MICHAEL VINCENT LANESE, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-1459

   In The Supreme Court Of The United States

   October Term, 1989

   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
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-19a) is reported
at 890 F.2d 1284.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 29,
1989.  A petition for rehearing was denied on January 17, 1990.  Pet.
App. 20a-21a.  The petition for a writ of certiorari was filed on
March 19, 1990.  The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the limitations placed on petitioner's cross-examination of
a government witness violated the Confrontation Clause.

                               STATEMENT

   After a jury trial in the United States District Court for the
District of Connecticut, petitioner was convicted on one count of
conspiracy to use, and one count of using, extortionate means to
collect an extension of credit, in violation of 18 U.S.C. 894(a)(1).
Petitioner was sentenced to 78 months' imprisonment, to be followed by
a three-year term of supervised release.  He was also fined $25,000.
The court of appeals affirmed.  Pet. App. 1a-19a.

   1. The evidence at trial, the sufficiency of which is not in
dispute, showed that petitioner and his co-defendants Thomas Romano
and Joseph Iannucci conducted bookmaking operations in the Bridgeport,
Connecticut, area.  In November 1987, Eugene Golino, who had been a
frequent bettor with the defendants' bookmaking operations, incurred
gambling losses of more than $80,000 to petitioner and his
co-defendants.  On December 18, 1987, Golino met with Romano at a
Bridgeport diner and gave him $5,000 in partial payment for the debt.
Romano then telephoned petitioner, who arrived at the diner a few
minutes later.  Petitioner, who was carrying a handgun, forced Golino
to sign a promissory note for $80,000, payable to petitioner.  Pet.
App. 4a-5a;  Gov't C.A. Br. 5-6.

   Shortly after that meeting, Golino began cooperating with the FBI.
Over the next month, he recorded several conversations with Romano in
which Romano said that Golino would be harmed or killed if he did not
pay his debts.  On January 29, 1988, Golino met with petitioner and
Romano at a Bridgeport park.  Petitioner grabbed Golino by the throat,
pushed him against a fence, and threatened to kill Golino if he did
not pay the money he owed on the gambling debt.  Pet. App. 5a.

   2. At trial, the government filed a motion in limine to bar the
defense from cross-examining Golino regarding the circumstances
surrounding Golino's 1982 arrest by Connecticut authorities for
larceny by extortion.  The government stated that the charges had been
dismissed and that the records of the arrest had been erased pursuant
to Connecticut law.  The government argued that inquiry into the
incident was barred by Federal Rules of Evidence 608(b) and 609.  Pet.
App. 25a-31a.

   Defense counsel claimed that the incident was proper material for
cross-examination.  According to defense counsel, in 1982 Golino,
through his father-in-law, had made loans at 100% interest to a man
named Anthony Kicska.  Defense counsel asserted that when Kicska could
not repay the loans, Golino's father-in-law threatened Kicska in
Golino's presence;  Golino was purportedly amused by the threats.
Pet. App. 34a-36a.

   To clarify the facts regarding the incident, the district court had
the parties conduct an extensive voir dire of Golino outside the
presence of the jury.  Golino testified that he had lent $5,000 to
Kicska at the behest of his father-in-law, that his father-in-law had
repaid him immediately, and that he had accompanied his father-in-law
to see Kicska about the debt.  Golino said he could not recall that
Kicska was threatened.  He also stated that he had paid Kicska $5,000
as a way of settling the criminal charges, and that the charges were
then dropped.  Pet. App. 6a, 36a-49a.  After hearing Golino's
testimony and argument by defense counsel and the government, the
district court granted the government's motion in limine.  Pet. App.
50a-55a.

   3. The court of appeals rejected petitioner's contention that the
curtailment of his cross-examination of Golino violated the
Confrontation Clause.  /1/ Petitioner argued that the 1982 incident
would have been relevant to show that Golino approached the FBI in the
hope of obtaining restitution for his gambling losses;  petitioner's
theory was that Golino would therefore have had a motive for
exaggerating or fabricating petitioner's use of violence to attract
the FBI's attention.  The court of appeals found petitioner's theory
of bias too strained, because it was "highly improbable" that Golino
would have thought he could obtain restitution by cooperating with the
authorities as Kicska apparently had done six years earlier.  Pet.
App. 7a.  The court pointed out that the circumstances of the two
events differed significantly, in that Kicska's debt was unrelated to
illegal gambling, and that the prior dispute, unlike Golino's dispute
with petitioner, involved relatives or acquaintances.  The court also
noted that petitioner's theory of bias was undercut by the fact that
the threats of violence used against Golino in this case were
corroborated by other evidence, including taped conversations.
Accordingly, the court found no Confrontation Clause violation.  Pet.
App. 7a.  /2/

