THOMAS J. CIAMBRONE, JR., PETITIONER V. UNITED STATES OF AMERICA

   No. 86-75

   In the Supreme Court of the United States

   October Term, 1986

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Second Circuit

   Brief for the United States in Opposition

            TABLE OF CONTENTS
   Opinions Below
   Jurisdiction
   Question presented
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 2505-2533) is
reported at 787 F.2d 799.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 2505) was entered
on April 4, 1986, and a petition for rehearing was denied on May 22,
1986 (Pet. App. B).  The petition for a writ of certiorari was filed
on July 21, 1986.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTIONS PRESENTED

   1. Whether the district court abused its discretion in not
declaring a mistrial or discharging a juror after investigating
allegedly prejudicial remarks made by that juror.

   2. Whether the district court erred in giving a "conscious
avoidance" instruction to the jury on the substantive offenses charged
in the indictment.

                               STATEMENT

   Following a jury trial in the United States District Court for the
Southern District of New York, petitioner was convicted of conspiracy
to commit extortion and three counts of attempted extortion, in
violation of 18 U.S.C. 1951.  /1/ He was sentenced to concurrent terms
of ten years' imprisonment and a fine of $4,000 on each of the four
counts.

   1. The evidence at trial, the sufficiency of which is not in
dispute, is set out in considerable detail in the opinion of the court
of appeals (Pet. App. 2507-2521).  Petitioner and his brother, Jerry
Chambrone, owned and operated a delivery business called T.J.
Associates.  Chambrone managed the company from its office in New
York.  Petitioner resided in Florida, but as president of the company,
he was in regular contact with the New York office and made major
business decisions.  In 1982, Computer Sciences Company ("CSC")
withdrew certain delivery routes from T.J. Associates and transferred
them to Apple Messenger Service ("Apple"), a company operated by
Donald Miller.  The evidence at trial showed that petitioner
participated in an extortion scheme designed to regain these routes
for T.J. Associates.  Pet. App. 2507-2508.

   After petitioner's company lost CSC's delivery business, Jerry
Chambrone discussed the situation with Joseph Riggio.  He said that
Apple president Miller had infiltrated a trucking route under contract
to T.J. Associates and asked Riggio to talk to Miller and "make the
man understand what he was doing wasn't right" (Pet. App. 2508).
Riggio went to Miller's home on November 20, 1982.  Stating that he
had been sent by petitioner, Riggio urged Miller to stop doing
business with CSC.  He compared the trucking business to the garbage
business and told Miller that truckers have "area rights" and that
"the only way to survive" was to have "respect for each other's work"
(id. at 2508-2508).  Riggio also told Miller that petitioner had
"obligations" in New York City and that "certain friends" took a
personal interest in petitioner's and Chambrone's business dealings
and financial obligations (id. at 2509).  In addition, Riggio
threatened to burn down Miller's house and blow up his car (id. at
2508).

   Miller responded by telling Riggio that he wanted to speak to
petitioner, and Riggio agreed to arrange a meeting.  Riggio then told
Chambrone about his conversation with Miller.  He warned Chambrone
that petitioner's upcoming meeting with Miller should be "strictly
business" because Miller might tape-record it.  Chambrone agreed to
relay that information to petitioner (Pet. App. 2509).  Two days
later, petitioner flew to New Jersey from Florida.  On November 23,
1982, petitioner met with Miller at Miller's home.  Miller taped the
conversation, which was central to the case against petitioner.

   Petitioner began the conversation by inquiring whether Miller as
tape-recording him (Pet. App. 2510).  Miller denied that the
conversation was being recorded.  Petitioner then stated that his
company's contract with CSC was "exclusive" and that CSC did not have
the right to do what it was doing.  He stated that "all the other
messenger services, heavy, heavy messenger services, uh, armored
trucks * * * they haven't bothered to touch it (CSC) because they know
the situation * * *" (id. at 2510-2511).  He warned Miller that a
ridiculous lawsuit would result from CSC's transfer of the delivery
route to Apple and cited to Sacco and Vanzetti as an example of what
could happen in court.  He warned Miller that the T.J. Associate
drivers were "pissed" and that they were going to take matters into
their own hands (ibid.).

