Opposition Brief — Bonacorsa v. United States

INDEX

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CITATIONS

Cases:

Arena v. United States, 226 F. 2d 227,

certiorari denied, 350 U.S. 954 ooo.

Bryson v. United States, 396 U.S. 64 ...........

United States v. Andrews, 370 F. Supp. 365

United States v. Chapin, 515 F. 2d 1274,

certiorari denied, No. 75-401, December

ig UNE teicnltldusiseinhrenstibintesaingetebasigbninatnewsens

United States v. Edmondson, 410 F. 2d 670,

certiorari denied, 396 U.S. 966 .................

United States v. Gerry, 515 F. 2d 130,

certiorari denied, 423 U.S. 832 .................

United States v. Makris, 483 F. 2d 1082,

certiorari denied, 415 U.S. 914 .................

United States v. Mandujano, No. 74-754,

GeO Ty OD, BGI oi oiviiccssccecsveecenesccnes

United States v. Marchisio, 344 F. 2d 653 ...

i

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Page

United States v. Otto, 54 F. 2d 277 .......cccceceeeeeeeeee 9

United States v. Paolicelli, 50S F. 2d 971 .............. 11

United States v. Wall, 371 F. 2d 398 .................0... 11

Statutes:

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Pa. NED siceadincininsiatelssminttin vines bieiddenee 2

Far Ms. UND piddnksatiinnsiohisicsssshadanpealllaantiamapiatadieiais 2

In the Supreme Court of the United States

OcTOBER TERM, 1975

No. 75-1377

JOSEPH BONACORSA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-1 la)

is reported at 528 F.2d 1218.

JURISDICTION

The judgment of the court of appeals was entered on

January 9, 1976. A petition for rehearing with suggestion

of rehearing en banc (Pet. App. 3la-32a) was denied on

February 26, 1976. The petition for a writ of certiorari

was filed on March 26, 1976. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether it was improper to call petitioner, a poten-

tial defendant, before the grand jury.

(1)

Pecan SAE OO eA NRE ERI 1 ESE ASOT LES TIO OPE NE ST RRS Se MBN A RNS teat

2. Whether questions to which petitioner gave will-

fully false responses were fatally ambiguous or were

open to a reasonable interpretation as to which his re-

sponses were truthful.

3. Whether there was a material variance between the

indictment and the proof at trial.

7 STATEMENT

Following a jury trial in the United States District Court

for the Eastern District of New York, petitioner was con-

victed of perjury, in violation of 18 U.S.C. 1623, and ob-

struction of justice, in violation of 18 U.S.C. 1503. Peti-

tioner was sentenced to concurrent terms of two years’

imprisonment, with the execution of all but four months

suspended, and was placed on probation for three years.

He was also fined $1,000 on each count. The court of ap-

peals affirmed (Pet. App. la-1 la).

1. In April 1973, a special grand jury commenced an

investigation of possible violations of 18 U.S.C. 224 (sports

bribery) in the New York harness racing industry. During

the course of its investigation, the grand jury questioned

most of the harness drivers, including petitioner, who

operated at Roosevelt and Yonkers Raceways (Tr. 25).!

Among the subjects material to the grand jury’s inquiry

was the hidden ownership of race horses—that is, whether

the registered owners of certain horses were the actual

“Tr.” refers to the trial transcript. “H.” refers to the post-trial

hearing conducted on petitioner's motion to vacate the judgments

of conviction and dismiss the indictment. “Gov. Ex. 1” is the trans-

cript of petitioner's appearance before the grand jury on June 11,

1973; “Gov. Ex. 2” is the transcript of his grand jury testimony on

September 14, 1973; “Gov. Exs. 4 and 5” are the transcript of peti-

tioner’s deposition on December 17, 1973, and the transcript of his

adoption of that deposition before the grand jury on December 19,

1973.

orcen THROLIGH

3

owners (Tr. 18-31, 159-161). Specifically, the grand jury

questioned petitioner in order to determine whether Joli

Timmy, a race horse registered to petitioner’s wife, was

in fact owned by Forrest Gerry, who was not permitted

to own race horses.”

