, and under Blockburger cumulative punishments would violate

the Double Jeopardy Clause. In reaching that conclusion, however,

the Court in Whalen was careful to point out that it was “not in this

case apply[ing] the Blockburger rule to the facts alleged in a particular

indictment” (445 U.S. at 694 n.8).

10

reached the same conclusion. See, e.g., United States v.

Nickerson, 606 F.2d 156, 159 (6th Cir.), cert. denied, 444

U.S. 994 (1979); United States v. Polizzi, 500 F.2d 856,

897 & n.3 (9th Cir. 1974), cert. denied, 419 U.S. 1120

(1975); United States v. McGowan, 423 F.2d 413, 415-417

(4th Cir. 1970).3

The analysis is no different even where, as here, peti-

tioners’ convictions on the substantive counts may have

rested, under Pinkerton, on their participation in the con-

spiracy. To be sure, under Pinkerton each co-conspirator

becomes liable for the substantive violations committed by

his confederates in furtherance of the conspiracy. In that

sense, the conspiratorial agreement is a necessary compo-

nent of substantive liability under the Pinkerton theory.

But conspiracy does not, for that reason, become a lesser-

included offense of the substantive violation: the latter

still requires a completed substantive offense, while the

former requires the commission of an overt act that may

have nothing to do with the substantive act that gives rise

to Pinkerton liability. Under Blockburger, therefore, con-

3 Contrary to petitioners’ contention (87-1409 Pet. 13-14; 87-1419

Pet. 19-21), the court of appeals’ decision does not conflict with any

decision of the Sixth Circuit. Indeed, the Sixth Circuit’s decision in

Nickerson is in accord with the decision reached by the court below.

To be sure, the Sixth Circuit, in cases such as Pandelli v. United

States, 635 F.2d 533 (1980), and United States v. Austin, 529 F.2d 559

(1976), has focused upon the actual evidence submitted at trial instead

of the elements of the offenses. In a more recent case, however, the

Sixth Circuit recognized that “[t]he Austin approach has not fared

well in the other circuits” (United States v. McCullah, 745 F.2d 350,

355 n.6 (1984)), and it emphasized that under Blockburger separate

prosecutions are permissible “when each offense requires proof of a

fact that the other does not” (745 F.2d at 355). Moreover, in United

States v. Callanan, 810 F.2d 544, 545-548 (1987), cert. denied, No.

86-6735 (Oct. 5, 1987), the Sixth Circuit reiterated that the

Block burger test focuses only on the statutory elements of the charged

offenses. See also United States v. Finazzo, 704 F.2d 300, 305 (6th

Cir.), cert. denied, 463 U.S. 1210 (1983).

11

spiracy and Pinkerton substantive liability are separate of-

fenses and may be separately prosecuted and punished. In-

deed, in Pinkerton itself, this Court upheld separate con-

victions and punishments for conspiracy and substantive

offenses, even though liability on the substantive offenses

was predicated on the doctrine of vicarious liability an-

nounced in Pinkerton. See also United States v. Wylie, 625

F.2d 1371, 1380-1382 (9th Cir. 1980), cert. denied, 449

U.S. 1080 (1981).4

3. Petitioners claim (87-1409 Pet. 20-24) that this

Court’s decision in Bourjaily v. United States, No. 85-6725

(June 23, 1987), should not be retroactively applied. They

assert that the court of appeals therefore erred when it

relied on Bourjaily in finding sufficient evidence to sup-

port the admission of co-conspirator statements under

Fed. R. Evid. 801(d)(2)(E). That contention has no merit.

