Petition for Writ of Certiorari — Gilhooly v. United States

IN THE

Supreme Court of the United States

October Term, 1992

EDWARD GILHOOLY,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

LARRY BRONSON

28 West 22nd Street

Bayonne, New Jersey 07002

(201) 858-8338

ALAN SCRIBNER

476 Maple Street, Box 309

Contoocook, New Hampshire 03229

(603) 746-4023

Attorneys for Petitioner

Questions Presented

1. Was a fair trial denied by the

introduction, without limiting instructions,

of massive hearsay evidence in violation of

Federal Rule of Evidence 803 (8), which

consisted of opinion, investigative reports

and legal and factual findings from the

office of the Attorney General of

Pennsylvania to the effect that the

petitioner was guilty of charitable frauds

and misrepresentations?

2. Was the challenge to the

introduction of the hearsay evidence

properly preserved or, alternatively, was

the introduction of the evidence, without

limiting instructions, plain error?

i ie

Parties to the Proceedings

There are no other parties to this

proceeding.

Besides the petitioner, Edward

Gilhooly, the other defendants indicted in

this case were: Pat Catapano, Marshal]

Sornik and Eva Knopf.

However, none of the other defendants

appealed to the Court of Appeals or are

petitioning for certiorari.

None of the other defendants appealed

or are applying for awrit of certiorari.

a oe |

TABLE OF CONTENTS

Questions Presented .............. i

Parties to the Proceeding......... ii

Meee GE AUSHOPICLSS. . oc cece sesecs iv

tT St. ee ee eee ee ee 2

PU RUEEMPE RONG sc cde ccccsccsccnseces 2

Statement of the Case............. 3

DN REIVOAVOG. 2 a ec ccc ce ncsccses 4

Statement Of FactS....cccccccccccs 5

Reason for Granting the Writ

The Petitioner was denied a fair trial

by the introduction of massive hearsay

evidence, without limiting instructions,

to the effect that petitioner was guilty

of charitable frauds and

misrepresentations........ eee eeeeees 13

The introduction of the hearsay

fg | ST eee eT T ET eee 14

The hearsay exhibits.............. 20

0 re ee ee 26

Preservation and opening the door. 29

DEC cbc GSS 6G bed eae dees eeecees 37

DPCM cee G BSG G Se Sede e be deseosaseess 38

a) MEME, BOLOWs cc cc ccscccescs Al

me Ge’ BMEMAS 2000... ce ccces A8

ae We Ge MUERMLS 200. 2 onc cccoss A16

D. Request for limiting

instructions (R.1077-8)...... A32

i

Me

TABLE OF AUTHORITIES

Cases:

United States v. Barash,

365 F.2d 395 (20d Cir 1966) .cccces 2? , 34,37

United States v. Bejasa,

704 F.2d 137 (2d Cir. 1983)... » 34

United States v. Brown,

540 F.2d 1048 (10th Cir. 1976)...29

United States v. Lieberman,

637 F.20 9S <2d Cir. 1960) ...2++-30,34

United States v. Mickens,

926 F.2d 1323 (2d Cir. 1991).....34

United States v. Oates,

3760 F.2d 435 (2d Cir. 1977) .cceee 27,33

United States v. Pisani,

fa Fae BP? C28 Cif « 1 96S). ccessde

United States v. Ruffin,

270 F.2¢0 346 (2d Cir. 1978)... cee228

Other Authorities:

Federal Rules of Evidence:

Rule 803 CS) wecccenscvessets 12,194,27,33

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1992

EDWARD GILHOOLY,

Petitioner,

Ve

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Edward Gilhooly respectfully

prays that a writ of certiorari issue to

review the judgment of the United States

Court of Appeals for the Second Circuit

entered in this case on October 23, 1992.

ie)

Opinion Below

The opinion of the Court of Appeals

affirming the conviction is in the form of a

summary order not to be published in the

Federal Reporter. A copy is set forth in

the appendix to this petition, pp. A 1-3.

Jurisdiction

The certiorari jurisdiction of this

Court is invoked under 28 USC 1254.

The judgement of conviction is dated

March 26, 1992.

The order of affirmance by the Court of

Appeals is dated October 23, 1992.

This petition is filed within 90 days of

the order of the Court of Appeals.

A

Statement of the Case

Petitioner Edward Gilhooly was

convicted on March 26, 1992 in the United

States District Court for the Eastern

District of New York, after a jury trial, of

conspiracy to commit wire fraud (count 1),

and four substantive counts of defrauding

customers and banks (counts 2,4,5,6). He was

acquitted of count 3, defrauding customers.

(18 USC 371; 1343, 1344, 3551 et seq.).

The petitioner was indicted (CR 91-149)

together with Pat Catapano, Marshall Sornik

and Eva Knopf. Catapano pleaded guilty, and

the remaining three defendants were tried

together before Hon. Leonard D. Wexler and a

Jury. Defendant Sornik was acquitted on all

counts except for the conspiracy, upon which

the jury could not reach a verdict. The

defendant Knopf was convicted on counts 5

and 6, involving defrauding banks.

The petitioner Gilhooly was sentenced

to 4 years and 3 months (51 months) on each

count, the sentences to run concurrently,

and to 3 years of supervised release.

Statute Involved

Federal Rule of Evidence 803 (8)

provides:

"The following are not excluded by the

hearsay rule, even though the declarant is

available as a witness:...

(8) Public records and reports.

Records, reports, statements, or data

compilations, in any form, of public offices

or agencies setting forth (A) the activities

of the office or agency, or (B) matters

observed pursuant to duty imposed by law as

to which matters there was a duty to report,

excluding, however, in criminal cases

matters observed by police officers and

a

other law enforcement personnel, or (C) in

civil actions and proceedings and against

the government in criminal cases, factual

findings resulting from an investigation

made pursuant to authority granted by law,

unless the source of information or other

circumstances indicate lack of

trustworthiness.”

Statement of Facts

In September 1989 Edward Gilhooly was 4

businessman who operated several enterprises

at 711-06 Koehler Avenue in RonkonKoma, Long

Island, New York. These included two

construction companies, an alarm company, an

auto repair company, and a non-profit

organization called Kid Watch, whose purpose

was to aid abused and missing children and

raise community awareness of this problem.

i ees, |

Kid Watch had been started by Gilhooly

and George Steinhoff in 1985, and Gilhooly

contributed over $100,000 af his own money

to it. Kid Watch had a 24 hour 800 number

hot line to supply information to parents

and the community, and provide referrals to

appropriate agencies. It organized a radio

alert network with stations across the

country to broadcast alerts and descriptions

of missing children. It also produced

missing children posters, educational videos

and literature, and maintained a lending

library of educational material. At times

it maintained a trauma center for counseling

and it was Gilhooly’s “dream" to establish

trauma centers across the country. At times

Kid Watch achieved successes in locating

missing children.

