Opposition Brief — Spillone v. United States

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No. 89-1924 JUL 20 98

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OCTOBER TERM, 1990

VITO SPILLONE, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

LOUIS M. FISCHER

Attorney

Department of Justice

Washington, D.C. 205380

(202) 514-2217

BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. Whether the government presented perjured

testimony to the grand jury, and if so, whether peti-

tioner’s indictment should therefore have been dis-

missed.

2. Whether the electronic surveillance orders in

this case met the particularity requirements of 18

U.S.C. 2518(4) (ce) and the Fourth Amendment.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Bank of Nova Scotia v. United States, 487 U.S. 250

Teen cesessseeunenenectitliceues 5

Mesarosh Vv. United States, 352 U.S. 1 (1956) _.... 7 9

Napue V. Illinois, 360 U.S. 264 (1959) -...00.000000.... 8

United States v. Carneiro, 861 F.2d 1171 (9th Cir.

ee ee 2) EAE Fs hee ARID 10

United States v. Cohen, 530 F.2d 43 (5th Cir.),

cert. denied, 429 U.S. 855 (1976) ....0000...00000..... 10

United States v. Giacalone, 853 F.2d 470 (6th

Cir.), cert. denied, 488 U.S. 910 (1988) .............. 10

United States vy. Licavoli, 604 F.2d 613 (9th Cir.

1979), cert. denied, 446 U.S. 935 (1980) ............ 10

United States v. Mechanik, 475 U.S. 66 (1986)...... 5, 8

United States v. Smith, 726 F.2d 852 (1st Cir.),

cert. denied, 469 U.S. 841 (1984) —.....0000000.... 10

United States ¥. Turner, 528 F.2d 143 (9th Cir.),

cert. denied, 423 U.S. 996 (1975) _......00.00.. 10

Statutes:

Hobbs Act, 18 U.S.C. 1951 et seq.:

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Racketeer Influenced and Corrupt Organizations

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

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18 U.S.C. 1962 (c) ................... reteset akcakekoken 2

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Statutes—Continued:

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18 U.S.C. App. 1202 (a) (1) (1982) ............................

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Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1924

VITO SPILLONE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

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

30a) is reported at 879 F.2d 514.

JURISDICTION

The judgment of the court of appeals was entered

on June 15, 1989. A petition for rehearing was de-

nied on February 12, 1990 (Pet. App. 3la). On

May 14, 1990, Justice O’Connor extended the time

for filing a petition for a writ of certiorari to and

including June 12, 1990 (Pet. App. 32a), and the

petition was filed on June 11, 1990. The jurisdiction

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

(1)

2

STATEMENT

After a jury trial in the United States District

Court for the Central District of California, peti-

tioner was convicted of conducting the affairs of an

enterprise through a pattern of racketeering activity

(18 U.S.C. 1962(¢c)), and conspiring to commit that

offense (18 U.S.C. 1962(d)). He also was convicted

on two counts of making extortionate extensions of

eredit (18 U.S.C. 892) and on one count of using

extortionate means to collect extensions of credit (18

U.S.C. 894)... He was sentenced to ten years’ im-

prisonment and a $200,000 fine. The court of ap-

peals affirmed. Pet. App. la-30a.

1. The evidence at trial, the sufficiency of which

is not in dispute, showed that petitioner ran a loan-

sharking operation in the Los Angeles area between

October 1980 and December 1981. Petitioner headed

the organization; co-defendants Frank Citro and

Frank Serrao and co-conspirator Raymond Cohen

made the actual loans to the organization’s victims;

1 Prior to trial, the government dismissed a charge of pos-

sessing firearms after a previous felony conviction (18 U.S.C.

App. 1202(a)(1) (1982)). Petitioner stood trial with co-

defendants John Clyde Abel, Frank Citro, Frank Serrao, John

Barro, Joseph Bolognese, and John Meccia. Barro, Bolognese,

and Meccia were acquitted on all charges against them, while

Abel, Citro, and Serrao were convicted on the RICO substan-

tive count but were acquitted on the RICO conspiracy count.

Abel, Citro, and Serrao also were convicted on various charges

of making extortionate extentions of credit and of using extor-

tionate means to collect extensions of credit. The court of

appeals affirmed Abel’s and Citro’s convictions in the same

opinion that disposed of petitioner’s claims. Serrao’s appeal

was delayed because of his first attorney’s failure to file a

brief. That appeal has been argued but is still pending. Gov’t

C.A. Br. 2-3 n.1.

