Petition for Writ of Certiorari — D'Ercole v. United States

|LIBRARY is | Min Suorate Court US. | F

SUPREME COURT. mee ee .

: SEP 11 1969

b em On, LER

: oS Court at ‘the he Unk ed States”

~ October Term, 1969. }

o.D78,

ANTONIO CORALLO, |

) | Petitioner,

re We oe

UNITED STATES OF AMERICA, | i ,

_ PETITION FOR A WRIT OF CERTIORARI TO THE

, |. | UNITED STATES COURT OF APPEALS

ae _ FOR THE SECOND CIRCUIT. _

Jacos Kosamax, | me |

'. 1325 Spruce Street, - eee

Philadelphia, Pa. 19107,

) - Counsel for: Petitioner.

Baume I. Stossior,

“+. 18 Park Row,

e ah | New York, New York, eee

FOIE ne See OS) OT

Mitre OR

| International, 711 80, Sich St, Phila, Pa. 19M3~Tel. SA 7-€711 Ares Code 215 - HSA Ge

hiideas OF Facts et bade eeu Ge tas 6 ot ay 4 nae

7

i

.

REASONS FOR Caauinn i ea ;

1.

The U nderlying Transaction ee ee ee See eee Ee eee

Me 6 nS sot yt Ek oie hc hev ins hha

Herbert Itkin: The Record as to His Role as Informer

. Procedural ee of Itkin’s Informer Status ..... ;

Instructions Defini ag Bribery and Extortion ........

Instructions C icernin Accomplice Testimony ......

y

Whether an Undercover Government Agent, Instructed

by the FBI to Infiltrate an’ Alleged Criminal Activity,

Can Be Treated in a Subsequent Criminal Conspiracy

Prosecution as a Co- -Conspirator for Purposes of Ad-

mission of Extra-Judicial Statements by Him or to Him

Whether the Procedure for Confirming That an Avowed

‘Undercover Government Agent Is Such an Officer

Should Require Timely Disclosure by the Government

to Those Concerned, or, in Cases of Doubt, a Special

Finding of Fact by the Court of Submission to the Jury

or Both/ py eeakees (PEO CELNS 1 SKS VEER NONE KEEA YOY E8

Whether, Since There Was Subppatial Evidence That

a Public Officer Had Approached Prospective: Con-

tractors. With a View to _ Obtaining a Kick-Back, the

Trial Judge Committed Rev ersible Error by Failing to

‘Instruct the Jury That Extortion, Under New ‘York

Law, May Be Committed “Under Color of Official

An wen nd = =

— et

F&F NM ©

| as

oO

16 —

18

ae

INDEX (Continued).

- Page

4, Whether, Where State Law piniasth Corroboration of .

_ Accomplice Testimony - in Order to Sustain’a Convic-

tion, It Was Prejudicial Error Not to So Charge the

Jury in a Federal Prosecution Based Upon “Unlawful

Activity” as Defined in State ais custatiees Sa

RMCRRNONE 6 iil cerns eb epee cnnke Liestra hed seuuaus 29

’ APPENDIX A—Opinion of the Court of Appeals eye ers eer la

APPENDIX B—Opinion of the District Court Dated March > ee

CE kkeetevewkesenees esti Pisnsedcvcvennmnweee tes 57a

APPENDIX C—Order of Court of Appeals Denying Petition for

wenuinn Meee eases beusvAduees aka Cheaked “70a

APPENDIX D—Judgment of Court of Appeals .. beso ee 7\a

AprenpIx E—Petition for Removal ............ ete

APPENDIX F—Statutes Involved .-....5....cccesceccsencccs 78a

A

®

ss tac

Cases: ; Page

, Aguilar v. Texas, 378 U. S. 108 Er ee Peer ees 16 |.

Deck ¥. Chia, 379 US 800 CGA) =. on oo ohh bio wccevan 17

Draper v. United States, oon. S. Sy 4I95R) occ. oes 5 5 ee

Grunewald v. United’ States, 353 U. S. 391 (1957) ..+... ae ee

Hoffa v. United States, 385 U. S. 293 (1966) .............. 17

Jones v. United States, 362, U. S. 257 (1960) oo... 0... eee. » 1

Krulewitch v. United States, 336 U. S. 440 (1949) Prevaws ce ae

Lewis v. United States; 385 U: S..206 (1966) .............. - 17

. Layee v. Demmo,-37- 15. 5.5560 19GA) occ ccc cseccccses 17

? Lopez Vv. United States; 373 U. S. 427°(1963) .......0..0005 17

Mann v. Peoples First Nat'l. Bank & Trust Co., 209 F. 2d 570

OR Oe ioe cons es wal 8

Massiah v. United States, 377 U. S. 201 (1964) ........ eee Ss Sa

McCray . Illinois, 386 U. S. 300 (1967) ...2.......000. as,

Nardello v. United States; 393-U. S. 286 (1969 Bee tee te 24, 26

On Lee v. United States, 343 U. S. 747 (1952) ......2...0.. 17

Osborn v. United States, 385 Us S. 323 (1966) ........00.. 17,

People v. Dioguardi, 8 N. Y. 2d 260, 203 N. Y.‘S. 2d 870, 168

Pi: We CRED hens Havin teed cd os doeiealaxeusss 25

People v. Feld,.262 App., Div. , 28 N. Y. S. 2d 796 (2d |

Dep't S81) ...... VEPETE UV hae ee ehhwen beens .- 2

People v. Josie, 154 N, Y. S. 2d 183 (Bronx County:1954) .. ~ 26

People v. Negrin, 24 Mise. 2d181, 201 N. Y. S. 2d 59 (1960) a,

People v. O'Farrell, 175 N. Y. 323, 67 N. E. 588 (1903) . 27

Recznik v. City of Lorain, 393 U. S. 166 (1968) ......... : i WV

Roviaro v. United States, 353 U. S. 53 (1957) ............. 16

Spinelli v. United States, 393 U. S.'410 PRD) 50053 7 yeccen 16

_ United States v. Chase, 372 F. 2d 453 (4th Cir. 1967 SNe 17.

United States v. Wray, 8 F. 2d 429 (D. C. Ga. 1952) ....... 18

Zahn v. Transamerica Corp., 162 F. 2d 36 (3d Cir 1947) ...: 8

3 TABLE OF CITATIONS (Continued).

Periodicals: ‘ _. Page

Developments in the biaw-Criieial Conspiracy, 72 Harv. L.