By September 1989, however, some Kid

Watch activities had fallen off through lack

of funds. Though it still maintained the

Ee |

~

800 number hot line, manned by co-defendant

Sornik, and though it still produced

literature and posters, its radio alert

program apparently was not being used, and

its trauma center was not in operation,

though Gilhooly was trying to reorganize it.

Into this setting came Pat Catapano,

who coopted Gilhooly to begin a

telemarketing coin company, Metro Rarities.

The idea was to use an existing, but dormant

merchant’s account in the name of Kid Watch

to charge credit cards. Catapano brought

into the business as his salesmen two

scoundrels, Stuart Cohen and Joseph Martone,

who Catapano Knew and had worked with in the

past. Both had committed crimes while

working at other coin companies, including

running an “air-bagging" scheme where they

would charge customers credit cards for

coins that were never ordered. In addition,

they would deliver phony sales pitches, send

coins that were never ordered, send coins of

lesser quality than were ordered, or doctor

coins to make them appear better than they

were. With a merchant’s account, they could

receive immediate payment from the bank on

credit card charges, and use the money from

the account before complaints from customers

could be processed.

Gilhooly was indicted for conspiracy

and substantive crimes connected with the

coin scheme run by Catapano, Cohen and

Martone. In addition the conspiracy count

charged Gilhooly with defrauding members of

the public in connection with the

solicitation of funds for Kid Watch,

charging that he falsely represented that

funds collected would be used to support an

emotional trauma center and the radio alert

network, whereas by September 1989, the

government alleged, there was no longer a

——————— |

trauma center in operation and no more radio

alerts were being broadcast.

The main issue at triai, as far as

Gilhooly was concerned, was whether Kid

Watch was soliciting funds by

misrepresentations and whether and to what

extent he Knew about, countenanced, or

participated in the coin scheme run by

Catapano, Cohen and Martone. Gilhooly was

convicted on all counts except for count 3,

an “air-bagging”" count. The acquittal was

undoubtedly based on admissions by Cohen and

Martone that the "“air-bagging" was their own

idea, carried out behind Gilhooly’s back.

When Gilhooly learned about it, he

disapproved and attempted to redress the

situation.

On appeal, we arqued that in this hotly

contested trial grave error was committed by

the admission into evidence of massive

amounts of highly prejudicial hearsay. In

10

particular the government was allowed toa

introduce, through the testimony of Jeffrey

Webb, an investigator from the Pennsylvania

Attorney General’s Office, a dacument

containing findings of fact and conclusions

of law from the Attorney General’s Office

that Gilhooly and Kid Watch had committed

fraud and misrepresentations in violation of

the State’s Charitable Reform Act and Unfair

Trade Practices Act. (Exhibit 2000, Appendix

A 4-6). In addition, the report of the

Attorney General’s investigation also was

allowed into evidence, listing in detail

interviews with numerous people, none of

whom testified at trial, and reporting their

hearsay statements, beliefs, rumors and

suspicions about Kid Watch. (Exhibit 200,

Appendix A 7-12). Furthermore, Webb was

allowed to testify to the hearsay opinion of

a psychologist that Sornik was “an innocent

11

dupe" of Gilhooly “who was the responsible

party." (R.737-8).

Incredibly none of this highly

inflammatory and prejudicial hearsay opinion

evidence was restricted by any limiting

instructions from the trial court, despite

objections and requests.

The excuse for the admission of the

hearsay was that Sornik’s attorney opened

the door to it by his cross-examination of

Webb. Though his cross-examination hardly

opened the door to the massive amount of

hearsay actually dumped into the case on

rebuttal, Gilhooly’s attorney never even

cross-examined Webb and did not open the

door to any of it as far as Gilhooly was

concerned. But there was no redaction or

limitating instructions as to Gilhooly.

Thus Gilhooly’s defense was swamped by

hearsay totally inadmissible on his case.

iz

The Second Circuit affirmed, writing

that the objections and request for limiting

instructions at trial were inadequate to

preserve the point for review. The opinion

does not discuss the substantive issue,

except to conclude that the “contentions

lacks merit." (Appendix, A 1-3). We

believe that this summary opinion wrongly

decided the preservation issue under the

facts of the case, that it swept under the

rug a denial of a fair trial, and let stand

a serious breach of Federal Rule of Evidence

803 (8).

POINT

THE PETITIONER WAS DENIED A FAIR TRIAL

BY THE INTRODUCTION OF MASSIVE HEARSAY

EVIDENCE, WITHOUT LIMITING INSTRUCTIONS,

TO THE EFFECT THAT GILHOOLY WAS GUILTY OF

CHARITABLE FRAUDS AND MISREPRESENTATIONS.

The issues at trial, as far as the

Petitioner was concerned, were whether Kid

Watch misrepresented its activities and

whether and to what extent he participated

in or countenanced the coin frauds

perpetrated by Metro salesmen Cohen and

Martone. In this regard, Gilhooly’s

Knowledge, intent to defraud, and

wilfullness were important elements of

culpability for both the conspiracy and

substantive crimes.

In this setting, and in the heat of

trial combat, the prosecutor succeeded in

putting before the jury massive hearsay

evidence consisting of opinion,

investigative reports, and legal and factual

findings from the office of the Attorney

—EEEOOEOEOEOEOEOEOESESE ee

14

General of Pennsylvania that Gilhooly and

Kid Watch were responsible for charitable

frauds and unfair trade practices. This

sort of evidence is not allowed under

Federal Rule of Evidence 803 (8), and its

admi¢esion was not cured by any Iimiting

instructions. The hearsay not only provided

an official governmental finding and opinion

on one of the precise counts before the

Jury, but it doomed Gilhaoly’s defense on

the issues of intent to defraud, willfulness

and Knowledge with respect to all the

counts.

The introduction of the hearsay at trial

Jeffrey Webb, an investigator from the

Pennsylvania Attorney General’s Office, was

initially put on the stand to testify to an

inconsistency he found in a statement by

Sornik submitted during Webb’s investigation

of Kid Watch’s charitable solicitations in

i5

Pennsylvania. It seemed that Sornik had

responded to the Attorney General’s demand

letter by stating that Kid Watch operated an

emotional trauma center from January to

November 1989. At the same time minutes of

April 1989, submitted along with the letter,

recorded a discussion only about an

intention to establish the trauma center.

