Petition for Writ of Certiorari — Satterwhite v. United Parcel Service, Inc.

Supreme Court brief1974

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IN THE

SUPREME COURT OF THE UNITED STATES

Sco ~ MICHAEL RODAK, JR. CLERK

OCTOBER TERM, 1974

74-322

MICHAEL SANTO POLIZZI,

JACK S. SHAPIRO, PETER JAMES

BELLANCA, ARTHUR J. ROOKS and ANTHONY

JOSEPH ZERILLI,

Petitioners,

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Ninth Circuit

ROBERT E. HINERFELD

RICHARD A. MURPHY

EDWARD M. MEDVENE

DAVID ELSON

SIMON, SHERIDAN, MURPHY,

THORNTON & HINERFELD

2404 Wilshire Boulevard

Suite 400

Los Angeles, California 90057

Attorneys for Petitioners

Micnael Santo Polizzi and

Jack S. Shapiro

STANLEY E. BEATTIE

JAMES V. BELLANCA, JR.

BELLANCA and BEATTIE

1200 First National Building

Detroit, Michigan 48226

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

{RL B. BARIS

NEWMARK and BARIS

721 Olive Street

St Louis, Missouri 63101

Associate Attorney for

All Petitioners

St. Louis Law Printing Co. Inc..,

$12 Olive Street 65101 314-231-4477

L POE TRS RES HSL LISS REPRE LEN RTE EO SMI eh A OO SLES INT ENG Go RTE RTE NIE BE TTEO 2 HI NN IO OT

INDEX

Page

Pere Tee Te Tereeree re eee eee 1

CE hasan scar ancanb thers avane @eeaesees 2

Questions presented ..........cccccccceccccscnces 3

Constitutional provisions and statutes involved ........ 5

ie EP ree Pere Se ee eee ee ee eee 8

Reasons for granting the writ ...............-.0005- 13

a gt errr rr ee 13

BE. Prefedictal publicity .. 2... ccc ccscccscnees 18

III. Illegal electronic surveillance ..............-- 24

IV. Jencks Act—Lands transcript ..............-- 34

V. Leniency agreements (Giglio) ...............- 38

VI. Prejudicial totality of errors ................ 41

Ws MT I, phd cn ak ec wes nnsisarcsencnns 48

PTET eA eT UC ET UTE ERE LITTLE TE 49

Appendix A—Opinions of Court of Appeals, dated April

BP rrr a eee ee a A-1

Appendix B—Judgmeat of Court of Appeals, dated April

| Sere rere ree Tree eRe Te B-1

Appendix C—Order of Court of Appeals, dated July 25,

1974, modifying opinion of April 30, 1974,

and denying rehearing ..............-. C-1

Rhee Eat ad roe ee ee . - .

PEE AIO BIE FM EPS ce apn ae a ane I Bie Rae CORON REST RAHN AMIR! CRON Ep =

at il

Appendix D—Affidavit of Logan J. Lane, dated May 22,

1974, relating to interview of juror Palmer D-1

Appendix» E—Affidavit of Special Agent Robert J. Mc-

Carthy, dated August 2, 1971, relating to

electronic surveillance ................ E-1

CITATIONS

Cases

Alderman v. United States, 394 U.S. 165

NE 5 N53 ho wes wee ek Le een 3, 24, 28, 29, 30, 33

Alexander v. Louisiana, 405 U. S. 625 SE a Verso 14

Baker v. United States, 430 F. 2d 499 (D. C. Cir. 1970) 32

Berger v. United States, 295 U. S. 78 UE vas asa s eax 16

Bollenbach v. United States, 326 U. S. 607 (ee 46

Brady v. Maryland, 373 U. S. 83 SE = he weak 40

Burkhalter v. Texas, 493 S. W. 2d 214 (Tex. Ct. Crim.

ME Vis cide eee bet See kee cinGeG ote. 40

Carbo v. United States, 314 F.2d 718 (9th Cir. 1963) .. 14

Chapman v. California, 386 U. S. 18 (1967) ...... 20, 21, 46

De Christoforo v. Donnelly, 473 F. 2d 1236 (ist Cir.

ie, EEE ES PE bey he ieee ray tne eee oO toe 38

Estes v. Texas, 381 U. S. 532 (1965) .............. 20

Favor v. Henderson, 348 F. Supp. 423 (W.D. La. 1972) .. 40

Getchell v. United States, 282 F. 2d 681 (Sth Cir. 1960) 46

Giglio v. United States, 405 U. S. 150

on FOE Say Tare ys ery ers leet sO oe A 4, 12, 38, 40, 41

Slay

Glasser v. United States, 315 U. S. 60 (1942) .......... 22

ete ©, Bho, Dee Us. B. Fhe CRO) neck bese ee wees 20

Janko v. United States, 366 U. S. 716 (1961) ........ 20

Jencks v. United States, 353 U. S. 657 (1957) ........ 36

Kastigar v. United States, 406 U. S. 441 (1972) ........ 47

Korman v. United States, 486 F. 2d 926 (7th Cir. 1973) 31

Kotteakos v. United States, 328 U. S. 750 (1946) ...... 46

Lewis v. United States, 146 U. S. 370 (1892) ........ 21

Mares v. United States, 383 F. 2d 805 (10th Cir. 1967)... 20

Margoles v. United States, 407 F. 2d 727 (7th Cir. 1969) 20

Marshall v. United States, 360 U. S. 310 (1959) ........ 20

Marson v. United States, 203 F. 2d 904 (6th Cir. 1953) 20

Michelson v. United States, 335 U. S. 469 (1948) . .14, 15,17

Mooney v. Holohan, 294 U. S. 103 (1935) ............ 38

Napue v. Illinois, 360 U. S. 264 (1959) ............ 38, 40

Osborne v. United States, 351 F. 2d 111 (8th Cir. 1965)... 46

Peters v. Kiff, 407 U. S. 493 (1972) ..........0-- eee 14

Rideau v. Louisiana, 373 U. S. 723 (1963) ............ 20

Sheppard v. Maxwell, 384 U. S. 333 (1966) ........... 20

Taylor v. United States, 487 F. 2d 307 (2nd Cir. 1972)... 40

United States v. Achtenberg, 459 F. 2d 91 (8th Cir. 1972) 38

United States v. Alderisio, 424 F. 2d 20 (10th Cir. 1970) 32

United States v. Alter, 482 F. 2d 1016 (9th Cir. 1973) . .29, 31

United States v. Ash, 413 U. S. 300 (1973) ........... 38

United States v. Berrios, — F. 2d —, 15 Cr. L. 2508 (2nd

Ce. Pe Oy SE A awk. vee eee ee ebevae ds 8455055 13

United States v. Billingsley, 474 F. 2d 63 (6th Cir. 1973) 14

United States v. Clay, 430 F. 2d 165 (Sth Cir. Wess

United States v. Colabella, 448 F. 2d 1299 (2nd Cir. 1971) 20

United States v. D'Andrea, 495 F. 2d 1171 (3rd Cir. 1974) 31

United States v. Eilenbogen, 390 F. 2d 537 (2nd Cir.

cece I ey En Tap ENE te gy Lee 39

United States v. Fitch, 472 F. 2d 548 (9th Cir. |

United States v. Friedman, 445 F. 2d 1076 (9th Cir.

pining, BOOMS OP tee or Tey oe rae 11, 38

United States v. Gerard, 491 F. 2d 1300 (9th Cir. 1972) .. 40

United States v. Giordano, 440 F. 2d 449 (6th Cir. 1971) 32

United States v. Glick, 463 F. 2d 491 (2nd Cir. 1972)... 21

United States v. Harris, 462 F. 2d 1033 (10th Cir. 1972) 40

United States v. Huss, 482 F. 2d 38 (2nd Cir. a

United States v. Ivanov, 342 F, Supp. 928 (D.N.J. 1972) 32

United States v. Johnson, 487 F. 2d 1318 (Sth Cir. 1974) 46

United States v. Kaplan, 470 F. 2d 100 (7th Cir. 1972) 40

United States v. Kum Seng Seo, 300 F. 2d 623 (3rd Cir.

sc, OE EEG RC one ara ae 20

United States v. McCoy, 429 F. 2d 739 (D.C. Cir. 1970) 21

United States v. Mele, 462 F. 2d 918 (2nd Cir. 1972)... 40

United States v. Palladino, 475 F. 2d 65 (Ist Cir. 1973) 21

United States v. Partin, 493 F. 2d 750 (Sth Cir. 1974) .... 40

United States v. Rattenni, 480 F. 2d 195 (2nd Cir. 1973) 20

United States v. Robinson, 361 U. S. 209 | er 39

United States v. Roselli, 432 F. 2d 879 (9th Cir. 1970). .11, 38

United States v. Smith, 411 F. 2d 733 (6th Cir. 1969)... 21

United States v. Stassi, 431 F. 2d 353 (Sth Cir. 1970)... 32

United States v. Stephens, 492 F. 2d 1367 (6th Cir. 1974) 15

United States v. Tashman, 478 F. 2d 129 (Sth Cir. 1973) 40

United States v. Thomas, 463 F. 2d 1061 (7th Cir. 1972) 20

Wisconsin v. Constantineau, 400 U. S, 433 | ae 13

LT SE TT ode

amen POSTS (eat n a rye PSNR te

Constitutional Provisions

Constitation of the United States:

Fifth Amendment ............. cece cece ceeeees 5

Sixth Amendment ........ rE OEE Oe Te Ee 5

Statutes

Title 18, United States Code, § 1952 .........55-5: 6, 8, 17

Title 18, United States Code, § 3500 ........ 4, 7, 34, 35, 36

Title 18, United States Code, § 4208(aX(2) .........-.- 39

$ 462.160(1)(c), Nevada Revised Statutes .........-.--- 17

Rules

Rule 44, Federal Rules of Civil Procedure ............ 29

Rule 27, Federal Rules of Criminal Procedure .......-- 29

Rule 35, Federal Ruies of Criminal Procedure ......... 39

Rule 43, Federal Rules of Criminal Procedure ......... 21

Miscellanous

American Bar Association Project on Standards for Crim-

inal Justice, Standards Relating to Trial by Jury, Sec-

i I gc cds cs bet eben eke ca chwenen eaves 37

115 Cong. Rec., part 17, pp. 23440-23441 (Aug. 12, 1969) 13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

MICHAEL SANTO POLIZZi, JACK 8S. GHAPIRO, PETER JAMES

BELLANCA, ARTHUR J. ROOKS and ANTHONY

JOSEPH ZERILLI,

Petitioners,

vs.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Ninth Circuit

Michael Santo Polizzi, Jack S. Shapiro, Peter James Bellanca,

Arthur J. Rooks and Anthony Joseph Zerilli, your petitioners, re-

spectfully pray that a writ of certiorari be issued to review the

judgment of the United States Court of Appeals for the Ninth

Circuit entered in the above entitled cause on April 30, 1974.

OPINIONS BELOW

Petitioners, together with Anthony Giordano of St. Louis,

Missouri, and Emprise Corporation, a New York corporation,

were defendants jointly tried in the United States District Court

itil

for the Central District of California. Petitioners and their co-

defendants separately appealed to the United States Court of

Appeals for the Ninth Circuit, and the appeals were consoli-

dated in the Court of Appeals.

