Opposition Brief — Coonan v. United States

eal

Supreme Court, U.S,

FILED

Nos. 89-379, 89-5497, 99-5512, dna #¥°¥o1 2 1383

In the Soupeeme Court of the Vinten STATES

OCTOBER TERM, 1989

JAMES COONAN AND EDNA COONAN, PETITIONERS

V.

UNITED STATES OF AMERICA

RICHARD RITTER, PETITIONER

Vy

UNITED STATES OF AMERICA

WILLIAM BOKUN, PETITIONER

v.

UNITED STATES OF AMERICA

JAMES MCELROY, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH. W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

DEBORAH WATSON

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the co-conspirator exception to the hearsay

rule applies when the conspiracy alleged is a conspiracy to

violate the racketeering laws (89-379 Pet. 26-39; 89-5601 Pet.

10-13).

2. Whether the district court properly instructed the jury

on the requisite nexus between the RICO enterprise and the

predicate acts of racketeering (89-379 Pet. 40-45; 89-5601

Pet. 17-23).

3. Whether the district court properly denied the mo-

tions of petitioners James Coonan, Edna Coonan, and

Richard Ritter to suppress evidence seized pursuant to search

warrants (89-379 Pet. 46-54; 89-5497 Pet. 9-14).

4. Whether the district court properly refused to sever

the trial of Edna Coonan (89-379 Pet. 54-55).

5. Whether the district court properly excluded expert

testimony concerning the psychiatric condition of a govern-

ment witness (89-379 Pet. 56-62; 89-5512 Pet. 27-36; 89-5601

' Pet. 13-16).

6. Whether the district court improperly restricted peti-

tioner Bokun’s direct examination of a government witness

(89-5512 Pet. 13-26).

7. Whether petitioner Bokun was denied his rights to

counsel and to a fair trial when his attorney fell ill eight

weeks into a five-month trial, and the district court ap-

pointed an attorney to represent Bokun during his regular

counsel’s absence (89-5512 Pet. 37-49).

(I)

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Andresen v. Maryland, 427 U.S. 463 (1976) ....

Bourjaily v. United States, 483 U.S. 171 (1987)..

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

Pinkerton v. United States, 328 U.S. 640

sien coe e ak hs bak k eee ediene 4s

Rickert v. Sweeney, 813 F.2d 907 (8th Cir.

te ea eke ae kw stews

Strickland v. Washington, 466 U.S. 668 (1984) ..

United States v. Angiulo, 847 F.2d 956 (lst Cir.),

cert. denied, 109 S. Ct. 138 (1988) ..........

United States v. Calabrese, 645 F.2d 1379 (10th Cir.),

cert. denied, 451 U.S. 1018 (1981) ...........

United Stated v. Cardwell, 680 F.2d 75 (9th Cir.

ESE a grag am SST 6, “a Adri

United States v. Cronic, 466 U.S. 648 (1984) ...

United States vy. Cruz, 785 F.2d 399 (2d Cir.

iL. Cowon hake ncces 6 oks sien ens

- United States v. Fama, 758 F.2d 834 (2d Cir.

anak k eke an i aed satan chlo «6 «

United States v. Hewes, 729 F.2d 1302 (11th Cir.

1984), cert. denied, 469 U.S. 1110 (1985) ....

United States v. Jannotti, 729 F.2d 213 (3d Cir.),

cert. denied, 469 U.S. 880 (1984) ............

United States v. Kabbaby, 672 F.2d 857 (11th Cir.

REE POSES RAGE te TE a a cen ee a

United States v. Leary, 846 F.2d 592 (10th Cir.

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14

11

IV

Cases — Continued: Page

United States v. Lemm, 680 F.2d 1193 (8th Cir.

1982), cert. denied, 459 U.S. 1110 (1983) .... 4

United States v. Leon, 468 U.S. 897 (1984) .... 13

United States v. Lord, 711 F.2d 887 (9th Cir.

AOE fn pe san ee ee 16

United States v. Lucarz, 430 F.2d 1051 (9th Cir.

SE ceck tks ean R ME RKR sees cece ues. 10

United States v. Pacelii, 521 F.2d 135 (2d Cir. 1975),

cert. denied, 424 U.S. 911 (1976) ............ 16

United States v. Perdomo, 800 F.2d 916 (9th Cir.

SE b506 cacUeemn RCA Shea bake we psesc es 1]

United States v. Robilotto, 828 F.2d 940 (2d Cir.

1987), cert. denied, 484 U.S. 1011 (1988) ..*.. 7

United States v. Roche, 614 F.2d 6 (lst Cir.

RRR EO RO ey ee }1-12

~ United States.v. Ruggiero, 726 F.2d 913 (2d Cir.),

cert. denied, 469 U.S. 831 (1984) ............ 4

United States v. Schmidt, 711 F.2d 595 (Sth Cir.

1983), cert. denied, 464 U.S. 1041 (1984) .... 16

United States v. Wuagneux, 683 F.2d 1343 (11th Cir.

1982), cert. denied, 464 U.S. 814 (1983) ..... 10

United States v. Young, 745 F.2d 733 (2d Cir. 1984),

cert. denied, 470 U.S. 1084 (1985) ........... 11

Constitution, statutes and rule:

U.S. Const.:

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Racketeer Influenced and Corrupt Organizations

Act, 18 U.S.C. 1961 ef seq.:

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Statutes and rule— Continued:

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In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-379

JAMES COONAN AND EDNA COONAN, PETITIONERS

v.