Rev. 920 (1959) ......... PPE ee TCT eer eT ye ~ 18

Donnelly,” Judicial Control: of Informants, Spies, Stool Pig geons .

and Agents: Provocateurs, 60 Yale L. J. 109 (1951), raewe i

Kitch, Kats.v. United States: The Limits of the-Fourth 4 mend-

ment, 1968. Supreme, Court Review 133 .........-..+65- 22

Note, 13 U. of Miami L. Rev. 380 (1959) ...... ese ceeeeees 18

Note, 33 Tul: L. Rev. 393 (1959) .. 4 ree eerr errr etsy

_ Authority: She ee | |

‘9 Wigmore, Evidence § 2579 (3d ed: ai ep ey eee 8

‘New York Statutes: :

‘Code of Criminal Procedure §. Mo nae errr 27

1909 Penal Law:

fy Sey TEPC eerrr Te tee ee re tr ree Trees ee 2

ee ais Mee erpey ae 2

“terre PEM eRe DREN TE omy POR ee 2,5, 25

Sn ere errr Tere rrr reer. erie s cas be y

2 Gere rrrrr er Tr erier tir tree terry re. 2,5

_ Federal Statutes: ice .

” Peavél Act, 18 0. S.C. $1952 .2..,.45 ee »; , 12,3; 5:26, 26

; Pie eke ook | ee proseseeeapeeeeser ental 1

So Se). sss eats eee oe

oie oy | , Sarees Ree eee ase ee .

“IN THE /

"Supreme Court of the United States

_ No.

AN TONIO CORALLO,

_ Petitioner,

v.

¢

UNITED STATES OF AMERICA, ;

. _ Respondent:

PETITION FOR A WRIT OF CERTIORARI TO THE 3 |

' UNITED STATES COURT OF APPEALS

} FOR THE SECOND CIRCUIT.

Petitioner, Antonio, Cor allo, prays that a writ: of :

certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit, entered in the

- above-entitled case on July 8, 1969.

"|. . » OPINIONS BELOW. |

The opinion of the Court of Appeals, printed in Ap-

pendix A hereto, infra (pp. 1a-56a), is not yet reported.

The opinion.of the District Court of the Southern .District ’

of New York reported.i in 281 F. —e 24 is printed herein

as oe B (pp. 57a-69a). .

J URISDICTION.

.. The judgment of the Court of Appeals was cane on

July 8, 1969. “Appendix D (p. 71a). A timely petition for

rehearing was denied on August 21, 1969 (Appendix C, p.

70a). The jurisdiction of this Court is invoked under 28

U.S. C. § 1254(1). .. :

2 Petition for Writ of Certiorari

- QUESTIONS PRESENTED.

1. Whether an undercover Government agent, in-

structed by the FBI to infiltrate an alleged criminal

activity, can be treated in a subsequent criminal conspiracy

prosecution as a.co-conspirator for purposes of admission

into evidence of extra-judicial statements by him or to him..

2.) Whether the procedure for confirming .that an

avowed undércaver agent is such an officer should require

timely disclosure by the Government to those concerned or,

in eases of doubt, a special finding of fact by the court or

submission to the jury ‘or both.

?

3. Whether, “since there was substantial evidence that

a public official had approached prospective contractors with

a view to obtaining a kick-back, the trial judge ‘committed

reversible error by failing to instruct the. jury that extor-

tion, under New York law, may be committed ‘‘under color

of official right.’’ ,

ed . »

4. Whether, where State law demands corroboration of *

accomplice testimony in order to sustain a conviction, it was

prejudicial error not to so , charge the jury in a Federal

prosecution under the Travel Act based upon ‘unkawful

activity’? as defined in State law. -

~*

«STATUTES INVOLVED.

The Federal statutory provision involved, 18 U. S. C.

§ 1952, is set forth in Appendix F, infra, pp. 78a-79a._ The |

relevant provisions of the 1909 New York Penal Law, §§ 372,

378, 850, 855, and 1826, togethey with § 399 of-the New York

‘ Code of Criminal Procedure, are set forth in Appendix. Fr,

in aie pp. 79a-8Ta,

—_

Petition for Writ of Certiorari 3

. STATEMENT OF FACTS:

Petitioner, Antonio Corillo, was convicted of con-

spiracy to violate the Travel Act, 18 U.S. C. § 1952. The

one-count indictment charged petitioner along with Henry

Fried, Herbert Itkin, James |L. Mareus, Daniel J. Motto@

Charles J. Rappaport, and 8. 'T. Grand, Ine. Trial by jury

was held in the United States District Court for the

Southern District of New York. James’ L. Mareus was

severed in advance of trial and pleaded guilty. Herbert:

Itkin was severed on the day trial began, June 3, 1968. Itkin

has not been tried. The principal witnesses for the prosecu-

tion were Itkin and Marcus. Rappaport was acquitted by

jury verdict. Petitioner, along with Fried, Motto, and S.°T.

Grand, Inc., was convicted.

The United States Court of Appeals for the Second

Cireuit (Medina, Waterman, and Kaufman, JJ.) affirmed

on appeal.

A. The Underlying Transaction.

. James L. Mareus was Commissioner of the New York

City Department of Water Supply, Gas & Electricity in

1966. As Commissioner, it became his responsibility to

' enter into a contract for the draining and cleaning of a

reservoir in the Bronx, known as the Jerome Park Res-

ervoir. Because of the nature of the work, no competitive

bidding was required. The Commissioner had the authority

“=to ‘select’ ‘a contractor and negotiate an ‘‘emergency con-

tract’? with him. Mareus saw in this situation an oppor-

tunity to recover from a series of disastrous stock invest-

ments. - The contract was eventualtty_awarded to the S. T.

Grand Company, of which Henry Fried was president.

'. Grand, through Fried, agreed to kick back five percent of

the contract price: That kick-back is the transaction under-

lying this prosecution.

OT RE ET ate

: eg

4. Petition for Writ of Certiorari

Commissioner Marcus testified at length to the desper-

ate financial situation in whicl he found himself from pur-

chasing on margin large amounts of. stock that dropped

Sharply in price (201a-205a}.'| He had an urgent need for

cash to maintain his investment. His co-venturer in this

. Investment was Herbert Itkin, a lawyer and friend (201a).

They borrowed money from several sources, including peti-

tioner and Motto, to deposit in the stock account. By June

1966, they owed approximately $75,000.00 (210a). They

decided to try to recoup by asking for a seven and one-half

“pereent kick-back én the Jerome Park Reservoir job that

was estimated to run about one million dollars (2102. |

Petitioner and co-defendant Motto were implicated as

being involved in the negotiations between Itkin and Marcus..

and the contractor, 8. T. Grand, Ine. Henry Fried balked

at the high kick-back he was asked for (346a). Eventually

a’ deal was closed with Fried for a five percent kick-back

( 223a, 363a, 653a). Three of the five percent were to go to

- Mareus' and Itkin; the remaining two to Motto and peti-

tioner (226a, 236a, 496a,°503a, 646a, 647a)..

Meanwhile, Commissioner Marcus was exploring alter-

nate possibilities to » get a larger amount from the Jerome

‘Park Reservoir job. - He found that another contractor,

Oakhill Contracting Company, was willing to pay a kick-

back of ten percent (233a, 371a-372a). Accordindhy, Marcus

directed the Water Department’s Chief Engineér to draw

‘up.a contract aw arding | the job to Oakhill (152a, 231a, 373a).

