Petition for Writ of Certiorari — Giordano v. United States

eee ae

bing attain” fag SIE: CEE NEAR MRE. le

—

Le ae om near ut pgtye Nearer esse Ihe eet

cone

a eee tae

.

—

NO ARO MAR ROO A

ba se it

LIBRARY | “FI da

UPREME COURT. U, &

MAY 2

| | JOHN F. Davis rink

——

In the

Supreme Court of the United States

Ocronss TERM, 1968

JOSEPH AIUPPA,

Petitioner,

Vs.

THE UNITED STATES OF AMERICA, |

fespondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MAURICE J. WALSH

29 South LaSalle Street

Chicago, Illinois 60603

JOHN POWERS CROWLEY

105 West Adams Street

Chicago, Illinois 60603

Attorneys for Petitioner

UNITED STATES LAW PRINTING CO., CHICAGO, ILL. 60618 LA keview 5-6581

*

Re ae ee Te ee

INDEX

eee | PAGE

Cppimbomin BODOW, oxcsiccvscrscvssiseesscsasovssnensomesnsnstecaesnesees onic 1

PE a one ee 2

Questions Presented fora PAT ON pesniiaee 2)

_ Statement of the Case ........ ee | eae oo et 3

Reasons for Granting the Writ on snsnnetone 10

~ Conchision ........ aces unies aia cecmer: 2 18

TABLE OF AUTHORITIES CITED °

| | Cases °

- Brown v. Louisiana, 383 U.S. 181 ooccccccccccscccssecsssonn 12,13

Chapman v. California, 386 U.S. 18 .......... ES

Coppedge v. United States, 272 F.2d 504 ................ 13, 15

.. Draper v: United States, 358 U.S. 307) occ 11

Griffin v. California, 380 U.S. 609 ..cccccissnnnneenendy 17

Henslee v. United States, 246 F.2d 190 ......: Ts

Janko .v. United States, 366 U.S. 716 vices... 43,14, 15

Jones v. United States, 362 U.S. 257, 271 ececcescscseeee 11

‘Marshall v. United States, 360 a... 15

, Marson v. United States, 203 F.2d 904 o.....13,15-

FEE RS PORTE

.

| PAGE

Miranda v. Arizona, 384 U)S. 436, 475 ccs : 12

Sheppard v. Maxwell, 384 U.S. 333 cece 18

' Shuttlesworth v. City of Birmingham, 382 U.S. 87 ....12, 13

Silverthorne Lumber v. United States, 251 U.S. 385 ..... 10

Thompson v. City of Louisville, 362 U.S. 199 .......... 12,13

United States v. Accardo, 298 F. 2d 133 on 18,15

United States v. D’Antonio, 342 F.2d 667 (7th Cir.

eo ee IEA SN Oy ae ER 16

United States v. Largo, 346 F.2d 253 2... 13, 15

United States v. Panczko, 353 F.2d 676 (7th Cir. 1966) 16

Wong Sun v. United States, 371 U.S. 471, 488... 11

Other Authorities

-, $8 0.8.0, $1981). ee D

, Bn the

Supreme Court of the United States

Octroser Term, 1967 ©

JOSEPH AIUPPA,

oad - Petitioner,

Vs. ; . i

THE UNITED STATES OF AMERICA,

Respondent.

_ PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

. FOR THE TENTH CIRCUIT

Petitioner, Joseph Aiuppa, prays that a writ of certior-

ari issue to review the judgment of the United States

Court of: Appeals for the Tenth Circuit affirming a judg-

ment of conviction entered by the United States District

Court for the District of Kansas.

OPINIONS BELOW

The opinion of the Court of Appéals is not yet reported.

and is printed in the Appendix to this petition. (Appendix

A, infra pp. 1-12}. Also printed In the Appendix,. as

2

relating to an earlier stage of the case is the opinion of .

the Court of Appeals for the Tenth Circuit in Aiuppa v.

United States, 338 F.2d 146 (Appendix ©, infra pp. 13-17).

JURISDICTION

The judgment of the Court of Appeals was entered on

April 25, 1968. (Appendix C. infra p. 12).” The jurisdic-

tion of this Court was invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. When physical evidence and all leads therefrom ob-

tained by an unlawful search and seizure are ordered sup-

pressed pursuant to. the mandate from a prior appeal,

may the government on the second trial introduce evidence

describing such suppressed physical evidence, and use

leads obtained therefrom, without establishing lack of .

taint? .

2. .May‘a convie tion, even for a petty offense, be sup-

ported by assumption and affirmed, absent other proof of

the violation?

3. In a criminal trial which had been transferred to a

Judicial Division other than that in which the informa-

tion was filed, because of prejudicial publicity, prevalent

throughout the State, and where ten prospective jurors

had been excused for opinion or bias obtained from pub-

licity, may a District Judge properly refuse to interrogate

the trial jury concerning exposure to admittedly preju-

dicial .accounts appearing in newspapers of general cir-

culation in the State of Kansas in both days of the trial,

and brought to the attention of the Court prior to tha

jury’s retirement and deliberation?

3

4. In a criminal trial which had been transferred from

another District in the same State because of publicity,

_ and ten prospective jurors had been excused for opinion

or bias arising from publicity, may the jurors be allowed to

separate during deliberations with likely exposure to ad-

mittedly prejudicial publicity?

5. In light of Griffin v. California, 380 U.S. 609, may

the Court, over specific objections, instruct the jury that

a defendant cannot be ‘‘compelled’’ to testify, and no

' presumption of guilt and no inference of any kind may be

drawn, from the “‘failure’’ of a defendant to testify?

STATEMENT OF THE CASE

The petitioner was convicted in a trial which lasted

two days, by jury, of -a third amended information con-

taining two Counts, Count 1 charging the petitioner with

unlawful possession of approximately 500 mourning doves,

all but 48 of which were in excess of the legal limit in vio-

lation of Section 703, T. 16, U.S.C.; Count 2 charged the

petitioner, Joseph Aiuppa, without being permitted by |

regulation, with the transportation of the same mourning

doves, also in violation of the same statute.

This was the second trial of the defendant, the first

Judgment of the District Courf-of Kansas, after a trial

without a jury, having been reversed for the error of

failing to suppress evidence,

After the remand from the first appeal (the opinion in

which appears in the appendix hereto as Appendix ‘‘C’’

at appendix pages 13 through 17), the United States At-

torney filéd a third amended information on February

1, 1965. The original arrest of the petitioner occurred

on October 1, 1962. After post trial motions by the de-

See RY RE On) OU ROMER RRNA: '

OE SR EE ANT

4

fendant were denied in this second trial at Fort Scott,

Kansas, the petitioner was sentenced to custody of the

Attorney General for a period of three months on October

1, and was fined $500.00 on each of Counts 1 and 2, making

a total of 3 months’ imprisonment and $1,000 in fines,

plus the costs of prosecution.

