Opposition Brief — Angiulo v. United States (Nos. 90-46, 90-10)

Se ar a Aap hgh ye | nA

ante amacrine

“Gennaro ANotvto, Ba ailee Karan 6 DONATO

ree = ANIUL. AND MICHELE AIGREL, PETITIONERS

vy. =% - .

i UNITED STATES OF AMERICA

SON PETITIONS FOR A WRIT OF CERTIORARI

_ | TO THE UNITED STATES COURT OF APPEALS

pea | FOR THE FIRST CIRCUIT

"BRIEF FOR THE UNSED STATES IN OPPOSITION

.

KENNETH W. STARR

Solicitor General

EDWARD §.G. DENNIS, JR.

7. Assistant Attorney General

he a JOEL M, GERSHOWITZ

i: oka ; Attorney

eee : Department of Justice

i ri Washington, D.C. 20530

mee (202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner Granito’s RICO convictions

must be reversed because the court of appeals found that

the evidence was insufficient to support one of the predi-

cate acts of racketeering charged against him.

2. Whether the “pattern of racketeering activity” ele-

ment of the RICO statute is unconstitutionally vague.

3. Whether the district court erred in refusing to order

immunity for a prospective defense witness.

4. Whether the district court erred in declining to give

a requested jury instruction distinguishing between the

extortionate extension of credit charged against petitioners

Gennaro, Francesco, and Donato Angiulo in one count

and the extortionate extension of credit charged against a

severed co-defendant in another count.

5. Whether the district court erred in declining to in-

struct the jury that it could find one overall gambling busi-

ness instead of the five separate gambling businesses

charged in the indictment.

6. Whether the district court erred in declining to give

the voice identification instruction requested by peti-

tioners.

(I)

TABLE OF CONTENTS

Page

i os a 5 Gk KN ane eb oes aes l

ES SE l

a stele dk pore dsvanneens 2

ON ae 7

EE ee a 23

TABLE OF AUTHORITIES

Cases:

Brennan v. United States, 867 F.2d 111 (2d

Cir.), cert. denied, 109 S. Ct. 1750 (1989) . 8-9, 12

Callanan v. United States, 881 F.2d 229 (6th

Cir. 1989), cert. denied, 110 S. Ct. 1816

Re oa ois an vee sw tein ee o 48 11

Connally v. General Construction Co., 269

ee eee 13-14

Government of the Virginia Islands v. Smith,

615 F.2d 964 (3d Cir. 1980) .............. 17

Grayned v. City of Rockford, 408 U.S. 104

Nas ang 544 bk a Dee NOS A — 43

H.J. Inc. v. Northwestern Bell Telephone Co.,

ie >. Ch. 2693 (1969) ............ i2,: ta, 84, 32

Kolender v. Lawson, 461 U.S. 352 (1983) .... 14

Mattheson v. King, 751 F.2d 1432 (Sth Cir.

1985), cert. dismissed, 475 U.S. 1138

es an a ok day 0 6 4m 8 OSS 16

McCullough v. United States, cert. denied, 484

SS re 12

Parkerv. Levy, 417 U.S. 733 (1974) ......... 13

Pillsbury Co. v. Conboy, 459 U.S. 248

En 16

(111)

IV

Cases — Continued: Page

Sanabria v. United States, 437 U.S. 54

NCR OS og ee ance trateta erie atte on 21

Street v. New York, 394 U.S. 576 (1969) ..... 8

Stromberg v. California, 283 U.S. 359

| ER Rate satarem ul a Nirgeigie Rel aie ay gets Ebates 7

United States v. Aleman, 609 F.2d 298 (7th

Cir. 1979), cert. denied, 445 U.S. 946

TC ert ate tote re er ree Oa 13

United States v. Alessio, 528 F.2d 1079 (9th

Cir.), cert. denied, 426 U.S. 948 (1976) .... 17

United States v. Anderson, 809 F.2d 128i (7th

ay I one ke ee eae ee ee a 9

United States v. Brown, 583 F.2d 659 (3d Cir.

Cir. 1978), cert. denied, 440 U.S. 909

SOs. soe Revie ec Ay cabs een etic 12

United States v. Caldwell, 543 F.2d 1333 (D.C.

Cir. 1974), cert. denied, 423 U.S. 1087

SR inks coke MRO wk ee: 17

Cir. 1975), cert. denied, 423 U.S. 1050

Serre te err er ee ere ee 13

United States v. Capozzi, 883 F.2d 608 (8th

Cir. 1989), cert. denied, 110 S. Ct. 1947

SU oa 8 ak iG pee ies Aiea ere oe 17

United States v. Corona, 885 F.2d 766 (11th

Cir. 1989), cert. denied, 110 S. Ct. 1838

Se kG xo ati SON dice Dek te eta ais 10-11

United States v. Duncan, 850 F.2d 1104 (6th

Cir. 1988), cert. denied, 110 S. Ct. 732

UIE soa -ctbd oes Deas So etek a OI ee ai, 22, &

United States v. Durrani, 835 F.2d 410 (2d Cir.

Ly RPE la nc Rc deedis Beil aie 0 oh Ae a oe 21

United States v. Escobar De Bright, 742 F.2d

Po. BE os oc isi ls aoe we 21

Cases — Continued: Page

| United States v. Graham, 548 F.2d 1302 (8th

& if, reer ree ee ee re 17

United States v. Hawes, 529 F.2d 472 (Sth Cir. —

RE vk owe tk weed eee 13

United States v. Holzer, 840 F.2d 1343 (7th

Cir.), cert. denied, 109 S. Ct. 315 (1989) ... 11-12

United States v. Hooks, 848 F.2d 785 (7th Cir.

| er rere er eee 16, 18

United States v. Huber, 603 F.2d 387 (2d Cir.

1979), cert. denied, 445 U.S. 927 (1980) .... 13

United States v. Karas, 624 F.2d 500 (4th Cir.

1980), cert. denied, 449 U.S. 1078 (1981) ... 16

United States v. Kragness, 830 F.2d 842 (8th

Cir. 1987), cert. denied, 109 S. Ct. 2086

Pe ks ne ee eee eee 9, 12

United States v. Lopez, 803 F.2d 969 (9th Cir.

1986), cert. denied, 481 U.S. 1030 (1987) ... 9

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

Pee 5s ck hak eon ee ee ee aes 18

United States v. Lowell, 649 F.2d 950 (3d Cir.

