The opinion of the court was delivered by: BECHTLE
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);
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.
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.
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.
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.
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:
(T)he 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 same with Mr. Meirino: He gave a statement he didn't even know Ted Barone. He gave a statement that he, in fact, lived at that address, refused to come clean.
That's the difference between these defendants and the Government witnesses. They were given immunity because they were able to get to the circumstances behind the crime, who was responsible for the systematic pattern of false registrations.
Let us consider the test articulated by the Third Circuit Court of Appeals in U. S. v. Waller, supra, that is alternative in nature. First, would the natural and necessary effect of the remarks be to comment on the defendants' failure to testify? Or, second, were the comments made intentionally?
(1) Natural and Necessary Effect
Various factors have been considered by the courts to determine whether the natural and necessary effect of a prosecutorial remark was to comment on the failure of a defendant to testify. At the outset, a violation of the Griffin prohibition is often found in those situations where the defendants are the only witnesses available who could provide exculpatory evidence that would negate or rebut the Government's evidence. See U. S. v. Smith, 421 F.2d 1229, 1230 (3d Cir. 1970); U. S. v. Giuliano, 383 F.2d 30, 35 (3d Cir. 1967); Linden v. U. S., 296 F. 104, 106 (3d Cir. 1924); U. S. v. Gatto, supra, 299 F. Supp. at 703.
Cases where the defendant is the sole available witness usually arise where the only persons present at the scene of the crime are the defendant and the victim or a Government agent. In these situations, if the Government agent testifies, for example, that an illegal sale of drugs had taken place between the agent and the defendant, then the only possible witness who could refute that evidence would be the defendant himself. A prosecutorial comment to the jury, therefore, suggesting that the jury should have heard more testimony can Only cause the jury to Naturally look to the Only other evidence there is the defendant and, hence, this could be a prohibited comment on the defendant's failure to testify. In cases where other witnesses or exhibits are available, or have been presented by the defense, a comment by the prosecutor concerning the defense's evidence would not naturally and necessarily be considered to be a comment on the failure of the defendants to testify, because the remark could have been directed to the other evidence which was or could have been presented.
A classic example of the application of the "sole witness" theory is found in Linden v. U. S., supra, which is much relied upon by the defendants. In Linden, the only persons present during an illegal sale of liquor were the three defendants and two United States Customs officers, who later testified for the Government. The only persons who could have testified to refute the Government's evidence were the defendants themselves. It is easy to see that the only conclusion that could have been drawn from the following remarks by the trial judge was that the comments referred to the defendants' failure to testify:
Now, as to that count there is very little to be said. If you believe the evidence, and there is no contradiction of it at all, these three men were caught in a boat on the Shrewsbury River, in what is called the Cove between the Highlands and Sandy Hook, with a lot of intoxicating liquor on board. You heard the testimony with reference to that. Now, there is not any evidence at all in explanation of that transaction, and there you have the bare facts. I don't understand that counsel for the defendant makes any serious contention in that regard.
296 F. at 105-106 (emphasis in original).
In contrast to the Linden decision is the case of U. S. v. Smith, supra, where our very own Third Circuit Court of Appeals reviewed a case involving a defendant who had allegedly given an alias name to the FBI. The defense strategy, presented only through cross-examination of Government witnesses, was that the name was not used as an alias but was the defendant's professional stage name. Although the prosecutor remarked during his closing statement that, "if a man has something to say in his defense, he should say it," the Smith court held that no violation of Griffin resulted. The court held:
Defendant could have called third party witnesses to establish his innocent use of a professional name. In such a situation the quoted response does not fall within Griffin v. California, supra. United States v. Giuliano, 383 F.2d 30 (3d Cir. 1967); United States v. Heithaus, 377 F.2d 484 (3d Cir. 1967).
421 F.2d at 1230. See also U. S. v. Bartemio, 547 F.2d 341, 346 (7th Cir. 1974) ("Likewise, we find that the government's reference to certain evidence as being "uncontradicted and uncontested' could not have naturally and necessarily been taken by the jury as a comment upon Appellant Brennan's right not to testify . . . Brennan was not the only person who could have challenged or contradicted such evidence. Indeed any of the other participants could have rebutted such evidence."); U. S. v. Giuliano, supra, 383 F.2d at 35 (unlike Linden, in his remark, the district attorney was pointing to his own evidence and not to the defendant; in addition, other potential witnesses were available).
