# Appendix — Satterwhite v. United Parcel Service, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0523%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1079 ## Text ‘i ab cian APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT — Unrrep States or AMERICA, Plaintiff-Appellee, va f No. 72-2983 Micuagz. Santo Pouizz1, Defendant-Appellant. \ Unirep States or AMERICA, Plaintiff-Appellee, i No. 72-2984 Jack S. Suarmo, Defendant-Appellant. Unrrep States or Axrnica, Plaintiff-Appellee, ies eed | Perer JAMES BELLANCA, Defendant-Appellant. - Unrrep States or AMERICA, Plaintif(-Appellee, es Applies, | 72-2986 ANTHONY GIARDANO, Defendant.Appeilant. > Unrrep STATES OF AMERICA, pia; tiff-Appellee, a No. 72-2987 Artuur J. Rooxs, Defendant-Appellant. Unirep States or AMERICA, Plaintiff-Appellee, vs. No. 72-2988 ANTHONY JosEPH ZERILLI, Def endant-Appellant. Unrrep States or AMERICA, Plaintiff-Appellee, 7 f No. 72-2989 Emprise CorPoraTIon, a New York Co i Defendant-Appellant. | OPINION [April 30, 1974] Appeal from the United States District Court for the Central District of California = 2 United States of America vs. Before: BROWNING and DUNIWAY, Circuit Judges, and RENFREW,® District Judge. RENFREW, District Judge: In 1966 and 1967, appellants Zerilli and Polizzi acquired hid- den interests in Vegas Frontier, Inc. (VFI), a Nevada corpora- tion, which leased and operated the Frontier Hotel in Las Vegas, Nevada. VFI was also licensed to conduct gambling at the hotel, which opened in July of 1967. Neither Zerilli nor Polizzi was licensed by the Nevada gaming authorities, nor was either man’s interest in VFI disclosed to those authorities. After extensive ne- gotiations, VFI was sold in November, 1967, to Howard Hughes. Following a very lengthy and complex trial,) Zerilli, Polizzi, and the other appellants were convicted of conspiracy (18 U.S.C. §371) to violate 18 U.S.C. §1952* (Interstate and Foreign Travel or Transportation in Aid of Racketeering Enterprises) and of substantive violations of that section. Appellants challenge their convictions on a number of bases. They contend: 1. That the prosecution failed to show a violation of §1952. *The Honorable Charlies B. Renfrew, United States District Jndge, Northern Distriet of California, sitting by designation. ‘There were 48 days of trial reported in 11,022 pages pages of reporter's 718 U.S.C. §1952 provides in part: “(a) Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent ya (1) distribute the proceeds of any unlawful activity; or . -~ 7 ; — A-15 — Michael Santo Polizzi, et al. 15 reconstruction from notes or from memory. In his effort to avoid confusion, the trial judge did not abuse his discretion. C. Reading Indictment and Information to Jury and Sending Copies to Jury Room Appellants argue that it was reversible error to read the indict- ment and information both at the beginning of trial and during the instructions. Given the extraordinary length and complexity of the trial, however, the trial court may properly have judged that a re-reading was required to avoid confusion.?¢ The decision to read the indictment to the jury is within the sound discretion of the trial court> and we find no abuse of that discretion here.?7 The court below also sent to the jury room copies of the indict- ment and information. That decision is also generally within the discretion of the trial judge. United States v. Murray, 492 F.2d 178, 193-194 (9 Cir. 1973) ; Souza v. United States, 304 F.2d 274, 280 (9 Cir. 1962). Appellants contend that they should have been advised before closing arguments that the court intended to send the information and indictment. See Dallago v. United States, 427 F.2d 546, 553 (D.C.Cir. 1969). We agree, but the failure to do so here is not prejudicial error.2* Under all the cireumstances of this case, especially the court’s cautionary instruction on the use of the indictment and information and the detailed instructions on what could be considered evidence by the jury, we do not find that error prejudicial in any respect. 26The indictment was first read on February 16, 1972, and re-read on April 19, 1972, an interval of more than two months. 27The court instructed the jury as to the indictment and information: “An Indictment or Information is but a formal method of accusing a defendant of a crime. It is not evidence of any kind against the accused.” 28In United States v. Steed, 465 F.2d 1310, 1316 (9 Cir. 1972), cert. : denied, 409 U.S. 1078 (1972), the court : jary room upon the request of the jury during its deliberations. Despite — A-16 — 16 United States of America vs. D. Specific Intent In claiming error in the court’s instructions on specific intent,?° appellants urge us to follow United States v. Stagman, 446 F.2d 489, 492-493 (6 Cir. 1971), and hold that specific intent to violate state law is an element of the offense under §1952. This Court, how- ever, has previously approved an instruction similar to the one given in this case. See Turf Center, Inc. v. United States, 325 ¥'.2d 793, 797 and n. 5 (9 Cir. 1963). Moreover, to the extent that Stagman requires proof that an accused under §1952 intended to violate state law himself, we find that it conflicts with the clear meaning of the language used in §1952. As the court in Stagman recognized, the intent required in the statute “refers to the entire phrase ‘to * * * carry on * * * any unlawfal activity.’” 446 F.2d at 492. That phrase does not require spccifie intent to facilitate an activity which the accused knew to be unlawful under state law. This interpretation, apart .com its inecrsistency with the literal terms of §1952, also supports the poses of that statute in attack- ing organized crime by furnishing federal help to local authorities in their attempts to control wach crime. It would not subject inno- cent persons to criminal jeopardy in travelling interstate since for a conviction, proof would be required at the least “that the defend- ant intended with bad purpose’”™ to facilitate the violation of state law. Although the instructions on specific intent, viewed alone, could under state law. E. Advice of Counsel As an adjunct to their argument on specific intent, appellants claim that the court should have instructed the jury that reliance on advice of counsel could show a lack of specific intent. Given the 29[T)t is not necessary that the Government prove that the defendants knew that they were violating Nevada law. The specific intent which the intent to facilitate the carrying on of a of business enterprise involving gambling in violation of Nevada law.” Re- porter’s Transcript, Vol. 43, p. 8802. See also pages 8755-8757. 99446 F.2d at 494. 