Opposition Brief — Bloom v. United States

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Iu the Supreme Court of the Un

_ OCTOBER TERM, 1990

HERMAN BLOOM and HERBERT K. FISHER,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

ee Se SES

QUESTIONS PRESENTED

1. Whether a court order authorizing the exten-

sion of previously authorized electronic surveillance

was “insufficient on its face” under 18 U.S.C. 2518

(10) (a) (ii) because one page of the proposed order

was missing from the package when the judge signed

the order.

2. Whether petitioner Bloom was improperly con-

victed of aiding and abetting the payment of a kick-

back to influence the operation of an employee wel-

fare benefit plan, in violation of 18 U.S.C. 1954,

without proof that he took any steps to demonstrate

his willful participation in the crime.

(1)

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

Traitz v. United States, cert. denied, 110 S. Ct. 78

os santeenensusentecone 5

United States v. Armocida, 515 F.2d 29 (3d Cir.),

cert. denied, 423 U.S. 858 (1975) -.....00000000.e en. 7

United States v. Chavez, 416 U.S. 562 (1974)........ x

United States v. Ford, 553 F.2d 146 (D.C. Cir.

NG OS 7

United States v. Escandar, 319 F. Supp. 295 (S.D.

Fla. 1970) ......... ee iL 6

United States v. Giordano, 416 U.S. 514 (1974)...... 8

United States v. Lamonge, 458 F.2d 197 (6th Cir.),

cert. denied, 409 U.S. 863 (1972)... 8

United States v. Martinez, 588 F.2d 1227 (9th Cir.

EAE ASG AES EES 6, 7

United States v. Ojeda Rios, 110 S. Ct. 1845

EE RST SS ee 8

United States v. Tortorello, 342 F. Supp. 1929

(S.D.N.Y. 1972), aff’d, 480 F.2d 764 (2d Cir.),

cert. denied, 414 U.S. 866 (1978) —.....0000... ee... 6

United States v. Traitz, 871 F.2d 368 (3d Cir.),

cert. denied, 110 S. Ct. 78 (1989) ......000000000.. 4, 5, 6, 7,9

Statutes:

Omnibus Crime Control and Safe Streets Act of

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(III)

IV

Statutes—Continued:

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18 U.S.C. 2518 (10) (a) (ii) 2.

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18 U.S.C. 1954 ...........2... SSRN rea HT EN ET ETON One

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Iu the Suprene Court of the United States

OCTOBER TERM, 1990

No. 89-1942

HERMAN BLOOM and HERBERT K. FISHER,

PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinions of the court of appeals affirming pe-

titioners’ convictions (Pet. App. Al-Al4) are not

yet reported, but are noted at 898 F.2d 142 and 143

(Table). The opinion of the district court denying

petitioners’ motions to suppress (Pet. App. A18-

A29) is upreported. The opinion of the district court

denying petitioners’ motions to dismiss the indict-

ment is reported at 692 F.Supp. 495, and the opinion

of the court of appeals dismissing the interlocutory

appeal from that decision is reported at 871 F.2d

444,

(1)

EE ————

2

JURISDICTION

The judgments of the court of appeals were en-

tered on February 8, 1990. A petition for rehearing

was denied on March 13, 1990. The petition for

writs of certiorari was filed on June 11, 1990. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

On October 23, 1986, an indictment was returned

in the Eastern District of Pennsylvania, charging

petitioners and 17 others with racketeering (18

U.S.C. 1962(c)), racketeering conspiracy (18 U.S.C.

1962(d))}, embezzling from a union welfare benefit

plan (18 U.S.C. 664), and paying kickbacks to in-

fluence the operation of an employee welfare benefit

plan (18 U.S.C. 1954).

On May 14, 1987, the case against petitioners

Bloom and Fisher was severed. An eight-count su-

perseding indictment, charging petitioners alone,

was returned on January 21, 1988. Petitioners were

charged with one count each of racketeering and

racketeering conspiracy (Counts 1 and 2), paying a

kickback to union officials to influence the operation

of an employee welfare benefit plan (Count 3), and

embezzling from a union welfare benefit plan (Count

6). Petitioner Fisher was also charged with two ad-

ditional counts of paying kickbacks (Counts 4 and

5) and two additional counts of embezzling from a

union welfare benefit plan (Counts 7 and 8).

Following a jury trial, petitioners were convicted

on the one kickback count in which they were jointly

charged (Count 3). They were acquitted on all other

charges. Petitioners were each sentenced to terms

of imprisonment of one year and one day. In addi-

3

tion, petitioner Fisher was fined $125,000, and peti-

tioner Bloom was fined $25,000. The court of ap-

peals affirmed. Pet. App. Al-A14.