When Itkin learned of this, he became extremely: agitated ;

he insisted that a firm deal had been made with 8. T. Grand,

‘Ine., and that it was too late to change course. Following

- this talk with Itkin; Marcus directed the Chief Engincer-to

change. the contract papers: and draw them instead with

S. T. Grand, Ine. (154a, 233a, 656a- 607a).

“1. References it: this Petition are to the pages of the Appendices

filed i in the court below and with the Clerk of this Court. .

Petition for Writ of Certiorari a)

The contract was signed on November 23, 1966 (154a-

15pa). During the time that work was done on the reservoir

and shortly thereafter (from December. 1966 through May

1967), S. T. Grand, Inc. made a series ‘of payments, which

' were divided among Marcus, Itkin, Motto and petitioner

(238a-264a, 511a-528a). . ~ a

B. The Indictment. '

~ The indictment against petitioner and his co- defendants

charges a conspiracy (18 U.S. C. $371) to violate 18 U.S.C.

§ 1952, familiarly known as the Travel Act,’ Section 1952

makes it a Federal offense to travel in interstate commerce

or use a facility of interstate commerce to carry on-or pro-

mote certain unlawful activities proscribed by State law..

The indictment relies upon a few telephone calls from New

York to Greenwich, Connecticut, where defendant Motto

lives, for the facility of interstate commerce that underlies °

elevating this State transaction into a Federal offense. The

‘unlawful activity’’ that is charged is ‘‘bribery in violation

of Articles 34 and 170, Sections 372, 378 and 1826 of tlic

Penal Law of the State of New York’’ (22a-23a). With the

consent of counsel for pr osecution and defense, section 1826

’ was eliminated from the case before it was submitted to the

‘jury (128la). Thus, the indictment as submitted charges

only that the defendants used a facility of interstate com-

merce to commit bribery as defined by New York Penal Law. '

t

Significantly, the indictment does not: charge the de- .

fendants with the ‘‘unlawful activity’’ of extortion, as de-

' fined by sections 850 and 855 of the 1909 Penal Law of

New York.

The statutory provisions from the New York Penal

Law covering bribery, incorporated in the indictment, and

extortion, not charged, are reproduced in Appendix F of

_ this —

6 “Petition for Writ of Certiorari

C. Herbert Itkin: The Record as to His Role as Informer.

Before and at the trial, the prosecution chose to create

the appearance that Herbert Itkin was a co-conspirator.

As previously indicated, Itkin was named as a defendant in

the indictment. He was not severed until the day that the

trial began. No explanation was offered for the severance.

The severance was made upon motion by the.Government.

In presenting its case, the prosecution chose to call James

L. Mareus to the stand before Herbert Itkin. Mareus’s

testimony is shot through with references to statements

made out of court by Itkin, statements that were admitted

into evidence on the theory that they were declarations of a

- co-conspirator in furtherance. of the conspiracy. Following

- Mareus’s testimony, the Government called Itkin to the

stand and elicited testimony from him that tended only to

show his apparent complicity. in an unlawful scheme.

Cross-examination of Itkin produced a radically dif-

ferent image. Itkin testified that he was an undercover

- agent for the Federal Bureau of Investigation and had been

so since 1962, four years prior to the events concerning the

Jerome Park Reservoir (550a, 694a, 726a). The following

testimony is explicit:

“Q, You first began informing to the FBI in 1962;

- is that correct? A. ‘Kpproximately, yes.

‘“‘Q. When you first began to inform, did you tell

the FBI it was your purpose to infiltrate organized |

crime? + A. No, I was asked by the FBI to infiltrate

organized é érime as deep as I could.

. Q. The FBI asked you to infiltrate organized

crime? A. That’s right.

“‘Q. Was that your general objective throughout

your aSsociationship with the FBI from 1962 until the

present? A. Yes, it was.

s

Petition for Writ of a ea

‘‘Prior to the subject matter of this indictment, did

the FBI ever tell you to try and meet a specific person

or try to go to a specific place and make contacts? A.

They might have at times, yes.

‘*Q. They gave you instructions as to w hat to do

on some occasions? A. Yes.’’ (802a).

- This testimony by Itkin, elicited by counsel for Rappaport,

was repetitive of testimony brdéught out earlier by counsel

for other defendants. Indeed, in the middle of the exchange

quoted above, Government counsel objected on the ground

that the same testimony had come forth ‘‘two minutes ago’’.

Itkin carried out his assignment from the FBI to infil-

trate organized crime as deep as he could by posing as a °

participant in various illegal activities (552a-553a). While

from time to time he received instructions from the FBI,

‘‘most of the time they left me on my own,”’ he testified

(727a). It is quite important to note that Itkin, testifying

to-acting ‘‘on his own”’, was merely describing the way in

which he was left free to devise his own methods for accom-

plishing the task his FBI mentors had assigned to him.

- Itkin vehemently denied that he was guilty of any

, criminal conduct, in the Jerome Park Reservoir contract

kick-back and his other activities. ‘‘. . . I did not think I

was guilty of a crime because I was working for the Gov-

ernment.’ (561a). Accordingly, he took it for granted that

he would not be prosecuted (753a, 759a), and assumed that

he had been named ‘in the indictment only to protect his

informer status (772a, 777a). The Government, of course,

did move to sever Itkin as a defendant on the day the trial

began, and Itkin has not been prosecuted.

Itkin has-been prosecuted in’State court for the events

surrounding the kick-back on the Jerome Park Reservoir

job. In the State proceeding, however, Itkin has filed a pe-

tition for removal to Federal court under 28 U. S. ©.

PET IN REE

8 Petition for Writ of Certiorart

§ 1442(a)(1). The petition asserts that Itkin was an ‘‘in-

former’’ for the FBI in these events and was acting under

color of his office performing.duties iricidental to his mission

of penetrating organized crime. A copy of this petition,

which is still pending, is attached as Appendix EK. The

court below was furnished a copy of this petition, J udicial

notice may be taken of this pleading, since it. is a public

document. Mann v. Peoples First Nat’l. Bank & Trust Co.,

209 F. 2d 570 (4th Cir. 1954) ; Zahn v. Transamerica Corp.,

162 F. 2d 36 (3d Cir. 1947) ; 9 Wicmorg, ivmence § 2579

(3d ed. 1940).

At no point during the trial, in the face of Itkin’ s ‘re-

peated declarations,that he had been at all relevant times an

undereover agent for the FBI, did the Government eyen

suggest any different_possibility. Government counsel

maintained complete silence, allowing the testimony of

their witness to stan without contradiction or qualification.

Had this prime prosecution witness been’ misrepresenting

himself to the court and the jury, surely Government coun-

el would have interceded to correct the record.

fore the Court of Appeals, Gov ernment counsel were °

more candid. The United. States; brief admits, albeit in a

less than forthright statement, that Itkin had been ‘‘an

FBI informant for years’’ (page 43). i

In the face of this record, the Court of Appeals made

two startling statements finding as a fact that Itkin had not

been an undercover agent for the Government: “‘.

Nothing in this record supports appellants’ claim that (It.

kin] participated in the conspiracy as a Government agent.