7 — a. oo ! Michael Santo Polizzi, et al. 17 evidence in this case, the advice given by counsel was an insignifi- cant factor in the criminal enterprise found by the jury; thus the court below did not err in, refusing to give an “advice of counsel” instruction. See United States v. Shewfclt, 455 F.2d 836, 838-839 (9 Cir. 1972), cert. denied, 406 U.S. 944 (1972); Bisno v. United States, 299 F.2d 711, 719-720 (9 Cir. 1961), cert. denied, 370 U.S. 952 (1962). F. Kottcakos Instruction Appellants contend that they were entitled to a “multiple con- spiracy” instruction following the principle of Kotteakos v. United States, 328 U.S. 750, 767-768 (1946). See also United States v. Griffin, 464 F.2d 1352, 1355-1357 (9 Cir. 1972), cert. denied, 409 U.S. 1009 (1972). Having carefully reviewed the entire reporter's transcript of trial and all documents in evidence, we find that there is no variance between the allegations of the indictment and infor- mation and the evidence presented at trial and that therefore the trial court did not err in not giving a “multiple conspiracy” instruction. G. Suppression of Evidence A letter from appellant Bellanca to Emprise Corporation was not produced by the defense in response to a grand jury subpoena because of a claim of attorney-client privilege. The court gave a general instruction on suppression of evidence, apparently in part on the basis that failure to produce the letter could be evidence of suppression.21 Appellants also complain of the court’s refusal to give an instruction on attorney-client privilege. Even if the giving of the suppression of evidence instruction were error, we find that the weight of other evidence against appel- lants is such that the error could not have been prejudicial. The court below, moreover, had instructed the jury on the attorney- client privilege during the trial.*? é, 31See Reporter’s Transcript, Vol. 35, pp. 6944-6948. 32The issue of attorney-client privilege arose during the testimony of Virgil Wedge. The court instructed the jury that: “There exists what is known as an attorney-client privilege and it says, in short substance, that shen & man goes to a lawyer and tells him sometimes confidential matters — A-18 — 18 United States of America vs. H. Perjurer’s Testimony Appellants also claim error in the court’s failure to give a cau- tionary instruction on the testimony of a perjurer. Their initial proposed instruction referred to the witness, Maurice Friedman, as an admitted perjurer when in fact he had been convicted of per- jury and had not pled guilty. Appellants submitted a revised in- struction after the instructions conference substituting “convicted” for “admitted”, but it was rejected as untimely. Even if this were error, which we do not find, any prejudice resulting from it was cured by the instructions given on prior inconsistent statements** and on the weight of the testimony of an informer.** These instruc- tions sufficiently alerted the jury to the caution necessary in weigh- ing the testimony of a witness like Friedman. Cf. United States v. Evanchik, 413 F.2d 950, 954 (2 Cir. 1969); United States v. Ross, 322 F.2d 306, 307 (4 Cir. 1963), cert. denied, 375 U.S. 970 (1964). I. Skimming** Appellants argue that the trial court committed error in not ad- monishing the jury during instructions that the prosecution’s argu- ment about “skimming” should be disregarded as unsupported by evidence and as not appearing in the indictment or information. Whatever prejudice to appellants could have resulted from the prosecutor’s argument was cured by the trial court’s painstaking ‘ instructions on the elements of the offenses charged. The trial judge that he would want to discuss with a professional man, that that lawyer has the duty of preserving those matters inviolate to publie notice and to keep them confidential as long as his client wants him to do so.” Report- or’s Transcript, Vol. 13, p. 2511. 33“The testimony of a witness may be diseredited or impeached by showing that he previously made statements which are’inconsistent with his previous testimony.” Reporter’s Transcript, Vol. 43, p. 8749. nied Ot oe oe eee Oe er ae vantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer’s testimony has been affected by interest, oN a ee eee Reporter’s Transcript, Vol. 43, p. 8751. 3“Skimming” appears ts mend mleppeenstetien of Casino funds Gicsiats teitadion Gf onivente ter enbintinedlitds in Gaile Grabs alo the cashier's office and by unrecorded payments from the cashier's office. SEL ERO — ce Ty r 2 ANAS eke > — tls Ho hap inf ath i 2 une ils AL Hs F Ha, yale 31, : Te i fi i u isl of S [wigestet ude THE HAH bean dene 2 Hie mane eee : fil rT SyS3q 5% ati i i a ght 5es nee | , — A-31- Michael Santo Polizzi, et al. 31 Palmer’s disclosure as reported by defense counsel unworthy of wt teste b DAN peed bach aaeriul 2 “I owe you an apology for being the black sheep, the only one that said yes when I should have said no. “The Court: No apology needed at all. “Juror Palmer: The count was seven to five and I still feel that if we had had another session we could have come out on it. [This reference is to the jury’s failure to reach a verdict as to defendant Polizzi on Count 3 of the indictment. See p. 8987.) “The Court: My purpose here now is to ask you some questions about the case. Do you think that anything happened outside of this courtroom during the trial of this case that in any way influenced the verdict in the case? “Juror Palmer: Well, I will put it this way, not that I know of. As far as myself is concerned, no, but 2s to others I am not too sure. “The Court: Yes, Now is there anything about that, that leads you to suspect that anything happened? “Juror Palmer: Well, I would rather hesitatingly say no. “The Court: Read that answer to me. “(Record read.) “Juror Palmer: I think you well know in your experience that when folks get together outside, going to lunch or something like that, you can’t very well stop them from talking about it among themselves, you know what I mean, just among ourselves, and I think some of that was done but I don’t want to accuse anybody of it. “The Court: Yes. Ali right. Now do you think that anybody reached any decisions about the case before ihe case was turned over to the jury? “Juror Palmer: I don’t think so. None were expressed to me, no, sir. “The Court: Mr. Palmer, there is a picture called The Godfather. Have you seen that picture? “Juror Palmer: No, sir, I have not. “The Court: Have you read the book by the same name? “Juror Palmer: No, sir. In fact, I never heard of it until you mentioned it. “The Court: Was there any discussion of either the picture or the book in that jury room? “Juror Palmer: No, sir, not that I know of, not that I heard. “The Court: Do you think that tse mention during this trial of any of the terms such as ‘Mafia’ o: related terms had any unfavor- able influence on the verdicts that were reached? “Juror Palmer: Well, to be frank and honest with you, I hope I won’t get into trouble by «doing so, I think some of that was men- tioned during the lunch hour between some of the members of the jury. “The Court: In what respect? — A-32 — 32 | United States of America vs. belief. Palmer’s unwillingness to submit an affidavit strongly sup- ports that judgment.