United States v. Cianciulli, Crim. No. 79-165-1

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Citation482 F. Supp. 585
Docket Number79-165-2 and 79-165-6.,Crim. No. 79-165-1
PartiesUNITED STATES of America v. Matthew J. CIANCIULLI, Jr., Joseph R. Ricca, Anthony Fiorentino.
Decision Date17 December 1979

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Peter F. Vaira, U. S. Atty., Philadelphia, Pa., Jack Meyerson, Dept. of Justice, Crim. Div., Washington, D. C., Peter F. Schenck, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.

Jeffrey M. Miller, Philadelphia, Pa., for Cianciulli.

Helen T. M. McCaffrey, Philadelphia, Pa., for Ricca.

Ivan J. Feiner, Philadelphia, Pa., for Fiorentino.

MEMORANDUM OPINION

BECHTLE, District Judge.

Presently before the Court are the post-trial motions of defendants Matthew J. Cianciulli, Jr. ("Cianciulli"), Joseph R. Ricca ("Ricca") and Anthony Fiorentino ("Fiorentino") for judgment of acquittal, arrest of judgment and new trial, pursuant to Fed.R. Crim.P. 29, 33 and 34. After a careful and exhaustive examination of the relevant statutes, decisional law, the record and arguments of counsel, in their briefs and at oral argument, the motions were denied by the Court's Order dated October 23, 1979, and the within Memorandum Opinion is in support thereof.

The case concerns alleged criminal conduct perpetrated by 25 defendants and approximately 15 unindicted actors through a pattern of conspiratorial and individual activities in falsely registering to become eligible to vote in federal elections. The evidence adduced at trial showed a common course of conduct over a three-year period, beginning in 1975 and occurring in the 1st ward in the 13th division of the 183rd state legislative district in the City of Philadelphia. The 49-count criminal indictment was returned by the grand jury after two years of investigation, which involved the interviewing of approximately 120 witnesses by the Federal Bureau of Investigation ("FBI"), the Pennsylvania Crime Commission, the Philadelphia Voters Commission and the examination of approximately 30 witnesses before the federal grand jury. The indictment charged 25 defendants with conspiracy to encourage false registration, 42 U.S.C. § 1973i(c);1 giving false information for the purpose of establishing eligibility to register to vote, 42 U.S.C. § 1973i; and, conspiracy to injure citizens in the exercise of their constitutional rights, 18 U.S.C. § 241.2 Eight of the 25 defendants were additionally charged with aiding and abetting others to falsely register to vote through the use of false addresses and false periods of residence in the state legislative district, 18 U.S.C. § 2.3 Defendant Cianciulli, who at the time of the indictment was the Pennsylvania state representative from the 183rd legislative district, was also a resident of the political ward involved and had been involved in local politics there for several years and, according to the Government, was the principal beneficiary of the registration fraud. He was charged with four counts of mail fraud for allegedly using the mails for transmittal of false mail voting registration forms, in violation of 18 U.S.C. § 1341.4 By Memorandum Opinion and Order dated August 30, 1979, this Court ordered sua sponte severance of the case into three separate trials, pursuant to the Court's express and inherent powers under Fed.R.Crim.P. 14 and based upon the interests of due process and judicial economy. U. S. v. Cianciulli, 476 F.Supp. 845 (E.D.Pa. 1979). Pursuant to that Order, defendants Cianciulli, Ricca, Fiorentino, Joseph Asnes ("Asnes"), Vincent Lombardo ("Lombardo") and Ramon Meirino ("Meirino") were tried together in the first trial commencing on September 7, 1979. Two of the 25 defendants pleaded guilty prior to commencement of the first trial. Prior to the presentation of testimony, two days of hearings were held on various suppression motions and one day was spent in selecting the jury of twelve with four alternates. The trial proceeded for eight days, during which the testimony of 64 witnesses was heard and the introduction of some 140 exhibits was received. Of the 64 witnesses, the defense presented 24 witnesses. The defendants did not testify. On September 18, 1979, as a result of an incident involving a hallway communication made to an alternate juror by the brother of defendant Fiorentino, the jury was ordered sequestered for the remainder of the trial. The verdict was returned on September 24, 1979, after the jury had deliberated for three days. The jury found five of the six defendants guilty on a total of 19 counts and acquitted them on the remaining 26 counts of the indictment.5 The remaining 17 defendants awaiting trial as a result of severance pleaded guilty to various counts after the first trial. Post-trial motions were filed by the defendants who were convicted at trial on September 26 and October 1, 1979. Sentence was imposed on October 4, 24, 25 and November 8 and 9, 1979, and an appeal was filed on October 25, 1979.