Itkin’s participation in this conspiracy was wholly

on his own. The record does not sustain appellants’ claim

that Itkin participated as a Government agent pretending

to be a conspirator.’’ Appendix A, infra, 31a). The Court

of Appeals relies entirely upon one fragment of Itkin’s ex-

tg

Petition for Writ of Certiorari 9

. tensive testimony. In answer to several artful questions

. from the trial judge, Itkin stated that he was engaged in

the Jerome Park Reservoir transaction ‘‘on: his own’’

(566a). As indicated earlier, however, -Itkin made per-.

fectly clear later what he meant by this phrase. It did not

negate his role as undercover agent; it signified that he was .

- acting without specific instructions in carrying out a general.

mandate to infiltrate organized ‘crime. Thus, this testi-

mony: j

‘*Q. Mr. Itkin, you devoted your life since 1962 to

uncovering ufiderworld elements, is that correct? A.

The best that I could, yes. :

‘‘Q. Was that your primary objective in life? A.

From 1962 on, yes, sir.

‘*Q. Have you been doing this bv yourself? Has

this been a one man operation? A. On my part?

4Q. Yes. A. Or with the Bureau? No, I worked

é alone’, if that, is,what you mean.

“Q, Was the Bureau cooperating with you in this

endeavor? A. Yes.

‘“‘Q. Did. they give you instructions? A. On and

off. Most of the time they left me on my-own.

“‘Q, Did they tell you what te do on given octa-

sions? A. Oh, yes.

‘‘Q. Did you do what they told you todo? A. Yes.

‘‘Q. Did you do things ‘on your own? A. Yes, I

. did.’? (726a-727a) (Emphasis added.)

In light of\Itkin’s detailed testimony that he was an

undercover agent for the FBI, that he was acting pursuant

to’ their instructions to infiltrate organized crime, that he

was personally guiltless in his activities in connection with

the Jerome Park Reservoir contract kick-back, that he had

been indicted merely to protect his ‘‘cover’’ and that he

40 Petition for Writ of Certiorari

would not be prosecuted, and in light of the allegations in

the removal petition filed to’stop the State proceedings, it is :

incredible for any court to state that nothing in the record

suppor ‘ts petitioner’s claim that Itkin participated. in the -

conspiracy as a Gover nment agent. Itkin’s testimony does

not stand alone. The Government, not Itkin; moved for his’

severance on the trial date. Government counsel allowed

his trial testimony ‘to stand wholly unrefuted. The Gov-

ernment, not Itkin, admitted in its court of appeals brief

that Itkin had been an FBI informer since 1962. An appel-

late court finding of fact that Itkin ’s participation in this

_conspiracy was wholly on his own and not at all as a Gov-

ernment agent is nothing short of judicial ‘‘new speak., i

D. Procedural Handling of Itkin’s Informer Status.

The question of Itkin’s status ais’ an undercover agent

for the Government was never frontally resolved in the

District Court. As indicated, the -Governinent moved to

sever Itkin from the defendants and agreed to dismiss the

. indictment against him. Thus, the actions of counsel for

the Government underscore their acceptance of his repeated

assertions that, as an unWercover agent, he was guiltless.

Government counsel névertheless chose to put on their

- ease in chief under the appearance that Itkin was a guilty

co-conspirator. Thus, they called to the stand their star

72

witness, James L. Marcus, before Itkin. They extracted ~

from Marcus testimony that is replete with extrajudicial

statements to and by Itkin that are admissible only on the

theory that Itkin wag,a member of the conspiracy. The

charade was maintained even through the direct examina-

tion of Itkin himself. > +

When cross- examination of Itkin brought out his role

as undercover agent, counsel for petitioner moved for a

mistrial (596a). The motion was denied on the plainly un-

PAR, ; 7 a *,

Petition for Writ of Certiorari . ll

tenable ground that ‘‘a good deal of the evidence was de-

. veloped by defendants’ counsel themselves in cross- -exam-

ination”’ (597a).

Later, counsel moved for a more limited remedy of

‘str ‘iking testimony of Itkin in so far as he was testifying to —

‘conversations not in the presence of petitioner (811a).. This

motion was -renewed and elaborated. at the close’ of the evi- |

dence (882a-890a). Both ‘times the motion was deniéd, On.

the second occasion, the court indicated that it believed the

evidence to be clear beyond any question that Itkin had been

on an ‘‘independent venture of his own’? (910a).

The trial court charged the jury that Itkin had admitted -

his ‘‘individual yarticipation’’ in the crime charged in the

indictment, and hat, also, ‘‘by his own statement, he has

been a government informer since 1962.’’ He went on to

tell the jury that the law does not prohibit the use of in-

formers, that the Government ‘‘. . . is frequently compelled

to rely upon the testimony of accomplices . . . or informers,

and that ‘‘The fact that Itkin is an informer, as well as the .*

fact that he and Marcus are accomplices, . . : should be

‘considered carefully by you as bearing upon, the credibility

of each’? (1259a-1260a). |

Counsel for petitioner duly excepted to the refusal of

- the trial court to give his requested instruction No. 7, that

‘*One, like Itkin, who acts as a government agent and enters

into a purported conspiracy in the secret role of an inform-

’ ant cannot be considered a co-conspirator’’ (1265a). ,

While the jury was not called upon to determine that —

Itkin was an undercover agent for the Government, the

question of the guilt or innocence of Charles Rappaport was

submitted. The entire thrust of Rappaport’s defense was to

- associate himself with the undercover agent status of Itkin

(1247a). Rappaport was an attorney, associated in practice

with Itkin (199a, 479a). While Rappaport did not testify,

\.

12 _ Petition for Writ of Certtorari

his counsel’s extensive cross-examination of Itkin was deé-

signed to develop both Itkin’s Government role and Rappa-

- port’s nexus. with it. The cross-examination extends from

page 1274 of the trial transcript to page 1368 (726a-787a).

Two witnesses were called for the purpose of testifying to

statements tending to show Rappaport and Itkin working

together for the United States (1133a, 1140a). "The jury

returned,a verdict of not guilty with respect to Rappaport

(1288a).

E. Instructions Defining Bribery and Extortion.

The one- count indictment, as stated above, charged the

defendants with a conspiracy to use a facility of inter state

commerce to commit the unlawful activity of br ibery, as de-

fined by the 1909 New York Penal’ Law.

‘Co-defendant Henry Fried raised the defense that he

had paid the money under duress. The district court in-

structed the jury that tlie distinction betw een bribery and

extortion, was a question of fact and, with reference to

Fried’s defense, that the jury could not find him guilty un-

less the money had been freely ‘paid. by him (1250a-1254a).

The court defined extortion by — part of section 850

of the Penal Law, as follows:

“Extortion is the obtaining of property . from ~

another, or obtaining the property of a‘corporation

from an officer, agent or employee ther eof, with his

. consent, induced by a wrongful use of force or fear.’