*! “Juror Palmer: Well, it was just the fact that it came up during the , the Chief of Police of Detroit accused some of our defend- ants of being members of it, they threatened him with suit and the suit was never filed because they thought they couldn’t win it, the defendants I mean. Do I make myself clear? “The Court: Yes, I think so. What you are saying is that during a lunch hour that there was some discussion of the evidence, is that correct ? “Juror Palmer: I was told somewhere that that come out in the local papers during the trial, and I think that was discussed during the lunch hour between some of the members. I don’t want to hold “Juror Palmer: I don’t believe so, no, sir. “The Court: Any comment or any discussion about it in the de- “Juror Palmer: No, sir, nothing. I never heard the word men- “The Court: All right. I think those are the questions that I wanted to ask you. And thank you again. “Juror Palmer: Let me say it has been a pleasure to work with you. I hope I get a chance to do it again. “The Court: It has been a pleasure working with you. “Juror Palmer: Thank you.” vote argued from [a newspsper] article which they displayed and to they repeatedly referred.” Here Palmer's disclosure as reported by uppel- lants’ counsel came approximately six weeks after the verdict had been reached, and there were good reasons for disbelieving that disclosure. ON ee ey — A-33 — Michael Santo Polizzi, et al. 33 In this case the problem of publicity was not insignificant, but it was a problem that was handled by proper judicial super- vision. “The right to publish a prejudicial article does not carry with it the right of an accused to an automatic mistrial. Such an outeome would give to the press a power over judicial pro- ceedings which may not be countenanced.” Mares v. United States, 383 F.2d 805, 808 (10 Cir. 1967), cert. denied, 394 US. 963 (1969). After our detailed review, we cannot say that there is a serious possibility that the jury was influenced by considera- tions apart from evidence properly admitted at trial. The trial judge admonished the jury on at least four occasions to avoid publicity about the ease. He interrogated the jurors individually three times. The fact that the jurors discussed the term “Mafia” and related issues does not in itself require reversal. Cf. United States v. Lazarus, 425 F.2d 638, 640-641 (9 Cir. 1970), cert. denied, 400 US. 869 (1970), rehearing denied, 400 US. 954 (1970). For appellants’ arguments of prejudice and juror Palmer’s disclosure to be true, the other jurors wou'd in effect have committed perjury on several occasions and have entered into a conspiracy of silence. The trial judge found that incredible. We agree. “Appellate courts should be slow to impute to juries a disregard of their duties, and to trial courts a want of diligence or perspicacity in appraising the jury's conduct.” Fairmount Glass Works v. Cub Fork Coc! Co., 287 US. 474, 485 (1933) (Brandeis, J.). “If the mere opportunity for prejudice or cor- ruption is to raise a presumption that they exist, it will be hard to maintain jury trial under the conditions of the present day.” Holt v. United States, 218 U.S. 245, 251 (1910) (Holn:es, J.). No reversible error was committed in the trial court’s handling of the question-of prejudicial publicity; we do not find “that the probability of prejudice arose and was not eliminated.” Su verthorne v. United States, 400 F.2d 627, 644 (9 Cir. 1968). V. Department of Justice “Mafia” List The United States Department of Justice in 1969 included appellants Zerilli and Polizzi on a list of known Mafia figures. See 115 Cong.Rec., Part 17, pp. 23440-23441 (August 12, 1969). Appellants contend that the presence of those names on that list was the motivating factor in the prosecution of this case and dinate eet WA) et 5 MEE SE Beiccainsumustoncs. ti Rs eR: bit a Ab 34 United States of America vs. also that the prosecution made several prejudicial comments, based upon appellants’ alleged Mafia connections, to the grand and petit juries. Their first point, that their inclusion on the “Mafia list” was the prime motivation for the prosecution, is not supported by anything in the record and is strongly contradicted by the testi- mony of three government officials prominent in this prosecu- tion.5? The next contention, that the prosecution “poisoned” the grand jury proceedings by comments referring to the Mafia, is un- supported by the record or by the authorities appellants cite. The portions of the transcript of the proceedings before the grand jury which appellants quote in their opening brief are not evidence of grand jury bias. “Mafia” is mentioned by the prose- cutor in one question. The possible use of force is the basis of four questions referring to appellant Shapiro. One witness is asked whether he is fearful or apprehensive as a result of his testimony. Appellants allege that the grand jury was “repeatedly told” of a prior arrest of appellant Zerilii; and the prosecutor commented on the alleged association of Zerilli and Polizzi with “tough guys, Italians, from New York.” Appellants have a difficult burden to satisfy in their chal- lenge to the indictment. “An indictment returned by 2 legally 52The Honorable W. Matthew Byrne, Jr., United States District Judge, and who was United States Attorney in Los Angeles during the initial stages of this case, testified that interviews with Maurice Friedman were - “the basis for the commencement of the investigation and the commence- ment of grand jury investigation regarding the Frontier case.” Reporter’s Transcript, Vol. 48, p. 9224. He did not recall having ever seen the “Mafia list.” Reporter’s Transcript, Vol. 51, pp. 9824-9825. David Nissen, chief of special prosecutions in the organized crime and racketeering sec- tion of the United States Attorney’s office in Los Angeles at the time, also testified that Friedman’s information was the basis for the decision to convene a grand jury. Reporter’s Transcript, Vol. 51, p. 10,031. He denied that the “Mafia list” played any role in developing his interest in beginning the prosecution. Reporter’s Transcript, Vol. 52, p. 10,220. Wayne W. Hill, a special agent with the F.B.I., also testified that the Friedman interviews provided the basis for initiating the prosecution. Reporter’s Transcript, Vol. 49, pp. 9412-9418. He too denied ever having seen the “Mafia list.” Reporter’s Transcript, Vol. 50, p. 9714. eta tH -A-35 ~ Michac! Santo Polizzi, ef al. 35 constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial ot the charge on the merits. The Fifth Amendment requires nothing more.” Costello v. United States, 350 U.S. 359, 363 (1958). A valid indictment does not require support by “adequate or competent evidence” 350 U.S. at 364.5% See also United States v. Calandra, US.. (1974). Appellants have not demonstrated a reasonable inference of bias on the part of the grand jury resulting trom the comments of the prosecu- tor.44 See Beck v. Washington, 369 U.S. 541, 545-549 (1962). “The quantum of evidence necessary to indict is not as great as that necessary to convict. If a grand jury is prejudiced by outside sources when in fact there is insufficient evidence to indict, the greatest safeguard to the liberty of the accused is the petit jury and the rules governing its determination of a de- fendant’s guilt or innocence. And, if impartiality among the petit jurors is wanting, the cure is reversal by the appellate courts.” Silverthorne v. United States, 400 F.2d 627, 634 (9 Cir. 1968 ) .55 Appellants also argue that the “Mafia list” played an im- permissible role in the trial. They refer, however, only to the comments of the prosecutor in closing argument that appellants “substituted the corporate resolution for the pistol.”5* Although it 53The recent decision cited by appellants, United States v. Estepa, 404 F.2d 1132, 1137 (2 Cir. 1972), condemns the needless use 0 hearsay testi- mony before the grand jury and is irrelevant to appellants’ claims. 