Memorandum — Zanfardino v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1974

No. 73-1659

GENNARO ZANFARDINO, PETITIONER

V.

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

Petitioner contends that the trial court improperly

admitted into evidence false exculpatory statements he

made to an Assistant United States Attorney prior to

arraignment; improperly forbade him to cross-examine a

police witness relating to a prior investigation of the wit-

ness’s official conduct; and improperly admitted into evi-

dence post-conspiratorial statements by his co-defendants

relating to a bribe attempt.

Following a jury trial in the United States District

Court for the Southern District of New York, petitioner

was convicted of conspiring to violate federal narcotics

laws, in violation of 21 U.S.C. 846, and sentenced as a

second narcotics offender to a term of twenty-five years’

(1)

2

imprisonment and ten years of special parole.' The court

of appeals affirmed from the bench. An application for

rehearing was denied (Pet. App. A).

The evidence showed that petitioner supervised and con-

trolled a major narcotics ring, operating in the Bronx and

East Harlem in New York City. Campopiano, petitioner’s

principal aide, was assisted by Lentini and Abbamonte in

directing the daily distribution of large amounts of heroin

and cocaine. Dolores Martinez (“Didi”) and her husband

purchased large quantities of heroin and cocaine from

petitioner’s organization, which they in turn distributed

throughout Harlem. Didi was arrested in December 1972

and began cooperating with federal and local authorities.

During this period she continued making large purchases

of narcotics from petitioner’s organization, while under

supervision of the authorities. Prior to petitioner’s trial,

at which Didi was to testify. petitioner, Campopiano,

Lentini, Abbamonte, and two others were charged with

obstruction of justice, bribery, and conspiracy to do both

resulting from a down payment of $100,000 made to two

police officers for the destruction of certain evidence and

for information concerning Didi’s location, which would

enable them to kill her.?

'Indicted along with petitioner were John Campopiano, Arcadio

Boria, Oreste Abbamonte, Thomas | entini, George Coumoutsos, John

Doe, a/k/a “Tommy”, Solomon Glover, Benito Cortino, Jane Doe,

a/k/a “Diosdada”, Jane Roe, «’/k/a “Roberta”, Sabino Rios,

and Joseph Mack. Co-defendant Boria has filed a petition for a

writ of certiorari, No. 73-6864.

2Following a bench trial in the United States District Court

for the Southern District of New York, petitioner was sentenced

to fifteen years’ imprisonment on the bribery charge to run con-

currently with the sentence imposed in the instant case and to

five years’ imprisonment on the obstruction of justice and con-

spiracy charges, also to run concurrently with his sentence in

this case.

;

1. Petitioner contends that it was improper for the trial

court to admit into evidence certain false exculpatory

statements made to an Assistant United States Attorney

during a pre-arraignment interview which followed his

arrest. Petitioner acknowledges that he was advised of his

right to remain silent, but adds that he was told that

whatever he said would be used in fixing bail. He contends,

therefore, that he was forced to give up his constitutional

right to remain silent in order to secure his constitutional

right to bail.

Petitioner was interviewed by the prosecutor at approxi-

mately 3:00 p.m. on April 14, 1973. The prosecutor first

identified himself and apprised petitioner of the charges

against him (Tr. 875). He next informed petitioner that he

would fix bail in his case. He than advised petitioner as

follows: that he had a constitutional right to refuse to

answer any of his questions; that he had an absolute right

to remain silent and that if he chose to answer any

questions, any statements he made could be used against

him; that he had a right to consult an attorney and to have

that attorney present during the interview; that if he did not

have funds to retain an attorney, that an attorney would be

appointed to represent him and that he did not have to

answer any questions until that attorney was appointed

and he could consult with him. After each warning was

given, petitioner indicated that he understood his rights.

He made no request to consult an attorney or have one

appointed for him. The prosecutor then inquired of

petitioner whether, understanding his rights as explained,

he was willing to provide information pertaining to his

background and his version of the facts. Petitioner

responded “okay” (Tr. 880-882).

‘

~

LS RT

4

Petitioner then made a number of false exculpatory

- statements. He denied using heroin, cocaine, marijuana,

or pills of ary type. He also denied that he had ever

worked at, had a key to, or opened or closed the door to

the barber shop at 320 Pleasant Avenue with a key (Tr.