In the Bourjaily case, this Court held that in determin-

ing whether a co-conspirator’s statement may be admitted

pursuant to Rule 801(d)(2)(E), a trial court may consider

the statement itself, as well as other “independent”

evidence, in assessing whether there was a conspiracy and

whether the defendant and the hearsay declarant were

members of that conspiracy. The courts of appeals have

uniformly followed Bourjaily in’ resolving Rule

* The Fifth Circuit’s decision in United States v. Larkin, 605 F.2d

1360 (1979), modified, 611 F.2d 585, cert. denied, 446 U.S. 939

(1980), is not in conflict. There, the court held that the government

could retry a defendant for conspiracy, following a trial in which the

jury had been deadlocked on the conspiracy count but had acquitted

the defendani on a series of substantive counts in which liability was

based on Pinkerton. Although the court suggested in dicta (605 F.2d

at 1367) that conspiracy may be a lesser-included offense of a substan-

tive offense based on Pinkerton, the court did not resolve the issue due

to “the procedural posture of th[e] case.”

12

801(d)(2)(E) issues that have arisen since the Bourjaily case

was decided. See, e.g., United States v. Blackmon, No.

86-1427 (2d Cir. Feb. 9, 1988), slip op. 6435; United States

v. Garner, 837 F.2d 1404, 1415-1416 (7th Cir. 1987);

United States v. Knigge, 832 F.2d 1100, 1103 (9th Cir.

1987); United States v. Hernandez, 829 F.2d 988, 993-995

(10th Cir. 1987). Petitioners offer no reason to adopt a

different rule. -

Moreover, there is no justification for refusing to apply

the principles of Bourjaily in this case. First, the Bourjaily

Court did not purport to be creating a new rule, contrary

to one on which the defendants had relied. The Bourjaily

Court simply construed a rule of evidence that has been in

effect since 1975. And a rule of evidence of that sort is

unlike a substantive rule of criminal liability on which in-

dividuals might rely in shaping their conduct. Petitioners

do not contend —nor could they —that they engaged in the

conduct at issue in this case in reliance on previous circuit

law limiting the admissibility of co-conspirator declara-

tions against them.

It would be pointless not to apply Bourjaily to this case.

If this Court were to hoid that the principles of Bourjaily

should not have been applied on appeal, and if the Court

were to reverse on that ground, that would normally enti-

tle petitioners only to a new trial. At the new trial the

district court would be obligated to apply the standard an-

nounced in Bourjaily. There is no reason to set aside a

court of appeals’ decision where, at any new trial, the legal

principle adopted by the court of appeals would necessari-

ly be applied by the trial court as well.

In any event, the present case is an inappropriate vehicle

for resolving the issue of the “retroactive” application of

Bourjaily. The district court (see 87-1409 Pet. 6), affirmed

by the court of appeals (87-1365 Pet. App. Al8 n.10),

13

found that there was sufficient independent evidence to

justify submitting the co-conspirator statements to the

jury. Petitioners’ fact-bound challenge to that finding does

not warrant further review. See Tiffany Fine Arts, Inc. v.

United States, 469 U.S. 310, 317-318 & n.5 (1985).

4. Petitioner Rockman contends (87-1543 Pet. 12-18)

that the trial court improperly denied him the opportunity

to introduce certain evidence that was intended to show

that the conspiracy charged in the indictment ended in

1979 and thus that co-conspirator statements made after

1979 should not have been admitted under Fed. R. Evid.

801(d)(2)(E). The court of appeals acknowledged (Pet.

App. A25) that it was “troubled” by the exclusion of that

evidence, but it held that on the present record the exclu-

sion did not constitute reversible error. That decision is

clearly correct.

During the defense case, Rockman attempted to show

that the conspiracy charged in the indictment ended on

December 26, 1979, when Glick sold his interest in the

casinos. At trial, as here (87-1543 Pet. 6-11), Rockman

contended that “[t]he object of the conspiracy was inex-

tricably tied to the * * * ‘gaming interests of Allen R.

Glick’ ” (id. at 7). He asserted that when Glick lost his in-

terest in the casinos, the conspiracy necessarily came to an

end. In support of that theory, Rockman called Shannon

Bybee as an expert on Nevada gaming laws. Rockman

hoped to establish through Bybee’s testimony that

although Glick held a mortgage on the casinos after he

5 The court of appeals did not dispute petitioner’s right to offer

evidence that the conspiracy ended in 1979. Thus, this case does not

present the question whether a defendant may offer evidence bearing

on the trial court’s preliminary determination, pursuant to Fed. R.