UNITED STATES OF AMERICA

No. 89-5497

RICHARD RITTER, PETITIONER

Vv

UNITED STATES OF AMERICA

No. 89-5512

WILLIAM BOKUN, PETITIONER

v.

UNITED STATES OF AMERICA

No. 89-5601

JAMES MCELROY, PETITIONER

‘A

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND C/RCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-13a)

is unpublished, but the decision is noted at 876 F.2d 891

(Table).

'“Pet. App.” refers to the appendix to the petition in No. 89-379.

(1)

2

JURISDICTION

The judgment of the court of appeals was entered on May

24, 1989. Petitions for rehearing were denied on July 5, 1989

(Pet. App. 14a-15a). The petition for a writ of certiorari

in No. 89-5497 was filed on September 1, 1989; the peti-

tion in No. 89-379 was filed on September 2, 1989; and the

petitions in Nos. 89-5512 and 89-5601 were filed on

September 5, 1989 (a Tuesday following a Monday holi-

day). 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 Southern District of New York, petitioners were con-

victed of participating in and conspiring to participate in

the affairs of a racketeering enterprise, in violation of the

Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. 1962(c) and (d), as well as various

substantive crimes corresponding to the racketeering acts.’

James Coonan was sentenced to 75 years’ imprisonment and

2 All petitioners were convicted of the RICO charges. In addition,

all but Bokun were convicted of conspiracy to make extortionate ex-

tensions of credit, in violation of 18 U.S.C. 892, and conspiracy to use

extortionate means to collect extensions of credit, in violation of 18

U.S.C. 894. James Coonan and McElroy were also convicted of at-

tempted murder and assault, in violation of 18 U.S.C. 1952B (Supp.

V 1987); conspiracy to commit murder, in violation of 18 U.S.C. 1952B

(Supp. V 1987); and conspiracy to commit extortion against the Inter-

national Brotherhood of Teamsters and the International

Longshoremen’s Association, in violation of 18 U.S.C. 1951. James

Coonan and Ediia Coonan were convicted of conspiring to evade in-

come taxes, in violation of 18 U.S.C. 371, and James Coonan was also

convicted of financing extortionate extensions of credit, in violation

of 18 U.S.C. 893. Finally, Ritter and Bokun were convicted of con-

spiracy to distribute cocaine, in violation of 21 U.S.C. 846.

SE

3

a $1 million fine; Edna Coonan was sentenced to 15 years’

imprisonment and a $200,000 fine; McElroy was sentenced

to 60 years’ imprisonment; Ritter was sentenced to 40 years’

imprisonment; and Bokun was sentenced to 50 years’

imprisonment.

1. The charges against petitioners stemmed from their

involvement in the “Westies,” an organized crime group that

controlled criminal activities in the Hell’s Kitchen section

of New York City for a 20-year period beginning in the

mid-1960’s. Members of the Westies terrorized and exploited

the community through a series of murders and a variety

of illegal schemes involving kidnapping, extortion, loan-

sharking, gambling, and drug distribution. In three especial-

ly brutal murders, the bodies of the Westies’ victims were

dismembered and dumped into the East River. Additional-

lv, the Westies were involved in schemes to extort money

and jobs from labor unions doing business in Hell's Kitchen.

Gov't C.A. Br. 5-6.

James Coonan supervised the gang’s activities and re-

ceived most of its criminal proceeds. During Coonan’s

incarceration in the 1960’s and 1970’s on a murder convic-

tion, his wife Edna managed the gang’s loansharking opera-

tion and relayed important messages from Coonan to his

subordinates, including Coonan’s instructions to murder a

union official who was skimming money from the Westies.

McElroy was one of Coonan’s chief enforcers, and in that

capacity he committed murder, loansharking, and extor-

tion. Bokun also committed murder for the gang and

operated a substantial cocaine business. Ritter distributed

large an. vunts of cocaine and engaged in numerous loan-

sharking transactions. Gov’t C.A. Br. 6-7.

2. The court of appeals affirmed petitioners’ convictions

in an unpublished opinion. Pet. App. la-13a. The court ex-

plicitly considered and rejected most of the claims petitioners

have raised in this Court; as to the remaining claims, the

4

court of appeals explained that it had “carefully considered

the other arguments raised by [petitioners]” but had found

them to be without merit. Jd. at 13a.

ARGUMENT

1. a. Petitioners James Coonan, Edna Coonan, and

McElroy contend (89-379 Pet. 26-39; 89-5601 Pet. 10-13)

that the co-conspirator exception to the hearsay rule (Fed.

R. Evid. 801(d)(2)(E)) should not apply to racketeering con-

spiracies. According to petitioners, application of the co-

a conspirator exception is fundamentally unfair in a RICO

conspiracy because such a charge is broader than a tradi-

tional conspiracy and can involve highly diverse crimes by

apparently unrelated individuals. That contention is

meritless.

The co-conspirator exception to the hearsay rule (Fed.

