TRAFICANT CASE Rep seeks extension of trial
The government doesn't want the congressman to testify via his own questions to those on the witness stand.
By PATRICIA MEADE
VINDICATOR CRIME REPORTER
CLEVELAND -- Calling the government's revelation of a kickback confession "last-minute machinations," U.S. Rep. James A. Traficant Jr. wants his Feb. 4 racketeering trial to be delayed for 14 days.
The 17th District congressman asked for the extension in a one-sentence motion filed Tuesday afternoon in U.S. District Court here.
U.S. District Judge Lesley Brooks Wells set Tuesday as the deadline for trial briefs and proposed jury instructions.
In explaining his need for more time, Traficant filed a response to prosecutors' assertion that if jurors hear his version of why the government investigated him -- a vendetta, he says -- they'll also get to hear a now-inadmissible FBI audiotape with Charles P. O'Nesti's kickback confession.
O'Nesti, Traficant's district director for 13 years, made the tape Jan. 6, 2000. He died Feb. 29, 2000.
"He will open the door to essentially every bad act the government had knowledge [of] that factored into the decision to investigate and prosecute him, including the FBI's interview with O'Nesti," Craig S. Morford, an assistant U.S. attorney, said Friday in court papers.
The government has asked Judge Wells to prohibit Traficant from mentioning his vendetta theory. She hasn't issued a ruling.
Morford's filing Friday was prompted by an objection Traficant raised to prosecutors' intention to call former congressional staffers to testify about conversations they had with O'Nesti in which he griped about the kickbacks.
Morford said the O'Nesti audiotape was disclosed now to allow the court to consider all information in evaluating the reliability of the statements O'Nesti made to co-workers.
Delayed mail delivery: Although the government mailed its filing to Traficant on Friday, as required, the congressman complained that he didn't receive it until 1:08 p.m. Tuesday because there was no mail delivery Monday because of Martin Luther King Jr. Day.
He included a photocopy of the envelope the government sent on which he had written LOOK!! with an arrow pointing to the postmark and little dots in the O's to make them seem like eyes.
"Thus, the defendant has no time to respond. This further illustrates machinations and willful misconduct of the U.S. attorney's office," Traficant said in his response. "The government should be denied the use of any statements regarding Mr. O'Nesti, period."
He said the prosecution team has targeted him for years and wants to strip him of his vendetta defense. The government is relying on the judge to tilt the scales of justice so heavily in its favor that most of his witnesses would not be allowed to testify at trial, he said.
Again alleges misconduct: The congressman again requested a hearing to explore prosecutorial misconduct. He said the judge has violated his rights by giving the government "license to extort, bribe and compromise witnesses, and they have done so."
This past summer, Traficant filed motion after motion to have Morford removed from the case, citing "mammoth" misconduct. The judge denied Traficant's motions regarding Morford.
The brief Traficant filed Tuesday makes the same requests and suggests that he has five more incidents to prove misconduct that involve key government witnesses. He said the judge should have the evidentiary hearing and "deny the government's interesting but sneaky snake-bitten arguments. ..."
The 60-year-old congressman also filed this one-liner for proposed jury instructions: "Pro se defendant requests that the court be fair, unbiased and unprejudiced."
By contrast, the government's proposed jury instructions fill 94 pages.
Prosecutors' requests: The government, in a trial brief filed Tuesday, said it intends to call witnesses with plea agreements and others compelled to testify to whom immunity from prosecution has been granted. Traficant should not be allowed to use cross-examination to make "scurrilous and unsubstantiated allegations regarding witnesses," the government said.
Prosecutors also ask Judge Wells to hold Traficant to the same standards as any attorney and not give him guidance, as he has asked, or let him go far afield.
"When a defendant's obstreperous [boisterous] behavior is so disruptive that the trial cannot move forward, it is within the trial judge's discretion to require the defendant to be represented by counsel," the government said, quoting case law.
Prosecutors do not want Traficant to complain in front of the jury about court rulings, his perceived unfairness of the trial, or that he is not an attorney and is outnumbered. He could have hired experienced counsel or, if he could not afford counsel, had the court appoint counsel, the government said.
In addition, prosecutors said Traficant should not be allowed to testify through his questions without taking the witness stand.
Examples from previous trials: To bolster its position, prosecutors cited Traficant's two previous trials, a 1983 federal bribery case (at which he was acquitted) and its offshoot, a 1986 civil tax case (which he lost).
The government said he ignored the tax judge's rulings, sought to inform the jury about irrelevant and prejudicial matters, and complained about the court rulings.
Prosecutors said he used phrases such as "I don't want to get screwed. I'll tell you right now ... I've been already" and "Do you want to know the truth or is this a kangaroo court?" and "If you believe that you believe in Mother Goose."
Traficant incurred the tax court judge's wrath and contempt of court warnings. In 14 pages of the trial transcript, the government quoted the judge, who cited five problem areas:
"*One is your continued purposeful, deliberate interruptions of the court.
"*Number two is your on-the-record, under your breath comments on the propriety of the court proceedings.
"*Number three is your refusing to follow the court's directions on how to proceed.
"*Number four is your persistent rearguing and continual protest of the rulings of this court after you have made your record for appeal, which leads to and has led to the disruption of orderly proceedings.
"*Number five is you insulting the court with your words, your tone of voice and your demeanor."
Traficant filed a one-page trial brief that states he will offer witnesses concerning all 10 counts in his indictment.
Jury questionnaire: In another filing, the congressman again requested the judge to use 20 questions that deal with prospective jurors' ethnic and religious backgrounds. The government has objected, saying such questions are unconstitutional.
Traficant contends that he has been referred to as an anti-Semite because he helped in the release of John Demjanjuk of Cleveland, once accused of being "Ivan the Terrible," a Nazi death-camp guard.
"To allow a hidden bias to be seated on a jury of my peers would be most prejudicial to say the least," Traficant said.
The judge issued an order Tuesday saying only that she would consider his questions and that the jury questionnaire will be available Feb. 4.