Feee £3 i xan beam eee ole 18

United States v. Mandel, 862 F.2d 1067 (4th

Cir. 1988), cert. denied, 109 S. Ct. 3190

(i _, Sear an re rl me rare rl tye roc 11

United States v. Martino, 648 F.2d 367 (Sth

1981), cert. denied, 456 U.S. 943 (1982) .... 13

United States v. Morelli, 643 F.2d 402 (6th

Cir.), cert. denied, 453 U.S. 912 (1981) .... 13

United States v. Morrison, 535 F.2d 223 (3d

Ce. Fee oe he one ee ees 19

United States v. Ochs, 842 F.2d 515 (1st Cir.

PR iar eo a ee eae eee ee ees 8

United States v. Peacock, 654 F.2d 339 (1981),

modified, 686 F.2d 356 (Sth Cir. 1982), cert.

denied, 464 U.S. 965 (1983) .............. y)

VI

Cases — Continued: Page |

United States v. Pennell, 737 F.2d 521 (6th

Cir. 1984), cert. denied, 469 U.S. 1158

OSS ca as hae hse os ee oie ty 5a oS 16

United States v. Pepe, 747 F.2d 632 (11th Cir.

ans se Sse has a6 oa eae a eee 9

United States v. Phillips, 664 F.2d 971 (Sth

Cir. 1981), cert. denied, 457 U.S. 1136

ic is. assy Ga Sake eae ae eee 15

United States v. Pinto, 850 F.2d 927 (2d Cir.),

cert. denied, 109 S. Ct. 174 (1988) ........ 18

United States v. Powell, 423 U.S. 87 (1975) .. 13

United States v. Pungitore, No. 89-1371 (3d

ee ee, BUM gk kk a cde ay sey seu eka es 14

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

Cir.), cert. denied, 469 U.S. 831 (1984) .... 12, 13

United States v. Swiderski, 593 F.2d 1246

(D.C. Cir. 1978), cert. denied, 441 U.S. 933

re errr ere rr ere 13

United States v. Tarantino, 846 F.2d 1346

(D.C. Cir.), cert. denied, 109 S. Ct. 174

NT 8 5, 0.6 oo kk alee Pea etnies 21

United States v. Thevis, 665 F.2d 616 (Sth

Cir.), cert. denied, 456 U.S. 1008 (1982) ... 16

United States v. Tripp, 782 F.2d 38 (6th Cir.

ELD oho x4 4k ak kw EX be ae be 13

United States v. Turkette, 452 U.S. 576

DS Sb ws oe) a RAD ERE ee 14

United States v. Turkish, 623 F.2d 769 (2d

Cir. 1980), cert. denied, 449 U.S. 1077

6.6 ak 2% ie ee 4 ole eae eee EOE ae 16-17

United States v. Uni Oil, Inc., 646 F.2d 946

(Sth Cir. 1981), cert. denied, 455 U.S. 908

ETS: 6. an 4-4 o-¥. 4.0 6 Bu 40-5 6K KR EA OR 13

ee

Vil

Cases — Continued: Page

United States v. Walgren, 885 F.2d 1417 (9th

SR RR mere rr ee 11

United States v. Weisman, 624 F.2d 1118 (2d

Ce ee haa ka eae hee enka eek eee 15

United States v. Westbrook, 896 F.2d 330 (8th

0 er er ree rr ere 21

United States v. Zauber, 857 F.2d 137 (3d Cir.

1988), cert. denied, 109S. Ct. 1340 (1989) .. 11, 12

Viliage of Hoffman Estates v. Flipside, Hoff-

man Estates, Inc., 455 U.S. 489 (1982) .... 13

Yates v. United States, 354 U.S. 298 (1957) ... 7-8

Zant v. Stephens, 462 U.S. 862 (1983) ....... 8

Constitution and statutes:

U.S. Const.:

pA epee om ae ye rr 13

ICE em La co Ae i's at aie ag ala hap aie 15, 18

Racketeer Influenced and Corrupt Act:

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NMNINNYN NY ANN ON =

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1990

No. 90-10

SAMUEL S. GRANITO, PETITIONER

Vv.

UNITED STATES OF AMERICA

No. 90-46

GENNARO ANGIULO, FRANCESCO ANGIULO, DONATO

ANGIULO, AND MICHELE ANGIULO, PETITIONERS

Vv.

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT!

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-109a)

is reported at 897 F.2d 1169.

JURISDICTION

The judgment of the court of appeals was entered on

March 5, 1990, Petitions for rehearing were denied on

March 26, 1990. The petitions for a writ of certiorari were

filed on June 25, 1990 (a Monday). The jurisdiction of this

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

(1)

2

STATEMENT

Following a jury trial in the United States District Court

for the District of Massachusetts, petitioner Gennaro

Angiulo was convicted on one count of participating in an

enterprise through a pattern of racketeering activity, in

violation of 18 U.S.C. 1962(c) (Count 2); one count of

conspiring to commit that offense, in violation of 18

U.S.C. 1962(d) (Count 1); four counts of conducting an il-

legal gambling business, in violation of 18 U.S.C. 1955

(Counts 3, 4, 5, 7); two counts of conspiring to make an

extortionate extension of credit, in violation of 18 U.S.C.

892(a) (Counts 12 and 13); one count each of conspiring to

collect and collecting an extortionate extension of credit,

in violation of 18 U.S.C. 894(a) (Counts 14 and 15, respec-

tively); one count of obstructing justice, in violation of 18

U.S.C. 1503 (Count 18); and one count of conspiring to

commit that offense, in violation of 18 U.S.C. 371 (Count

19). Petitioner Francesco Angiulo was convicted on

Counts | through 5, 7, and 12 through 14; petitioner

Donato Angiulo was convicted on Counts 1, 2, 3, and 12;

petitioner Granito was convicted on Counts 1, 2, and 4;

and petitioner Michele Angiulo was convicted on Count 3.

Gennaro Angiulo was sentenced to a total of 45 years’

imprisonment and $120,000 in fines; Francesco Angiulo

was sentenced to 25 years’ imprisonment and $60,000 in

fines; Donato Angiulo was sentenced to 20 years’ impris-

onment and $40,000 in fines; Granito was sentenced to 20

years’ imprisonment and $35,000 in fines; and Michele

Angiulo was sentenced to three years’ imprisonment and a

fine of $5,000. The district court also ordered the forfei-

ture of various assets. The court of appeals reversed two

parts of the forfeiture order but affirmed in all other

respects. Pet. App. la-109a.

1. The evidence at trial showed that all five petitioners

were members of the Patriarca Family of La Cosa Nostra.