After the reversal of the first trial, where the peti-

tioner received a similar sentence, Chief Judge Stanley-of

the District of Kansas auieal an — providing as

follows:

‘‘Now on the 2nd an of September, 1965, the de-

fendant’s motion to suppress evidence comes on for

— “argument. After hearing arguments of counsel... for

_the defendant and being well advised in the premises,

the court finds that all conversations, records, iden-

tifications, researches and- evidentiary leads emanat-

ing from said search and seizure complained of be

suppressed.’’ (App. 72)?

On June 20, 1966, this cause came on for re-trial before

the Hon. George Templar and a jury, at Fort Scott,

Kansas. The first trial was at Kansas City, Kansas, and

the motion of the petitioner for removal to another Di-

vision was granted because of the prejudicial publicity

which ‘attended the first trial, both before and during the

trial.

In voir dire conducted by Judge Templar, ten of the

prospective jurors were excused for cause because they

said that they had read of the case in newspapers or had

heard about it on radio and television, or had discussed .

it, and had a bias or an opinion concerning the guilt of the

1 References to ‘‘App.” are to the certified Appendix prepared

for the Court below and filed with this Petition.

5

petitioner. These prospective jurors were excused for |

cause, since the petitioner had dnly three peremptory

challenges under the Federal Rules of Criminal Procedure.

(App. 95-141) . °

After the selection of the jury jand prior to the com-

“ mencement of the reception of evidehee, an attorney named

Menghinie advised the, court and the United States At-

torney that he represented a number of witnesses who had

been subpoenaed by the.Government' who felt that under

the circumstances that they should refuse to testify as

they might incriminate themselves. He further told the-.

court that he represented a Mr. Blunk who at the time

of the occurrence of the transaction, was a ward of the,

court and was judged incompetent and that he had a state-’

ment from the doctor stating that at the present time Mr.

Blunk was not fit.to testify. (App. 146-147)

The first witness for the Government, Andrew Williams

(App. 151-167), was permitted to testify over the -objec-

tion of the petitioner (App. 151-2), that his testimony

was the result of a lead emanating from a search which:

had been held to be illegal. On the hearjng on the motion

to suppress, Alfred Robinson, a United States Game man-

agement agent, testified that it was not until after the car

was searched that he knew it contained mourning doves

and it was only after he obtained this information that he

interviewed Williams. (App. 27)

Andrew Williams testified.(App. 151-169) that from

September 15 to October 1, 1962, he cleaned doves for

many people and‘stored them at. Frontenac, Kansas in the

ice box at a Dairy Queen. He was paid by a man named

Harold MaeMurry for cleaning doves and he imagined

- that Mr. Aiuppa had paid him because he was keeping his

‘dog. He kept Mr. Aiuppa’s dog for four months and he

ites

PE IP LEE ENE IR) POS

6

paid him $150.00, on October 1, 1962. On approximately -

October 1, 1962. at the request of the petitioner, Williams

obtained some dry ice at the ice plant at Pittsburg, Kansas |

and took it to the Dairy Queen in Frontenac where he

broke it into small pieces, and put the ice on top of coolers.

He further testified that he put dry ice on top of the car-

tons and that there were packages in the cartons but that

he had never seen the packages opened. He testified that

he placed the mourning doves in a sack or plastic bag. He

further testified that he cleaned somewhere between 900 ©

and 1400 doves. He also testified that he prepared a

plastic bag full of giblets for the petitioner and that after

_ placing the bag in the freezer at the Dairy Quéen it was

broken and Mr. Aiuppa requested. another bag. He fur-

ther testified that there were cartons that were filled

with plastic bags and he placed ice on top of these cartons

and he placed one of the cartons in the automobile of the

petitioner, but he did not know how many birds were in

the carton (App. 161) and he could only assume that

other cartons were placed in the Cadillac. The witness did -

‘not know how many birds were in the containers but he

- assumed that there were four or five hundred (App. 164-

165).

Mr. Williams testified that Agent Robinson and an-

other agent first contacted him about this case the day

after Mr. Aiuppa had left for Chicago and that he had

never discussed this matter with them or any one else

representing the Government prior to that day. (App. 166-

167). He further stated that he cleaned and placed some-

_ where between 900 and 1400 birds in the ice box at the

Dairy Queen, but he did not know how many ‘remained the

morning he went over to the Dairy Queen when Mr. Aiuppa

was leaving for Chicago but that there were many people

who had access to the birds including a Mr. MacMurry

7

who had removed some birds from the cooler. He did not

count any of the birds which he placed in the car of the

petitioner and he did not know how many there were re-

maining in the freezer after he had driven away. He also

_ testified that doves were hunted by large number of per-

sons and frequently they were cleaned and stored and were

used for ‘‘game feeds’’ at which many people would at-

tend. (App. 168-169). |

Also, during the questioning of ‘this witness by the at-

torney for the Government, after the witness had been un-

able to give definite answers to questions by the attorney

for the Government, the following occurred:

Q. Who told you to have a faulty memory?

A.. Nobody told me to have a faulty memory.

Mr. Walsh: Object, and moye to strike it. I ask

the jury be instructed not—to disregard that question

and answer. ee

The Court: Sustained, the jury will disregard it.

On the first trial, the prosecutor had the benefit of Wil-

liams’ testimony, but also that of the agents who conducted

the illegal search and seizure, and the evidence of an

ornithologist who established the subject.birds as mourning

doves, subject to the migratory bird treaties and Acts.

In the second trial, the only evidence offered on these .

subjects was that of Andrew Williams, because of course,

all of the other evidence was suppressed..

Williams testified to his being taken to the United States

Commissioner and there charged with a violation of the

Migratory Bird Act, and receiving a fine of $50.00 and giv-

ing statements to the Game Wardens—all after Aiuppa’s

arrest and the illegal search and seizure had confirmed the

Warden’s suspicion that Aiuppa possessed and transpor ted

mourning doves.

1 ererem ey

bed .

Cotas | teed, pei laos deseiiheks Aiiaahiaa eae

°

tit iE eat hare te ee _

8

During the trial of the case, Mr. Blunk was called to

testify (App. 175) over the objection of the petitioner (App.

174). He refused to answer questions on the grounds that

” feared his testimony might tend to incriminate him.

- Hugo Farabi also was called to testify (App. 181- 2), and

he exercised his privilege against self-incrimination. He

further stated that: he had advised the prosecutor, through

his counsel, prior’to being called to testify, that he intended

to claim his privilege (App. 181-2).

At i.e conclusion of the Government’s case, the diteodens

moved for a mistrial based on the ground that he was un-

duly prejudiced by the prosecutor’s action in calling Mr. —

Farabi and Mr. Blunk to the witness stand when he knew

and had been informed by their counsel, that they intended

to take the privilege granted to them under the Fifth

Amendment of the Constitution of the United States (App.

197).