Also submitted by Sornik were some names of

people who would verify his claims.

On cross-examination, Sornik’s attorney

questioned Webb about his interviews with

these people, a sociologist (¢(R. 710-11), a

Mr. Hoffman (R.717), and a Mr. Thompson

(R.724, 726, 733). Counsel also sought to

show that his client was “the innocent dupe

of good intentions" (R.737). This appraisal

had been made to Webb by a psychologist, La

Rossa, who had dealings with Kid Watch and

who Webb had spoken to on the telephone.

Instead of confining his answer to Sornik

16

being the “dupe of good intentions", Webb

went beyond the question to report the

psychologist’s opinion that Sornik was the

dupe of Gilhooly, who was the actual

culprit.

"Yes, he (the psychologist) did state

that he felt Mr. Sornik was not the

responsible party. He felt that it was Mr.

Gilhooly...He stated that he (Sornik) was an

“innocent dupe’..." (R.737-8).

For some unknown reason, there was no

objection to this hearsay opinion

inculpating Gilhooly. There was also no sua

sponte striking of the blatantly

inflammatory testimony by the trial judge

nor even limiting instructions that it could

not,be considered by the jury against

Gilhooly for the truth of what was asserted.

The incident did not stop there,

however. The government, seeking to

counteract the implication that Sornik was

17

“an innocent dupe", then was allowed to

elicit from Webb, this time over objection

(R.742), “the conclusions that the Attorney

General’s Office reached as a result of

their investigation." (R.742). Webb

responded that “they reached the conclusion

that Kid Watch had violated parts of the

Charitable Reform Act and also unfair trade

practices." (R.742). Asked who the Attorney

General’s office found was “involved in

those conclusions", Webb testified, over

objection, “Mr. Gilhooly and Mr. Sornik"

(R.7449).

Then, to compound this error, two

documents from the Attorney General’s Office

were put into evidence through Webb: 1)

Exhibit 2000, a letter from the Attorney

General’s Office to Gilhooly’s attorney

listing in detail misrepresentations and

violations of the Charitable Reform Act and

Unfair Trade Practices Act, and asking

18

Gilhooly to confess judgment to avoid the

filing of a complaint (Appendix: A 4-46)3 and

2) Exhibit 200, Webb’s own written report of

his investigation detailing numerous

interviews containing hearsay statements,

opinions, rumors and feelings about Gilhooly

and Kid Watch committing fraudulent

practices. (A 7-12).

These documents, inadmissible hearsay

in themselves, contained opinions,

conclusions of fact and law, and patently

inflammatory statements. They were allowed

into evidence on the theory that Sornik’s

-attorney had opened the door by his

cross~-examination (R.755-7). But whatever

Sornik’s attorney may have invited by this

line of questioning, Gilhooly’s attorney was

not a party to it. Indeed, he did not

cross-examine Webb at all (R.706). Thus,

there was no opening of any door with

respect to the Attorney General’s opinion

hy

regarding Gilhooly, nor of what the

witnesses in their investigation said about

him. Accordingly, this “evidence”, i f

admissible at all, could only have been used

against Sornik, and required, at a minimum,

redaction or limiting instructions as to

Gilhooly. But neither of these were done.

To the contrary, an additional motion to

give limiting instructions in the charge was

expressly refused (R.1077-83 Appendix: A

13-14), and both exhibits went to the jury,

along with all the other exhibits (1234),

without any limitation as to their use.

Indeed, in summation the government

specifically recommended that the jury pay

special attention to the Attorney General’s

conclusions in Exhibit 2000.

"Members of the jury, when you review

the evidence in this case, I will ask you to

review the Government’s Exhibit 2000 in

evidence, which indicates the conclusions

and the findings of the Pennsylvania

Attorney General’s office." (R.1206).

The hearsay exhibits

Exhibit 2000 (A 4-6) is a letter from a

Deputy Attorney General of Pennsylvania to

Gilhooly’s then attorney, dated October 4,

1990. It asks him to tell Gilhooly that the

Attorney General has completed its

investigation about Kid Watch fund raising

activity in Pennsylvania, contracted out to

American Marketing Associates, but “promoted

and arranged" by Gilhooly. (AG). The letter

then states that telephone solicitations and

mailings violated the Charitable Reform Act

and Unfair Trade Practices and Consumer

Protection Acts “by making the following

misrepresentations or omissions of material

fact." (A 5S). Then it lists a) that there

was no longer an emotional trauma center in

New York, b> there was no emotional trauma

center in Pennsylvania, c)> there was no

staffing in New York of an emotional trauma

center by licensed and qualified counselors,

21

d> that a sampling of radio stations showed

no radio alerts within the past two years,

and some stations were not even aware of the

program; e) that there was no 24 hour hot

line, only an answering service that was

“unable to counsel people’s problems or

provide information to those callers"; #f)

that Kid Watch was not properly registered

by the Bureau of Charitable Organizations,

g> that there was nothing to substantiate a

claim of 90% success rate in the recovery of

missing ckiteiens h> that donations for ads

did not result in any ads ever being

printed; and i) that Sister Adrianne

Barrett’s name was used without her

permission to represent that she endorsed

Kid Watch, when “such was not the case." (A

3).

The letter concluded by asking Gilhooly

to refrain from further solicitations for 5

years, to make restitution of $3,750 raised

——

from Pennsylvania residents, and to pay

$7,000 in fines and penalties for the cost

of the investigation. Failing compliance, a

complaint will be filed in court. (A 6).

Exhibit 200 (A 7-12) is Webb’¢

investigative report on Kid Watch. It

detailed how the investigation began from

suspicions of the Director of Public Safety

for Scranton and complaints from local

social agencies, as well as “rumors” that

Kid Watch was under investigation. (A 7).

It then pronounced its “Findings" about

the trauma center and reported the

suspension of the trauma center operations

in New York in November 1988, and the

following interviews with people who were

not witnesses at the trial.

Robert Johnson, a policeman in

Hauppage, NY, assigned to missing children

services told Webb that he “was familiar

with Kid Watch, and not impressed." He

didn’t Know of a trauma center. (A 8).

John Thompson of the AMA stated he was

under the impression that Kid Watch had a

trauma center. (A 8).

The report then turned to interviews of

people whose names were supplied by Kid

Watch. CA 9%).