3

Gennaro Angiulo was the underboss of the organization,

in charge of its day-to-day operations. Immediately

beneath him in the command hierarchy were Samuel

Granito and Donato Angiulo, who were “Capo Regimes”

(captains). Beneath the Capo Regimes, the organization

consisted of soldiers and then of associates. Francesco

Angiulo was a soldier and also served as the accountant

for the organization’s gambling and loansharking busi-

nesses. Michele Angiulo was an associate. Pet. App.

3a-4a.

In various combinations, petitioners participated in

four illegal gambling operations. The first involved the

operation by Gennaro and Francesco Angiulo of a series

of “Las Vegas Nights” gambling events from approximate-

ly late 1978 to mid-1981. The events were a type of bazaar,

ostensibly operated to benefit nonprofit, charitable

organizations. In fact, however, the proceeds were not

given to charitable organizations, but were kept by their

La Cosa Nostra operators. Pet. App. 4a.

The second gambling business involved the operation,

during 1980 and 1981, of twice-weekly barbooth games at

the Demosthenes Democratic Social Club in Lowell, Mas-

sachusetts. Barbooth is a dice game in which, typically, 12

or more players place bets on whether the shooter of the

dice will roll a winning or losing combination of numbers.

The house takes a percentage of the amount bet. Gennaro

Angiulo was the overseer of the operation, and Francesco

Angiulo was the accountant. Pet. App. Sa.

The third gambling business was an extensive, illegal

numbers-betting operation in the Boston area. Approxi-

mately 180 people were involved in the operation, includ-

ing agents who collected the bets, “sub-books” who con-

trolled the agents and paid the winning bettors, and office

managers who supervised the day-to-day operation of the

business and settled accounts with the sub-books. Gen-

4

naro Angiulo was the principal owner and overall boss of

the operation. Francesco Angiulo was the day-to-day

supervisor. Donato Angiulo controlled a number of sub-

book operations and was responsible for collecting

money. Michele Angiulo stood in for Francesco and also

assisted in controlling several of the sub-book operations.

Pet. App. Sa. .

The final gambling business involved high-stakes poker

games in which Gennaro Angiulo and Granito had a fi-

nancial interest. Gennaro Angiulo was the overall boss of

the operation, and Francesco Angiulo served as the ac-

countant. Pet. App. 6a.

In addition to their gambling operations, Gennaro,

Donato, and Francesco Angiulo engaged in loansharking.

For example, in 1981 Donald Smoot, a regular player in

the poker games, owed Donato Angiulo $14,000 at an in-

terest rate of two and a half percent per week. Joseph Pal-

ladino owed the Angiulos $200,000, paid interest at the

rate of one percent per week, and eventually satisfied the

debt by transferring real estate to the Angiulos. Pet. App.

6a-7a.

Petitioners also engaged in a series of conspiracies to

obstruct justice and commit murder. During the 1950s and

1960s, Edward, William, and Walter Bennett were loan-

sharks and bookmakers who came into conflict with Gen-

naro Angiulo and codefendant [lario Zannino. In January

1967, Edward Bennett disappeared; in April 1967, Walter

Bennett likewise disappeared; and in December 1967, Wil-

liam Bennett was shot to death. In an intercepted conver-

sation in 1981, Gennaro Angiulo and Zannino recounted

how Zannino, with the help of an accomplice, killed the

Bennetts at Gennaro’s direction. Gov’t C.A. Br. 28-29.

In 1976, Gennaro Angiulo had his associates kill Joseph

Barboza, who had testified against Gennaro and other

members of his organization in several prosecutions. Gov’t

5

C.A. Br. 29-30. In early 1981, Gennaro conspired with

others to kill Walter LaFreniere in order to prevent him

from testifying before a federal grand jury about the

Angiulo organization. Also in early 1981, Gennaro

Angiulo and Granito engaged with others in a conspiracy

to kill Angelo Patrizzi, who they believed was planning to

kill two members of the Patriarca Family as revenge for

the 1978 murder of Patrizzi’s half-brother. In June 1981,

Patrizzi’s decomposed body was found in the trunk of a

stolen car. Pet. App. 7a-8a.

2. The court of appeals affirmed the convictions. Peti-

tioners contended, first, that their RICO convictions had

to be reversed because the “pattern of racketeering activi-

ty” element of the RICO statute is unconstitutionally

vague. In rejecting that claim, the court concluded that,

whatever doubts there may be about the “precise reach of

the statute in marginal fact situations not currently before

[the court],” there could be no doubt on the part of a per-

son of ordinary-intelligence that petitioners’ conduct was

proscribed, because “the murder conspiracies and the

gambling and loansharking operations for which the

defendants were charged and convicted here are precisely

the type of activity that Congress intended to reach

through RICO.” Pet. App. 12a-13a. The court also held

that the predicate acts charged against petitioner Granito,

all of which were carried out to further the aims of the

same RICO enterprise (the Patriarca Family), clearly con-

stituted a “pattern” within the meaning of the RICO

statute. Jd. at 15a.

Second, the court rejected the Angiulos’ contention that

the district court erred in refusing to order immunity for

prospective defense witness Joseph Palladino. The court

expressed “substantial reservations” about the notion that

judges have inherent power to grant defense-witness im-

munity. In any event, however, the court concluded that a

6

grant of immunity to Palladino would. not have been ap-

propriate because the government had “significant” rea-

sons for withholding immunity: to protect possible future

federal and state prosecutions of Palladino for engaging in

organized criminal activities. Pet. App. 43a. The court

also found no government misconduct with respect to Pal-

ladino of a sort that might warrant a court order requiring

the government to grant Palladino statutory immunity. Jd.

at 43a-47a.

Third, although the court found the evidence insuffi-

cient to support one of the predicate acts of racketeering

charged against Granito (being an accessory to the Patrizzi

murder), the court upheld Granito’s RICO convictions on

the ground that the jury necessarily found him guilty of

conspiring to kill Patrizzi and participating in the poker

game operation, the other two predicate acts alleged

against him. Pet. App. 54a-6Sa.

Next, the court upheld the district court’s refusal to in-

struct the jury that the testimony of an FBI agent, who

had identified petitioners’ voices in tape-recorded conver-

sations, must be “received with caution and scrutinized

with care.” The court of appeals explained that the general

jury instructions, when considered in the context of the

charge as a whole, adequately covered the issues raised by

the requested voice-identification instruction, and that the

district court’s failure to give the instruction did not impair

petitioners’ ability to present their voice-identification

defense. Pet. App. 80a-8la.

