TRAFICANT CASE Experts debate rule on hearsay

A former U.S. prosecutor says this time Traficant isn't a sheriff up against testimony from mobsters -- he's a congressman dealing with evidence from legitimate businessmen.
YOUNGSTOWN -- When Charles O'Nesti died, did his testimony about U.S. Rep. James A. Traficant Jr. die too?
"You can't cross-examine a dead man," said Don L. Hanni Jr., one of the Mahoning Valley's best-known defense lawyers. "Testimony about what he said would not be admissible. It's hearsay."
That's a superficial analysis, considering there are so many exceptions to the hearsay rule, said James R. Wooley, a former federal prosecutor. Someone can testify about statements of a co-conspirator made in furtherance of the conspiracy, Wooley said.
Craig S. Morford, the assistant U.S. attorney prosecuting Traficant on bribery, racketeering and tax evasion charges, would not comment. Traficant will be arraigned Friday, and the trial has been set for July 16 in Cleveland.
Wooley, now with the law firm of Baker & amp; Hostetler in Cleveland, also teaches criminal procedure at Case Western Reserve University. He and Morford successfully prosecuted roughly 70 Mahoning Valley mob and public corruption cases.
Wooley agreed, without commenting on specific counts in the Traficant indictment, to respond to points Hanni made Tuesday.
Names on list: Count four of Traficant's May 4 indictment alleges a conspiracy to violate the federal bribery statute and lists members of the conspiracy as his administrative assistant and a lawyer placed on the congressional payroll in November 1998. O'Nesti has been identified as the assistant and R. Allen Sinclair as the lawyer.
The charge states that O'Nesti diverted a portion of his salary to Traficant, and explained the procedure to Sinclair, who was to put $2,500 cash, roughly half his salary, in an envelope each month.
Sinclair followed the instructions and slipped the envelope under the door at Traficant's Overhill Road office in Boardman, which the congressman rented from Sinclair's wife, the government said.
The kickbacks began in December 1998 and ended in January 2000, the government said. Sinclair, who has not been charged, could not be reached.
O'Nesti, who pleaded guilty to unrelated racketeering crimes in 1998, died in February 2000, before being sentenced. He had been cooperating with the FBI and U.S. attorney's office in its public corruption probe.
"Anything Charlie O'Nesti told anybody is not admissible as evidence against Jim Traficant," Hanni said. "Anything [incriminating] Jim Traficant has said about himself, of course, is admissible because he's made a statement against his own best interest."
If that were the case, then mob boss Lenny Strollo's testimony, which included what George Alexander said should be done in their criminal enterprise, would not have been admitted as evidence, Wooley said.
Alexander, a disbarred lawyer, was not called to the stand during a mob trial in 1999 and what he told Strollo was allowed by the federal judge.
Who's to say that Sinclair didn't do something else with the $2,500 in cash each month, Hanni suggested. It's Sinclair's word against Traficant's.
What's different: Wooley said this time, Traficant isn't a sheriff up against evidence from mobsters, he's a congressman up against the testimony of legitimate businessmen.
The reference was to Traficant's 1983 trial when, as Mahoning County sheriff, he acted as his own lawyer and won acquittal against charges that he took bribes from organized crime figures.
John J. Cafaro, executive vice president of the Cafaro Co., and A. David Sugar, president of Honey Creek Contracting, are two businessmen expected to testify against Traficant. Cafaro and Sugar admit they paid the congressman or provided services in return for favors.
The businessmen will come across as candid and truthful on the witness stand, Wooley said. "If [Traficant] can show they're not telling the truth, then he'll prevail. If he can't, he won't."
Hanni said he read the indictment and considers the charges "unadulterated bat s---." He said it's nothing more than the bureaucrats in Cleveland trying to further their careers.
What Hanni said: If Traficant did anything wrong, it amounts to nothing more than ethical violations, Hanni said.
If every congressman who accepted a free lunch, trip or golf outing went to jail, more jails would have to be built, Hanni said. We'd find ourselves without a government, maybe not a bad idea, he said, chuckling.
Wooley, while pointing out that Traficant is presumed innocent and will have his day in court, strongly disagreed with Hanni's assessment.
No one has seen the evidence yet, except the prosecutors, Wooley said. The proof will be what the prosecution presents in court.
"I don't know what the evidence is, but there's no way in the world you could read the indictment and conclude that it's bat s---," he said. "By all accounts they've done a very long, thorough investigation."
Hanni has offered to help Traficant in court -- at no charge --and has urged the congressman to hire not one but as many as six lawyers. He said Traficant would be able to put together a defense dream team from his district in Mahoning, Trumbull and Columbiana counties.
Traficant, an articulate speaker, would do well with a jury but needs someone skilled to deal with technical aspects of the case, such as filing motions, Hanni said.
"He's a highly competitive person, always a winner. I don't think you'll find him caving in," Hanni said. "I hope he doesn't engage in battle with slingshot while the other side has a machine gun."

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