Louis LaRosa, a psychologist, stated he

worked for Kid Watch for 4 weeks in 1987.

He “never provided any counseling services

or set foot in a trauma center." He was

asked by Kid Watch to run a trauma center

and set it up better. But “he does not

think a trauma center existed at that time,

and would be suprised if one had ever been

started after that. He does not feel Kid

Watch was organized, had the ability to set

up a trauma center on their own and he was

not comfortable being associated with them."

(A 9).

Nancy Mamis, a social worker, told Webb

that she never provided any counseling

services for Kid Watch. She had given them

some advice but “would not have worked for

them as she did not feel the» were

professionals." (A 9%).

Michael Hoffman, a social worker,

stated he worked at the trauma center from

January to October, 1988, 2-3 hours per

week, counseling 12 people on the phone and

in person. "Hoffman was very nervous

talking to me about Kid Watch." A 9).

Regarding the Kid Watch hot line,

Webb’s “Findings” included the following: (A

10-11).

Kathy Vennie, a Director of Child

Adolescent Services in Scranton, had a man

pose as a father who thought his daughter

was abused. He called Kid Watch and was

told to call information to locate the

proper social agency. She also had a woman,

ee

au

whose child was missing, call the hot line.

This woman received “no help or advice from

the representative, became frustrated with

what she called “a run around’ and hung up."

CA 10).

Webb wrote that he personally phoned

the hot line, pretending .to be calling for a

friend whose child was missing for 4 day and

a half. He was told that the parent would

have to call and asked if he called the

police. Webb asked what Kid Watch could do,

and was told they would announce it on a

participating radio station if one was in

the area, otherwise they could print up

posters.(A 10-11).

Contacting radio stations, Webb spoke

to Bill Terry of WBLI in New York about Kid

Watch radio alerts. Terry said they were

initially involved in 1985-6 and received

alerts to be aired "fairly frequently."

They aired 40-50 alerts, and were succesful

a

in finding children. But they haven’t heard

from Kid Watch in 3 years. (A 11).

Other stations contacted by Webb in

Philadeiphia, Kansas, South Carolina,

Connecticut and New York also reported

initial activity but none since. (A 11).

"Miscellaneous Findings" reported that

the county agency for child protection in

Suffolk never heard of Kid Watch and that

Sister Adrienne Barrett’s name was used for

publicity purposes without her consent. (A

ea Fo oe

The law

Both Webb’s investigative report and

the letter from the Attorney General’s

Office with its findings of fact and

conclusions are inadmissible hearsay. They

are out of court statements presented for

the truth of the matter contained therein.

Federal Rules of Evidence Sec. 803 <8) ¢b)

excepts public records and reports from the

hearsay rule, specifically “excluding,

however, in criminal cases matters observed

by police officers and other law enforcement

personnel." Section 803 (8)(c) also Keeps

out "factual findings resulting from an

investigation made pursuant to authority

granted by law."

As held in United States v. Oates, 560

F.2d 45, 72 (2d Cir. 1977):

“We thus think it manifest that it was

the clear intention of Congress to make

evaluative and law enforcement reports

absolutely inadmissible against defendants

in criminal cases."

Moreover, there is no other hearsay

exception that would allow such material

into a case. Qates also stated this quite

clearly.

"(Wile hold here that in criminal cases

reports of public agencies setting forth

matters observed by police officers and

other law enforcement personnel and reports

of public agencies setting forth factual

findings resulting from investigations made

pursuant to authority granted by law cannot

satisfy the standards of any hearsay

exception if those reports are sought to be

introduced against the accused." S60 F.2d at

84, supra. To the same effect, United

States v. Ruffin, 575 F.2d 346 (2d Cir.

1978).

The typical reasons for excluding this

Kind of hearsay are applicable here. The

witnesses interviewed by Webb are not

subject to cross-examination. Their

statements were not under oath, their

accuracy cannot be questioned, their bias

cannot be ascertained, the jury cannot

observe their demeanor, and it is not Known

how accurately the investigator wrote down

what was told to him.

Moreover, when it comes to the

conclusions and findings of fact in the

Attorney General’s letter, such opinions are

doubly objectionable because they usurp the

function of the jury. e.g. United States vy.

2?

Brown, 540 F.2d 1048 (10th Cir. 1976);

United States v- Barash, 365 F.2d 395 (2d

Cir. 1966). Heresy where the jury was

supposed to decide, under the conspiracy

count, whether Gilhooly perpetrated Kid

Watch frauds and misrepresentations, the

opinion of the Attorney General’s Office

that he did usurps the jury’s function.

Indeed, this official conclusion could

hardly be more damning to the defendant,

which is, of course, the reason why the

prosecutor in his summation specifically

asked to the jury "to review the

Government’s Exhibit 2000 in evidence, which

indicates the conclusions and the findings

of the Pennsylvania Attorney General’s

Office." (R-1206).

Preservation and opening the door

The Second Circuit held that 1)

Gilhooly cannot rely on co-defendant

_————

30

Sornik’s request for limiting instructions

“since that request did not seek the

limitation as to which Gilhooly now claims

the jury should have been instructed."

(Appendix: A 2), and 2) that although

Gilhooly objected to the government’s

redirect examination of Webb, the defense

had opened the door to it. (ibid,).

As far as the request for limiting

instructions is concerned, it is true that

co-counsel began his request by trying to

characterize what Kind of document Exhibit

2000 was, and did not mention hearsay.

However, he went on to cite a case, United

States v. Lieberman, 637 F.2d 95 (2d Cir.

1980), and asked that the jury be given

"limiting instructions...under Lieberman."

(R.1077-8; Appendix: A 13-14). Lieberman is

a hearsay evidence case in which the court

held: “to the extent that the hotel

registration card was admitted for

non-hearsay purposes; Lieberman was

entitled, if he requested, to a jimiting

instruction." 637 F.2d at 101, supra.

Citing a specific hearsay evidence decision

entitling the defendant to limiting

instructions should be sufficient to make a

request for limiting instructions in a

hearsay situation, and to preserve the

failure to give those limiting instructions

for the appeal.

As far as opening the door is

concerned, it will be remembered that

Gilhooly’s attorney did not even

cross-examine Webb. (R.706). Thus Gilhooly

didn’t even Knock on the door, much less

open it up. Moreover, Sornik’s attorney’s

cross-examination only tested Webb with

regard to the people whose names Sornik gave

him for verification, Or. LaRossa, Mr.