880-883).3 Eleven separate sequences of video tape film

taken from the 106 reels of Pleasant Avenue surveillance,

showing petitioner opening and closing the door to the

subject barber shop, were played for the jury (Tr. 907).

Petitioner was fully advised of his constitutional rights,

pursuant to Miranda v. Arizona, 384 U.S. 43€, including

his right to remain silent, waived them, and voluntarily

made the false exculpatory statements. This interview in

‘no way prevented him from making a full presentation to

the magistrate on his bail status. Nothing was said by the

prosecutor which suggested that the interview was limited

to petitioner’s bail status. See United States v. Ramirez,

482 F. 2d 807, 815-816 (C.A. 2).

Petitioner's reliance on United States v.

Kahan, 479 F. 2d 290 (C.A. 2), reversed and remanded,

415 U.S. 239, and Simmons v. United States, 390 U.S.

377, is misplaced. Petitioner in this case was not re-

quired, as was the defendant in Simmons, either to

incriminate himself or sacrifice a constitutional right.

Petitioner would have secured bail had he made truthful

statements. He had no constitutional right to attempt

to secure bail on more favorable terms by false pre-

tenses. In reversing the court of appeals in Kahan

this Court noted that “the incriminating component of

respondent’s pretrial statements derives not from their

content, but from respondent’s knowledge of their

falsity.” 415 U.S. at 243. The situation in the in-

stant case is identical.

‘The Pleasant Avenue barber shop was shown to be as the base

of operations for petitioner’s organi7ation.

5

2. Petitioner contends that he was improperly denied

the right to cross-examine Detective Erwin, a govern-

ment witness, relative to a prior federal investigation

of Erwin.

Erwin’s testimony was limited solely to the events re-

lating to the bribe attempt that was the subject of the

charges described supra, p. 2, n. 2 (Tr. 1094-1097). He was

cross-examined briefly and then excused to get some notes

(Tr. 1115-1116). Prior to Erwin’s resuming the stand the

next day, the government revealed to the court and de-

fense counsel that he had on a different occasion been

investigated relative to his alleged participation in

the receipt of a bribe. It also was disclosed that

Erwin had been informed that the investigation was com-

pleted and that no action would be taken against him (Tr.

1167).

Defense counsel, outside the presence of the jury,

were permitted to examine Detective Erwin on this inci-

dent. He testified that fellow officers asked him to

participate in the receipt of a $4,000 bribe offered to

overlook the arrest of a narcotics violator. After re-

fusing to participate on several occasions, he was

ordered by his superior officer to participate. He was

given $900 and at the direction of his superior officer

used this money to purchase wiretap equipment for the

Special Investigation Unit of the Police Department. De-

tective Erwin further testified that approximately a

month and a half before the attempted bribe in this

case, he had been informed that his own investigation

had been completed and that he had been absolved of any

6

impropriety. Moreover, he stated that he was not facing

any type of departmental censure, trial or investiga-

tion (Tr. 1203-1213).4

It is well settled that witnesses cannot be impeached

by evidence of prior misconduct not resulting in convic-

tion. See, e.g., United States v. Provoo, 215 F. 2d

531, 536 (C.A. 2); United States v. Bowe, 360 F. 2d

1, 15 (C.A. 2), certiorari denied, 385 U.S. 961. In-

quiry into an arrest or pending indictment is permis-

sible, however, to show bias or motive to testify.

Since Erwin was no longer under investigation and had

been cleared of any impropriety prior to his participa-

tion in the events that he testified about at trial, he

lacked any motive to color his testimony in favor of

the government. Accordingly, the district court’s exclu-

sion of this line of inquiry was proper and in any case

was well within the discretion allowed trial judges in

such matters. United States v. Miles, 480 F. 2d

1215 (C.A. 2); United States v. Kahan, supra, 479 F.

2d at 294-295; United States vy. Miller, 478 F. 2d

1315, 1318-1319 (C.A. 2); United States v. Bonanno,

430 F. 2d 1060 (C.A. 2), certiorari denied, 400 U.S.

964. See United States v. Blackwood, 456 F. 2d 526,

530 (C.A. 2), certiorari denied, 409 U.S. 863; United

States v. Dorfman, 470 F. 2d 246 (C.A. 2), cert-

iorari dismissed, 411 U.S. 923.