R. Evid. 801(d)(2)(E)) applies by its terms to all conspiracies,

regardless of their objects, size, or scope. Moreover, the

courts have routinely applied the co-conspirator rule in

‘RICO cases. See, e.g., United States v. Ruggiero, 726 F.2d

913, 923-924 (2d Cir.), cert. denied, 469 U.S. 831 (1984);

: United States v. Lemm, 680 F.2d 1193, 1204 (8th Cir. 1982),

cert. denied, 459 U.S. 1110 (1983); United States v.

Calabrese, 645 F.2d 1379, 1386 (10th Cir.), cert. denied,

451 U.S. 1018 (1981). See also United States v. Hewes, 729

F.2d 1302, 1313 (11th Cir. 1984) (rejecting the claim that

Rule 801(d)(2)(E) should be inapplicable to RICO cases),

cert. denied, 469 U.S. 1110 (1985). There is no reason, in

the context of RICO prosecutions, to depart from this

Court’s holding in Bourjaily v. United States, 483 U.S. 171,

182-184 (1987), that a court need not make an independent

inquiry into the reliability of co-conspirator statements that

are otherwise admissible under Rule 801(d)(2)(E). Although

petitioners contend (89-379 Pet. 33-34) that RICO con-

spirators will not “know[ ] anything of the goals, much less

the workings, of all predicate conduct” in the conspiracy,

the same claim could be made about any other multiple-

object conspiracy.

b. Petitioner McElroy contends (89-5601 Pet. 6-10) that

tape-recorded statements made by his girlfriend, Fran

Mostyn, on January 15, 1987, to an undercover agent, in

which she implicated McElroy in a prior Westies’ killing,

were improperly admitted under Rule 801(d)(2)(E). He

asserts that Mostyn was not a conspirator, and that the

statements were not made in furtherance of the racketeer-

ing conspiracy.

> Petitioners contend (89-379 Pet. 36-39; 89-5601 Pet. 11) that the

decision below conflicts with United States v. Angiulo, 847 F.2d 956

(Ist Cir.), cert. denied, 109 S. Ct. 138 (1988). The court of appeals in

that case expressed concern about an instruction that allowed the jury

to consider co-conspirator statements in connection not only with the

RICO-counts, but also with an obstruction of justice count to which

they were not relevant. The court nonetheless concluded that the error,

if any, in failing to give a limiting instruction did not harm the defend.

ant. 847 F.2d at 971-972. In the present case, petitioners at trial did

not request a limiting instruction as to the use to which co-conspirator

statements could be put, and they have therefore not preserved that

issue. In any event, no such limiting instruction was required. All of

the non-RICO offenses on which petitioners were convicted were also

charged as predicate racketeering acts under the RICO counts. Since

a defendant is liable for all offenses committed by any co-conspirator

during the course of, and in furtherance of, a conspiracy in which both

are members (Pinkerton v. United States, 328 U.S. 640, 645 (1946);

Angiulo, 847 F.2d at 969-970), any evidence that was admissible to prove

that petitioners were members of the RICO conspiracy was also rele-

vant and admissible to show their liability on the offenses that were

committed as predicate acts in furtherance of the RICO conspiracy,

as charged in the indictment. In such circumstances, as the Angiulo

court noted (id. at 972 n.20), a district court may instruct the jury that

co-conspirator statements are admissible to prove the RICO and other

offenses charged as predicate acts under the RICO counts.

ngs 6

On January 15, 1987, several weeks after McElroy was

arrested on a murder charge, Fran Mostyn met with Westie

member William Beattie and undercover police officer

Ronald Stripp to discuss amphetamine sales and a contract

murder that McElroy had offered to commit for Stripp. The

conversation was tape-recorded. Mostyn responded to reser-

vations expressed by Stripp about McElroy by saying that

the murder case against McElroy was weak, that McElroy

was a reliable and hard-working member of the Westies,

and that his most recent accomplishment was the shooting

of a union official. Gov’t C.A. Br. 73-74.

The district court correctly found (see Gov’t C.A. Br. 78)

that Mostyn was a member of the RICO conspiracy and

that her statements were made in furtherance of the con-

spiracy. The evidence showed that Mostyn provided

substantial assistance to McElroy in his dealings with Westie

members. She attended several conspiratorial meetings; she

sold thousands of amphetamine pills on McElroy’s behalf;

and, as McElroy’s agent, she negotiated for the commis-

sion of a contract murder by the Westies. Moreover,

Mostyn’s statements furthered the conspiracy by reassur-

ing Beattie and Stripp that McElroy was a valuable member

of the Westies and that he would soon be available for

criminal activity. The statements also apprised Stripp —

purportedly a newcomer to the Westies — of McElroy’s high-

ranking position within the enterprise. Jd. at 79-80.

2. Petitioners James Coonan, Edna Coonan, and

McElroy (89-379 Pet. 40-45; 89-5601 Pet. 17-23) contend

that the district court failed to instruct the jury properly

on the required nexus between the racketeering acts and the

enterprise. The court of appeals correctly rejected that claim.