AG ee an es : |

~The definition of extortion, given to the jury omitted -

the last clause of the statutory provision. Section 850 pro-

vides that extortion can be committed by use of force’ or

fear. It further provides that ‘extortion can be committed

Aare eee

‘ +

aoe

Petition for Writ of Certiorart 13

in the obtaining of property ‘‘under eolor of official right.”’

. The jury was never instructed that extortion can be com-

mitted when a public official obtains money or property

‘<under color of official right.’’

On the evidence developed at the trial, a plausible case

could be ‘made—indeed, the most plausible case eould be

made“-that Commissioner James L. Marcus had committed

the offense of extortion by htc money under color of

official. right. .

Counsel for petitioner duly excepted to the refusal a TT

the district court to give requested instruction No: 21, as’

follows: ‘

‘The defense of accepting a bribe and extortion or -

taking unlawful fees by public officers are different *

erimes. If you find from all the testimony, in this case

_ that there was an unlawful demand by public officers

and the use of the facilities in interstate commerce to

‘ accomplish that state crime, you must, find the defend-

ant, Corallo, not guilty.”? (1266a)

The Court of Appeals discussed the failure of the trial

judge to submit to the jury the question whether Marcus

had extorted money from Fried and S. T. Grand, Inc. The

Court of Appeals declared that there is no proof of such a

scheme by Marcus. The court below went so far as to label

the theory ‘‘fantastic.’”’? (Appendix A, infra, p. 38a).

The Court of Appeals ignored the substantial evidence _

that the essential nature of the transaction involved efforts

by Commissioner Marcus to sell public contracts to the

highest bidder in illegal kick-backs. Marcus’s motive to

recoup his heavy debts nih a He had an urgent need

for cash to forestall liquidation of his stock holdings at a

‘substantial loss. His office was then due to negotiate and

let a-large ‘‘emergency contract’’ without competitive bid- ©

14 Petition for Writ of. Certiorari

ding. There is evidence tending to show that the Com-

missioner sought to turn this’ event to his own profit by .

demanding a kick-back from the contrdttors qualified and

interested in the work. Through intermediaries, he de-

manded a full seven and one-half\percent of the anticipated

one million dollar contract pri The $75,000 he would

thus obtain was enough to offsefthe losses he had suffer

in his investment crisis. Ind this was how he fixed the

amount he demanded. S. T. Grand, Inc., through Henry

Fried, resisted this demand-and the Commissioner’s ‘*fee’’

was lowered eventually to three percent. Later, after

tentative agreement with Fried, the Commissioner found

that he could get a larger sum from another firm, Oakhill

Construction Co. At the last minute he was dissuaded

from this course by Itkin who insisted that a firm deal had

been made with S. T. Grand and that it was too late to

change.

jury could have found that James L.’ Marcus used his

official position to try to extract sums of money from con-

tractors as a condition of their doing business with the City

of New York. Unless they agreed to his demanded kick-

back, they would be deprived of the’ valuable business

opportunities that he controlled through the Department

of Water Supply, Gas & Electricity. Acting thus under

color of his office, Marcus could and did demand and obtain

illegal payments. If the jury so found, the crime of extor-

tion, not the charged offense of bribery, would be shown.

F. Instructions Concerning Accomplice Testimony.

The court charged the jury that the defendants could -

be convicted upon uncorroborated testimony of accomplices.

The trial judge instructed:

In short, there was substantial evidéhce from which a

é

\

~ « et YE

? S<7 ’

Petition for W rit of Certiorari 15

‘“‘There is no requirement in the Federal Court

that the testimony of an accomplice, an informer, or

one with a criminal record be corroborated. A con-

viction may rest upon the uncorroborated testimony

. of such a witness if he is found eredible and reliable.”

-(1260a). 3

The trial court specifically refused a request by counsel

for petitioner, No. 24, as follows:

‘Under the laws of the State of New York, the

offenst of bribery cannot be preven on the testimony

of an accomplice unless he be corroborated by such

other evidence as tends to connect the testimony with

the commission of a crime.’’ (1266a).?

The theory of petitioner’s request was to harmonize

State and Federal law in prosecutions that are essentially

based upon violations of State law, here the New York law .

of bribery. The Court of Appeals held that, even though

New York law defined the offense, it was proper to use a

Federal standard to determine whether accomplice testi-

mony needs corroboration (Appendix A, infra, p. 37a).

2. This request for charge was based upon the uncertainty created

by the Government as to Itkin’s status. If Itkin was an undercover

agent for the Government, as fe testified, then he would not also have

_ been an accomplice. The confusion qn this was generated by the

Government's pretense, and it survived through the submission of the

case to the jury. The trial court referred to Itkin as both an accom-

plice and an informer (1260a'). The issue raised by defendant's re-

quest for instructions No. 24 is premised on the view, léft open to the

jury, that Itkin wag an accomplice, despite the evidence to the con-

. trary. |

1 eo ete Oe

.

16 _ | Petition for Writ of Certiorari -

,, REASONS FOR GRANTING THE WRIT.

1, Whether an Undercover Government Agent, Instructed

by the FBI to Infiltrate an Alleged Criminal Ac-

tivity, Can Be Treated in a Subsequent Criminal Con-

spiracy Prosecution as a Co-Conspirator for Purposes

of Admission of Extra-Judicial Statements by Him or

to Him.

The first question presented raises*a fundamentally

important issue concerning the use of undercover agents

for the Government in criminal prosecutions. The question

focuses on a Government witness. who had been instructed

to and who did infiltrate an alleged criminal activity. Sub-

sequently, a conspiracy indictment was tried against mem-

bers of that alleged crifwinal conspiracy. Can the Govern-

ment’s own undercover agent be treated as a culpable

member of that ednspiracy for the purpose of admitting

into evidence extra-judicial statements by him or to him?

This basic question has not yet been answered by this Court.

This Court has made other important decisions con-

cerning undercover Government agents and informants. In

Roviaro v. United States, 353 U.S. 53 (19; a7), the Court held

that the ‘prosecution must Mieiiees to the defendant the

identity of an undercover agent where the charge against

the defendant, viewed in connection with the ev idence actu-

ally introduced, is so closely related to the informer as to

make his identity and testimony highly material. Cf. Mc- -

Cray v. Illinois, 386 U.S. 300 (1967). Siilarly, the Court

_has developed standards for the sufficiency of undercover

agent’s information when utilized for the obtaining of a

_warrant. Jones v. United States, 362 U.S. 257 (1960) ;

Aguilar v- Texas, 378 U. S. 108 (1964) ; Spinelli v. United

States, 393 U.S. 410 (1969). So, too, when the undercover

agent’s information is used to justify an arrest and search

Petition for Writ of Certiorari ee

incident thereto. Draper v. United States, 358 U. S. 307

(1959) ; Beck v. Ohio, 379 U.S. 89 (1964) ; Recznik v. City

of Lorain, 393 U.S. 166 (1968). ~

This Conrt has dealt with the problem of the invasion

of privacy entailed when undercover Government agents

insinuate themselves into the confidence of persons sus-

pected of crime. On Lee v. United States, 343 U. S. 747

(1952) ; Lopez v. United States, 373 U. S. 427 (1963) ; Lewis

v. United States, 385 U. S. 206 (1966); Hoffa v. United

States, 385 U. S. 293 (1966) ; Osborn v. United States, 385

U.S. 323 (1966). The Court has faced and resolved ‘issues

arising when confessions are obtained by undercover Gov-

ernment agents.- Massiah v. United States, 377 U.S. 201.