Fifth, petitioners contended that the district court

should have instructed the jury that it could find that

petitioners’ various gambling operations constituted only a

single overall gambling business, rather than five separate

gambling businesses, as charged in the indictment. The

court of appeals found “little or no evidentiary grounds to

warrant instructing the jury on the ‘one business only’

» theory.” Pet. App. 84a.

7

Finally, the court rejected the Angiulos’ contention that

the jury instruction on Count 12 (which charged Gennaro,

Francesco, and Donato Angiulo with making an extor-

tionate loan of $14,000 to Donald Smoot), failed ade-

quately to differentiate the Angiulos’ loan from a distinct

$14,000 loan to Smoot made by Zannino (which was in-

itially charged in Count 11 and later deleted from the in-

dictment when Zannino was severed from the trial). The

court concluded that the instructions, as given, were “suf-

ficiently clear to eliminate any likelihood that the jury

would confuse the Zannino loan (count 11) with the

Angiulo loan (count 12).” Pet. App. 89a.!

ARGUMENT

1. Petitioner Granito challenges (Pet. 16-26) the court

of appeals’ affirmance of his RICO convictions after the

court found the evidence insufficient to support one of the

predicate acts charged against him. Contending that the

jury may have improperly relied on the invalid predicate

act in convicting him, petitioner claims that this case falls

within the rule that whe. the jury is instructed that it may

convict on one of several grounds, and one of those

grounds is later determined to be insufficient, the convic-

tion must be reversed if the reviewing court is not certain

that the jury’s verdict rested on a valid ground. See

Stromberg v. California, 283 U.S. 359, 367-370 (1931)

(reversing when “so far as the record discloses” the convic-

tion may have rested on an invalid ground); Yates v.

' Petitioners also unsuccessfully challenged the impartiality of the

jury, Pet. App. 15a-32a, a variety of evidentiary and procedural rul-

ings, id. at 32a-39a, 47a-53a, the sufficiency of the evidence on certain

counts, id. at 65a-67a, and certain other aspects of the jury charge, id.

at 67a-77a, 85a-87a, 89a-9la. Petitioners do not renew those claims in

this Court.

8

United States, 354 U.S. 298, 312 (1957); Street v. New

York, 394 U.S. 576, 585-588 (1969); see generally Zant v.

Stephens, 462 U.S. 862, 880-884 (1983).

The court of appeals acknowledged the general rule on

which petitioner relies. But the court correctly concluded

that that rule is not controlling when “uncertainty as to the

ground upon which the jury relied can be eliminated,”

such as “where a verdict based on any ground would mean

that the jury found every element necessary to support a

conviction on the sufficient ground.” Pet. App. 63a-64a,

quoting United States v. Ochs, 842 F.2d 515, 520 (Ist Cir.

1988). Applying those principles, the court concluded that

the jury here necessarily found that petitioner committed

the two predicate acts charged in the indictment that were

sufficiently supported by the evidence.?

Granito was charged with three predicate acts under

RICO: gambling; being an accessory to the Patrizzi mur-

der; and conspiring to murder Patrizzi. The predicate act

of gambling was also charged as a separate substantive

crime. The court first noted that the jury’s conviction of

Granito on the gambling count removed all doubt that the

jury also found him guilty on the correspondit.. predicate

act of gambling. Pet. App. 62a. See Brennan v. United

States, 867 F.2d 111, 114 (2d Cir.) (guilty verdicts on sepa-

rately charged crimes paralleling the RICO predicate acts

? Although the court of appeals did not have to reach the issue,

there is reason to doubt that the Street-Stromberg- Yates analysis ap-

plies in a case such as this, where the evidence as to one of the

predicate acts is factually insufficient but the charge is not legally

defective. In these circumstances, it is reasonable to assume that the

jury acted rationally in convicting on the basis of the predicate acts

that were supported by the evidence and not on the basis of the

predicate act that was not sufficiently proved. In that respect, this case

is quite different from Street, Stromberg, and Yates, where the jury

could rationally have relied on an impermissible theory, not having

any basis for knowing that it was legally defective.

fy

9

“operated like special verdicts” showing the jury’s finding

of guilt on the predicate acts), cert. denied, 109 S. Ct. 1750

(1989); United States v. Kragness, 830 F.2d 842, 861 (8th

Cir. 1987), cert. denied, 109 S. Ct. 2086 (1989); United

States v. Anderson, 809 F.2d 1281, 1284-1285 (7th Cir.

1987); United States v. Lopez, 803 F.2d 969, 976-977 (9th

Cir. 1986), cert. denied, 481 U.S. 1030 (1987); United

States v. Pepe, 747 F.2d 632, 688 (11th Cir. 1984); United

States v. Peacock, 654 F.2d 339, 348 (1981), modified, 686

F.2d 356 (Sth Cir. 1982), cert. denied, 464 U.S. 965 (1983).

The court also reasoned that because a RICO “pattern”

requires “at least two acts of racketeering activity,” 18

U.S.C. 1961(5), the jury also must have found Granito

guilty of conspiring to murder Patrizzi, being an accessory

to his murder, or both. Pet. App. 62a. If the jury found

Granito guilty of conspiracy, the court observed, his

RICO convictions would of course be valid; the evidence

sufficiently established conspiracy. But the court rejected

Granito’s surmise that “the jury may have found him

guilty on accessory, but not on conspiracy.” Jd. at 64a.

Although the court found the evidence insufficient in one

respect to support the accessory charge,’ the court ex-

3 There was no doubt about the sufficiency of the evidence to estab-

lish Granito’s role in the murder. In a tape-recorded conversation,

Granito described a murder attempt on Patrizzi, stating: “We had

[Patrizzi] ready last Friday. Oh, we had him Friday cause he said

‘c’mon we'll go for coffee.’ We had a place. We’re gonna take him ina

house and strangle him. . . .” Gov’t C.A. Br. 32; see also id. at 33

(describing Granito’s agreement to procure a telephone number that

could be used to identify Patrizzi’s whereabouts in order to murder

him). The source of doubt with respect to the accessory charge was

whether Frederick Simone was a principal in that murder. Pet. App.

55a-60a. The court recited ample evidence that Granito planned the

murder and engaged in attempts to commit it, id. at 58a, but conclud-

ed that “[w]hether Simone participated in the actual murder is wholly

unclear from the evidence,” id. at 60a.

10

plained that if the jurors found Granito guilty of being an

accessory to Patrizzi’s murder, they necessarily must have

found him guilty on the charge of conspiring to kill

Patrizzi,.thus supplying the second valid predicate act.