Hoffman and Mr. Thompson. If he opened the

door, it would only be to Webb’s report

ti

ha

regarding his interviews of these people,

and then only in relation to Sornik. But

Webb’s report went much, much further. It

also reported on interviews with Robert

Johnson, Nancy Mamis, Leon Smith, Kathy

Vennie, Bill Terry, Carmen Cassiano, Sister

Adrienne Barrett and others, as to feelings,

misgivings, rumors, suspicions and

statements about Kid Watch. This went way

beyond what was broached in the

cross-examination. Indeed, many of the

statements made in Webb’s report also went

far beyond any misrepresentations alleged in

the indictment, which was limited to the

trauma center and radio alerts. Here, it

even included the ailegation that Kid Watch

used the name of a nun, Sister Adrienne

Barrett, without her permission, a

particularly inflammatory piece of

"evidence." Just because an investigation

is attacked on cross-examination as being

deficient in some aspect, doesn’t mean that

the entire investigative file can be dumped

into evidence, particularly where it

contains enormous amounts of prejudicial

hearsay. 10 do so contradicts the whole

idea of 803 (8)¢c) of the Federal Rules of

Evidence which excludes investigative

reports. They are supposed to be

“absolutely inadmissible” in -riminal cases.

United States v- Oates, 560 F.2d 45, 72 ‘2d

Cir. 1977). At the very least, instructions

to the jury that the hearsay statements

could only be used to rebut the claim that

the investigatiion was shoddy should have

been qiven. But as it stands, the jury

could have taken all the hearsay for the

truth of the matter asserted, and, indeed,

this was just what the prosecutor told the

jury to do in his summation (R.1206).

Moreover, even if some of Webb’s report

could have been used in response to

i

34

cross-examination by Sornik, Gilhooly was

entitled to redaction or instructions to the

effect that it could not be used against

him. e.g. United States v. Lieberman, 637

F.2d 95, 101 (2d Cir. 1980); United States

v. Barash, 365 F.2d 395, 400 (2d Cir. 1966).

But the hearsay evidence was admitted

without any limitation at all. Indeed, in

this case, the trial judge should have sua

sponte given limiting instructions.

Ultimately it is his responsibility to see

that a trial in his courtroom is conducted

fairly, and a responsible attitude requires

the insertion of instructions limiting

prejudice by the court regardless of the

technical inexactitudes of the lawyers. "A

trial judge need not sit like a “bump on a

log’ throughout the trial." it tat Vv.

Mickens, 926 F.2d 1323 (2d Cir. 1991);

United States v. Bejasa, 904 F.2d 137, 141

fal

Nn

(2d Cir. 1985); United States v. Pisani, 773

F.2d 397, 403 (2d Cir. 1985).

Finally, under the facts of this case,

the introduction of the hearsay evidence

cannot be harmless error. Certainly with

respect to the conspiracy count, there can

be no such claim. The Attorney General’s

findings and conclusions impacted directly

on the very issue the jury was supposed to

decide - whether Gilhooly defrauded the

public by Kid Watch misrepresentations. The

Attorney General’s report delivered their

opinion that he did and he was, therefore,

guilty of this count.

Moreover, the hearsay evidence affected

all the other counts as well. For instance,

in its charge, the court told the jury they

had to find as elements of substantive

counts, as well as the conspiracy an intent

to defraud (R. 1225, 1250-1), wilfullness

(R.1223, 1227-8, 1254), Knowledge (R.1223,

fy)

O

1226, 1254) and false pretenses (R.1225).

When the jury came to considering these

elements the hearsay opinion “evidence"

could only be decisive against the

petitioner. For if Gilhooly was

perpetrating Knowing, wilfull and

intentional frauds with regard to missing

and abused children, he could hardly be less

restrained when it came to credit card

companies and banks. It destroyed any

chance of convincing the jury that he was

trapped in a web constructed by Cohen,

Martone and Catapano; a web which he didn’t

help build but rather tried to tear apart

when he came across it.

Where highly material evidence is

wrongfully presented to the jury ina

situation where they cannot realistically

have considered it only with respect to the

count for which it was submitted, then

reversal on all counts is in order. e.q.

tal

J

United States v. Barash, 3465 F.2d 395, 400

(2d Cir. 1966).

CONCLUSION

THE WRIT OF CERTIORARI SHOULD BE GRANTED

Respectfully submitted,

LARRY BRONSON

28 West 22nd Street

Bayonne, NJ 07002

201-858-8338

ALAN SCRIBNER

9? Maple Street, Box 309

Contoocook, NH 03229

603-746-4023

Attorneys for Petitioner

EDWARD GILHOOLY

APPENDICES

ALK EDNY

91-cr-149

WEXLER

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse in

the city of New York, on the 23rd day of

October one thousand nine hundred and

ninety-two.

Present: HONORABLE AMALYA L. KEARSE,

HONORABLE ROGER J. MINER,

Circuit Judges,

HONORABLE LOUIS H. POLLAK*

District Judge,

* Honorable Louis H. Pollak, of the

United States District Court for the

Eastern District of Pennsylvania, Sitting

by designation.

A-2

United States v. Gilhooly, No. 92-1217

UNITED STATES OF AMERICA,

Appellee,

-¥,~ NO. 32-1217

EDWARD GILHOOLY,

Defendant-Appellant.

Appeal from the United States

District Court for the Eastern District of

New York.

This cause came on to be heard on the

transcript of record from the United

States District Court for the Eastern

District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that

the judgment of said District Court be and

it hereby is affirmed.

2

A-3

United States v. Gilhooly, No. 92-1217

Defendant Edward Gilhooly appeals

from a judgment of the United States

District Court for the Eastern District of

New York entered following a jury trial

before Leonard D. Wexler, Judge,

convicting him on the one count of

conspiracy to commit. wire fraud, in

violation of 18 U.S.c. 371; one count of

wire fraud, in violation of 18 U.S.c.

1343; and three counts of bank fraud, in

Violation of 18 U.Ss.c. 1344. On appeal,

Gilhooly contends that there were errors

in the trial court’s evidentiary rulings

and instructions to the jury. For the

reasons below, we conclude that Gilhooly

has failed to preserve most of his

contentions for appellate review and that,

in any event, all of his contentions lack

merit.

ee

A-4

United States v. Gilhooly, No. 92-1217

Absent a showing of plain error, a

challenge to the introduction of evidence

is not preserved for appellate review if

the appellant has failed to object at

trial. See United States v. Katz, 601

F.2d 66, 67 (2d Cir. 1979); United States

v. Giraldo, 822 F.2d 205, 212 (2d Cir.),

cert. denied, 484 U.S. 969 (1987); Fed. R.

