U.S. v. Traficant

Citation209 F.Supp.2d 764
Decision Date25 June 2002
Docket NumberNo. 4:01CR207.,4:01CR207.
PartiesUNITED STATES of America, Plaintiff, v. James A. TRAFICANT, Jr., Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Court of Northern District of Ohio

Craig S. Morford, AUSA, Bernard A. Smith, AUSA, Matthew B. Kall, AUSA, Cleveland, OH, for Plaintiff.

James A. Traficant, Jr., Youngstown, OH, pro se.

Lloyd Pierre-Louis, Esq., Law Office of Lloyd Pierre-Louis, Percy Squire, Law Office of Percy Squire, Columbus, OH, for Defendant.

MEMORANDUM OF OPINION AND ORDER DENYING DEFENDANT TRAFICANT'S MOTION FOR NEW TRIAL

WELLS, District Judge.

A jury found Defendant Traficant guilty of counts one through ten of the superseding indictment on 11 April 2002. (Docket # 341). On 22 April 2002, Defendant Traficant filed a timely motion for a new trial. (Docket # 347). That same day, a supplemental memorandum to the motion for a new trial was filed on Congressman Traficant's behalf by Attorneys Percy Squire and Lloyd Pierre-Louis.1 (Docket # 349). The United States responded to the arguments made in the original motion for a new trial on 3 May 2002. (Docket # 354). The United States filed a response to the supplemental memorandum on 29 May 2002. (Docket # 403). The defendant, in turn, filed a reply on the Juror Selection Plan issue. (Docket # 411).

For the reasons that follow, Congressman Traficant's motion for a new trial is denied.

I. STANDARDS

Congressman Traficant moves for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure, or in the alternative, moves to arrest the judgments of guilt against him pursuant to Rule 34 of the Federal Rules of Criminal Procedure.

Rule 33 provides, "On a defendant's motion, the court may grant a new trial to that defendant if the interests of justice so require." Rule 34 provides, "The court on motion of a defendant shall arrest judgement if the indictment or information does not charge an offense or if the court is without jurisdiction of the offense charged."

II. ANALYSIS

In his original motion for a new trial, Congressman Traficant presents four arguments as to why he is entitled to a new trial. Congressman Traficant claims: (1) this Court erred by preventing Russell Saadey, Jr. from testifying at trial; (2) this Court erred by not permitting Linda Kovachik to testify to certain statements at trial; (3) this Court deprived him of a fair trial by making certain remarks with the jury present; and (4) he discovered new evidence that is material and would probably result in a different verdict at a new trial. In their supplemental memorandum, Attorneys Squire and Pierre-Louis contend that the Juror Selection Plan of the Northern District of Ohio fails to comply with federal statutes and the U.S. Constitution because it results in geographic under-representation of Youngstown jury division voters on juries in the district.

This Court will examine each argument in turn.

A. Russell Saadey's Testimony

Congressman Traficant argues that the Court erred when it denied the jury an opportunity to hear the testimony of Russell Saadey, Jr. He contends that the testimony would not have been hearsay because it met the requirements for the statement against interest exception of Rule 804(b)(3) of the Federal Rules of Evidence and the excited utterance exception of Rule 803(2).

In its 1 April 2002 Order Granting the Government's Oral Motion to Bar the Testimony of Russell Saadey, Jr., this Court ruled that Mr. Saadey could not testify as a defense witness because Congressman Traficant violated Federal Rule of Criminal Procedure 26.2,2 not because of any hearsay problems.3 (Docket # 317). The Court explained,

Defendant Traficant claims to have possessed an audiotape containing the oral statement of a defense witness. According to the Congressman's representations, the taped statement involved issues at the heart of the witness's testimony. Yet, after the direct examination portion of the voir dire and in response to a government request and a Court order to produce the tape, Defendant Traficant unambiguously indicated that he would be unable to produce the audiotape because he had totally destroyed it the night before.

By destroying the tape, Congressman Traficant elected not to turn it over to the government as required by Rule 26.2.

(Docket # 317 at 4).

Under Rule 26.2, this Court's decision to bar Mr. Saadey's testimony was appropriate. Congressman Traficant is not entitled to a new trial on the basis of the exclusion of Mr. Saadey's testimony.

B. Linda Kovachik's Testimony

Next, Congressman Traficant asserts that this Court erred when it did not permit Linda Kovachik, a defense witness, to testify to a statement by Charles O'Nesti to her regarding kickbacks.

In his motion for a new trial, Congressman Traficant argues that Ms. Kovachik's testimony regarding Mr. O'Nesti's statement should have been admitted as substantive evidence under Rule 807, as a residual exception to the hearsay rule of the Federal Rules of Evidence. During the trial, Mr. Traficant offered the statements first as substantive evidence and then under Rule 613(b) only to impeach the prior testimony of Jacqueline Bobby and Grace Kavulic, who testified that Mr. O'Nesti complained to them that he had to make salary kickbacks to Congressman Traficant. See 2/19/02 Tr. at 562, 644-45.

In its 1 April 2002 Order Regarding Testimony to Impeach Government Witnesses, this Court explained,

Linda Kovachik testified as a defense witness on 27 March 2002. A hearsay voir dire outside the presence of the jury was held the next morning. During the voir dire, Ms. Kovachik testified that Charles O'Nesti stated to her: "I had not gotten any kickbacks from Jim." (3/28/02 Tr. at 5274).