The consolidated cause was decided by a panel of the United

States Court of Appeals on April 30, 1974. Each of the three

judges wrote separate opinions on the issues raised on appeal,

each judge writing on different issues. The opinions have not

yet been officially reported. They are reproduced as Appendix

A hereto.

On July 25, 1974, the Court of Appeals modified the opinions

of April 30, 1974, in certain respects and denied petitions for

rehearing and rejected suggestions for rehearing in banc. The

modifying order has not yet been officially reported. It is

reproduced as Appendix C hereto.

JURISDICTION

The judgment of the United States Court of Appeals was en-

tered on April 30, 1974. (See Appendix B.) Timely petitions

for rehearing, with suggestions of appropriateness of rehearing

in banc, were filed within the time as extended by the Court of

Appeals. They were denied on July 25, 1974. (See Appendix C.)

On August 10, 1974, Mr. Justice Douglas extended the time

within which to file a petition for a writ of certiorari to Septem-

ber 23, 1974.

The jurisdiction of this Court is invoked under 28 U.S.C..

Section 1254(1).

A single petition for a writ of certiorari is being filed in behalf

of these five petitioners, pursuant to Rule 23(5) of this Court.

Separate petitions are also being filed in behalf of Anthony Gior-

dano and Emprise Corporation.

QUESTIONS PRESENTED

Whether the branding by the Attorney General and the prose-

cutor of certain petitioners as members of the so-called “Mafia”

poisoned the grand jury and all subsequent proceedings so as to

deprive petitioners of their Fifth and Sixth Amendment rights to

due process of law and a jury trial free of unconstitutional im-

pediments.

Whether petitioners were deprived of a fair trial because of

prejudicial news publicity, including sal

A. Whether several in camera interrogations by the trial Court

were adequate, and

B. Whether the exclusion of petitioners and their counsel from

the interrogation deprived them of Fifth and Sixth Amendment

rights.

Ill

Whether the government's disclosure obligation under Alder-

man v. United States, 394 U. S. 165 (1969), after confession

of illegal electronic surveillance, required affirmative admis-

sible evidence of the information obtained and its dissemina-

tion, thereby presenting the question of whether all petitioners,

including also those not acknowledged to have been surveilled,

were accorded a proper Alderman hearing in this case.

Whether petitioners were prejudiced by the Court's handling

of the Lands transcript, including:

AO RG Pt PBEOA AEE MIE. Sih BEV Ne

a ee

A. the failure to impose sanctions for violation of the Jencks

Act (18 U.S.C. § 3500), and

B. the deliberate misrepresentations to the jury by the prose-

cution, with the approval of the Court, as-to its contents.

Whether the government's failure to disclose highly unusual

leniency agreements and other inducements granted to its key

witness, Maurice Friedman, requires a reversal of petitioners’

convictions or further remedial action in the light of Giglio v.

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

Whether numerous errors throughout these proceedings, ac-

knowledged by the Court of Appeals but characterized in the

opinion as non-prejudicial or non-reversible, combined together

to cause a prejudicial totality of errors which deprived peti-

tioners of a fair trial and due process of law.

VII

Whether certiorari should be granted for reasons con.ained

in petitions for a writ of certiorari being filed by co-defendants

Anthony Giordano and Emprise Corporation who were jointly

tried with these petitioners and whose convictions were jointly

affirmed with these petitioners.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Constitution of the United States

Fifth Amendment.

No person shall be held to answer for a capital or otherwise

infamous crime unless on a preseritment or indictment of a

grand jury, except in cases arising in the land or naval forces,

or in the militia, when in actual service in time of war or public

danger; nor shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against himself, nor be

deprived of life, liberty or property without due process of law;

nor shall private property be taken for public use without just

compensation.

Sixth Amendment.

In all criminal prosecutions, the accused shall enjoy the right

to a speedy and public trial by an impartial jury of the state

and district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to

be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him: to have compulsory

process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

moe

Statutes of the United States

Title 18, United States Code

§ 1952. Interstate and Foreign Travel or Transportation in Aid

of Racketeering Enterprises

(a) Whoever travels in interstate or foreign commerce or

uses any facility in interstate or foreign commerce, including

the mail, with intent to—-

(1) distribute the proceeds of any unlawful activity, or

(2) commit any crime of violence to further any un-

lawful activity; or

(3) otherwise promote, manage, establish, carry on, or

facilitate the promotion, management, establishment, or

carrying on, of any unlawful activity,

and thereafter performs or attempts to perform any of the acts

specified in subparagraphs (1), (2), and (3), shall be fined not

more than $10,000 or imprisoned for not more than five years,

or both.

(b) As used in this section “unlawful activity” means (1) any

business enterprise involving gambling, liquor on which the

Federal excise tax has not been paid, narcotics, or prostitution

offenses in violation of the laws of the State in which they are

committed or of the United States, or (2) extortion, bribery, or

arson in violation of the laws of the State in which committed

or of the United States.

liquor or narcotics shall be conducted under the supervision of

the Secretary of the Treasury.

eee GALLE De SEN ACT ADE Oi 2 Ot N Wiese

§ 3500. Demands for production of statements zad reports of

witnesses.

(a) In any criminal prosecution brought by the United States,

no statement or report in the possession of the United States

which was made by a Government witness or prospective Gov-

ernment witness (other than the defendant) shall be the subject

of subpoena, discovery, or inspection until said witness has

testified on direct examination in the trial of the case.

(b) After a witness called by the United States has testified

on direct examination, the court shall, on motion of the de-

fendant, order the United States to produce any statement (as

hereinafter defined) of the witness in the possession of the

United States which relates to the subject matter as to which

the witness has testified. If the entire contents of any such state-

ment relate to the subject matter of the testimony of the witness,

the court shall order it to be delivered directly to the defendant

for his examination and use.

* * > * . * *

(d) If the United States elects not to comply with an order

of the court under subsection (b) or (c) hereof to deliver to the

defendant any such statement, or such portion thereof as the

court may direct, the court shall strike from the record the

testimony of the witness, and the trial shall proceed unless the

court in its discretion shall determine that the interests of justice

require that a mistrial be declared.

(ec) The term “statement”, as used in subsections (b), (c) and

(d) of this section in relation to any witness called by the United

States, means—

(1) a written statement made by said witness and signed

or otherwise adopted or approved by him:

(2) a stenographic, mechanical, electrical, or other re-

cording, or a transcription thereof, which is a substantially

PERI LI AER MORE REOS MEE SBT LALOR DS TS BE A AIL Kt i aR ie gem PemeiNnae semen neneed

ae DE ENEY Bn DUR, > AO TR ERE

verbatim recital of an oral statement made by said witness

and recorded contemporaneously with the making of such

oral statement: or

(3) a statement, however taken or recorded, or a tran-

scription thereof, if any, made by said witness to a grand

jury.

STATEMENT

Petitioners were tried jointly with Anthony Giordano aiid

Emprise Corporation, a New York corporation, on a ten-count

indictment. The first count alleged a conspiracy to violate the

Travei Act, Title 18, United States Code, Section 1952, and

there were nine substantive counts charging violations of § 1952.

Rooks, Giordano and Emprise Corporation were charged only

in the conspiracy count; the other petitioners were named in

some or all of the substantive counts, as well as the conspiracy

count.

After numerous pre-trial hearings before a succession of

three district judges, trial began on February 15, 1972, before

the Honorable David W. Williams in the United States District

Court for the Central District of California. The trial lasted for

approximately 11 weeks and on April 26, 1972, the jury re-

turned a verdict finding all defendants guilty on the conspiracy

count, and various defendants guilty on the substantive counts

submitted, with the exception of one count on which the jury

was unable to agree upon a verdict as to petitioner Polizzi.

In connection with post-trial motions, a hearing in excess of

one week was conducted in the trial Court, primarily on the

question of the taint of admittedly illegal electronic surveillance

directed against several defendants. All post-trial motions were

overruled, and petitioners were sentenced as follows:

DMESSS OE a ot OL LRA PORE <BR Neg tIY C int peED ee

ee Re Dn he FE OE 6 1 NGS

—

Polizzi—six counts—four years imprisonment and a

$40,000.00 fine (55 R.T. 10,939-10,941).*

Shapiro—six counts—three years imprisonment and a

$30,000.00 fine (55 R.T. 10,953-10,954).

Bellanca—seven counts—five years imprisonment, suspended

on condition that he spend 179 days in a jail-type institution,

and a $20,000.00 fine (55 R.T. 10,984-10,986).

Rooks—one count—five years imprisonment, suspended on

condition that he spend 90 days in a jail-type institution, and

a $10,000.00 fine (55 R.T. 10,996-10,997).

Zerilli—eight counts—four years imprisonment and a $40,-

000.00 fine (55 R.T. 10,930-10,931).

As to the other defendants, Giordano was sentenced on one

count to four years imprisonment and a $10,000.00 fine (55

R.T. 10,973), and Emprise Corporation was sentenced on one

count to a fine of $10,000.00 (55 R.T. 10,920). Execution of

all of the sentences has been stayed pending determination of

the petitions for writ of certiorari.

The issue of whether there was a submissible case was pre-

sented to the Court of Appeals and ruled adversely to petition-

ers, although the evidence was not discussed as to these peti-

tioners. (See Section XVII of Opinions below, App. A-70 to

A-71.) These petitioners are not presenting a question of the

sufficiency of the evidence in this petition. Accordingly, the

evidence will not be stated hercin except to the extent that it

may be relevant to the questions presented by this petition. (For

a detailed statement of the facts, if desired, the Court's atten-

* As used herein, “R.T.” refers to the Reporter's Transcript by

volume and page. “Z.C.T.” refers to the larger Clerk’s Transcript

submitted in conjunction with the appeals of Zerilli et al. There

was also another Clerk’s Transcript in the Emprise Appeal.

De Dicom rea ae

—=

tion is directed to a separate volume of Appellants’ Statement

of Facts filed in the Court of Appeals. A copy thereof is being

filed with the Clerk of this Court.)

Petitioners believe that many errcrs took place during the

trial. Many of them were recognized as such by the Court of

Appeals in the opinions of April 30, 1974. Noi all such errors

are being presented in this petition, but because of the magni-

tude of this case and the number of major errors and significant

questions involved, the number of questions presented by this

F petition is larger than may be customary for petitions for writ

; of certiorari.

; A brief synopsis of the facts would, we believe, be useful to

this Court in getting an overview of the background of this case:

The events took place in 1966 and 1967. They started

when one Maurice Friedman began to organize a group to build

and operate a hotel and gambling casino in Nevada, to be known

: as the Frontier Hotel. Early in his activities when his initial

’ prospective investors were not producing as he expected, he

: was in contact with Polizzi and Zerilli as to their possible in-

vestment in the hotel and casino. It soon developed that Po-

lizzi and Zerilli might have difficulty in obtaining approval from

the gambling authorities in Nevada to become stockholders, ap-

parently because of Zerilli’s ownership interest and managerial

position with a pari-mutue! race track in Detroit and other

background investigations.

Se ee PT a

Subsequently petitioner Shapiro became interested in par-

ticipating in the hotel and casino and secured others from the

Detroit area as potential investors. Petitioner Bellanca, a li-

censed attorney in Detroit, performed numerous legal services

for the potential investors, and he and Shapiro, as well as other

investors, made numerous trips between Detroit and Las Vegas.