4 The trial judge was asked by defense counsel to inspect in

camera the files of the United States Attorney’s office rela-

tive to Erwin’s investigation and his City Police Department

files to determine if they were inconsistent with his testimony.

The trial judge agreed to this procedure and indicated that he

would report back on any inconsistency (Tr. 1213, 1313-1317,

1539). He examined the files, and later reported that there were no

inconsistencies (Tr. 1317, 1647, 1693-1694).

7

3. Finally, petitioner asserts that post-conspirator-

ial hearsay declarations of co-conspirators Campopiano,

Abbamonte and Lentini, made out of his presence, but re-

lating to the bribery plot, were improperly admitted.

Contrary to petitioner’s assertion, these statements,

admitted to show consciousness of guilt, were not re-

ceived against him. Moreover, petitioner was not named

in the declarations by his co-conspirators (Tr. 919-931,

934-935). His involvement was’ brought out only by the

direct testimony. of . Detective Del Corso as to

petitioner’s actions and statements (Tr. 932, 933, 936).

Thus this case does not present the constitutional in-

firmity found in Bruton v. United States, 391 US.

123, where a conviction was reversed because a hearsay

declaration of a co-conspirator included allegations as

to the defendant’s conduct.

When petitioner objected to the admission of the

declarations against him, the trial judge agreed and

gave a specific cautionary instruction. His instruction

stated (Tr. 978):

There is no agency concept in connection with

any of these activities.

You are to consider Detective Del Corso’s testi-

mony with respect to Mr. Campopiano only as to

that which he did or said and you are to consider

with respect to Mr. Zanfardino only that which ‘ke

he did or said. In other words, the activities of one

defendant cannot be considered as the actions of or

as binding upon the other. °

5 The remainder of this instruction dealt with the limited

purpose for which the bribery plot evidence was being received.

8

This instruction was given just prior to the receipt

of the $100,000 in evidence when the trial judge consid-

ered it could have its greatest impact (Tr. 972). No

objection was made after it was given. Moreover, the

essence of this cautionary instruction was repeated in

the closing charge to the jury (Tr. 1947-1948).

Even had the hearsay declarations been admitted

against petitioner, however, he would have no grounds

for complaint.

Evidence of the suppression or destruction of evidence

or of attempts to influence witnesses is admissible to

show consciousness of guilt. Barcott v. United

States, 169 F. 2d 929, 932 (C.A. 9), certiorari denied,

336 U.S. 912; United States v. Katz, 78 F. Supp.

435, 438 (M.D. Pa.), affirmed, 173 F. 2d 116 (C.A. 3);

Harney v. United States, 306 F. 2d 523, 533 (C.A. 1), cert-

iorari denied sub nom. O‘Connell v. United States,

371 U.S. 911. See 2 Wigmore, Evidence, § 278 (3d

ed., 1940). Similarly, evidence of participation in a

conspiracy to carry out such actions is also admis-

sible, even though it constitutes evidence of another

crime. People v. Terry, 57 Cal. 2d 538, 565-566,

370 P. 2d 985, 1001-1002, certiorari denied, 375 U.S.

960; Commonwealth v. Marion, 232 Pa. 413, 423, 81

Atl. 423, 426; Perfect v. State, 197 Ind. 401, 410-

412, 141 N.E. 52, 55. See 22A C.J.S. Criminal Law,

§ 633 n. 31 (1961).

In this case, the evidence was clear that petitioner

not only adopted the initial bribe offers made by

Campopiano and Abbamonte out of his presence, but that

he took control of the plot that they had initiated. It

was he who gave the final assurance that the $100,000

would “be there”, who directed that the witness had

“to go” (Tr. 931-932), and who approved the middleman

4

9

for the transfer of this money (Tr. 935-936). See

Lutwak v. United States, 344 U.S. 604; Anderson v.

United States, No. 73-346, decided June 3, 1974, slip

op. 7-8. See also United States v. Culotta, 413 F.

2d 1343 (C.A. 2), certiorari denied, 396 U.S. 1019.

It is therefore respectfully submitted that the ois

tion for a writ of certiorari shou!d be denied.

ROBERT H. Bork,

Solicitor General.

OcToBER 1974.

DOJ-1974-10