At the time of the testimony and hearsay voir dire of [Ms. Kovachik and two other defense witnesses], Defendant Traficant argued that the statements of ... Charles O'Nesti were admissible as substantive evidence under an exception to the hearsay rule.

However, in his motions of 27 March 2002, Defendant Traficant contended for the first time that he sought to admit the above statements only for the purpose of impeaching the testimony of ... Jacqueline Bobby, and Grace Kavulic.

(Docket # 319 at 2).

The Court continued,

Ms. Kovachik's testimony regarding Mr. O'Nesti's alleged statement to her is not admissible. The statement cannot be used to impeach prior testimony by Ms. Bobby or Ms. Kavulic because it is not inconsistent with any testimony by either witness. Neither witness testified that Mr. Traficant gave kickbacks to Mr. O'Nesti.

(Docket # 319 at 4) (emphasis added).

Put simply, Ms. Kovachik's voir dire testimony that Charles O'Nesti stated to her: "I had not gotten any kickbacks from Jim" could not be admitted as either substantive evidence or to impeach the testimony of Ms. Bobby and Ms. Kavulic. The statement could not be admitted as substantive evidence because it was irrelevant under Rules 401 and 402 of the Federal Rules of Evidence; there were no allegations in the superseding indictment that Congressman Traficant made kickbacks to Charles O'Nesti. The statement could not be admitted to impeach the testimony of Ms. Bobby or Ms. Kavulic because neither testified that Congressman Traficant made any kickbacks to Charles O'Nesti.

Under the Federal Rules of Evidence, this Court's decision not to admit Ms. Kovachik's testimony regarding Mr. O'Nesti's statement to her was correct as a matter of law. Congressman Traficant is not entitled to a new trial on the basis of the exclusion of this portion of Ms. Kovachik's testimony.

C. This Court's Remarks

Congressman Traficant argues that this Court deprived him of a fair trial when the Judge asked him, on the morning of 3 April 2002, after the Congressman announced, with the jury present, "I have no other witnesses", whether he was prepared to rest and whether he intended to testify as a witness.

The context sheds light on these remarks in this protracted trial. Throughout the presentation of his defense, Mr. Traficant consistently failed to produce or call a sufficient number of witnesses to fill the trial day and frequently said he did not know who his witnesses would be for the next court session.4 As a result, the jurors and alternate jurors, some of whom traveled as long as five hours each day to and from the court house, frequently had to be excused early, unnecessarily prolonging their jury service in this ten week trial.

All the trial participants were affected. On 21 March 2002, this Court agreed to excuse the jury for the next day in order to provide Congressman Traficant with an opportunity to voir dire two particular defense witnesses in his efforts to establish the requirements for an exception to the hearsay rule for certain statements by them. (3/21/02 Tr. at 4541, 4560). However, on Friday, 22 March 2002, with everyone else ready to proceed, Congressman Traficant failed to produce either witness for voir dire and the day's proceedings had to be adjourned after only a few minutes. (3/22/02 Tr. at 4564).

On the next trial day, Monday, 25 March 2002, the jury was excused early because Congressman Traficant ran out of witnesses. (3/25/02 Tr. at 4767). After encountering the same problem on Tuesday 26 March 2002, the Court had to release the jury early and, mindful of defendant's pro se status, the court again instructed the Congressman to bring enough witnesses to fill the next trial day. (3/26/02 Tr. at 4954).

The Court had no choice but to again release the jury early on Monday, 1 April 2002. (4/1/02 Tr. at 5602). On Tuesday, 2 April 2002, Congressman Traficant's continuing failure or refusal to bring a sufficient number of witnesses forced the Court to dismiss the jury early yet again. (4/2/02 Tr. at 5778). In order to ensure that the next trial day could proceed, the Court, the pro se defendant, and counsel for the United States had a discussion, outside the presence of the jury, of who he would call on...

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  • State v. Tremblay
    • United States
    • Superior Court of Rhode Island
    • March 19, 2003
    ...prima facie case includes all three elements . . ., and each must be established . . . ."); accord United States v. Traficant, 209 F.Supp.2d 764, 780 (N.D. Ohio 2002). After juxtaposing the defendants' Sixth Amendment claims to Duren's three-part test, this Court holds herein: 1. The defend......
  • State v. Tremblay, Pl 97-1816AB
    • United States
    • Superior Court of Rhode Island
    • March 19, 2003
    ...prima facie case includes all three elements . . ., and each must be established . . . ."); accord United States v. Traficant, 209 F.Supp.2d 764, 780 (N.D. Ohio 2002). After juxtaposing the defendants' Sixth Amendment claims to Duren's three-part test, this Court holds herein: 1. The defend......
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    • March 19, 2003
    ...views and attitudes of voters of one city or town are in any way 'distinct' from those of voters in a neighboring community"); Traficant, 209 F.Supp.2d at 780 courts consistently have found that residents of a geographic area are not a distinct, cognizable group based on their place of resi......
  • State v. Tremblay
    • United States
    • Superior Court of Rhode Island
    • March 19, 2003
    ...prima facie case includes all three elements . . ., and each must be established . . . ."); accord United States v. Traficant, 209 F.Supp.2d 764, 780 (N.D. Ohio 2002). After juxtaposing the defendants' Sixth Amendment claims to Duren's three-part test, this Court holds herein: 1. The defend......
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