                               ARGUMENT

   Petitioner renews his contention (Pet. 6-18) that the district
court violated the Sixth Amendment by refusing to permit
cross-examination of Golino regarding the 1982 incident.  He claims
that cross-examination on that issue would have revealed Golino's bias
or motive in favor of the government and would have undermined
Golino's credibility.  The court of appeals properly rejected that
claim, and its factbound holding does not merit this Court's review.

   In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Court held
that a defendant's confrontation rights are violated when he is denied
all cross-examination regarding an event that "a jury might reasonably
have found furnished the witness a motive for favoring the prosecution
in his testimony." Id. at 679.  The Court made clear, however, that
the defendant's right to cross-examine is not absolute.  The Court
explained:  "(T)rial judges retain considerable latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits on
such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness' safety,
or interrogation that is repetitive or only marginally relevant."
Ibid.  See also Davis v. Alaska, 415 U.S. 308, 316 (1974).

   This Court has thus recognized that not every claim of bias
requires the district court to grant the defendant's request for
unrestricted cross-examination;  the line of cross-examination must at
least be marginally relevant.  See also United States v. Williams, 877
F.2d 516, 519 (7th Cir.) ("The Sixth Amendment * * * guarantees a
defendant the opportunity for effective, not limitless,
cross-examination."), cert. denied, 110 S. Ct. 180 (1989).  The facts
of the Van Arsdall case illustrate the point.  In Van Arsdall, the
defendant was disallowed from questioning a witness about the
dismissal of criminal charges against him in exchange for his
agreement to discuss a murder with the prosecutor.  On those facts,
the Court found a violation of the defendant's confrontation rights
because the "cross-examination (was) designed to show a prototypical
form of bias on the part of the witness." 475 U.S. at 680.  /3/

   Unlike the classic form of impeachment that was denied in Van
Arsdall, the line of cross-examination that petitioner desired to
pursue was properly found by the court of appeals to lack probative
value on the issue of bias.  Petitioner contends that Golino's 1982
involvement with Kicska, in which Kicska obtained restitution after
complaining to the authorities about Golino and his father-in-law,
somehow provided Golino with a motive to go to the FBI in the hope of
obtaining relief from his gambling debts and gaining restitution from
petitioner and his co-defendants.  /4/ As the court of appeals
explained, however, that claim is "highly improbable" because the two
situations differ so markedly in the relationship of the parties and
the nature of the underlying transactions.  From the sketchy and
confusing facts elicited on voir dire, it appears that Golino and
Kicska were related by marriage, and the loans between them did not
stem from an illegal gambling scheme.  In that context, it is no
surprise that the dispute was resolved by a simple agreement to make
restitution.

   In contrast, Golino's relationship to petitioner was as a debtor
resulting from illegal gambling activities;  as the jury was told, one
of the benefits for Golino of co-operating with the government was
immunity from prosecution on gambling charges.  Pet. App. 7a.  Given
Golino's own involvement in illegal activities, he could hardly have
relied on Kicska's experience as a basis for expecting restitution.
In short, because the jury could not reasonably have concluded that
the 1982 incident would have motivated Golino to slant his testimony
in the government's favor, cf. Van Arsdall, 475 U.S. at 679, there was
no error in precluding cross-examination into it.  /5/

   Similarly, contrary to petitioner's suggestion (Pet. 16-18),
cross-examination regarding the 1982 incident was not proper as a
means of attacking Golino's credibility.  Under Federal Rule of
Evidence 608(b), a district court has discretion to permit
cross-examination into specific instances of the conduct of a witness
for the purpose of attacking the witness's credibility when the
conduct is "probative of truthfulness or untruthfulness." Rule 608(b)
"is intended to be restrictive" and does not permit inquiry into
"(c)rimes primarily of force or intimidation." 3 J. Weinstein & M.
Berger, Weinstein's Evidence Section 608(05), at 608-46 to 608-49
(1988).  In this case, Golino was charged with larceny by extortion, a
crime of force and intimidation, not a crime of untruthfulness.  Thus,
the district court did not abuse its discretion by foreclosing
cross-examination on the 1982 incident.