54References to “Mafia” and “Italians” are certainly not per se preju- dicial. Cf. United States v. Lazarus, 425 F.2d 638, 640-641 (9 Cir. 1970), cert. denied, 400 U.S. 869 (1970), rehearing denied, 400 U.S. 954 (1970). 55Those cases upon which appellants rely concerned prosecutor miscon- duct in arguments to the petit jury. Berger v. United States, 295 U.S. 78 (1935) ; United States v. Cummings, 468 F.2d 274, 277-278 (9 Cir. 1972); Hall v. United States, 419 F.2d 582 (5 Cir. 1969). This distinction does not justify, of course, prosecutor misconduct before the grand jury. See A.B.A. Standards Relating to the Prosecution Function, Approved Draft, 1971, §3.5(b). It does mean that it takes very substantial evidence of grand jury bias for an appellate court to reverse a conviction because of an indictment returned by an allegedly biased grand jury. 66“J think I told you at the outset that this is nothing more than sophisticated robbery, sophisticated theft. And these businessmen have LS PKA RN TA — A-36 — 36 United States of America vs. is unclear that these comments were related to the “Mafia list” in any event appellants have failed to demonstrate that the comments contributed to an unfair trial. The trial judge spe- cifically inquired of each juror in camera in a post-verdict voir dire as to the influence on the jurors of terms such as “Mafia,” with no indication that they had influenced the verdicts.57 VI. Cross-Examination on Reputation Appellants argue that the trial court committed reversible error in allowing the prosecution to cross-examine Polizzi and Zerilli on their reputations. The government contends that the cross-examination was permissible as to Polizzi because he had opened the subject of his reputation on direct examination and as to Zerilli in order to impeach his testimony about why he could not be licensed. “The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulner- Ne eee ee es sped SRM AC BAEINTR NOS RL AAS ALLE ERB EA NIA Pt Hower e ne ae eee ae ee . ee LM yea — A-38 — 38 United States of America rs. In his closing arguments, the prosecutor did make comments which could have conveyed the impression that appellants were violent individuals.*° This question, however, is tied closely to the issue of the influence of the Mafia references on the jury. We have found that the court below carefully handled that issue,** and we find that these comments were not so prejudicial to appellants so as to require reversal of the jury’s verdicts. Appellants argue that the prosecutor gave his personal opinion of appellants’ guilt to the jury and referred to the indictment in this case as supporting him. The prosecutor did mention the grand jury indictment, but he used it to rebut appellants’ argu- ment to the jury that the prosecutor was pursuing in effect a personal vendetta against appellants.°*? The reference to the in- ferences were audible to the jury mainly through the fault of the prose- cutor; and that the trial judge changed certain “ground rules” to the prejudice of appellants. We have, however, carefully considered each of these points and, based upon our review of the entire record, find them to be without merit. 60“That is the good old fashioned Chicago type extortion.” Reporter’s Transcript, Vol. 39, p. 7983. This particular reference was to testimony in the record which indicated perhaps some potential for violence during the events in question in this case. See witness Friedman’s testimony of his mysterious and rather frightening trip to Toledo, Ohio. Reporter’s Transcript, Vol. 5, pp. 1084-1098. The comment was not proper, how- ever. See also the comments qucted in footnote 56, supra. ®1See pages 29-32, supra. *2Defense counsel had argued: “The thing that impressed me and rather frightened me was the display of overwhelming power of the Fed- eral Government if one of their prosecutors gets a theory and takes after you.” Reporter’s Transcript, Vol. 42, p. 8391. The prosecutor then argued: “* * * But Mr. Ball has made a state- ment that I must make one remark to. He says he is worried because a prosecutor gets you on a theory and a statate and he goes after you. “Not true. Never has been true in the legal system in this country or the body of criminal law that has only been around for 550 years. Never has been true and it is not true during this trial. “A grand jury passed on this indictment. Not Kotoske. When it is read to you, the judge will read, ‘The Grand Jury charges’. Not Tom Kotoske.” Reporter’s Transcript, Vol. 43, p. 8692. Earlier in his argument, the prosecutor had also referred to the indict- ment in trying to show that the government had been consistent in as- serting a legal theory under §1952. See Reporter’s Transcript, Vol. 43, p. 8680. é —_— - he BCRP be oh a — A-39 — Michael Santo Polizzi, et al. 39 dictment in these circumstances does not constitute improper argument. Cf. United States v. Cummings, 468 F.2d 274, 277-278 (9 Cir. 1972); Hall v. United States, 419 F.2d 582, 587 (5 Cir. 1969). Moreover, the jury was instructed that the indictment and information were not evidence and were merely methods of ac- eusing a defendant of a crime. Reporter's Transcript, Vol. 43, pp. 8736-8737. On four occasions, in ruling on questions addressed to two government witnesses, the trial judge made comments that appear to vouch for the credibility of the witnesses. However, we cannot accept the appellants’ assertions of prejudice. They did not object to any of the judge’s statements, and they certainly knew how to object when they thought it important to do so. The error, if any, could easily have been corrected, had there been objection. For example, in one instance, at the end of the colloquy, the court said “* * * in any instance the jury is to draw no inference from the questions as bringing any thruthfulness to us.” Reporter’s Transcript, Vol. 2, p. 244. The court, moreover, in- structed the jury not to assume from his comments during trial that he held particular opinions about. the issues in question and that they were the sole judges of the credibility of witnesses and of the weight of evidence. See United States v. Jackson, 482 F.2d 1167, 1175-1176 (10 Cir. 1973); United States v. Cunning- ham, 423 F.2d 1269, 1276 (4 Cir. 1970). Appellants contend that the trial court first received evidence, in the presence of the jury, on the question of the applicable Nevada law, rendering the matter one for the jury’s decision, but then at the end of the trial took the issue away from the jury by instructing it as to the state law. The determination of the applicable state law in a case such as this is a question for the court. Cf. United States v. D’Amato, 436 F.2d 52, 54 (3 Cir. 1970); United States v. Lyon, 397 F.2d 505, 513 (7 Cir. 1968), cert. denied, 393 U.S. 846 (1968). To receive testimony on the question of state law in the presence of the jury is un- necessary, but not prejudicial error unless the combination of the testimony and the court’s instructions clearly leave the jury in confusion or in doubt as to the applicable state law. We do not find prejudicial error here. ee eT ee ey Bere | —s a 40 United States of America vs. Also cited as error is the trial court’s comment that a certain question could be decided if one of the appellants took the stand.