U.S. v. Bazzano
| Decision Date | 21 December 1977 |
| Docket Number | No. 76-2586,Nos. 76-2584,No. 76-2588,No. 76-2585,No. 76-2587,No. 76-2584,No. 76-2628,76-2584,76-2585,76-2586,76-2587,76-2588,76-2628,s. 76-2584 |
| Citation | 570 F.2d 1120 |
| Parties | UNITED STATES of America v. John BAZZANO, Jr. a/k/a "Johnny", a/k/a "J", Joseph De Marco a/k/a "Joe", Joseph Charles Yimin a/k/a "Bull", Charles Patrickkellington a/k/a "Chuck", Francis Dattalo a/k/a "Frank", a/k/a "Hog", Attilio Policastro a/k/a "Flat Top", Primo Victory Mollico a/k/a "XG", John Franklin Matz a/k/a "Jack", a/k/a "Mayor", David Rankin Guffey a/k/a "Chief", a/k/a "Clairton Chief", John Regis Ward a/k/a "JP" a/k/a "Ward", Peter Paul Orsini a/k/a "Pete", a/k/a "Pete Orsi", Dominic Paul Serapiglia a/k/a Wilson Constable, Thomas C. Poljak a/k/a "Eliz Chief", George B. Hines a/k/a "Eliz Constable". Appeal of John BAZZANO, inAppeal of David Rankin GUFFEY, inAppeal of John Regis WARD, inAppeal of Peter Paul ORSINI, inAppeal of Thomas C. POLJAK, inAppeal of John Franklin MATZ, into 76-2588 and 76-2628. |
| Court | U.S. Court of Appeals — Third Circuit |
Harold Gondelman, Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, Pittsburgh, Pa., for appellant Bazzano.
John A. Knorr, Lewis & Stockey, Pittsburgh, Pa., for appellant Guffey.
J. Cris Soich, Stokes, Lurie & Tracey, Pittsburgh, Pa., for appellants Ward and Orsini.
Vincent C. Murovich, Murovich, Reale & Fossee, Pittsburgh, Pa., for appellant Poljak.
Joseph J. Bonistalli, McCrady, Kreimer, Ravick & Bonistalli, Pittsburgh, Pa., for appellant Matz.
Blair A. Griffith, U. S. Atty., and James E. Roark, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before ADAMS, VAN DUSEN and HUNTER, Circuit Judges.
This appeal from judgments of conviction of six defendants raises two principal issues: (1) whether the district court erred in failing to grant a new trial because of prosecutorial misconduct in allowing the grand jury testimony of Government witness Moody to be read to Government witness Stanizzo and the grand jury testimony of Stanizzo to be read to Moody prior to trial, and (2) whether defendant Bazzano was denied the right to effective assistance of counsel with regard to sentencing because the district court failed to disclose published sentencing guidelines. After careful consideration, we have concluded that the contentions raised by the defendants do not justify reversal of the convictions.
The defendants were convicted of operating an illegal gambling business 1 or aiding and abetting the operation of an illegal gambling business, 2 and conspiring to obstruct state law enforcement relating to gambling. 3 The gambling business, a numbers game, was conducted in the towns of Clairton and Elizabeth, Pa. All the defendants who participated in the illegal gambling business, except Bazzano, were public officials.
The evidence adduced by the Government was voluminous and a brief summary of it will suffice. Basically, the evidence was of two types: adding machine tapes proven to be business records of the gambling operation, and testimony by a number of witnesses who had been involved in the gambling operation. The evidence established that Bazzano had run the gambling operation and that the other defendants accepted payments from the gambling operation in exchange for letting the operation continue without interference.
Mrs. Elizabeth Stanizzo, a former employee of the gambling operation, extensively detailed the illegal gambling business. Mrs. Stanizzo had known defendant Bazzano for 20 years, and her late husband had been Bazzano's partner in the business. She testified that Bazzano ran the gambling operation and that the other defendants received payments from the operation. Another witness, Moody, corroborated some of Mrs. Stanizzo's testimony. Moody, who for a time was part owner of the operation, testified that he had worked for Mr. Stanizzo in the business and that Mr. Stanizzo had dealt with Bazzano. A former Allegheny County detective, Hammer, testified that he had accepted protection payments from numbers writers in the Clairton area. His testimony also corroborated some of Mrs. Stanizzo's testimony.