Some of these trips involved stopovers in Los Angeles for plane

MESO NTI VALS MSLE Ah ESM EO Aton, OR HON

EE TEIN SELES EPIL PLEO LOI IE A RE COTE re PN BE tine re ane fea SA

al as

connections—on this basis, the government alleged venue in

Los Angeles. During this period of time, Zerilli and Polizzi also

traveled to Las Vegas, generally for vacation reasons, but occa-

sionally they would discuss their own possibilities of investrent.

In addition, Polizzi, who was in the plumbing supply bus ness,

sold the plumbing fixtures to the hotel.

Petitioner Rooks was an investor in the enterprise and bor-

rowed money from Emprise Corporation. Giordano, a resident

of St. Louis, was apparently charged with being responsible for

an investment by a Mr. Sansone of St. Louis; the sufficiency of

the evidence as to Giordano is presented in his separate petition

for a writ of certiorari.

Ultimately the hotel was licensed and opened for business in

July, 1967. By that time, Friedman had withdrawn from the

project because of other legal problems which he had, including

a Travel Act violation involving cheating at card games, which

later gave rise to additional offenses, viz., theft of grand jury

transcripts and obstruction of justice for bribery of a witness.

See United States v. Roseili, 432 F.2d 879 (9th Cir. 1970), and

United States v. Friedman, 445 F. 2d 1076 (9th Cir. 1971), for

some indication of his nefarious conduct.

When the hotel opened, it had some financial problems, in-

cluding pressure from the landlord and his representative, Louis

Feil. Ultimately the investors were forced to sell the hotel to

the Howard Hughes interests in November, 1967. All of the

investors received their full investment upon the sale to the

Hughes organization.

The key government witness was Maurice Friedman who, at

the time of trial, was under sentence for his various federal con-

victions. Although there was strenous denial by the government

of any deals with Mr. Friedman, all of his sentences were re-

duced to the period of time served, with the approval of the

prosecutor in the instant case, and he was released from custody

icine ELIOT RIE

NS PA

tl is

= 12 —

within six weeks after the conclusion of this trial. An issue under

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

presented in Question V of this petition. Without Friedman's

testimony, ne case would have been made. Petitioners believe

that no case was made even with his testimony, and that there

was no violation of the Travel Act. (See Question I of petition

for writ of certiorari filed by Emprise Corporation. )

There was much disagreement during trial between govern-

ment counsel and defense counsel and between defense counsel

and the Court. The evidentiary mistakes of the Court, the at-

mosphere of the trial, and misconduct of the prosecutor sanc-

tioned by the Court all created an aroma of guilt which

permeated the trial and prevented petitioners from having a

fair trial. Many such errors were acknowledged by the Court of

Appeals.

After conviction, overruling of post-trial motions, and sen-

tencing, all of the defendants appealed to the United States

Court of Appeals for the Ninth Circuit. The cause was argued

as a consolidated matter on September 5, 1973, and three

opinions were filed by a panel of the Court (including one

District Judge) on April 30, 1974. (See Appendix A for the

opinions.) On July 25, 1974, petitions for rehearing were de-

nied by the Court of Appeals, and some modifications of the

original opinions were made. (See Appendix C.)

This petition for a writ of certiorari seeks to review the judg-

ment of the Court of Appeals affirming petitioners’ convictions.

—_

REASONS FOR GRANTING THE WRIT

“Mafia” Enemies List

In 1969 former Attorney General Mitchell included petition-

ers Zerilli and Polizzi on a list of alleged members of “organized

crime”. 115 Cong. Rec., part 17, pp. 23440-23441 (Aug. 12,

1969). That public denunciation of private citizens, never con-

victed of any crime, by the nation’s chief law enforcement of-

ficer,* coupled with its prejudicial sequelae in the grand jury,

trial, and appellate stages of this case, require a reversal of the

convictions because of the denial by the Department of Justice

of petitioners’ Fifth Amendment right to due process of law and

the de facto nullification of their Sixth Amendment right to a

jury trial. ,

The prosecution's harmful use of the Attorney General's

list in this case began during the grand jury’s investigation (App.

A-34).” On June 11, 1970, prosecutor Nissen asked Abe

Phillips in the grand jury: “Are you telling us you did not

know Tony Zerilli to be a Detroit member of the Mafia, Cosa

Nostra?” Even in the limited portion of the grand jury record

disclosed to petitioners after indictment, there were several ad-

ditional prosecutorial suggestions to the grand jury of fear on

the part of witnesses and threats of force—despite the fact that

no witness testified to threats or fear. The grand jury's delibera-

tions were tainted by an atmosphere of potential violence cre-

ated out of whole cloth by the Department of Justice. The re-

* See Wisconsin v. Constantineau, 400 U. S. 433 (1971).

** Without access to the full confidential Department of Justice

files (cf. United States v. Berrios, — F. 24 —, 15 Cr. L. 2508 (2nd

Cir. Aug. 8, 1974)), petitioners can only speculate on the role

played by this “enemies list” in the convening of the grand jury.

EERE Laat Ute tess dat +

sll Miles

sulting indictment should have been dismissed. Cf. Alexander

v. Louisiana, 405 U. S. 625 (1972), ana Peters ». Kap, 4W

U.S. 493 (1972).

The prejudicial consequences of the smear of petitioners

Zerilli and Polizzi did not end with the indictment of the seven

defendants in this case. Despite a pretrial recognition by the

Court of the prejudice of the “Mafia” reference and a direction

to the prosecutor to avoid any such reference (R. T. 2/14/72,

p. 29), the prosecutor, on cross-examination of Zerilli, attempted

to establish that Zerilli's reputation was bad, and, for that reason,

that Zerilli believed he was not licensable in Nevada (26 R. T.

5117-5119, 5197-5199). Later, the prosecutor was aided by

the Court in compelling Polizzi to admit that his licensing prob-

lem was rooted in a defamatory accusation which placed him on

a “Mafia list™ (28 R. T. 5450-5466).

_ The original opinion of the Court of Appeals treated the

prosecutorial attacks on the reputations of Zerilli and Polizzi

as error, albeit “harmless error” (App. A-36 to A-37). The

amended opinion (App. C-2 to C-3), following petitions for re-

hearing addressed, inter alia, to the misuse of the harmless-error

rule (see Question VI of this petition), sanctioned both episodes

as proper prosecuticn techniques, despite the rule of Michelson

v. United States, 335 U. §. 469 (1948); it approved the prosecu-

tion’s attack on the reputation of the accused, which had not

been put in issue by the accus, supposedly because a bad

reputation might be relevant to establish the defendant's motive

to commit the crime charged.* Michelson condemns any detour

* Motive is an issue in most criminal prosecutions. Is the Court

of Appeals suggesting that reputation evidence may be introduced

by the prosecution in any case? We are not concerned here with that

line of cases which permits the prosecution to prove the defendant’s

use of reputation as a weepon to induce fear, an element in the

crime of extortion. See. ¢.g., Carbo v. United States, 314 F. 2d 718,

739-742 (9th Cir. 1963), cert. den. 376 U.S. 953, reh. den. 377

U. S. 1010, rad United States v. Billingsley, 474 F. 2d 63, 65-66

(6th Cir. 1973).

ee ee ee

—

into the area of the accused's reputation unless it is initiated by

View weveens, wid vata 4". %. SILA.

“Courts that follow the common-law tradition almost

unanimously have come to disallow resort by the prosecu-

tion to any kind of evidence of a defendant's evil character

to establish a probability of his guilt. * * * [The law}

simp!y closes the whole matter of character, disposition and

reputation on the prosecution's case-in-chief. The state may

not show defendant's prior trouble with the law, specific

criminal acts, or ill name among his neighbors, even though

such facts might logically be persuasive that he is by pro-

pensity a probable perpetrator of the crime. The inquiry is

not rejected because character is irrelevant; on the con-

trary, it is said to weigh too much with the jury and to so

overpersuade them as to prejudge one with a bad general

record and deny him a fair opportunity to defend against

a particular charge. The overriding policy of excluding

such evidence, despite its admitted probative value, is the

practical experience that its disallowance tends to prevent

confusion of issues, unfair surprise and undue prejudice.”

See also United States v. Stephens, 492 F. 2d 1367 (6th Cir.

1974).*

* The error under Michelson was aggravated by the Court's sub-

sequent order aborting petitioner Polizzi’s attempt to rehabilitate

himself on redirect examination from the prosecutor's attack on his

reputation. When Polizzi’s counsel tried to elicit the fact that Po-

lizzi's accuser had slandered him under conditions of absolute privi-

e in the Congress—so that Polizzi could not obtain public redress

the false accusation—Polizzi's rehabilitation was foreclosed by the

prosecutor's sidebar objection based upon his false characterization

of the contents of unlawful FBI “bugging” logs. Compare App.

A-72 to A-73 with Exhibit 3 on Motion to Suppress. The Court of

Appeals opinion is misleading when it states that after the bench-

side conference about the logs, “the line of g” estioning about the

Mafia was dropped by Polizzi’s counsel . . .” (App. A-73). Con-

trary to the implication that Polizzi voluntarily abandoned this line

of attenipted rehabilitation, he was, in fact, prevented from pursuing

rehabilitation on the “Mafia” issue when the judge told counsel at

sidebar: “I don’t want this gone into any further.” (29 R. T. 5582).

peel

—

The reputation-“Mafia™ attack was mounted again in the

prosecutor's summation to the jury. He not only talked of “good

old fashioned Chicago type extortion” (39 R. T. 7983), but he

again attached the “Mafia” label to petitioner Polizzi and also.

contrary to the record, to petitioner Zerilli (39 R. T. 8004). He

later retracted the statement as to Zerilli, but reemphasized Po-

lizzi’s alleged “Mafia” association (43 R. T. 8682-8683) and

ended with the sinister comment as to all defendants: “And these

businessmen have learned it is better to use a corporate resolu-

tion than a pistol.” (43 R. T. 8683). The revised opinion of the

Court of Appeals (App. C-2) was in error in stating that “there

was no express reference to the Mafia in the prosecutor's state-

ment, nor could such a reference be reasonably implied.” The

repeated government misuse of the organized crime label and

the “Mafia list” required a new trial under Berger v. United

States, 295 U. S. 78 (1935).

The prejudicial effect of the “Mafia” eremies list appeared

outside the judicial record as well. In substantial newspaper

and other publicity of the trial, Zerilli and Polizzi were repeat-

edly described as “alleged members of organized crime”, “al-

leged members of the Mafia” and /or “Cosa Nostra” cr “reputed

chiets” thereof. The jury was not sequestered and was not pro-

hibited from reading the newspapers during the trial; the trial

judge contemplated in his cautions to the jury that they might

read newspaper headlines about the case (App. A-23, fn. 41;

R. T. 2/14/72, p. J87-88; 7 R. T. 1331). At one point in the

trial a headline read “TRANSCRIPT SHOWS U. S. BUGGED

VEGAS DEFENDANTS’ MAFIA TALKS” (9 Z.C.T. 2539),

a result of the press improperly reporting a benchside confer-

ence in which the prosecutor falsely characterized the contents

of the so-called Polizzi “bugging” log to abort Polizzi’s attempt

to rehabilitate himself after the prosecutor's attack upon his

reputation (29 R. T. 5576-5582). The news reporter got the

story from the prosecutor's copy of the transcript! (30 R.T.