*? This was not an infringement of appellant Bellanca’s right against self-incrimination. “[T]he test is whether the language used was manifestly intended or was of such character that the jury woald naturally and necessarily take it to be a comment on the failure of the accused to testify.” Knowles v. United States, 224 F.2d 168, 170 (10 Cir. 1955).6* No such finding could be reached here. It was an offhand comment which could have had no influence on the jury. This point is an example of a practice appellants have followed many times on this appeal: quoting out of context remarks of the prosecutor and especially the trial judge and supplying an “argument” for reversal by dramatic and hyperbolic language. Appellants argue that after this incident “appellant Bellanca had to take the stand or suffer the possibility of an untoward inference by the jurors.” The episode in fact was a pedestrian exchange which, if any- thing, probably left the jury with the impression that appellants would be able to establish the point through other witnesses, including appellant Bellanca if he testified. Appellants’ next point is that the prosecution evaded a prior ruling by the court that it could not offer evidence of pricr similar acts by appellants. The court, after hearing the proffered evidence in the absence of the jury, instructed the jury that there was no evidence of prior similar acts and that any com- ments of the prosecutor on the issue were to be disregarded. In addition, each juror was asked whether the comments had preju- diced them, and each juror said that he had not been prejudiced. 63“The Court: I enderstand what you are trying to show, but I don’t know how you can show it\by establishing—you are not able to establish the foundation for this document by this witness, as I see it. You may be able to establish it by some other witness, or if your brovher takes the stand and testifies you can establish his whereabouts by his testimony. “Mr. James Bellanca: Then I will withdraw it and save it until then, your Honor.” Reporter’s Transcript, Vol. 9, p. 1678. 64See also United States v. Biondo, 483 F.2d 635, 644-645 (8 Cir. 1973); United States v. Mahanna, 461 F.2d 1110, 1113-1115 (8 Cir. 1972); United States v. Porter, 441 F.2d 1204, 1216 (8 Cir. 1971), cert. denied, 404 U.S. 911 (1971); Davis v. United States, 357 F.2d 438, 440- 441 (5 Cir. 1966), cert. denied, 385 U.S. 927 (1966). ELTA SLL NT TSE MIE Ron ee ip BER pees. a, ELPA IONE LE ORG TPR TRS LEI Ie IE A 8 parce OSES ING EP LOWE et eA an a — A-65 — | Michael Santo Polizzi, et al. 65 counteract its own uncontested documentary evidence, but an inference specifically supported by other evidence is not barred simply because it is inconsistent with testimony of witnesses who were called by the government but have every reason to protect the defense. 2. Giordano argues that telephone company records showing calls between telephone numbers assigned to Giordano and Zerilli were inadmissible because there was no direct evidence as to who participated or what was said, citing Laughlin v. United States, 226 F. Supp. 112. » 113 (D.D.C. 1964). But this case held only that such records were insufficient corroboration in a perjary case, where “direct and positive evidence of falsity of defendant’s sworn statement” is required, and “cireumstantial evidence thereof is insufficient, no matter how persuasive.” 226 F. Supp. at 114. The Court of Appeals held such records admissible in a con- spiraey case, distinguishing the district court’s ruling in the earlier perjury case beeause of the high degree of corroboration necessary in a perjury case. Laughlin v. United States, 385 F.2d 287, 293 (D.C. Cir. 1967).18 Giordano also contends the government cannot rely upon infer- ence to establish the contents of the telephone ealls, citing Osborne v. United States, 371 F.2d 913, 927-29 (9th Cir. 1967). But in Osborne, each telephone call was the subject of a separate count charging a separate violation of 18 U.S.C. §1343, “Fraud by wire, radio, or television.” Proof of the contents of the particular tele- phone call was therefore crucial to conviction on the particular count. In the present case, the exact content of each telephone call is not crucial to conviction; the telephone calls themselves are not the subject of the charge. Proof of their occurrence, especially their timing and frequeney, is merely circumstantial evidence tending, with other circumstantial evidence, to show Giordano’s participa- tion in the conspiracy. 3. Giordano makes the same contention with respect to proof regarding his trips to Las Vegas—that no inference can be drawn from the fact that they occurred—and we reject it for the same reasons. He also argues that hotel records evidencing his stays at 18In the conspiracy case, there was evidence identifying the parties to the telephone calls (see 385 F.2d at 293), but the Court of Appeals did not rest admissibility upon this circumstance. ee a hn et SPO Nerney RR TET — A-66 — 66 United States of America vs. the Dunes Hotel in Las Vegas in 1967 should not have been admit- ted because other contemporaneous hotel records were destroyed “in accordance with routine hotel policy” prior to the return of the indictment in 1971. The argument is that if the indictment had been returned earlier the records might have been in existence and might have contained exculpatory or explanatory evidence demon- strating that Giordano’s visit had an innocent purpose. Giordano cites United States v. Marion, 404 U.S. 307 (1971). The contention is frivolous. The Sixth Amendment does not apply to pre-indictment delay, 404 U.S. at 313, and Giordano has not shown that the delay involved here violated the Due Process Clause. 