Petition for Writ of Certiorari — Cerone v. United States

he ‘ ; ; . | In the

| Supreme Court uf the Mitel

e Co ot US.

ous ED

c. ROBERT SEAVER: CLERN

OcTOBER ‘Tm 1971

DOMINIC CORTINA,

$s ; ; . Petitioner,

UNITED STATES OF AMERICA,

IRON NH ie SUMP Oe fa

Respondent.

- PETITION FOR WRIT OF CERTIORARI TO THE aS

UNITED STATES COURT OF APPEALS FOR ==:

THE SEVENTH CIRCUIT 2 «| .

i Th Les aH AeA INEE

' JOHN POWERS CROWLEY

’. 105 West Adams Street .

Chicago, Illinois ‘60603

Aenarery for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ALLINOIS 60618 (312) 525-6581

? en aieeticrns aphinees SERRE SE Rae e mies

z . ak :

INDEX

| PAGE

~ Opinion Below x.....cccoseccceecc--. eho tein e ee Nt: oo

da eC neo na NAR TNR EO sean

Questions Presented 0 erssbignumniicigiinesaadcusdlatmeeneic eee 2 ;

2 Statement of nt URSIN hens ee eh Mem, — =

Reasons for Granting the Wee oo TRS A Me

‘ » . Ss

I. The Petitioner was depriv ed ‘ his Sixth © Be is

, Amendment right ‘to. cross-examination by. the :

admission of hearsay testimony _ RI VET Nes Ve a |

It. The chiéf oe for the Government was steesi 7

to testify that he had céntacted the/F.B.I. after

certain meetings with saa This testi-

mony was, in effect, a prior consistent statement . '

and its admission was error aN vas ie Tn

III. ‘The Petitioner was denied his fundamental right

-under the Fifth Amendmgnt by the Government’ s-

comment in closing — on - failure ta. tes- .

tify © VASA EROS Srinannnesbinbtawemetenrnttenetn ws lesteneteeccenetteceneee 11

Conclusion eee oe BUN ahaa eeu a 14

os — 6 , aa rad te ca i ‘ f

A. Opinion of the Beventh Gude. Court. of: | |

‘Appeals for the Seventh. a, SE App. 1

B. ‘Order denying Petition for Rehearing oases hei 32

; =o it

: pe a

: Oi naga

en ek? <

Pelee . oe. Yi

=> > ll nd e

-

_ AUTHORITIES CITED

ens eae + Cases _ ee

zeae eS —

| Bostie v. United States, cert. aenmils 400 Us. 991 9

- Bruton v. United States, 391 US. 123.

Douglas v. Alabama, 380 U. S. 5 Sos Af 8

Gregory v. United States, 369 F.2d 185, 191 (D.C

~ Air. 1966) aa APU UIC eT LEE * OE AS ee oy

“Grifin v. California, 380 U.S. 609. tes Rade ERO ‘14

; Salley v. United States, 353 F.2d 897 (D. C, Cir. 1965) 1£

Schoppel v.. United States, 270 F.2d 413, a7 es e."

Ca 2). = ER AP TRREENE OTIS Seale A A aI 1

Sears v. United States, 343 F.2d 139 (5th Cir, 1965) ..

Pe Throckmorton \ v. St. Louis- San Franciseo Ry. Co., 179 .

F.2d 165, 169 (Sth Cir, 1950)... Lote OO

U nffed States v. Cimino, 321 F.2d 509 (na Cir, 1963) .. * 8

rs United eninge v. . Echeles, 302 F.2d 892, 897-898 (7th ©

ee or es 7-8

U nited States v. Housing Foundation of America, 176

F.2d 665, 666 (3rd Cir. 1949) Eee Oe

U nited States v. Rizzo, 418 F.2d I (7th Cir. — a

| Other Authorities 43

. Fifth Amendment to the United States Constitution .... 11

Sixth Amendment to the United States Canstitution .. ‘.

we.