5786-5789, 5798).

| eer Pe

a aa

—

The former Attorney General created and published, without

notice to petitioners Zerilli and Polizzi or opportunity to be

heard, a special kind of “enemies list”—not a list of political

enemies to be used for partisan purposes, about which we have

been educated in the last year, but a list of targeted individuals

intended to be treated as enemies of the state. That list carried

with it a unique, constitutionally invalid sanction to use in the

judicial record the label “Mafia”, “Cosa Nostra”, and similar

sinister, pejorative terms implying organized criminal behavior

—from the grand jury stages through the Court of Appeals—

and in the press reports of the trial. That list fostered an in-

judicious atmosphere in this prosecution, giving putative legit-

imacy to a trial of the reputations of Zerilli and Polizzi in plain

violation of the Michelson rule.* All defendants were preju-

diced by the attack on reputation. In this case, from August 12,

1969, through the denial of rehearing in the Court of Appeals

on July 25, 1974, all petitioners were essentially deprived of the

presumption of innocence by the government's creation and use

of a list of public enemies.

This case reflects a pattern of overwhelming injustice against

petitioners. It had its birth in a flagrantly unconstitutional com-

munication by the Attorney General of the United States to a

Senate Committee and published in the Congressional Record.

The prejudice engendered by the Attorney General’s unconstitu-

tional utterance generated a grand jury which in turn was ir-

retrievably poisoned against two target defendants—Zerilli and

Polizzi—and inevitably against their alleged associates.

From that grand jury came an amorphous charge as elusive

as mercury. In the trying of the issues of this case, if there

can be said to have been issues, the trial jury was oversated

* See also the seemingly ad hominem application of the Travel

Act (18 U.S.C. § 1952) and Nevada Revised Statutes, Section

+o aemaae to petitioners by the Court of Appeals (App. A-7 to

-8).

Ns aoc ts PAT gs

oy il.

wd det

AActaeah a atmo encase pbc ide bel tea PR ai LI kash aE sD Biadalirstike

Ss pee ee at)

PEACOAT LN PL alin at Blewett Tete be

— 18 —

not only with confusing matter but with highly prejudicial mat-

ter. No jury could have disgorged itself of the poison it was

fed. The current!y stinging and cruel epithet “Mafia” was

branded by a hot iron upon all petitioners, however innocent

they might be of such disgrace.

Thus, men of Italo-American heritage and their co-defend-

ants present themselves to this Court with the same hope and

urgency as did their forebears in unpopular causes, leaders of the

Afro-American community and leaders of the Organizations of

Laboring Men.

Because of conflicts in the opinion of the Court of Appeals

with decisions of this Court, because of the effective denial to

petitioners of due process of law and the right to a jury trial,

and because of the unconstitutional application of the un-Ameri-

can concepts of character assassination and guilt by suspicion

and association, we respectfully suggest that certiorari should

be granted as to this Questivn.

Prejudicial Publicity

Petitioners argued in the Court of Appeals that the volume

of the prejudicial publicity, with evidence that it reached

the jury, deprived them of a fair trial. The Court of Appeals

devoted the largest single portion of its opinions to this issue.

See Section IV, App. A-19 to A-33. The Court characterized

the problem as “not insignificant” (App. A-33).

To summarize, there was newspaper publicity in both the

major Los Angeles papers during almost every one of the

48 days of trial. Petitioners moved several times for mistrial

on account of prejudicial publicity. On three occasions, the

judge interrogated the jury in the absence of defense counsel

Tae Oe

EIN eh awe Bons OC val at a

deta §D ann

and petitioners—twice during trial (7 R.T. 1326-1349 and 31

R.T. 6009-6024) and once immediately after the verdict (46

R.T. 8991-9028). During the trial, petitioners were not even

informed of the judge’s intention to question the jurors until

after his inquiry had been completed. After the verdict, petition-

ers requested the opportunity to be present during the voir dire

of the jury. The judge refused, stating: “I have no intention of

allowing that to happen. I will not have any counsel in but I

will have the reporter present.” (46 R.T. 8988).

A. Six weeks after conviction, juror Palmer voluntarily ap-

peared at the hearing on motions for new trial. He volunteered

a statement to one of petitioner's counsel, indicating that the

jury had been reading the newspapers throughout the course of

the trial and that the publicity had had a “devastating” effect

on the defendants. Attorney Weinstein immediately made an

offer of proof to the trial Court as to what he had been told

and requested that Palmer be sworn and questioned. The Cour

refused to allow Palmer to testify and suggested that petitioners

attempt to secure his affidavit (48 R.T. 9088-9090). Palmer re-

fused to give an affidavit, but a licensed private investigator who

interviewed him did make an affidavit (see App. D hereto) in

which the investigator testifies that Palmer confirmed that Mr.

Weinstein had accurately reported what Palmer had told him.

Moreover, Palmer told the investigator that thereafter the prose-

cution had suggested to Palmer that he had no business being

there and that he should leave the court room, which Palmer

did, “for (his) own good.”

A review of the three voir dire interrogations conducted by

the trial judge substantiates Palmer’s post-verdict revelation.

Jurors admitted that they had seen articles. On one occasion

an especially prejudicial article which had motivated the judge

sua sponte to conduct a voir dire was then in the jury room.

The interrogations of the jury by the trial judge were incomplete.

See, for example, 7 R.T. 1325-1326, where the first juror ques-

tO Oe Ona os aN

Tee DS Atm

von

tioned revealed that the newspaper was in the jury room, but

the Court failed to ask any other juror of the incident or to

inquire who had brought it there. Palmer's post-verdict dis-

closures and the consistency of his story as shown by the investi-

gator’s affidavit indicate what a timely and penetrating inter-

rogation could have produced.

4 The trial Court's failure to conduct proper investigations,

; sanctioned by the Court of Appeals, conflicts with numerous

decisions of this Court in the area of prejudicial publicity. See

Sheppard v. Maxwell, 384 U. S. 333 (1966); Estes v. Texas,

381 U. S. 532, 543 (1965); Rideau v. Louisiana, 373 U. S.

723 (1963); Janko v. United States, 366 U. S. 716 (1961)

(see esp. Solicitor General's memorandum confessing error),

Irvin v. Dowd, 366 U. S. 717 (1961); Chapman v. California,

386 U. S. 18, 43-44 (1967), and Marshall v. United States,

360 U. S. 310 (1959). There is also conflict with numerous

decisions of Courts of Appeals—United States v. Colabella,

448 F. 2d 1299 (2nd Cir. 1971); United States v. Rattenni,

480 F. 2d 195 (2nd Cir. 1973); United States v. Kum Seng

Seo, 300 F. 2d 623 (3rd Cir. 1962); Marson v. United States,

203 F. 2d 904, 911 (6th Cir? 1953); Margoles v. United States,

407 F. 2d 727, 731-734 (7th Cir. 1969); United States v.

Thomas, 463 F. 2d 1061, 1065 (7th Cir. 1972), and Mares

v. United States, 383 F. 2d 805, 809 (10th Cir. 1967).

iy Rata Rt Ia A He SOE:

The trial Court's refusal to allow Palmer to testify and the

affirmance by the Court of Appeals are in direct conflict with

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

We believe this case cannot be distinguished. The mandate of

4 Thomas is unequivocal:

hb yd hints apps nts Ai ASN Dees nN aT NA MN: SG

“We find that there was a sufficient showing of juror

exposure to prejudicial evidence to have prompted further

investigation on the part of the trial judge. As in United

States v. Palermo, 410 F. 2d 468 (1969), we find that this

failure necessitates a new trial. Remand for the purposes

65 OEE TD BBE AO el Cas, .

We RIBBLE ETON ELELALELIV EC LESAEI LAL ALES OEE IES GAP ABE RMELR. Oe Ys fh DAO FBT AA NG ke

OSTA TAO ARE Mater SO

—— 5S REET OE A

of investigating the jury would be fruitless at this point,

over two years after the close of the original proceeding.

Moreover, we cannot agree that an error of this gravity.

which calls into question the integrity of the jury’s de-

liberations, can be characterized as ‘harmless, under Chap-

man v. California, 386 U.S. 18, 82 S. Ct. 824, 17 L.Ed.

2d 705 (1967).” (463 F. 2d at 1065).

B. Not only was the trial Court’s investigation deficient in

the light of these cases, but the Court’s procedure which barred

petitioners and their counsel from any voir dire interrogation

of the jurors deprived them of their right to be present during

all stages of the proceedings, contrary to the provisions of the

Fifth and Sixth Amendments to the Constitution of the United

States. See also Rule 43, F. R. Cr. P., and Lewis v. United

States, 146 U. S. 370 (1892).

In United States v. Palladino, 475 F. 2d 65, 75 (Ast Cir.

1973), the First Circuit ruled that an in camera examination

of a juror who had indicated his discomfort with the subject

matter of the case should have been made in the presence of

defense counsel. In United States v. Glick, 463 F. 2d 491.

493 (2nd Cir. 1972), the Second Circuit held that “private

communications between the judge and jury,” without notice to

defendant or counsel, or affording them the opportunity to be

present, “violated the unequivocable mandate of Rule 43. which

requires the defendant to be present ‘at every stage of the trial.’ ”

In United States v. McCoy, 429 F. 2d 739. 742 (D.C. Cir.

1970), the District of Columbia Circuit held that a post-ver-

dict interview with a juror conducted outside the presence of

the defendants and his counsel was improper and constitution-

ally invalid.

The Sixth Circuit invalidated the taking of the jury's verdict

in the absence of counsel for the defendant in United States v.

Smith, 411 F. 2d 733, 736-737 (6th Cir. 1969):

ak ntan

— LENE DED LIE SL AMG EE Yad OIE UENO RED MERC RR Te tae

—

“From a reading of the record it is impossible to deter-

mine the tone of voice of the jurors when they individuaily

announced their decision, the hesitancy of their responses,

and other possibilities that could have taken place and

had significant meaning. Had counsel been present and

something of this nature occurred, the defendant would

have had the benefit of his legal advice.”

The principal question probed by the trial Court here was

whether the jury had succumbed to the effect of repeated

media charges linking petitioners with “organized crime”, the

“Mafia”, and “La Cosa Nostra”. Petitioners suggest that ques-

tioning of the jurors individually in the sanctuary of the judge's

chambers tended to validate fears generated by the media

contamination. The judge admonished each of the jurors not to be

“alarmed”. The in camera procedure seems likely to exacerbate

juror suspicion and fear of petitioners, and, at the same time,

to motivate the jurors to deny any prejudice which they har-

bored in order to sustain their verdicts and be done with the

experience. The extent of prejudice accruing to petitioners from

the absence of their counsel during this in camera proceeding

is not a matter for speculation and cannot be weighed against

the right to be present and have the assistance of counsel.

As this Court wrote in Glasser v. United States, 315 US.

60, 76 (1942):

“The right to have the assistance of counsel is too fun-

damental and absolute to allow courts to indulge in nice

calculations as to the amount of prejudice arising from its

denial.”

The Sixth Amendment right to counsel means a right to be

assisted by counsel when professional assistance is likely to be

effective in protecting important rights of the accused. Juror

Palmer's June 12, 1972, admission, which seriously impeached

the jury’s verdicts (See App. A-29 to A-30, fn. 49, and App.

oe eee

SE ee I ee tee Ee OE LM IE ION benny

con Nas

D). fleshes out Palmer's guarded statements in the judge's

chambers immediately after the verdicts—provocative state-

ments suggesting jury misconduct which were not pursued by

the judge (See App. A-30 to A-32, fn. 50). But Palmer's be-

lated confession reveals how after-the-fact inquiry by counsel

is an ineffective substitute for on-the-spot confrontation and

assistance from counsel in the juror inquiry. With the passage

of time, the opportunity to discover the essential truth erodes:

the rights of the accused suffer.