Crim. P. 52(b). Similarly, a failure to

timely request limiting instructions at

trial bars appellate review of the trial

court’s failure to provide such

instructions. See, e.g., United States v.

Jones, 958 F.2d 520, 521 (2d Cir. 1992);

Fed. R. Crim. P. 30.

In the present case, Gilhooly’s trial

counsel did not object when his

codefendant first elicited testimony from

Webb that was unfavorable to Gilhooly.

4

A-5

United States v. Gilhooly, No. 92-1217

Nor did he ask for a limiting instruction.

His reliance on a codefendant’s request

for a limiting instruction is misplaced,

Since that request did not seek the

limitation as to which Gilhooly now claims

the jury should have been instructed.

Though Gilhooly did object to questioning

of webb by the government on redirect

examination, his objection was properly

Overruled, as it was within the discretion

of the trial court to rule that the

defense had "opened the door." See

generally United States vy. Rea, 958 F.2d

1206, 1255 (2d Cir. 1992); United States

Vv. Panebianco, 543 F.2d 447, 455 (2d Cir.

1976), cert, denied, 429 U.S. 1103 (1977);

1 J. Wigmore, Evidence 15 (Tillers rev.

1983).

Gilhooly also contends that the court

5

A-6

United States v. Gilhooly, No. 92-1217

erred in failing to instruct the jury that

presence at the scene of criminal activity

"even with knowledge" was insufficient to

convict. Gilhooly did not object to the

trial court’s proposed instructions, and

hence his’ present argument has_ been

waived. See Fed. R. Crim. P. 30.

Assuming, however, that an objection by

one of his codefendants sufficed to

preserve the question for Gilhooly’s

present appeal, the challenge has no

merit. The charge read as a whole, see

Cupp _v. Naughten, 414 U.S. 141, 146-47

(1973), was not erroneous.

We have considered all of Gilhooly’s

arguments on this appeal and have found

them to be without merit.

The judgment of conviction is

affirmed.

A-7

United States v. Gilhooly, No. 92-1217

AMALYA . KEARSE, U.S.C.J.

ROGER J. MINER, U.S.C.J.

LOUIS H. POLLAK, U.S.D.J.

A-8

GOVERNMENT EXHIBIT 2000

COMMONWEALTH OF PENNSYLVANIA

OFFICE OF ATTORNEY GENERAL

October 4, 1990

ERNEST D. PREATE, JR.

ATTORNEY GENERAL

James Clark, Esquire

1600 Steward Avenue

Suite 205

Westbury NY 11590

RE: Commonwealth of Pennsylvania v.

American Child

Protective Association, Inc. a/k/a

Kid Watch et al.

Dear Mr. Clark:

Since I was unable to reach you by

telephone, I decided to place the purpose

of my call in writing. I have been

informed that you represent Edward "Jim"

Gilhouley. That being the case, I did not

want to contact him directly, but rather

wanted to inform you of the nature of the

Pennsylvania Attorney General’s

James Clark, Esq.

October 3, 1990

Page 2

investigation against Mr. Gilhouley,

Marshall Sornik and Kid Watch. Although

Mr. Gilhouley may not be aware that our

investigation is Closed, I was hoping that

you, as his counsel, could relay this

information to him. If, however, you do

not represent Mr. Gilhouley in this

matter, I would appreciate it if you would

be so kind as to advise me to whom I

should direct this letter. |

As I mentioned above, my office has

completed its’ investigation of Kid

Watch’s fundraising efforts and activities

in Northeastern Pennsylvania and the role

of Edward "Jim" Gilhouley and Marshall

Sornik in those. solicitations. Our

investigation revealed that Jim Gilhouley

promoted and arranged for the

A-10

James Clark, Esq.

October 3, 1990

Page 3

establishment of a Kid Watch operation and

solicitation campaign in Scranton. Kid

Watch then contracted with American

Marketing Associates, Inc., to conduct

telephone solicitations of area residents

and businesses in Scranton for donations

which were to benefit the Kid Watch

program. The purpose of raising money was

for: (a) retrieving lost and abducted

children; (b) conducting educational

programs to increase public awareness of

abduction and abuse of children; (c)

occurrence of such a loss at a trauma

center to be established in Scranton; and

(d) publishing for each donation and

advertisement in a journal of supporters

listing every contributor.

In the course of these telephone

————

A-1l1

James Clark, Esq.

October 3, 1990

Page 4

solicitations and through literature

developed about Kid Watch mailed to

contributors, Respondents engaged in

conduct violative of the Charitable

Organizations Reform Act, Act of April 30,

1986, PL.107, No.36, as amended, 10 P.S,

161.1 - 161.20 and the Unfair Trade

Practices and Consumer Protection Law, Act

of December 17, 1968, P.L.1224, No.387, as

amended, 73 P.S. eva-sa = 2019.2, by

making the following misrepresentations or

omissions of material fact: (a) that an

"emotional trauma center" existed in New

York and the counseling was currently

being conducted there, when, in fact, no

such facility existed at the time of the

solicitations in Pennsylvania; (b) that a

trauma center would be established in

James Clark, Esq.

October 3, 1990

Page 5

Pennsylvania when, in fact, no- such

facility was ever established; (c) that

the New York Trauma Center was staffed by

licensed and qualified counselors, when,

in fact, no such facilities existed at the

time solicitations were being conducted in

Pennsylvania; (dad) that an active radio

alert network existed when, in fact, a

random sample of radio stations involved

showed that many stations were not

contacted since their initial enrollment

and others which received some calls

initially, have not had any follow-up

follow-up contact for at least two (2)

years, and some stations contacted ere not

even aware of the program; (e) that a 24-

hour hotline was available to callers

when, in fact, often only an answering

———EEeEeEeEeEe——E————

James Clark, Esq.

October 3, 1990

Page 6

Service responded that was unable to

counsel people’s' problems’ or provide

information to those callers; (f) that Kid

Watch was registered with the Department

of State, Bureau on Charitable

Organizations to conduct charitable

solicitations when, in fact, it never

completed the registration as required by

the Bureau on Charitable Organizations;

(g) that there was a 90% success rate in

the recovery of missing children when, in

fact, there is nothing to substantiate

this claim; (h) that for each donation

made, a corresponding ad would be printed

in a journal when, in fact, no ads were

ever printed; (i) that Sister Adrianne

Barrett’s name was used, without her

permission, to represent that she endorsed

| James Clark, Esq.