   When Miller told petitioner that he was being threatened,
petitioner stated "(n)ot by me you're not" (Pet. App. 2511).  Miller
said that Riggio claimed to have been sent by petitioner, but
petitioner denied that Riggio worked for him.  Miller again complained
about the threats, stating that Riggio had threatened to burn Miller's
house down (id. at 2513).  Petitioner neither expressed outrage nor
stated that he would try to stop Riggio from making or carrying out
such threats;  rather, he merely stated that he "ha(d) no idea about
that" and again denied that he had sent Riggio (ibid.).  Petitioner
further stated:  "As far as people coming up to talk to you or do
things, I have no idea.  (I d)on't wanna' know about it, I don't care
to know about it" (id. at 2516).  Finally, petitioner acknowledged
that he was aware that his visit to Miller could cause him problems:
"And uh, if it uh, it comes down, it may be very bad for me for being
here.  * * * .  Cause they could say * * * well I came to see you and
whatever else is involved" (id. at 2517-2518).  Petitioner never
contacted Riggio, after the conversation with Miller, to find out what
Riggio had said to Miller or to determine whether Miller's allegations
that he had been threatened were true (id. at 2518).

   Following petitioner's meeting with Miller, Chambrone made threats
to an Apple driver and a CSC employee.  In addition, someone began
following the car of Brinson Weeks, the CSC employee responsible for
transferring the delivery routes to Apple.  Six months later, Weeks'
car was set on fire as it sat in his apartment parking lot.  Later,
Chambrone remarked to CSC employees that whoever had firebombed Weeks'
car had "only warned him" and that, if he were to do it, he would make
sure Weeks was in the car (Pet. App. 2519-2520).

   When it became clear that CSC would not voluntarily reverse its
decision concerning the delivery routes, Chambrone instructed Riggio
to burn one of the Apple driver's cars.  Riggio made two unsuccessful
attempts to do so.  Subsequently, Chambrone told Riggio that Miller
"should be taught a lesson" and discussed blowing up Miller's house.
Riggio warned Chambrone that "they are going to come down like a ton
of bricks on us * * * .  All of us, probably your brother, you, me"
(Pet. App. 2520).  Chambrone nonetheless stated that he wanted it done
and agreed to pay Riggio $4,000 for the job.  Pursuant to those
instructions, Riggio burned down Miller's house and office on October
5, 1983.  Riggio was arrested the next day.  Later that morning, a
brief collect telephone call was placed from the T.J. Associates
office in New York to petitioner's residence in Florida (id. at 2521).

   2. In instructing the jury on the elements of the substantive
extortion counts, the trial court gave the following "conscious
avoidance" charge (Pet. App. 2528-2529;  Tr. 814-816):

         In determining whether the defendant you are considering
      acted knowingly and wilfully, you may consider whether that
      defendant deliberately closed his eyes to what otherwise would
      have been obvious to him, and that is a consideration of some
      importance in this case, particularly with regard to
      (petitioner's) contentions.

         It is settled law that a finding of guilty knowledge may not
      be avoided by a showing that the defendant simply closed his
      eyes to what was going on about him;  "see no evil" is not a
      maxim in which the criminal defendant should take any comfort.

         Guilty knowledge cannot be established by demonstrating mere
      negligence or even foolishness on the part of a defendant.
      However, it is not necessary, for instance, that the government
      prove to a certainty that (petitioner) knew that Joseph Riggio,
      for example, was directly threatening physical injury and
      violence in demanding that Apple stop doing business with
      Computer Sciences.  You may find (petitioner) had such knowledge
      if he was aware of a high probability that it was so, unless he
      actually believed that no threats were being employed by Riggio.

         Thus, if you find that the defendant you are considering
      acted with deliberate disregard of whether threats were used and
      with a conscious purpose to avoid learning the truth, the
      requirement of knowledge would be satisfied, unless the
      defendant actually believed that threats were not used.

   3. During the second day of deliberations, juror Rosemarie Stolfa
advised the court that she was having a problem with one of the other
jurors (Tr. 858-859).  The court, in the presence of government and
defense counsel, questioned Stolfa about the problem (Tr. 860-864).
Stolfa informed the court that another juror had stated during
deliberations that the defendants were "part of the mob," that they
were guilty, and that she "hated them" and wanted to "crush them" (Tr.
861-862).  Stolfa stated that she resented the remarks and that she
felt that the juror who made those remarks was prejudiced (Tr.
862-863).

