Monday, April 8, 2002
The government has the last word in its closing argument to the jury.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- The jurors who will decide U.S. Rep. James A. Traficant Jr.'s fate were told today to look for the pattern of corruption that kept going -- like the Energizer bunny.
Craig S. Morford, lead prosecutor, said the evidence presented shows that Traficant, of Poland, D-17th, used official actions for personal gain.
Morford said that despite the overwhelming evidence, Traficant has focused on his being a courageous and assertive congressman. "Whether he was good or effective is not relevant," Morford said. "Regardless of his sense of humor, no one is above the law -- including a man who makes the law."
Morford said that five of the 55 government witnesses had plea agreements. Traficant has accused the government of buying the witnesses' testimony with promises of reduced sentences.
The prosecutor told the jurors to imagine if he had the witnesses with plea agreements come to his house during plea negotiations and do work. "Would you have a problem with that?" Morford asked the jury.
Morford listed the contractors, such as Anthony R. Bucci, A. David Sugar Sr., Bernard J. Bucheit and Greg Tyson, who had crews do work at the congressman's horse farm in Greenford in return for favors.
Lists evidence: The prosecutor told the jury to watch for the substantial amount of physical evidence. Six exhibit books, he said, are filled with invoices, envelopes, cash, memos, letters and receipts for gifts. He said it's physical evidence "you can touch and hold in your hand."
He reminded the jury that many witnesses came in to testify who had no plea agreements. "Ask yourself, does the testimony make sense in light of the physical evidence?" Morford said.
The prosecutor reviewed how Boardman lawyer R. Allen Sinclair came to join the congressman's staff. The congressman told the personal injury lawyer he could keep his full-time practice and be paid $60,000 a year -- and continue to rent district office space -- in return for kicking back $2,500 each month. Every month thereafter, until the FBI contacted Sinclair, he took out $2,500 cash from his congressional paycheck, which is backed up by physical evidence, the bank records, Morford said.
No plea agreement: Morford reminded the jurors that they heard from Paul P. Marcone, Traficant's former chief of staff, who testified that it was the hardest thing he had to do. "He loved that man," and Marcone didn't have a plea agreement, Morford noted.
Marcone testified that he questioned the hiring of Sinclair, who was paid more than Traficant's legislative director in Washington, D.C.
Morford said the jury also heard testimony that Sinclair's predecessor, Henry A. DiBlasio, had kicked back part of his congressional pay. Jurors also heard that Charles P. O'Nesti, Traficant's district director, grumbled that he had to kick back part of his pay each month.
"Are all these witnesses lying?" Morford asked. "Are the documents lying?"
Traficant has to convince his jury that the government needed to produce "physical" evidence -- fingerprints and audiotapes -- to prove him guilty of racketeering.
The trial entered its 10th week today, with closing arguments.
The jury -- nine women and three men -- are hearing first from Morford, then Traficant, of Poland, D-17th. Each side had 90 minutes, with Morford reserving time for rebuttal.
Jury deliberations are expected to begin sometime this afternoon.
U.S. District Judge Lesley Brooks Wells has explained to the jury that closing arguments cannot misstate the evidence presented in court. As with opening statements, closing arguments are not evidence.
Jurors, she said, must apply the instructions she gave them wisely and impartially. The law, she said, does not permit them to consider sympathy, prejudice or public opinion.
Types of evidence: Judge Wells said the jury will be considering direct and circumstantial evidence.
Direct evidence, she said, is the testimony of eyewitnesses. If a witness said "it's raining," jurors must weigh the witness's credibility to believe or disbelieve the testimony.
Circumstantial evidence, she said, is a chain of events. She used the example of jurors' seeing someone wearing a wet raincoat and concluding that it rained.
Testimony and exhibits are evidence, she said. Questions, objections and her comments are not evidence.
Witness credibility: The judge said jurors must decide the witnesses' credibility and take into account if they testified pursuant to a plea agreement.
These witnesses, named in Traficant's 10-count indictment, testified with plea agreements: J.J. Cafaro of Liberty, Sugar, of New Middletown, and James R. Sabatine of Canfield. All testified that they provided the congressman with cash, goods or services in return for his influence.
Cafaro, a multimillionaire whose family develops shopping malls, admitted during his testimony that he had lied about secret cash campaign contributions when testifying at an unrelated corruption trial in 1999.