October 3, 1990

Page 7

the Kid Watch program when, in fact, such

was not the case.

Basically, what we are seeking by

means of this demand letter is that

Respondents:

1. Refrain from soliciting funds by

any method or means in the

Commonwealth of Pennsylvania for

a period of five (5) years;

2. Make complete restitution of the

$3,750 raised from Pennsylvania

residents fraudulently;

3. Make payment of $7,000 to be

divided equally between

fines/penalties and costs of

investigation to the Commonwealth

of Pennsylvania.

If we are not able to reach agreement

— i... ines

James Clark, Esq.

October 3, 1990

Page 8

on these terms, then it will be necessary

for me to file a Complaint against the

Respondents named above in he Commonwealth

Court of Pennsylvania.

Please advise me of your client’s

decision by October 22, 1990.

Very truly yours,

Mary Beth O’Hara Osborne

Deputy Attorney General

MBO/ lak

A-16

GOVERNMENT EXHIBIT 200

COMMONWEALTH OF PENNSYLVANIA

Office of Attorney General

OCTOBER 27, 1989

SUBJECT: Kid Watch

TO: File

FROM: Jeff A. Webb

Special Investigator

This memo relates the finding of an

investigation of The American Child

Protective Association, Inc., and their

| "Kid Watch" program (Kid Watch). Kid

Watch began fund raising in Scranton, PA,

in June, 1989. The professional fund-

raiser involved was American Marketing

Associates (AMA), owned by John Thompson

and John Dileo. We began our investi-

gation following an inquiry from John J.

Devine, Business Administrator and

Director of Public Safety for the city of

EEO

A-17

Scranton. Devine was concerned, because

the Mayor was scheduled to issue a

proclamation involving Kid Watch, and he

had heard complaints from local social

agencies about the organization and also

rumors that Kid Watch was under investi-

gation by our office.

In checking with the Bureau of

Charitable Organizations, we discovered

that Kid Watch had filed a registration

form on May 22, 1989. Because their 1988

financial information was not provided,

they were not issued a registration. AMA

was properly registered to conduct

charitable solicitations. A demand letter

was sent to Kid Watch on July 26, 1989.

Since the demand letter, Kid Watch has

registered with Bureau.

Kid Watch is a not-for-profit

organization whose purpose, according to

them, is to retrieve lost and abducted

2

A-18

children, conduct educational programs to

increase public awareness of abduction and

the abuse of children and to counsel

children and parents emotionally effected

by the occurrence of this in their family.

The purpose of this investigation is

to determine if Kid Watch performs the

services it purports and to solicited for.

The following wee areas on which the

investigation focused:

TRAUMA CENTER

While soliciting in Scranton, Kid

Watch, through their professional fund-

raiser, American Marketing Associates,

stated that they opened a trauma center in

New York in 1987. This center, according

to the Kid Watch promotional letter which

was used by the professional fundraiser to

inform contributors about Kid Watch and

their programs, stated that the trauma

center provided individual, group and peer

3

A-1°

counseling and implied that the center wa

still in operation at the time of the

solicitation.

FINDINGS

1. Kid Watch states, by its own

admission, that the trauma center

opened in January, 1988, at 292

Hoffman Lane in Happaugue, NY.

(See response to demand letter.)

2. In the minutes of an April 14,

1989, board meeting, dated June

9, 1988, provided by Kid Watch,

it is reported that "an amendment

was presented to establish an

Emotional Trauma Center at 292

Hoffman Lane". This suggests

that the trauma center still did

not exist by this date. (See

response to demand letter.)

3. We also know, by the admission of

Kid Watch, that the trauma center

4

A-20

| operations were suspended in

November, 1988. (See response to

demand letter.)

4. On July 25th, I contacted Robert

Johnson, a policeman in

Hauppauge, NY, assigned to

missing children and juvenile

services (see July 25 memo).

Johnson was familiar with Kid

Watch, and not impressed. He had

no knowledge of a Kid Watch

trauma center in Hauppauge or

anywhere else. He stated that in

his work he dealt with more

troubled kids that he could

handle, and would be aware of a

center where children could

receive counseling, if it

existed.

5. In an October 13 interview with

John Thompson of AMA, he stated

5

Le

A-2£i

thrt he was under the impression,

from Kid Watch, that the trauma

center was being operated out of

their present address of Koehler

Avenue on an appointment only

basis. Thompson also confirmed

that the promotional letter,

referred to above, was used as an

information source for solicitors

and was sent to contributors when

requested. As stated in 3 above,

the center ceased operations in

1988, upon moving to the Koehler

Avenue address.

In their reply to our demand letter,

Kid Watch supplied our office with the

names of four (4) licensed professional

counselors who provided services for the

trauma center. I interviewed three (3) of

these counselors, and the finding are as

follows:

A-22

Mr. Louis LaRosa, psychologist

New York State, #732.

He stated that he worked for Kid

Watch for approximately four

weeks in the end of 1987. LaRosa

never provided any counseling

services or stepped foot in a

trauma center. LaRosa stated

that when he was ccntacted, Kid

Watch gave him the impression

that a trauma center existed and

that they wanted him to run it

and set it up better. He stated

they were soliciting at this

time, and claiming to have a

trauma center. He does not think

a trauma center existed at that

time, and would be surprised if

one had ever been started after

that. He does not feel Kid Watch

was organized, had the ability to

7

A-23

set up a trauma center on their

own and he was not comfortable

being associated with then.

Nancy Mamis, Master of Social

Work, NYS #035033.

She stated she never provided any

counseling services for Kid Watch

and did not work for them. She

only, at the insistence of a

friend, advised Kid Watch on a

proposal for them to work in

conjunction with a hospital that

had an emotional trauma facility.

She advised them to contact Long

Island College Hospital. She

stated this was in 1987. She

never was aware of a Kid Watch

trauma center, and would not have

worked for them as she did not

feel they were professionals.

She stated their proposal was

8

A-24

very weak.

Michael Hoffman, Master of Social

Work, NYS #018078.

Hoffman stated he worked at the

trauma center from January, 1988,

to October 1988. He worked 2 to

3 hours per week and stated he

counseled 12 people both in

person and over the phone.

Hoffman was very nervous talking

to me about Kid Watch. He stated

he did not know any other

counselors who worked there and

that Sornick was his boss.

Robert Moore, Certified Alcohol

Counselor.

I cannot locate Moore.