-(1964) ; Leyra-a. Denno, 347 U.S. 556 (1954).

| The Court has not yet dealt ith the question posed

here when an undercover Government agent continues to

pretend to-be a member of a criminal conspiracy through

the introduction of the prosecution’s case it chief. It should

he obviously correct on principle that one who acts as a-

Government agent in the secret role of an informer cannot

be a co-conspirator.

There is anthority in the léwer Federal courts and else-

where for this proposition. The Fourth Cireuit recently

said in United States v. Chase, 372 F. 2d ie (4th Cir.

1967): a .

*

8

“Although a conspiracy may continue even though

certain co-conspirators terminate their connection there-

with, and may be replaced by other.co-conspirators, it

eannot be said that this conspiracy continued after —

April 5, 1965 between Carr and Chase, because it is

equally well-established that one who acts as a’ ‘govern-—

ment. agent and enters into a purported conspiracy in

the secret role of an informer cannot be a co- -conspirator.

# - Sears v. United States, 343 F. 2d 139 (5 Cir. 1965).”’ -

18. Petition for Writ of Certiorari

See also United States v. Wray, 8 F. 2d 429. (D. C. Ga. -

1925) ; Developments in the Law—Criminal Conspiracy, 72

Harv, L. Rev. 920, 926 (1959) ; Note, 13 U. or Miami L. Rev.

380 (1959) ; Note, 33 Tun. L. Rev. 393 (1959).

While the question has thus been raised and determined

in other forums, this Court has not yet spoken to the im-

portant question. It is highly appropriate that the matter

Be resolved at the highest level. As the spate of recent

cases indicates, the Government is making increased use of

undercover agents to try to ferret out criminal conduct.

The question presented is necessarily recurrent and its

resolution is vital to the prosecution process.

Moreover, the issue goes to the very core of this case

before the Court. The Government’s failure to be candid

and forthright with the trial court, the jury, and the actual

- defendants is an intolerable mode of prosecution, calling

~ for this Court’s firm and immediate guidance.

2. Whether the Procedure for Confirming That an Avowed .

Undercovér Government Agent Is Such an. Officer

Should Require Timely Disclosure by the Government

to Those Concerned, or, in Cases of Doubt, a Special

Finding of Fact by the Court or Submission to the Jury

or Both. : :

— Overruling Herbert Itkin’s unqualified testimony that

he served as an undercover Government agent in infiltrating

the conspiracy charged in this case, the Court of Appeals

below engaged in an extensive fact-finding discussion fhat

concluded with that court’s finding that. _Itkin was not such

an agent. We will return later to the substance of analysis

of the Court of Appeals opinion. What is most significant

is the procedure that left the appellate court in the position .

of making de novo such a fundamental finding of fact. As-

suming that there can be any doubt on a question of fact of ©

A> £

Petition for Writ of Certiorari — 419

this nature, the proper place for fact-finding is in the trial

court, not the Court of Appeals.

. The question presented here is what procedure should

be employed in the trial court to deal with testimony like

Itkin’s testimony that he had infiltrated the negotiations for

a kick-back on, the Jerome Park Reservoir contract pur-

suant to instructions from the FBI. Confusion was gen-

erated by the Government’s decision to include Itkin as a

named defendant in the indictment, even though they moved

‘without explanation to sever him on-the date trial began.

Confusion was compounded when the prosecution chose an

order of proof that called James L. Marcus to the stand

before Itkin and thus introduced major t¢stimony concern-

ing Itkin’s out of court statements and statements to Itkin

not in thé presence of all defendants. This compounded

confusion was aggravated when the Government called Itkin

to the stand as a prosecution witness and failed to elicit-on

direct examination arfything concerning his undercover

status, allowing that to come forth in the course of cross-

examination by counsel for the various defendants.

When, belatédly, Itkin’s avowed status as an under-

cover Government agent came out, the Government did

nothing either in re-direct examination or by other witnesses

or by any means to counter the testimony of the Govern-

ment witness that he was a Government agent. The trial

judge interjected two questions, obviously leading in char-

acter, that produced Itkin’s affirmance that he had acted

‘‘on his own.’’ In his charge to the jury, the trial judge

referred to Itkin as both an accomplice and informer, with-

out recognition that there might be an inconsistency there.

The judge refused to charge the jury that one who acts as a

Government agent and enters into a purported conspiracy

in the secret role of an informant cannot be considered a co-

conspirator. The ‘court also refused to strike testimony

20, | Petition for Writ of Certiorari

admitted under the impression that Itkin was a co-conspira-

tor; likewise, he refused to give limiting instructions.

Through the Court of Appeals, petitioner maintained

that the record was clear and uncontradicted that Itkin was

an undercover Government agent. The only. possible doubt

stemmed from the trial court’s two questions concerning

Itkin acting on his own, but, as Itkin explained later, this

meant only that he was acting without specific, detailed

instructions. In Itkin’s view, he was at all times carrying

out his FBI mandate to infiltrate organized crime as deeply

as he could.

The Court of Appeals has declared that nothing in the

record supports a claim that Itkin participated as a Gov-

ernment undercover agent pretending to. be a conspirator.

The Court of Appeals quotes the two ‘‘leading’’ questions

put by the trial court. The rest of the Court of Appeals’

analysis deals with speculation and inference wholly incon-

sistent with the record. :

First, the Court of Appeals notes that none of the

defense counsel called as a witness the FBI agent, William

Veriker, who had been Itkin’s contact with the Bureau. The

court goes so far as to cite a passing remark by counsel for

petitioner during cross-examination of Itkin when the wit-

ness was reluctant, for the moment, to agree to having been ‘

very distraught in one meeting with Veriker; counsel said

that he would call the agent, but the matter becaine sufli-

ciently clear a few moments later in the cross-examination.

The suggestion by the Court of Appeals that it was the

burden of the defense to call agents of the FBI to confirm

Itkin’s testitnony is baseless. Itkin’s testimony was clear

and persuasive. He testified as a Government witness. The

Government severed him from the case.

' The Court of Appeals prefaced its discussion of the

critical issue of Itkin’s status with the wing remarkable

observation:

Petition for Writ of Certiorari 94 C

“The path of the prosecutor in a conspiracy case

is full of snares and pitfalls. As the conspirators rum °

for cover a favorite diversionary tactic is to spread

confusion by’pursuing digressions suggested by proof

having only a tangential bearing on the ecase.’’ (Ap-

pendix A, infra, p. 31a).

The implication that Itkin’s status was a tangential

issue is ineredible. Further, the Court of Appeals’ sym-

pathy for the plight of the prosecutor is flatly inconsistent

with the. teaching of this Court and with common sense.