The RICO statute makes it a crime for a person associated

with an enterprise whose activities affect commerce “to con-

duct or participate, directly or indirectly, in the conduct of

such enterprise’s affairs through a pattern of racketeering

7

activity * * *.” 18 U.S.C. 1962(c). To establish the required

nexus between a RICO enterprise and the predicate acts of

racketeering, the government must show either that the

defendant was “enabled to commit the predicate offenses

solely by virtue of his position in the enterprise or involve-

ment in or control over the affairs of the enterprise” or that

“the predicate offenses are related to the activities of that

enterprise.” United States v. Robilotto, 828 F.2d 940,

947-948 (2d Cir. 1987) (emphasis omitted), cert. denied, 484

U.S. 1011 (1988). Accord United States v. Jannotti, 729 F.2d

213, 226 (3d Cir.), cert. denied, 469 U.S. 880 (1984).

The district court’s instructions here clearly fell within

those standards. The court instructed the jury that the re-

quired nexus between the RICO enterprise and the acts of

racketeering could be established if “either the act was com-

mitted by the defendant you are considering for the know-

ing and willful purpose of furthering the enterprise, or, in

committing it, he knowingly and willfully availed himself

of the resources of the enterprise.” The court further in-

structed the jury that the Westies’ “reputation for violence”

was one alleged resource of the enterprise of which a de-

fendant could have availed himself. Gov’t C.A. Br. 153.

Petitioners nonetheless complain (89-379 Pet. 44; 89-5601

Pet. 20-21) that the instruction was deficient because the

“resource” in question—the enterprise’s reputation for

violence — was freely available to anyone, whether or not

associated with the enterprise. For that reason, McElroy

contends (89-5601 Pet. 20-21) that “the charge given allowed

findings that an act was ‘related to the affairs of the enter-

prise’ where an individual may in fact have had no verifiable

support at all from the enterprise (such as money, weapons,

personnel, etc.), but rather merely helped himself to the

‘Westies’ name to commit an independent, ‘personal’ crime.”

That contention is incorrect. The tria! court instructed

the jury that a person who invoked the enterprise’s reputa-

8

tion for violence solely in order to commit an independent

personal crime was not culpable under RICO. As the trial

court put it: “[Tj]he mere fact that you may have decided

that there is an enterprise and that a given defendant was

associated with it, does not establish that a particular crime

he may have committed was related to the enterprise. In

other words, a person does not sell his soul to the enter-

prise by becoming associated with it, but he continues to

be free to commit good acts or bad acts on his own.” Gov’t

C.A. Br. 153.

3. Petitioners James Coonan, Edna Coonan, and

Richard Ritter (89-379 Pet. 46-54; 89-5497 Pet. 9-14)

challenge certain searches conducted during the investiga-

tion. The Coonans contend that the affidavits supporting

the search warrants did not establish probable cause that

the evidence sought would be found at the locations named

(89-379 Pet. 46-48), and that the warrants were overly broad.

Petitioner Ritter claims that the evidence recited in the af-

fidavit supporting the search warrant for his house was stale,

and that the agent who prepared the affidavit intentionally

misled the magistrate about the staleness of the evidence.

Accordingly, he reasons, the good-faith exception to the ex-

clusionary rule does not apply.

a. On June 23, 1986, federal agents executed a search

warrant for the Coonans’ residence in New Jersey. The war-

rant authorized the agents to search for:

evidence of loansharking and extortion records (in-

cluding the names of victims, collectors, partners,

and/or bankers, and the amounts and interest due, col-

lected, and/or paid), means or equipment/tools of col-

lection, and proceeds; and other evidence of violations

of 18 U.S.C. 1962(c) (including predicate acts of loan-

sharking and extortion) and the fruits thereof.

The agents seized approximately five cartons of

documents from that residence. Two days later, agents

9

executed a search warrant for a safe deposit box maintained

by the Coonans at a local bank. The warrant authorized

a search for essentially the same list of evidence. Agents

seized several financial records from the box. Gov’t C.A.

Br. 123-124.

The warrant authorizing the search of the Coonans’

residence was supported by the affidavits of Detectives

Frank Pergola and Stephan Mshar of the New York City

Police Department. The warrant authorizing the search of

the Coonans’ safe deposit box was supported by the same

two affidavits, as well as by the affidavit of Detective Harry

Brady. The Mshar affidavit, relying on three confidential

sources, described the criminal enterprise known as the

Westies and detailed some of the group’s illegal activities

over a 10-year period. Among other things, the affidavit

stated that James Coonan was the leader of the Westies gang

and that any money made by the group flowed to him. The

affidavit further recited that Edna Coonan and Richard Rit-

ter were gang members, and it described in detail the

Westies’ loansharking and extortion operation, including

a list of Coonan’s loansharking partners and customers. The

affidavit recited that loansharking proceeds had been turned

over to Coonan as recently as May and June 1986. Gov’t

C.A. Br. 124-127.

The Pergola affidavit recited a statement by Detective

Mshar that, based on his experience in undercover narcotics

investigations, he believed that narcotics traffickers generally

keep records of sales and distributions in secure locations

to which they have ready access, such as their homes. It also

contained statements by two FBI agents that loansharks

make and maintain records of their illegal activities in much

the same way as narcotics traffickers do. Gov’t C.A. Br. 129.

