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THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
GRETA VAN SUSTEREN, CO-HOST: Two popular politicians facing indictments prepare to tangle with the federal government. U.S. Congressman James Traficant intends to represent himself -- he's charged with racketeering -- while Vincent Cianci, mayor of Providence, Rhode Island, faces 30 counts in another racketeering case.
Today on BURDEN OF PROOF: Their popularity ratings remain high, but these politicians are in legal hot water.
ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.
VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.
U.S. Congressman James Traficant is charged in a 10-count indictment that accuses him of bribery and tax evasion. Traficant, from Youngstown, Ohio, has been in the U.S. House of Representatives since 1984 and was easily reelected to a ninth term last year.
ROGER COSSACK, CO-HOST: Now, this recent federal indictment is the second one brought against Traficant. The first was in 1983 when he was the sheriff of Youngstown and was accused of taking money from the mob to fund his election campaign. He represented himself and he won.
(BEGIN VIDEO CLIP)
REP. JAMES TRAFICANT (D), OHIO: I'm the only American in history to defeat the Justice Department in a RICO case, pro se. And I'm going to look at 12 jurors again and they better get all 12. And they better fix the damn jury because there is going to be a rumble wherever it is.
(END VIDEO CLIP)
VAN SUSTEREN: Joining us today from South Bend, Indiana, law professor G. Robert Blakey, who helped draft the RICO Act. Here in Washington, Anna Smith, criminal defense attorney Julia Guttman and Trey Reagan.
COSSACK: And in the back, Michael Berumen and Brittni Aldridge.
On line and joining us now is Dave Skolnick. David, you're a reporter who has covered Mr. Traficant. Tell us what his newest problems are.
DAVID SKOLNICK, REPORTER FOR "THE YOUNGSTOWN VINDICATOR": Listening to all of the stuff that's going on with his indictment, word has come out from an article in "Roll Call" magazine that two trips he had taken to Albania, one in 1999 and one just a couple of month ago. It was paid for by the Albanian-American Civic League. It turns out he never filed financial disclosure statements regarding those two trips. And it looks as though the Ohio -- I'm sorry, the House Ethics Committee is interested in taking a look at that.
VAN SUSTEREN: David, I got to tell you it's not exactly going to the beach to go to these places. I mean I got to tell you, you know, I understand they have to file these expense reports. But I mean, okay so if he didn't file them, I mean can't he file them now. I mean it doesn't seem like the worst problem he has.
SKOLNICK: No, it certainly isn't the worst problem he has. It just adds on top of everything else. In fact, I believe he filed them yesterday. It's just -- it's just another chapter in the long history.
COSSACK: All right. So what other -- so what other problems does Mr. Traficant have? If he filed these reports -- it's more than that, his charges, aren't they?
SKOLNICK: Yes, the indictment charges him with racketeering, bribery, tax evasion among other things. There's charges that accuse him of taking bribes and shaking down contractors and other local businessmen. There are charges that he required a member of his staff to kick back half of his salary to him by putting it in cash in an envelope sliding it under Traficant's door.
He also is charged with having his employees work for free while being paid by the federal government to do work on his houseboat in Washington where he used to live when he had it and also at his family farm here in Mahoning County.
VAN SUSTEREN: Okay now, those are serious charges.
VAN SUSTEREN: Okay. Let me go to Julia.
COSSACK: Those are the worst than, I would think, forgetting to file the travel forms
VAN SUSTEREN: That's right. To go to overseas -- Julia, last time Congressman Traficant was in trouble, he wasn't congressman he was a sheriff he represented himself. We had someone on the show recently who said no lawyer would ever thought he could win that case. He did win the case. He's now talking about representing himself. What do you say to Congressman Traficant if he asked you whether he should represent himself?
JULIA GUTTMAN, CRIMINAL DEFENSE ATTORNEY: I would say he should have a lawyer. VAN SUSTEREN: But he'll say, "I won last time. I won and everybody said I couldn't win."