I. Prosecutorial Misstatements

The first and perhaps quintessential issue raised by the defendants in their post-trial motions concerns the constitutional propriety of certain direct and indirect comments made by the Government during the course of its closing and rebuttal arguments which allegedly concern the failure of the defendants to testify at trial. The defendants contend that these remarks violated the letter as well as the spirit of the prohibition established in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), because they could have been construed by the jury as a comment on the fact that the defendants invoked their right not to testify. In Griffin, the United States Supreme Court held:

The Fifth Amendment, in its direct application to the Federal Government and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt.

380 U.S. at 615, 85 S.Ct. at 1233.

The basic test to determine whether a violation of due process has occurred was recently articulated by the Court of Appeals for the Third Circuit in U. S. v. Waller, 607 F.2d 49 (3d Cir. 1979) (per curiam). The Waller court held:

The test for determining whether a remark constitutes an improper comment on an accused's failure to take the stand in his own behalf is "whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify." United States v. Chaney, 446 F.2d 571, 576 (3d Cir.), cert. denied, 404 U.S. 993, 92 S.Ct. 543, 30 L.Ed.2d 546 (1977).

At 50. See also Slakoff v. U. S., 8 F.2d 9, 11 (3d Cir. 1925); U. S. v. Gatto, 299 F.Supp. 697, 703 (E.D.Pa.1969).

In order to assess whether "a jury would naturally and necessarily take the prosecutor's remarks to be a comment on the failure of an accused to testify," it is necessary for the reviewing court to step into the shoes of the jury to evaluate what was heard, seen and perceived by it within the context of the totality of the trial. Stated in the converse, the reviewing court must be careful to avoid using an approach that isolates words, sentences and phrases out of the context of the trial in an attempt to determine their meaning and impact on the minds of the jurors who were part of the trial that included the very comments in question. A detached, "reasonable person" approach cannot comport with the pronouncements set forth in Griffin. The Court is also compelled to determine whether the comments of the prosecutor were made in response to an earlier defense challenge, invitation or strategy, or in response to testimony presented at trial to the jury. The two pivotal questions under the test are: (1) What was intended by the comments?"; and (2), despite the prosecutor's intent in his remarks, "What would the jury — in the context of the total trial — `naturally and necessarily' draw from the challenged words?" The authorities teach us that what is or is not prejudicial varies from case to case and that there are no fixed rules available that prohibit the use of certain words or phrases. See U. S. v. Armedo-Sarmiento, 545 F.2d 785, 793 (2d Cir. 1967); U. S. v. Handman, 447 F.2d 853, 856 (7th Cir. 1971); Rodriguez-Sandoval v. U. S., 409 F.2d 529, 531 (1st Cir. 1969); U. S. v. Venable, 443 F.Supp. 178, 182 (E.D.Pa. 1977); U. S. v. Gatto, supra, 299 F.Supp. at 703.

A. Language Concerning "Stonewalling"

In their post-trial motions, the defendants have objected to two particular sets of remarks that the Government made during the course of its closing and rebuttal arguments. First, the defendants contend that the following remarks, made during the course of the Government's rebuttal argument, violated the rule established in Griffin v. California:

Another question that was asked by a number of defense attorneys that merits a response is, "Well, why were these Government witnesses here immunized when some of these defendants are on trial?"
Well, very simple: It is because eventually and perhaps reluctantly before the grand jury these individual voters did finally tell the truth and they did agree to testify who was really behind their false registration.
That's not the case with the defendants in this courtroom. Their stonewalling has persisted throughout this trial.
Mr. Lombardo said to the FBI that, "When my handwritten form was filled out, my mail-in registration form, Mr. Cianciulli wasn't even there." That's what he said to Agent Lovelace. And that's just not true. He didn't come clean.
The same thing with Mr. Asnes. He said once to the Crime Commission, he said he lived there; another story to the FBI; he refused to come clean and say the circumstances surrounding his registration.
The same with Mr. Fiorentino: He registered at an address he didn't live, refused to offer any explanation as to why he did that.
The
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