U.S. v. Ardito, s. 393

• Decision Date: 31 January 1986
• Docket Number: D,394,Nos. 85-1271,Nos. 393,85-1272,s. 393,s. 85-1271
• Citation: 782 F.2d 358
• Parties: UNITED STATES of America, Appellee, v. John Gregory ARDITO and Vincent Pollina, Defendants-Appellants. ocket
• Court: U.S. Court of Appeals — Second Circuit

Page 358

782 F.2d 358

UNITED STATES of America, Appellee, v. John Gregory ARDITO and Vincent Pollina, Defendants-Appellants.

Nos. 393, 394, Docket Nos. 85-1271, 85-1272.

United States Court of Appeals, Second Circuit.

Argued Nov. 6, 1985.

Decided Jan. 31, 1986.

Arnold E. Wallach, New York City (Peter J. Peluso, New York City, on the brief), for appellant Ardito.

John R. Gulash, Jr., Bridgeport, Conn., for appellant Pollina.

William C. Bryson, Atty., Dept. of Justice, Washington, D.C. (Alan H. Nevas, U.S. Atty., New Haven, Conn., and John H Durham, Sp. Atty., Dept. of Justice, New Haven, Conn., on the brief), for appellee.

Before FRIENDLY, TIMBERS and PRATT, Circuit Judges.

TIMBERS, Circuit Judge:

Appellants John Gregory Ardito and Vincent Pollina appeal from judgments of conviction entered July 11, 1985 in the District of Connecticut, T.F. Gilroy Daly, Chief Judge. Following a jury trial, appellants were convicted of conspiracy to obstruct justice, in violation of 18 U.S.C. Secs. 371, 1503 (1982).

We find that the principal issue on appeal arises from appellants' assertion that the obstruction of justice statute, 18 U.S.C. Sec. 1503, requires proof that appellants knew the proceeding they obstructed was a federal proceeding. We hold that Sec. 1503 does not require the government to prove that the proceeding which appellants were charged with having obstructed was known by appellants to be federal in nature. Other subordinate issues are raised.

For the reasons set forth below, we affirm.

I.

We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

Appellants were convicted of conspiracy to obstruct justice because of their out-of-court activities during the trial of Francis and Gus Curcio. After the conclusion of the trial of the Curcios in Hartford for loansharking before a jury and T. Emmet Clarie, District Judge, appellants were indicted on August 30, 1984 for conspiring to aid the Curcios in obtaining a mistrial. The Curcios also were indicted in the instant case for conspiring to obstruct justice. They pleaded guilty before trial. Our Court previously has dealt with various aspects of the Curcio loansharking case. See United States v. Curcio, 712 F.2d 1532 (2 Cir.1983); United States v. Curcio, 694 F.2d 14 (2 Cir.1982); United States v. Curcio, 680 F.2d 881 (2 Cir.1982).

The Curcio loansharking trial before Judge Clarie was plagued by a number of interruptions. The government presented its case between October 4 and October 19, 1983. Late in the evening of October 20, the first day of defendants' case, defendant Gus Curcio checked into a hospital complaining of chest pains. The next morning, he checked out of the hospital. The court granted a postponement to allow for a further medical examination. On the day that trial resumed, October 27, Gus Curcio, who was seated at the defense table and in the presence of the jury, appeared to suffer a heart attack, clutching his throat and chest. Believing that a prosecutor was smiling at the outburst, co-defendant Francis Curcio charged at the prosecutor. At this point, Judge Clarie adjourned the trial and appointed a cardiologist to examine Gus Curcio. The examination was inconclusive, and the Curcios moved for a mistrial on November 8. Judge Clarie denied the motion and, after an angiogram was arranged for Gus Curcio and indicated no heart malfunction, ordered the trial to resume on November 15. On November 15, defense counsel reported that Francis Curcio had been injured in an automobile accident. Judge Clarie denied another motion for a mistrial. Francis Curcio attended the remainder of the trial in a wheelchair. The Curcio loansharking trial was ultimately resumed on December 6, with the presentation of evidence completed on December 8 and a verdict of guilty returned by the jury on December 14, 1983.

During the Curcio loansharking trial, the government conducted electronic surveillance at various locations, including a social clubhouse in Bridgeport, Connecticut, and premises in the Bronx occupied by appellant Ardito. Two conversations relating to the Curcio trial were introduced as evidence at appellants' obstruction of justice trial.