=o In the’

é Supreme Court of the Muited States -

‘OcToBER Term, 1971.

i: No. :

_ DOMINIC CORTINA, .

he Shy _.. + Petitioner,

tie: 7

—

ow

UNITED STATES OF AMERICA,

PETITION FOR WRIT OF CERTIORARS TO THE -

UNITED STATES COURT OF APPEALS FOR

| THE SEVENTH CIRCUIT al

©

United States Courteof Appeals for the Seventh Circuit

entered on September 15, 19712 ss :

1 Petitions for Certiorari have been filed by ‘the -petitioner’s co-

defendants, John Philip ‘Cerone, Sr., James Cerone, Donald Angeline,

Joseph. Ferriola, these, petitiorfs are adopted herein so far as they

are applicable to this’ petitioner. : ta 7

Respondent.

Petitioner Dominic Cortina respectfully prays that a.

Writ of Certiorari issue to review the judgmeiit of the

a

es

2

Opinion Below,

The judemaent of conviction of the United States Dis-

triet Court for the Northern District of Tllinois ‘i is not-Te-|

ported. The opinion of .the Court. of Appeals’ for the

Seventh Circuit has not yet been officially ee. ‘Iti is

. pa as Appendix A to this Petition. a

e

J urisdiction

(The judgment of the Court. of Appeals Micsieg the

. judgment of conviction and sentence of the District Court |”

was entered on September 15, 1971. A timely Petition for

. . Rehearing was: ‘denied on November 9, 1971, Appendix ‘*B? "ds

| The jurisdiction of: this Court i is invoked under and pur- ;

— to 28 U.S. ‘Code sic .

‘Questions Presented .

8 Was. the petitioner deprived of his Sixth iets

right to cross- examination by the admission of, hearsay coc

testimony? Sse? Sak Seer’

2. Was the petitioner denied his right: ee cross-exami-

- nation and due process by allowing the chief witness 'for the .

government to corroborate himself by ny of peer

consistent acts?

?

3, Was. the ‘pices ica his: fundamental rights —

-under the Fifth Amendmen by. allowing - the government

- to comment upon nhs failure to testify?

is . ke | Statement of. Facts:*

The evidence viewed i in the light: rere favorable’ to the

government i is set forth in the opinion by the United States

Court of Appeals for the Seventh Circuit attached to this

petition as Appendix A, ;

_ _ REASONS FOR GRANTING THE WRIT

oo

AMENDMENT RIGHT TO ,CROSS-EXAMINATION

BY THE ADMISSION OF HEARSAY TESTIMONY.

Phe’ witness Bombaci no, aedording to the Government's |

adinission, was working as. an agent for ‘the: Government ier:

during the enfire period. covered by his testimony in this

case. Acting as an agent for the Government he could. not

. THE PETITIONER wis DEPRIVED | OF HIS sixtH

be a co-conspirator, oe vy. United States, 343. F.2d 139. :-

(5th Cit. 1965). . Asie. I ees : = ey

; ‘Howey er, under the seihended snthanity of U nited States —

iy, Rizzo, 418 F.2d 71. (7th Cir. 1969) the Government was |

allowéd to introduce, through the mouth of Bombaci- =

no, statements allegedly made by’ Aureli -to “Bombacino’

“which ° were incriminatory of the defendant Cortina.

_Bombacino testified that he worked witli A reli heals

bacino testified : (Tr, -99- 101)"

Fs

«Q, What were your duties when 1 you were e working

at 4355 South Sawyer?-

A. Lwould help answer the. phone and ne iia:

Q. How long did you contintie on a daily basis to: /°

| go to 4354South Sawyer?

A. ill: about the middle of October.

‘ “Nee “a

@

s

——_———_"

te ‘

;

£

f pie or early J uly 1965 at the South Sawyer address. un-.

” til October, when he had a conversation with’ Aureli. Bom-

1 Reférefice to (Tr. acne are to the Transcript of Proceedings i =. 5

7 the District og Mepene Gene ys eer ; ee

Q. — if anything, happened at that time?’’.

= * ~

AQ, Frank. Aureli told me that <We’re going to

be moving to Maywood’ and that we wouldn’t be work-

ing—I wovldn’t continue. picking up the sheets at

_, Johnny Manzello = and he said we should be

_ moving.in a day or two. °

By Mr. Casey:

Q.. Did he say nadine: else?

A. That we’d be working for Den Angelini and

Dom Cortina.’’

, Motions for mistrial and for severance were made and —

denied (Tr. 102-145).

