Reply Brief — Anthony Giordano v. United States of America

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-322

MICHAEL SANTO POLIZZI, JACK S. SHAPIRO, PETER JAMES

BELLANCA, ARTHUR J. ROOKS and

ANTHONY JOSEPH ZERILLI,

Petitioners,

vs.

UNITED STATES OF AMERICA.

No. 74-323

ANTHONY GIORDANO,

Petitioner,

vs.

UNITED STATES OF AMERICA.

REPLY BRIEF OF PETITIONERS

ROBERT E. HINERFELD

RICHARD A. MURPHY

EDWARD M. MEDVENE

OAVID ELSON

SIMON, SHERIDAN, MURPHY,

THORNTON @ HINERFELD

2404 Wilshire Boulevard

Suite 400

Los Angeles, California 90057

Attorneys for Petitioners

Michael Santo Polizzi and

Jack S. Shapiro

STANLEY €E. BEATTIE

JAMES V. BELLANCA, JR.

BELLANCA and BEATTIE

20480 Vernier Road

Harper Woods, Michigan 48225

Attorneys for Petitioner

Peter James Bellanca

NEIL H. FINK

3150 Guardian Building

Detroit, Michigan

48226

Attorney for Petitioner

Arthur J. Rooks

WILLIAM J. WEINSTEIN

1935 First National Building

Detroit, Michigan 48226

Attorney for Petitioner

Anthony Joseph Zerilli

IRL B. BARIS

NEWMARK and BARIS

721 Olive Street

St. Louis, Missouri 63101

Attorney for Petitioner

Anthony Giordano and

Associate Attorney for

All Petitioners

St. Louis Law Printing Co., Inc., 812 Olive Street 63101

Be <-> 7S

314-231-4477

INDEX

GEOG OTE oe Pepe ete CE TNR FEI PLIST:

Be a ie ee eras te @ rer eee eh Ger

IC TIRG INN heard ere ee etd 4 el eral mas

Appendix A—Chronological Chart ...............

CITATIONS

Cases

Giglio v. United States, 405 U.S. 150 (1972) ..........

Ring v. United States. —- U.S. —, 95 S. Ct. 164 (1974)...

‘nite? Siates v. Elienbogen, 390 F. 2d 537 (2nd Cir. i968)

United States v. Gerard, 491 F. 2d 1300 (9th Cir. 1972). .

United States v. Regan, 503 F. 2d 234 (8th Cir. 1974)...

United States v. Thomas, 463 F. 2d 1061 (7th Cir. 1972)

Rules

>

tN

Rule 35, Federal Ruies of Criminal Procedure ......... 3,4

iN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. 74-322

MICHAEL SANTO POLIZZI, JACK S. SHAPIRO, PETER JAMES

BELLANCA, ARTHUR J. ROOKS and

ANTHONY JOSEPH ZERILLI,

Petiticners,

vs.

UNITED STATES OF AMERICA.

No. 74-323

ANTHONY GIORDANO,

Petitioner,

vs.

UNITED STATES OF AMERICA.

REPLY BRIEF OF PETITIONERS

INTRODUCTION

This joint reply brief of petitioners Polizzi, Shapiro, Bellanca.

Rooks and Zerlh in No, 74-322, and petitioner Giordano in No.

74-323, is being filed in typewritten form with printed copies to

be forwarded as soon as available. It is the understanding of

counsel that, pursuant to the provisions of Rule 24(3) of this

Court, the petitions for writ of certiorari were distributed by the

Clerk to the Court on December 23 1974, and that these mat-

ters are set for consideration on January 10, 1975. The govern-

ing, ak

ment’s brief in opposition was due on December 12, 1974, but

copies were not received by all counsel for petitioners until Janu-

ary 6, 1975. Because of such deiay, it is impossible for counsel

to file printed reply briefs prior to the date for consideration. The

Court’s permission to file the typewritten copies is respectfully

requested.

REPLY BRIEF

Pursuant to Rule 24(4) and 24(5) of this Court, petitioners

submit the following reply to the government's brief in opposi-

tion:

The brief in opposition is a shocking attempt to denigrate sub-

stantial questions presented in the petitions, by ignoring prin-

cipal contentions,’ mischaracterization of the record? and what

the Court of Appeals held,” and reliance upon conclusions of the

Court of Appeals without discussion of petitioners’ legal attack

upon its opinion. The lateness of the government's brief pre-

cludes a general reply to each of these matters: therefore, we

restrict this reply to the conceuied leniency agreement issuc

' See, e.g., prejudicial publicity and juror Palmer's post-trial dis-

closures, cf. United States v. Thomas, 463 F. 2d 1061 (7th Cir.

1972), (Polizzi Pet. I] A, 19-21}, and also constitutionality of con-

spiracy cases (Giordano Pet. V, 39-42).

- See, e.g., statement at p. 6 of Brief in opposition:

“In later stages of the conspiracy, when further funding by

Emprise would nave risked exposure of the conspiracy, Gior-

dano lent funds to Zerilli on two separate occasions.”

The government cites no reference to the record, and there is ab-

solutely no foundatic:. in the record for such a staienient.