A similar situation occurred in the case of U. S. v. Gatto, supra, 299 F. Supp. 697 (E.D.Pa.1969), where it was alleged that certain prosecutorial remarks were violative of Griffin. The court held that:
(although) the defendants in this case could have testified on the subject of whether a legitimate siding business was being conducted, witnesses other than the defendants also could have so testified: employes, customers, suppliers, creditors, etc. Indeed, the proof could have rested on the proffer of certain documentary evidence: account books, sales receipts, insurance policies, etc. It was not to call attention to the defendants' failure to testify, then, but to their failure to offer proof that this comment was directed. . . .
In the instant case, contrary to the assertions of defense counsel at oral argument, other witnesses were not only available but many actually testified in a defense attempt to exculpate every one of the convicted defendants. Therefore, in contrast to the "sole witness" setting of Linden, the Griffin prohibition does not apply to the challenged comments here.
The following items from the record clearly indicate that this is not a sole witness case: First, as to all of the defendants, many witnesses were called by the Government who admitted under direct and cross-examination that, although the address they had supplied to register to vote was false, they believed that what they had done was not "illegal."
This testimony went directly to the major defense offered by the defendants namely, that the acts which they committed were not done "knowingly or willfully," as required for a violation of 42 U.S.C. § 1973i(c) and 18 U.S.C. §§ 241, 2 and 1341. They argued instead that the acts were done out of inadvertence or mistake.
More precisely, counsel for defendant Cianciulli argued in his closing argument to the jury that, as to those particular Government witnesses:
. . . many of (these) witnesses called by the Government I would have called as witnesses if they hadn't testified because their testimony was favorable to Mr. Cianciulli. They continued to show one after another a lack of criminal intention, a lack of being forced to vote for somebody.
Therefore, as defense counsel stated,
the testimony given by these immunized Government witnesses as part of the defense strategy would have been presented by the defense if it had not been presented by the Government presumably to negate the criminal intent not of the witnesses, but of the defendants themselves. The jury did not agree with this argument, as the verdict demonstrates, but no counsel knew that when the summations were made. The defendants were, therefore, not the sole witnesses available to present their major defense as to the issue of intent.
Second, the § 1973i(c) claim that the defendants, excluding defendants Cianciulli and Ricca, registered from an address at which they did not live involved a legal issue that ultimately turned upon the construction of Pennsylvania statutory and decisional law on residency for purposes of registering to vote. The issue, under state law, was whether the defendants were in fact legally residing at the addresses from which they had registered in 1975 and 1976. A critical element of the federal criminal statute requires that the person register from an address at which (s)he n* does not live, as required by the applicable state election law. The Government sought to show that the false registrants had never lived in, and in many cases had never set foot in, the residences listed on the registration forms. The Government did this through the use of the testimony of a real estate salesman, owners, tenants and neighbors who actually resided at the very same addresses from which these defendants had registered. This, too, then was clearly perceived by the jury as proof that the defendants were not the only witnesses available to prove that they, in fact, had or had not lived at those addresses which were contended by the Government to be false.
Specifically, as to defendant Ricca, during the two-year investigation preceding this indictment, he stated to the FBI and to the federal grand jury that he had In fact lived at 1427 South 6th Street and, therefore, his registration to vote from that address was valid under Pennsylvania election law.
At trial, defendant Ricca attempted to further reinforce these pre-indictment statements through the testimony of several witnesses. Anthony Lucidino was called as a defense character witness and testified that Ricca had lived at the 1427 South 6th Street address in the same apartment as defendant Cianciulli. Confronted with evidence that there was only one bedroom in the apartment, Lucidino testified that Ricca had slept in the living room.
Additionally, defense character witness Dr. Leopold Salkind testified that he had treated Ricca for influenza at the 1427 South 6th Street address.
Finally, a Government witness, Salvatore Cannistraci, who lives at 1427 South 6th Street, stated that he had seen Ricca at that address a few times but was unclear as to whether Ricca actually lived at that address.
