RACKETEERING CASE Traficant objects to fingerprint evidence
The congressman said if this is justice, then he's a fashion leader.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- Only the government and U.S. Rep. James A. Traficant Jr. know what evidence collected for his racketeering trial has incriminating fingerprints on it.
In a brief filed Thursday in U.S. District Court, Traficant objected to the use of expert testimony regarding fingerprint evidence prosecutors intend to use next month.
The objection doesn't identify the evidence, which would have been turned over to Traficant as part of the discovery process.
The 17th District congressman cites a U.S. Supreme Court case that he says makes it clear that federal trial judges have a "special gatekeeping obligation" to ensure that only reliable expert testimony be presented to jurors.
Although fingerprints were once the foundation of most criminal evidence, such evidence doesn't meet the forensic standards described in the Supreme Court case, he said.
In July 2001, Traficant received 37 boxes of evidence the government gathered to use against him.
Within the boxes were four photographs of cash and envelopes, thousands of documents and tangible objects, 20 video and 453 audio cassettes, a 13-page report and transcript of his contacts with FBI agents and 21 FBI lab reports.
Kickbacks alleged: One allegation in Traficant's 10-count indictment is that his administrative counsel, R. Allen Sinclair, kicked back $2,500 of his salary each month for 13 months by putting the cash in an envelope and slipping it under the congressman's office door in Boardman.
Traficant also objected to the prosecution's intent to call former congressional staffers to testify about conversations they had with Charles P. O'Nesti, now deceased, and Atty. Henry A. DiBlasio, now under indictment.
The staff members will testify that O'Nesti and DiBlasio talked about kicking back part of their congressional salaries each month to Traficant, the government said. DiBlasio is accused of lying to a grand jury about the kickbacks.
The FBI has an audiotape it made Jan. 6, 2000, with O'Nesti admitting that, for 13 years, he kicked back $1,000 each month to Traficant. O'Nesti died Feb. 29, 2000.
The prosecution team, led by Craig S. Morford, wants U.S. District Judge Lesley Brooks Wells to issue an order allowing the staffers' hearsay evidence. The trial begins Feb. 4.
Traficant wants her to throw out the testimony, saying the most sacred right of an accused is the right of confrontation. He reasons that he can't confront a dead man.
O'Nesti, of Youngstown, served as Traficant's district director from January 1985 until March 1998, earning $75,000 a year when he resigned.
Shortly after resigning, O'Nesti pleaded guilty to racketeering crimes linked to mob boss Lenny Strollo, but died before sentencing.
About O'Nesti: Traficant said the government knew O'Nesti had terminal cancer, likely would not be available for trial and wanted to die at home, not in a government medical facility.
With that in mind, he said the government should have allowed him, as a defendant, to cross-examine O'Nesti through a deposition.
Traficant, however, was not a defendant when the audiotape was made. His indictment wasn't handed up until May 2001 -- 17 months after O'Nesti's taped confession, which the government said it would not use at trial.
The congressman said FBI Special Agent Michael Pikunas took a fruit basket to O'Nesti's house to do an interview.
O'Nesti may have overheard Pikunas say to Jeff O'Nesti that his father would possibly have to stay at a government medical facility, Traficant said, quoting the FBI agent's report of the event.
"It does not take Inspector Clouseau to see through this 'fruit basket' ploy," Traficant said in court papers, implying the confession was coerced.
"Mr. O'Nesti recognized and understood clearly that he could be taken from his home while on his death bed, separated from his children and grandchildren and forced to die in a medical facility."
Complaint: Traficant then repeated his complaint of prosecutorial misconduct and accused Judge Wells of giving the government "carte blanche to bend and shape the rules and process" to its advantage.
He said she dismissed "with frivolity" his prior claims of misconduct and called the evidence he presented "self-serving." He said he now takes issue with the judge and wants her to revisit his misconduct allegation.
"I may not be an attorney, but I wasn't born yesterday and if this is justice and-or due process, then pro se defendant proclaims himself to be a fashion leader and further says, 'Beam Me Up!'"
Finally, Traficant said if Judge Wells grants the government's motion to prohibit his planned defense, he has no defense and no witnesses. Also, with O'Nesti dead, Traficant said he'd have to become an expert in necropsy, which means the examination of a body.
Traficant wants the jury to hear his theory that the government, pursuing a vendetta, has considered him a trophy since he beat federal bribery charges in 1983 when he was Mahoning County sheriff. He also wants jurors to know the cost of the investigation and prosecution.
The congressman wants to introduce evidence to show that he performed official acts without taking bribes and evidence to show FBI and prosecutorial misconduct.
Traficant said the prosecution team's attempt to prohibit such evidence is a way to hamstring him from pursuing bias or prejudice issues during cross-examination of government witnesses.
If Judge Wells sides with prosecutors, it's a violation of the confrontation clause contained in the Sixth Amendment of the Constitution, he said.