* See, e.g., Question VI, presented in Polizzi Pet. 41-48, re

prejudicial totality of errors, not discussed by Court of Appeals. The

quotation on page 15 of Brief in opposition relates only to one of the

25 errors acknowledged by the Court.

(Question V, Polizzi Pet. 4, 38-41). (See Brief in opposition,

13-14).

Since these petitions were filed, the Eighth Circuit has flatly

rejected the notion that sentence reduction relief can be granted

long after the 120-day period provided in Rule 35 of the Federal

Rules of Criminal Procedure. United States v. Regan, 503 F.

2d 234 (8th Cir. 1974), petition for writ of certiorari being filec

this week. The decision of the Ninth Circuit is the only annellate

decision of which we are aware which approves a government

waiver of the jurisdictional limit in Rule 35. This judicial ap-

proval became necessary to support the conclusions that there

were no “undisclosed promises by the prosecution” (Polizzi Pet.

App. A-49, fn. 75 and 76, 500 F. 2d 856, 896 fn. 73 and 74,

and accompanying text). The result of this device is to allow

a district judge, years after finality of judgment, to usurp the

parole and clemency powers of the Executive Branch, in direct

conflict with the Regan case.

In Regan, the government was able to prevent the district

judge from modifying a sentence after 120 days. In this case

the government secretly stipulated with its star witness that the

jurisdictional time limit of Rule 35 could be waived; long after

finality of judgment in three cases (286 days, 463 days, and 775

days),* the government suffered without a whimper the grant of

the same relief condemned in Regan. Only by an ad hoc te-

micrpretation of Rule 35 jurisdiction (see, e.g., Uriited States

v. Gerard, 491 F. 2d 1300 (9th Cir. 1972); United States v

Ellenbogen, 390 F. 2d 537 (2nd Cir. 1968), cert. den. 393

U.S. 918, rehearing denied 399 U.S. 917) could the Ninth Cir-

cuit conclude that the extraordinary sentencing relief—stipulated

to both before and after Friedman testified in this case—was not

a concealed government promise of leniency.

' See chronological chart attached as Appendix A hereto.

Le

There is only one material difference between Regan and this

case. Judge Regan acted without the consent of the govern-

ment: Judges Hill, Gray, and Whelan relied upon government

concessions of de facto jurisdiction when they agreed to defer

ruling on all three of Friedman’s Rule 35 motions until after

the trial of this case. It was the prosecutor's hiding of those

unique concessions of jurisdiction which violated Giglio vy. United

States, 405 U.S. 150 (1972)."

Obviously, special leniency agreements were made by the gov-

ernment with Friediman. The full details of these agreements

have never been reveaicd tu this Court or any lower Court be-

yond what is apparent from the record—a waiver of Rule 35

jurisdictional restrictions. A full airing of the facts bearing upon

the concealment of the leniency arrangements with Friedman

and the details of the arrangements could be accomplished in

the manner followed by this Court two months ago in Ring v.

United States, — U.S. —. 95 S. Ct. 164 (1974).

* Another illustration of erroneous factual representation in the

government's brief in opposition appears at page 13, where the gov-

erument states, on the issue of newly discovered evidence of leniency

for Friedman, that “[t]he misconduct investigation against Friedman

at the Lompoc Prison Camp was dropped because there was no evi-

dence that Fnedman had done anything wrong.” The fact is that

the Federal Strike Force in Los Angeles concluded a lengthy grand

jury investigation of the Lompoc affair and recommended that Fried-

man be indicted along with the Alessios. Superior officials in the

Department of Justice in Washington, disclosing no reasons, over-

ruled that recommendation despite ample evidence of criminal ac-

tivity by Friedman in the prison camp. (See United States v. Alessio,

9th Cir. No. 73-2904: Appellant's Opening Brief at 49-50: Appei-

lee’s Brief at 69: Appellant’s Reply Brief at 25.)

CONCLUSION

For the reasons set forth in the petitions for writ of certiorari

as well as the arguments set forth herein, it is respectfully sub-

mitted that these petitions for writ of certiorari should be

granted.

Respectfully submitted

ROBERT E. HINERFELD NEIL H. FINK

RICHARD A. MURPHY 3150 Guardian Building

EDWARD M. MEDVENE Detroit, Michigan 48226

DAVID ELSON Attorney for Petitioner

SIMON, SHERIDAN, MURPHY, Arthur J. Rooks

THORNTON & HINERFELD

2404 Wilshire Boulevard WILLIAM J. WEINSTEIN

Suite 400 1935 First National Building

Los Angeles, California 90057 Detroit, Michigan 48226

Attorneys for Petitioners Attorney for Petitioner

Michael Santo Polizzi and Anthony Joseph Zerilli

Jack S. Shapiro

STANLEY E. BEATTIE

JAMES V. BELLANCA, JR.

BELLANCA and BEATTIE IRL B. BARIS

20480 Vernier Road NEWMARK and BARIS

Harper Woods, Michigan 48225 721 Olive Street

Attorneys for Petitioner St. Louis, Missouri 63101

Peter James Bellanca Attorney for Petitioner

Anthony Giordano and

Associate Attorney for

All Petitioners