Is there serious doubt that if Palmer had been properly ques-

tioned on April 26. 1972, by counsel, or by the trial judge

“th the assistance of counsel, the prejudicial effect on the

+ y Of the media publicity would have been directly estab-

lished by juror admissions—rather than only tantalizingly and

guardedly revealed through Palmer's qualms of conscience?

It is an interesting question for speculation why the trial

judge would think that once the verdicts were returned he could

do a more effective job of ferreting out the truth as to the

effect upon the jury of extrinsic factors if he was unaided by

the presence and direct participation of counsel. The jury's

work was done. Nothing said to them could interfere with the

subsequent performance of their judicial duties. They had no

further obligation other than to disclose the fact whether they

had been exposed to and discussed the contents of substantial

prejudicial publicity. Why should the Court have concluded

that the presence and participation of counsel then would not

aid the truth-seeking goal of his inquiry?

It is precisely because we cannot second-guess. at the ex-

pense of the fundamental and substantial rights at issue, what

benefit counsel might have been to petitioners if they had been

present, that the procedures followed by the trial Court in

secretly interrogating the jury should be reviewed.

Because of the prejudicial publicity, because of the inade-

quacy of the interrogations of the jurors as to such publicity,

Remon tenconcnes anos PI Tete wane wa

—

because of the exclusion of counsel and petitioners from the

interrogation procedure, because of conflicts in the decision

of the Court of Appeals with various decisions of this Court

and other Courts of Appeals, and because of the deprivation

of fundamental constitutional rights guaranteed in the admin-

istration of criminal justice, we respectfully suggest that cer-

tiorari should be granted as to this Question.

Ill

Mlegal Electronic Surveillance

“

Prior to trial, the prosecution acknowledged that there had

been illegal electronic surveillance of Zerilli, Polizzi and Gior-

dano. Transcripts were shown (but not turned over) under very

restricted circumstances only to each individual defendant and

his counsel—with directions not to discuss the contents with

any other defendant or counsel.

A six day post-conviction hearing, ostensibly pursuant to

Alderman v. United States, 394 U.S. 165 (1969), resulted in the

trial judge’s finding that the case was untainted by any informa-

tion derived by the government from the FBI trespassory micro-

phone surveillance (55 R.T. 10,916-18). The government de-

nied the existence of any electronic surveillance of petitioners

Shapiro, Bellanca, Rooks, and Emprise Corporation (12 Z.C.T.

3241-72). The substantial FBI “bugging” logs which were

turned over to_petitioners after the trial* contained considerable

* The FBI logs purporting to summarize ificrcepted conversations

of petitioner Zeritii (Exh. 2 on Mot. to Suppr.) consist of 397 single-

spaced typewritten pages covering 23 days during a period of micro-

phone installation, spanning 553 days from February, 1963, until

July, 1964. The conversations attributed to Polizzi (Exh. 3 on Mot.

to Suppr.) all occurred on one day in January, 1964, and form

a part of the Zerilli logs (Exh. 2 on Mot. to Suppr., at pp. 205-236).

The Zerilli logs purport to emanate from a cgpeaery | casino in Las

Vegas (Exh. 2 on Mot. to Suppr., at pp. 1-10) and from a business

cans ON eas

information relevant to the subject matter and theory of this

prosecution. **

The logs were read by the prosecution team before the trial

began. During the trial, the prosecutor referred to the Polizzi

logs, threatened to reveal them to the jury, and, by falsely

characterizing their contents to the trial judge (App. A-72 to

A-74; 29 R.T. 5576-5582), prevented Polizzi from attempting

to rehabilitate himself from the prosecutor's attack on his repu-

tation. (See Question I presented by this petition.) Information

was transmitted from the Detroit microphone source to the

FBI's Los Angeles field office for use in planring physical sur-

veillance of a visit to Palm Springs by Zerilli and Polizzi (see

Exh. 2 on Mot. to Suppr., at p. 322; Exh. L on Mot. to Suppr..

3/7/64 airtel; 6 R.T. 1206-1208; Exh. SVV; Exh. M on Mot. to

Suppr.: 53 R.T. 10,670-10,673). At the trial, that meeting

became the subject of an offer of proof by the prosecutor.

Despite this extensive and relevant “bugging” material which

was in the government's possession and used at the trial, the

trial judge did not compel the government to support its re-

peated denials of taint with admissible testimony from the gov-

office in Detroit (Exh. 2 on Mot. to Suppr., at pp. 11-397). The

Giordano logs (Exh. 4+ on Mot. to Sunpr.) consist of 64 pages of

handwritten and typewritten material attributed to conversations in

pg on two days in 1963, one day in 1964, and one day in

“* The following passages in the logs were cited to the trial

Court and the Court of Appeals as the true source for the govern-

ment’s focus on petitioners and for the theory of this prosecution

(neither Court made a specific reference to or finding on the rele-

vance of the material): Exh. 2 on Mot. to Suppr., at pp. 1-10, 64-65.

142, 175-176, 179, 203, 215. The relevance of the Giordano logs

to this prosecution was yee in Giordano’s memorandum to the

trial judge (13 Z.C.T. 3595-3598).

In its original opinion, the Court of Appeals chided petitioners

with this final paragraph: “We find it interesting that nowhere in

their briefs do defense counsel, who had access to the logs, assert

that anything in them was of such a character as to provide any leads

a eee

ernment employees who knew the facts on these relevant ques-

tions: (i) How many of the seven petitioners were subjected to

electronic surveillance? (ii) At what locations and for what

time periods was surveillance, if any, conducted as to each de-

fendant? (iii) The identity of each official who directed or par-

ticipated in the “bugging” of each defendant? (iv) The manner,

extent, and use of the information derived from the illegal oper-

ation? No admissible evidence was received on any of these

basic questions, except to the extent that one FBI agent who

participated in some of the surveillance of petitioner Giordano

(Robert Bender from St. Louis) was made available for limited

testimony but without producing any of his field office’s files on

the question (53 R.T. 10,488-10,658 ).

Sixty FBI and Department of Justice officials admittedly had

access to the logs in this case (Exh. 6 on Mot. to Suppr.), of

whom ten, based in Washington, held supervisory assignments

in the FBI and Department of Justice from which they were

positioned to feed leads to investigators and prosecutors. The

recipients thus could be insulated from knowledge of the true

source of tainted information (12 Z.C.T. 3296-3313; 47 R.T.

9046-9079). Of course, covert leads could have emanated. from

any FBI office possessing the tainted information.*

or information pointing to or material to the present prosecution”

(App. A-78). After petitioners reminded the Court of Appeals

ee os oe ee Seon speicy ane &

our brief (Pet. for Reh. of Polizzi et al., at p. 19, fn. 16), the

Court deleted that passage and, in its amended opinion, did not

speak to the question whether the cited Se oo a

have provided leads or information relevant to the prosecution.

Court of Appeals was satisfied with the — team’s unsub-

stantiated disclaimers of taint (App. A-77).

_ * The FBI and Department of Justice officials on the log access

a DE Ae 20 eves

eR Ma leak TEAC sale Ne aies ca

— oo

Henry Peterson was on the access list. For part of the time

embraced by the bugging of petitioners and the trial, Peterson

was the principal lawyer in the organized crime and racketeer-

ing section. For the balance, he was the assistant attorney gen-

eral in charge of the entire criminal division of the Depart-

ment of Justice. ‘At all times when he had access to the logs,

he was in a position to influence investigative and prosecutive

decisions in this case. It was admitted that before the investi-

gation began in Los Angeles, Peterson had urged the United

States Attorney that information against Zerilli and Polizzi

should be “vigorously pursued by the FBI and U. S. Attorney's

Office” (Exh. 16 on Mot. to Suppr., FBI serial 92-3975-1, dated

3/2/70). Despite the government's burden to prove no taint

(App. A-72), the Court would not require the prosecution to

produce Mr. Peterson for testimony. When petitioners offered

to bring him from Washington, he proved to be unavailable

within the time permitted by the Court (54 R.T. 10,754-10,-

759, 10,881-10,882).

Two other crucial government witnesses, both FBI agents,

were not produced for testimony about the true source of their

intelligence reports, attributed to “reliable sources,” covering

petitioners’ alleged association in the Frontier Hotel with the

government's principal witness Friedman (49 R.T. 9521-9544,

50 R.T. 9563, 9566). When petitioners offered to produce

these agents from the East, at petitioners’ expense, the Cuurt

made it clear that it would not countenance inquiry into the

‘identity of the “reliable sources” (52 R.T. 10,474-10,476).

Despite petitioners’ urgent requests, none of the FBI agents

who monitored the output of the illegal microphones in this

case was produced to establish exactly what was overheard.

what was recorded, and what was done with the fruits of their

illegal monitoring of petitioners’ conversations. The Court

would not even require disclosure of the names and addresses

of the FBI monitors (52 R.T. 10,476).

— 28 —

The prosecutor repeatedly represented to the Court in un-

sworn and incompetent statements that he had turned over to

the Court and counsel all fruits of the interceptions of petition-

ers’ conversation. But again and again, tainted FBI airtels

and reports surfaced as the Alderman hearing progressed, evi-

dencing extensive dissemination of the fruits of the electronic

monitoring to FBI divisions in many parts of the nation. See

and compare some of the late-to-surface FBI airtels from the

“bugs” (Exhs. 8, 9, 16 (p. 4), and L on Mot. to Suppr.) with

the prosecutor’s assurances that such fruits of the “bugs” did not

exist (12 Z.C.T. 3249-3251, 3256-3262, 3270; 47 R.T. 9071-

9073). At the time of the prosecutor’s negative representations,

some under oath, he was in possession of documentary evidence

from Washington proving that the non-existent fruits of the

“bugs” were in “he possession of the Department of Justice

(Exh. 1 on Mot. to Suppr., affidavit of special agent McCarthy

(App. E hereto); Exh. 10 on Mot. to Suppr.; 52 R.T. 10,397-

10,406; 50 R.T. 9674-9688).

On such a record, taint may not be negated solely by testi-

mony from the prosecution team that they are unaware that

any leads ultimately sprang from an electronic source. Yet that

is the procedure which has been approved by the Ninth Circuit

(App. A-76 to A-78). Before the Alderman hearing began,

the trial judge recognized that taint could not be negated solely

by proof that the prosecution team believed they had a “clean”

case, so long as there existed a real possibility that tainted leads

were transmitted to the prosecution team by officials who had

access to the fruits of the “bugs” (47 R.T. 9073). But the

prosecution was never required to, and did not, produce com-

petent evidence that tainted leads were not injected into the

investigation of the case in a manner calculated to disguise

_ their true source. In fact, FBI reports carried an underscored

warning that information from electronic sources, “if utilized,

should be carefully paraphrased in order to further protect the

without Bureau authority.”

TT.

ENS DiaR eS LIA wap SO NA RAY (OAD ee ee ot

a 29 a

Two weeks before the A/derman hearing began, the Court

properly ordered the government to produce at the hearing all

officials who had access to the fruits of the “bugs” (12 Z.C.T.

3294}. The next day the Court rescinded the order (12 Z.C.T.