This court declared in Grunewald v. United States, 353

U.S. 391, 404 (1957) :

‘Prior cases in this Court have repeatedly warned »

that we will view with disfavor attempts to broaden

the already pervasive and wide-sweeping nets of con-

spiracy prosecutions.’’ 2

This Court cited particularly the famous opinion of Jus-

"tice Jackson in Krulewitch v. United States, 336 U.S. 440,

454 (1949): | : :

‘*A co-defendant in a conspiracy trial occupies an

uneasy seat. There generally will be evidence of

wrong-doing by somebody. It is difficult for the indi-

vidual to make his own case stand on its own merits in-

the minds of jurors who are ready to believe that birds

of a feather flock together. If he is silent, he is taken

to admit it and ‘if, as so often happens, co-defendants

can be prodded into accusing and contradicting each

other, they convict each other. There are many prac- -

tical difficulties in defending against a charge of con-

, spiracy which I will not enumerate.’’

df i . |

The prosecutors in this case ran afoul of snares and

pitfalls of their own creation. It was not the defense that

©

SPM it SPINE KES

©.

22 Petition for Writ of Certiorari

spread the confusion, such as it is. The Government chose

to keep concealed, until the last possible moment, Itkin’s

relationship with the FBI. Meanwhile, the -record was

saturated with inadmissible evidence. Further, the defend-

ants were forced to stand ‘trial jointly with Rappaport,

whose main line of defense was to prove his own association

with undercover agent Itkin in the FBI sponsored effort to

infiltrate organized crime, supposedly represented by peti-.

tioner and the other defendants. _ }

. _ The Court of Appeals’ theory that Itkin was not an FBI

agent is marred by the jury verdict acquitting Rappaport.

The court below was foreed into the awkward position of

speculating on reasons for the verdict that might be sepa:

rate from Rappaport’s main defense (Appendix A, infra,

p. 33a). >. | Bag

~ The Court of Appeals also speculated freely on certain

elements of Itkin’s conduct. Itkin admittedly took some

of the money distributed to the conspirators, and he de-

layed making a-full report to the FBI on the transaction

_ until it had been.completed. Itkin testified on tlie witness

stand as to his reasons for so deing. He was greatly con-

cerned that there would be a leak in his ‘‘cover.’’ He testi-

fied that he was afraid that premature reports to the FBI

would lead to dissemination of the facts to other agencies

and would reveal his uidercover role too soon (555a, 795a).

Itkin viewed himself as ‘‘the man in the field,’? who was

taking risks involved in the gathering of information for

the Government (556a). As such an operative, he felt that

he should pick the time and place to come out: from his un-

dercover role (556a).* :

3. “Informiers and secret agents . . . must be developed or

placed over a long period of time and the objective of their ‘search’ ~

will almost always be broad and impossible to delineate with any pre-

cision in advance.” Kitch, Kats'v. United States: The Limits of the

Fourth Amendment, 1968 Supreme Court Review 133, 142. See also ‘

Donnelly, Judicial Control of Informants, Spies, Stool Pigeons and

Agents Provocateurs, 60 Yale L. J. 109 (1951).

6

~ Petition for Writ of Certiorari ; 23 -

The Court of Appeals’ analysis, in short, consists of a

general axiom concerning the plight of prosecutors and the

deviousness of defendants in conspiracy cases, a chance re-

mark by defense counsel cited out of context, attenuated in-

ferences from certain ambiguous but explained aspects of

Itkin’s conduct, and free-ranging speculations on possible

bases of the jury’s verdict other than that most obvious.

- At no paint does the Court of Appeals deal directly with

the extensive, explicit testimony of the avowed undercover

agent except for the two questions put by the trial court.

Such‘a process of dealing with the vital question of the

status of a Government witness, who professes to be an

undercover agent for the Government, is plainly untenable.

Petitioner still maintains that the record in this cage is clear

and explicit that Itkin was at all relevant times an under- —

* eover agent for the FBI. That position is ‘urged, not as a

matter of law,.as suggested by the Court of Appeals. It is

urged as a matter of fact, the only plausible reading of the

record in the case. The record facts are supplemented by

the Government’s belated admission in the Court of Appeals

that Itkin had been an FBI informer since 1962. It is fur-

ther supplemented by the events that have transpired in

connection with a State prosecution against Itkin who has

~ successfully ‘sought shelter by a petition for removal of the

case, to Federal court based upon his duty as a Federal

officer.» -

Should the record be deemed in doubt on the issue of

fact, the correct procedure would not, place the task of

factual evaluation, inference drawing, and eredibility weigh-

ing in an appellate court. First and foremost, a standard

must be developed for the obligation of the Government to

avoid the confusion they created in this case by a full and

| _.timely disclosure of the Governmenit’s position concerning

an avowed undercover agent. Government silence in | Such

a situation must be taken as acquiescence.

24 Petition for Writ of Certiorari -

In eases of genuine factual doubt, the issue should he-

- sharply defined and cleanly resolved in the trial court. Very

possibly, a voir dire hearing should be held in the mannér

prescribed by this Court for the-determination by the court

of: the preeriagh tigen of a contested confession. Jackson v.

Denno, 378 U. S« 368 (1964). As with confessions, if the -

court finds that the confession i is admissible, a factual issue

- can be tried to the jury. - :

The procedure for determining the: status of under-

cover Government agents is manifestly in need of this

Court’s supervisory jurisdiction. ‘The importance of the

question is obvious. The need for this Court’s guidance is -

unquestioned.

3. Whether, Since There Was Substantial Nvidenna That a.

Public Officer Had Approached Prospective Contractors .

With a View to Obtaining a Kick-Back, the Trial Judge —

Committed Reversible Error by Failing to Instruct the

Jury That Extortion, Under New York Law, May Be

Committed “Under Color ‘of Official Right”.

As this Court declared ‘last Term in Nardello v. United

States, 393 U. S. 286, (1969), the Pxayel Act, 18 U. 8. C..

§ 1952, provides for a Federal over lay upon essentially State

proscribed conduct. The Travel Act does not add to the

totality of criminal behavior. It provides a means for cer-

tain Federal prosecutions in aid of enforcement. of State

criminal laws. | |

oe ‘““The Travel Act formed — of: Attorney General

Kennedy’s legislative proposals to combat or ganized

-erime. . .*. The Attorney General told the Senate

Committee that the purpose of the Travel Act was to

aid. local law enforcement officials. In many instances/ .

the ‘top men’ of a given criminal operation resided in

Petition for Writ of Certiorart | aN

one State but conducted their illegal anette in

another; by er eating a federal ‘interest in limiting the

inter wee movement necessary to such operations, crim-

inal conduct beyond the reach of local officials could be

controlled. . . . The Attorney General’s concerns were

reflected in the Senate Committee Report favoring : adop-

tion of the Travel Act. The Report, after noting the

* Committee's belief that local law enforcement efforts .