Petitioner further reved for judgment of acquittal at

the end of the Government’s evidence (App..197); prior

to ruling on the motion for judgment of acquittal, the court |

stated that it was having difficulty with reconciling the

number of doves that were in the possession of Mr. Aiuppa

from the evidence, and the court stated further that it

seemed somewhat speculative from the evidence as to the

number of doves in his possession, but overruled the mo-

tion (App. 200- 202). The petitioner then rested (App. 201-

202). During the conference on instructions, the petitioner

objected to the giving of court’s-instruction 16 (App. 88-

210) on the basis that the manner in which the instruction

was phrased that ‘‘thé law does not compel a defendant in

a criminal case to take the witness stand and testify’’

was prejudicial comment on the failure of the petitioner

to testify and also implied that although he could not be

-9

compelled to testify, his testimony would be desirable. The

petitioner further objected to giving any instruction on

the failure: of the petitioner to téstify in his own’ behalf

~» (App. 210-211).

_ ‘The petitioner then moved for a mistrial based upon two

‘newspaper articles, petitioner’s Exhibit ‘‘A’’ and ‘‘B?’

(App. 280-283). The petitioner further moved in lieu of

granting a mistrial on the basis of the publicity that the

court query the jurors individually and separately out of

the presencé of the others concerning what they know about

these articles, and what they know about other specific

articles, and whether they.had éver heard Mr, Aiuppa

described as a gangland-or syndicate hoodlum (App. 215-

216). The court relied upon a presumption that the jurors

would do their duty and refused to conduct any voir dire

examination (App. 216). Thé case was argued and sub-

mitted to the jury, and the jurors were allowed to separate

during their deliberations.. When they separated, no ad-

momition of any kind was given to them concerning exposure |

to publicity. ~They were ‘told only that they were not to

talk about the case (App. 242-243). The jury returned a

verdict of guilty (App. 88). A timely motion for acquittal

notwithstanding the verdict or in the alternative for a new

trial was filed on July 7, 1966 (App. 89). This motion was

denied on August 19, 1966 (App. 91). On August 19,°1966,

the petitioner was sentenced to the custody of the Attorney

General for a-period of three months on Count One and

was fined $500.00 on each of Counts One and Two for a

total fine of $1,000.00,. and further assessed the: cost of

prosecution. A timely notice of appeal was filed (App. 93). -

On appeal the Court below affirmed the judgment of the

District Court.

ET ET BOON

eee

10

- REASONS FOR GRANTING THE WRIT

1.. The decision of the United States Court of Appeals

for the Tenth Circuit is in conflict with the decision of this

Court in ‘Silverthorne Lumber v. United States, 251 U.S.

385 in that it permits the Government to use evidence ob-

tained from an illegal search and seizure without any show- |

ing of lack of taint. |

The defendant’s original conviction in this cause was

reversed by the United States Court of Appeals for the

Tenth Circuit on the grounds that agents had illegally

searched the automobile of the defendant and found there-

in the mourning doves which were the object of this prose-

cution. Pursuant to the mandate of the United States

* Court of Appeals, Chief Judge Stanley of the District, of

- Kansas entered an order suppressing all evidence obtained

in that illegal search-and further suppressed all conversa-

tions, records, identifications, researches and evidentiary

leads emanating from the search.

When the Government’s witness, Andrew Williams, was

called to testify, defendant objected to his testimony with-

out a showing by the Government that his testimony did

not result from a lead emanating by the illegal search and

‘seizure. The trial court overruled this. motion solely upon

the representation of the Government that no leads were

obtained concerning this witness from that search (App.

152).

The Court of ania held this procedure to be proper,

relying on testimony given in the motion to suppress, prior

to the first trial, that prior to the illegal search complained

of, agents had received ‘‘information from an‘informer”’

that the petitioner had been hunting in the area and had

killed the doves and that Williams was cleaning the doves,

1t

packaging them and placing them in cold storage. The

informer’s identity was refused, although repeatedly re-

quested. This reasoning, however, ignores the testimony

by the United States Game Management agent who inter-

viewed Williams that i+ was not until after the automobile

of the petitioner had illegally searched that: he knew

it contained | ‘mourning « -- or how many and that it was

only after he had obtained this information from the illegal.

search that he interviewed the witness (App. 27). Thus,

this evidence was arrived at by the exploitatién of the ille-

gal search and seizure and this testimony should have been

‘suppressed. Wong Sun v. United States, 371 U.S. 471, 488.

_ We also submit that the reliance by the Court of Appeals

on the testimony of the Game Management agents at the

‘motion to suppress is misplaced. The testimony of the

Game Management agents was that they had received the

information from persons they considered to be reliable.

There was no testimony that these ‘‘informers’’ had ever

given reliable information in the past, nor was there any

testimony of personal observation which tended to corrobo-

rate the information. This Court has recognized that an

arrest may be made, without warrant, on information sup-

plied to the arresting officer by a confidential informant who

‘ has given reliable information in the past. Draper v. United

States, 358 U.S. 307, and has held that a warrant may issue

upon hearsay information if there is ‘‘corrohoration

through other sources of information.’’ Jones v. United |

States, 362 U.S. 257, 271. However, in this case, there had

not been information in the past, nor was there any other

substantial basis for crediting the hearsay. Therefore, this

hearsay could not have supported the issue of probable

cause for arrest without a warrant. Reliance upon such

information, we submit, cannot satisfy the ‘‘heavy burden,”

-

LO LOVE LTP GOLA IC SWAPO RAE ELLY LONER OE ENS OSI RY ot Dt ty

-

.

CR ee ee Lt be ee nee » Rien . 2

.

12.

Miranda v. Arizona, 384 U.S. 436, 475, which the Govern-

ment must meet in order to establish that the constitutional.

right of the petitioner, to be free: from unreasonable

searches and seizures, did not continue to be violated.

i certainly cannot be said that this evidence was free from

taint beyond a reasonable doubt. Chapman v. California,

386 U.S. 18. We therefore submit that this Court should

grant a Writ of Certiorari to review this judgment in order

to set the standards and burden of proof which the Govern-

ment must meet in order to cléar itself of taint from an

illegal search and seizure.

2. This court in Thompson v. City of Louisville, 362

. 199, Shuttlesworth v. City of Birmingham, 382 U:S.

87 and Brown v. Louisiana, 383 U.S. 131, has held that it is

‘a violation of due process to convict and punish a man

Without evidence of his guilt.. This case presents the ques-

tion whether the ‘‘assumption”’ of facts necessary to con-

vict similarly violates the due process clause of the Fifth

Amendment. The petitioner stands convicted of possession

of mourning doves in excess of the statutory limit (48) and

of transportation of those same doves.. The only evidence

concerning possession and transportation came from the

witness Andrew Williams. Williams could not testify as

to how many doves were placed in the trunk of defendant’s

_ &utomobile. He did testify that he placed approximately

ten doves in plastic bags and that he then filled freezers

with the plastic bags. There was absolutely no evidence :

whatsoever that the total number of doves in the defen-

dant’s possession exceeded forty-eight. However, the

Court of. Appeals sustained the conviction on this count

by stating:

We think it can n safely be assumed that each “freezer”?

held more than‘one plastic bag of doves. (App. .

13

Insofar as the Government’s proof relating to- transporta-

tion is concerned, it is similarly deficient. Williams testi-

fied that he directed the petitioner as to the best way to

travel to Missouri and that he ‘‘presumed’’ it was the’

petitioner who honked at him whife he was buying gas a

jittle later.