3321). The Court of Appeals noted that petitioners produced

none of the 60 officials on the access list (App. A-78), even

ihough the Court recognized that the burden of proof of no

taint was on the government (App. A-72). It would have been

economically impractical for petitioners to bear that burden

where forty of the percipient witnesses were employed by the

government east of the Rocky Mountains, and the hearing was

in Los Angeles (Exh. 6 on Mot. to Suppr.).

Another panel of the Ninth Circuit has recognized the im-

portance of the government having to make its Alderman show-

ing in a manner which at least insures that the discipline of the

perjury statute will apply to the government's affiant. United

States v. Alter, 482 F. 2d 1016, 1026-1027 (9th Cir. 1973).

The only affidavit in this case which colorably lays a founda-

tion for the parameters of electronic surveillance and the dis-

semination of its fruits, an affidavit of special agent McCarthy

(see App. E hereto), does not begin to satisfy the evidentiary

requirements for proof either of the existence or the non-exist-

ence of a government record (see Rules 44, F. R. Civ. P., and

27, F. R. Cr. P.). Special agent McCarthy was curiously vague

in his affidavit on a number of essential facts. What records

in the FBI were available to him in order to perform the in-

quiry? What is the identity of “all logs and airtels which were

previously furnished to the United States Department of Jus-

tice’? When were they furnished? To which of the defendants

did they relate, if any? When were the “original tape recordings

relating to the transcripts submitted in this case . . . routinely

destroyed”, and by whom?

Other documents were submitted about the same time as the

McCarthy affidavit. One was a letter dated July 20, 1971 from

the chief of the organized crime and racketeering section (Wil-

liam S. Lynch) to the United States Attorney in Los Angeles

listing the microphone sources that were known to intercept

the voices of three of the petitioners. It is silent on how the

fruits of the disclosed monitoring were disseminated and used.

Another was an unsworn transmittal memorandum without

signature purporting to emanate from the FBI Director on

August 2, 1971, addressed to the Special Agent-in-Charge of

the FBI’s Los Angeles office. That memorandum refers to an

earlier FBI letter to the Department of Justice dated May 28,

1971 (Exh. 10 on Mot. to Suppr.). None of these letters is under

oath. The prosecutor's affidavit of May 19, 1972, appears to

be a recapitulation of these incompetent and unsworn docu-

ments (12 Z.C.T. 3241-3272).*

The end result is that there are no competent documents, sub-

mitted under the penalties of perjury, and no oral testimony

whatsoever to establish whether and to what extent any of the

seven defendants was subjected to illegal electronic surveillance.

The essential defect in the government’s Alderman representa-

tion is that it was apparently intentionally structured in the

form of unsworn, incompetent statements on the crucial facts

which the Court must know in order to make a finding whether

* The prosecutor’s memorandum and affidavit of May 19, 1972,

falsely attributed the “sole source of this entire prosecution, the

source of (the government’s) investigation, the source of all its evi-

dence, the source of its theories, its preparation for trial and presenta-

tion at trial. . . .” to an interview with Maurice Friedman in the

United States gees office in Los yoy on February 18,

1970 (12 Z.C.T. 3254-3255; emphasis in the original). But peti-

tioners proved conclusively that United States Attorney’s office

had the central thesis of this prosecution at least a year earlier when

Friedman was sentenced (12 Z.C.T. 3307-3309, 3312-3313; Exh.

5 on Mot. to Suppr.). The prosecutor’s deception on the true

source of the case urgently required a penetrating evidentiary inquiry

into the entire route by which the electronic — was dissem-

inated from the three known “bugs” by the F.B.1.

Furthermore, Friedman testified at the trial that he had never met

Giordano (6 R.T. 1177). The source as to Giordano must have

been the Giordano logs, as explained in the Giordano memorandum

to the trial judge (13 Z.C.T. 3595-3598).

—. ao

— —_- -

den ia

the case was tainted by impermissible evidence or leads to evi-

dence as to each or any of the alleged conspirators.

Courts of Appeals are in some disagreement on the require-

ments for a negative finding on the existence of electronic sur-

veillance. The Seventh Circuit seems to require a negative

representation in the form of an affidavit by the United States

Attorney or the head of a federal agency. Korman v. United

States, 486 F. 2d 926, 931 fn. 10 and accompanying text (7th

Cir. 1973). The Third Circuit will accept an unsworn letter from

an assistant United States attorney. United States v. D'Andrea,

495 F. 2d 1171, 1173 (3rd Cir. 1974). The Ninth Circuit seems

to be in conflict. In the instant seven-defendant conspiracy

prosecution, where extensive unlawful surveillance was con-

fessed as to three defendants, the Court of Appeals has accepted

the assistant United States attorney's negative affidavit based

upon inconclusive, vague and incompetent documents. See also

United States v. Fitch, 472 F. 2d 548, 549 (9th Cir. 1973).

On the other hand, in a grand jury investigation, another panel

in United States v. Alter, 482 F. 2d 1016, 1926-1027 (9th

Cir. 1973), rejects a negative affidavit of a United States at-

torney unless it clearly subjects him to the penalties of per-

jury.

The Second Circuit has held that where there is conclusive

evidence of improper electronic surveillance, e.g., where, as

here, it has been confessed by the prosecution, the govern-

ment’s evidentiary burden should be higher. Chief Judge Kauf-

man wrote in United States v. Huss, 482 F. 2d 38, 50-51 (2nd

Cir. 1973):

“The teaching of the Supreme Court in Alderman v.

United States, supra, cannot be avoided. We are instructed

that when illegal electronic surveillance has come to light

it is the adversary system, not representations by the gov-

ernment and not in camera decisions by the court, which

—_. eo

must be relied upon to determine whether overheard mat-

ter is ‘relevant’ to the taint hearing. Here, the logs repre-

sent only a monitor's summary of the intercepted conver-

sation. In a case such as this, however, with doubt cast

upon the government's proof by their main witness’s own

admission of knowledge of the wiretap, we cannot ignore

the significance to the adversary character of the taint

hearing of the destroyed records.” (footnotes omitted ).

The Second Circuit pointed out that where the record was in

conflict on how the fruits of the taps were disseminated within

the FBI, competent courtroom evidence would not be obviated

by argument and prosecutor representation (482 F. 2d at 50, fn.

9):

“The record is even silent as to the name of the

government agent who supervised that wiretap. The govern-

ment did not call any of that monitors to testify, although

it represented at oral argument that the tapes were heard

only by the monitors. We cannot accept these representa-

tions in lieu of evidence.” (Italics supplied. )

None of the monitors was called in this case because the trial

Court did not “see the materiality of” the potential testimony

of the monitors (52 R.T. 10,476). The Ninth Circuit's rejection

of the monitors’ testimony (App. A-78) is in conflict with the

procedure followed in numerous decisions of other Courts:

United States v. Stassi, 431 F. 2d 353, 354 fn. 6, 355 fn. 9

(Sth Cir. 1970), Baker v. United States, 430 F. 2d 499, 500

fn. 4, 501-502 fn. 7 (D.C. Cir. 1970), cert. den. 400 US.

965 (1970), United States v. Clay, 430 F. 2d 165, 168-169

fn. 6 (Sth Cir. 1970), rev. on other grounds 403 U.S. 698

(1971); United States v. Ivanov, 342 F. Supp. 928, 930-935

(D.N.J. 1972). Washington-based FBI supervisors have also

been required to testify in order to reveal the handling of

monitored information. United States v. Alderisio, 424 F. 2d

20, 24 (10th Cir. 1970), United States v. Giordano, 440 F. 2d

—

449, 451 (6th Cir. 1971), affd after remand, 450 F. 2d 43

(6th Cir. 1972).

The failure to require FBI monitors’ and supervisors’ testimony

was particularly prejudicial in the instant case because of the

unique facts here. The prosecutor possessed and used the logs

during trial (29 R.T. 5576-5582). A large quantity of files

in the control of James Ritchie, a Detroit-based Strike Force

attorney who was on the log access list, were borrowed by the

Los Angeles prosecution team and returned before the indict-

ment. No competent evidence was produced as to the contents

of those files or their sources. Ritchie actually questioned wit-

nesses before the grand jury in this case, and although he was

on the access list for the electronic information, the Court did

not require his testimony at the hearing (Exh. 6 on Mot. to

Suppr.; 52 R.T. 10,322-10,323; 49 R.T. 9346-9351, 9372-

9375; 50 R.T. 9641-9642, 9769-9770, 9783-9786; 52 R.T.

10,272-10,277, 10,291-10,302; 53 R.T. 10,693-10,699).

Despite a six-day Alderman hearing with substantial elec-

tronic material found in the FBI’s Detroit, St. Louis, Las Vegas,

and Los Angeles field office files, the Courts below declined to

require the government to show by evidence (rather than by

representation) that the FBI “poison” was not filtered through

as blind leads to the prosecution team. Petitioners were entitled

to a full hearing on this issue, in which the prosecution should

have been required to make full disclosure and produce all

witnesses fo: examination before the Court could have deter-

mined whether the government had sustained its burden of

proving the non-existence of taint from the illegal conduct.

The federal courts have had sufficient experience in taint

hearings in the five years since Alderman to reveal several areas

in which procedural guidance by this Court is required. This

case presents a fair spectrum of those Alderman conflicts which

have emerged in the several Circuits that have dealt with the

Pir wenn

difficult balancing of interests peculiar to governmental elec-

tronic surveillance.

Because of the conflicts which have developed and the need

for clarification and guidance by this Court, we respectfully

suggest that certiorari should be granted as to this Question.

Jencks Act—Lands Transcript

A. Prior to trial, certain guidelines had been established by

the District Court for production of material under the Jencks

Act (18 U.S.C. § 3500). With reference to the government's

principal witness, Maurice Friedman, the final order was to

deliver the material when the jury was sworn. The prosecutor

delivered some material but not what came to be known as

the Lands transcript.

During the third day of cross-examination of Friedman,

counsel for one of the petitioners, having been assured by the

prosecutor's conduct that all prior statements of the witness

had been furnished, asked him if it was not true that it was

not until after he had been convicted and sentenced for per-

jury and attempted bribery of a witness that he first told some-

one “anything about a hidden interest” (8 R.T. 1573). Almost

as if this was the opening that the prosecutor and the witness

were waiting for, Friedman answered, “Long, long before. The

time was during the Friars Club investigation in 1967.” (8

R.T. 1574). A motion under the Jencks Act was renewed (8

R.T. 1576-1591), and the prosecutor produced a tape record-

ing and transcript of Friedman’s conversation on October 26,

1967 with Dr. Victor Lands (Exh. SUU for Ident.)*

* Friedman and Dr. Lands were co-conspirators and joint in-

dictees in the Friars Club case. The recording was made by Dr.

Lands, ss without the knowledge of Friedman, and in the

course of their discussion about the Friars Club matter, Friedman

referred to his Frontier Hotel activities.

LLL DSB AL DOA eS nt Lm 8 Ne ioe nw

nl toe

The prosecutor desperately sought to justify his blatant vio-

lation of the Jencks Act (8 R.T. 1577-1578), but the Court or-

dered the transcript produced. The treatment by the Court of

Appeals of this violation of the Jencks Act (see Section VIII of

opinions below, App. A-44 to A-45) is first to suggest that it

may not have been a violation, but then to hold that the un-

timely production “was not prejudicial” (App. A-44),* and that

the use and abuse of it thereafter was error, but not “so preju-

dicial as to require reversal” (App. A-47).