Petitioner appeared before the grand jury on September

14, 1973 (Gov. Ex. 2). Prior to this appearance, peti-

tioner (who was accompanied by his attorney) and several

other drivers had been given Miranda warnings and ad-

vised by government counsel that all were potential

targets of the grand jury’s investigation and could be in-

dicted (H. 6-7, 9, 18-21, 38, 41-42: Pet. App. 24a). Peti-

tioner then testified that in March 1973 he had purchased

several horses with $43,000 in borrowed funds and that he

had registered the horses in his wife’s name (Gov. Ex. 2,

p. 11).

Petitioner also gave the following testimony, which

was alleged in the indictment to have been willfully false

(Pet. App. 36a; Gov. Ex. 2, pp. 5-6, 11):

A. Are any horses which you now own or train or

have driven really owned by Forrest Gerry?

A. No sir.

* 7 = x *

Q. Did you ever purchase race horses for Forrest

Gerry under your name or your wife’s name?

A. No.

*Gerry was subsequently convicted of influencing the outcome

of harness races by bribery and of conspiracy to do so, in violation

of 18 U.S.C. 224. See United States v. Gerry, S515 F. 2d 130

(C.A. 2), certiorari denied, 423 U.S. 832. Gerry was not li-

censed by the United States Trotting Association to race horses

owned by him (Tr. 27-28, 44, 47).

re a we

4

Or anyone else’s name?

No.

Do you know if Forrest ever purchased horses

under anyone else’s ownership?

A. No, I don’t.

Thereafter, the government attorney handling the grand

jury’s investigation informed petitioner’s counsel of the

government's serious doubts concerning the veracity of

petitioner’s testimony. Government counsel also suggested

that petitioner’s attorney encourage his client to cooperate

fully with the grand jury’s investigation. Accordingly,

petitioner was scheduled to reappear before the grand

jury on December 17, 1973.

Due to the absence of a grand jury quorum on that day

because of inclement weather, petitioner instead gave a

deposition, with his counsel present, on the understanding

that it subsequently would be read to the grand jury (Gov.

Ex. 4; H. 22-24; Pet. App. 24a-25a). At that time, and at

the outset of his appearance before the grand jury on De-

cember 19, 1973, when he adopted the deposition under

oath, petitioner was told that he had a “right to remain

silent.” On both occasions petitioner stated his willingness

to testify.

QP Pen

The following testimony from petitioner's deposition

was alleged in the indictment to have been willfully false

(Pet. App. 38a-4la; Gov. Ex. 4, pp. 6-9, 10-11, and Gov.

Ex. 5):

Q. What about the tifth horse?

A. I didn’t want to hold any money. The fifth horse I

bought outright and I believe | remember the name

of the people was Ruben. Steve Ruben.

Q. And anybody else?

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A

Q

2 >L>

>

POPP HS

5

I think he had a partner but I dealt with Steve

because he was a trainer and so on and so forth

and | got a bill of sale from him for the amount

that I purchased the horse for and also we paid

the City sales tax to the tax people for the amount

on the horse.

You dealt with him directly?

Yes.

How did you pay him, with a check or cash?

No. Cash.

Do you remember approximately when this was?

It was in February sometime, Hal. I don’t know

the exact date right offhand.

How many times did you deal with him, just that

one time?

With who is this?

Mr. Ruben.

Just the one time, yes.

And this is for the horse Joli Timmy? Is that cor-

rect?

Right.

Q. I would like to go over now your testimony con-

cerning Forrest Gerry.

. Okay.

* * * * *

And did you ever have any business deals with

him at all?

A. No, No.

Q. No business dealings with him?

A. No. Not that I can remember of any type. The

only business dealing I ever had with Forrest

Gerry was when I first met him, many years ago.

It must have been fifteen years or better. A young

boy come to the track was looking for a goat and

I sold him a goat for $10.