   After learning from juror Stolfa that the juror in question was
Elizabeth Haney, the court, in counsel's presence, twice questioned
Haney about the incident (Tr. 866-869, 872-873).  Haney explained that
her remarks had not been based on any ethnic bias, but rather on
testimony at trial indicating that the defendants were "on the fringes
of the Mafioso" and had "connections with other * * * elements * * *
in society" (Tr. 869).  Haney stated that juror Stolfa had mistakenly
taken her remarks as a personal insult and denied having stated that
"we have to convict these people" (Tr. 872).

   After the initial questioning of juror Haney, the court stated that
her remarks had been prompted by the testimony at trial and that they
did not indicate that she was prejudiced or biased (Tr. 870-871).
Counsel for co-defendant Chambrone suggested discharging juror Haney
(Tr. 874).  Petitioner's counsel did not join that motion, but
suggested that the court instruct all the jurors that the "Mafia" and
the defendants' ethnic background had nothing to do with the case and
that the jury should decide the case on the basis of the evidence
presented (ibid.).  The court thereafter explained to juror Stolfa
that there apparently had been a misunderstanding and that juror
Haney's remarks had not been based on any bias against Italians but
rather on certain evidence at trial (Tr. 876).  The court then
instructed the entire jury along the precise lines suggested by
petitioner's counsel and inquired whether any of the jurors felt
unable to follow the instructions (Tr. 879-880).  None of the jurors
expressed an inability to do so.

   4. The court of appeals affirmed petitioner's convictions (Pet.
App. 2505-2533).  The court first held that there was sufficient
evidence to support the jury verdict that petitioner had intentionally
conspired to commit extortion.  In reaching that conclusion, the court
pointed to petitioner's control of T.J. Associates, his participation
in the nonextortionate parts of the plan to win back CSC's business,
the circumstances and content of the critical conversation with
Miller, and Riggio's statement to Miller that petitioner had sent him
(Pet. App. 2521-2527).  The court also concluded that petitioner was
properly convicted of the substantive extortion offenses under two
distinct theories (id. at 2527-2528).  First, under Pinkerton v.
United States, 328 U.S. 640 (1946), the court held that petitioner was
liable on the substantive counts, because the attempted extortion
offenses were reasonably foreseeable and were committed by
petitioner's co-conspirators in furtherance of the conspiracy.
Second, the court ruled that petitioner was liable for the substantive
offenses under an aiding and abetting theory, because petitioner's
meeting with Miller "lent weight and authority to the prior and
subsequent threatening conduct and action by Jerry Chambrone and
Riggio" (Pet. App. 2528).

   The court of appeals also rejected petitioner's challenge to the
"conscious avoidance" instruction (Pet. App. 2528-2531).  The court
found that the instruction had been given only in connection with the
substantive counts of attempted extortion, not in connection with the
conspiracy count.  Accordingly, the instruction did not run afoul of
United States v. Mankani, 738 F.2d 538, 547 & n.1 (2d Cir. 1984), in
which the court had held that membership in a conspiracy cannot be
proven by conscious avoidance, because the requisite mental state for
conspiracy is intent.  The court further concluded that the evidence
warranted giving the charge, because petitioner's failure to make any
inquiry or to take any action after being told of Riggio's threats
might well be considered conscious avoidance of knowledge of the
threats being made on his behalf (Pet. App. 2531).

   Finally, the court of appeals also rejected petitioner's claim of
jury impropriety (Pet. App. 2531-2532).  Assuming the issue had been
preserved even though petitioner made no request to discharge juror
Haney or to declare a mistrial, the court held that there was no
probability of prejudice from the conduct of juror Haney or the jury
as a whole (id. at 2532).  The court of appeals reasoned that the
trial court had properly exercised its discretion in questioning juror
Haney and in giving the jury cautionary instructions.  By doing so,
the court held, the trial court had ensured that the verdict would not
be tainted (ibid.).

                               ARGUMENT

   The decision of the court of appeals is correct and does not
conflict with any decision of this Court or any other court of
appeals.  Further review is therefore unwarranted.

   1. Petitioner argues first (Pet. 11-17) that his right to a fair
trial was abridged when the district court, after learning of juror
Haney's alleged bias, refused to discharge Haney from the jury and
allowed the trial to proceed.  Petitioner contends that the court of
appeals' ruling on this claim conflicts with the Eleventh Circuit's
decision in United States v. Heller, 785 F.2d 1524 (1986).  That
contention does not warrant review.

