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UNITED STATES v. OSTICCO

February 7, 1984

UNITED STATES of America, Plaintiff,
v.
James David "Dave" OSTICCO, Defendant



The opinion of the court was delivered by: CALDWELL

 CALDWELL, District Judge.

 I. Introduction

 Before the court for disposition are the post-trial motions filed by defendant Osticco following his conviction by a jury in a trial held on August 17-24, 1983. The issues raised are sufficiency of the evidence, the propriety of the jury charge with regard to acts occurring after March 7, 1980, the unavailability of Charles Cortese as a witness for purposes of trial, the admissibility of certain tapes of Cortese-Parlopiano conversations, and suppression of electronic surveillance. At sentencing on December 16, 1983, defendant's counsel also presented argument on the propriety of the consecutive sentences imposed.

 II. Sufficiency of the Evidence

 With regard to the sufficiency of the evidence contentions raised by defendant, we note initially that the applicable test is whether "viewing the evidence in the light most favorable to the Government, together with all reasonable inferences to be drawn therefrom, substantial evidence supports the jury's verdict." United States v. Sturm, 671 F.2d 749 (3d Cir. 1982), cert. denied, 459 U.S. 842, 103 S. Ct. 95, 74 L. Ed. 2d 86. The case against the defendant was based largely upon the testimony and credibility of Frank Parlopiano, also known as Frank Parr. Parr, who was serving for the government, had frequent contact with Osticco and more or less became his confidant concerning the subject matter of this proceeding. Parr also became Osticco's contact with Cortese concerning their mutual concern over a grand jury investigation. Certain conversations between Parr and the defendant and between Parr and Cortese were recorded, and others were recounted by Parr in his testimony. Viewing the recordings and Parr's testimony in a light favorable to the prosecution the jury could have concluded the following scenario.

 Frank Parlopiano met defendant Osticco in 1975 through a mutual acquaintance, Russell Bufalino. Parlopiano met Charles Cortese during the summer of 1979 when Cortese visited the newspaper where Parlopiano and Cortese's fiancee were employed. Cortese at that time told Parlopiano that he was the former husband of the holdout juror in the flood fraud trial. On the same occasion, Cortese indicated that Parlopiano should "ask Dave [Osticco] about me." (N.T. vol. I, 19). Frank Parlopiano was subsequently contacted in August, 1979, by FBI special agent Francis Mulholland, at which time Parlopiano agreed to report back to the FBI on conversations he had with defendant Osticco and with Charles Cortese. Commencing in April of 1980, after he had been subjected to a body search by Osticco at Medico Industries, Parr agreed to help record these conversations and actually began to participate in such taping on May 13, 1980. During the course of his contacts, both recorded and unrecorded, Parlopiano was able to learn about jury tampering in a 1977 federal criminal trial in which Cortese's ex-wife was the lone holdout juror for acquittal, and for whose actions as a juror Cortese received both money and property.

 In about December of 1979, Parlopiano learned that Cortese had been subpoenaed to testify before a federal grand jury that was investigating the jury tampering. Upon Parr's informing Osticco, Osticco said he would pay Cortese's legal expenses. Subsequently, Osticco told Parlopiano that Cortese must lie to keep himself and others out of trouble but later told Parlopiano to tell Cortese to take the fifth amendment and "keep his mouth shut." (N.T., vol. I, 26). According to Parlopiano, Cortese's invocation of the fifth amendment before the grand jury on January 3, 1980, came at Osticco's direction and Osticco reimbursed Parlopiano on each of the six or eight different times that Parlopiano gave money to Cortese.

 Cortese was again subpoenaed to appear before a federal grand jury on March 7, 1980, and prior to that appearance Parlopiano and Osticco met. According to Parlopiano, he was told by Osticco that Cortese had to lie and watch what he said to avoid being prosecuted for perjury. Parlopiano relayed these admonitions to Cortese prior to his second appearance before the grand jury. Following his grand jury appearance Cortese met with Parlopiano and stated he had lied even though he had been granted immunity. At the same meeting, Cortese provided Parlopiano with a list of the questions he was asked before the grand jury. These questions were subsequently passed to Osticco.

 Evidence in support of every allegation in the indictment was presented to the jury and Parlopiano was fully cross-examined by defense counsel. The court is aware that inconsistencies at times existed in Parlopiano's testimony and these have been painstakingly pointed out in detail by defense counsel. However, the government's questions to Parlopiano, even on direct examination, were geared toward giving Parlopiano the opportunity to explain any contradictions and inconsistencies, particularly as adduced from the tapes he made. In essence, this case turned around the jury assessment of Parlopiano's credibility and it is hornbook law that determinations on credibility are within the province of the fact finder. Rather than attempting to isolate portions of the record we have reviewed the testimony and recordings as a whole. Having accomplished this, we believe that the jury could conclude beyond a reasonable doubt that a conspiracy existed and that defendant, by his influence over Cortese, obstructed the proceedings of the federal grand jury. Defendant's position regarding sufficiency of the evidence is therefore denied.

 III. The Jury Charge

 One of the issues raised by defendant arose in conjunction with the jury charge given with respect to 18 U.S.C. § 1503, the obstruction of justice statute. Defendant has argued that the court's references to whether Cortese remained a "potential" grand jury witness were improper. What defendant has overlooked, however, as the government has pointed out, is that defendant was charged under the omnibus clause of the statute, which criminalizes the activity of one who "corruptly . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede the due administration of justice." Therefore, any reference by the court to Cortese's likelihood of being called as a grand jury witness actually worked to defendant Osticco's benefit. In reality, whether Cortese was still a witness was somewhat irrelevant as to whether Osticco could be convicted under the omnibus clause of 18 U.S.C. § 1503. It appears that one of the problems in the case was that the word "witness" was eliminated from the first section of the statute on October 12, 1982, just one week before the indictment was returned against defendant Osticco. However, Cortese's potentiality as a witness remained an issue under the omnibus clause because one of the ways in which he could obstruct justice would be to go before the grand jury investigating the alleged jury tampering in the 1977 flood fraud trial and testify untruthfully about his knowledge thereof. A case particularly on point with regard to the present issue is United States v. Friedland, 660 F.2d 919 (3d Cir.1981), in which appellant raised an argument that an individual was not a "witness" for purposes of 18 U.S.C. § 1503. The Friedland court reasoned as follows:

 
Rejecting a claim identical to that advanced by appellants, the court in Falk v. United States, 370 F.2d 472 (9th Cir.1966), cert. denied, 387 U.S. 926, 87 S. Ct. 2044, 18 L. Ed. 2d 982 (1967), stated:
 
The defendant . . . was not charged with influencing a 'witness' within the first provision of Section 1503. [He] was charged with endeavoring to influence, obstruct or impede the due administration of justice. The means of so doing was by attempting to corruptly influence prospective witnesses. It is clear that in the mind of the defendant, they were prospective witnesses. If he had thought otherwise, there would have been no reason to ask [them] to testify falsely. So, while the term 'witness' may be a word of art in an indictment under the first portion of Section 1503, the phrase 'prospective ...

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