The congressman has criticized the plea agreements, saying the government "bought" the witnesses' testimony with the promise of reduced sentences.
These witnesses, named in the indictment, testified with immunity from prosecution: Bucci, of Florida, Albert Lange Jr. of Virginia and Sinclair.
Bucci, a retired contractor, said he did work at the congressman's horse farm and accepted congressional favors as payment. Lange, an engineer who once worked for Cafaro, admitted taking part in a scheme to conceal Cafaro's purchase of and repairs to Traficant's boat. Sinclair said he joined Traficant's staff in December 1998 and kicked back part of his salary each month to the congressman as DiBlasio, now a retired lawyer, had done.
Traficant faces four counts of conspiracy to commit bribery, two of tax evasion, and one each of accepting an illegal gratuity, obstruction of justice, conspiracy to defraud the United States and racketeering. If convicted, he likely faces four to six years in prison under the sentencing guidelines.
The congressman is accused of taking kickbacks, compelling staffers to do work at his horse farm in Greenford, accepting bribes and gifts and using his influential position instead of paying contractors for work at the farm.
Definitions: Duhaime's Law Dictionary, meanwhile, defines the best and most common form of evidence as oral testimony -- where you have an eyewitness swear to tell the truth then relate to the jury his or her experience. Besides oral testimony, an object can be deposited with the court, such as a signed contract. This is sometimes called real evidence.
The government presented as evidence $24,500 in cash from kickbacks, deposit slips, handwritten notes, bank records, letters, photos, false invoices, checks, receipts for boats repairs, receipts for a welder and generator and more. Some of the photos, the government said, show a two-story addition to Traficant's farmhouse, paid for by one of his co-conspirators.
Duhaime's cites fingerprints as an example of circumstantial evidence. Though there may be no witness to a person's presence in a certain place, or contact with a certain object, the scientific evidence of someone's fingerprints is persuasive proof of a person's presence or contact with an object.
Throughout the trial, the 60-year-old congressman has challenged the evidence presented, saying the government does not have his fingerprints on incriminating exhibits, such as the $24,500 cash and bank envelopes tested at an FBI lab. FBI Special Agent Joe Bushner explained that porous paper seldom yields legible fingerprints.
The congressman also thinks the FBI should have recorded his voice by placing hidden microphones on cooperating witnesses, especially Sinclair, who served as the congressman's administrative counsel for 13 months. Sinclair said he kicked back $2,500 each month to Traficant and feared the congressman.
Traficant thinks the FBI didn't attempt to record him because he did nothing wrong.
The jury saw the $24,500 in cash that Sinclair said represented kickback money Traficant had returned, wanting Sinclair to tell the FBI that he had made cash withdrawals and kept the money at home.
Agent's explanation: Based on a number of factors, a decision was made not to wire Sinclair and attempt to secretly record Traficant, Bushner testified.
Sinclair had described Traficant to the FBI as a "touchy feely person" who frequently hugged and slapped people on the back, and there was concern he would detect the wire, Bushner said.
"My main problem, I didn't think Mr. Sinclair could pull it off," Bushner said of wiring Sinclair. "He was very nervous about the congressman and doesn't have a poker face."
Traficant might use his closing arguments to tell the jury that Judge Wells violated his constitutional rights.
Complaints about judge: The congressman, when he rested his defense Friday, said the judge violated his right to trial by a jury of his peers because no jurors were drawn from his district. Jurors are drawn from the Cleveland area by court order.
The judge, he said, prevented him from pursuing his vendetta theory as a defense. The congressman maintains his win over federal bribery charges in 1983 caused the FBI and IRS to relentlessly pursue him.
"I did not exclude any reference to vendetta," Judge Wells told the congressman March 22. "You have to show how it is relevant to this case."
Traficant maintains that, to get him, the FBI and IRS threatened witnesses and indicted those who wouldn't cooperate.
The jury didn't hear from DiBlasio, Richard E. Detore and Bucheit, who are all under indictment in the Traficant case. DiBlasio's trial date has not been set. Detore's trial is in July, and Bucheit's trial is set to begin next Monday.
Traficant also asserts the judge should not have asked him, with the jury present Wednesday, if he intended to take the witness stand.
The judge, in posing the question to Traficant, who had run out of witnesses, simply wanted to know how he was going to proceed, Lewis R. Katz, law professor at Case Western Reserve, has said. The judge has a right to schedule her court, he said.
meade@vindy.com