Bembacino then testified that the move was made to _

Maywood and he was introduced to John DiDominico by,

Aureli. The following then occurred: (Tr. 150-152).

**Q. Did you have a conversation at that time?

A. Yes,I did. .

Q. How long was it after you — to 321 West

Lake?

' A, The same evening, I believe.

Q. Was the conversation during the day time. or

during the evening?

A.* While we were working inside.

And it was at 321 West Lake?

Yes, sir.

.No, sir.

Will you please relate the conversation, indi-

™s* what you said and what Frank Aureli said.

. *

A. I said Frank Aureli introduced me, and I asked

him. who he was, and he said he was the bookkeeper .

. for Dominic Cortina and Don Angelini.

Q:

A

Q. Was there anyone else present?

A. ’

Q.

tin

-

~

5:30?

5

- Me. Crowley: Objection, your Honor. |

The Court: Overruled. v.

_ _ Miss Lavin: The motion I made before, your ”

Honor. .’ .

The Court: Motion denied. :

You may have a continuing motion, if you like, and

. all of the defendants may join in it, with the Court’s -

ruling in- mind, if you: so desire, and the record will

show it, and the motion will be overruled.

Mr. Busch: I understood that that liad been the

ruling, that there is a continuing objection on-the part

of all defendants. :

The Court: Miss/ Layin made-another one, so I -

just wanted to remind her that we have it in the record,

and it is of record. . : .

All right.

By Mr. Casey: f° ?

Q. What wére DiDomineo’s duties if you-know?

A. Why, he would come every evening about 5:00,

5:30, and I would see him every Sunday.

Q. What would he do every evening ‘at 5:00 and

-A. He would get—pick’ up tHe betting records,

Q Take them away?

A. Yes, sir.

Q.. What, if anything, would he do on Sunday?

A. He would help answer the phone and just hang

around.

. Q. . When you say “answer the phone,” what do

. you mean?

A. Taking bets.’’

og Sa ee

—_

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.

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tintin wan nadie a Le pian tattle ec dats ne a ae

~

—

>

Later Bombacino again testified to certain conversations

with Aureli incriminatory of Cortina, when he: described

a meeting with the unindicted co- -conspirator, Sammy"

_ Molose. (Tr. 1ov- 158).

af When did you meet Sammy Moiose?

‘A.

» Grand.

Q.

Q.

A.

Q.

A.

I met him when he come to work at 6955 West.

Were you intr dined to. him?-

Yes, I was.

Who introduced - you to him?

Frank Aureli.

How long after you moved to 6955 West Grand?

Just when we did move, About a day. after we

were. there.

Q.

Was there anyone else’ ‘present other jhe you,

~ he and Frank Aureli?

A. .

No, sir.

.

Q. Was there a conversation at that time?

A.

Well, Frank Aureli told me he was a good friend

of Dominic Cortina’s and he was going to teach him

the business.”’ _

Bombacino also testifred that in February of 1966 he’

had another conversation with Aureli concerning Cortina.

_ (Tr. 184-185)

“Q. Will you sient relate the ¢ conv ersation indi-

cating what you said and what Aureli said..

A. °

Well, Frank Aureli told me that either the bet-

ting was getting too heavy, the. customers couldn’t

get- him through the phones, and Dominic was looking

for a new phone, and I suggested to Frank Aureli

* ask Dominic if I could use my phone in my home.

—Q.° What did say? | ee ES

A. Frank Aureli said, you. know, you are on five

years’. probation. Are you willing to take bets at

your home, and I said ‘yes, it is all right, I will take

them ‘at my home. 3

te Q. What did he say?. ge

_ A. He said, all right, I will let you know. |

. Q. Did you have a further conversation with him

pale te Qe s .

* es *-

“Al Frank Aureli told me that it is.all right, get

yourself a phone, and yeu will be -taking all out-of-.

‘town sports action at your house,’’

In July of 1966, Aureli was arrested. After he was re-

leased he allegedly had a conversation with Bombacino.

(Tr. 196) | Be ae

. * **Q. Will you please relate the conversation indi-

cating what you said what he said. vo

A. ‘T asked him when he got out, and he said he

had just got out, and I asked him if he called his sister.

ee

ee

ee

e

Par. Yet

Kate because she was worriéd, she knew he was locked. |

up because she kept calling me tw6 or three, times a

day, and he said Dominie Cortina had a hard time

getting hold of the attorneys, and that “was why the -

delay.’’