404 U.S. at 32426. We need not consider, therefore, whether suppression of evidence would be a proper remedy if a due process violation had occurred. Cf. Strunk v. United States, 412 U.S. 434 (1973). DUNIWAY, Circuit Judge: I concur in the portions of this opinion prepared by Judges Renfrew and Browning. XVI. Criminal Liability of Emprise Corporation. Appellant Emprise Corporation argues that it is not liable for any criminal acts committed by its predecessor in interest. The facts are these: Before March 1, 1970, there was a New York cor- poration called High Park Corporation, which owned all of the shares of another New York corporation, Emprise Corporation (Old Emprise). On March 1, 1970, Old Emprise merged into its parent, High Park Corporation. On March 17, 1970, High Park Corporation amended its corporate name to Emprise Corporation (New Emprise). The February 26, 1971, indictment in this case charged “Em- prise Corporation” as a defendant. In July, 1971, it became clear that this meant Old Emprise, and, on September 9, 1971, the dis trict court dismissed as to Old Emprise for want of personal juris- diction over it. The government filed an information against New Emprise. New Emprise moved to dismiss, but this motion was denied, and New Emprise was convicted of violating 18 U.S.C. §§371 and 1952 and was fined $10,000. The charged offense was committed by Old Emprise, before the merger. PA RE Be oT we LE = SE ae ea ee TEE TT ae —— anh tn A RE Es OR aD Nee — A-67 — Michael Santo Polizzi, et al. 67 The question is whether the surviving corporation of a merger, here New Emprise, can be held criminally liable for acts com- mitted by a former subsidiary constituent corporation (Old Em- prise) which later merged into the survivor. Appellants argue that in this federal case we must apply federal law, regardless of what the state law may be, and that under fed- eral law only the constituent corporation, not the surviving corpo- ration, can be prosecuted. Of course we apply federal law. That, however, does not answer the question. Federal courts, in deciding federal cases, often borrow otherwise applicable state law as the federal law to be applied in a federal case when doing so is reason- able and there is no contrary federal policy. Here, Old Emprise and New Emprise are New York corporations. We can think of no federal policy that would prohibit our borrowing New York law in deciding whether New Emprise is liable for a crime committed by Old Emprise. Neither can appellants, beyond mere assertion. Under the Constitution, the federal government is not expressly granted the power to form corporations; it may do so only under the necessary and proper clause.! See, e.g., McCulloch v. Maryland, 1819, 17 U.S. (4 Wheat.) 316. The result is that nearly all corpo- rations in the United States are creatures of state law. This also means that when Federal statutes refer to “corporations” they necessarily include within that word corporations created under state law. Some Federal statutes are expressly applicable to state created corporations. See, e.g., 15 U.S.C. §7; Melrose Distillers v. United States, 1959, 359 U.S. 271, 272. In this case New Emprise was convicted of violations of 18 U.S.C. §§371 and 1952. §371 refers to “persons” and §1952 to “[w]hoever.” Under the Federal Rules of Construction, 1, U.S.C. §1. “In determining the meaning of any Act of Congress, un- less the context indicates otherwise— ee? 6¢ the words ‘person’ and ‘whoever’ include corporations ® © © as well as individuals; @ @ e e ss” The term “corporations” as used in 1 U.S.C. §1 clearly includes corporations formed under state law. See Alamo Fence Company 10. S. Const. art. I, §8. — A-68 — 68 United States of America vs. of Houston v. United States, 5 Cir., 1957, 240 F.2d 179, 181. Nothing in the contexts of §§371 and 1952 indicates meanings for the terms “persons” and “whover” other than those of 1 U.S.C. §1. Therefore, the existence and status of corporations charged under §§371 and 1952 should be determined by reference to the law of the state of their incorporation, unless the application of that law would conflict with federal policy. Cf. Melrose Distillers v. United States, supra, 359 U.S. at 274. In this case, no such con- flict exists, and New York law, therefore, will be applied. Convenience and common sense also point to the adoption of New York law as the federal law in this case, for the purpose of determining whether New Emprise is criminally liable. Both Old and New Emprise are artificial creations, wholly dependent on New York law for their existence. New York law defines their powers, rights and liabilities, prescribes their procedures, governs their continued existence, and defines the terms upon which mer- gers may occur and the effect to be given to mergers. These corpo- rations were created under New York law by people, however, and any penalty imposed on them is, indirectly, a penalty imposed upon the people who own and control them. If New York law provides for the imposition of such a penalty for acts for which those people bear the ultimate responsibility, there is no good reason for relieving them of the penalty because it arises from federal law. See Alamo Fence Company of Houston v. United States, supra, 240 F.2d at 183. Under modern state corporation laws, a corporation once formed, in the absence of a provision limiting its juristie life, exists per- petually unless it is dissolved or its corporate charater is annulled.” It is often said that the merger of a corporation into another is similar to the death of an individual, in that all current or future litigation by or against it is abated except insofar as the state of 2“Neither bankruptcy . . . nor cessation of business . . . nor dispersion of stockholders, nor the absence of directors . . . nor all combined, will avail without more to stifile the breath of juristie personality. The cor- poration abides as an ideal creation, impervious to the shocks of these temporal vicissitudes. Not even the sequestration of the assets at the hands of a receiver will terminate its being.” Petrogradsky Mejduna- rodny Kommerchesky Bank v. Nat’l City Bank of New York, 1930, 253 N.Y. 23, 31-32, 170 N.E. 479, 482 (Cardozo, C.J.), reargument denied, 1930, 254 N.Y. 563, 173 N.E. 867, cert. denied, 1930, 282 U.S. 878. — A-69 — Michael Santo Polizzi, et al. 69 incorporation may continue its juristic life. Melrose Distillers v. United States, 1959, 359 U.S. 271, 272; Oklahoma Natural Gas Co. v. Oklahoma, 1927, 273 U.S. 257, 259-60; United States v. Safeway Stores, Inc., 10 Cir., 1944, 140 F.2d 834, 836; United States v. Brakes, Inc., 157 F.Supp. 916, 918-19 (S.D.N.Y. 1958); United States v. Cigarette Merchandisers Ass’n, 136 F.Supp. 214, 215 (S.D.N.Y. 1955) (and cases cited therein at 215, n4). We turn to the New York law to determine the effect of the merger in this case. The relevant state statute governing the question here is N.Y. Bus. Corp. Law §906(b}(3) (McKinney 1963), which provides that after a certificate of merger or consolidation has been filed, The surviving or consolidated corporation shall assume and be liable for all of the liabilities, obligations and penalties of each of the constituent corporations. No liability or obliga- tion due or to become due, claim or demand for any cause existing against any such corporation, or any shareholders, officer