If the jury convicted Granito as an accessory, by find-

ing that [Frederick] Simone was a principal in the

Patrizzi murder and that Granito had incited, pro-

cured, counseled, hired and commanded Simone to

commit the murder, they must necessarily have ac-

cepted the government’s interpretation of the perti-

nent tape-recorded conversations involving Simone,

Granito, Gennaro Angiulo, and Zannino. These same

conversations, and virtually the same government in-

terpretation, were at the heart of the conspiracy

charge against Granito, which alleged that Granito

had conspired with Zannino, Simone, and Gennaro

Angiulo to kill Patrizzi.

Pet. App. 64a-65a. The court thus concluded that

“fb]ecause the facts and the elements underlying the two

charges were so intertwined, if the jury found Granito

guilty as an accessory, they must also have found him

guilty of conspiracy.” * Jd. at 65a.

The court of appeals’ affirmance of Granito’s RICO

convictions, after its determination that the jury necessar-

ily found the requisite predicate acts, is fully consistent

with the analysis employed in similar settings by other

courts of appeals. See United States v. Corona, 885 F.2d

4 Granito argues (Pet. 24) that it would not necessarily be inconsis-

tent, in a particular case, for a jury to convict a defendant of being an

accessory to a crime and to acquit him of conspiring to commit the

crime. But the court of appeals understood the different elements of

the two crimes, Pet. App. 62a n.16; it simply concluded, on the facts

of this case, that a rational jury could not have found Granito guilty

of being an accessory without finding every element required to-con-

vict him of conspiracy.

11

766, 775 (11th Cir. 1989) (allegations on invalid mail fraud

counts and valid Travel Act counts “were so intertwined

that jury could not reasonably have found that [the

defendant] performed the mail fraud but not the Travel

Act conduct”), cert. denied, 110 S. Ct. 1838 (1990);

Callanan v. United States, 881 F.2d 229, 234-235 (6th Cir.

1989) (co-defendant’s conviction on RICO charges based

on bribery established that the jury found that defendant

committed valid bribery predicates; therefore, invalid mail

fraud predicate acts did not require reversal), cert. denied,

110 S. Ct. 1816 (1990); United States v. Zauber, 857 F.2d

137, 151-154 (3d Cir. 1988) (instruction required jury to

find kickbacks; hence, submission of invalid predicate acts

of mail fraud did not require reversal of RICO charge),

cert. denied, 109 S. Ct. 1340 (1989).

Contrary to Granito’s contention (Pet. 18), there is no

conflict among the courts of appeals over the proper dis-

position of RICO convictions when one predicate act is

found invalid. In the cases cited by Granito, the courts

reversed RICO convictions only after finding that it was

unclear whether the jury had found two valid predicate

acts. The court of appeals noted those holdings, Pet. App.

63a, but properly found them inapplicable in a case like

this one. See United States v. Walgren, 885 F.2d 1417,

1426 (9th Cir. 1989) (court could not conclude that mail

fraud conviction on “intangible rights” theory constituted

a jury finding that defendant was guilty of a state bribery

offense not charged in the indictment); United States v.

Mandel, 862 F.2d 1067, 1074 (4th Cir. 1988) (RICO

conviction vacated because “we may not know whether the

[intangible rights} mail fraud or the bribery charges * * *,

or both, were considered by the jury”), cert. denied, 109 S.

Ct. 3190 (1989); United States v. Holzer, 840 F.2d 1343,

1350-1352 (7th Cir.) (recognizing that a RICO conviction

must be upheld even when one predicate act is invalid if a

12

rational jury necessarily found sufficient predicate acts,

but finding that principle inapplicabie on a particular

record), cert. denied, 109 S. Ct. 315 (1988); United States

v. Kragness, 830 F.2d at 861 (“we cannot know from the

jury’s general verdict of guilty which acts it found [the

defendant} had committed”); United States v. Ruggiero,

726 F.2d 913, 921 (2d Cir.) (invalid predicate act had no

relationship to other predicate acts charged), cert. denied,

469 U.S. 831 (1984).°

2. Petitioners contend (90-10 Pet. 26-29; 90-46 Pet.

49-55) that the “pattern of racketeering activity” element

of a RICO offense is unconstitutionally vague. They rely

on the concurring opinion in H.J. Inc. v. Northwestern

Bell Telephone Co., 109 S. Ct. 2893, 2906-2909 (1989), in

which Justice Scalia, joined by three other Justices, ex-

5 Granito also relies (Pet. 18) on United States v. Brown, 583 F.2d

659, 669-670 (3d Cir. 1978), cert. denied, 440 U.S. 909 (1979), in

which the court, pursuant to a government concession, reversed the

defendant’s RICO conviction following the invalidation of two

predicate mail fraud violations. Based on a conflict between Brown

and cases from other circuits, Justices White and Brennan would have

granted certiorari in McCullough v. United States, cert. denied, 484

U.S. 947 (1987). But the Third Circuit subsequently narrowed Brown,

explaining that the RICO conviction there had to be reversed because

“it was impossible to determine whether the jury had relied on invalid

predicate acts.” United States v. Zauber, 857 F.2d at 154. In Zauder

itself, the Third Circuit joined other courts of appeals in holding that

a reviewing court must consider whether the record discloses that the

jury necessarily relied on a valid ground for its verdict. In light of

Zauber, the conflict noted in McCullough has disappeared. See Bren-

nan v. United States, 867 F.2d at 116 (discussing Brown and Zauber

and concluding that “there appears to be no conflict with respect to”

the disposition of RICO convictions where one predicate is found in-

valid); United States v. Holzer, 840 F.2d at 1351 (finding no conflict

because of the court’s prediction that the Third Circuit would adopt

the rule later embraced in Zauber).

13

pressed doubts about whether the RICO “paitern” element

could withstand a constitutional vagueness challenge.®

Absent First Amendment considerations, a defendant

may not challenge a statute for vagueness on the ground

that there is some uncertainty regarding the full reach of

the statute in marginal cases not before the court. Rather,

the defendant must show that the statute is vague as ap-

plied to the particular conduct with which he is charged.

See Village of Hoffiman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494-495 & n.7 (1982); United

States v. Powell, 423 U.S. 87, 92 (1975); Parker v. Levy,

417 U.S. 733, 756 (1974) (“One to whose conduct a statute

clearly applies may not successfully challenge it for

vagueness.”). To sustain such a vagueness attack, the

defendant must show that the stattute fails to give a person

of ordinary intelligence reasonable notice that his conduct

is forbidden. See Grayned v. City of Rockford, 408 U.S.