Defendant Matz was the Mayor of Clairton. Testimony indicated that Matz allowed Bazzano to operate the numbers business in Clairton and that Matz received payment from one of Bazzano's employees. The adding machine tapes indicate that payments were made to "Mayor."
There was sufficient testimony to support the jury's verdicts convicting the other public official defendants as indicated in the footnote. 4
The charge of prosecutorial misconduct stems from a meeting between two witnesses, Moody and Stanizzo, and F.B.I. Agent Fitzpatrick, who had investigated the case.
When Moody, who was testifying under immunity, took the stand, he requested to speak with the judge in chambers. In chambers, with counsel present, Moody stated that a few days before he was to testify, Fitzpatrick read Moody's grand jury testimony to Mrs. Stanizzo and read Mrs. Stanizzo's grand jury testimony to Moody. Defense counsel immediately moved for a mistrial or, in the alternative, that both Moody and Mrs. Stanizzo "be dismissed as witnesses and not called by the government" (N.T. IX-63). The court denied the motions after oral arguments and Moody was allowed to testify.
On cross-examination, defense counsel questioned Moody about the meeting with Fitzpatrick. He testified that Fitzpatrick read selected pages of each witness' grand jury testimony in the presence of both witnesses (N.T. IX-133). He also testified that, in his opinion, Fitzpatrick "doctored" Moody's testimony with Mrs. Stanizzo's so that their stories would be the same (N.T. IX-133-34).
Mrs. Stanizzo was also cross-examined on this subject, and her account differed from Moody's. She testified that Fitzpatrick did not read any of her grand jury testimony, but, rather, told her that he did not have to read it to her because she knew what she had said. She testified that he read from some papers to Moody in her presence.
After Mrs. Stanizzo's testimony, the defendants moved that her testimony be stricken on the ground that the meeting with Fitzpatrick violated F.R.Crim.P. 6(e) and constituted prosecutorial misconduct. Defendants also moved for a dismissal of the indictment on the same grounds. The motions were denied. The defendants again press this argument in this court, claiming that the conduct in violation of Rule 6(e) denied them a fair trial.
We hold that at least some of the conduct testified to was prosecutorial misconduct violative of Rule 6(e), but that this conduct did not constitute reversible error.
F.R.Crim.P. 6(e) provides in part:
5 The language pertinent here is: "Disclosure . . . may be made to attorneys for the government for use in the performance of their duties" and an "attorney . . . may disclose matters . . . only when so directed by the court . . . ." Thus, we are faced with two questions: Did the Government attorney use the material in the performance of his duties? Did the Government attorney disclose matters without court direction?
In answering the first question, we need not decide the issue of whether it is proper for material to be disclosed to an F.B.I. agent working for the Government attorney. The 1977 amendment to Rule 6(e) was enacted to permit such disclosure. 6 Assuming, arguendo, that such a disclosure was proper under the earlier version of Rule 6(e) applicable here, 7 the F.B.I. agent cannot use the disclosed material in a manner which is not permissible for the Government attorney. The scope of authority of the F.B.I. agent, acting as an agent for the Government attorney, is limited to the scope of authority of the Government attorney. Cf. Restatement of Agency, 2d, § 20. Apparently, in this case, if Moody's testimony was accurate, the Assistant United States Attorney, perhaps knowingly, used the F.B.I. agent as a conduit to disclose the grand jury testimony of two of the Government witnesses to each other prior to trial.
The defendants do not object to the disclosure by the agent to a grand jury witness of that witness' testimony, 8 but the objection is to the verbatim disclosure of Mrs. Stanizzo's testimony to Moody, and vice versa, in an attempt to "shape" their trial testimony so that each witness' testimony will corroborate the other's. These facts are distinguishable from a pre-trial interview in which the prosecutor indicates to a witness in general terms the evidence which other witnesses may give. In this latter situation, the interview may be conducted without disclosure of specific statements made to the grand jury, and therefore Rule 6(e) would not be involved. Furthermore, when potential trial witnesses who testified before the grand jury are not identified by name, there is no violation of the purpose of Rule 6(e) to encourage witnesses to testify without fear of retaliation. See, e. g., Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959); Posey v. United States, 416 F.2d 545, 557 (5th Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970). Finally,...
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