   To begin with, petitioner has not preserved the issue.  At no time
after the identification or questioning of juror Haney did
petitioner's counsel request either a mistrial or the discharge of
juror Haney.  /2/ Although counsel for petitioner's co-defendant
suggested discharging juror Haney (Tr. 874), petitioner's counsel
recommended instead the very procedure that the trial court ultimately
adopted.  Having proposed that course of conduct, petitioner cannot
now argue that the trial court's actions constituted error.  See
United States v. Jones, 763 F.2d 518, 523-524 (2d Cir. 1985), cert.
denied, No. 85-643 (Nov. 12, 1985);  United States v. Ferguson, 758
F.2d 843, 851-852 (2d Cir. 1985), cert. denied, No. 84-6967 (Oct. 7,
1985).

   On the merits, petitioner's argument rests on a critical
mischaracterization of the record.  Petitioner twice states in his
petition (Pet. 15, 16-17) that, when questioned by the trial court
about the incident in question, juror Haney admitted her ethnic bias.
As the court of appeals noted (Pet. App. 2531), however, that is not
what occurred.  Juror Haney did not admit to ethnic bias, and the
district court found that her remarks were based on the evidence at
trial and not on prejudice against any ethnic group (Tr. 869-871).
Thus, the premise of petitioner's argument of juror taint is simply
incorrect.

   More broadly, the record shows that petitioner was not deprived of
a fair trial.  The trial court, being in the best position to evaluate
the effect on the jury of events at trial, is afforded broad
discretion when confronted with allegations of juror misconduct or
prejudice.  United States v. Gigante, 729 F.2d 78, 82 (2d Cir.), cert.
denied, 467 U.S. 1206 (1984);  United States v. Yonn, 702 F.2d 1341,
1344-1345 (11th Cir.), cert. denied, 464 U.S. 917 (1983);  United
States v. Barnes, 604 F.2d 121, 144 (2d Cir. 1979), cert. denied, 446
U.S. 907 (1980);  cf. United States v. Laymon, 621 F.2d 1051, 1053
(10th Cir. 1980).  For the same reason, the trial court's
determination whether a mistrial is warranted is entitled to special
weight.  Arizona v. Washington, 434 U.S. 497, 510 (1978).  Here, the
trial court fully questioned jurors Stolfa and Haney and determined
that juror Haney was not laboring under any preconceived notion of
petitioner's guilt and did not harbor any ethnic bias against
petitioner.  Thereafter, at the suggestion of petitioner's counsel,
the court carefully instructed the jury that thoughts about the "mob"
or the defendant's ethnic background were to play no role in the
deliberations and that the verdict was to be based entirely on the
evidence.  No juror voiced an inability to comply with those
instructions, and it must be presumed that the jury complied with
them.  Tennessee v. Street, No. 83-2143 (May 13, 1985), slip op. 5,
7-8;  Francis v. Franklin, No. 83-1590 (Apr. 29, 1985), slip op. 16,
n.9;  Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367 (1963).
/3/ In these circumstances, the court of appeals correctly held that
the trial court's actions eliminated any question of juror taint.

   Finally, the decision of the court of appeals is not in conflict
with the Eleventh Circuit's decision in United States v. Heller,
supra.  There, several jurors had commented on the testimony during
the course of the trial, they had made numerous blatantly anti-Semitic
and racial slurs in the presence of the entire jury, they had stated a
predisposition to "hang" the Jewish defendant, and one of the jurors
had independently consulted an accountant about issues pertaining to
the trial and reported the results to the jury.  The court of appeals
reversed the conviction on three grounds:  (1) that the obvious
bigotry displayed by the jury denied the defendant a fair trial (785
F.2d at 1527-1528) (bigotry here was "so shocking to the conscience
and potentially so damaging to public confidence in the equity of our
system of justice, that we must act decisively to correct any possible
effects on this appellant)";  (2) that several jurors had entertained
a presumption of guilt at the beginning of the trial;  and (3) that
the jury had received extrinsic evidence concerning a material matter
in the case (id. at 1528).

   Nothing similar occurred in petitioner's case.  Not only was there
no resort to extrinsic evidence, but there was nothing resembling the
pervasive misconduct that tainted the jury in Heller.  The only
conduct alleged to taint the jury deliberations in this case was
limited to a single incident involving the remarks of a single juror
within the hearing of only one other juror.  Most important, however,
this case differs critically from Heller in that the district court
here found that the challenged remarks were not indicative of
prejudice at all, but were based on evidence at trial.