Evid. 104(a), whether the factual predicates for the admission of a co-

conspirator’s statement have been established.

a

14

sold them, his stake was insufficient under Nevada law to

constitute a financial interest in the casinos. The trial court

permitted Rockman to ask Bybee various hypothetical

questions concerning the circumstances under which

Nevada gaming authorities would require that a mortgage

holder obtain a gaming license. The court refused,

however, to permit Rockman to ask Bybee three

hypothetical questions in that line, holding that the pro-

posed questions omitted material facis and were therefore

misleading in the form propounded by Rockman. The

court advised Rockman that he could ask those questions

if he included the omitted material facts. Rockman failed

to do so. Gov’t C.A. Supp. Br. 11.

The trial court acted well within its discretion in refusing

to permit Rockman to put those improper questions to the

witness. In any event, as the court of appeals concluded

(Pet. App. A25), any error in excluding Bybee’s proposed

testimony was entirely harmless. A fair reading of the in-

dictment shows that the object of the conspiracy was to

secure and maintain a financial interest in Glick’s

casinos —an object that did not abate when Glick gave up

his personal stake in the operation. See C.A. App. 14.

Thus, even if Rockman had succeeded in establishing that

Glick had ended his financial interest in the casinos in

1979, the trial court was nevertheless correct in concluding

that the conspiracy continued for several years thereafter

and that co-conspirator statements made after 1979 were

admissible under Fed. R. Evid. 801(d)(2)(E).

5. Petitioners contend (87-1419 Pet. 10-16; 87-1446

Pet. 6-15) that because they were named in the substantive

Travel Act counts as aiders and abettors (except for Count

7, in which petitioner Cerone was named as a principal),

the trial court erred when it submitted those counts to the

jury on the theory that petitioners were liable as principals

under Pinkerton v. United States, 328 U.S. 640 (1946).

15

In essence, petitioners claim that there was a fatal variance

between the charges in the indictment and the theory on

which the case was submitted to the jury. That claim is

meritless.

The courts routinely hold that a defendant may be in-

dicted as a principal but convicted on evidence showing

that he aided and abetted the substantive offense.® See,

e.g., United States v. Gordon, 812 F.2d 965, 969 (Sth Cir.

1987), certs. denied, No. 86-6801 (June 1, 1987) and No.

86-6870 (June 22, 1987); United States v. Cook, 745 F.2d

1311, 1315 (Oth Cir. 1984), cert. denied, 469 U.S. 1220

(1985); United States v. Kegler, 724 F.2d 190, 201 & n.15

(D.C. Cir. 1983) (citing cases). The converse is also true: a

defendant may be indicted as an aider and abettor but con-

victed on evidence showing him to be a principal. See,

e.g., United States v. Bryan, 483 F.2d 88, 94-97 (3d Cir.

1973) (en banc); United States v. Bell, 457 F.2d 1231, 1235

(Sth Cir. 1972); United States v. Scandifia, 390 F.2d 244,

250 n.6 (2d Cir. 1968), vacated on other grounds, 394 U.S.

310 (1969). Consistent with that general principle, the

courts have regularly held that defendants may be con-

victed as principals under Pinkerton, even though they

were indicted as aiders and abettors. See, e.g., United

States v. Meester, 762 F.2d 867, 878 (llth Cir.), cert.

denied, 474 U.S. 1024 (1985); United States v. Redwine,

715 F.2d 315, 322 (7th Cir. 1983), cert. denied, 467 U.S.

1216 (1984); United States v. Roselli, 432 F.2d 879,

894-895 (9th Cir. 1970), cert. denied, 401 U.S. 924 (1971).

