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Prosecutors say Traficant waived certain immunity



Published: Thu, December 5, 2002 @ 12:00 a.m.



The prosecution argues that Traficant gave up his right to certain protections by eliciting testimony on legislative matters.

By PATRICIA MEADE

VINDICATOR CRIME REPORTER

CLEVELAND -- U.S. Rep. James A. Traficant Jr. opened the door to his off-limits legislative acts by getting a witness to testify to them.

The government said it wants to keep the door open and bring into court documents that show how Traficant, of Poland, D-17th, used his position to introduce legislation for those paying him bribes or doing him favors.

When Traficant's racketeering trial began Feb. 5, certain documents protected by the speech or debate clause in the Constitution were not to be used as evidence. The clause grants immunity from reprisal for legislative acts, statements made on the House floor or inserted into the Congressional Record.

Based on what Traficant did, he knowingly waived immunity, lead prosecutor Craig S. Morford said Friday. Morford said Traficant can't use the speech or debate clause "as a sword and a shield."

Morford argued that Traficant made the decision to go without a lawyer and that it's clear the congressman doesn't know the rules.

Opportunity to file response: U.S. District Judge Lesley Brooks Wells told Traficant to review the transcript of testimony given Friday by Albert Lange Jr. and, over the weekend, file a response.

Traficant said he's not going to spend money for the transcript.

"Let them bring in what they want, I've had it," Traficant told Judge Wells. "This is not a level playing field."

She cautioned him that there is concern now whether he waived immunity.

The congressman said he'll prepare a response but didn't think he'd have it ready by Monday when court resumes.

Lange's testimony: In the late 1990s, Lange served as chief operating officer at USAerospace Group in Manassas, Va., owned by J.J. Cafaro of Liberty. Cafaro admits he provided Traficant with an illegal gratuity -- $40,000 in cash and boat repairs -- in return for the congressman's promoting USAG's laser landing lights technology with the Federal Aviation Administration.

Traficant, through his questions to Lange, revealed legislation -- a $4 million appropriation for the technology -- that resulted in a $1.3 million contract to USAG. Lange said USAG didn't have the $750,000 needed to perform the contract and he didn't want to sell an inferior product to the government.

Lange testified that Traficant also promised legislation for use of the technology by the Coast Guard.

Morford said the legislative topics were not brought out on direct examination, as agreed before the trial began. Now, however, previously withheld documents that relate to legislative acts can be used because Traficant himself brought them out on cross-examination, the prosecutor said.

As he does daily, Traficant told Judge Wells on Friday that she's very unfair.

"You've been saying that," she answered.

Morford, saying Traficant is not above the law, pointed out that the congressman has asserted his past two trials weren't fair, either. Traficant won acquittal in a 1983 bribery trial but lost in an offshoot tax case in 1986.

Traficant asked Judge Wells why she ordered the files of the 1983 trial to be shipped to Cleveland from archives in Chicago. She said in case they might be needed.

"Are you worrying that I have skills to get acquitted?" he shouted.

Despite his shouts of unfairness in and out of court, the congressman insists to reporters each day that the government hasn't proved its case. Prosecutors, he maintains, have no "physical evidence," such as fingerprints, audio or videotapes.

Audiotapes: After court Friday, Traficant talked to reporters about the speech or debate clause and nine audiotapes he doesn't think Judge Wells will allow him to play for the jury.

Win, lose or draw, Traficant said he'll play the tapes on radio station WTAM in Cleveland after the trial and let the American people know what really happened.

Although the congressman conceded he has made some mistakes as his own lawyer, he doesn't think the speech or debate clause issue was one of them.

"I have dramatized that the speech or debate clause has been changed by the act and order" of Judge Wells. "Whenever [prosecutors] mention something, I believe I have a right to pursue it without violating my speech or debate clause rights."

Morford, though, has cautioned all witnesses to not discuss legislative acts. Documents used in the trial have generally been faxes or letters, not records of congressional hearings or appropriations bills.

Procedures for questioning: Judge Wells, meanwhile, took a few minutes Friday to instruct Traficant on the procedure he must use if he decides to take the witness stand. The government is expected to wrap up its case Monday or Tuesday.

He didn't want to hear the instructions, but she insisted.

Traficant must say "Question," then pause to see if there is an objection before he asks himself a question.

Before he answers, he must say "Answer," and not use the answer to make arguments or speeches.

Traficant wondered what to do if he thinks of a picture in Playboy and forgets the question -- can he have it read back by the court reporter?

Judge Wells' answer wasn't clear.

Allegations about FBI: The government, meanwhile, in a response to Traficant's three allegations of FBI misconduct filed this week, called them baseless and an attempt to divert attention from his own guilt.

The government asks that Judge Wells not permit the congressman to call witnesses just to embarrass or harass them. Prosecutors ask that she find no relevance in his unsubstantiated claims.

Traficant, without ever offering proof that FBI Special Agent Tony Speranza raped a Canfield woman and despite the woman's denial, wants to call Speranza as a witness. Speranza was not assigned to investigate Traficant, the government said.

The congressman also alleges that his congressional staffer, Danette R. Palmer, was subjected to witness tampering by FBI Special Agent Mike Pikunas, who spoke to her when she tried to enter the locked courtroom last week.

Palmer, Traficant's liaison with his Washington, D.C., and district offices, serves as his driver each day. Early on in the trial, she helped him with jury questionnaires in court and took notes.

The government said if Judge Wells decides to inquire into a letter written by Palmer about Pikunas, then Palmer should take the witness stand and be cross-examined.

In the letter, Palmer said she never felt so scared or intimidated in her life. She said she's become a nervous wreck and is scared to death and is now taking sleeping pills and has seen a doctor about her emotional health.

FBI Special Agent John Kane, in charge of the bureau's Boardman office, said Palmer's version is false.

Prosecutors say Palmer's letter is similar to other letters Traficant has had close associates write that allege FBI intimidation.

Mysterious car: Michael Antonoff of Boardman, who has been serving Traficant's subpoenas, supplied an affidavit Friday that alleges that a car was parked in front of his house Thursday and that someone inside took pictures of the house. Antonoff said he followed the car and confronted the driver, who had a black earpiece and a camera on the seat.

The man flashed what Antonoff said appeared to be an FBI badge and told him to back off, then drove away.

Antonoff, who describes himself in the affidavit as a private investigator, didn't get a license plate number. Nor did he get the make and model of the car, which he described as "small silver midsize newer model."

Traficant told Morford and the judge that he wants photographs of all FBI agents assigned to the bureau's Boardman office.

Traficant warned the prosecution team that there better not be any more incidents of FBI intimidation. Morford said there is no evidence that any has taken place.

"Put a sock in it," was Morford's parting shot.

Judge Wells told Traficant she will deal with his recent motions and affidavits and the government's responses next week.

More Traficant defense witnesses have received subpoenas. They include Linda Kovachick, a former congressional staffer in Youngstown; Domenic Paelone of Youngstown; Michael S. Terlecky of Canfield; Joe Pignatelli of Struthers; and the records custodian of Honey Creek Contracting in Petersburg.

meade@vindy.com




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