GUTTMAN: He clearly has dynamic, charismatic personality. And he could be very effective with a jury but he has to understand there are a lot of other legal rules that could restrict him in presenting his defense. And I think he needs counsel to help him through all of that.
COSSACK: And some of those legal rules that could restrict him with defense were drafted by our next guest. Bob, tell us about the RICO Act and exactly what he's going to be facing.
G. ROBERT BLAKEY, LAW PROFESSOR: What he faces is not simply extortion and bribery. What RICO does is take extortion and bribery, which are individual offenses, and calls them predicate offenses and layers over the top of it an enterprise. And once you show not just simply bribery and extortion but aggravated bribery and extortion over a substantial period of time, RICO treats it as a serious and more serious offense. For example the sentencing for it is mandatory minimum of 2.5 to three years. That's higher than it would be if just the predicate offenses.
VAN SUSTEREN: Bob, what's the history -- I know that you helped draft this. What was sort of the history or the reason behind sort of giving this, this extra layer, this enterprise layer to boost the penalty? What prompted that?
BLAKEY: Well, it's more than just raising the penalty. What happened is Senator McClellan, for whom I work, studied for a long time prosecutions of organized crime and corruption. And we came away with the judgment that the existing system was not adequate. It needed to be strengthened. And once we learned that it needed to strengthened in organized crime and corruption cases, we realized it needed to strengthened across the board in certain kinds of offenses. And so this is it.
What it does is it authorizes the trial and the bringing together of a diverse pattern of behavior. It then authorizes forfeiture and it potentially makes possible of other special sentencing provisions.
VAN SUSTEREN: Julia, how do you get a racketeering charge if you're only one charged in an indictment? Can you maybe talk about an enterprise? What do you make of indictment if it only charges a single person?
GUTTMAN: Well, single person could be charged to be part of an enterprise that is greater than himself but charges might not have been brought against the other people. And you know...
BLAKEY: Well, you know actually that's not right. And the enterprise is not necessarily a guilty person, for example the president of a union. The union can be enterprise. The president can then engage in a pattern of embezzlement. Now that's a standard RICO case. VAN SUSTEREN: But why isn't that multiple embezzlement charges? I mean you stack, you know, 15 embezzlement charges together and get a number of years.
BLAKEY: That's true too. But you don't have consecutive sentencing anymore. Under the sentencing guidelines, you have to group them together.
What RICO designed to do is not only to take that simple embezzlement case and then the aggravated embezzlement case, it puts into it extortion and bribery and conflict of interest payments and lets the jury see the whole thing.
What criminal defense lawyers were very careful at doing is narrowing charges and focusing juries attention away from the whole pattern of the criminal's behavior. And what RICO does is it lets the jury, the judge and the community see everything that actually happens.
VAN SUSTEREN: But I got to take a quick...
COSSACK: Bob -- let me just jump in here for a second.
Bob, the criticism of RICO, as I understand it from some areas, is that it's an atom bomb sometimes used to fight a very limited skirmish. And what that means is that this too tool is so strong that the government has that perhaps sometimes it is used to force a guilty plea or some kind of a negotiated plea because the downside of trying to fight a RICO is so difficult.
BLAKEY: Hey, look; I happen to agree with that. I represented Congressman Joe McDade, who incidentally voted for RICO. When I worked with him to get RICO, he was charged with a RICO and tried not in Scranton where he should have been tried or in D.C. where he should -- but up in Philadelphia. And I thought that was an abuse of a RICO case. Unfortunately, the jury thought he was not guilty at the end.
What you're now talking about is not the statute but prosecutorial discretion.
COSSACK: That's right.
BLAKEY: And there is a unit in the department that's supposed to approve all of these cases. There's only about 200 a year. And it goes through; one would hope a very careful layering of judgment that this is an appropriate place to use it.
It's a lot like battlefield surgery, always bloody, but sometimes necessary. But it would be better to do it in regular hospital scenery. So if you have a simple case, do it in a simple way. If you have an aggravated case, do it with RICO. But it takes good prosecutive discretion to choose between the two and sometimes that's not always present.