Each of these alleged conversations, occurring between

October, 1965 and July 1966, all inecriminatory of Cortina

were prior to the. time that Bombacino allegedly met

~ Cortina. » a

Cortina could not call his co-defendant Aureli as a wit-

ness United States v. Housing. Foundation of America, 176

F.2d 669, 666 (3rd Cir. 1949); United States vy. Echeles,

*

oe Rl gee Den gk nn On ae

‘4 oe Pa td 4 .

8:

352 F.2d 892, 897-898 (7th Cir. 1965). Thus, under the

' guise of. attempting to establish the conspiracy charged, °

the Government was allowed to introduce evidence of state-

ments of a. co-defendant incriminatory .of the defendant -

Cortina. There was no way that he could exercise his right

‘of cross-examination. | .

In United States v. Cimino, 321 F.2d 509 (2nd Cir. 1963)

the Court was concerned with the identical situation pre-

-Sented here and held that such statements are not. ad-

missible. . |

‘* Witnesses for the—prosccttion proved the’ meetings

‘between Cimino and D’Ercole on November 10 and

22 but no witness overheard their conversations or

saw anything passed from one, to the-other.’ Their

*micre meeting was no-evidence of their being eon-

‘ spirators; nor was Cimino’s ‘statement to Avant (Gov-.

ernment Agent) that Joe Z (D’Ercole) was ‘the source’

of the heroin. sold by Cimino competent evidence

_against D’Ercole. ‘Otherwise, hearsay would lift itself

by its own bootstraps to the level of competent evi-

dence.’ See Glasser v. United States, 315 U.S. 60,

74-76, 62 S.Ct. 457, 86 L.Ed.- 680:’’ (Parenthesis

added). ; tm AS; 2 8 oaks

United States v. Cimino, 321 F.2d 509, 510.

The tactic of the Government in this case is almost iden-

. tical to that condemned by this Court in Douglas v. Ala-

bama, 380 U.S. 415. Douglas had been indicted with a co-

defendant, Loyd, who wa’ tried first and found guilty: In

- Douglas’ trial, the State called Loyd as a witness. How-

ever, Loyd refused to testify, relying on his privilege.

against self-incrimination. Thé State then, under the guise

of ‘cross-¢xamination, read Loyd’s confession, which was

incriminatory of Douglas, to him and after reading por-

tions of the confession would pause and ask Loyd, ‘‘Did

*. 7 ew

vou make that statement?’’ Each. time he was asked this

question, he refused to answer. This Court held this pro-

: ~ cedure to violate Douglas’ Sixth Amendment. tight to .

cross-examination, and in reversing, stated at page 419:

‘*In the circumstances: of this case, petitioner’s in-

ability to cross-examine Loyd as to the alleged. con-

fessiiin plainly denied him the right of cross-examina-

tion secured by the Confrontation Clause. Loyd’s

alleged statement that_the petitioner fired the shotgun

constituted the only direct evidence that he had done

so: coupled with the deseription of the circumstances

surrounding the shooting, this formed a crucial link

in*the proof both of petitioner’s act and of the req-

-. ulsite intent to murder.”’

‘The recurrent problem of sibmicsion of hearsay state-

ments in a conspiracy case reached its prejudicial climax %

in this ease.

We respectfully submit that this ease presents a proper

vehicle for review of the issues presented in, and left an-

resolved in Bostic v. United: State %% cert: granted, 400 U.S.

991 ; Cismisced 1 as improv eed phy 402 U. S.-047,

II.

‘THE CHIEF WITNESS FOR THE GOVERNMENT WAS .

ALLOWED TO TESTIFY THAT. HE _HAD CON-

TACTED THE FBI. APTER CERTAIN MEETINGS

WITH THE DEFENDANTS. THIS- TESTIMONY.

WAS,. IN EFFECT, A PRIOR CONSISTENT STATE- -

MENT AND ITS ADMISSION WAS ERROR.