104, 108 (1972); Connally v. General Construction Co.,

® In A.J. Inc., this Court clarified that “to prove a pattern of rack-

eteering activity a plaintiff or prosecutor must show that the racket-

eering predicates are related, and that they amount to or pose a threat

of continued criminal activity.” 109 S. Ct. at 2900. Prior to H.J. Inc.,

the courts of appeals had uniformly held that the RICO statute is not

unconstitutionally vague. See United States v. Tripp, 782 F.2d 38,

41-42 (6th Cir. 1986); United States v. Ruggiero, 726 F.2d 913, 923 (2d

Cir.), cert. denied, 469 U.S. 831 (1984); United States v. Martino, 648

F.2d 367, 381 (Sth Cir. 1981), cert. denied. 456 U.S. 943 (1982);

United States v. Uni Oil, Inc. , 646 F.2d 9346, 949-953 (Sth Cir. 1981),

cert. denied, 455 U.S. 908 (1982); United States v. Morelli, 643 F.2d

402, 412 (6th Cir.), cert. denied, 453 U.S. 912 (1981); United States v.

Aleman, 609 F.2d 298, 305 (7th Cir. 1979), cert. denied, 445 U.S. 946

(1980); United States v. Huber, 603 F.2d 387, 393 (2d Cir. 1979), cert.

denied, 445 U.S. 927 (1980); United States v. Swiderski, 593 F.2d

1246, 1249(D.C. Cir. 1978), cert. denied, 441 U.S. 933 (1979); United

States v. Hawes, 529 F.2d 472, 478-479 (Sth Cir. 1976); United States

v. Campanale, 518 F.2d 352, 364 (9th Cir. 1975), cert. denied, 423

U.S. 1050 (1976).

14

269 U.S. 385, 391 (1926). In this case, the court of appeals

correctly concluded that petitioners “have not even come

close to making this shOwing[.]” Pet. App. 13a.’

Congress drafted the RICO statute to cover a wide

range of criminal activity, but “[o]rganized crime was

without a doubt Congress’ major target[.]” H.J. Inc., 109

S. Ct. at 2904. See also United States v. Turkette, 452 U.S.

576, 588-593 (1981). Given RICO’s central purpose of

combatting organized crime, persons of reasonable intelli-

gence have ample notice that the statute reaches the com-

mission of repeated criminal acts—such as murder, gam-

bling, and loansharking —that are aimed at furthering the

goals of a La Cosa Nostra family. As the court of appeals

concluded, “{a] person of ordinary intelligence could not

help but realize that illegal activities of an organized crime

family fall within the ambit of RICO’s pattern of racket-

eering activity.” Pet. App. i3a. In rejecting a similar

vagueness challenge, the Third Circuit recently reached the

same conclusion, stating: “{[T]he application of RICO to

the activities of the Scarfo crime family could not have

come as a surprise to the members of the family. In fact,

we have doubts that a successful vagueness challenge to

RICO ever could be raised by defendants in an organized

crime case.” United States v. Pungitore, No. 89-1371 (3d

Cir. Aug. 1, 1990), slip op. 27.

7 The Court has noted “the more important aspect of the vagueness

doctrine ‘is not actual notice, but * * * the requirement that a

legislature establish minimal guidelines to govern law enforcement.’ ”

Kolender v. Lawson, 461 U.S. 352, 358 (1983). Petitioners, who are

associated with precisely the type of organized crime family that

RICO was principally designed to attack, do not suggest that the

RICO statute failed to give the government sufficient guidelines to use

in determining whether to prosecute them for racketeering violations.

15

Petitioner Donato Angiulo and Granito further claim

(90-46 Pet. 54; 90-10 Pet. 28-29) that they lacked fair no-

tice that their varied criminal acts satisfied the “related-

ness” aspect of RICO’s pattern requirement. See H.J. Inc. :

109 S. Ct. at 2900-2901. That contention is without merit.

In enacting RICO, Congress recognized that organized

criminals engage in “diversified” activities such as “syndi- ~

cated gambling, loan sharking, the theft and fencing of

property, the importation and distribution of narcotics

and other dangerous drugs, and other forms of social ex-

ploitation.” 18 U.S.C. 1961 note (Congressional State-

ment of Findings and Purpose). Accordingly, courts have

uniformly held that the requisite relatedness of predicate

acts is established when each act benefits or furthers the

goals of the same criminal enterprise. See, e.g., United

States v. Phillips, 664 F.2d 971, 1011-1012 (Sth Cir. 1981),

cert. denied, 457 U.S. 1136 (1982); United States v. Weis-

man, 624 F.2d 1118, 1122 (2d Cir. 1980) (“the enterprise it-

self supplies a significant unifying link between the various

predicate acts”). Since the predicate acts committed by pe-

titioners advanced the cause of a single organized crime

family, there can be no serious contention that petitioners

lacked notice that they were subject to RICO liability for

their conduct.

3. The Angiulos next contend (Pet. 33-35) that the dis-

trict court erred in denying a motion to grant immunity for

a prospective defense witness, Joseph Palladino.® Peti-

* At trial, the defense stated that it wished to call Palladino, one of

the Angiulos’ loansharking victims, to testify that he was not a loan-

Sharking victim at all, but rather a party to a legitimate business trans-

action with the Angiulos. After unsuccessfully moving to restrict the

government’s cross-examination of Palladino to his alleged status as a

loansharking victim, the defense moved for immunity for Palladino,

claiming that, avsent immunity, Palladino would assert his Fifth

Amendment privilege and refuse to testify. The district court denied

the motion, and Palladino did not testify. Pet. App. 39a.

16

titioners urge that immunity should have been granted on

one of two theories: first the district court should have

granted Palladino immunity because his testimony was

essential for an effective defense; second, the district court

should have ordered the government to grant statutory

immunity to Palladino to prevent the government from

deliberately distorting the fact-finding process. The court

of appeals properly rejected both arguments. Because the

court assumed the validity of the underlying theories but

found their requirements not satisfied in this case, the

court’s decision does not conflict with any decision of any

other court of appeals.

a. Inour view, the district court did not have authority

to immunize Palladino absent a request from the govern-

ment. The federal immunity statute, 18 U.S.C. 6001 ef

seq., vests the power to seek immunity in the Executive

Branch, not the Judiciary. In discussing the immunity stat-

utes, this Court has explained that the authority to immu-

nize witnesses “is peculiarly an executive one, and only the

Attorney General or a designated officer of the Depart-

ment of Justice has authority to grant use immunity.”