3

and Serrao, co-defendant John Clyde Abel, and co-

conspirators Kurt Ehle and Thomas Szamocki func-

tioned as the organization’s enforcers. Operating

principally out of the California Bell Club, a licensed

poker club in Bell, California, the organization made

loans that bore interest at rates of five to ten percent

per week. The loans were made with the under-

standing that a borrower’s failure to make timely

payments would result in physical reprisal. Abel,

Serrao, Ehle, and Szamocki used violence or threats

of violence to persuade various borrowers to repay

their loans. Citro, Cohen, Abel, and Serrao collected

the loan payments and turned their collections over

to petitioner. He in turn gave them a percentage of

the amounts they had collected. Pet. App. 3a; Gov’t

C.A. Br. 3-4.

2.a. Prior to trial, petitioner moved to suppress

the fruits of electronic surveillance. He contended

that the district court orders authorizing the surveil-

lance were deficient under 18 U.S.C. 2518(4) (c) be-

cause they did not sufficiently particularize the of-

fenses for which electronic surveillance was author-

ized.” The district court rejected that claim. Al-

though one paragraph of the surveillance orders re-

ferred merely to offenses ‘enumerated in” 18 U.S.C.

2516, the district court noted that other paragraphs

identified specific offenses subject to the surveillance

—including extortion, interstate travel, and murder.

Gov’t C.A. Br. 6-7.

b. Both before and after trial, petitioner moved to

dismiss the indictment on the ground that the gov-

2 Section 2518(4) (c) provides that every electronic surveil-

lance order “shall specify * * * a particular description of the

type of communication sought to be intercepted, and a state-

ment of the particular offense to which it relates[.]”

4

ernment had presented perjured testimony to the

grand jury. In particular, petitioner claimed that

grand jury witness Johnny Angelo had testified

falsely about when he had become an informant and

about any consideration he had received for his testi-

mony: that the government had withheld from the

grand jury information that undercut Angelo’s credi-

bility, particularly his criminal record; and _ that

FBI Agent William Wiechert had compounded An-

gelo’s perjury by repeating Angelo’s false statement

about the date he had become an informant. Angelo

did not testify at trial, but petitioner secured an affi-

davit from him after trial. In that affidavit, Angelo

claimed that he had been told by FBI agents to lie

to the grand jury. Angelo later recanted that state-

ment and testified at two post-trial hearings. Al-

though he took issue with certain statements attrib-

uted to him in the government’s affidavit for a wire-

tap order, Angelo said that he had testified truth-

fully before the grand jury. After considering all

of petitioner’s submissions, the district court denied

his motion to dismiss the indictment. Pet. App. 15a-

17a.

Petitioner also contended that government witness

Irving Minster had perjured himself before the

grand jury by denying that he was a loanshark at

the California Bell Club. Petitioner further asserted

that FBI Agent Wiechert and the prosecutor had

known from a prior investigation that Minster’s tes-

timony was perjurious, but had failed to correct it.

At trial, Minster repeated his denial of loansharking

activities. Thereafter, Agent Wiechert testified about

certain tape-recorded conversations with Minster

suggesting that Minster was in fact a loanshark.

The district court denied petitioner's mid-trial motion

to dismiss the indictment on account of Minster’s

5

perjury. The court explained that although the gov-

ernment had only belatedly revealed to defense coun-

sel the evidence impeaching Minster as a witness,

that evidence was nonetheless available in time for

use at trial. The court also found that the govern-

ment’s trial attorneys had not been aware of the evi-

dence, largely because of Wiechert’s malfeasance,

and thus dismissal would be inappropriate. The

court denied petitioner’s post-trial motion to dismiss

the indictment on the same grounds, finding in addi-

tion that there was sufficient evidence to support the

indictment without Minster’s testimony. Pet. App.

19a-20a.