We respectfully submit that the principles of the due ~

process clause of the Fourteenth Amendment, applicable

to the States, enunciated by this court in Thompson, Shut-

tlesworth and Brown should be made equally applicable to

the Federal Government under the due process clause of

the Fifth Amendment.

3. The decision of the Court below relating to the duty

of the District Judge to conduct an inquiry of the jurors

when newspaper articles, which are admittedly prejudicial,

appear is in conflict with the decisions of this Court in

Janko v. United States, 366 U.S. 716, Sheppard v. Maxwell,

- 384 U.S. 333, the Seventh Circuit in United States v. Ac-

cardo, 298 F.2d 133 and United States v. Largo, 346 F.2d

253; the District of Columbia in Coppedge v. United States,

272 F.2d 504, the Fifth Cireuit.in H enslee V. United States,

246 F.2d 190 and the Sixth Cireuit in Marson v. United

States, 203 F.2d 904. The trial of this case, which had been.

transferred to Fort Scott, Kansas because -of prejudicial

- publicity consumed a period of two days. In'the selection © ~

of the jury, ten prospective veniremen weré excused be- »

cause they had formed opinions based upon their exposure

to publicity. At the conclusion of the evidence, counsel for

petitioner brought to the attention of the court two news-

‘paper articles which had appeared in the Kansas City.

newspapers, which were purchased by counsel for the peti-

tioner, on the streets of Fort Scott, Kansas. These articles

(App. 280-283) referred to the petitioner as a ‘* gangland

.

PERIL YONI DUELS LUO GIRLY VAS RIN NAT Na aR, Cae ial ae A

; ‘

Ce ee

14

figure’’ and related that his prior conviétion for this offense

had been reversed by the United States Court of Appeals

for the Tenth Circuit because of an illegal search and

seizure. Defendant’s Exhibit ‘‘A’’ also reported that the

United States Attorney indicated that he had in his pos-

session evidence sufficient to convict. The second article

(Exhibit ‘‘B’’)*again referred to the petitioner as ‘‘gang-

‘land figure’’ and again related that the petitioner had been

convicted on these charges in a prior trial but the conviction

~ had been reversed because of an illegal search and seizure.

This article also erroneously reported that the District _

Judge had asked the witness Williams, ‘‘Who told you to.

have.a faulty memory?”’ .

When these articles were called to the attention of the

District Judge (App. 214-217), there was no contention

made that these newspapers were not newspapers of gen-

eral circulation in the State of Kansas, nor was there any

contention made by the Government, and we do not antici-

pate any such contention here, that these. newspapers were

not available in Fort Scott, Kansas. The Court, however,

refused to interrogate the jurors concerning their exposure

to these. articles as requested by the petitioner and based

his refusal on the reasoning that to so interrogate at this

time would be prejudicial to both the Government and the

defendant (App. 216).

The Court of Appeals made an affirmative finuing that

the articles were in fact prejudicial (Appendix A, infra,

p. 11) but found no error in the failure of the District

Court to conduct an inquiry of the jurors to determine their

exposure to these articles.

We submit that this decision is in direct conflict with the

decision of this Court in Janko v. United States, 366 U.S.

716 where this Court, based upon a confession of error by

7

'

the Solicitor General, reversed a conviction on facts strik-

ingly similar to the case-of the petitioner. The trial of

Janko lasted two days. During that two-day period, preju-

dicial articles appeared in the press describing Janko as a

‘‘former convict’’ and stating that he had been convicted

of the same offense but was granted a new trial. The Dis-

trict Judge did not conduct an inquiry of the jurors. In

confessing that this procedure was in error, the Solicitor

General stated:

‘“The nature of the newspaper ‘article in question,

especially in its reference to the outcome of the prior

trial and to petitioner as a ‘former convict’ and a ‘for-

mer employee of Kast Side rackets boss Frank (Buster)

Wortman’—a recipient of considerable adverse pu-

licity in the St. Louis press—was such as to raise sub-

stantial doubt as to whether if it did in fact reach the

jurors the inadmissible prejudicial information could

be wiped out of a juror’s mind. Marshall v. United

States, 360 U.S. 310.

‘‘In the light of the character of the extraneous in-

formation contained in the article, we think that, be-

fore the jury was finally discharged, the trial court

should have assured itself as to whether the jurors

had in fact read the article’?

The procedure suggested by the Solicitor General is fol-

lowed in the Seventh Circuit, United States v. Accardo, 298 |

F.2d 133 and United States v. Largo, 346 F.2d 253; the Dis-

trict of Columbia, Coppedge v. United States, 272 F.2d 504,

the Fifth Cireuit, Henslee v. United States, 246 ¥'.2d 190 and

the Sixth Circuit, Marson v. United States, 203 F.2d 904.

Therefore, this Court should issue its. Writ of Certiorari

to resolve this. important question in the administration of

criminal justice relating to the duty of District Judges

to ascertain the effect of prejudicial publicity upon jurors..

SORE WO LOR Ne tele?

SOE AQ ER SN

.

i ea a

:

NN

EB 2 ication nets 2

16 |

4. The decision of the Tenth Circuit relating to the

separation of jurors during deliberations is in direct con-

flict with the decision of the Seventh Circuit in United

States v. D’Antonto, 342 F.2d 667 (7th Cir. 1965) und

United States v. Panczko, 353 F.2d 676 (7th Cir. 1966).

In D’ Antonio, with no showing of actual prejudice, the

Seventh Circuit held:

At no time is it more essential that the jury should

be immunized from outside influences than when it

is engaged in deliberating upon what its verdict is to

be. During that critical period, when the jurors are

engaged in resolving vital issues between the govern-

‘ ment and the defendant, the judge certainly should not

relax the traditional safeguards against outside in-

trusion. —

In Panczko, the Seventh Circuit reiterated the decision

in D’ Antonio, even though the jury had been instructed

not to read anything or listen to anything about the case

or discuss it with anyone. 353 F.2d 676, 677, 678.

In this case, although direct ‘reliance was placed on

D’ Antomo, and Panczko by the petitioner, the Tenth Cir-

cuit, without mentioning these decisions, refused to find

prejudice in the separation. In so doing the Court stated

that the trial court properly admonished the jury in re-

gard to their conduct during separation. (Appendix A,

infra, p. 11) An examination of the record however fails

. to disclose the admonition. The Oourt only told the jurors

not to discuss the case during the luncheon recess. Noth-

ing was said about exposure to publicity. (App. 242-243).

Because of the conflict within the circuits concerning

the propriety of separation of jurors during deliberation

in- criminal cases, this Court should issue its Writ of

Certiorari. :

17

5. This court in Griffin v. California, 380 U.S. 609,

held that it was a violation of a defendant’s privilege

-against self-incrimination to allow comment by the Court

and prosecutor concerning the failure of a defendant to

testify, and in Chapman v. California, 386 U.S. 18, this

Court held that such comment was reversible error unless

it was established beyond a reasonable doubt that such a

violation of the Fifth Amendment was harmless error.

