# Petition for Writ of Certiorari — Gilhooly v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 863

## Text

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 --

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1149%3A1. Public record. Not legal advice.