TRAFICANT ON TRIAL Rep submits transcripts for defense

The congressman said witnesses lied or don't remember what they said to others.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- The jury may not get to hear U.S. Rep. James A. Traficant Jr.'s voice from the witness stand, but his denial of the charges against him is on nine audiotapes he wants played in court.
Traficant, of Poland, D-17th, submitted three tape transcripts Friday, the first step in determining their admissibility by U.S. District Judge Lesley Brooks Wells. The judge has forbidden Traficant from mentioning the tapes in front of the jury unless they can be used as evidence.
The judge has also warned Traficant that he must not cause any more down time for the court by his lack of preparedness. The congressman, who began his defense Thursday afternoon, was not able to proceed with more than a few questions because he wanted witnesses to relate conversations, something the judge must first approve.
The judge gave the jury Friday off, intending to hear from defense witnesses whose testimony she wanted to review, to determine if the hearsay evidence could be heard by the jury next week.
Must testify: The person the witness had the conversation with must testify, if that person is available, which generally means not dead or under indictment. A witness can testify to what another person said in a conversation only when certain exceptions to the hearsay rules can be established.
The judge expected Traficant to have two witnesses there today who had been questioned Thursday and had hearsay testimony to give. The congressman had informed the judge that only one witness could be there, but even that witness was not there today. Judge Wells expressed anger over Traficant's explanation that he didn't realize the witnesses had to be there. She adjourned after being in session 10 minutes and told him she wasn't sure she would ever release the jury a full day for him again.
After court, Traficant said he's not sure if he will take the witness stand. He told reporters that he had filed three tape transcripts with the court.
Craig S. Morford, lead prosecutor, has objected to testimony from witnesses about what someone else said and the tapes, based on hearsay. If Traficant wants to get his statements in, he can take the witness stand, the prosecutor has said.
The three transcripts reflect conversations Traficant had with Robin Best, Henry A. DiBlasio and Richard E. Detore. DiBlasio and Detore are under indictment in the Traficant case.
Judge's review: Judge Wells reviewed the Detore transcript last summer and a letter DiBlasio sent Traficant. The judge called the letter and transcript "staged and self-serving."
Best's conversation with Traficant, taped Sept. 5, 2001, against her wishes, involves grocer Henry P. Nemenz. Best, Traficant and Nemenz are friends.
Best once co-owned WRRO, a Warren radio station, in which Nemenz was an investor. Nemenz has stores in the Youngstown area and was part-owner of Colonial Structures.
Although Nemenz had been expected to be called as a prosecution witness, he didn't make the final cut. There's no indication that Traficant has subpoenaed Nemenz or Best as defense witnesses, but instead offered a tape of what Best says Nemenz said.
No charge in Traficant's indictment involves Nemenz, although the congressman believes otherwise. The prosecution team had intended to call Nemenz to show a pattern of what it called Traficant using his influence as payment for goods and services.
The government had said Nemenz would testify that Traficant paid only $25,000 for an $89,000 pole barn-riding arena. The barn was erected on Traficant's 76-acre horse farm in Greenford in 1994 by six Amish craftsmen hired by Nemenz's Colonial Structures.
Government's allegation: Traficant, instead of paying when Nemenz submitted bills, offered to intercede in a labor dispute Nemenz had at the time with United Food and Commercial Workers Local 880, the government said. Traficant, during a stint as host on WRRO radio in Warren, did a remote broadcast from one of Nemenz's stores on May 16, 1994, and urged his constituents to cross the UFCW picket line at the store.
Nemenz had also bought a four-wheel-drive truck worth $23,234 for Traficant, made the down payment of $1,500, made monthly payments of $439 for 38 months and paid the insurance. Traficant, Nemenz said in court papers, wanted the truck to tow his horses to and from shows.
Nemenz, despite fears of suing a popular congressman who had influence with labor, hired a lawyer in 1997 to try to get his money back. Concluding he would never get his money after a series of negotiations, Nemenz agreed to a settlement worked out by Claire Maluso, a Traficant staffer.
Subpoenaed: Traficant has subpoenaed John Innella of 6908 W. South Range Road -- the address of the congressman's horse farm. Innella said in an affidavit, previously rejected by Judge Wells as double hearsay, that Traficant and Nemenz agreed that the pole barn construction bill had been paid in full.
The following reflects excerpts from the Traficant-Best transcript:
Best: If Henry got indicted it would be the end of his business.
Traficant: Well, that's why he's doing it and that's what he told me. He says, "Jim, my attorney told me what do I need this stuff for? If I don't tell them what they want to hear the way they want to hear it, they're going to indict me."
Best: They twist everything. They create stories and I'm telling you, with this paper trail, it's incredible what they create.
Best: You're taping me. You better not use this anywhere.
Traficant: I'm not taping you. If I were, you're not afraid.
Best: You can't subpoena me.
Traficant: I'm going to.
Best: You can't. I'm a government witness. All you can do is cross-examine me. I really don't think they want me in there.
Traficant: ... all [Nemenz] has to do is tell the truth, because there was nothing illegal there. You know it and I know it.
Best: I agree. There was nothing illegal. It was all about friendship.
Traficant: It wasn't only that, there was a settlement. Christ. He threatened me with lawsuits.
Best: That's right. Everything was agreed on.
Traficant: He felt so bad about what he did, he said.
Best: He did feel bad. It was awful. I feel bad. I said things in the grand jury you won't like. You'll just go into orbit when you read it.
Filed motion: Traficant also filed a motion Friday in an effort to have his witnesses relate conversations they had with A. David Sugar and J.J. Cafaro.
He asks Judge Wells to consider that either Sugar and Cafaro lied under oath or truly don't remember what they told the congressman's witnesses. Sugar and Cafaro pleaded guilty in the Traficant case, testified for the government and were cross-examined by Traficant.
The congressman also wants to put on witnesses to rebut the testimony of two former congressional staffers who said Charles P. O'Nesti kicked back part of his congressional salary each month. The FBI taped O'Nesti's confession in January 2000, a month before he died. The tape was not used at trial.
Two more witnesses have been subpoenaed -- Russell J. Saadey Jr. of Austintown and Bryan Kidwell of Vienna. Saadey awaits sentencing next month in an unrelated corruption case.
meade@vindy.com