The failure to produce the Lands transcript was a clear vio-

lation of Section 3500, which defines “statement” in sub-section

(e) (2):

“A stenographic, mechanical, electrical, or other record-

ing, or a transcription thereof, which is a substantially ver-

batim recital of an oral statement made by said witness

and recorded contemporaneously with the making of such

oral statement.”

The Court of Appeals states (App. A-44) that disclosures are

required only for impeachment purposes, but there is no such

limitation in the Jencks Act. By Section 3500 (b), the United

States must “produce any statement (as hereinafter defined) of

the witness in the possession of the United States which relates to

the subject matter as to which the witness has testified.” No-

where does it indicate that it may only be used for impeachment

purposes based upon the government's subsequent use of the

Lands transcript as a purported prior consistent statement, it

was certainly a statement related to the subject matter as to

which Friedman had testified.

The prosecutor having failed to comply with the mandate of

the Jencks Act, petitioners’ motion under § 3500(d) to strike his

* Had it been timely produced as required, the entire cross-ex-

amination of Friedman—at least that part which elicited the sur-

prising answer—would have been different.

— ee ee ee en

en OE

testimony (8 Z.C.T. 2214-2217) should have been granted, or,

at the very least, petitioners’ motions for mistrial (10 R.T. 1989-

1990, 8 Z.C.T. 2221, 11 R.T. 2277-2279) should have been

granted.

The Jencks Act is probably the most used but perhaps most

misunderstood procedural statute in the trial of federal criminal

cases. With every witness it is called into use. To sanction

clear abuses of the mandate of the law, even under the um-

brella of the “harmless-error” doctrine, encourages further

abuse. Only this Court can stop the practice.

Because of the conflict of the decision of the Court of Ap-

peals with the clear mandate of Jencks v. United States, 353

U.S. 687 (1957), and 18 U.S.C. §3500, and because of the im-

portance of this question in the administration of criminal jus-

tice, we respectfully suggest that certiorari should be granted

as to this Question.

B. Friedman's grand jury testimony and FBI interviews,

produced before his testimony, indicated that he had never

made a claim that there were “hidden interests” in the Frontier

Hotel. He acknowledged that he had told the FBI that there

were no hidden interests (8 R.T. 1573). Then suddenly he

revealed the existence of the recorded Lands transcript (8 R.T.

1573).

But when the Lands transcript finally surfaced, it was ap-

parent that the words “hidden interest” had not been used by

Friedman. Nevertheless the prosecutor, by maneuvers encour-

aged by the Court, convinced the jury that the transcript, which

was not in evidence, stated that Friedman had said that peti-

tioners Zerilli and Polizzi had hidden interests. 7

In an attempt to keep out of the trial the words “Mafia” and

“Cosa Nostra”, a commendable desire which did not persist

on Oe

later in the trial (see Question I presented by this petition), the

prosecutor, with the blessing and direction of the Court, pro-

ceeded by leading questions to elicit from Friedman the out-

rageous misrepresentation that he had said in the conversation

with Dr. Lands that “certain hidden interests in that casino

were going to come out,” and that when he used the phrase

“hidden interests” (which of course had never been used) he

was referring to petitioners Zerilli and Polizzi (10 R. T. 2000).

Such a falsification of the record was a fraud by the prosecutor,

countenanced by the Court. Subsequently the prosecutor, in

closing argument, reiterated that, as early as 1967, Friedman

had mentioned petitioners Zerilli and Polizzi as holding hidden

interests in the hotel (39 R.T. 7985-7986).

The Court of Appeals (App. A-46) finds error in the handling

of the Lands transcript and says: “The court thus should not

have admitted any testimony referring to the Lands transcript.”

But the Court finds (App. A-47) “in light of the substantial

evidence” (never discussed by the Court in its opinions) that

the error was not “so prejudicial as to require reversal.”

That the whole matter was indeed prejudicial was demon-

strated by the fact that the jury requested a re-reading of the

evidence pertaining to the Lands transcript (46 R.T. 8953).

The prosecutor objected but the defense agreed that the testi-

mony should be re-read to the jury (46 R.T. 8955-8957); the

Court, however, told the jury that the Court and “counsel” pre-

ferred that the testimony not be re-read, and the jury withdrew

the request (46 R.T. 8964). The jury having requested that

just two brief portions of the testimony of a long trial be re-

read, it obviously was a very significant aspect of the case in the

minds of the jury, and there was no basis for the Court of Ap-

peals to conclude that the error was harmless. The trial Court's

action was clearly contrary to the American Bar Association

Project on Standards for Criminal Justice, Standards Relating to

Trial by Jury, Section 5.2(a).

— ALIN Me ADS , x

—

The deliberate misrepresentation to the jury by a government

witness, under the leading direction of government counsel at

the suggestion of the Court, violated petitioners’ rights. In sanc-

tioning such misrepresentation, the opinion of the Court of

Appeals is in conflict with opinions of this Court such as Napue

v. Illinois, 360 U.S. 264 (1959), and Mooney v. Holohan, 294

U.S. 103 (1935). See also United States v. Achtenberg, 459

F. 2d 91, 98-99 (8th Cir. 1972), and DeChristoforo v. Don-

nelly, 473 F. 2d 1236, 1240-1241 (1st Cir. 1973). Cf. United

States v. Ash, 413 U.S. 300, 320 (1973).

Because of the conflict of the opinion of the Court of Ap-

peals with decisions of this Court and other circuits, and be-

cause the Court of Appeals has sanctioned deliberate misrepre-

sentations by the prosecution to the jury, we respectfully

suggest that certiorari should be granted as to this Question.

Leniency Agreements (Giglio)

Maurice Friedman was the prosecution's principal witness.

At the time of his testimony, he was serving sentences for twenty-

seven felony violations of federal law in three separate prosecu-

tions, including Travel Act (card cheating),* theft of grand jury

transcripts,** and obstruction of justice for bribery of a wit-

ness, such sentences having several more years to run.

On February 24, 1972, this Court decided Giglio v. United

States, 405 U.S. 150 (1972). On March 3, 1972, petitioners

moved for disclosure of promises by the prosecution to Fried-

* See United States v. Roselli, 432 F. 2d 879. (9th Cir. 1970),

cert. den. 401 U.S. 924, reh. den. 402 U.S. 924.

Pt ae United States v. Friedman, 445 F. 2d 1076 (9th Cir.

ou 3\—

man. The trial Court ordered the prosecutor to disclose all

promises to Friedman, and the ution stated that his only

promise was that, if Mr. Friedman \estified, “it will be brought

to the attention of the parole board . . . It is as normal as

blueberry pie.” (12 R.T. 2461). The prosecution has stead-

tastly maintained that that was the totality of their arrangement.

The undisputed facts are:

1. On April 26, 1972, petitioners were found guilty.

2. On May | and May 2, 1972, thkee federal judges signed

orders, with the approval of the prosecutor in the instant case,

which effectively reduced Friedman's sciences to time served.*

3. On June 13, 1972, the day after petitioners’ motions for

new trial were denied, Friedman was released from federal cus-

tody, free of any conditions. \

The opinion of the Court of Ae (Section X, after

changes on the petition for rehearing) holds thai there were

no undisclosed promises by the prosecution and that petitioners

should have been aware of the fact that Rule 35 motions were

pending long after the expiration of 120 days. (Actually, the

available public record did not reveal the government's agree-

ment to permit untimely consideration of Rule 35 motions; this

fact did not become known until September,\1972, when peti-

tioners’ counsel ordered transcripts of the oral proceedings.)

* Two of the judges reduced his sentence Rule 35, F.R.

Cr. P., to “time served” —463 and 775 days afte finality of judg-

ments. The third judge “corrected” the judgment to provide for

parole eligibility under 18 U.S.C. § 4208(a)(2)+-286 days after

finality of judgment. Rule 35, of course, retains jurisdiction in the

trial judge to modify a sentence for 120 days only. Cf. United States

v. Robinson, 361 U.S. 209, 224-226 (1960). See also United

States v. Ellenbogen, 390 F. 2d 537, 540-541 (2nd Cir. 1968),

cert. den. 395 U.S. 918, reh. den. 399 U.S. 917.

_— on

The Court of Appeals has ignored this Court’s rulings in

Giglio, supra; Napue v. Illinois, 360 U.S. 264 (1959); Brady

v. Maryland, 373 U.S. 83 (1962), and a host of rulings through-

out the circuits which have followed Giglio. See, e.g., United

States v. Harris, 462 F. 2d 1033 (10th Cir. 1972); United States

v. Mele, 462 F. 2d 918 (2nd Cir. 1972); United States v. Kap-

lan, 470 F. 2d 100 (7th Cir. 1972); United States v. Tashman,

478 F. 2d 129 (Sth Cir. 1973); Taylor v. United States, 487 F.

2d 307 (2nd Cir. 1972); United States v. Gerard, 491 F. 2d

1300 (9th Cir. 1972); and Favor v. Henderson, 348 F. Supp.

423 (W.D. La. 1972). Cf. Burkhalter v. Texas, 493 S. W. 2d

214 (Tex. Ct. Crim. App. 1973). Such conflicts should be re-

solved by this Court.

Since the submission of this cause in the Court of Appeals,

petitioners have discovered two other instances of favored treat-

ment for Friedman which were never disclosed to petitioners.

Friedman was involved in a federal investigation of official mis-

conduct at Lompoc Prison Camp—the Department of Justice

stopped prosecution of Friedman although other prisoners were

tried. (See appellant's opening brief at 49-50, government's

brief at 69, and reply brief at 25 in United States v. Alessio,

pending in the Ninth Circuit Court of Appeals, No. 73-2904.)

Secondly, Friedman was housed in an apartment, rather than a

prison or jail, for several months prior to and during the trial of

the instant case although he was still under federal sentence.

Cf. United States v. Partin, 493 F. 2d 750 (Sth Cir. 1974).

These additional matters of concealed promises and favored

treatment were called to the attention of the Court of Appeals

in a petition for rehearing and a motion to augment the rec-

ord, but no remedial action was granted. It is respectfully sug-

gested that this Court consider a remand of this cause for an

evidentiary hearing on the factual background of all promises

to and special treatment afforded Friedman.

Because of the conflict with decisions of this Court, particu-

larly Giglio v. United States, 405 U.S. 150 (1972), and con-

flict with decisions of other Courts of Appeals, we respectfully

Suggest that certiorari should be granted as to this Question.

In the alternative, we respectfully Suggest that the lower Court

be directed to conduct further evidentiary hearings as to the

promises and inducements furnished to Friedman in exchange

for his testimony.

Prejudicial Totality of Errors

On a number of occasions, the Court of Appeals agreed that

the trial Court committed error, but held that the error was

cured by instructions, or was harmless or non-prejudicial or

non-reversible in the light of the “substantial” evidence of the

appellants’ guilt, or that the jurors had denied that they had

been prejudiced, or that the trial Court did not abuse its dis-

cretion. :

One demonstrable vice of the apparently unique division of

labors in the writing of the 78-page tripartite opinions, plus 3

pages of modifications after petitions for rehearing, is that re-

lated contentions of error were thus not filtered through the

same judicial mind to evaluate the cumulative effect of all of

the independent errors. Despite the length of the opinions, the

Court of Appeals nowhere summarizes the “substantial” evi-

dence of guilt which overwhelms all of the errors.