* * * * x

Q. You never bought or sold horses from him?

A. No, I didn’t.

Q. And he was never your agent in buying or selling

any horses?

A. No.

2. The evidence at trial showed that, contrary to peti-

tioner’s testimony before the grand jury, Joli Timmy had

been purchased by Forrest Gerry. Steven Rubin, the horse’s

trainer, had negotiated the sale with Gerry, who gave

Richard Schweitzer, Joli Timmy’s owner, an initial $1,000

cash payment and a subsequent payment of $2,500 in

February 1973. Petitioner had not been involved in these

transactions and had never been represented to Schweitzer

or anyone else as the actual purchaser of the horse (Tr.

61-62, 64, 133-134, 177, 191, 238, 255-262, 266-267, 273,

277-281, 284).

At Gerry’s direction, Rubin had left the horse’s registra-

tion papers blank and had delivered them to petitioner,

who assured Rubin that he would give the papers to

Gerry. After the sale, Joli Timmy continued to race, with

petitioner’s wife falsely listed as his owner (Tr. 123-128,

133-135, 218, 275-276, 283).

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Bereseswesaeisc

7

The government’s proof on the obstruction of justice

charge showed that, shortly after the sale of Joli Timmy,

the grand jury’s investigation into race fixing in the har-

ness racing industry had been the subject of considerable

discussion within the industry (Tr. 146-147, 159-161, 174-

175). In September 1973, before the indictment against

Gerry was returned, Rubin met with petitioner on instruc-

tions conveyed by Gerry’s girlfriend. At petitioner’s

request, Rubin gave him a back-dated bill of sale for Joli

Timmy, showing petitioner’s wife as the owner of the

horse (Tr. 135-139, 180, 182, 239-240, 243). At this meet-

ing, petitioner told Rubin that if anyone were to question

him about the horse, he should tell them that petitioner

had purchased it—that “it would be better for the both of

[them] * * * if [Rubin] said [Bonacorsa] bought the horse”

(Tr. 138-138a, 140, 244, 249-251). A few weeks later, when

Rubin advised petitioner that no one had yet questioned

him about the horse, petitioner responded that Rubin

should “stay with” the story that the horse belonged to

petitioner (Tr. 141-142, 244-246).3

ARGUMENT

1. Petitioner contends (Pet. 21-22) that it was im-

proper to call him before the grand jury in December 1973

because the government had already decided to seek an

indictment against him. This Court, however, has only

recently reaffirmed the settled rule that “[tJhe obliga-

tion to appear is no different for a person who may himself

be the subject of the grand jury inquiry.” United States v.

‘Shortly thereafter, Rubin was interviewed by agents of the F.B.I.

and did in fact “stay with” this false story. When he received a

subpoena to appear before the grand jury, however, Rubin consulted

with an attorney. He then gave another statement to the F.B.I. and

testified before the grand jury, providing on both occasions sub-

stantially the same information that he later related at trial (Tr.

142, 144-147, 172, 184, 185-187, 197, 203-205).

SRE A RIEL EIEIO TELM MOTELS RON OE DIE HEE rates SEU Re cts Bg i AOE

8

Dionisio, 410 U.S. 1, 10, n. 8, quoted in United States v.

Mandujano, No. 74-754, decided May 19, 1976, slip op.

9.4 Furthermore, perjury is an unavailable form of

protest:

[OJur cases have consistently—indeed without ex-

ception—allowed sanctions for false statements or

perjury; they have done so even in instances where

_ the perjurer complained that the Government exceeded

its constitutional powers in making the inquiry.