The witness Bombacino testified to alleged mectings and

conversations. with the defendants Aureli, Angelini and

Cortina during the: period from July, 1965 through De-

_ ecemtber, 1966. (Tr. 65-208). -He then testified that in, De-

- cember of 1966, “after talking to ‘“‘Lefty”’ and then Aureli

\ 10

by telephone, that he’ called ¥.B.L. L Kees Pal Fraskfort.

(Tr, 112).- After his _fiest~alleged meeting with Jack -

Cerone he agai call led Frankfort (Tr. 230). He. then tes-

dae tified that. the next ‘day he saw Cerone again, after which

he talked to Aureli and then Frankfort (Tr. 240). Later.

that evening after meéeting Jack Cerone and Joseph Fer-

riela he again called Frankfort. (Tr. 242). ;

Frankfort was never called to testify about any sur-

yeillanee conducted as a result of these telephone ealls.

The clear import of this testimony was the introduction of

a prior consistent statement, There Was no other con-

ceivable purpose for the questions and answers. The

prosecution. was allowing the jury to conélude, indeed the

only conelfision, that Bombacino had told the same story

to the F.B.I. contemporaneously with: the alleged. event ‘and

therefore he must be telling the. truth now.

fn Schoppel v. United States, 270 F.2d 413, 417 (DC. .

_ Cir. 1959) the Court condemned this type of prosecutorial

misconduct : '

“oN hateas of the trial, . . Was the prosecuting

attorney's disclosing to thee | jury “the fact that certain

of his witnesses had been interviewed and made state- .

_ments to the F.B.L The contention is that this.was

the prosecutor’s way of bolstering the witness’ testi-

. mony by indicating to the jury that consistent dee: ’

" larations had been made tq the investigators. Re-

peatedly the U.S? Attorney; upon calling a witness to

’ the stand, proceeded first-to’establish that a statement

had beén given to the F.B.I. and then handed it to

_ defense counsel, in.tlie presence of the jury. :

Where a cross-examiner. has endeavored to dis-

* credit a witness by prior inconsistent’ statements, it

‘is sometimes permissible to offset the damage by

showing prior consistent utterances, ~ 4 ‘Wigmore

. $1132, 6 Wigmore ($1792° (3rd. Ed. meats It is not

oe) Ue 7

proper, however, in chief to mere corroborative sup- —

port of a witness by showing that after the event un-

der inquiry and before the ‘trial he made statements

to the same effect. See. ica §1124 (3rd a :

1940). : ; : |

. The a of the government attorney must be con-

demned....?? |

See also: diese United States, 369 F.2d mB 191

(D.C. Cir, 1966); Throckmorton vy. St. Louis-San Fran-

_ cisco Ry.Co., 179 F.2d 165, 169 (8th Cir. 1950).

The Court of Kendle refused - to comment on ‘this al-

legation of error and therefore there is a conflict among

the Circuits. . |

I .

THE PETITIONER WAS DENIED HIS FUNDAMEN: :

TAL RIGHT UNDER THE FIFTH. AMENDMENT BY

THE GOVERNMENT'S COMMENT IN CLOSING

- ARGUMENT ON HIS FAILURE TO TESTIFY. —

In order to properly set forth this point of error a very

brief recital of a portion of the evidence is necessary.

; Bombacino had testified that shortly before _ the move

to, Lake Street Aureéli told him that they would. start

using dissolving paper which they would obtain from.

Jack ‘Arbor’s”’ printing shop at ee 4300 West Madi.

son (Tr. 153). oN : . ,

Jack Garber, a printer. who had a shop located at 4325

West Madison Street. in 1965 and 1966 was later called to

testify (Tr. 1058 et seq.). At the time of trial Garber —

. had great difficulty with his eyesight.: He testified that

he knew Frank Aureli for 15 years, yet he had to be as-:

ee ee

—

sae

(Tr. 1058)

sisted in w oy sta the ovuxtoonm ba identify Aureli ~

“Q. .Mr. Garber, I am going to ask you to ¢ome

off the — the best you: can and walk around the

courtrodm and see if you. can see Frank Aureli in

the cotirtroom today:

M¥. Marshal, could you assist him, please?

‘ (Witness did as requested.)

’ Mr. Calthan: Your Honor, I just talked to my client.

