U.S. v. Cross
Decision Date | 18 October 2002 |
Docket Number | No. 00-3466.,No. 00-3488.,00-3466.,00-3488. |
Citation | 308 F.3d 308 |
Parties | UNITED STATES of America v. Walter V. CROSS, a/k/a Bobo Walter V. Cross, Appellant United States of America v. Jules C. Melograne, Appellant. |
Court | U.S. Court of Appeals — Third Circuit |
R. Damien Schorr (Argued), Pittsburgh, PA, for Appellant Walter V. Cross.
W. Thomas McGough, Jr. (Argued), Efrem Grail, Reed Smith, Pittsburgh, PA, for Appellant Jules C. Melograne.
Linda L. Kelly, United States Attorney, Harry Litman, United States Attorney, Paul J. Brysh (Argued), Assistant United States Attorney, Office of the United States Attorney, Pittsburgh, PA, for Appellee.
Before: ALITO, RENDELL and AMBRO, Circuit Judges.
Jules C. Melograne and Walter V. "Bo" Cross conspired to fix hundreds of cases in the Court of Common Pleas of Allegheny County, Pennsylvania. After a trial in the District Court, a jury convicted them of conspiring to commit mail fraud in violation of 18 U.S.C. §§ 371 and 1341,1 and conspiring to violate Pennsylvania citizens' right to a fair and impartial trial in violation of 18 U.S.C. § 241.2 They appealed and in United States v. Cross, 128 F.3d 145 (3d Cir.1997) (Cross I), we affirmed their § 241 convictions but reversed their § 1341 convictions.
In their current appeals, Cross and Melograne argue that their appellate counsel in Cross I was ineffective for failing to argue that United States v. Pelullo, 14 F.3d 881 (3d Cir.1994), required us to set aside their § 241 convictions on "prejudicial spillover" grounds if we reversed their § 1341 convictions. Without deciding whether their counsel acted reasonably in eschewing the Pelullo argument, we hold that their ineffective assistance of counsel claim fails to satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), because it is not reasonably probable that the Pelullo argument would have succeeded had it been raised.
The Allegheny County Court of Common Pleas ("the Court of Common Pleas") is a court of general trial jurisdiction. The Statutory Appeals Division of that Court (the "Statutory Appeals Court") conducts de novo hearings in appeals from the decisions of the minor judiciary in cases involving summary criminal offenses and motor vehicle and municipal ordinance violations. The minor judiciary is comprised of fifty-five elected district justices as well as appointed magistrates within the City of Pittsburgh. Jules Melograne was a district justice in the Court of Common Pleas. Cross was the supervisor of the Statutory Appeals Court. Cross's duties included determining whether defendants, attorneys, and witnesses (who were generally police officers) were present when a hearing was to begin, managing the order in which hearings were held, handling requests for postponements, and signing pay vouchers for police officers who testified. Nunzio Melograne, Jules's brother, was the "tipstaff" for Judge Raymond Scheib of the Statutory Appeals Court. Nunzio Melograne's duties included serving as an aide to Judge Scheib, keeping the Statutory Appeals Court's calendar, maintaining and organizing case files, calling cases, swearing in witnesses, and performing other clerical tasks.
From December 1990 through July 1993, Cross and the Melogranes used "their authority and access to the decision maker" — Judge Scheib — to dictate the results in several hundred Statutory Appeals Court hearings.3 Cross I, 128 F.3d at 146. They fixed cases in various ways. For instance, Cross often produced not-guilty verdicts by asking police officer witnesses to leave court before testifying, or by calling the cases in which they were to testify before they arrived. Id. Often Cross requested during a hearing that Judge Scheib take the case "c.a.v." (curia advisari vult, a Latin phrase meaning colloquially under advisement); Cross and Nunzio Melograne would then meet with the Judge in his chambers after the hearing, and a not-guilty verdict would ensue minutes later. Id. at 146-47. In exchange for fixing cases, Cross and the Melogranes received various gifts and favors from the beneficiaries, such as tickets to Pittsburgh Steelers games, fruit baskets, and jackets.
Although most of the results they engineered were favorable to defendants, Cross and the Melogranes4 also ensured that many defendants were found guilty. If they desired a guilty verdict in a particular case, they would simply tell the Judge to find the defendant guilty. In one typical example, a defendant was found guilty after Cross instructed the Judge to "find this sucker guilty." Id. at 147. Some clearly innocent defendants were found guilty as a result. For example, Cross and the Melogranes got the Judge to find one defendant guilty even though the prosecutor wanted to withdraw the charge, as the evidence did not show a violation. Id.