In the case at bar the petitioner did not elect to become a

witness in his own behalf. Over the objection of the de-

fendant, the Court instructed the jury that the petitioner

could not be ‘‘compelled’’ to testify. Although this in-

struction dues not allow the failure to elect to testify to

be considered as affirmative evidence of guilt, by its very

terms it implies that an innocent defendant would testify

‘and as such is violative of the principles enunciated in

Griffin. Further, the petitioner objected to the giving of

any instruction relating to his failure to elect to become a

- witness in his own behalf. We submit that this Court.

should issue its Writ of Certiorari to settle the question

whether an instruction relating that a defendant cannot be

‘‘compeiled”’ to testify and ‘‘failure’’ to testify constitutes

a prejudicial comment upon the failure of a defendant _

to testify whien he expressly objects to any charge on the

stibject whatsoever, and thereby impinges upon the de-

fendant’s Fifth Amendment rights.

tena . 18

CONCLUSION

For the foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

Maurice J. WaLsH

29 South LaSalle Street

Chicago, Illinois 60603

Joun Powers Crow Ley

105 West Adams Street

Chicago, Illinois 60603

- Attorneys for Petitioner.

es

Sore LTP IT Stat 5.80 : <onanentt PSI eer Oo ee

as its Raa egy ee eae r . S “ cS ee eee ,

ah Sauk ae 3 Z

r — z 2 e awee

:

&

a

§

&

5

APPENDIX A _

' UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARCH TERM 1968

JosEPH AIUPPA, )

: , ‘ Appellant,

eis © ae

Unirep Srares or AMERICA,

Appellee.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF KANSAS ~

ene J. Walsh (J ie ‘ewie Crowley with te on

brief) for Appellant. ,

Newell A. George for Appellee.

Before MURRAH, Chief Judge, LEWIS, Circuit Judge,

and CHRISTENSEN, District ——

MURRAH, Chief Judge —

On first appeal from a jury-waived trial and conviction

for unlawful possession and transportation of migratory

.

ee SO a ew wee

OES O Lt OI IRR, LLL EINE LE LM a AIS

PR A CITE ae cle Ta GP Re hg a OR ee NBR we “= ° ad nS

SER Scie ma A ME rr ed nei tI R ine LS oe “

App. 2°

birds, 16 U.S. 0. $703, we remanded this case for a new

trial with directions to suppress, as evidence, contraband

[560 frozen. mourning doves] seized as the fruits of an

- unlawful search. Aiuppa v. United States, 338 F.2d 146. On

- this appeal from a jury conviction and sentence on the same

counts Aiuppa asserts numerous other grounds for .re--

versal. After careful consideration of each point raised,

we affirm the judgment.

Aiuppa first contends here that the Goverment should

have been required to elect between Counts I and II of

the Information. The argument is to the effect that since

Count I charged possession of the birds ‘and Count II

charged transportation, and since it is ne¢essary to have

possession in order to transport, the two counts are neces-

sarily merged. Little need be said concerning this con-

tention, for it is conceded, as indeed it must be, that whére ©

the same act or transaction constitutes a violation of two

distinct statutory provisions, the traditional test of identity

of offenses is whether the same evidence is required to-

sustain them, See Rawls v. United States, 162 F.2d 798;

Beacham v. United States, 218 F.2d 528, afd cases cited;

Robinson v. United States, 366 F.2d 575.@We think the

_ charges here were sufficiently separate and distinct. Under. _

Count I proof was required to show that Aiuppa had in

his possession migratory birds in excess of the number

allowed by statute (24 per person). Under Count II it

was necessary to prove that he did some act in furtherance

of the transportation of such birds. Moreover, no where

in the record before us can we find where the appellant

“raised such an ‘objection at trial.

Objection is next raised to the testimony of the Govern- “

ment’s witness, Andrew Williams, on the grounds that such

testimony was the result of an investigative lead obtained

\

\

App. 3

from the illegal search. It is argued that Williams was not

interviewed by the Government until after the illegal —

search and that the Government failed to sustain the -

burden of establishing that the lead did not emanate from

that search. Suffice it to say that the record clearly re-

flects that prior to the illegal search the Government re- -

ceived information from an informer to the effect that

Aiuppa had been hunting in the Frontenac-Pittsburg, Kan-

sas, area with well-known people; that ‘‘they had killed

an enormous amount of doves’? and that Williams was

cleaning the doves, packaging them and placing them in

cold storage. Since knowledge of these facts was gained

prior to and independently from the illegal search, they

may be proved like any other facts. See Wong Sun v.

United States, 371 U.S.-471; Silverthorne v. United States,

251 U.S. 385. Such independently gained information does

not become tainted merely.because the same information

is subsequently discovered durjng an illegal search. See

Burke v. United States, 328 F.2d 399.

It is also urged that even considering the testimony of

Andrew Williams, the evidence was insufficient to prove

that Aiuppa either “possessed or transported mourning

doves in excess*of the statutory limit [24 per person or a

. total of 48 for Aiuppa and-his wife]. The argument is

that there was no direct testimony that the birds in ques-

tion were mourning doves protected under the provisions

of §703 and that the only testimony as to how many birds

were placed in Aiuppa’s automobile consisted solely of

assumptions and guesses.

Many times we have said that in determining the suf-

ficiency of the evidence’ to support a jury verdict, we are

constrained to view the evidence in the light most favorable

to the Government and to examine such evidence only to

?

- |

8

att alia

App. 4.

-%

S

determine whet the jury was justified i in finding beyond

‘a reasonable doubt that the defendant was guilty of the

offense charged. See Elbel v. United States, 364 F. 2d 127;

-VanNattan v. United States, 357 F.2d 161; Reed v. United

States, 377 F.2d 891. And, it ig equally. important to bear

in mind that in.so viewing the evidence it is not our func-

tion to determine the weight of the evidence or assess the

credibility of the witnesses. See Lucas v. United States, 355

F.2d 245, and cases cited: Applying these .rules, we can-

not say the evidence here did not support the verdict. An- |

drew Williams testified that during approximately a two-

week period-he cleaned between nine and fourteen hundred

mourning or turtle doves and placed them in plastic bags

for various hunters, including Aiuppa, in the Frontenac-

Pittsburg, Kansas, area; that these doves were then placed

in cold storage in the Dairy Land Freezer in Frontenac; |

that he placed approximately ten doves in each plastic bag

and ther filled ‘ordinary freezers’’ with the plastic bags.

Without giving linear dimensions Andrews’ indicated by

hand motions to the jury tM® approximate size of the freez-

ers or cartons in which the bags of doves were placed.’ He

also testified that he placed one of these cartons in the rear

of Aiuppa’s car and thereafter saw where three others had

been placed in the rear of the car; that Mr. and Mrs. Aiuppa

were sitting in the car and that he (Williams) directed

them as to the best way to ‘‘get out of town to Missouri’’.

By way of identifying the contraband game, Mrs. Williams

testified that she assisted her husband on at least one occa-

sion in cleaning some mourning or turtle*doves. Ronald -

Tims also testified that he assisted Mr. Williams in cleaning

turtle doves. From all of this evidence we think the jury

We think it can safely be assumed that each “freezer” held

more than one plastic bag of ten doves.