The combined testimony of these three defense witnesses could be viewed as having an exculpatory effect or as having the effect of corroborating Ricca's prior statements to the FBI and federal grand jury that he had in fact lived at that address at the time he registered to vote. The evidence was offered to prove that he was not guilty of the overt act necessary to sustain the charge of conspiracy to encourage false registration to vote. Plainly, defendant Ricca was not the sole witness available to prove that critical fact. Indeed, Ricca's defense counsel in her closing remarks stressed the testimony of Lucidino and others in an attempt to establish that Ricca did live at that address.
Furthermore, in the context of this "sole witness" discussion, it is reasonable to assume that, if Ricca had in fact lived at the 1427 South 6th Street address, there would have been other available witnesses to substantiate this factual assertion (E. g., other neighbors, friends and/or employees).
As to defendant Fiorentino, the Government presented the owner of the house containing the apartment from which defendant Fiorentino and his wife had registered. This owner testified that neither Fiorentino nor his wife had ever lived at that address.
Again, the Court believes that the jury could naturally conclude that persons other than the defendant could testify that Fiorentino had in fact lived at that address (E. g., his wife, friends, relatives and/or neighbors). Therefore, in the case of defendant Fiorentino under the § 1973i count for false registration, he was not the only witness who could have countered the Government's evidence concerning false registration and residence.
Another specific example may be derived from the aiding and abetting counts against defendant Ricca, because there were other witnesses besides defendant Ricca himself who could have favorably testified for him on those counts. Ricca's defense attorney, in her closing speech to the jury, attempted to persuade the jury that Ricca had not aided and abetted the individuals named in the indictment, by reviewing in great detail the testimony of those persons named as being aided and abetted by Ricca and who had testified for the Government as immunized witnesses. Ricca's attorney contended that Ricca had not asked any of those persons to falsely register because each witness had testified under oath that he had not. (N.T. 7-67, 68, 71.) She also contended that Ricca had not accompanied any of them to defendant Cianciulli's grocery store, where they had actually falsely registered (N.T. 7-67 to 68), or to official registration centers to register falsely. (N.T. 7-71.) Therefore, there Were other witnesses besides defendant Ricca who were available to testify to exculpate him. In fact, the jury acquitted Ricca on two counts of aiding and abetting two persons who had testified at trial. Ricca was charged with aiding and abetting Raphael Norcisa ("Norcisa"), who did not testify at trial. Again, from the viewpoint of the sole-witness approach, the defense could have presented Norcisa as a witness to attempt to show that Ricca was not guilty of aiding and abetting on that particular count. See comments by counsel for both sides on Norcisa.
It is appropriate at this juncture for the Court to note that, while the Griffin prohibition commonly arises in the consideration of those situations where the defendant is the sole witness available, there can be situations where, even if other witnesses are available, a questionable comment is so strong and so direct that it can only be understood to be a comment on the failure of the defendant to testify. For example, in Berryman v. Colbert, 538 F.2d 1247 (6th Cir. 1976), the prosecutor made the following remark during his closing speech:
Now, finally, to establish the robbery murder, the felony murder, we are relying almost entirely upon circumstantial evidence. Nobody was there when the robbery took place. Nobody that we can bring here to testify. The defendants here, yes, but we can't get them to testify.
538 F.2d at 1249 (emphasis in original). No other meaning could be attributed to that remark other than that it was a clear, direct and gratuitous reference to the defendants' failure to take the stand and the prosecutor's inability to do anything about it, thus placing the solution to the evidentiary vacuum squarely on the defendants' shoulders. Such a statement, by its own terms, can have only the meaning barred by Griffin. See also Eberhardt v. Bordenkircher, 605 F.2d 275 (6th Cir. 1979) (the prosecutor's closing argument, as recapitulated by the court: "After criticizing the inadequacy of the defense witnesses, . . . reminded the jury indirectly but emphatically that the defendant had not taken the stand in his own defense. With this final argument, the prosecutor gestured toward the defendant."); Rachel v. Bordenkircher, 590 F.2d 200, 202 (6th Cir. 1978) (prosecutor remarked, "We will never know, these men won't tell us. The only other man who could tell us is dead and in his grave. . . ."); U. S. v. Smith, 500 F.2d 293, 295 (6th Cir. 1974) (prosecutor commented in his closing speech, ". . . I would ask that the defendants satisfy you that there is no other reasonable explanation. If they have some reasonable alternatives to suggest as to what the calls mean, then I leave with you now, you then require them to show that to you."). These cases have no application here.