In the Meester case, for example, the court rejected the

same claim pressed by petitioners, noting (762 F.2d at 878)

that “[t]his is essentially an argument that the Pinkerton

instruction constituted a variance from the charges con-

* Indeed, the aiding and abetting statute, 18 U.S.C. 2, specifically

provide that aiders and abettors are punishable as principals.

16

tained in the indictment. To benefit from any such

variance, the appellants would have to demonstrate pre)j-

udice.” Accord Roselli, 432 F.2d at 895.

In the present case, petitioners do not suggest how they

were prejudiced, if at all, by the fact that the substantive

Travel Act counts were submitted to the jury on a Pinker-

ton theory of liability. As in the Roselli case (see 432 F.2d

at 895), petitioners were indicted on conspiracy charges,

and thus had notice of, and an opportunity to contest, the

essential element of Pinkerton liability. Moreover, the

only additional factor under Pinkerton—whether the

substantive acts were in furtherance of the conspiracy —

“was not subject to argument in the context of this case”

(Roselli, 432 F.2d at 895). In the absence of any showing

of prejudice, petitioners’ variance contention is insuffi-

cient.’

6. Petitioner Lombardo claims (87-1446 Pet. 15-16)

that the instructions on the law of conspiracy were er-

roneous, in that the trial court “fail[ed] to limit the aiding

and abetting instruction to the substantive counts” (id. at

15). The court of appeals examined the instructions and

rejected petitioner’s claim (Pet. App. A20-A21). It noted

that the trial court had “correctly instructed the jury on the

elements of conspiracy” (id. at A20) and that the aiding

and abetting instructions “refer[red] to the substantive

’ Petitioners’ contention (87-1419 Pet. 11-13) that the court of ap-

peals’ decision conflicts with United States v. Bright, 630 F.2d 804 (Sth

Cir. 1980); United States vy. Alsobrook, 620 F.2d 139 (6th Cir.), cert.

denied, 449 U.S. 843 (1980); and United States v. Miller, 552 F. Supp.

827 (N.D. Ill. 1982), aff'd mem., 729 F.2d 1464 (7th Cir. 1984)

(Table), is without merit. None of those cases involved the question

whether a defendant who is indicted as an aider and abettor may

nevertheless be convicted on evidence showing that he was a principal

under Pinkerton.

17

Travel Act offenses, not conspiracy” (id. at A21l).

Lombardo offers no reason to reject that conclusion.

7. Petitioners contend (87-1419 Pet. 6-10; 87-1446 Pet.

17-20) that the Travel Act counts in the indictment did not

state an offense. That fact-bound challenge merits no

review.

Count 7 of the indictment (C.A. App. 37-38), which is

representative of each of the seven substantive Travel Act

counts, alleged, in pertinent part, that on or about

January 11, 1979, petitioner Cerone traveled in inierstate

commerce from Chicago, Illinois, to Kansas City,

Missouri, for the purpose of meeting with Carl Civella,

Nick Civella, and Carl DeLuna

to discuss matters pertinent to the sale of or transfer

of ownership of the gaming interests of Allen R.

Glick, including the Stardust and Fremont casinos,

with the intent to promote, manage, establish, carry

on and facilitate the promotion, management,

establishment and carrying on of an unlawful activi-

ty, namely: a business enterprise involving the

management, operation, conducting and carrying on

of gambling operations of licensed gaming

establishments in Las Vegas, Nevada, that is, the

gaming interests of Allen R. Glick, including the Star-

dust and Fremont casinos, and the indirect receipt of

moneys played therein, by persons who were not

licensed by, and whose interest in said gaming

establishments had been concealed from the Nevada

Gaming Control Act * * * and regulations of the

Nevada Gaming Commission * * * and thereafter did

perform and attempt to perform acts to promote,

manage, establish, carry on and facilitate the promo-

tion, management, establishment and carrying on of

ay a ee ee ee, ee eae Te ee

SS ee NT

<r rr rr

18

said unlawful activity and [petitioners and others] did

aid, abet, counsel, command, induce and procure the

commission of said offense.