In November 1994 a federal grand jury in the Western District of Pennsylvania indicted Cross and the Melogranes.5 Count I alleged that the three violated § 1341 by conspiring "to deprive the citizens of Allegheny County of their intangible right to honest services of government employees, furthered by the use of the United States mail."6 The factual allegations underlying Count I — which were divided into three sections — related to Cross and the Melogranes fixing cases both for and against defendants, and mailing notices of the dispositions to the parties. The first section of Count I alleged that they caused 243 cases to be dismissed by starting hearings before police officers arrived to testify or by asking the officers to leave before they testified. The second section alleged that Cross and the Melogranes used their influence over Judge Scheib to cause twenty-eight defendants to be found guilty. The third section alleged that they obtained favorable dispositions for 200 defendants. Count II, which pertained only to the "to be found guilty" cases (the second section of Count I), alleged that Cross and the Melogranes violated § 241 by conspiring to deprive twenty-eight Pennsylvania residents of their right to a fair and impartial trial.7
Before trial, Cross and the Melogranes moved under Federal Rule of Criminal Procedure 14 to sever Counts I and II.8 The District Court denied their motion. It explained that because "[t]he criminal acts of one co-conspirator in furtherance of the conspiracy are imputed to all other members of the conspiracy," "the acts of all the alleged conspirators would be admissible even in severed trials." United States v. Cross, Crim. No. 94-233, slip op. at 8 (W.D.Pa. Aug. 3, 1995). Further, it found that "the conduct charged is distinct as to each conspiracy," and that "[w]ith such distinct evidence, the jury will be able to separate the evidence." Id. The Court rejected the defendants' claim that they might want to testify as to Count I, but not Count II, because they "failed to specify what testimony they wish to give on one count or their reasons for not wishing to testify on the other." Id.
The jury trial of Cross and the Melogranes lasted three months. The evidence on both counts was overwhelming. The Government introduced tapes of more than fifty conversations, intercepted by FBI surveillance, in which the conspirators discussed their plans to fix various cases. Each juror heard the tapes and received transcripts of the conversations. In addition, the Government presented testimony by FBI Special Agent John Fiore (who investigated the case-fixing scheme), Suzanne Petrocelly (the courtroom clerk), and Catherine Stowe (the Assistant District Attorney who prosecuted most of the cases in the Statutory Appeals Court). The latter two had cooperated with the FBI's investigation by keeping informal records of the cases that Cross and the Melogranes fixed. Further, the Government introduced a notebook in which Nunzio Melograne recorded most of the cases that the conspirators planned to fix, including twenty-five of the to-be-found-guilty cases. The Government also introduced evidence that Cross put a star, check mark, or "c.a.v." notation next to a case on his trial calendar to designate the result. Cross I, 128 F.3d at 147.
The evidence with respect to the to-be-found-guilty cases was especially powerful. The Government presented either a statement by one of the conspirators or an entry in Nunzio Melograne's notebook to prove each of these counts. Nunzio Melograne's notebook demonstrated that Cross and the Melogranes often got defendants found guilty to please police officers and other friends. For instance, one defendant was found guilty because an entry in the notebook stated: "[G]uilty, hard time, Officer M.A. Scott." Another entry in the notebook lists two case numbers and says that "Officer Smith" wanted the defendants in those cases found guilty. Still another defendant was found guilty after Nunzio Melograne wrote in his notebook: "Hesse, guilty, Jules, Hargrove," and Jules called Nunzio the morning of the hearing and said, On other occasions, Cross and the Melogranes got defendants found guilty because they did not like them or their lawyers. For example, in one to-be-found-guilty case, Cross said to Nunzio Melograne about the defendant's attorney,
Moreover, Cross and the Melogranes boasted of their ability to get defendants found guilty. The Government played for the jury a conversation with a local police chief, taped by the FBI, in which Jules Melograne promised to make sure that a defendant was found guilty and bragged about his influence (via his brother Nunzio) over Judge Scheib:
I'll get a'hold [sic] of my brother at home, and uh, if it hasn't gone out yet... make sure there was a conviction on that. I, I told the guys, anytime they want a, you know, conviction.... I make a phone call down there, and my b...
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