The language used in the Government's final argument in the case before us is, at the very worst, ambiguous if considered with a perception of all of the evidence heard by the jury and when viewed, as it must be, as a reasonable, accurate and permissible reply to defense counsel's challenge to the Government in their closing arguments that preceded the comments in question. Secondly, and quite aside from measuring the natural and necessary effect of a comment in a "sole witness" case or a direct-challenge case, courts have sought to make the measurement by consistently holding that any questionable remark by the prosecution, even if ambiguous, must be examined in the full panorama of statements made prior to the questionable remark and the evidence presented at the trial in order to accurately assess whether the natural and necessary effect of the comment was to demean the defendants' failure to testify at the trial, thereby causing the prejudice of Griffin. See U. S. v. Dansker, 537 F.2d 40, 63 (3d Cir. 1976) ("We think it clear that the prosecutor was merely highlighting the failure of defense counsel, in their summations, to challenge critical evidence against their clients . . . (defense counsel made no) effort to explain away this conversation in their closing arguments . . . the prosecutor was well within the bounds of legitimate advocacy. "); U. S. v. Armedo-Sarmiento, 545 F.2d 785, 793 (2d Cir. 1976) (the Government stressed credibility and lack of contradiction of own witnesses where contradictory testimony was available from defense witness); U. S. v. Somers, 496 F.2d 723, 741 (3d Cir. 1974) ("It is well settled that a prosecutorial misstatement made in response to, and in rebuttal of, an improper inference suggested by defense counsel will not result in reversible error."); U. S. v. Bartemio, 547 F.2d 341, 346 (7th Cir. 1974) (remark dealt with evidence in record and credibility of witnesses); U. S. v. Gimelstob, 475 F.2d 157, 163 (3d Cir. 1973) (response by prosecution was directed to failure of defense counsel to cross-examine a Government witness and to attack by defense on credibility of Government witness); U. S. v. Giuliano, 383 F.2d 30, 34 (3d Cir. 1967) (general comment on Government's affirmative case is permitted); U. S. v. Heithaus, 377 F.2d 484, 486 (3d Cir. 1967) (defendants deliberately opened the door by attacking credibility of Government witnesses, therefore, justifying the response by the prosecution in an attempt to rebut the attack upon its evidence fair rejoinder); U. S. v. Gatto, 299 F. Supp. 697, 703 (E.D.Pa.1969) (comment on failure of defendants to offer proof is permitted).
In the present case, the Government contends that the remarks in question were made in response to the attack on the credibility of prosecution witnesses and to the argument of various defense counsel to the jury that the conduct of the Government witnesses was identical to the defendants' conduct and that no justification existed for the prosecution of the defendants while the Government witnesses were granted immunity. Throughout their closing arguments, three different defense attorneys emphatically and unmistakably challenged the prosecutor to articulate in his final argument, which they knew was about to be presented to the jury by the prosecutor, the difference in the behavior of the defendants on trial and that of the many witnesses called by the Government who had been false-but-immunized registrants. For example:
Ladies and gentlemen, those who cooperated were immunized. Those who changed their testimony were immunized. You saw on the stand your very selves a person made an original statement and for all intents and purposes those statements were honest. The next thing you know, the FBI is in and they didn't like that statement; they switch the statement and the next time they testified at the Grand Jury, the statement changed again. They came into court, the statement changed again under cross-examination, the tool of the defense.
Ladies and gentlemen, this case has been manipulated and conglomerated. People changed their testimony because they didn't want to be prosecuted. They weren't criminals. "How could I be a criminal; I didn't do anything wrong."