COSSACK: All right. Let's take a break. Up next: Trouble in city hall as another politician faces legal hot water. The mayor of what some call "Rogue Island" is facing his second indictment -- second indictment. We'll find out why, when we come back.
(BEGIN LEGAL BRIEF)
Patrick Ireland, a Columbine High School shooting survivor, riled a lawsuit Monday claiming that authorities failed to do enough to prevent the massacre. The lawsuit, which seeks an unspecified amount in damages, was filed against the Jefferson Country Sheriff's Department, its deputies and the school district.
(END LEGAL BRIEF)
COSSACK: According to a Brown University poll, Mayor Vincent Cianci of Providence, Rhode Island has a 64 percent approval rating among his constituents. But 40 percent of the people of Providence also think their mayor is guilty of the racketeering charges against him.
And joining us today to explain all of this from Boston is Judy Rakowsky, a reporter with "The Boston Globe."
Judy, is the mayor in trouble this time this Rhode Island?
JUDY RAKOWSKY, REPORTER FOR "THE BOSTON GLOBE": I'm afraid he's in deep trouble this time.
COSSACK: All right, tell us what his problems are.
RAKOWSKY: Well, he's charged with using the government of the City of Providence as a racketeering enterprise, extracting bribes for just about any kind of business he wanted to do with the city whether it was get a contract for school lunches, you know, to -- you know, have two lots -- I mean any job you wanted, if you wanted a promotion in the police department, any contact -- if you wanted some easement on, you know, your property taxes that might be onerous. You had to pay up according to the indictment. And a number of his under links have already been convicted, people in the tax assessor's office and so forth. And it's come up to his chief-of-staff and now to the mayor's door.
VAN SUSTEREN: Judy, let's give a plug a little bit for your old employer, the "Providence Journal," where you covered him for years. The mayor's problems aren't just recent. He had problems in the '80s, didn't he?
RAKOWSKY: Yes, and his ties to the police department go back to the time he was charged with felony assault to which he pled no contest in 1980.
VAN SUSTEREN: What was that assault all about?
RAKOWSKY: Well, he had providence police officer hold down his ex-wife's lover while he assaulted him with a fireplace log and a lit cigarette and other things. VAN SUSTEREN: Julia, you've represented criminal defendants. You go into this trial. If you represented the mayor, what are you going to do about that prior problem with the other one that Judy's is talking about? How do you keep that one out, too old?
GUTTMAN: It's too old. It's tending to prejudice. The jury has nothing to do with his current charges.
COSSACK: Do they love him in Providence, though? I mean this is a guy who's sort of in and out of hot water. But he is sort of, in some ways, synonymous with Providence, isn't he? Judy?
RAKOWSKY: Buddy is larger than life. He is -- you know, he defines charisma. He hearkens back to famous mayor of Boston, James Michael Curley, who was -- you know, who served as mayor from jail.
And you know he has brought Providence up by the bootstraps, making it think it could do things that it never imagined possible. It's sort of a, you know, medium-sized city in a rust belt kind of mentality. And now they're building million-dollar condos downtown Providence. And people are commuting to Boston.
VAN SUSTEREN: Judy, does that he's going to get reelected if he runs, No.1 and No. 2, does have a trial date? Do we know when he faces a jury?
RAKOWSKY: Well, one problem he has initially is that part of the charges against him say that his actual campaign funds, the money he would use to get elected, is part of the crime. And so they're fighting over what to do with those assets. I think that they're seeking to forfeit them.
So, you know, not that he perhaps needs the campaign but that's one...
COSSACK: What are the -- no matter what he's got some problems.
Let's go to Bob for a second. All right, Bob, you wrote this law, what's the government going to have to prove if they want to convict the mayor here?
BLAKEY: The government will have to prove that he's a mayor, that Providence is a city and that he then engaged in the -- a pattern of bribes, extortions in the running of the city.
COSSACK: Now do they have to prove all three of them or I mean crimes and extortions or any one?