App. 5

was justified in finding that Aiuppa possessed and trans-

ported more than 48 mourning doves in violation of §703.

Complaint is next made of thé prosecutor’s commenting

on the memory of witness Williams and calling as witnesses

two other persons who had previously informed him they

would refuse to testify. During the trial, while Govern- .

ment witness Williams was testifying on-direct examination

and having difficulty recalling specific details, the prosecu-

tor asked him, ‘‘Who told you to have a faulty memory?’’

Aiuppa’s counsel immediately objected and upon motion

- the Court ordered the seared stricken and directed the

jury to disregard it.

We agree with appellant that the inienied by the prose-

-cutor was unnecessary and improper. .But, every slight ex-

cess of the prosecutor does not require that a verdict be

overturned and a new trial ordered. United States v. Borda,

285 F.2d 405. And, such an error can generally be cured,

as indeed it was here, without harmful effect upon a de-. -

fendant by the trial court’s striking the testimony of’ com-

ment and admonishing the jury to disregard it. Lawrence

v. United States, 357 F.2d 434; Drew v. Lawrimore, 380

F.2d 477, and cases cited; and see Singer v. United States,

380 U.S. 24, 38.

‘As to the allegation that the Government prejudicially

called two witnesses who. had advised the court they would

invoke the protection of the Fifth Amendment and refusé to

testify, both sides rely upon United States v. Compton,

(CA 6), 365 F.2d 1, 5, wherein the court stated:

‘Government counsel need not refrain from calling 2 a

witness whose attorney appears in court and advises.

court and counsel that the witness will claim his priv-

ilege and will not testify. However, to call such a wit-

am, counsel must have an honest belief that the wit-

LOT LY EIA NII TOE OPED HEI POO! Yor rer

Ff ‘

, a >

.

OIE LO CE WLS TE

F ol

5 ay bs

Saat) a sila

U7

~

> WE vp wtutetst .

_ App. 6.

ness has information which is pertinent to the issues

-in the case and which is admissible under applicable

rules of evidence, if no privilege were claimed. It is an

, unfair trial tactic if it appears that counsel calls such

‘a witness merely to get him to claim his privilege be-

fore the jury to a series of questions not pertinent to-

the issues on trial or not admissible under applicable

rules of evidence.’”

It is argued that there was no showing by the Government

that either of these witnesses had information pertinent .

to the issues in the case, and that the only purpose for

calling them was to get them to claim privilege before the _

jury, leaving the inference they were hiding something.

The record indicates that a Kansas attorney appeared

during the trial and informed the court that he represented

‘‘a number of witnesses who feel that they should, under

the circumstarices, refuse to testify as they might incrim-

inate themselves.’’ No where can we find where the ‘‘num-

ber of clients’’ were identified by name or that these two

witnesses were identified as being among those represented —

by the attorney. Moreover, both of these witnesses had

testified in the first trial and in this trial were asked only

a few pertinent questions, such as whether they had hunted

with the accused. Immediately upon claiming the privilege

of the Fifth Amendment, each’ was excused from further

testifying. “We cannot say that the Government. did‘not ~

honestly belreve the witnesses had pertinent information -

nor that under thé circumstances it was prejudicial to at-

tempt to elicit such information from them.

The next allegation of error is directed at the court’s

permitting two government agents each to testify to the

effect that he is employed by the Department of Interior

and is custodian of the records in his respective region;

a

| App. 7 |

that he had searched the records in his region and could

find no record of an application or permit for Aiuppa to

‘ppssess more than the statutory limit of mourning doves. -

The argument is to the effect that the best evidence would

have been the records themselves and that failure of the

witnesses to produce the records from which they made

their -search deprived Aiuppa of his constitutional right" .

to cross-examine witnesses against him. Reliance is placed

upon United States v. Rohalla (CA7), 369 F.2d 220, where-

inthe court held it was prejudicial error to permit an

F.B.I. agent to testify that he had examined a license regis-

- tration book published by the Secretary of -State’s office .

and’had determined that a certain license number,.was

issued to the defendanit, Rohalla. The court in that case

reasoned that ‘‘There was no way that defense “counsel

‘could by cross-examination of agent Williams effectively

challenge the authenticity or accuracy of a book that was

not produced in court.’’ Id. 224. But, we think that case

‘ is easily distinguished from ours. In Rohalla the Govern-

ment was attempting to prove an entry in an official book,

but the agent testifying did not purport to be the official.

custodian of the records he had examined. And, the court

was careful to note that ‘‘The book which should have been

produced in open court ‘was available to the government

and was at that time in the same building where the trial

was being conducted.’’ In our case the Government was

attempting to prove the absence of an entry in an official

set of records by the testimony of the official custodians.

Rule 27 F.R.Cr.P. and Rule 44(b) F.R.C.P. specifically pro-

vide that ‘‘A written statement that after diligent search

no record or entry of a specified-tenor is found. to exist

_ in the records designated by the statement * * * is admis-

sible as evidence that the records contain no such record

or entry.’’ And, Rule 44(c) provides that ‘‘This rule does

not prevent the proof ‘of * *.* lack of entry therein by any

a ie a ea ER Se a ae oe ee Dae te :

.

.

OSM OLLIE NTE IIE ET OLY, CN Tn Le PEON PONIES NITE EL IN TTS OT ET HDG Bes

a

App. 8

other method authorized by law.’’ Thus, ‘‘to establish the

fact: that there is no record as to a particular matter or

thing, parol evidence may be given.’’ Jackson v. United

States, 250 F.2d 897, and authorities cited. ‘We can, there-

fore, see no error in allowing the Government to negate

the issuance of a permit to Aiuppa without producing the

records. And, see also dissent in United States v. Rohalla,

supra. | | ;

Aiuppa next urges that it was — Ae error for the

trial court to instruct the jury that

‘‘The law does not compel a defendant’ in a criminal

case to take the witness stand and testify, and no pre-

sumption of guilt may be raised, and no inference of

. any kind may be drawn, frofn the failure of a defenant

+o téstify.

‘‘The legal theory for: this rule is immaterial so tor as

you are concerned, but the important and vital point,

’ for you, as jurors, is that a_defendant. has the un-

qualified right not to take the stand and you may not

in any manner draw any inference against the defen-

dant because he did not take the stand.”’ .

It is argued that the language of the instruction amounts

to a prejudicial comment on the failure of a defendant to

take the stand, prohibited in Griffin v. California, 380 U.S..

609.2 But, we cannot agree. We know, of course} that

such an instruction must be given if requested, ie. see

United States v. Schabert, 362 F.2d 369, and cases cited.

'

vs

2 In Griffin the court was concerned with the California “Comment

Statute” which provided that a defendant’s failure “to explain or

to deny by his testimony any evidence or facts in the case against

him may be commented upon by the court and by ‘counsel, and may

be considered by the court or the jury.” The Supreme Court held

- that. this violated the Fifth Amendment prohibition against self- —

incrimination.