Every witness came in here and said that to you: "I didn't know I was doing anything wrong." Yet they came in and they got immunity. It doesn't make sense. It doesn't make sense and there is only one way to stop this and I started to suggest it and I got excited, but there is only one way to stop it, and that's a not guilty, ladies and gentlemen.
Let the Government know that, to use their money for things of importance. But to pick some people out is wrong. You heard it. Think about that testimony. Think about how all those witnesses came on here and changed it all around: The first time, the Pennsylvania Crime Commission was one thing. The next thing, it is the FBI; another thing.
N.T. 7-43, 44 (closing statements of counsel for defendant Lombardo).
Now, (the prosecutor) made seven suggestions as to what the circumstances may be to lead you to believe and to conclude that these defendants acted criminally.
I would like to for a moment submit to you ladies and gentlemen that if indeed the defendants' behavior is criminal, then the behavior of all of the Government witnesses was equally criminal.
N.T. 7-49, 50 (closing statement of counsel for defendant Asnes).
When the witnesses, the Pisanos, husband and wife, agree, "We did it," no problem; the Government let's them go.
The Middletons, "I voted twice, once here and once in New Jersey," same election, registered twice, no problem, let them go.
The Donaldsons, same thing, no problem, let them go.
But Anthony Fiorentino, the construction worker, the ironworker, "Get him. He must be guilty. He lives in South Philadelphia. Let's get him."
This is horror. This is horror. Jack Meyerson, the United States Attorney, the Special Prosecutor for this, said, "He lied." Wasn't that his action, "Anthony Fiorentino lied"?
He lied? You have heard what Anthony has said, what has been said.
To quote the scripture to you, "He who is without sin, cast the first stone."
N.T. 7-58 (closing statement of counsel for defendant Fiorentino).
The Court, having been in the presence of the jury during the entire trial and having seen, heard and perceived all of the evidence, finds that, first, the remark was intended to be and was a fair response to an attack by the defense on the credibility of nearly all of the Government's witnesses. The defense had posed to the jury the question as to why these witnesses changed their testimony from prior pre-indictment statements to the FBI, the grand jury and other authorities after being immunized. The Government, being invited to respond, was entitled to respond and did so by stating that, unlike the defendants in this case, the immunized witnesses decided, perhaps reluctantly, to "come clean" and admit that they had lied during the two-year inquiry by the various federal, state and local investigating authorities about their registering to vote. The thread of this pre-indictment pattern of lying to the investigating agencies leads directly to the second response included in the Government's rebuttal comments regarding the challenge raised with the jury by the defense as to why these defendants were on trial while various Government witnesses who had committed identical acts with a similar state of mind were granted immunity. The Government attempted to answer this defense thrust in its rebuttal by acknowledging that the witnesses who were immunized had some similarities and some dissimilarities with the defendants on trial. It was pointed out that both had previously lied, said nothing or "stonewalled" Prior to indictment and that the trial evidence proved it. The reference was to the giving of false information to register to vote, in interviews by either the FBI, the Pennsylvania Crime Commission, Philadelphia Voters Commission or in questioning before the federal grand jury. The evidence, the Government argued, clearly reflected the failure to tell the "whole truth" and the various inconsistencies between the defendants' prior pre-indictment statements and the evidence as presented through the testimony of witnesses at trial.
However, unlike the defendants, the Government's immunized witnesses, in effect, had "come clean" and eventually told the truth "before the grand jury" as the Government stated. (N.T. 8-14.) They admitted making prior false statements or omissions of truth to the various authorities.
The fair and reasonable meaning that can be attributed to the Government's comment concerning "coming clean" is that, unlike the immunized wrongdoers who repented pre-indictment, the defendants had not "come clean" during the pre-indictment inquiry, either before the grand jury or in interviews with the various authorities. These inconsistencies and failure to tell the "whole truth" were shown at trial by the evidence.
The Court finds that this was a fair, responsive and invited argument by the Government offered to meet its burden of proof and give the jury the response it was entitled to expect in the face of the questions raised by the defense in their closing arguments. It should also be noted that this position of the Government was not first presented in its rebuttal argument but had been raised and emphasized throughout the trial, beginning in its opening statement to the jury.