The evidence at trial is summarized in the opin-

ions of the court of appeals. Pet. App. A2-A3, A9-

A10. Petitioners were partners in the law firm of

Bloom, Ocks and Fisher. Petitioners’ law firm was

retained as the sole provider of legal services to

eligible members of a welfare benefit plan operated

on behalf of Roofers Union Locals 30/30B. The

plan, which was funded pursuant to a collective bar-

gaining agreement between the union and an asso-

ciation of roofing contractors, paid the law firm a

fixed monthly amount. Petitioners were alleged to

have participated in a ten per cent kickback of funds

from the law firm to representatives of the plan for

use in bribing local officials.

The evidence against petitioners grew out of a

court-authorized electronic surveillance order, pur-

suant to which the FBI monitored conversations in

the office of a union official and plan trustee and in

the business agents’ meeting room at the union hall.

At petitioners’ trial, the government relied on tapes

of 33 conversations to show that petitioner Fisher un-

lawfully gave union officials ten per cent of the com-

pensation that the plan paid to Bloom, Ocks and

Fisher in 1983, 1984, and 1985. Petitioner Bloom

was shown to be involved in the 1985 payment. The

evidence against Bloom consisted mainly of inter-

cepted conversations among Bloom, Fisher, and

Stephen Traitz, Jr., a union official and trustee of

the plan. Pet. App. A3, A10.’

1 Other conversations recorded by the FBI pursuant to court

order resulted in the conviction of union officials for offenses

including racketeering, mail fraud, solicitation of kickbacks,

4

ARGUMENT

1. Petitioners contend (Pet. 12-22) that the courts

below erred in failing to suppress certain electronic

surveillance evidence. The evidence should have been

suppressed, they argue, because one of the court or-

ders authorizing the electronic surveillance was fa-

cially insufficient.

Electronic surveillance was first authorized in an

order dated September 23, 1985, which authorized

federal agents to conduct surveillance for a period of

30 days. Pet. App. Al8. The order was issued pur-

suant to the provisions of Title III of the Omnibus

Crime Control and Safe Streets Act of 1968, 18

U.S.C, 2510 et seg. A second order, signed on Octo-

ber 24, 1985, authorized a 30-day extension of the

electronic monitoring,’ Petitioners argue that the

October 24 order was facially insufficient under 18

U.S.C. 2518(10) (a) (ii) because a page was missing

from the proposed order when it was signed by the

authorizing judge. Pet. App. A21.

Both the district court and the court of appeals

found that the absence of one page from the signed

copy of the electronic surveillance order did not ren-

der the order invalid. The court of appeals relied

on its previous decision upholding the validity of the

same order, which was also challenged by petition-

ers’ co-defendants. Pet. App. All; United States v.

embezzlement, bribery, extortion, and loan-sharking. See

United States v. Traitz, 871 F.2d 368 (3d Cir.), cert. denied,

110 S. Ct. 78 (1989).

2 As the court of appeals noted (Pet. App. All), the most

important evidence relating to the 1985 kickback consisted of

recordings of meetings that occurred in November 1985, dur-

ing this 30-day extension period.

5

Traitz, 871 F.2d 368 (3d Cir. 1989). This Court

denied a petition for a writ of certiorari raising the

same issue that is raised in this case. T'raitz v.

United States, cert. denied, 110 S. Ct. 78 (1989).

The missing page was page three of the October

24, 1985, extension order. The page was omitted,

apparently through inadvertence, from the copy of

the proposed order that was submitted to the au-

thorizing judge for signature. As the district court

explained in its memorandum denying petitioners’

motions to suppress (Pet. App. A21-A23), the ab-

sence of that page from the order meant that the

order did not contain language reflecting two of the

findings the authorizing judge was required to make

under 18 U.S.C. 2518(3): a finding that normal in-

vestigative procedures had been tried and had failed

or appeared to be unlikely to succeed; and a finding

that there was probable cause to believe that the fa-

cilities from which, or the place where, the communi-

cations were to be intercepted were being used or

were about to be used in connection with the commis-

sion of the specified offense. 18 U.S.C. 2518(3) (c)

and (d).