   2. Petitioner also argues (Pet. 18-23) that the "conscious
avoidance" charge to the jury lacked any basis in the evidence and
improperly relieved the government of the obligation to prove intent,
an essential element of both the conspiracy count and the substantive
counts of attempted extortion.  The court of appeals properly rejected
that contention.

   First, the court of appeals did not relieve the government of the
obligation to prove that petitioner intentionally joined the
conspiracy.  That obligation, as the court held in United States v.
Mankani, 738 F.2d at 547 n.1, cannot be met by establishing conscious
avoidance, since the requisite mental state for conspiracy is intent,
and not mere knowledge.  The court of appeals in this case followed
its earlier ruling on that point.  See Pet. App. 2529 ("Conscious
avoidance of participating in a conspiracy and agreeing to be a member
of a conspiracy are mutually exclusive concepts").  In this case, the
court found (id. at 2528-2529) that the conscious avoidance
instruction was given only in connection with the substantive counts
of attempted extortion, and not in connection with the conspiracy
count.  /4/ Thus, without the aid of a conscious avoidance charge,
petitioner was proved to have intentionally joined the conspiracy to
commit extortion.

   Second, the conscious avoidance charge was properly given on the
substantive counts of the indictment.  It is well established that
when an essential mental element of a crime is "guilty knowledge," a
defendant may not escape responsibility for his actions by
deliberately shutting his eyes to avoid learning what otherwise would
be obvious.  See, e.g., United States v. Jewell, 532 F.2d 697, 700
(9th Cir.), cert. denied, 426 U.S. 951 (1976);  United States v.
Guzman, 754 F.2d 482, 488 (2d Cir. 1985), cert. denied, No. 84-1604
(Jan. 13, 1986).

   It is undisputed in this case that guilty knowledge was an
essential element of the attempted extortion counts.  Moreover, there
was an ample evidentiary basis for giving the "conscious avoidance"
charge.  During petitioner's November 23 conversation with Miller,
after being told that Riggio had made threats in petitioner's name,
petitioner replied that he "had no idea" about that and that he
"(didn't) wanna' know about it, I don't care to know about it."
Following the November 23 conversation, petitioner never contacted
Riggio either to ask what he had said to Miller or to stop him from
making further threats in petitioner's name and on behalf of
petitioner's business.  The court of appeals thus correctly concluded
that the evidence permitted the inference that petitioner, who
willfully participated in the overall plan to force Miller to
relinquish the delivery routes formerly held by T.J. Associates, was
aware of the high probability that threats had been made to Miller,
yet deliberately avoided knowing all the details of those threats.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   WILLIAM F. WELD

      Assistant Attorney General

   DEBORAH WATSON

      Attorney

   NOVEMBER 1986

   /1/ Petitioner was acquitted on three counts of attempted
extortion.  Co-defendant Jerry A. Chambrone, who was tried with
petitioner, was convicted on the conspiracy count and on four counts
of attempted extortion.  Co-defendant Joseph Vincent Riggio, Jr.,
pleaded guilty to the conspiracy count and to one count of attempted
extortion.

   /2/ Prior to learning which juror made the remarks complained of by
juror Stolfa, petitioner's counsel said that if the juror really was
biased "it seems to me that she's gone" (Tr. 865).  But that comment
was made before counsel heard what the remarks were or whether they
evinced bias.  After the interviews with juror Haney, petitioner's
counsel did not request a mistrial or the discharge of the allegedly
tainted juror.

   /3/ The jury's acquittal of petitioner on three counts is also
significant.  Such a discriminating verdict supports the finding that
the jury's decision was based on an examination of the evidence, and
not on bias or prejudice.  United States v. Gigante, 729 F.2d at 82.

   /4/ As other Second Circuit cases make clear, a conscious avoidance
charge may properly be given on a conspiracy count if it is directed
only to guilty knowledge of the specific details of the conspiracy and
if the court otherwise makes clear that the government must prove that
the defendant willfully participated in the conspiracy with the
specific intent to further its criminal objective.  See, e.g., United
States v. Guzman, 754 F.2d 482, 488 (1985) ("After -- and only after
-- reiterating the government's burden of proof * * * (as to willful
participation in the conspiracy with specific intent to further its
criminal objective), the district court correctly instructed the jury
(on conscious avoidance) as to a quite distinct matter -- the
knowledge of individual defendants with regard to the specific details
of the conspiracy's operation.");  United States v. Mohabir, 624 F.2d
1140, 1154 (1980).