   In any event, as the courts of appeals have recognized, the
Confrontation Clause is not violated by the curtailment of
cross-examination as long as the jury receives sufficient information
to make a discriminating appraisal of the witness's motives for
testifying for the government.  See United States v. Blanco, 861 F.2d
773, 781 (2d Cir. 1988) (finding no confrontation violation in denial
of a line of cross-examination when "the jury had considerable
information which enabled it to appraise Caban's credibility and
possible motives for testifying falsely"), cert. denied, 109 S. Ct.
1139 (1989);  United States v. Klauer, 856 F.2d 1147, 1149 (8th Cir.
1988) (finding no violation in denying cross-examination about the
specifics of sentencing concessions by the prosecutor when the
defendant had "more than ample opportunity to cross-examine Bradley as
to his bias, motive and overall unreliability as a witness");  United
States v. Calle, 822 F.2d 1016, 1020 (11th Cir. 1987) ("(A) trial
judge may limit cross-examination without infringing the defendant's
sixth amendment rights where '(1) the jury, through the
cross-examination permitted, was exposed to facts sufficient for it to
draw inferences relating to the reliability of the witness;  and, (2)
the cross-examination conducted by defense counsel enabled him to make
a record from which he could argue why the witness might have been
biased.'").

   In this case, the prosecutor elicited from Golino that he was in
the federal witness protection program, that he had received money
from the government through his participation in that program, and
that he had agreed to testify at trial when he was accepted into the
program.  On cross-examination, Golino testified to the amount of
money that he received from the federal government in payments and
rent subsidies.  Defense counsel also elicited that Golino was not
subject to prosecution for his gambling offenses, that he was a
compulsive gambler, that he deferred paying his legitimate creditors
because of his gambling debts, and that while gambling he had owed
money to the government for back taxes.  Pet. App. 7a;  Gov't C.A. Br.
18.  These facts gave the jury an ample basis for assessing Golino's
motives for testifying, his credibility, and the possibility that he
was biased in favor of the government.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   J. DOUGLAS WILSON

      Attorney

   APRIL 1990

   /1/ The court similarly rejected co-defendant Romano's claim that
cross-examination of Golino on the 1982 incident was necessary to
allow the jury to assess Golino's credibility.  The court stated that
the jury had sufficient information to consider Golino's credibility
in light of the testimony that Golino was in the federal witness
protection program, had been paid by the government in exchange for
his cooperation, and had been granted immunity from state or federal
gambling prosecutions.  Pet. App. 7a.

   /2/ The court of appeals also held that the district court did not
err by denying petitioner's motion for severance, by admitting
evidence of uncharged misconduct against petitioner's co-defendant, or
by declining to instruct the jury on single versus multiple
conspiracies.  Pet. App. 8a-9a.  The court of appeals, however,
vacated petitioner's sentence and remanded the case for resentencing
because the district court had not made findings to support the
sentence.  Pet. App. 16a-19a.

   /3/ The Court went on to hold that the confrontation violation
should be assessed under the harmless error standard of Chapman v.
California, 386 U.S. 18 (1967).  475 U.S. at 680-684.

   /4/ We note that petitioner has considerably shifted his grounds
from those he urged in the district court for desiring to
cross-examine Golino about the 1982 incident.  In the district court,
the defense urged that "the purpose of the inquiry * * * is this:
that an essential element here is fear and the state of mind of this
witness.  * * * If the jury heard this evidence, they could make the
decision whether or not this man feared anything from any of these
defendants." Pet. App. 50a.  When the district judge dismissed that
contention, defense counsel moved on to the backup point that the
crime of larceny was relevant to Golino's credibility.  Ibid.  In this
Court (Pet. 15-16), as in the court of appeals (Pet. C.A. Br. 28-29),
however, petitioner has made the quite different argument that
Golino's prior experience with Kicska served as a sort of model for
his cooperation with the government.  Petitioner's current theory is
that just as Kicska had obtained restitution by going to the police,
Golino might have surmised that he could obtain restitution by going
to the FBI.

   /5/ Also casting doubt on the attenuated inferences that petitioner
would draw from the 1982 incident is the fact that a far more obvious
motive existed for Golino to cooperate with the government:  the
desire for protection from petitioner and his co-defendants and for
immunity from prosecution.  As the court of appeals noted, Pet. App.
7a, the threats of violence against Golino were amply established by
the evidence.