or director thereof, shall be released or impaired by such merger or consolidation. No action or proceeding, whether civil or criminal, then pending by or against any such con- stituent corporation, or any shareholders, officer or director thereof, shall abate or be discontinued by such merger or consolidation, but may be enforced, prosecuted, settled or compromised as if such merger or consolidation had not oc- eurred, or such surviving or consolidated corporation may be substituted in such action or special proceeding in place of any constituent corporation. The first sentence of §906(b)(3) states that the surviving cor- poration is liable for its constituents’ “liabilities, obligations and penalties. .. .” While no court has decided whether “liabilities” and “obligations” as used in §906(b)(3) refer to criminal liabili- ties and obligations, two courts have held that these words, as used in other provisions of New York’s corporation laws, do refer to criminal liability. United States v. Cigarette Merchandisers Ass’n., supra (construing §90 of the New York Stock Corporation Law) ; People v. Bankers’ Capital Corp., 1930, 137 Mise. 293, 241 N.Y.S. 693 (construing §216(1)(e) of the New York General Corporation Law). We note, too, that §906(b)(3) also uses the word “pen- alties.” We therefore hold that the first sentence of §906(b) (3) — A-70 — 70 United States of America vs. permits the maintenance of a prosecution against the surviving corporation for crimes allegedly committed by a constituent cor- poration. Such a construction of New York’s corporation law is not unique. New York courts have held that civil causes of action arising before a merger or consolidation may be instituted against the surviving or the consolidated corporation. O’Brien v. New York Edison Co., et al. (two cases). 19 F.Supp. 968 (S.D.N.Y. 1937); Cameron v. United Traction Co., 1902, 67 App. Div. 557, 73 N.Y.S. 981; Lee v. Stillwater and Mechanicville St. Ry. Co., 1910, 140 App. Div. 779, 125 N.Y.S. 840. Appellants cite numerous cases which hold that a constituent corporation® or a dissolved corporation‘ remains sub- ject to criminal prosecution. None of these cases, however, holds that a surviving corporation (in the case of a merger or consolida- tion) may not be prosecuted. These cases therefore do not conflict with our holding. We adopt, as to the liability of New Emprise, the New York law as the federal law in this case. We leave to another day the question whether we would borrow applicable state law if that law were to purport to relieve both the constituent corporation and the surviving corporation of liability for crimes of the constituent corporation. XVII. Sufficiency of the Evidence. Appellants argue that the evidence is insufficient to sustain their convictions. Except as to appellant Giordano, whose arguments we have discussed above (see part XV, supra, their arguments lack 3United States v. Stone, 8 Cir., 1971, 452 F.2d 42; United States v. Anaconda American Brass Co., 210 F.Supp. 873 (D.Conn. 1962) ; United States v. Maryland and Virginia Milk Producers, Inc., 145 F.Supp. 374 (D.D.C. 1956); United States v. Cigarette Merchandisers Ass’n, Inc., supra; United States v. Union Carbide and Carbon Corp., 132 F.Supp. 388 (D.Colo. 1955), modified, 10 Cir., 1956, 230 F.2d 646. ‘Melrose Distillers, Inc. v. United States, supra; United ‘States v. BBF Liquidating, Inc., 9 Cir. 1971, 450 F.2d 938; Alamo Fence Co. of Hous- ton v. United States, 5 Cir., 1957, 240 F.2d 179; United States v. P. F. Collier & Son Corp., 7 Cir., 1953, 208 F.2d 936; United States v. Globe Chemical Co., 311 F.Supp. 535 (S.D. Ohio 1969); United States v. Arcos Corp., 234 F.Supp. 355 (N.D. Ohio 1964); United States v. Sam Diego Grocers Ass’n, Inc., 177 F.Supp. 352 (S.D. Cal. 1959); United States v. Brakes, Inc., supra. — A-71 — \ Michael Santo Polizzi, et al. 71 substance. It would serve no useful purpose to set out the evidence in detail. We have examined it, and we find it more than sufficient. XVIII. The Taint of Megal Electronic Surveillance. Appellants claims that the trial was materially tainted by leads from unlawful electronic surveillance. Between 1962 and 1965, the government intercepted and recorded numerous telephone conversations of appellants Zerilli, Polizzi and Giordano. The product of this surveillance is embodied in type- written transcriptions or “logs” of the intercepted conversations. The government concedes that the electronic surveillance was con- ducted illegally. The prosecutors were initially unaware of this surveillance, but on June 3, 1971, they were informed of it by the Justice Depart- ment. On September 8 ,1971, the district court ruled that there would be a post-trial Alderman hearing. An in camera hearing was held on November 13, 1971, at which the court ruled that pre- trial access to the logs would be limited to appellants Zerilli, Polizzi, Giordano, and their respective attorneys. At the post-trial Alder- , man hearing, which commenced on June 12, 1972, and continued on June 13, June 14, June 15, June 23, and July 7, 1972, the court concluded that “the evidence in this case cam Plaintiff-Appellee, vs. No. 72-2983, 72-2984, 72-2985, 72-2986, 72-2987, 72-2988, 72-2989 DC No. 7574 DWW Michael Santo Polizzi, Jack §. Shapiro, Peter James Bellanca, Anthony Giar- dano, Arthur J. Rooks, Anthony Joseph Zerilli, Emprise Corporation, a New York Corporation, Defendants-Appellants. ) JUDGMENT Appeal from the United States District Court for the Central District of California. This Cause came on to be heard on the Transcript of the Record from the United States District Court for the Central District of California and was duly submitted. On Consideration Whereof, It is now here ordered and ad- judged by this Court, that the judgment of the said District Court in this Cause be, and hereby is Affirmed. Filed and entered April 30, 1974. Pt LB, eevee COR Se oe ae Som APPENDIX C UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Unttep States OF AMERICA, Plainiif-Appelke, i vs. No. 72-2983 Micuakt. Santo Powizz1, — pefendant-Appellant. UnITEep STATES OF AMERICA, Plaintiff-Appellee, vs. No. 72-2984 Jack S. SHAPIRO, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellec, vs. No. 72-2985 PETER JAMES BELLANCA, Defendant-Appellant. Unitep STATES OF AMERICA, Plaintiff-Appellee, vs. No. 72-2986 ANTHONY GIORDANO, Defendant-Appellant. Unrtep STATEs OF AMERICA, “taht. on Plaintiff-Appellee, No. 72-2987 ARTHUR J. Rooks, Defendant-Appellant. Unrrep StaTEs OF AMERICA, Plaintiff-Appellee, vs. No. 72-2988 ANTHONY JOSEPH ZERILLI, Defendant-Appellant. Unrtep States OF AMERICA, Plaintiff-Appellc ¢, | No. 72-2989 vs. Emprisr Corporation, a New York corporation, | ORDER Defendant-Appelant. | [July 18, 1974] [July 25, 1974]* * Per Order of Court of Appeals dated August 5, 1974, the date of entry of this Order was corrected to July 25, 1974. Mn LD _ PA PELE LTE LL NED POONER! pow. yee 2 United States of America vs. Before: BROWNING and DUNIWAY, Circuit Judges, and **RENFREW, District Judge The opinion