The Brady affidavit recounted the results of the search

of the Coonans’ residence, from which financial records,

bank statements for 12 bank accounts, and two keys and

10

the receipt to a safe deposit box had been seized. The Brady

affidavit also set forth the expert opinions of the two FBI

agents that loansharks generally keep loansharking records

in secure places within their residences or in safe deposit

boxes to hide them from law enforcement agents. Gov’t

C.A. Br. 129-130.

b. There was ample probable cause to believe that

evidence of loansharking activity would be found at the

Coonans’ residence and in their safe deposit box. The Mshar

affidavit demonstrated that Coonan was the boss of the

Westies’ loansharking and extortion activities and that Ed-

na Coonan served as her husband’s helper. The affidavit

also showed that Coonan was the personal repository of

the Westies’ loansharking loot. Moreover, two FBI agents,

based on their training and experience in loansharking and

extortion investigations, stated what common sense

confirms—that loansharks generally maintain business

records of their criminal activities and ill-gotten gains, just

as narcotics traffickers do, and that those records are often

kept within their residences or in other secure places, such

as safe deposit boxes. Those showings amply supported the

search of the Coonans’ home and safe deposit box. See

United States v. Cruz, 785 F.2d 399, 405-406 (2d Cir. 1986);

United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985);

United States v. Lucarz, 430 F.2d 1051, 1055 (9th Cir. 1970).

The search warrants were not insufficiently particular.

The particularity requirement of the Fourth Amendment

is satisfied when the description of the objects of the war-

rant “enables the searcher to reasonably ascertain and iden-

tify the things authorized to be seized.” United States v.

Wuagneux, 683 F.2d 1343, 1348 (11th Cir. 1982), cert.

denied, 464 U.S. 814 (1983). Here, the warrants authorized

a search for evidence of loansharking and extortion records,

and they contained a list of items described as specifically

as possible, such as records containing “names of victims,

11

collectors, partners, and/or bankers, and the amounts and

interest due, collected, and/or paid.” Gov’t C.A. Br. 123.

The fact that the warrants concluded with language

authorizing a search for “other evidence of violations of 18

U.S.C. § 1962(c)” did not make the warrants overly broad;

rather, as this Court has held, such general language at the

end of a warrant must be read as restricted to the specific

offenses itemized in the warrant. Andresen v. Maryland,

427 U.S. 463, 479-482 (1976) (upholding a warrant authoriz-

ing a search for particularly described documents “together

with other fruits, instrumentalities and evidence of crime

at this [time] unknown”). See also United States v. Perdomo,

800 F.2d 916, 920 (9th Cir. 1986) (“general language located

at the end of a warrant is to be viewed as relating only to

the specific offense named in preceding portions of the war-

rant”); United States v. Young, 745 F.2d 733, 759 (2d Cir.

1984) (“the boilerplate [‘other evidence’] language * * *

followed a list of more specific items to be seized, and could

be construed only in conjunction with that list”), cert.

denied, 470 U.S. 1084 (1985).4

4 Petitioners allege (89-379 Pet. 49-50 & n.18) that the court of ap-

peals’ conclusion that the warrant was not overbroad conflicts with deci-

sions of several other circuits. The cases relied upon by petitioners do

not support that claim. In United States v. Leary, 846 F.2d 592, 601-604

(10th Cir. 1988), the warrant in question authorized a search for

numerous listed documents “and other records and communications

relating to the purchase, sale and illegal exportation of materials in viola-

tion of the Arms Export Control Act.” Jd. at 594. Thus, the warrant

entitled the agents to seize essentially all documents that the agents

thought might help to prove the violation of particular export statutes.

The warrant was too broad because it permitted the agents to exercise

a legal juigment as to what, if anything, constituted a violation of the

statutes. .n holding that the warrant was overly broad, however, the

Leary court emphasized that “it is not the mere reference to the statute

that makes the * * * warrant overbroad, it is the absence of any limiting

features” (id. at 601 n.15). Similarly, in United States v. Roche, 614

12

c. On June 20, 1986, agents executed a warrant to search

Ritter’s residence for, inter alia, cocaine, firearms, and stolen

art work. Pursuant to the warrant, agents seized narcotics

residue, dilutents, narcotics paraphernalia, and an automatic

handgun and ammunition. In addition to the information

contained in the Mshar and Pergola affidavits, the affidavits

submitted in support of the Ritter warrant detailed Ritter’s

long-standing association with the Westies. For example,

the affidavits recited that three confidential sources disclosed

that Ritter was at the time, and for years had been, a Westies

crew member; that Coonan had arranged to murder some-

one in 1978 as a favor to Ritter; and that in connection with

the Westies’ ongoing narcotics distribution operation, Ritter

had purchased 2, quantity of cocaine on consignment from

a fellow Westie on April 4, 1979. Gov’t C.A. Br. 146-147.

The Mshar affidavit provided further evidence of Ritter’s

involvement with firearms. It stated that on an unspecified

date one of the confidential sources had seen a cache of

weapons, narcotics, and stolen property at Ritter’s residence;

that within the past two years Ritter had sold a fellow Westie

an “untraceable” shotgun; and that when Ritter was arrested

in 1978, he had thrown away a .22 calibre Derringer. Finally,

the Brady affidavit described a June 17, 1986, interview with

one of the confidential sources, in which the source had

stated that Ritter’s current residence was the same as the

one in which the source had previously seen the cache of

F.2d 6, 7 (Ist Cir. 1980), United States v. Cardwell, 680 F.2d 75, 77

(9th Cir. 1982), and Rickert v. Sweeney, 813 F.2d 907, 909 (8th Cir.

