DOMINIC CATALDO, PETITIONER V. UNITED STATES OF AMERICA
   No. 87-1553
   In the Supreme Court of the United States
   October Term, 1987
   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
   Questions Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion
                            OPINIONS BELOW
   The opinion of the court of appeals (87-1314 Pet. App. 1a-38a) is
reported at 832 F.2d 705.  The opinions of the district court are
reported at 646 F. Supp. 752 and 625 F. Supp. 1255.
                             JURISDICTION
   The judgment of the court of appeals was entered on October 27,
1987.  Orders denying petitions for rehearing in this case were
entered on December 9 (87-1314 Pet. App. 39a-40a) and December 11,
1987 (87-6597 Pet. App. B).  The petition for a writ of certiorari was
filed on March 17, 1988, and is therefore substantially out of time
under Rule 20.1 of the Rules of this Court.  The jurisdiction of this
Court is invoked under 28 U.S.C. 1254(1).
                          QUESTIONS PRESENTED
   1. Whether petitioner was denied the effective assistance of
counsel in violation of the Sixth Amendment.
   2. Whether petitioner was prejudiced by an erroneous statutory
citation in the indictment.
                               STATEMENT
   Petitioner was a co-defendant with the petitioners in United States
v. Persico, 832 F.2d 705 (2d Cir. 1987), petitions for cert. pending,
Nos. 87-1314, 87-1323, 87-1324, and 87-6597.  Following a jury trial
in the United States District Court for the Southern District of New
York, petitioner was convicted of conspiracy to conduct and
participate in the affairs of a racketeering enterprise through a
pattern of racketeering activity, in violation of 18 U.S.C. 1962(d)
(Count 1), and the substantive crime of conducting and participating
in the affairs of a racketeering enterprise through a pattern of
racketeering activity, in violation of 18 U.S.C. 1962(c) (Count 2).
He was sentenced to a total of 14 years' imprisonment.
   1. Eight weeks into the trial of this multi-defendant case,
petitioner moved for a mistrial or a severance, claiming that a
potential conflict of interest had arisen between him and his counsel,
Michael Coiro.  The alleged conflict related to the July 26, 1985,
indictment of New York State Supreme Court Justice William C. Brennan
on federal corruption charges.  See United States v. Brennan, 629 F.
Supp. 283, 291 (E.D.N.Y.), aff'd, 798 F.2d 581 (2d Cir. 1986).
Petitioner claimed that approximately two weeks earlier he and Coiro
had learned that their names had surfaced in an Eastern District of
New York investigation as persons who may have paid bribes to Justice
Brennan.  Petitioner asserted that, as a result, he was refusing to
discuss the Brennan matter with Coiro and that he and Coiro could no
longer communicate.  625 F. Supp. at 1256.
   Following a hearing at which petitioner was represented by separate
counsel, the district court denied the motion.  The court noted (625
F. Supp. at 1258) that there was a "total lack of connection between
the facts of this case and the alleged incidents involving Justice
Brennan." Moreover, the court stated (id. at 1259), petitioner's
concern that he or Coiro would be indicted in connection with that
case was supported by nothing more than "rumors and speculation."
Indeed, the affidavit of petitioner's new counsel revealed that he was
informed by the prosecutor in the Brennan case "'that no charges would
be brought (against Mr. Cataldo or Mr. Coiro) in the foreseeable
future'" (id. at 1258).  The court accordingly concluded that
"(n)othing has been demonstrated to the Court which in any way would
serve to inhibit effective advocacy by (Coiro) on (petitioner's)
behalf" (id. at 1257).
   The district court further noted (625 F. Supp. at 1258) that
"(t)here is no need for (petitioner) and Mr. Coiro to confer about any
of the Brennan situations insofar as the defense to the instant
charges is concerned." The court rejected (ibid.) petitioner's
assertion that Coiro might sacrifice petitioner to please the
prosecutors in another district.  In that regard, the court noted (id.
at 1258-1259) that at the time of petitioner's initial arraignment, 11
months earlier, Coiro was already under federal indictment for
racketeering and obstruction of justice in a narcotics case in the
Eastern District of New York.  On the government's application,
petitioner and Coiro had appeared before the district court, and
petitioner was fully and carefully advised of the risks of proceeding
with Coiro as his counsel.  Petitioner nevertheless voluntarily and
knowingly waived his right to object to any conflict arising from the
fact that Coiro was a defendant in another federal case.  625 F. Supp.
at 1257-1259.  While it did not hold that petitioner's prior waiver
extended to the Brennan matter, the district court found (id. at
1258-1259) that petitioner's willingness to make that waiver in order
to keep Coiro as counsel contradicted petitioner's new assertions of a
conflict and reduced the risk that an actual conflict of interest had
developed.  The district court stated in conclusion (id. at 1259) that
petitioner was free to continue the trial with his new lawyer, either
with or without the assistance of Coiro, but that the trial would not
be delayed on his account.