It is one thing to say that an error is harmless or not shown

to be prejudicial or that there has been no showing of an abuse

of discretion. But we respectfully submit that where the entire

case is filled with “harmless errors”, the totality of such preju-

dicial error cannot be characterized as harmless. Although each

may have been harmless in an otherwise properly conducted

== 42 —=

trial, together all of the errors infected the outcome of the trial

and rendered the convictions improper.

The combined opinions in the Court of Appeals demonstrate

in the Court’s own language the manner in which the proceed-

ings below were permeated by the totality of the errors. With-

out referring to any error not acknowledged by the Court of

Appeals—and there were numerous others—we would call this

Court's attention to the following:*

1. The failure to advise petitioners before closing arguments

that the Court intended to send the information and indict-

ment to the jury was error, “but the failure to do so here is not

prejudicial error.” The Court found that in view of the detailed

_ instructions,** “we do not find that error prejudicial in any

respect.” (App. A-15).

we oe instructions on specific intent “could _— been more

.” (App. A-16).

3. Seattle ineen et Gia epgnaien et diteens pee

tion were error, we find that the weight of other evidence against

appellants is such that the error could not have been preju-

dicial.” (App. A-17).

4. The trial Court did not include skimming as one of the

charges against appellants, and yet the prosecutor's argument

on skimming was permitted without admonishing the jury to

disregard it; whatever prejudice arose was “cured” by the in-

structions which did not include a reference to peau (App.

MIs to A-19).

° poh ny Aged ee gi} cepa ole wg nee cera, es

to point out how each individually was prejudicial. Some have

discussed in other Questions presented in this petition.

** The instructions were lengthy and confusing and read only

once; the indictment was always in the jury room during delibera-

tions.

—

5. The Court could not find such prejudicial publicity as to

“require reversal as a matter of law.” (App. A-20).

6. The Court acknowledged that there was a “preferable”

method to that used by the trial Court in questioning the jurors

about a newspaper in the jury room. (App. A-24 to A-25).

7. The trial Court's refusal to conduct a hearing on June 12,

1972, when juror Palmer revealed the effect of publicity on

the jury, was criticized, although the procedure requested by

petitioners for an immediate hearing “may generally be pref-

erable.” (App. A-29 to A-30).

8. After obviously being troubled by the publicity problems

at the trial, the Court of Appeals concluded that “no reversible

error was committed in the trial Court's handling of the ques-

tion of prejudicial publicity.” (App. A-33).

9. The original opinion stated as to the prosecutor's closing

argument about the “Mafia” background that “appellants have

failed to demonstrate that the comments contributed to an un-

fair trial.” (App. A-35 to A-36). In the modification of the

opinion after petitions for rehearing, the Court avoided the

acknowledgment of error, whether or not prejudicial, by stat-

ing (erroneously) that there was no express reference to the

“Mafia”. (App. C-2).

10. The original opinion as to cross-examination of Polizzi

and Zerilli found “danger of prejudice”, “error to permit the

government to begin a line of questioning with a high possibility

of prejudice”, and “rulings were erroneous” but pot prejudicial.

(App. A-36 to A-37). In the .nodification after petitions for

rehearing, the Court for the first time blamed Polizzi for the

“prejudicial Mafia connection” and reversed itself to argue that

there was relevance to the cross-examination of Zerilli on his

reputation. (App. C-2 to C-3).

a on

11. The Court found that all of the episodes of misconduct

by the prosecutor sanctioned by the trial judge did not “amount

to a deprivation of appellants’ right to a fair trial.” (App. A-37).

12. The prosecutor's arguments conveying the impression

that appellants were violent individuals “were not so prejudicial

to appellants so as to require reversal.” (App. A-38).

13. The Court stated that a reference to Chicago-type extor-

tion “was not proper, however.” (App. A-38, fn. 60).

14. The Court suggested error in the trial Court’s vouching

for the credibility of government witnesses. (App. A-39).

15. The Court found that evidence of Nevada law as a

factual matter was “unnecessary, but not prejudicial error.”

(App. A-39).

16. The prosecutor’s inquiry into prior attempts to invest in

Las Vegas after such evidence had previously been rejected was

not prejudicial “in light of other and substantial evidence sup-

porting the verdicts.” (App. A-40 to A-41).

17. The use of a deposition from another case was not “justi-

fied” but the Court avoided a decision as to “whether there was

error.” (App. A-41 to A-42). The Court then decided that there

was no prejudice, and that the incident was insignificant. (App.

A-42).

18. The Court acknowledged that “there were things said

by the prosecution which would have been better unsaid,” but

appellants were not deprived of a fair trial. (App. A-42).

19. In commenting upon the trial judge’s efforts to afford

a fair trial, the Court said “errors were committed, but none

so prejudicial, so fatal, either individually or collectively, as

to require reversal.” (App. A-43).

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— an

20. A clear violation of the Jencks Act “was not prejudicial

to appellants” (App. A-44), and “appears clearly to be harm-

less.” (App. A-45).

21. The trial Court “did commit error” in its handling of

the Lands transcript, but “in light of the substantial evidence

in the record supporting appellants’ convictions, we do not find

that the error in handling the Lands transcript was so preju-

dicial as to require reversal.” (App. A-46 to A-47).

22. “Appellants also did not suffer prejudice” from the argu-

ment on the Lands transcript. (App. A-48).

23. The original opinion stated that petitioners were not

prejudiced “as a result of the prosecution’s dereliction” in con-

cealing any undisclosed promises to Friedman. (App. A-49).

The modified opinion after petitions for rehearing avoided the

acknowledgement of error by deleting the sentence (App. C-3).

24. The Court of Appeals acknowledged an incorrect repre-

sentation by the prosecution as to available evidence against

Giordano in order to avoid a severance. ( App. A-58).

25. In addition to the foregoing, there were numerous in-

stances in the opinions of the Court of Appeals which decided

the issues on the basis of exercise of discretion or the failure to

show an abuse of discretion. See, for example, App. A-14 to

A-15 as to sending the statutes and regulations to the jury room,

A-15 as to reading the indictment and sending copies to the

jury room, A-22 as to pretrial publicity, A-22 as to investiga-

tions of the effects of publicity, A-48 as to the jury’s request for

a re-reading of the testimony concerning the Lands transcript,

A-55 to A-57 as to various motions to transfer the cause and

for change of venue, A-76, fn. 8, as to names of informants, and

C-3 as to cross-examination re the “Mafia”.

Although we recognize that the doctrine of “harmless error”

is a necessity in the administration of justice, we believe that this

—

case presents an example of the dangerous trend among courts

to characterize too many important errors as harmless and non-

prejudicial. The constitutional rights to fair trials and due pro-

cess of law are being eroded. It would be appropriate for this

Court now to review this current trend and to reestablish guide-

lines for lower courts to follow.

This Court in Kotteakos v. United States, 328 U. S. 750, 758-

766 (1946), cautioned against a broad application of the harm-

less error doctrine, and stated (1. c. 765):

“But if one cannot say, with fair assurance, after pondering

all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially

swayed by the error, it is impossible to conclude that sub-

stantial rights were not affected. The inquiry cannot be

merely whether there was enough to support the result,

apart from the phase affected by the error. It is rather,

even so, whether the error itself had substantial influence.

If so, or if one is left in grave doubt, the conviction cannot

stand.”

Individually all of the errors recognized by the Court of Ap-

peals were serious and affected the process by which petitioners

were convicted. In the aggregate they adversely affected the sub-

stantial rights of petitioners to a fair trial. Their cumulative

effect was prejudicial. Cf. Getchell v. United States, 282 F. 2d

681, 691 (Sth Cir. 1960).

In Chapman v. California, 386 U. S. 18 (1967), this Court

again discussed the harmless-error rule in the setting of consti-

tutional error and placed the burden on the prosecution not only

to show that the error was harmless, but to convince the Court

that it was harmless beyond a reasonable doubt. We respectfully

submit that the Court of Appeals has disregarded the Chapman

mandate, especially in those instances where there was a vague

reference to undocumented “substantial evidence,” or where it

— a

was said that there had not been a showing of abuse of discre-

tion. See also Kastigar v. United States, 406 U. S. 441, at fn. 55

and accompanying text (1972), and United States v. Johnson,

487 F. 2d 1318, 1325-1326 (Sth Cir. 1974). The Court of

Appeals has failed to make any finding that the many errors,

a number of which are of constitutional magnitude, were harm-

less beyond a reasonable doubt, and the record would not

support such a finding.

The fact that the jury deliberated for five days and asked for

a rereading of certain evidence (46 R. T. 8953) would indicate

that the evidence was not substantial, but instead that it was a

very close case. Cf. Osborne v. United States, 351 F.2d 111, 118

(8th Cir. 1965). Any one or more of the many errors could have

tipped the balance.

Especially where it is claimed that the evidence clearly shows

guilt, we believe that there is a current tendency among nu-

merous lower federal courts, including the Ninth Circuit in the

instant case, to disregard the clear instructions by this Court in

Bollenbach v. United States, 326 U. S. 607, 614-615 (1946).

“In view of the Government's insistence that there is abun-

dant evidence to indicate that Bollenbach was implicated in

the criminal enterprise from the beginning, it may not be

amiss to remind that the question is not whether guilt may

be spelt out of a record, but whether guilt has been found

by a jury according to the procedure and standards appro-

priate for criminal trials in the federal courts.

“. . . From presuming too often all errors to be ‘preju-

dicial.’ the judicial pendulum need not swing to presuming

all errors to be ‘harmless’ if only the appellate court is left

without doubt that one who claims its corrective process is,

after all, guilty. In view of the place of importance that trial

by jury has in our Bill of Rights, it is not to be supposed

that Congress intended to substitute the belief of appellate

— ‘aa

judges in the guilt of an accused, however justifiabl, en-

gendered by the dead record, for ascertainment of guilt by

a jury under appropriate judicial guidance, however cum-

bersome that process may be.”

Nowhere did the Court of Appeals indicate the nature of the

“substantial evidence” against petitioners. The many errors were

involved in a significant portion of the prosecution’s presenta-

tion. Petitioners were required to rebut on irrelevant issues found —

by the Court of Appeals to be error. The totality of these errors,

and the further errors which they produced, were prejudicial.

Because of the application by the Court of Appeals ot the

harmless-error doctrine in a manner contrary to guidelines estab-

lished by decisions of this Court, because of the necessity of halt-

ing further erosions by many lower courts of the principles of

fair trial and due process of law, and because of the importance

of this issue in the administration of criminal justice within the

concept of constitutional traditions, we respectfully suggest that

certiorari should be granted as to this Question.

VII

Other Reasons

Petitioners were tried jointly with Anthony Giordano and

Emprise Corporation, and their convictions were jointly affirmed

by the Court of Appeals. Both are filing separate petitions

for a writ of certiorari which present questions affecting these

petitioners.

In the interests of brevity, petitioners hereby adopt the ques-

tions presented to this Court by their co-defendants, and re-

spectfully urge that certiorari should be granted as to such

Questions.

—

CONCLUSION

For these reasons, it is respectfully submitted that this peti-

ROBERT E. HINERFELD

RICHARD A. MURPHY

EDWARD M. MEDVENE

DAVID 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

1200 First National Building

Detroit, Michigan 48226

Attorneys for Petitioner

Peter James Bellanca

tion for a writ of certiorari should be granted.

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

Associate Attorney for

All Petitioners

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