BLAKEY: Well, it'll depend on how they've charged it in the predicate offenses. And I -- as turns out, I've actually read that indictment. And they have the name and they'll have to go down it one by one and they will have to prove a pattern of them. They won't have to prove each one of them. But they'll have to prove a pattern of them.
And looking at that indictment, the mayor has got a serious, serious problem.
COSSACK: Let me give him this one question. What's a pattern? Is a pattern -- if there's 15 offenses and they prove seven of them, is that a pattern?
BLAKEY: Well, it -- if -- you have to look at all the facts and circumstances. The best way to think of it, think in terms of football, remember Elway passing that was never a pattern. Remember Joe Montana, those passes were a pattern, neat, picking off one by one in a steady and a related way rather than catch as catch can and ad hoc.
You can tell whether a dress is pattern or whether it's a solid. Pattern's a primary concept. It's not something easily defined. But you do know it when you see it.
VAN SUSTEREN: Julia, when he says something like that, you know it when you see it, that starts -- terrifying to me, as a defense attorney to say that it's so ill defined. What do you make of this pattern?
GUTTMAN: I have the exact same reaction you do. It's going to be thrown to the jury and they will decide. And they have almost no guidance and no standards.
GUTTMAN: If it looks bad enough, they'll convict him. But it might be pattern and it might just be a series of unrelated but very bad acts.
BLAKEY: But it sounds like if he's the mayor and he's guaranteeing that this guy gets his easement of this guy gets the contract with the city or this guy doesn't get it...
VAN SUSTEREN: But I got to tell, Bob...
BLAKEY: ... that is the affairs of his enterprise. That's a pattern.
VAN SUSTEREN: But I got to tell you Bob, that one thing that's always terrifying to defense attorneys, that, you know, when you're start getting enough people all complaining with desperate allegations, that people are going to convict even if the -- you know, the underlying -- they should not -- there's insufficient evidence.
But let me ask Julia a question about this forfeiture that Judy's talking about.
This campaign fund, why would he have to forfeit the money prior to conviction in the event that -- I mean we don't even know if he's going to get convicted. GUTTMAN: He wouldn't have to actually forfeit it before the conviction. But the government might make a showing and have the asset restrained so that he couldn't use it. So it would be available and not spent in the event that he were convicted and the government were to get the forfeiture.
And so he could be prevented...
VAN SUSTEREN: Go ahead, Judy.
RAKOWSKY: Well, let me just jump in that I told about the prior felony charge against Cianci. But in his first administration, there was, you know, allegiance of his under links then who were carted off to prison for corruption.
And you know, I take her point about not bringing up the prior felony. But if the pattern could be, you know, tied back to the original -- to his first administration, I wonder if that could be brought up.
VAN SUSTEREN: But I think what we're talking about is the incident where he has the police officer hold someone down and he -- the estranged wife's...
BLAKEY: They'll never get that in. They'll never...
VAN SUSTEREN: ... because it's so stale. And it's not part of...
VAN SUSTEREN: ... servant corruption in a mayor's office. But...
COSSACK: And Bob, this is a second administration with gap of time in between. So it would seem to me to be difficult to...
BLAKEY: Well, let's go back to what happened to the first. What's going to happen to him is when he takes the stand and he has to in order to explain all these charges, and he begins saying I've never done anything wrong, he may open the door to get into the prior troubles. And indeed he may get in...
VAN SUSTEREN: You know what, I don't...
BLAKEY: ... open the door to other activity.
VAN SUSTEREN: I don't know if Bob -- I don't know if Bob if he has to take the stand. We'll wait and see. But I'll tell you one thing if he's got a bunch of under links that are coming out of the woodwork saying that he did wrong, a good defense lawyer can find a motive to, you know -- to keep the...
COSSACK: Why -- but he's going to charge -- he knows what went wrong. All these liars are lining up against him. VAN SUSTEREN: I don't know if he necessarily -- listen, when you have a bunch of what we call so-called snitches, I don't know if you need to actually take the stand.
BLAKEY: But it's going to get to the jury. It's going to get to the jury.
VAN SUSTEREN: No question about it.
COSSACK: That's right.