* Gv

- fendant, it is not reversible error to do-so. Id. oink

i

App. 9

While it may be the better practice not. to charge on this -

subject unless specifically requested by a non-testifying de-

couched in such careful terms as used here, we do n ink

the charge can be said to be more than ‘‘a faithfaltcom

_pliance with the ‘implied direction’ given district” judges

by Congress to fulfill ‘their traditional duty in guiding the

jury by imdicating the consideration relevant to the latter’s |

verdict on -the facts.’’? Coleman v. United States,

367 F.2d 388, citing and quoting from Bruno v. United

States, 308 U.S. 287, 293. See also United States v. Tan-

nuzzo, 174 F.2d 177; Affronti v. United States, 145 F.2d

3.

Lastly, Aiuppa contends that it was error for the trial

court to refuse to grant a mistrial based upon prejudicial

_ newspaper publicity, or, in the alternative, to at least voir

dire the jurors whether they had read the newspaper pub-

licity and were prejudiced thereby. He further argues that

it was error for the court to permit the jury to separate for

lunch during their deliberations and prior to the verdict

- so as to expose them to the prejudicial publicity and other

possible : influencing factors.

At the conclusion of all the evidence, and =“ the jury

had been instructed, Aiuppa’s counsel moved for mistrial

on the grounds that the jury could not ‘‘reasonably give

us a fair trial’’ due to two current newspaper stories. One

of these stories was published on the first day of trial in

the Kansas City Star and was headlined on page 4, ‘‘Jury

Selected in Aiuppa Case. Chicagoan’s Trial in U.S. Dis-

trict Court in Fort Scott Kansas.’? A subheadline read

‘‘Gangland Figure Found Guilty in 1963 but Won Appeal’’.

The article went on to discuss Aiuppa’s first trial, convic-

tion and sentence and the suppression by this court of

‘‘more than 500 doves’’ found ‘‘in the trunk of the Aiuppa

SCRA ROT pI MC tsi amt: ASAE Spurs e .

°

EEL

Sean chan

.

RTA di a WN eS

App. 10

Qa

Cadillac.’? The second article was published on the second

day of trial in the Kansas City Times and was headlined,

‘“‘Two Freeze Up in Aiuppa Case; Government Witusenes

Refuse to Answer in Second Trial. Now Vague on De-

tails’’. A subheadline erroneously read, ‘‘Judge Asks

One ‘Who Told You’ to Forget Answers?’’ This article

then recited various occurrences at the trial.

Judge Templar noted that ‘‘this has always been a prob-

lem for the trial courts, and under the provisions of the

First Amendment I know of no way that this court can pre-

vent an irresponsible, newspaperman from: publishing any-

thing he wishes to publish * * *. This is apparently pre- _

senting some very serious problems for the courts * * *.”’

But, he determined that ‘‘in order to grant a mis-trial in

this case [the Court ] would have to assume that the jurors

--have read this article and that it had left an impression

and they believed what they read and took it into considera-

tion. Now, the Court is specifically instructing them not to

do this, and the Court feels that to grant your request [for

voir dire of the jury] will not be proper. In fact it would

have just the opposite effect in the establishment of a fair

trial because it would then call totheir.attention something

_ that may not have arrived at their attention.”’ Ther éafter,

the court instructed the jury to the effect that ‘‘you are .

to disregard any information about this case which may ,

‘ have been received from ‘sources outside of this trial. If

any of you have read any newspaper articles or heard any

radio broadcasts or telecasts related to this case, I want to

caution you particularly that you are to put any such in-

- formation entirely out of your consideration of this case,

and you are to confine your consideration solely to the evi-

dence adduced in this trial.’’ - 2

Each case relating to a claim’ of jury prejudice based

on newspaper articles appearing during a trial must turn

on its own special facts. See Marshall v: United States, -

-, App-11-

360 U.S. 310, 312.: We have very receatly considered the

general problems confrontitg and principles applicable to.

the majority of cases of this type concluding that ‘‘The

tight to publish a prejudicial article does not carry with it

the right of an accused to an automatic mistrial.’’.Mares

v. United States, Aug. 15, 1967, UA, os... ae We

cannot say, from the facts in this case, that the published

uiewspaper stories deprived Aiuppa of a fair trial. The.

stoMes were, to be sure, prejudicial. Bui, they-were pub-

lished in newspapers at least 100 miles from the scene of

the trial.- And, there’ is nothing in the record to indicate — .

that they were generally cir¢ulated, or for that matter cir-_

culated at all, in the vicinity of the trial or that the jurors

would likely be exposed to them outside of deliberately

seeking them out. We will not presume either exposure or - i

prejudice, i.e. see Welch-v. United States, “371. F.2d 287, nor

will we, in a case like this, impute to a jury a disregard.

of its duty to confine its verdict to the evidence adduced

at the trial. And-see Mares v. United States, supra. We

’ think the trial judge took reasonably precautionary steps

under the circumstances by instructing the jury to disre-

gard any suck publicity it might encounter.

As to. whether the jury should hav® been allowed to sep-.

arate for lunch, we have said .that ‘sequestration i imposes |

a hardship on jurors‘and should be ordered only in un-

usual cases.’’ Mares v. United States, supra. As we have

seen, there is nothing in the record to indicate that the

jurors were exposed to the newspaper articles in question.

And, we will not presume prejudice from such a separation _

- where, as here, the trial court properly admonished the

jury in regard to their conduct during separation. See

Roth y. United States, 339 F.2d 863; and see Hines v.

United States, 365 F.2d 649. |

The judgment is affirmed. |

Ds hi aL "

—%

¥

rN

Sap i

APPENDIX. B

MARCH TERM, THURSDAY, APRIL 25, 1968 .

Before Honorable ‘Alfred P. Murrah, Chief Judge, -

Honorable David T. Lewis, Circuit Judge, and

‘Honorable’ A. Sherman Christensen, District Judge.

JOSEPH Aruppa, ).

Appellant, sa) opie

: Appeal from the United

‘States District Court

| )

ee )

9243 / “V8. 3

) for the District of.

)

)

Unrrtep StaTEs OF AMERICA, Kansas.

A ppellee. )

This cause came on to be heard on the transcript of .

the record from the United States, District Court for the

District of Kansas and was argued by counsel.

On connidaredion whereof, it is ordered and edjudged ©

by this court that the judgment of the said district court in_

this cause be and the same is hereby affirmed.

It is further ordered by this court that Joseph Aiuppa,

appellant, surrender himself to the custody of the United -

States Marshal for the District of Kansas, in execution -

of the judgment and sentence imposed upon him, within

ten days from and after the date of the filing of the —

. mandate of this court in said district court.

| . A true copy”

Teste

a William L. Whittaker

< - William L. Whittaker

: Clerk, U.S. Court of

' . Pee Appeals, Tenth Circuit

(SEAL) —°

»

App. 13

APPENDIX ae

J oseph AIUPPA, Appellant,.

v.

UNITED STATES of hieclien Appellee.

: No. 7560.

* United States Court of Appeals, Tenth Circuit

November 9, _

Maurice J. Walsh, Chicago, Ill., for appellant.

Newell A. George, U. S. Atty., for appellee.

Before. MURRAH, Chief — and HILL and SETH,

Circuit Judges.