United States v. Mandujano, supra, slip op. 12. See also

United States v. Knox, 396 U.S.77; Brysonv. United S tates,

396 U.S. 64.

In any event, any claim of unfairness is particularly

Suspect in petitioner’s case. Prior to giving the false testi-

mony alleged in the indictment, petitioner received

Miranda warnings and had been told that he was a

‘There is no support for petitioner’s claim (Pet. 21) that his ap-

pearance before the grand jury was not in furtherance of the investi-

gation of sports bribery in the harness racing industry. Petitioner un-

questionably possessed information highly relevant to the grand

jury’s inquiry—specifically, whether Gerry had ever acted as peti-

tioner’s agent in the sale or purchase of any horses (H. 25-26, 28)—and

his status as a target did not diminish the need for this evidence.

“It is entirely appropriate—indeed imperative—to summon indivi-

duals who may be able to illuminate the shadowy precincts of corrup-

tion and crime. Since the subject matter of the inquiry is crime, and

often organized, systematic crime * * * it is unrealistic to assume

that all of the witnesses capable of providing useful information will

be pristine pillars of the community untainted by criminality.”

United States v. Mandujano, supra, slip op. 8-9.

Although petitioner also contends that he and his counsel were

misled to believe that he would not be indicted (Pet. 22), petitioner

did not pursue this matter at the evidentiary hearing conducted on

his post-trial motion and did not examine government counsel on

this point.

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9

potential target of the grand jury’s investigation and could

be indicted. Thereafter, his attorney had been advised

that the government believed petitioner may have com-

mitted perjury. When petitioner appeared for his dep-

osition on December 17, he again was told of his “right

to remain silent.” Nevertheless, petitioner expressed

his willingness to testify and did testify on that day with

his counsel present. In these circumstances, petitioner’s

perjury certainly was the product of his free will rather than

government overreaching.

2. Petitioner contends (Pet. 14-20) that certain ques-

tions specified in the indictment as falsely answered were

fatally ambiguous and were subject to an interpretation

as to which his response was truthful. Count one of the

indictment, however, contained a series of related false

statements. It is settled that a conviction may be sustained

on proof that any one such statement was perjured. See

United States v. Edmondson, 410 F.2d 670, 673, n. 6(C.A.

5), certiorari denied, 396 U.S. 966; Arena v. United

States, 226 F.2d 227, 236 (C.A. 9), certiorari denied, 350

U.S. 954; United States v. Otto, 54 F.2d 277, 279-280 (C.A.

2). As the court of appeals noted (Pet. App. 8a), petitioner

did not specify the allegedly ambiguous assignments of

perjury at trial and has therefore waived any objections.

In any event, the court of appeals correctly concluded

(Pet. App. 7a, n. 6) that petitioner's claims of ambiguity

are “not supported by a dispassionate reading of the testi-

mony.” As the court noted (Pet. App. 6a-7a):

It is clear that the grand jury was attempting to

ascertain whether [petitioner] was fronting for

Gerry in the purchase and alleged ownership of Joli

Timmy. When viewed with anything but the parti-

san eye of an advocate, the questions, as they followed

one upon the other, were pointed toward the de-

velopment of this information.

dT oe eee ee WINE TS LOT SENT BARON RGR AS 5 ng

10

Petitioner falsely testified in his September 14 grand

jury appearance, for example, that he had purchased Joli

Timmy directly from Rubin. Government counsel then

inquired whether petitioner had paid Rubin in cash or

by check, and petitioner responded that he had paid in

cash (Pet. App. 39a). Petitioner now contends (Pet. 9)

that this response was truthful since, in his view, the

“uncontested” evidence at trial showed that Gerry,

acting as petitioner’s agent, had delivered a sum of cash

to Rubin. This argument, however, cannot be sustained

for two reasons. First, petitioner unequivocally denied

during his grand jury appearance that Gerry had ever acted

as his agent (Pet. App. 41a). Moreover, in the context of

the questioning it is apparent that petitioner was assert-

ing that he had dealt directly with Rubin and had per-

sonally paid him in cash for the horse.

Similarly unfounded is petitioner’s contention that his

testimony that he had dealt with Rubin “[jJust the one

time” was accurate. Although petitioner alleges (Pet.