The district court determined that the absence of

a written recitation of the two required findings did

not invalidate the order, because the court could de-

termine that the authorizing judge had made those

findings, and because there was no requirement that

the findings be set out in writing. Pet. App. A22-

A26. The district court noted that the authorizing

judge’s signature on the order was an indication that

he had considered the application and supporting af-

fidavits for an interception order. Moreover, the

October 24 surveillance order stated that the court

had given “full consideration . . . to the matter set

6

forth” in the application, and that the application

had been made to the court under oath by the Assis-

tant United States Attorney. Pet. App. A23.

The court of appeals affirmed. Referring to its

previous consideration of the same issue in United

States v. Traitz, supra, the court of appeals reiter-

ated its conclusion that an electronic surveillance or-

der is valid where, as here, an examination of the

supporting documentation supports the conclusion

that the authorizing judge made all the findings re-

quired by the statute. Pet. App. All.

In its opinion in the T’raitz case, the court of ap-

peals first determined, as had the district court, that

nothing in the statute requires that the findings man-

dated by 18 U.S.C. 2518(3) must be in writing. 871

F.2d at 376-377. That conclusion is consistent with

the case law on the point, and petitioners cite no con-

trary authority. See United States v. Martinez, 588

F.2d 1227, 1233 (9th Cir. 1978) (judge not re-

quired to make specific findings of fact under 18

U.S.C. 2518(3)); United States v. Tortorello, 342

F. Supp. 1029, 1036 (S.D.N.Y. 1972) (Section 2518

(3)(c) does not require that particular words be

used in the finding or that the finding be expressed

in words rather than by the act of the judge), aff’d,

480 F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866

(1973); United States v. Escandar, 319 F. Supp.

295, 304 (S.D. Fla. 1970) (“Section 2518(3) re-

quires only that the authorizing judge make a de-

termination that normal investigative procedures

have been tried [or] appear likely to fail. There is

no specific mandate that such determination be re-

flected in the written order.’’).

The court of appeals further concluded that the

authorizing judge’s act of signing the order was

7

sufficient evidence that the judge made the findings

required by the Act, in light of the supporting docu-

mentation for the order, which was concededly

proper and complete. 871 F.2d at 377-378; see

United States v. Martinez, 588 F.2d at 1233; United

States v. Armocida, 515 F.2d 29 (3d Cir.), cert. de-

nied, 423 U.S. 858 (1975). Petitioners complain

(Pet. 14, 17) that the absence of one page from the

order is a conclusive indication that the reviewing

judge did not read the order and so could not have

made the kind of judicial findings the statute re-

quires. As the court of appeals stated, however, it

is not the order that must be examined in order to

determine whether the judge properly performed his

function under the statute, but the application and

affidavit that were submitted in support of the order.

871 F.2d at 378; United States v. Ford, 553 F.2d

146, 165-166 (D.C. Cir. 1977).

The other four interception orders in this case, all

of which were conceded to be valid, set forth in

writing each of the findings required by Section

2518(3). After examining those orders, the court of

appeals concluded that the supporting documentation

must be consulted in any case in order to review the

propriety of the district court’s approval of the wire-

tap application. The court of appeals explained (871

F.2d at 377-378) :

In each of these four orders the district court’s

findings simply tracked the language of § 2518

(3) (a)-(d). Such bald recitations do little to

aid this Court in assessing the propriety of the

district court’s order. Instead, requiring the dis-

trict court to set forth its findings in writing

would promote form over substance and would

create a requirement, amounting to a trap for

8

the unwary, where none was apparentiy on the

mind of Congress.

Petitioners’ reliance on this Court’s decisions in

United States v. Giordano, 416 U.S. 505 (1974), and

United States v. Chavez, 416 U.S. 562 (1974), is

misplaced. As the court of appeals pointed out in its

opinion in T'raitz, those cases referred to the find-

ings the judge must make under Section 2518(3),

but neither case addresses the question whether those

findings must be made in writing. United States v.

Giordano, 416 U.S. at 514; United States v. Chavez,

416 U.S, at 564.

Nor does this Court’s recent decision in United

States v. Ojeda Rios, 110 S. Ct. 1845 (1990), aid

petitioners’ ergument. In Ojeda Rios the Court was

called upon to interpret language in 18 U.S.C. 2518

(8)(a) referring to the requirement that the prod-

ucts of court-authorized electronic surveillance be

sealed immediately or that a “satisfactory explana-

tion” be provided for the absence of such a seal. The

Court concluded that the statutory language required

a “satisfactory explanation” of delays in sealing as

well as the absence of the required seal. In this case,

by contrast, there is no statutory language mandat-

ing that the authorizing judge make in writing the

findings required by Section 2518(3). In this case,

unlike in Ojeda Rios, there is therefore no argument

available to petitioners that there has been a viola-

tion of the explicit terms of the Act.