1987), the only limitation on the items to be seized was the require-

ment that the items be evidence of violations of specific statutes. In

the present case, by contrast, the warrant specifically described the types

of evidence for which the agents were to search, and it did not leave

to their unfettered discretion the task of determining what evidence con-

Stituted a violation of the statute in question.

13

weapons, and that Ritter was listed on the building direc-

tory as “Mr. Rogers.” The affidavit recited that Detective

Mshar had confirmed that information by visiting the

building on June 19, 1986, and noting the name “Rogers”

on the bell for Ritter’s apartment. Gov’t C.A. Br. 147.

The district court denied Ritter’s motion to suppress the

evidence seized from his residence. In rejecting Ritter’s mo-

tion, the court declined to resolve the question whether there

was probable cause to conduct the search. Rather, relying

on United States v. Leon, 468 U.S. 897 (1984), the court

admitted the seized evidence because of the searching agents’

good faith reliance on the validity of the warrant. Gov’t

C.A. Br. 145-146.

d. Ritter claims, as he did below, that the agents

deliberately misled the magistrate by concealing the fact that

some of the information in the warrant was stale. The court

of appeals examined the record on that point and found

“nothing to suggest that the alleged omissions were intended

to mislead the magistrate.” Pet. App. 8a. As the court noted

(ibid.), “the officers provided the magistrate with a wealth

of information concerning Ritter’s ongoing participation in

the Westies.” Those conclusions, affirming the findings of

the trial court, warrant no further review.

4. Claiming that there was a prejudicial spillover of

evidence, petitioner Edna Coonan argues (89-379 Pet. 54-55)

that the district court committed reversible error in refus-

ing to sever her trial from that of her husband. In fact,

however, there was no prejudicial spillover; the evidence

against James Coonan was readily segregable from the

evidence against Edna, and the jury could easily make the

required distinctions. The jury evidently understood its

responsibility to consider the evidence against each defend-

ant separately, since it acquitted Edna Coonan on some

14

counts.’ See United States v. Kabbaby, 672 F.2d 857, 862

(11th Cir. 1982). In any event, a separate trial would not

have helped Edna Coonan, since at any such trial the

evidence of her husband’s acts would have bees admissible

against her to establish the RICO conspiracy and the RICO

enterprise.® |

5. Petitioners James Coonan, Edna Coonan, McElroy,

and Bokun contend (89-379 Pet. 56-62; 89-5601 Pet. 13-16;

89-5512 Pet. 27-36) that the district court erred in‘excluding

expert testimony concerning the psychiatric condition of

government witness Francis “Mickey” Featherstone.

Petitioners sought at trial to establish that Francis

“Mickey” Featherstone, a government witness, was suffer-

ing from schizophrenia and for that reason was unworthy

of belief. To that end, they sought to call Dr. Daniel Crane,

a psychiatrist, to testify that someone suffering from

paranoid schizophrenia can never be cured and is incapable

of telling the truth. Observing that Featherstone had

’ Edna Coonan was acquitted of tax evasion and financing extor-

tionate credit transactions. Gov’t C.A. Br. 4.

® We do not understand the district court’s comment (see 89-379 Pet.

$4) that Edna Coonan “could not have been convicted in a trial by

herself.” The evidence against Edna Coonan was strong. It showed that

_ from 1979 until 1984, while her husband was incarcerated, Edna

Coonan regularly collected money from the Westies’ middle-level loan-

sharks; she occasionally complained about delinquent debtors who she

suggested wouid be punished by her husband following his release from

prison; she relied on the Westies’ enforcers to assist her in the collec-

tion of the gang’s loansharking money; she renewed at least one exten-

sion of credit to finance one of the gang’s mid-level loansharks; in 1983

she relayed a message from her husband to Featherstone directing

Featherstone to kill someone who had absconded with a lot of “shylock”

money; and she directed Featherstone to put another Westies gang

member out of the loansharking business or “do whatever you guys

want with him” because that member \was skimming loansharking

money. See Gov’t C.A. Br. 37-40. ell

15

seemed to be both competent and truthful, the district court

nonetheless sought the advice of an impartial expert, Dr.

Naomi Goldstein, before ruling on petitioners’ motion. Dr.

Goldstein reviewed Featherstone’s medical history, his trial

testimony, and the proposed testimony of Dr. Crane. She

also interviewed Featherstone’s counsei and one of the mar-

shals who had charge of Featherstone, and she examined

Featherstone himself. Dr. Goldstein found “no major

psychiatric disturbance that would have so disiurbed

{Featherstone’s] thinking that he was living in a fantasy

world or suffering from a paranoid disorder, and no other

mental disorder that would have interfered with intellectual

function, concentration, memory and attention.” Dr. Gold-

stein explained that nothing that a psychiatrist might tell

a jury would clarify Featherstone’s testimony, which seemed

to have been “lucid and appropriate.” Dr. Goldstein also

took exception to Dr. Crane’s proposed testimony, disagree-

ing with him on many points, “as well as with the extreme

positions he takes, particularly without having examined

Mr. Featherstone.” Gov’t C.A. Br. 110-111. Dr. Goldstein

concluded (id. at 111):

I have considerable concern about the psychiatric

history and records as these require very careful inter-

pretation before extrapolating from them. In my opin-

ion differing opinions about these records and in the

records themselves, might be very confusing and not

add to what Mr. Featherstone has already reported

about himself.