- He says he-knows the man. I think he is under some

difficulty, We would: agree oe he would rae

Frank ‘Aureli. ; at

Thel Court: All right. te the record ion that

the. witness has identified the defendant Laces Aureli.. ~

“Fhank you, Mr. Calihan. .

f (W itness resumed the stand.)’’

' He then: testified that Aureli and Bombacino had’ eee in

his printing shop (Tr. 1060-1065). He also testified that:

_Aareli brought him some dissolvable paper and Garber

“printed lines on it. (Tr. 1066-1067 ). About three months

later Aureli, according to Garber, came in with a man.

_hamed Dominie and. requested similar printing and that

Dominie picked it up a few days later (Tr: 1067-68). He *

was_then requested to leaye the witness stand to see if

he could identify Domine. The defendant Cortina did

not concede the identification, as had Aureli> but remained _

seated while Garber made his arduous trip through the

courtroom, which consumed a great deal of time. The wit-

ness then identified Cortina. (Tr. 1068). -

In closing argument, the prosecutor nmeeted to this in- -

cident. (Tr. 1880-1881). fn ee

‘i! About the time of this move,. Bombacino tells us

ies the operation began using a new paper, a paper

/ known. as dis solvable —_ _Aureli told Bombacino

rnd

that they would henceforth be using. this dissolving |

paper. Aurelij tells. Bombacino that he is -to go to

: Jack Garber’s printing shop, about 4300 West Madi-

. ~ son, and pick some up. ore Cire

- What is the usd of fhis paper? Very simple. Just

_ as Mr. Garber described it, it dissolves in water. What

do we find_at Lake Street and what ‘do we find at the .

Grand Avenue places? Buckets of water. Bomba: -

cino said in case of ‘a police raid, in the bucket—phfft

'—disappeared. Evidence. ' Potential -evidence—again

"we see, these defendants are looking forward to this_

day. ie ae yd a

Did Bombacino lie about this?’ Did he exaggerate /”

"in any way, any way? The only one that he kne ,

. connected .with it was Aureli. Nobody else. . But.

we have more than that.’ ’ Jack Garber. - Ubi ser ob or

F don’t know that I will ever see anything more _

dramatic than Jack Garber, He walked in front of .

you people, evérybody there, everybody there, ’til he

got right over there, and there is the man he pointed

- ‘to that came in with Aureli, the man whom. he only me

_« knew as Dominie, the defendant Cortina. We saw Mr.

' Cerone. stand right away when the witness DeLucia

>was asked, but-Cortina waited; and he. waited, and he-

waited, and we waited. (Emphasis added)

. Mr. Crowley: . Your. Honor, I am going to object

- to.that comment and move for a mistrial now.

‘The Court: Overruled. .

Mr. Créwley: I may state the ground later at side- -

. bar? ae sar. eur is

4s “Phe Court:: You may.’? (See: Tr. 1910-1911):

This ‘argument had a two-pronged prejudicial effect.

The testimony of Ricca had been. expressly limited to |

Jack Cerone, Sr. (Tr. 879). It is of course well settled -

‘that limiting “instructions ' have little, if any, salubrious

Se : , 3 . : \ , R

a oc re

% %

effect. ona jury. ' Bruton v. U nited: States, 391 U.S. "193,

but whatever effect they may have in this casc they were.

emasculated by. the pr osecutor’s comment,

Secondly, this argument ‘was a clearly impermissible

*“. comment on the petitioner’s right not to ingriminate, him-

self. ‘The. petitioner had entered a ‘plea of not guilty ‘and

the prosecution was required te prove his guilt beyond a

reasonable doubt, included in that proof is proof of iden-

’ tity. ‘Salley v. United States, 353 F. 2d* 897 (D.C. Cir., |

1965). To call upon the : “petitioner to assist the Govern-

nent in its proof, indeed to criticize him for not assisting,

is prejudicial error jin the highest . degree. Griffin v

California, 380 = 609.

"Conclusion" a

For the foregoing reasons the: petitioner respectfully

submits that a writ of certiorari should issue to review the -

8 judgment , eats opinion of the Seventh Circuit.

Ete coud | submitted,

Joun Powers CRrowLEY

105 West -Adams ‘Street

Chicago, Illinois 60603 - . 2

- ares for Petitioner:

< a :

; =

° é