filed April 30, 1974, is modified as follows: Slip Opinion, page 3, third line from bottom: Change line to read: “lant Giordano’s* motion for sever- ance.” Add the following footnote: “ *In the indictment, ap- pellant’s name was spelled Giardano. His true name is Gior- dano.” Slip Opinion, page 16, lines 14-16: Change lines to read: “at 492. That phrase does not rc- quire specific intent to violate state law, but rather specific intent to facilitate an activity which the accused knew to be unlawful under state law. This interpretation, apart from its inconsistency with the literal”. Slip Opinion, page 35, last line, to page 36, line 6: Delete the third and fourth sentences of the paragraph and footnote 57 on page 36 and substitute the following: “There was no express reference to the Mafia in the prosecutor's statement, nor could such a reference be reasonably implied.” Slip Opinion, page 36, seventh line from bottom, to page 37, line 20: Delete the last four sentences of the paragraph beginning on page 36 and the first two full paragraphs and footnote 58 on page 37, and substitute the following: For all that the jury knew from Polizzi’s direct testimony, his “problem” could have been one of short duration—c.g., insufficient financing—which would not have indefinitely pre- cluded licensing. If so, there would have been no motive for furtive investment. Thus, the nature of Polizzi’s “problem” was clearly relevant. And while the trial judge did order Polizzi to answer the question regarding the “problem” he did not order the defendant to use the word “Mafia.” Pollizi **Honorable Charles B. Renfrew, United States District Judge, Northern District of California, sitting by designation. ¥.. ee Michael Santo Polizzi, et al. 3 could have answered the question truthfully and specifically without using the “Mafia” term—for example, he could have said that he understood that he would not be considered a suitable person for a license. Thus, sinee the general nature of Polizzi’s problem was directly relevant and the prejudicial Mafia connection was volunteered by Polizzi, the trial court's ruling was well within its wide discretion in controlling cross-examination and in balancing its probative value against possible prejudice. This result is even clearer as to Zerilli. The reason why Zerilli could not be licensed was not admissible merely to im- peach Zerilli or his attorney—it was directly relevant to Zerilli’s guilt. If the reason Zerilli could not be licensed was, as he testified, his ownership interest in a race track, then his testimony of continuing interest in the enterprise because of an intention to invest later might be credible. The race track regulation was appavently unclear and Zerilli could in any event sell his race track interest. However, if the reason he could not be licensed was his reputation, then any hope of investing later would be doubtful since his reputation was | unlikely to change. Zerilli therefore had a strong motive to make his investment surreptitiously. Moreover, there was no mention of the Mafia in connection with Zerilli, only of his “reputation,” so that the court did not err in permitting the government to cross-examine Zerilli on the reasons why he could not be licensed. Slip Opinion, page 49, lines 8-10: Delete the second sentence of the paragraph and footnote 77. Slip Opinion, page 50, line 1: © Delete the reference to footnote 78 and the footnote. Slip Opinion, page 71, lines 6-8: Delete the first sentence of the paragraph and substitute the fo}- lowing: “Between 1962 and 1965, the government conducted elec- tronics surveillance against appellants Zerilli, Polizzi and Gior- dano.” im a oon 4 United States of America vs. Slip Opinion, page 74, line 12: Change citation to read: Walder v. United States, 1954, 347 US. 62, 66. / Slip Opinion, page 78, lines 14-17: Delete the entire paragraph. Slip Opinion, pages 37-50: Change footnote 59 to 57 and renumber the following footnotes to reflect the deletion of present footnotes 57, 58, 77 and 78. The panel as constituted in the above cases has voted to deny the petitions for rehearing and to reject the suggestions for re- hearing in banc. The full court has been advised of the suggestions for in banc rehearing, and no judge of the court has requested a vote on the — suggestions for rehearing in banc. Fed. R. App. P. 35(b). The petitions for rehearing are denied and the suggestions for rehearing in banc are rejected. Dated: July 18, 1974 ' —Dl— APPENDIX D Affidavit of Logan J. Lane State of California, County of Los Angeles—ss. I, the undersigned, LOGAN J. LANE, make the following declaration: I am a professional inventightes licensed by the State of California. I interviewed Alfred L. Palmer at Les Angeles, California, on May 12, 1974. Mr. Palmer acknowledged to me that he was a juror in “The Frontier Hotel case.” During the interview, Palmer acknowledged that at a federal court hearing some two years ago. occurring after the jury verdict had been rendered in that case, Palmer had spoken with a defense attorney from Detroit and that, in Palmer’s presence, the attorney correctly reported to the court what Palmer had just stated to the attorney in private conversation. During my interview with him, Palmer stated with reference to the same court hearing, that the prosecutor who won the case spoke to him in the hallway outside the courtroom and told him, Palmer, that he had no business being there, and that he should leave the courthouse and not return. Palmer told me, “I thought he was right, and the best thing for my own good was to leave. So I left.” /s/ Logan J. Lane Logan J. Lane Sworn to before me this 22nd day of May, 1974. | / /s/ Thelma P. Pedersen Notary Public for the State of California en lt cies APPENDIX E Affidavit of Special Agent Robert J. McCarthy [Exhibit 1 on Motion to Suppress] Washington, D.C. August 2, 197i This is to certify that I, Robert J. McCarthy, Special Agent, Federal Bureau of Investigation, supervised the handling of an inquiry from the United States Department of Justice for elec- tronic surveillance coverage information on Anthony Giordano, Louis M. Jacobs, Anthony Joseph Zerilli, and Michael Santo Polizzi. I certify that all logs and airtels which were previously fur- nished to the United States Department of Justice represent the entire bank of transcripts relating to these defendants who are named in an indictment in the United States District Court for the Central District of California. I further certify that the original tape recordings relating to the transcripts submitted in this case have been routinely de- stroyed. /s Robert J. McCarthy Robert J. McCarthy Special Agent Federal Bureau of Investigation District of Columbia: Subscribed and sworn to by Robert J. McCarthy on August 2, 1971, before the undersigned at Washington, D.C. ss’ Louise D. Walter Notary Public My Commission Expires: [Indistinct] LOUISE D. WALTER MY COMMISSION EXPIRES AUG. 14, 1973. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0523%3A2. Public record. Not legal advice.