Based in large measure on Dr. Goldstein’s report, the district

court excluded Dr. Crane’s testimony. /bid.

During the cross-examination of Featherstone, which

lasted for five days, defense counsel questioned Featherstone

concerning his convictions, crimes, and bad acts; his abuse

of cocaine and bouts with alcoholism; his prior lies and per-

‘16

juries; his animus toward some of the defendants and his

attempts at revenge; his failed first marriage and his ex-

tramarital relationships; his alleged sexual perversions; his

feelings of anger and rage; his agreement and disagreements

with the government; his full psychiatric history, including

the time he spent in mental hospitals; the medications ad-

ministered to him; and the fact that he had once been

diagnosed as suffering from “paranoid schizophrenia.”

Gov't C.A. Br. 112-113. -

As this Court has recognized, a trial judge enjoys broad

discretion in deciding whether to admit expert testimony

(Hamling v. United States, 418 U.S. 87, 127 (1974)), and

a trial court’s determination that psychiatric testimony is

not admissible to impeach the credibility of a witness will

not be disturbed absent clear error. United States v. Pacelli,

521 F.2d 135, 140 (2d Cir: 1975), cert. denied, 424 U.S. 911

(1976). In light of the court-appointed expert’s detailed find-

ings, the trial court acted well within its discretion in ex-

cluding Dr. Crane’s testimony on the ground that his

testimony would be more likely to confuse than assist the

jury. See, e.g., United States v. Schmidt, 711 F.2d 595,

598-599 (Sth Cir. 1983), cert. denied, 464 U.S. 1041 (1984);

United States v. Lord, 711 F.2d 887, 892 (9th Cir. 1983).

Moreover, defense counsel was given extremely broad

latitude in cross-examining Featherstone over a five-day

period. Furthermore, the district court cautioned the jury

to weigh Featherstone’s credibility with special care, not only

because Featherstone was an accomplice witness, but also

because of his psychiatric history. Gov’t C.A. Br. 112-113.

In these circumstances, as the court of appeals concluded

(Pet. App. 7a), the district judge “acted well within his

discretion in refusing to admit the proffered iestimony of

*** (Dr. Crane.]” 3

17

6. Petitioner Bokun claims (89-5512 Pet. 13-26) that the

district court committed reversible error in restricting his

direct examination of a defense witness.

On May 18, 1986, petitioner Bokun confessed to Sissy

Featherstone, Mickey Featherstone’s wife, that he had killed

Michael Holly (whom the Westies blained for the murder

of Bokun’s brother John). Bokun described how he had

disguised himself; how he had shot Holly five times in the

back; and how he had smiled at Holly’s dying words.

Bokun’s admissions were secretly tape-recorded by Sissy

Featherstone and admitted against Bokun at trial. Gov’t

C.A. Br. 19-20, 83-84.

In an attempt to cast doubt on the truthfulness of his own

admissions, Bokun called Patrick Hogan as a witness. Ac-

cording to Bokun, Hogan would testify that Mickey

Featherstone (who had been charged with the Holly murder)

had told him to instruct Bokun to admit falsely that he had

killed Holly, so that Sissy would have reason to hope for

her husband’s eventual release from jail. According to

Bokun, Hogan would testify that he had relayed

Featherstone’s request to Bokun. The district court ruled

that the Hogan-Bokun conversation was admissible, and

that the government could elicit the Hogan-Featherstone

conversation in order to place the former conversation in

context. Pet. App. 8a-9a. .«

Thereafter, on direct examination, Hogan testified that

he had had a conversation with Featherstone concerning

Bokun, and that following the conversation he had spoken

with Bokun (Gov’t C.A. Br. 85; Pet. App. 9a):

I met with Billy [Bokun], and I said to him, “Mickey

[Featherstone] wants me to ask you to do him a favor.”

And I said he said, “Being that the cops are lying and

all of this is going on, he is afraid of getting convicted,

if this should happen, and he said that Sissy was a

18

wreck,” which she honestly was, and he said, “If this

should happen, that he wants you to stand up and say

you did it, and then he’ll come out and he’ll find out

what really happened and he’ll get you out.”

| On. cross-examination, Hogan testified further about his

conversation with Featherstone. In addition, Hogan testified

that Featherstone consistently maintained his innocence of

the Holly murder. Gov’t C.A. Br. 85-86.’

Bokun argues that the district court should have allowed

him to question Hogan in more detail about his conversa-

tion with Featherstone. According to petitioner, the limita-

tion on direct examination prevented him from “elicit[ing]

those portions of the conversation that demonstrated that

Featherstone had told Hogan to ask Bokun fo lie about kill-

ing Holly in order to calm Sissy Featherstone.” 89-5512 Pet.

18.

That characterization of the court’s limitation is inac-

curate. The court permitted Hogan to testify about his con-

versation with Bokun. According to his testimony, Hogan

told Bokun that Featherstone wanted Bokun to confess to

Sissy Featherstone that it was he, not Featherstone, who

had killed Holly. As the court of appeals explained (Pet.