3. The court of appeals affirmed petitioner’s con-

victions. Pet. App. la-30a. It unanimously rejected

his Title III claim, concluding that the wiretap

orders, when construed as a whole, sufficiently par-

ticularized the offenses that were the authorized sub-

jects of the surveillance orders. /d. at 4a-6a. By a

divided vote, the court also rejected petitioner’s pros-

ecutorial misconduct claims. Relying on United

States v. Mechanik, 475 U.S. 66 (1986), the court

explained that, in view of petitioner’s conviction at

trial, any error in presenting Angelo’s testimony to

the grand jury was harmless. Pet. App. 17a. The

court alternatively found, under Bank of Nova

Scotia v. United States, 487 U.S. 250, 256 (1988),

that any errors involving Angelo’s testimony did not

substantially influence the grand jury’s decision to

indict petitioner. The court reached the same con-

clusion about Minster’s grand jury testimony, find-

ing that the prosecutors had not known of Minster’s

perjury and that there was ample other evidence to

support the indictment. Pet. App. 19a-20a. Finally,

the court held that the cumulative effect of the al-

6

leged misconduct did not warrant dismissal of peti-

tioner’s indictment. Jd. at 20a-21a.”

Judge Pregerson concurred in part and disse1ted

in part. Pet. App. 27a-30a. In his view, Angelo’s

false testimony about the date he had become an in-

formant, coupled with the government’s failure to

advise the grand jury that it had terminated Angelo

as an informant, warranted dismissal of the indict-

ment. Id. at 27a-29a. Judge Pregerson also stated

that the cumulative effect of the asserted misconduct

required dismissal of the indictment. Jd. at 29a-30a.

ARGUMENT

1. Petitioner contends (Pet. 9-13) that his indict-

ment should have been dismissed because of alleged

acts of misconduct before the grand jury. In par-

ticular, petitioner contends that the government

failed to inform the grand jurors that Angelo, a wit-

ness before the grand jury, had nine felony con-

victions and had been discontinued as an informant.

In addition, petitioner asserts that the prosecutor

knowingly condoned perjurious grand jury testimony

by Angelo and Minster. The courts below correctly

rejected those claims.

In the first place, petitioner’s assertions are fac-

tually inaccurate. While Angelo had several felony

convictions, the government did not hide that fact

fr.m the grand jury. To the contrary, Angelo ac-

knowledged at the outset of his first grand jury ap-

3 The court of appeals also rejected challenges to the jury

instructions, the admission of certain evidence, and the trial

court’s decision to interrupt and restrict counsel’s closing

argument. Pet. App. 6a-10a, 21a-26a. The petition does not

present those contentions.

7

pearance that he was then serving sentences on two

state convictions. Gov’t C.A. Br. 30. Similarly, at

his second appearance, Angelo informed the grand

jury that he had several convictions and had just

been released from prison the previous week. Jbid.

And the prosecutor told the grand jury that the gov-

ernment had arranged for Angelo to serve his state

sentence in a federal institution under the federal

witness protection program. Id. at 31. The grand

jury therefore plainly knew that Angelo had an ex-

tensive criminal record. Moreover, there was no rea-

son to advise the grand jury of Angelo’s temporary

deactivation as an informant. Angelo was deacti-

vated in April 1982, but was reactivated as an in-

formant in August 1983, prior to his second grand

jury appearance. Since Angelo’s temporary deactiva-

tion took place well after the wiretaps were com-

pleted on petitioner’s and his co-defendants’ tele-

phones, nothing about Angelo’s deactivation could

have affected the propriety of the wiretaps, which

corroborated much of his testimony before the grand

jury. 7d. at 32.

Beyond that, it is clear that Angelo’s testimony

was not necessary, let alone crucial, to obtaining the

indictment against petitioner. All of the victims of

petitioner’s loansharking operation testified before

the grand jury, and thus the grand jury heard abun-

dant evidence about the offenses. Indeed, when An-

gelo thereafter became unavailable for trial, the gov-

ernment had to strike only two of the 40 overt acts

in the indictment. See Pet. App. 17a. In short, as

the court below held, Angelo’s testimony “did not

‘substantially influence the grand jury’s decision to

indict’ nor conflict with the ‘fundamental fairness’

standard.” /d. at 18a. What is more, the petit

8

jury’s decision to convict petitioner—without An-

gelo’s testimony—means “not only that there was

probable cause to believe that [he was] guilty as

charged, but also that [he is] in fact guilty as

charged beyond a reasonable doubt.” Mechanik, 475

U.S. at 70. In light of the overwhelming proof of

petitioner’s guilt—both before the grand jury and at

trial—the failure to inform the grand jury of An-

gelo’s temporary deactivation as an informant, or of

the exact number and nature of Angelo’s prior con-

victions, cannot have been material to the grand

jury’s decision.