I contacted a number of businesses in

Scranton

that were solicited for Kid

Two that recalled the presentation

and discussion of the trauma center are:

9

A-25

On November 14 I contacted Leon

Smith of Champion Ford, 118

Linden Street, Scranton, PA

18501. The phone number is 347-

5611. Smith was contacted in

July and donated $100.00. He

told the solicitor, Mary Smith,

that he wanted some information

on the Kid Watch, and was sent

the letter explaining all of the

Kid Watch’s programs and that the

trauma center opened in 1987 and

was still in operation. It was

his belief that the trauma center

did exist in New York.

On November 14 I contacted Mrs.

Heinz of Bearly Used in Scranton,

PA. The phone number is 342-

2327. Heinz was solicited in

July and donated $25.00. She was

told that this was for and ad in

10

A-26

a Kid Watch publication, and that

there was an existing trauma

center in New York. The donation

was to be used to expand the

trauma center.

1-800-KID WATCH HOT LINE

Kid Watch has a phone line set up to

receive calls 24 hours a day. This is to

be used to call in missing children

reports, to call if you’ve seen a child

that was reported missing over the radio

alert network, or to call for advice and

information on child abduction and abuse.

FINDINGS

1. Kathy Vennie, Director of Child

Adolescent Services for the City

of Scranton contacted 1-800-KID

WATCH. She had a man pose as a

father who thought his daughter

had been abused while at her

mothers. He was told by the Kid

11

A-27

Watch representative to use his

best judgment as to whether the

child needed help and then call

information to locate the proper

social agency.

Vennie also had a woman, whose

child is missing, contact the hot

line. The woman, who receive no

help or advice from the

representative, became frustrated

with what she called "a run

around" and hung up.

I personally contacted the hot

line on October 27 and stated I

was calling for a friend whose

son had been missing for a day

and a half. The representative

first told me that the parent

would have to call and asked if

the police had been notified. I

then asked what Kid Watch could

12

A-28

do. He replied that they would

announce it on a participating

radio station, if one was in the

area where the boy was missing.

If not, they could get posters

printed up.

RADIO ALERT NETWORK

Kid Watch claims and has provided

documentation of approximately 65 radio

stations which participate in the alert

network. Started in 1985, this is to

provide an immediate response to a missing

child, by providing information to the

public on the child. When an alert is

aired sightings can be called into the hot

line.

FINDINGS

1. I spoke with Bill Terry of WBLI

in New York. The phone number is

516-732-1061. Terry stated that

13

—~eeaaa

A-29

they were the first station

involved. Initially, in 1985 and

86, Terry claims that they

received alerts to be aired

fairly regularly. He estimated

that they aired a total of

approximately 40 to 60 alerts.

Kid Watch was responsible for

calling in the alert and

informing the station when

children were found due to an

alert. He said that they were

successful in finding children,

but could not remember how many.

Terry stated that they have not

heard from Kid Watch in about 3

years, and estimated the last

alert aired in April 1986 or 87.

He had no explanation for this.

Most of the alerts concerned

children missing from shopping

14

A-30

malls or missing for 24 hours.

I was able to contact other

stations involved in the

network. These were: Eagle 106

out of Philadelphia, involved

Since November, 1987,; Power 104

FM out of Kansas, involved since

December, 1987; and WANS 107 out

of South Carolina, involved since

January, 1988. Of these three,

none has been contacted by Kid

Watch since they became involved.

Lite 92.5 FM, out of Connecticut

became involved approximately 3

years ago. They had 2 alerts

aired the first year and have not

heard from Kid Watch for

approximately 2 years. WRKL of

New York also had activity in

their first year, 3 alerts in

1986, but have not heard from Kid

5

A-31

Watch in 2 years.

MISCELLANEOUS FINDINGS

1. Carmen Casiano of the Child

Protective Agency for Suffolk

County, New York, had never heard

of Kid Watch. This is a county

agency in the same county that

Kid Watch is based.

2. Kid Watch used Sister Adrianne

Barrett’s name, for publicity

purposed without her consent.

JAW/1s

ec. MAMc

SCA

16

A-32

REQUEST FOR LIMITING INSTRUCTIONS

1077

MR. HOLTZMAN: Can he wear a robe?

MR RUBENSTEIN: May I borrow your

robe? As to -- I don’t know your first

portion of the charge.

THE COURT: I/’11 give you a copy.

MR. RUBENSTEIN: Do you have things

on a criminal records and drug users?

THE COURT: Not on drug users, no.

Just on -- I’1l give you a charge on prior

felony.

MR. RUBENSTEIN: I would ask Your

Honor to charge in view of the evidence

that has been introduced into this case, I

think it was Exhibit 2000, which was a

letter put in through Mr. Webb, and that

letter is in fact, Your Honor, an offer

and compromise to a lawyer and it is less

that an indictment. It is less than a

————eeerr eee

complaint. And I think that Your Honor

should give some limiting instruction as

to the value of such a letter.

THE COURT: I don’t understand even

what the letter is? What are you talking

about.

MR. RUBENSTEIN: The government on

redirect put in, I think it’s Exhibit

2000, maybe 2001, a letter that purported

to be some official document of a finding

of the Attorney General of Pennsylvania,

when in fact it was nothing more that an

offer and compromise.

THE COURT: I will not comment on

that. You are the one who brought it out.

|

1078

MR. RUBENSTEIN: But the jury should

be informed of how they can use it and

view it. The fact of the matter is --

THE COURT: I’ll let you comment on

sc. |

MR. RUBENSTEIN: I think they should

have some guidance from the Court as far

as what the law should be on stuff like

that. Your Honor, I would want you to

file with my charges7~ the limiting

instruction I asked you for under

Lieberman, as to the names, that Your

Honor has indicated you would decline to

so charge. I would want it filed as part

of my request to charge.

THE COURT: What is that?

MR. RUBENSTEIN: That was the

evidence of peoples’ names, Sornik, where

someone said they called up and spoke to a

Marshall or a Marshall Sornik.

THE COURT: I declined that, yes.

You can file it. We’1ll make it a Court 6.

MR. RUBENSTEIN: 638 F.2d 95, U.S. Vv.

Lieberman.

MR. HOLTZMAN: With the exception of

Mr. Rubenstein’s request relating to

mistake, I would join in his request to

the extent you would refuse to charge

them, I would respectfully take an

exception as to --

THE COURT: As to what portion,

everything?

MR. HOLTZMAN: Your Honor, I read his

request and I agreed with them, except --