BLAKEY: And then it's going to depend on whether his charismatic personality can persuade the jurors like he persuaded the voters.
VAN SUSTEREN: But he's got that charismatic personality outside the courtroom, which in some ways the jurors all know about because it's a small community.
We're going to take a quick break and we'll be right back.
Q: What mayor has been indicted on a murder charge stemming from a 1969 riot?
A: York, Pennsylvania Mayor Charles Robertson. The indictment accuses Robertson, who was a police officer in 1969, of being an accomplice.
VAN SUSTEREN: They're popular politicians, but in legal hot water. U.S. Congressman James Traficant is facing charges of bribery and tax evasion while the mayor of Providence, Rhode Island also prepares for a federal trial on racketeering.
Julia, let me go to you. The mayor of Rhode Island, 64 percent approval rate, as Roger said, among his constituents but 40 percent of the people -- of his constituents think he is guilty of the racketeering charges. As a defense attorney how do you pick a jury? What are your biggest problems? And what's the -- what do you have going for you?
GUTTMAN: First, he wants to be tried in his district because he's got a lot of people pulling for him. Second...
VAN SUSTEREN: Does the prosecution have a right to pull it out of that district because of the rules?
GUTTMAN: Yes, the prosecution or the defense has the right to ask to have the case tried in another district, if they can make --
BLAKEY: If they can show prejudice.
GUTTMAN: If they can show that they cannot get an impartial jury.
BLAKEY: But that's almost impossible. VAN SUSTEREN: Okay, now -- well, if in the end -- Julia, in the -- in picking this jury, he wants to be in his own district, what's his biggest problem?
GUTTMAN: He's got to try to get the people who have made a judgment that he's guilty off that jury.
VAN SUSTEREN: But if they still like him, that's what's so bizarre. They like him but think he's guilty. It's bizarre.
COSSACK: You know, Bob, what about the notion this is called a RICO crime? I mean in heavily -- this is an area that there's heavy population...
COSSACK: ... Italian-American population. In a sense, wouldn't you think this almost plays for the mayor?
BLAKEY: No, you know, when Joe Valachi testified before the McClellan Committee, he said: "Senator, I'm not talking about Italians. I'm talk about criminals." And what the statute says is any person who does such and such and when I say the people say, this is Italians only, what part of "any" don't you understand?
The mayor has got a problem here not because of what his background is but because of what he did if the government can prove it. And if they can get fair-minded jurors who won't look at politics but look at what the allegation is and say did he do it or he did not do it, then he'll get a fair trial and so will the government.
VAN SUSTEREN: Bob let me just correct one thing. You said, it depends -- he's in trouble because of what he did. He did -- nothing has been proven that he did it. It's only an accusation...
VAN SUSTEREN: I want to underline that.
BLAKEY: Absolutely. He's entitled...
VAN SUSTEREN: Absolutely.
Let me go to Judy. Judy, how much of -- how much interest does the community have in this trial?
RAKOWSKY: Well, I think the community has a tremendous interest in it just because he is -- it's like they don't want him to be convicted even if they think he did it. And that's the enigma of Buddy. VAN SUSTEREN: What about the tape player? In the 20 seconds we have left, what happened with the tape?
RAKOWSKY: Well, there are a lot of tapes. There are audiotapes and there are videotapes. And the lead prosecutor in the case, according to private detectives for the mayor working on the mayor's case, showed one of these videotapes to some relatives.
VAN SUSTEREN: That's not good for prosecution, showing the tapes of the mayor to -- at -- to relatives -- Roger.
COSSACK: You know, I think that that's going to come back to haunt the old prosecutor at some time.
VAN SUSTEREN: Big time, right, as Dick Cheney would say.
COSSACK: That's all the time we have today.
COSSACK: Thanks to our guests and thank you for watching.
VAN SUSTEREN: Tonight on "THE POINT": The controversial Web site that has posted autopsy photos of two dead NASCAR drivers and how this site has now played a role in the debate over Dale Earnhardt's autopsy photos.
I'll get to THE POINT at 8:30 eastern. And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.
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