In a November 4, 1983 conversation between appellant Pollina and the Curcios at the Bridgeport clubhouse, the discussion included the loansharking trial, the desire for postponements and a mistrial, and the loansharking business. Appellants Ardito and Pollina also were overheard in a December 7, 1983 conversation which took place in the Bronx. Appellants discussed the Curcio trial. Ardito handed Pollina three pills and instructed Pollina to give them to the Curcios. Ardito also gave Pollina an inhalant that he described as benzadrine, a type of amphetamine, for one of the Curcios to take. The pills were designed to cause one of the Curcios, presumably Gus, to vomit in court. The December 7 conversation also included loansharking business information that Ardito wanted relayed to the Curcios.

A government attorney reported the December 7 conversation to Judge Clarie on December 8, the last day of the Curcio trial. Judge Clarie warned the parties that further disturbances in the courtroom would result in revocation of the Curcios' bail. No further disruptions occurred.

At appellants' obstruction of justice trial, the recorded conversations of November 4 and December 7 were played for the jury. A toxicologist testified on behalf of the government regarding the effect of amphetamines in inducing the symptoms of a heart attack and the effect of the drug Mettryl in inducing vomiting. An FBI agent defined such terms as "captain", "capo", "regime", and "crew"--terms which the jury had heard on the tapes. Appellants presented no evidence at the trial.

The jury returned guilty verdicts as to each appellant. The court sentenced each appellant to five years imprisonment and a $10,000 fine. Appellants are serving their sentences.

II.

The principal issue raised on appeal is whether 18 U.S.C. Sec. 1503 requires proof that appellants knew that the proceeding they were charged with having obstructed was federal in nature. At trial, appellants requested such a jury instruction which Judge Daly denied. The tape recorded conversations which the government introduced at trial did not contain any statements which would suggest that appellants knew that the Curcios were being tried in a federal court. Appellants did not attend the Curcio trial in the federal court at Hartford.

Section 1503 does not provide for the scienter requirement which appellants urge upon us. They were charged under the following provision of the statute:

"Whoever ... corruptly ... endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

18 U.S.C. Sec. 1503. Both sides agree that the legislative history of Sec. 1503 is not dispositive of the scienter controversy. Although appellants argue that Congress' express prohibition of knowledge of the federal nexus as an element of the offense under Sec. 1512 shows that Congress knew how to prohibit such a scienter requirement when it wanted to, we find that argument unpersuasive in light of the fact that the present Sec. 1503 has remained substantially unchanged since the enactment of its first predecessor in 1831, see Act of March 2, 1831, ch. 99, Sec. 2, 4 Stat. 487, 488, and Sec. 1512 was enacted only recently, in 1982.

Appellants rely primarily on Pettibone v. United States, 148 U.S. 197 (1893), in support of their assertion that Sec. 1503 contains such a scienter requirement. The Pettibone Court, in interpreting a predecessor statute to Sec. 1503, stated that "a person is not sufficiently charged with obstructing or impeding the due administration of justice in a court unless it appears that he knew or had notice that justice was being administered in such court." Id. at 206. Pettibone reversed convictions under the obstruction statute then in effect because the indictment did not charge that the purpose of the conspiracy was to violate an injunction or interfere with proceedings in the circuit court. While the circuit court had enjoined members of a labor union from interfering with a mining company's management, the indictment failed to charge that union members were aware of the injunction.

We examined the Pettibone decision in United States v. Jennings, 471 F.2d 1310 (2 Cir.), cert. denied, 411 U.S. 935 (1973). In holding that 18 U.S.C. Sec. 201(b)(1) (anti-bribery statute) does not require knowledge that the bribee was a federal official, we interpreted Pettibone as follows:

"[A] closer reading makes clear that the court was concerned with the necessity for charging knowledge or notice of the existence of the injunction, as distinguished from its federal character."

471 F.2d at 1313 (emphasis added). In the instant case, we hold that the government was required to prove only that appellants conspired to interfere with the administration of justice, not that they knew which sovereign, federal or state, was administering that justice in the Curcio trial.

We also find unpersuasive appellants' reliance on cases which have arisen in other courts under Sec. 1503. In United States v. Baker, 494 F.2d 1262 (6 Cir.1974), the defendant was charged with violating Sec. 1503 as the result of his having threatened a police officer who planned to testify in a federal proceeding. The Sixth Circuit, however, held that there was insufficient evidence to establish that the threat related to the officer's testimony in a federal proceeding. There the officer had arrested the defendant several times. The officer's testimony in the federal proceeding was not the only conduct to which the threat could have applied. Id. at 1265. As the court stated, "[t]he mere existence of that federal proceeding is not sufficient to establish or support any inference that the...