   2. The trial continued with Coiro as sole counsel for petitioner.
Several months later, when the government's direct case was nearly
complete, Coiro became ill.  Coiro's treating physician informed the
district court that Coiro would be ready to proceed with the trial
after approximately ten days (Tr. 12,695;  C.A. App. 600).
Accordingly, the district court adjourned the trial for 11 days.  The
court also appointed another lawyer, Michael Hurwitz, as back-up
counsel for petitioner in the event that Coiro ultimately was unable
to return (Tr. 12,725;  C.A. App. 627).  The government gave Hurwitz
copies of the relevant tape transcripts and Jencks Act material (see
18 U.S.C. 3500), and the court made the trial transcript available to
him so that he could prepare to finish the trial if Coiro were unable
to do so (Tr. 12,696, 12,723;  C.A. App. 601, 624).
   When Coiro returned to court at the end of the adjournment, he
announced that he was "not up to (resuming the trial) mentally," and
that "(a)s far as (he was) concerned, (petitioner) didn't have the
adequate representation he should have" (Tr. 12,750;  C.A. App. 652).
The district court concluded that Coiro was "just making a record" for
his client (Tr. 12,751;  C.A. App. 653), and ordered Coiro to be in
court, either to represent petitioner or to confer with and assist
Hurwitz in representing petitioner (Tr. 12,751;  C.A. App. 681).  The
court also denied, in a written opinion, a motion by Hurwitz for a
continuance or a severance (C.A. App. 678-682).  The trial concluded
with Coiro and Hurwitz jointly representing petitioner.
   3. On appeal, petitioner argued, inter alia, that he was denied the
effective assistance of counsel as a result of Coiro's conflict of
interest and as a result of Coiro's illness.  The court of appeals did
not separately discuss that claim, but simply grouped that claim with
others that it found to be without merit (87-1314 Pet. App. 29a).
01068 S210000denied the effective assistance of c
                               ARGUMENT
   Petitioner expressly incorporates (Pet. 63) most of the claims of
petitioners Carmine Persico, Alphonse Persico, John DeRoss, and
Anthony Scarpati.  We have responded to those contentions in our brief
in opposition in Nos. 87-1314, 87-1323, 87-1324, and 87-6597, and we
rely on our response there in this case as well.  /1/
   1. Petitioner renews his claim (Pet. 22-53) that he was denied the
effective assistance of counsel both because of a conflict of interest
between himself and his trial counsel and because his counsel's
performance at trial was constitutionally deficient as a result of
counsel's illness.  Petitioner, however, has completely failed to show
either "that his counsel actively represented conflicting interests"
or that such a conflict "adversely affected his lawyer's performance."
Cuyler v. Sullivan, 446 U.S. 335, 350 (1980).  He has also failed,
under the more stringent standards of Strickland v. Washington, 466
U.S. 668, 688, 694 (1984), to demonstrate that his counsel's
performance fell measurably below "prevailing professional norms" or
that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different." In any event, such factbound claims do not warrant review
by this Court.
   a. The district court concluded (625 F. Supp. at 1258), after a
careful analysis of the facts of this case, that petitioner's and
Coiro's alleged exposure in the Brennan bribery scheme was "at best
speculative." The district court found (ibid.) that at the time of
petitioner's trial no indictment was reasonably foreseeable.
Furthermore, the Brennan case was entirely unrelated to this case, and
the court properly concluded (ibid.) that Coiro's potential
involvement in the Brennan case would not have any impact on
petitioner's defense.  Unlike United States v. Cancilla, 725 F.2d 867
(2d Cir. 1984), on which petitioner mistakenly relies (Pet. 48), there
were no government witnesses in this trial whom Coiro might have
declined to cross-examine out of fear that vigorous questioning would
expose Coiro's own wrongdoing.  If a potential conflict of interest
ever were to arise, it would be in a possible future prosecution
related to the Brennan case, not here.  /2/
   Petitioner had already waived a more serious potential conflict
arising out of a case in which Coiro had actually been indicted.  As
the district court noted (625 F. Supp. at 1259), that waiver
undermined petitioner's later claim that, based on a wholly
speculative prosecution, petitioner harbored concern that Coiro might
sacrifice petitioner in the instant case to curry favor with the
prosecutors from another district.  Under these circumstances, the
district court properly took note of the danger that petitioner was
trying to capitalize on a "newly discovered" conflict to seek a
severance to which he otherwise was not entitled (id. at 1256-1257).