The inconsistencies were further emphasized by the Government in its closing remarks to the jury when, in a defendant-by-defendant analysis, it was pointed out that prior pre-indictment statements of the defendants were contrary to the evidence presented at trial and how various defendants had, therefore, been proven to have not told the "whole truth" to the various authorities prior to indictment.
The present case is closely analogous to the case of U. S. v. Heithaus, 377 F.2d 484 (3d Cir. 1967), where the court stated: "By deliberate choice the defense focused attention (upon a particular issue in the case) . . . The prosecutor did no more than rebut this attack upon his evidence by reminding the jury in general terms that the testimony in question was uncontradicted and unimpeached. Such comment was a fair rejoinder that had been invited by the defense." 377 F.2d at 486. Similarly, here the defense opened the door by raising a challenge to the Government to answer the question of why the defendants were on trial when certain Government witnesses who had committed the same acts were not. The Government simply offered a fair rejoinder to that challenge in an effort to answer the question raised and thereby avoid the possibly harmful situation of leaving the defense's question unanswered.
The prosecutorial decision to stress prior inconsistent statements or pre-indictment silence is permissible under the holding of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), relied upon by the defendants. In Doyle, the Supreme Court held that comments at trial by the prosecutor, concerning the silence of the accused after arrest when questioned by law enforcement authorities, was violative of the Fifth Amendment right against self-incrimination. The Doyle rule, however, did not extend to comments concerning the silence of the accused or inconsistencies in his statements Prior to indictment or arrest. These latter types of comments were expressly authorized in U. S. v. Chaney, 446 F.2d 571 (3d Cir. 1971). There, the prosecutor commented in his closing arguments on the defendant's failure to mention certain important information in a prior pre-arrest interview with the FBI. At trial, this important information was disclosed by the testimony of various witnesses and that tended to indicate an unexplained silence on the part of the defendant prior to arrest. The Chaney court held:
The statements of the prosecutor which are objected to came during a long review by him of the events occurring around the time of the robbery and the contradictions between what defendant told the FBI agent and the testimony of various witnesses. Viewed in the context of the prosecutor's entire address, we think it clear he was charging that defendant Chaney lied by not mentioning Sheppard. We do not think those statements, in this situation, even though phrased in the present tense, were such as would lead the jury to conclude that the prosecutor was commenting on the failure of the accused to testify. See Hayes v. United States (368 F.2d 814 (9 Cir. 1966)), Supra; cf. United States v. Smith, 421 F.2d 1229, 1230 (3rd Cir. 1970).
The instant case can be favorably compared with the Chaney decision. Here, the prosecutorial commentary regarding the silence of certain defendants, on their not telling the "whole truth" and on their lying characterized by the Government as "stonewalling" to the authorities to prevent them from reaching the kernel of the scheme prior to indictment, is virtually identical to the facts in Chaney. For example, when questioned by the FBI, defendant Lombardo was asked if Cianciulli had filled out his voter registration form, to which he replied in the negative, and stated that a girl unknown to him had filled out the form and that defendant Cianciulli was not even present. (N.T. 3-91.) At trial, it was shown through an FBI handwriting expert, using handwriting exemplars of the defendants, that Cianciulli had filled out Lombardo's registration form. (N.T. 6-120, 127, 131, 132.) Lombardo's failure to tell the "whole truth" to the FBI constituted "stonewalling" and is representative of the "stonewalling" of the defendants prior to indictment. Another example is that of defendant Cianciulli's pre-indictment failure to tell the Pennsylvania Crime Commission and the Philadelphia Voter Commission that he had filled out numerous registration forms for persons who had never lived at the 1427 South 6th Street address, as was stated on the form.
In addition, the Government, by emphasizing these failures to tell the "whole truth," was responding to or attacking the position taken by the defendants throughout the trial that the defendants had in fact cooperated with the various authorities and did not try to hide or conceal important information.
Turning to the Government's use of the phrase, "(t)heir stonewalling has Persisted throughout this trial," we find that it was a comment on the cumulative appearance of several of the Government witnesses, many of whom had been immunized, but who were nevertheless reluctant to testify at trial against the defendants. This reluctance was evidenced by inconsistent testimony of these witnesses and general lapses of memory as to critical facts that an unindicted witness should or could have remembered.