MURBAK, Chief Judge:

This is an appeal from a conviction and sentienen by the

Court, a jury having been waived, on a two-count Infor-

mation charging the’ appellant with unlawful possession |

and transportation of migratory birds (mourning doves),

in violation of 16 U.S.C. § 703.1

116 U.S.C. § 703 pvevider: “Unless and except as permitted" by

regulations made as hereinafter provided in séctions 703-711 of this

title, it shall be unlawful at any time, by any means or in any manner,

_ to: pursué, hunt, take, capture, kill, attempt to. take, capture, or kill,

possess, offer for sale, sell, offer to barter, barter, offer to purchase,

purchase, deliver for shipment, ship, export, import, cause to. be

shipped, exported, or imported, deliver for transportation, transport ;

-- or cause to be transported, carry or cause to be carried, or receive ©

for shipment, transportation, carriage, or export, any migratory bird,

or any part, nest, or egg of any,such birds, including in the terms

of the conventions between the United States and Great Britain for

the protection of migratory birds concluded August 16, 1916 (39

Stat. 1702), and the United States and the United Mexican States

for the protection of migratory birds and game mammals concluded _

February 7, 1936.”

App. 14

On pre-trial the eppellant moved, pursuant to Rule 41(e),

F.R.Crim.P. that the seized property ‘‘to-wit, ‘approxi-

mately 560 frozen birds * * * be returned to him and that

- said property be suppressed. for use as evidence,’’ on the

ground that ‘‘[s]aid unlawful search and seizure was made

in the nighttime -from an- ‘automobile. belonging to the ©

[appellant] and located upon the _ premises * * * which ©

constitute his home, and the seizure was. against his will

and without a search warrant. ”

Pursuant to a hearing on the motion to suppress, the

trial Court specifically found ‘“‘ * *-* there was a search ,

of [appellant’s] effects, the automobile’’ ; that ‘*there was —

no consent to the search of the sutemabiie, either voluntary

or otherwise’’; that ‘‘the search was not incident to a

lawful arrest’’?; and ‘‘there was a seizure.’’ The Court

then observed that the only question on the motion to

‘ suppress was ‘‘whether there. was probable cause for. this

search.’”? The Government’ agreed, and the search and

seizure was finally sustained and the seized doves admitted

in evidence against the appellant, on the ground that the |

Agents had probable cause for ae search without a:

warrant.

The search and. seizure of the mourning doves was

conducted by. Federal Game Management Agents acting»

under authority. of 16 U.S.C. § 706,° which pertinently

+

2 On trial, one of ‘the Government Agents testified as follows:

“O. [By defense counsel ] Now, are you — that is the total

of your authority as an. officer, isn’t it, you are a game manage-

ment officer for the government? - A.. Yes, sir.

“Q. You don’t hold any commission. or office as. any other

type of enforcement officer? » A. No, sir.

“QO. Or civil officer? A. No, sit. —

“Q. And you know, do you not, that these offses you were

‘investigating were misdemeanors? A. I know that, sir...

App. 15°

provides that such Agents ‘‘ * * * shall have power, with- .

out warrant; to arrest any person committing a violation

of said sections [16 U.S.C. §§ 703-711] in his presence or ~

view and to take such person!immediately for examination

- or trial before an officer or court of competent jurisdiction ;

-* * * and shall have authority, with a search warrant, to

search any place.’? The statute also authorizes judges

and commissioners ‘‘ * * * upon proper oath or affirma-

tion showing probable cause [to], issue warrants in all.

such cases.’’

On appeal the Government seems to ‘admit, as indeed it

must, that the Agents were acting solely under authority.

_ of § 706, supra. It does not contend that the search was

made as an incidént to a lawful arrest or under authority

of a search warrant.. In these circumstances, we do not

have the question of the power and authority of a private

~ person to search and seize as an incident to a lawful arrest,

as in Wion v. United States (10 C.A.), 325 F.2d 420. Nor,

do we have the question of the authority of the Agents

to..seize and then search a‘yehicle for contraband, as in

Sirimarco v. United States (10 CA), 315 F.2d 699. The

Quem seeks to sustain the search, and seizure solely

“Q. And are you familiar with Section 706 of Title 16 of

the — States —

_* * *

¢

“A. a I’m ‘ene with ‘this section. ;

“Q. And that section outlines your authority in connection

with the migratory game bird. treaties and laws under it?

“A. Yes, sir.

“Q. And did you have in mind at the time that you made

this search, this arrest and search, that you should have authority

with ‘a search warrant to search any place? . A. No, sir.

“Q. You didn’t have a search warrant of course ?

“A No, sir.” —

4

iad

TIRE RORY, 28 OETA! DI ahgin BIR ort Rg A SO IPE

: .

.

.

YOO ATRL LOLLY TNA I HS, $4

fer

4.

.

_ App. 16

- on the ground that its: Agents, acting within the scope of

their statutory authority, were impowered to search and

seize without a warrant for probable cause. On this prem- .

ise it contends that the evidence on the motion to suppress

supports the trial Court’s finding of probable: cause. |

The fallacy of this premise is that it assumes the power

to make a warrantless search on probable cause — a power

which the statute ($ 706, supra) does not grant and, by

plain implication, withholds from these special enforce-_

ment Agents. While the statute authorizes an arrest with-

out a warrant for violations committed in the Agent’s

presence or view, it does not authorize a warrantless

search. Instéad, it expressly delegates to judges and. com-

missioners authority to issue warrants in all such cases,

upon a proper showing of probable cause. It is thus mani-

festly clear, we think, that Congress deliberately withheld -

from these Agents the province of determining for them- _

selves the existence of probable cause and the exceptional

cireumstances which would justify an expeditious war-

~ rantless search: This interpretation of the statute is

consonant with the highly restricted province of any en- —

forcement officer to appraise the extraordinary circum-

stances under which a seareh without a warrant would —

be justified. See: Aguilar v. Texas, 378 U.S. 108, 84 S.Ct.

1509, 12 L.Ed.2d 723; Brinegar v. United States, 338

U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879; Johnson v. United

States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Taylor

v. United States (10 CA), 333 F.2d 721; United States

v. One 1957 Ford Ranchero Pick-up Truck (10 CA), 265

F.2d 21; and. Hart v. United States (10 CA), 162 F.2d

74. :

The motion to’suppress did not specifically refer to the

statutory limitations of the searching Agents, but it was

made pursuant to Rule 41(e) and followed the prescribed

App. 17

Form 16, F.R.Crim.P. In this form, it: was certainly

sufficient to challenge the lawfulness of the seizure and

the supportive evidence was entirely sufficient to require

the Goverriment to legally justify the search without a

warrant, The Government does not now complain of appel-

lant’s failure to specifically invoke § 706, supra. Indeed,

it does not deny that the statute is the full measure of the

Agents authority in this case. We hold that. the search

- and, seizure was conducted without statutory authority and, |

therefore, cannot be sustained for probable cause. The

motion to suppress should have been granted, and the ,

case is reversed. with directions to proceed accordingly.

V0 SRE ge

.