Contrary to petitioners’ assertion, there is no con-

flict between the decision in this case and the deci-

sion of the Sixth Circuit in United States v. La-

monge, 458 F.2d 197, cert. denied, 409 U.S. 863

(1972). The court in that case found that undated

wiretap orders were invalid on their face, but there

9

the omission in the authorization fell afoul of a spe-

cific requirement in 18 U.S.C. 2518(4) (e), 2e., that

the surveillance order shall specify “the period of

time during which such interception is authorized.”

Here, the omission in the order did not result in a

failure to comply with any of the dictates of the

statute.

Petitioners also argue (Pet. 18-22) that the deci-

sion of the court of appeals in this case is contrary to

the Fourth Amendment, because it amounts to hold-

ing that there need be no detached scrutiny of a war-

rant application by a neutral magistrate, only blind

acceptance by the judge of the prosecutor’s judg-

ment. Petitioners, however, base that argument on

their conclusion that the omission of a page from

the extension order shows the issuing judge could

not have read the order, and on their further conclu-

sion that the judge therefore did not review the sur-

veillance application. Both courts below found no

basis for such a conclusion. Instead, they found suf-

ficient evidence from an examination of all the cir-

cumstances in the case that the judge did in fact

perform the required review. As the court of appeals

concluded, there was no basis in this case for finding

that the district court “ ‘rubber stamped’ the gov-

ernment’s request without exercising its independent

judgment.” United States v. Traitz, 871 F.2d at 378.

2. Petitioner Bloom claims (Pet, 22-24) that the

court of appeals erred in finding the evidence suffi-

cient to support his conviction for payment of a kick-

back. He claims that the court of appeals affirmed

his conviction on an agency theory, which was not in-

cluded in the jury instructions, and that the evidence

did not establish that he engaged in the kind of con-

duct necessary to constitute aiding and abetting.

10

In the portion of its opinion concerning the suffi-

ciency of the evidence against Bloom, the court of ap-

peals described a meeting that occurred on Novem-

ber 21, 1985, among Bloom, Fisher, and Traitz. The

court found that the main topic of the conversation

was the payment of a kickback, and it noted that

Fisher’s use of the words “we” and “us” supported

a conclusion that “Fisher spoke on behalf of Bloom

when he acknowledged having paid money to Traitz

previously during the year and promised to continue

the payments.” Pet. App. A6. The court further

noted that Bloom asked Traitz if he had had his

office checked for electronic surveillance devices, and

that the inference could be drawn “that Bloom had

made two previous efforts to discuss the kickback.”

Ibid. Finally, at the end of the conversation, the

court stated, Traitz again asked for the kickback,

From this evidence, the court found, “the jury prop-

erly could have determined that Fisher and Bloom

acted in concert and that the recorded payments

made on December 3 and 17, 1985 were made on be-

half of both defendants.” Jbid.

From this review of the evidence, petitioner con-

tends that the court of appeals improperly upheld his

conviction based only on his presence and guilty

knowledge. Petitioner’s argument, however, ignores

the nature of the evidence against Bloom, and it mis-

interprets the findings of the court of appeals.

Bloom’s participation in the November 21 conversa-

tion showed more than just guilty knowledge of

Fisher’s payment of kickbacks; it showed Bloom’s

own involvement in those payments. Fisher and

Bloom spoke in tandem about the kickback and when

it would be paid, finishing each other’s sentences as

they explained when they expected to complete the

11

payment, C.A. App. 248a. Fisher continued, ex-

plaining the amounts that he said “we” had paid

Traitz before and how they would make the remain-

ing payments: “And we'll make up, between now

... It’ll take us two weeks, part next week, part the

week after.” C.A. App. 249a. When the court of ap-

peals described the evidence as showing that petition-

ers “acted in concert” and that the payments “were

made on behalf of both defendants,” Pet. App. A6,

it was not suggesting that Bloom was guilty of the

substantive offense only by virtue of his participation

in a conspiracy, or that he was merely aware of ac-

tions taken by Fisher alone. Rather, the court

clearly meant that Bloom revealed in the recorded

conversation that he was an active partner in the

substantive offense of paying the kickback, and that

he and Fisher were acting together to make the pay-

ments. The finding of the court of appeals was con-

sistent with the evidence presented at trial, the jury

instructions, and the law on aiding and abetting.

CONCLUSION

The petition for writs of certiorari should be de-

nied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

AUGUST 1990

¥ U. S. GOVERNMENT PRINTING OFFICE; 1990 262203 2006!