# Petition for Writ of Certiorari — D'Ercole v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1106%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1969 - **Citation:** 395 U.S. 941 ## Text |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 ‘ £ 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1106%3A1. Public record. Not legal advice.