Pillsbury Co. v. Conboy, 459 U.S. 248, 261 (1983). Strong

separation-of-powers concerns counsel against the asser-

tion of judicial power to make immunity decisions for the

government. Not surprisingly, the great majority of the

courts of appeals have held that judges may not immunize

defense witnesses without a request from the prosecution.?

9 See, e.g., United States v. Hooks, 848 F.2d 785, 803 (7th Cir.

1988); Mattheson v. King, 751 F.2d 1432, 1443 (Sth Cir. 1985), cert.

dismissed, 475 U.S. 1138 (1986); United States v. Pennell, 737 F.2d

$21, 527 (6th Cir. 1984), cert. denied, 469 U.S. 1158 (1985); United

States v. Thevis, 665 F.2d 616, 638-641 (Sth Cir.), cert. denied, 456

U.S. 1008 (1982); United States v. Karas, 624 F.2d 500, 505 (4th Cir.

1980), cert. denied, 449 U.S. 1078 (1981); United States v. Turkish,

623 F.2d 769, 771-779 (2d Cir. 1980), cert. denied, 449 U.S. 1077

17

The Third Circuit alone has held that immunity may be

granted on the court’s initiative, where it is necessary to

protect the defendant’s efforts to mount his defense. That

court has narrowly limited the scope of that rule, however:

[I]mmunity must be properly sought in the district

court; the defense witness must be available to testify;

the proffereci testimony must be clearly exculpatory;

the testimony must be essential; and there must be no

strong governmental interests which. countervail

against a grant of immunity.

Government of the Virgin Islands v. Smith, 615 F.2d 964,

972 (1980). Even assuming that Palladino’s testimony

could be characterized as essential and exculpatory, the

defense was not entitled to immunity for Palladino under

the Smith approach. As the court of appeals explained,

“[u)nlike in Smith, the government here Aas presented a

number of significant reasons for withholding immunity.”

Pet. App. 43a. The government indicated that granting

Palladino immunity would impede possible future prose-

cutions of Palladino for involvement in organized crime

activities, for tax violations, and for violations of state

law. Ibid. Indeed, the government advised the court that

at that very moment, Palladino was the subject of an IRS

investigation arising from business and real estate transac-

tions related to the charges in that case. Gov’t C.A. Br.

101. The court of appeals correctly concluded that “[t}hese

reasons certainly are adequate to constitute a strong

governmental interest in withholding immunity.” Pet.

App. 43a. There is no reason to believe the Third Circuit

(1981); United States v. Graham, 548 F.2d 1302, 1315 (8th Cir. 1977);

United States v. Caldwell, 543 F.2d 1333, 1356 n.115 (D.C. Cir. 1974),

cert. denied, 423 U.S. 1087 (1976); United States v. Alessio, 528 F.2d

1079, 1080-1082 (9th Cir.), cert. denied, 426 U.S. 948 (1976). See aiso

United States v. Capozzi, 883 F.2d 608, 613 (8th Cir. 1989), cert.

denied, 110 S. Ct. 1947 (1990).

18

would have decided the question differently. See United

‘ States v. Lowell, 649 F.2d 950, 965 (3d Cir. 1981) (uphold-

ing denial of defense witness immunity in part because

government “may yet” prosecute witness for whom immu-

nity was sought).

b. Nor was statutory immunity for Palladino required

in order to prevent deliberate distortion of the fact-finding

process. The courts that have addressed that theory have

held that district courts may compel the government to im-

munize defense witnesses in only two circumstances:

where government intimidation provokes a _ defense

witness into invoking his Fifth Amendment privilege,

thereby withholding testimony that otherwise would have

been available to the defense, or where the government

withholds immunity from a defense witness for the pur-

pose of keeping exculpatory evidence from the jury. See,

e.g., United States v. Pinto, 850 F.2d 927, 932 (2d Cir.),

cert. denied, 109 S. Ct. 174 (1988); United States v.

Hooks, 848 F.2d 785, 799 (7th Cir. 1988); United States v.

Lord, 711 F.2d 887, 891 (9th Cir. 1983). In the court of ap-

peals, petitioners argued that the government intimidated

Palladino by (1) informing the court that it thought Palla-

dino would lie if he testified; (2) transmitting pertinent in-

formation on Palladino to the IRS; (3) reciting to the court

the criminal activities of which it suspected Palladino; and

(4) notifying Palladino, through the IRS, that he was

under investigation for possible tax violations. As the

court of appeals correctly concluded, however, “[nJone of

this conduct is sufficient to warrant a finding of witness

intimidation by the prosecution.” Pet. App. 45a.

First, the government’s statements that it thought

Palladino would testify falsely and its enumeration of his

suspected crimes were not calculated to intimidate him;

those statements were directed not to Palladino but to the

court. The government properly made those statements in

19

order to explain why it had declined to grant Palladino

statutory immunity. Second, there was nothing improper

about the prosecution’s transmission of information to the

IRS; investigative arms of the government frequently

share information in which they have a mutual interest.

Finally, the prosecution did not suggest to the IRS that it

contact Palladino, nor does the record show the prosecu-

tion was even aware the IRS would do so. As the court of

appeals observed, the defense “ha[s] not pointed to any

direct communication between the prosecution and Palla-

dino,” or “established the requisite nexus between the gov-

ernment’s conduct and Paliadino’s decision not to testify.”

Pet. App. 46a. Compare United States v. Morrison, 535

F.2d 223 (3d Cir. 1976) (intimidation found where prose-

cution repeatedly warned prospective witness that she was

liable to prosecution on drug charges, that if she testified

her testimony could be used against her, and that federal

prejury charges could be brought if she lied).

Nor is there any basis for believing that the prosecution

declined to grant Palladino immunity for the purpose of

keeping exculpatory testimony from the jury. As previ-

ously discussed, the government provided valid reasons

for its objection to immunizing Palladino, including his

suspected involvement in other criminal activities and the

government’s desire not to hinder possible state and fed-

eral prosecutions. The court of appeals explained that

“(t}hese reasons clearly show that the government’s con-

duct was motivated by something other than the sole

desire to keep Palladino’s exclupatory testimony from the

jury.” Pet. App. 47a.