Under Fed. R. Crim. P. 7(c)(1) an indictment need only

be “a plain, concise and definite written statement of the

essential facts constituting the offense charged.” The rule

was “designed to eiiminate technicalities” and is “to be

construed to secure simplicity in procedure.” United States

v. Debrow, 346 U.S. 374, 376 (1953). An indictment is or-

dinarily sufficient if it contains the elements of the of-

fense, fairly informs the defendant of the charge, and

enables him to avoid a future prosecution for the same of-

fense on double jeopardy grounds. United States v.

Bailey, 444 U.S. 394, 414 (1980); Hamling v. United

States, 418 U.S. 87, !17-118 (1974). To meet that stand-

ard, “[ijt is generaliy sufficient that an indictment set forth

the offense in the words of the statute itself, as long as

‘those words of themselves fully, directly, and expressly,

without any uncertainty or ambiguity, set forth all the

elements necessary to constitute the offence intended to be

punished’ ” (Hamling, 418 U.S. at 117, quoting United

States v. Carll, 105 U.S. 611, 612 (1882)).8

An indictment under the Travel Act requires an allega-

tion of “ “(1) [travel in] interstate commerce or use of an

interstate facility, (2) with intent to promote an unlawful

activity, and (3) a subsequent overt act in furtherance of

that unlawful activity.’ ” United States v. Brown, 770 F.2d

* As this Court has put it, “ ‘the general rule still holds good that

upon an indictment for a statutory offense the offense may be de-

scribed in the words of the statute, and it is for the defendant to show

that greater particularity is required by reason of the omission from

the statute of some element of the offense.’ ” Armour Packing Co. v.

United States, 209 U.S. 56, 84 (1908) (citation omitted).

19

768, 772 (9th Cir.) (citation omitted), cert. denied, 474

U.S. 1036 (1985). In this case, each substantive Travel Act

count tracked the statutory ianguage and stated each of

the prescribed elements. “Because the Travel Act fully and

unambiguously sets out the essential elements of the of-

fense, indictments drafted substantially in its language are

sufficient.” United States v. Stanley, 765 F.2d 1224,

1239-1240 (Sth Cir. 1985). Accord Turf Center, Inc. v.

United States, 325 F.2d 793, 796, 797 (9th Cir. 1963).

8. Petitioner Cerone contends (87-1419 Pet. 16-18)

that the evidence was insufficient to support his Travel Act

conviction on Count 7. Count 7 alleged that on or about

January 11, 1979, Cerone traveled from Chicago, Illinois,

to Kansas City, Missouri, to meet with DeLuna, Carl

Civella, and Nick Civella, to discuss the sale of the Star-

dust and Fremont casinos (C.A. App. 37-38). The court of

appeals conducted a meticulous review of the record and

concluded that the evidence on that count was sufficient

(Pet. App. A21). As the court explained, the evidence

showed that Cerone lived in Chicago. On January 11,

1979, FBI agents observed Carl DeLuna pick up two men

at the Kansas City airport and take them to Anthony

Civella’s residence. DeLuna later drove Cerone back to the

airport in the same car that was observed earlier. Cerone

was then seen leaving Kansas City and arriving at the

Chicago airport. In addition, notes taken by DeLuna and

admitted at trial recorded that DeLuna met with Cerone

and Civella on January 11, 1979, to discuss negotiations to

buy Argent. That evidence, the court of appeals concluded

(ibid.), “would enable the jury to infer that Cerone trav-

eled from Chicago, that DeLuna picked up Cerone at the

Kansas City airport for the purpose of meeting with

Civella, and they discussed their illegal operation.”

20

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

JOHN C. KEENEY

Acting Assistant Attorney General

THOMAS E. BOOTH

Altorney

APRIL 1988

US GOVERNMENT PRINTING OFFICE. 1988— 202.037/60400