Opposition Brief — Franzese v. United States

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Yn the Supreme Gourt of the Wnited States

OctToBER TERM, 1970

No. 1535

JOHN FRANZESE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

After a jury trial in the United States District

Court for the Eastern District of New York, peti-

tioner was convicted of bank robbery in violation of

18 U.S.C. 2113 and of conspiracy to commit that of-

fense. He was sentenced to a total of fifty years im-

prisonment, pursuant to 18 U.S.C. 4208(a)(2), and

fined a total of $20,000. The conviction was affirmed on

appeal, 392 F. 2d 954 (C.A. 2). On petition for a writ of

certiorari this Court vacated the judgment of the court

of appeals, and remanded to the district court to

determine the impact of electronic surveillance in the

case. Giordano v. United States, 394 U.S. 310. The

423-84i—71 @)

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district court on remand found no taint from elec-

tronic surveillance.

Petitioner subsequently moved under Rule 33, F.R.

Cr. P., for a new trial based on the discovery during

another unrelated proceeding of the existence of a

memorandum made by a former United States Attor-

ney for the Eastern District of New York in which

he had recorded his recollections of a preindictment in-

terview with four government witnesses who testified

at petitioner’s trial.

The memorandum, which was written three days after

the interview, reads in part (Pet. App., p. 14):

Cordero and Zaher would be able to testify

as to direct contracts [contacts] with Franzese in

the planning of the bank robberies as well as the

distribution of the monies. Parks and Smith

would in a way be able to corroborate the testi-

mony of the other two through conversations

had with two vther persons, who also would be

defendaa , immediately after a meeting in

which Franzese discussed proposed robberies

with Cordero and Zaher in a motel in Queens

County.

Petitioner’s argument is that, although the memo-

randum states that “Parks and Smith would in a way

be able to corroborate the testimony of the other two

through conversations had with two other persons,”

at trial their testimony was more extensive in that

Parks and Smith each testified about some direct con-

tact with petitioner (Pet. App. p. 14). In petitioner’s

view, the memorandum should, therefore, have been

disclosed as favorable and ‘material evidence for the

defense.

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However, as pointed out in the opinion of the dis-

trict court, on the basis of which the court of appeals

affirmed, this memorandum is not materially ineon-

sistent with the testimony given at trial (Pet: 17-18).

The testimony showed as follows: On the night of

July 22, 1965, petitioner and his co-defendants held

_a “reorganization”? meeting at the Aqueduct Motor

Inn. Smith and Parks were at the bar and then went

to a second floor room where they met with petitioner

and the rest of the leadership (Tr. 73-79, 2372). They

were told that petitioner was taking over direction of

the gang from Polisi, with whom they had expressed

dissatisfaction (Tr. 81-85, 2372-2374). They then re-

turned to the bar, and Cordero and Zaher went up-

stairs (Tr. 1782-1783). The discussions at this second

meeting (Tr. 1456-1461, 1783-1787) and at subsequent

meetings with petitioner attended by Cordero were

more detailed, and included plans for bank robberies

and the distribution of proceeds in the future (Tr.

1793-1799, 1807, 1820-1823, 1862-1864, 1872-1875,

1881-1884, 1900-1903, 1912-1916, 1936-1937). After

they returned to the bar, Parks and Smith were as-

sured by Polisi (convicted in another proceeding as a

member of the same gang) and co-defendant Florio

that “everything is all right” and “Potere is with us

and knows quite a bit about this stuff and

things should go very well.” (Tr. 2375-2377). Since

*“Tr.” refers to the transcript of petitioner's original trial,

which consists of 21 volumes containing a total of over 4,000

pages. Although we have not filed the transcript with the Clerk,

it is, of course, available should the Court wish to inspect it.

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the contact with petitioner that Parks and Smith

testified about at trial did not involve planning the

subsequent bank robberies (except as to petitioner’s

takeover) there is no material inconsistency between

the testimony at trial and this memorandum.

Moreover, the memorandum is not a detailed report

of the interviews and indicates substantial selection as

a’result of the United States Attorney’s interpretation

and impressions.’ In light of the great amount of im-

peaching material that was made available to peti-

tioner, this memorandum is of no significanc2. It could

not have raised a doubt in the minds of the jury

about petitioner’s guilt since it is not material to the

issue whether the banks were robbed under peti-

tioner’s direction. In United States v. Polisi, 416 F.

2d 573 (C.A. 2), the court of appeals emphasized that

to constitute a violation of one’s constitutional right

to favorable evidence necessary to the preparation of

his defense, the evidence ‘‘suppressed’’ must be shown

to be material and of some substantial use to the

defendant (7d. at 578). That test has not been met here.

There was neither a violation of the principles of

*In his affidavit in support of the motion for a new trial,

petitioner quotes the United States Attorney’s testimony at the

hearing where the memorandum was “discovered.” He there

said of the interview in question: “I did not inquire into any

facts or circumstances concerning what testimony any of them

could give. I did get the impression from talking to each of

them that they had only given, at the most, a very sketchy out-

line of the facte surrounding Mr. Franzese and the other per-

sons involved, up to that time.”

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Brady v. Maryland, 373 U.S. 83, nor any other basis

for a new trial.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

Erwin N. GRISWwoLp,

Solicitor General.

May 1971.

U.S. GOVERNMENT PRINTING OFFICE: 1978