W ould be enhaneed by the Travel Act, quoted from the

Attorney General’s submission letter: ‘Over the years

an ever-increasing portion of our national resources

has been diverted into illicit channels. Because many

rackets are conducted by highly organized’ syndicates

whose influence extends over State and National

borders, the Federal Government shotld comé to the

aid of local law enforcement authorities in an effort to -

stem such activity.’ »? 393 U. S.-at eetisiien

Extortion and bribery are mutually exclusive crimes,

under the 1909 New ‘Yoyk Penal Law. The indictment «in

this ease, as it was sent hae: jury, charged the defendants

with a Federal conspiracy4o commit the New York. érime

of br ibery. There was no charge against the defendants de-

rived from the New York offense of extortion. The trial

. judge charged the jury that they must acquit if the crime

of extortion was made out. But the trial court incorrectly _

defined extortion. He ¢rucially shortened the definition to.

omit the type of extortion committed ‘‘under color of official

right.’’? New York Penal Law § 850. .

New York law, under the 1909 Penal Law, ‘clearly sep-

arates bribery and extortion. These w ére held to be

mutually exclusive offenses. See, e.9., People v. Dioguanli,

. 8N. Y. 2d 260, 203 N. Y. S. 2d.870, 168. NB. 2d 683 (1960) ;

re v. Feld, 262 App. Div. 909, 28 Ns ¥. Ss: 2d 796 a

26 Petition for Writ of Certiorari

Dep't 1941) ; cf. People v. Josie, 184 N. Y. 8. 2d 183 (Bronx

County 1954). As defined by the courts of New York, the

essence of bribery is fhe voluntary giving of something of

value to influence performance of official duty. The essence

of extortion is the involuntary < wane or payment under

duress. |

_This Court was faced in United States v. Nardello,

supra, with an argument that would have narrowly eon-

strued extortion for purposes of the Travel Act to offenses

so labelled in State criminal codes. The Travel Act, like:

New York law, clearly separates and differentiates bribery

and extortion, The definition of ‘‘unlawful activity’? in’

§ 1952(b)(2) is: ‘‘extortion, bribery, or arson in violation

of the laws of the State in which committed or of the United

States.’’ The distinction between the offenses of bribery

and extortion found in the 1909 New York Penal Law is

tracked in the Travel Act. Unlike the argument in Nardello,

therefore, the contention here would not take the conduct

outside the seope of the Travel Act. That Act covers both

bribery and extortion. However, in this case, the indictment

charges only the ‘‘unlawful activity’’ of bribery under the

laws of the State of New, York.

The question presented here, therefore, is an important

development in working out the relationship between the

Federal Travel Act and State ‘‘unlawful activity.’’ The

Court could usefully take up the limits of the prineiple

_ enunciated in Nardello that Federal prosecutions are not

strictly tied to the crime that happens to be called ‘‘ex-

' tortion.’’ It should not follow that the differentiation in

State law and in the Travel Act between the broad crimes

of extortion and bribery is without meaning.

Petition for Writ of Certiorari : 27

~ ‘ a ~ aed

4. Whether, Where State Law Demands Corroboration of

Accomplice Testimony in Order to Sustain a Convic-

tion, It Was Prejudicial Error Not to So Charge the

Jury in a Federal Prosecution Based Upon “Unlawful

Activity” as Defined in State Law.

Although petitioner was convicted of a Federal offense

derivative from State law, the case, as submitted to the -

jury, would not sustain a conviction in the State courts.

Under New York law, a defendant cannot be convicted of

bribery upon the uncorroborated testimony of an accom-

plice or accomplices. The trial judge charged the jury in

this Federal case that they could return a verdict of guilty

even though the prosecution’s case was based entirely upon

accomplice testimony.

The relationship in the Travel Act between Federal

and State law was developed in connection with the preced-

ing question. The ‘‘unlawful activity’’ in this case was de-

fined entirely by the law of New York. As a matter of New

York law, bribery cannot be proved by accomplice testi-

mony alone. N. Y. Code of Criminal Procedure § 399. The

testimony of two or more accomplices is not sufficient to

Satisfy the requirement of corroboration ; testimony of one

is not corroborative of testimony of others. E.g., People v

O’Farrell, 175 N. Y. 823, 67 N. E. 588, (1903); People v.

Negrin, 24 Misc. 2d 181, 201 N. Y. S. 2d 59 (1960).

The Court of Appeals, rejecting this contention, held

that: ‘‘The conduct of criminal trials in the Courts of the

United States is governed by the Federal Rules of Criminal

Procedure and by rulings of the federal courts in matters

of procedure and practice not explicitly or by clear implica-

tion covered by these Rules. Federal law does not require

corroboration of accomplice testimony to sustain a convie-

tion. Caminetti v. United States, 242 U.S. 470, 495 (1917) ;

28 | Petition for Writ oF Certiorari

McCullough v. United States, 403 F. 2d 1013, 1015 (9th Cir.

1968) ; Umited States v. Carrique, 316. F. 2d 186, 187 (2d

Cir. 1963) ; United States v. Agueci,'310 F. 2d 817, 833 (2d

Cir, 1962), cert. denied, 372 v. S. 959 — ? (Appendix -

, fra, -

None of the cases cited by the Court of Appeals is

similar to the Travel Act in providing a Federal offense to

aid in the enforcement of State criminal law. In each of the.

cited cases, the prosecution concerns an offense defined en-

tirely by Federal law without reference to local crime. The

Travel Act is a different kind of Federal offerise, created

not.to enlarge the definition of criminal behavior, but rather

to enable Federal prosecutions in situations where local law

enforcement. officials were hampered by defendants operat-

ing outside the State borders.

There is nothing in the Travel Act or any of its legis-

lative history that suggests a purpose to enact a Federal

law that permits progecutors to escape the protections

erected by State law to guard against improper convictions.

New York’s requirement of corroboration is not imposed as

a purposeless obstacle to hinder prosecutors. Its obvious

purpose is to insist on certain minimum standards of proof.

The construction of the Travel Act by the Court of Appeals

permits the use of a Federal law to overcome this protective

measure of State law.. The Travel Act was ‘adopted ‘to

assist local law enforcement officials, to be sure. It was not

designed to do so by enabling them to render nugatory the

safeguards built into State law.

The question posed here is one that touches sensitive

issues of Federal-State relations. Such questions patently

warrant this Court’s determination. The Court of Appeals —

relied upon an overly broad shibboleth that Federal trials

are governed by Federal rules.of procedure and practice.

This Court should intervene to insure that the Travel Act

ae | heise

Petition for Writ of Certiorari 29

docs not become a vehicle for riding roughshod over

State law.

In the trial court representations were made that the

Government had conducted no electronic surveillance of the.

petitioner except for that made by Itkin. Petitioner as-

sumes that- the Solicitor General will inform the Court if

the above representations. require any modification. °

CONCLUSION.

For the foregoing reasons, this petition for writ of

certiorari should be granted. -

Respectfully submitted,

. Jacos Kossman,

' Counsel for Petitioner.

Of Counsel:

Barry I. Siornick.

-

EET OTE OP PREP