App. 9a), that testimony “clearly revealed the substance of

what Featherstone wanted Bokun to do.” There is no basis

for Bokun’s contention that the trial court precluded him

from establishing the defense ihat his confession to Sissy

Featherstone was false.

’ The evidence at trial showed that on the day of Holly’s murder,

Bokun, wearing an elaborate disguise, approached Holly on a crowded

Manhattan street, fired five bullets into Holly’s back, and escaped in

a getaway car driven by Westie Kenneth Shannon. Bokun wore a hat,

wig, and sunglasses, and had a faint mustache penciled in. Bokun wore

heavy theatrical makeup to cover a prominent birthmark on his face.

Gov't C.A. Br. 20.

19

7. Finally, Bokun contends (89-5512 Pet. 37-49) that he

was denied his rights to counsel and to a fair trial when the

district court appointed a substitute counsel to assist in his

representation.

Two months into the trial, on November 30, 1987, Alfred

Christiansen, counsel for petitioner Bokun, advised the

court that he had an ear infection and would have to ex-

cuse himself to obtain medical attention. Government

counsel assured the court that the proof would not implicate

Bokuh until the following week, and, with Bokun’s con-

sent, counsel for a co-defendant substituted for Mr. Chris-

tiansen. When Mr. Christiansen did not appear on

December 7, as co-counsel predicted he would, the trial was

adjourned until December 8 so that the government could

reorder its proof in order to avoid implicating Bokun. Gov’t

C.A. Br. 93-94.

On December 14, the trial judge telephoned Christiansen

and learned that he might be absent for another week or

two. The judge then appointed attorney Austin Campriello

to represent Bokun as co-counsel. The judge advanced the

Christmas holiday break in order to give Campriello addi-

tional time to prepare. When trial resumed on December

21, the judge informed the jury that Christiansen was still

too ill to proceed and introduced Campriello to the jurors.

The government then called its next witness, an undercover

detective who had dealt with Bokun. The following day,

Campriello cross-examined the undercover officer

thoroughly and at length. Trial was then adjourned until

after the holidays. Gov’t C.A. Br. 94-95.

On January 4, 1988, trial reconvened with Campriello as

counsel for Bokun. The next day and frequently thereafter,

both Campriello and Christiansen appeared jointly for

Bokun. They alternated cross-examining the government’s

witnesses, objecting to the government’s questioning, mak-

ing legal arguments, and presenting Bokun’s defense case.

20

Both attorneys participated in the charging conference, and

Campriello delivered the defense summation. Gov’t C.A.

Br. 95.

Both attorneys represented Bokun at sentencing. Follow-

ing the imposition of sentence, Christiansen advised the

court that Bokun wished to be represented by Campriello

on appeal. The court granted Christiansen’s request to

withdraw, but advised Bokun that if he decided to bé

represented by Campriello on appeal, he would have to

forgo any challenge to his attorney’s effectiveness. Bokun

acknowledged the court’s advice and reiterated his desire

to be represented by Campriello. Gov’t C.A. Br. 96.

Apparently recognizing (89-5512 Pet. 38) that Campriello

was not ineffective under the standards set forth in

Strickland v. Washington, 466 U.S. 668 (1984), petitioner

nonetheless contends that there is a per se Sixth Amend-

ment violation whenever counsel is substituted during a

RICO trial. There is no merit to that claim. Absent “cir-

cumstances that are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is un-

justified,” the Sixth Amendment guarantee of effective

assistance of counsel is not implicated unless “some effect

of [the] challenged conduct on the reliability of the trial

process” is demonstrated in particularized fashion. United

States v. Cronic, 466 U.S. 648, 658 (1984). In the present

case, no such effect can be shown. To the contrary, the trial

court took great pains to ensure that the substitution of

counsel did not prejudice petitioner. When petitioner’s

original counsel, Alfred Christiansen, became ill eight weeks

into the trial, the court arranged, with petitioner’s consent,

for counsel for a co-defendant to represent petitioner dur-

ing Christiansen’s absence. The court took that step only

after assuring itself that the proof would not implicate peti-

tioner until the following week, when Christiansen was ex-

21

‘pected to return. Thereafter, the government rearranged its

) proof to avoid introducing any evidence that would im-

plicate petitioner in Christiansen’s absence. When it became

apparent that Christiansen would be absent longer than

originally anticipated, the court appointed Austin Cam-

priello to represent petitioner as co-counsel, and the court

advanced a holiday break in order to give Campriello time

to prepare. Campriello reviewed the records in the case,

familiarized himself with the trial proceedings to date, and

announced that he was prepared to proceed. At no time did

Campriello request any additional time in order to prepare

| for trial. There were only two days on which Campriello

handled petitioner’s representation by himself; after Chris-

tiansen reappeared at trial, he and Campriello frequently

jointly appeared for petitioner. The record reflects, and the

court of appeals specifically found (Pet. App. lla), that

Campriello represented petitioner effectively. Indeed, peti-

tioner’s decision to have Campriello represent him on ap-

peal confirms that he regarded Campriello as an effective

advocate for him.

CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

DEBORAH WATSON

Attorney

NOVEMBER 1989

YY U.S. GOVERNMENT PRINTING OFFICE: 1989—262-203/00581