Furthermore, even if petitioner could establish an actual conflict of
interest, he is unable to identify any adverse effect resulting from
Coiro's representation of him.  Indeed, petitioner fails even to
allege any defaults in advocacy caused by Coiro's alleged conflict.
   b. Petitioner also fails, more generally, to substantiate his claim
that Coiro provided ineffective assistance due to his illness.  To
overcome the strong presumption that Coiro's performance was adequate,
petitioner must show "that counsel made errors so serious that counsel
was not functioning as the 'counsel' guaranteed the defendant by the
Sixth Amendment." Strickland v. Washington, 466 U.S. at 687.  Combing
nearly 18,000 pages of trial transcript, however, petitioner can do no
more than isolate a few places where counsel allegedly got a date
wrong or where a traditional cross-examination technique failed to pay
dividends (Pet. 31-33).  Furthermore, even if petitioner's unsupported
allegation that Coiro's performance was deficient could satisfy
Strickland's first prong, he fails to satisfy the second by proving
that, but for counsel's errors, he might have been acquitted.
Petitioner does not even suggest that Coiro's representation in any
way "undermines the reliability of the result of the proceeding."
Strickland v. Washington, 466 U.S. at 693.
   2. Two of the racketeering acts in Counts 1 and 2 of the
superseding indictment (Acts 34(a) and 34(b) of the redacted
indictment) charged petitioner with conspiring to distribute and with
distributing large quantities of heroin as part of the pattern of
racketeering activity through which he participated in the conduct of
the affairs of the Colombo Family (C.A. App. 207-208).  The original
charging language of those racketeering acts, which is set out in the
margin, /3/ fully apprised him of the nature and elements of the
offenses charged, including the type and amounts of narcotics involved
and the time periods.
   At the very end of the charging paragraphs in the two racketeering
acts, the indictment erroneously cited Title 21, United States Code,
Sections 812, 841, and 846 as the statutes that petitioner's drug
dealing had violated.  Those provisions of law are codified sections
of the 1970 Controlled Substances Act, 21 U.S.C. (1970 ed. & Supp. V)
801 et seq., which was not in effect at the time the charged offenses
occurred.  The corresponding federal narcotics laws in force at the
time, 21 U.S.C. (1964 ed.) 173 and 174, required the government to
prove that the narcotics in issue had been imported and that the
defendant knew it.  See Turner v. United States, 396 U.S. 398 (1970)
(upholding use of presumption to supply proof of importation and
knowledge of importation of heroin).  Importation, however, was
neither pleaded in the indictment nor proved at trial.
   At the close of the government's direct case, petitioner brought
the error in citation to the attention of the district court and the
government when he moved for a judgment of acquittal with respect to
the narcotics racketeering acts for failure to prove importation (Tr.
14,950 et seq.).  The district court denied the motion, struck the
erroneous citations from the indictment, and instructed the jury on
the elements of the corresponding drug laws of the State of New York
that were in force in 1970.  Petitioner now claims (Pet. 53-62) that
he was misled into defending against a charge that was not pleaded in
the indictment.  This contention is without merit.
   As this Court has frequently noted, "an indictment is sufficient if
it, first contains the elements of the offense charged and fairly
informs a defendant of the charge against which he must defend, and,
second, enables him to plead an an acquittal or conviction in bar of
future prosecutions for the same offense." Hamling v. United States,
418 U.S. 87, 117 (1974).  Furthermore, the Court has explained, "(i)n
order to determine whether an indictment charges an offense against
the United States, designation by the pleader of the statute under
which he purported to lay the charge is immaterial.  He may have
conceived the charge under one statute which would not sustain the
indictment but it may nevertheless come within the terms of another
statute." United States v. Hutcheson, 312 U.S. 219, 229 (1941).  See
also Williams v. United States, 168 U.S. 382, 389 (1897) (immaterial
which statute was originally contemplated by prosecutor if charges
made are embraced "by some statute in force").  A conviction should be
reversed only if the error or omission in the statutory citation
misled the defendant to his prejudice.  Fed. R. Crim. P. 7(c)(3).
   Petitioner contends that the statute under which he was charged was
the prior federal statue, 21 U.S.C. (1964 ed.) 173 and 174, and that
the erroneous citation to the later-enacted statute misled him to his
prejudice.  RICO, however, recognizes as predicate crimes two
categories of narcotics offenses:  those chargeable under state law
and punishable by more than a year in prison, 18 U.S.C. (& Supp. IV)
1961(1)(A), and those punishable under any law of the United States,
18 U.S.C. (& Supp. IV) 1961(1)(D).  The New York State narcotics law
on which the district court instructed the jury is squarely within the
first category.  It also is fully described by the charging language
in the racketeering acts in issue.  Thus, the crime with which
petitioner was charged satisfies both the requirements of RICO and the
rule of Williams v. United States, supra, that the charges be embraced
"by some statute in force." Petitioner's purported reliance on the
prior federal statute, which was never cited or referred to and the
importation elements of which were never pleaded, simply ignores these
settled principles.