4. Petitioners contend (90-46 Pet. 36-43) that the dis-

trict court erred in failing to give a jury instruction distin-

guishing between two extortionate loans that were made to

the same victim. Count 11 of the initial indictment charged

co-defendant Zannino with making an extortionate $14,000

20

loan to Donald Smoot. Count 12 of the indictment

charged petitioners Gennaro, Francesco, and Donato

Angiulo with making a separate extortionate loan to

Smoot, also in the amount of $14,000. Shortly after open-

ing statements, Zannino’s trial was severed from that of

petitioners, and Count 11 was deleted from the indict-

ment. Petitioners’ defense to Count 12 was that only one

$14,000 loan was made to Smoot, and that it was made by

Zannino, acting alone. Petitioners argue that the district

court committed reversible error by refusing to give a re-

quested jury instruction informing the jury that Count 12

did not relate to the Zannino loan. Pet. App. 88a.

As the court of appeals correctly concluded, “{a}lthough

the court did not give the precise instruction requested by

[petitioners], the careful instructions that were given more

than adequately covered the situation.” Pet. App. 89a.

The district court explicitly instructed the jury that Counts

7 through 11 had been deleted from the indictment as a

result of Zannino’s severence. Furthermore, the court read

Count 12 to the jury and reviewed each of the elements of

the charge. In so doing, the court explicitly named Gen-

naro, Francesco, and Donato Angiulo as the defendants

who were charged with the loan. Finally, the redacted

indictment together with written copies of the entire

charge were provided to the jury. /bid. In light of these cir-

cumstances —and the fact that Smoot’s testimony and the

opening and closing arguments clearly reflected the sepa-

rateness of the two loans (see Gov’t C.A. Br. 103-104) —

petitioners’ proposed instruction was not necessary to pre-

vent jury confusion about the subject matter of Count 12.

5. The Angiulos contend (Pet. 43-46) that the district

court committed reversible error in failing to give an

instruction permitting the jury to decide how many gam-

bling businesses petitioners operated. The indictment

charged, both as predicate acts of racketeering in the

21

RICO counts and as separate substantive offenses, that

petitioners engaged in five distinct gambling businesses.

Petitioners asked for an instruction that the jury could

find that these operations formed only one overall gam-

bling business.

The district court properly declined to give the “one

business only” instruction, because the evidence did not

support it. A trial court is required to give an instruction

on the theory of the defense “only if the evidence provides

some foundation for it.” United States vy. Durrani, 835

F.2d 410, 419-420 (2d Cir. 1987); United States v. Taran-

tino, 846 F.2d 1384, 1400 (D.C. Cir.), cert. denied, 109 S.

Ct. 174 (1988); United States v. Westbrook, 896 F.2d 330,

337 (8th Cir. 1990). The government introduced evidence

at trial showing that petitioners’ gambling businesses, each

of which involved a different type of gambling, were con-

ducted over different time periods, held in different loca-

tions, and operated by different managers and personnel.

Pet. App. 84a. Petitioners point to nothing in the record

indicating that their gambling operations constituted one

business. Indeed, as the court of appeals noted, the “pau-

city of * * * references [to the theory at trial] undercuts

any argument that the issue was of such importance that

the failure specifically to instruct on it seriously impaired a

given defense.” /bid.'°

'° Contrary to petitioners’ apparent contention (90-46 Pet. 43-44)

nothing in Sanabria v. United States, 437 U.S. 54 (1978), suggests that

a defendant is always entitled to a “one business only” instruction. The

Court in Sanabria noted only that under 18 U.S.C. 1955, participation

in a single gambling business is but a single offense, 437 U.S. at 70-71;

the opinion does not require that the issue be put to the jury where the

uncontradicted evidence shows multiple gambling businesses. Nor are

petitioners correct in contending (90-46 Pet. 46) that the result here

conflicts with the decisions in United States v. Escobar De Bright, 742

F.2d 1196, 1201 (9th Cir. 1984), and United States v. Duncan, 850

22

6. Finally, the Angiulos contend (Pet. 47-49) that the

district court erred in refusing to give specific instructions

regarding voice-identification testimony. The government's

evidence at trial consisted in considerable part of tape-

recorded conversations obtained through court-authorized

electronic surveillance. An FBI agent testified about how

the recordings were acquired, and he identified petitioners’

voices on the tapes. At the close of the evidence, the

defense asked the district court to instruct the jury that the

agent’s testimony about the voice identifications must be

“received with caution and scrutinized with care,” and that

“It]he government’s burden of proof extends to every ele-

ment of each crime charged, including the burden of prov-

ing beyond a reasonable doubt the identity of an alleged

perpetrator of an offense.” Pet. App. 78a.

Although the district court declined to give the specific

instruction requested by petitioners, the requested instruc-

tion was substantially covered by the court’s charge. The

court gave a general instruction on witness credibility, in-

forming the jury that it must determine the credibility of

each witness’s testimony. The court also instructed the

jury that the written transcripts of the tape recordings

introduced by the government had no independent eviden-

tiary value and were to be used only to help the jury dis-

cern the words on the tapes. Finally, the court repeatedly

emphasized in its charge the government’s burden of proof

as to each element of the crimes charged. As the court of

appeals observed, “[t}hese instructions put the jurors on

notice that they were to listen to the tapes themselves and

reach their own determinations, and not blindly base their

F.2d 1104, 1117 (6th Cir. 1988), cert. denied, 110 S. Ct. 732 (1990).

Both of those cases make clear that a theory-of-defense instruction

need be given only where the asserted defense has “some foundation”

(Escobar De Bright, 742 F.2d at 1201) or “finds some support” (Dun-

can, 850 F.2d at 1117) in the evidence; neither approach would have

required petitioners’ instruction on this record.

23

verdict On any interpretation of the tapes by government

witnesses Or On any government-prepared transcripts.”

Pet. App. 80a. Moreover, in light of the prominence given

by the defense to the voice-identification issue, the court

of appeals correctly concluded that “a jury receiving the

court’s general instructions on witness credibility, the gov-

ernment’s burden of proof, and the limited purpose of the

transcripts would understand that [the agent’s] testimony

was to be scrutinized with care.” Jd. at 8la.'!

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

JOEL M. GERSHOWITZ

Attorney

AUGUST 1990

'' The Angiulos cite United States v. Duncan, 850 F.2d at.

1117-1118, for the proposition that a closing argument by defense

counsel is no substitute for a jury instruction on the theory of the

defense. Pet. 48-49. But the court of appeals did not hold that the

defense closing argument made up for an inadequate jury charge;

rather, it held that the jury instructions given by the court were suffi-

cient to cover the essential points raised by petitioners’ request, espe-

cially when viewed in light of the whole trial, including the closing

arguments.

vr U.S. GOVERNMENT PRINTING OFFICE: 1990—262-203/20079