The same is true of Minster’s testimony. As the

courts below found, see Pet. App. 20a, the prosecu-

tors did not “condone” Minster’s perjury. Indeed,

the prosecutors did not learn of the perjury until

mid-trial. See ibid. And petitioner offers no reason

to dispute the lower courts’ factbound conclusion that

any misconduct concerning Minster was harmless.

Id. at 19a-20a.

For these reasons, petitioner’s reliance (Pet. 10)

on Napue vy. Illinois, 360 U.S. 264 (1959), is mis-

placed. In Napue, the Court held that a conviction

may not be based on the knowing use of perjured

testimony. In the present case, by contrast, there

was no “knowing” use of perjured testimony, either

in the grand jury or at trial, as both lower courts

made clear. Pet. App. 20a. At trial, the jury re-

ceived evidence through Agent Wiechert that cast

substantial doubt on Minster’s claim that he was not

engaged in loansharking. The petit jury’s verdict,

based on evidence that revealed the suspect nature of

Minster’s claim of innocence, shows that the grand

jury was not deceived by Minster’s testimony into

9

returning an indictment when one was not war-

ranted.‘

2. Petitioner also contends (Pet. 14-15) that the

wiretap orders did not sufficiently particularize the

crimes that were the authorized subjects of the sur-

veillance. There is no merit to that claim.

The wiretap orders stated in pertinent part that

there was probable cause to believe that petitioner

and others were engaging in extortion in violation of

the Hobbs Act (18 U.S.C. 1951), interstate travel in

aid of extortion (18 U.S.C. 1952), extortionate credit

transactions (18 U.S.C. 892-894), conspiracies to

commit those offenses (18 U.S.C. 371), and RICO

violations (18 U.S.C. 1962) with the foregoing of-

fenses as predicate acts. Pet. App. 5a. The first

order also stated that the interceptions would focus

on racketeering activities “involving extortion and

murder.” Ibid.

Petitioner concedes (Pet. 14) that the orders par-

ticularized the foregoing crimes, but he claims

(ibid.) that the orders were nevertheless too general

because another paragraph stated that the intercep-

tions would involve “the offenses enumerated in Sec-

4 Neither is this case like Mesarosh v. United States, 352

U.S. 1 (1956). There the government discovered after trial

that one of its principal witnesses had likely testified falsely

in other cases. This Court reversed and ordered a new trial,

concluding that the defendant’s conviction could not rest on

tainted testimony. Id. at 9. In the present case, however, the

evidence at trial reveafed the likely falsehood of Minster’s

laim of innocence. Moreover, the courts below found that

petitioner had an ample opportunity at trial to challenge

Minster’s perjury. The courts also concluded that, in light

of the wealth of evidence before both the grand jury and

petit jury, petitioner had not shown that either his indictment

or conviction rested on tainted testimony.

10

tion 2516.” As the court of appeals explained, the

latter, general statement was limited by other, more

specific references to particular offenses. Pet. App.

5a-6a. The courts of appeals have uniformly upheld

wiretap orders under such circumstances. See, @.g.,

United States v. Giacalone, 853 F.2d 470, 480-481

(6th Cir.), cert. denied, 488 U.S. 910 (1988);

United States v. Licavoli, 604 F.2d 613, 620 (9th

Cir. 1979), cert. denied, 446 U.S. 935 (1980);

United States v. Cohen, 530 F.2d 48, 45-46 (5th

Cir.), cert. denied, 429 U.S. 855 (1976); United

States v. Turner, 528 F.2d 143, 153-155 (9th Cir.),

cert. denied, 423 U.S. 996 (1975). See also United

States v. Carneiro, 861 F.2d 1171, 1179 (9th Cir.

1988); United States v. Smith, 726 F.2d 852, 865

(1st Cir.). cert. denied, 469 U.S. 841 (1984).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

LOUIS M. FISCHER

Attorney

JULY 1990

Tl ow. S. GOVERNMENT PRINTING OFFice; 12990 262203 20023

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