In this context, the prosecutor said the following regarding these witnesses, in the rebuttal argument leading up to his "stonewalling" remark:
Let's remember a couple things about these Government witnesses: Yes, the Government called them pursuant to subpoena, but as you yourself saw, many of them were very reluctant guests at this party. Had it not been for the fact that they had previously testified before the grand jury you would not have seen the full truth of their testimony. Fllows (Sic ) like Ken Donaldson, Charles Salerno, Josephine DiMento, Mr. Cianciulli's relatives, the Bertis, they came into court and had lapses of memory. They couldn't remember who lived next door until they got on cross-examination. Then when Mr. Miller or one of the other defense attorneys got up here and asked them questions, on cross-examination, it was, "Yes, that's right, Mr. Miller."
"Yes, that's right, Mr. Pomerantz."
The defense was basically able to put words in their mouths. And the reason that happened was they weren't necessarily sympathetic to the Government. They were more sympathetic to the defense.
Whether these witnesses were in fact "stonewalling" by reason of prior affiliations or current allegiances to any of the defendants was not a question for the Court to answer, but was rather a question the jury had a duty to consider in its search for the truth. The critical issue is whether the Government was attempting to meet this circumstance by urging the jury to determine whether these Witnesses had "stonewalled" during the trial, as opposed to implying that the Defendants themselves had "stonewalled" by refusing to testify. The Court finds that the Former was the natural and necessary conclusion that the jury would come to. This is clear when the Government's initial rebuttal remarks, quoted above, are read in conjunction with the later "stonewalling" reference and within the context of the totality of the trial.
Finally, the Government's rebuttal remark that "stonewalling" was "persisting" throughout the trial should also be considered in connection with a point raised in its closing statement to the jury. The Government referred to defendant Cianciulli's attempt to conceal his true handwriting characteristics in the furnishing of his handwriting exemplar. The handwriting exemplar, a non-testimonial statement submitted during trial, was used by an FBI handwriting expert. The Government in its first address to the jury stated:
The fifth factor that I would point out to you and again, with reference to Mr. Cianciulli that he did not honestly believe it was proper to register where you didn't live is his dictated handwriting sample, and by "dictated handwriting sample," we mean this portion of Government's Exhibit 48-D, the upper left-hand corner.
Remember what the handwriting expert said about this dictated sample? He said and I am quoting his very words that it was not the normal style of handwriting, that it appeared to be primitive sort of stick figures.
Well, what happened is Lovelace told him what the handwriting sample was going to be used for. Cianciulli then came forward with what was not the normal style of handwriting, and in an effort to cloud the FBI's investigation, another consciousness of guilt. Fortunately, the FBI had 72 previous samples of Cianciulli's handwriting when he was relaxed and it was his normal style of handwriting, and on that basis we were able to bring before you the handwriting analysis that we did.
In conclusion, this Court finds that the questionable remarks of the Government in its rebuttal argument did not naturally and necessarily have the effect of constituting a comment on any of the defendants failing to testify, when considered within the totality of the trial proceedings, but rather the remarks constituted: (1) a response to the challenge raised by the defense in their closing arguments concerning the credibility and immunization of several Government witnesses; (2) a reaffirmation of the prosecutorial strategy employed throughout the trial of presenting the inconsistencies and omissions in the defendants' pre-indictment statements and in the evidence at trial; and (3) a commentary on the "stonewalling" of the defendants that "persisted" throughout the trial first, by the failure of the defense in general to present affirmative or rebuttal evidence and, second, indirectly through the apparent reluctance of certain immunized Government witnesses to testify against the defendants at trial and, third, by defendant Cianciulli's attempted alteration of his handwriting in an exemplar submitted during trial.
Lastly, courts in these cases often consider the merit of using curative instructions to the jury. The late Chief Judge William H. Hastie, writing for the Third Circuit Court of Appeals, stated in U. S. v. Heithaus, supra, that:
If some juror was thus reminded that the defendant had not testified, the court's subsequent instruction concerning the jury's duty to disregard the failure of the accused to testify minimized the risk of inferring guilt from such failure. On the ...