# Reply Brief — Anthony Giordano v. United States of America > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0068%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1974 - **Citation:** 416 U.S. 505 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0068%3A4. Public record. Not legal advice.