10) that he had in fact dealt with Rubin only once (when

Rubin delivered Joli Timmy to him after Gerry had pur-

chased it), the grand jury transcript, again read in context,

clearly indicates that petitioner asserted falsely that he

had dealt with Rubin only on the one occasion when he

had directly purchased the horse from him.

‘Petitioner also contends (Pet. 18-20) that the prosecutor improperly

alleged in closing argument that Portions of petitioner's grand jury

testimony, not included in the indictment, were false. However,

the prosecutor expressly stated that these other Statements, relating

primarily to petitioner's disavowal of any business relationship with

Gerry, were relevant to the question of petitioner's intent to deceive

the grand jury (Tr. 475-481, 486-499a). The court also admonished the

jury that petitioner could not be convicted on the basis of statements

not set forth in the indictment and that such Statements could be

considered on the question of intent only if the jury was convinced

beyond a reasonable doubt that the Statements were false (Tr. 480-

480a).

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1]

In sum, petitioner had ample opportunity at trial to

argue that he misunderstood the grand jury’s questions

or that, under his interpretation of a particular question,

his answer was accurate. Resolution of these factual

issues was for the jury. See United States v. Chapin, 515

F.2d 1274, 1279-1280 (C.A. D.C.), certiorari denied, No.

75-401, December 8, 1975; United States v. Paolicelli,

505 F.2d 971, 973 (C.A. 4); United States v. Makris, 483

F.2d 1082, 1087-1088 (C.A. 5), certiorari denied, 415 U.S.

914; United States v. Marchisio, 344 F. 2d 653, 661 (C.A.

2); United States v. Andrews, 370 F. Supp. 365, 368 (D.

Conn.).®

3. Petitioner contends (Pet. 22-23) that there was a

material, prejudicial variance between the indictment

and proof on the obstruction of justice charge. The indict-

ment alleged that petitioner had corruptly endeavored

to obstruct the administration of justice on two occa-

sions by influencing Rubin to give false testimony before

the grand jury. Count two, on which petitioner was

acquitted, alleged that one obstruction occurred during

February 1973. Count three, on which petitioner was

*United States v. Wall, 371 F.2d 398 (C.A. 6), on which petitioner

principally relies (Pet. 15-16), is not to the contrary. In Wall, which

involved a non-jury trial, the court’s concern was not that there were

two reasonable interpretations of the question, but that the govern-

ment had introduced no evidence to show what the question ac-

tually meant to the defendant. 371 F.2d at 400. Furthermore, the gov-

ernment had conceded in that case that the question was susceptible

to two equally reasonable interpretations, and the interpretation

urged by the defendant was actually the more reasonable construc-

tion. Here, not only do we submit that, in context, the questions asked

of petitioner were unambiguous, but also there was substantial

evidence at trial from which the jury could have concluded that peti-

tioner was fully aware of the information that the questions were

designed to elicit.

s a COE SLE ES TET LO TTT INERT Ne SE EERO ince eas

12

convicted, alleged another obstruction occurring in Sep-

tember 1973. Count two of the indictment had been

based on Rubin’s grand jury testimony that, approximately

two weeks after the sale of Joli Timmy in February 1973,

petitioner and Gerry’s girlfriend had directed him to pre-

pare a false bill of sale for the horse. At trial, Rubin

acknowledged that he had been mistaken in this testimony

and that the incident had actually taken place in September

1973.

Petitioner’s claim of variance is totally without merit

in view of his acquittal on count two. Moreover, his

conviction on count three was based on the same evidence

as that heard by the grand jury—Rubin’s testimony that

petitioner, in September 1973, had told Rubin not to

divulge petitioner’s true ownership of Joli Timmy if he

were questioned by the authorities. Although Rubin

testified at trial that the preparation of the false bill

of sale also occurred in September 1973, the government is

not limited at trial to evidence that was introduced be-

fore the grand jury to procure an indictment.

CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

ROBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

SHIRLEY BACCUS-LOBEL,

Attorney.

JUNE 1976.

DOJ-1976-06

~

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