   Nor can petitioner in any way demonstrate prejudice from the
citation error.  He implies (Pet. 54-55), without explanation, that
his defense to the narcotics charges was predicated on the importation
element of the unspoken statute.  But nothing in the indictment
remotely suggested that the prior Sections 173 and 174 applied, and
petitioner could not have been surprised, misled, or prejudiced by the
government's failure to prove an element which nowhere was pleaded in
the indictment.  In fact, at trial petitioner took precisely the
opposite position, claiming that the government could not invoke the
prior federal statute because it had not been cited in the indictment
(Tr. 14,959-14,960).
   Petitioner's reliance (Pet. 58) on Stirone v. United States, 361
U.S. 212 (1960), and related cases is completely misplaced.  In
Stirone, the indictment charged the defendant with extortion for
interfering with the importation of sand, but the proof at trial and
the charge to the jury permitted conviction for interfering with the
importation of sand or the exportation of steel.  If the jury had
convicted the defendant for obstructing the exportation of the steel,
he would have been convicted of a crime not pleaded and found by a
grand jury.  That concern has no application here.  The government
proved at trial the precise charges that are described in Racketeering
Act 34 of the redacted indictment.  Only the citation, which is mere
surplusage, was changed.  Far from changing an essential element of
the offense charged, the government was entirely faithful to it.  /4/
                              CONCLUSION
   It is therefore respectfully submitted that the petition for a writ
of certiorari should be denied.
   CHARLES FRIED
      Solicitor General
   JOHN C. KEENEY
      Acting Assistant Attorney General
   ANDREW LEVCHUK
      Attorney
   APRIL 1988
   /1/ We have provided a copy of our brief in opposition in Nos.
87-1314, 87-1323, 87-1324, and 87-6597 to counsel for petitioner in
this case.
   /2/ Since the cases were unrelated, Coiro would have had no
opportunity to use his preparation and trial of the Persico case to
obtain confidential information from petitioner about the Brennan case
to use against petitioner.  Indeed, because petitioner was fully aware
of the potential conflict and had retained independent counsel to
advise him about it, he was in an ideal position to protect himself
from that possibility by refusing to discuss the Brennan matter with
Coiro.
   /3/ Racketeering Act # 56(34):
   Dealing in Narcotics
   It was a part of the pattern of racketeering activity that, on or
about the dates specified below, in the Southern District of New York
and elsewhere, the defendant, DOMINIC CATALDO, a/k/a "Little Dom," and
others to the Grand Jury known and unknown, unlawfully, willfully, and
knowingly did engage in the felonious buying and selling of, and
otherwise dealing in, narcotics and other dangerous drugs in violation
of Title 21, United States Code, Sections 812, 841(a)(1),
841(b)(1)(A), and 846:
         a. From in or about August of 1970 up to and including on or
      about October 27, 1970, the defendant DOMINIC CATALDO, a/k/a
      "Little Dom," and others to the Grand Jury known and unknown,
      unlawfully, intentionally, and knowingly did combine, conspire,
      confederate, and agree together and with each other to
      distribute and possess with intent to distribute a Schedule I
      narcotic drug controlled substance, to wit, heroin, the exact
      amount thereof being to the Grand Jury unknown, in violation of
      Title 21, United States Code, Sections 812, 841(a)(1),
      841(b)(1)(A), and 846.
         b. From in or about August of 1970, up to and including on or
      about October 27, 1970, the defendant DOMINIC CATALDO, a/k/a
      "Little Dom," and others to the Grand Jury known and unknown,
      unlawfully, intentionally, and knowingly did on approximately
      six separate occasions distribute and possess with intent to
      distribute a Schedule I narcotic drug controlled substance, to
      wit, a total of approximately three kilograms of heroin and
      diluents, in violation of Title 21, United States Code, Sections
      812, 841(a)(1), and 841(b)(1)(A).
   /4/ In United States v. Groff, 643 F.2d 396 (6th Cir.), cert.
denied, 454 U.S. 828 (1981), a RICO indictment alleged the commission
of predicate crimes under specific sections of the laws of the State
of Michigan, but the proof demonstrated violations of Ohio state law.
Relying on Williams v. United States, 168 U.S. at 389, and Fed. R.
Crim. P. 7(c)(3), the Sixth Circuit found that the charging language
made out the elements of the uncharged Ohio statutes and fully
informed the defendant of the offenses charged.  Accordingly, it
affirmed Groff's conviction.  The same principles apply here.