Petition — Lobo v. United States

L. i ;

Iu THE ms 13 1975

Supreme Court of the Anited Sthies z

ERE

October Term 1975

No. GA-] 580

MARIO LOBO,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ALBERT J. KRIEGER

Attorney for Petitioner

401 Broadway

New York, N.Y. 10013

(212) WA 5-5937

JOSEPH BEELER «

Attorney for Petitioner

2829 Bird Avenue

Coconut Grove

Miami, Florida 33133

(305) 448-0711

ar a a

Dick Bailey Printers © P.C. Box X, Staten isiand, N.Y. 10302 * Tel,: (212) 447-5356

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TABLE OF CONTENTS

Page

FEF CSP SEPT OE TCP CCE T CTT 1

PC... ree ced dee dee Pena ee ow ee ee Ue y)

I ar Se ee ee he ee y)

ee rr a weueekeeeeeeen 2

EPP OO re rrr are 3

a eh aah ee ee 4

Reasons for Granting the Writ ... .. ..........2005. 10

A-Introduction and Summary.................0006: 10

B-—The Proof, Argument and Jury Instructions

Emphasizing Co-defendant Martinez-Martinez’s

Mid-Trial Flight as Evidence of Consciousness of Guilt

Under the Circumstances Present Herein Posed a

“Substantial Threat” to Petitioner’s Confrontation

Rights and Therefore the Trial Court’s Admonitions

that the Jury Limit the Probative Force Solely to

Martinez-Martinez was an Inadequate Safeguard Under

Bruton v. United States, Even if the Inference of

Petitioner’s Guilt Arising from the Co-Defendant’s

Flight is not “‘Clear and Practically Inescapable”....... 13

ET ing doa eo caeS one eek aoe ee een 24

Appendix

Opinion of United States Court of Appeals........... 27

Judgment of the Court of Appeals ................. 30

il

TABLE OF AUTHORITIES

Page

Cases

Bruton v. United States, 391 U.S. 123 (1968) .......... 9

Chambers v. Mississippi, 410 U.S. 284(1973) .......... 13

avis v. Aladin, 40S U.S. FB CIDE) . ww sc ccvcscccces 13

Delli Paoli v. United States, 352 U.S. 232 (1957)........ 19

Douglas v. Alabama, 380 U.S. 415 (1965) ............. 14

Fiswick v. United States, 329 U.S. 211 (1946).......... 15

Harrington v. California, 395 U.S. 250 (1969) .......... 20

Nash v. United States, 54 F. 2d 1006 (2nd Cir. 1932) .... 11

Pointer v. Texas, 380 U.S. 400 (1965) ................ 13

Turner v. Louisiana, 379 U.S. 466 (1965) ............. 13

United States v. Bozza, 365 F. 2d 206 (2nd Cir. 1966) ... 18

United States v. Cassino, 467 F. 2d 610 (2nd Cir. 1972)

Cert. den. 410 U.S. U.S. 928 (1973) .....2........... 20

United States v. Sparano, 422 Fd 1095 (2 Cir. 1970) ..... 12

Wong Sun v. United States, 371 U.S. 471 (1963)s ....... 21

ill

Statutes

Title 21, United States Code, Section 173 .............

Title 21, United States Code, Section 174 .............

Other Authorities

McCormick, Evidence, Section 27] (2d Ed. 1972).......

Wigmore, Evidence, Section 276 (3d Ed. 1940) .........

Page

IN THE

Supreme Court of the Anited States

October Term 1975

No.

MARIO LOBO,

Petitioner.

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

The petitioner, Mario Lobo, respectfully prays that a

writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Second

Circuit entered in this proceeding on May 14, 1975S.

Opinion Below

The opinion of the Court of Appeals (App. A infra) is not

yet reported. No opinion was rendered by the District Court

tor the Eastern District of New York.

2

Jurisdiction

(he judgment of the Court of Appeals for the Second

Circuit was entered on May 14, 1975S (App. C, infra). This

Court's jurisdiction is invoked under Title 28 U.S.C. §1254

(1).

Question Presented

Whether the inference of a defendant’s guilt arising from

the admissions of a co-defendant (in this case the mid-trial

flight of a co-defendant in response to testimony

inculpat'ng both defendants together) must be ‘‘clear and

practically imescapable’’» — or instead only “pose a

substantial threat” to the defendant’s rights of

confrontation — before limiting instructions to the jury will

be deemed inadequate under Bruton v. United States, 391

U.S. 123 (1968).

Statutes and Rules Involved

Rule 14 of the Federal Rules of Criminal Procedure

provides:

REIIEF FROM PREJUDICIAL JOINDER

lt ut «ppears that a defendant or the government is

pretudiced by a joinder of offenses or of defendants in an

ids trreat or information or by such joinder for trial

logerh «he court may order an election or separate trials

of \oon's. vrant a severance of defendants or provide

3

whatever other relief justice requires. In ruling on a motion

by a defendant for severance the court may order the

attorney for the government to deliver to the court for

inspection in camera any statements or confessions made

by the defendants which the government intends to

introduce in evidence at the trial.

Statement of the Case

Nature of the Case and Its Disposition

A one-count superceding indictment was filed on May 8,

1974, charging that petitioner conspired with five co-

defendants and other unindicted co-conspirators during

1969 and 1970 to violate narcotics laws. 21 U.S.C. §§173

and 174. He and co-defendant Aurelio Martinez-Martinez

commenced trial together* in the United States District

Court for the Eastern District of New York before Chief

Judge Jacob Mishler and a jury. Following the testimony of

several government witnesses, co-defendant Martinez-

Martinez failed to appear and was thereafter tried in

absentia. (The Court also permitted evidence of his flight

and allowed argumentation and gave instructions that such

flight was probative of his consciousness of guilt, all over

objection of petitioner Lobo). The jury found both

Martinez-Martinez and petitioner guilty.

On January 17, 1975, petitioner was sentenced to 15

years’ imprisonment and fined $20,000. Sentencing of co-

defendant Martinez-Martinez, who has still not

reappeared, is adjourned indefinitely. There is no officially

reported, judgment or opinion of the District Court in this

case.

* The remaining co-defendants were never arrested.

4

On May 14, 1975, the Court of Appeals affirmed the

conviction.

Statement of the Facts

1. At the outset we note that no sufficiency of the

evidence issue has been or is now raised. Basically. the

government's case depended on the bargained for and

impeached testimony of several self-confessed accomplices

agreeing, in the prosecutor’s opening words, “‘to cooperate

with the government for one reason and one reason alone,

. to try to save their own skins.” (Tr. 38) The

prosecutor in summation again conceded that the

credibility of its witnesses was the most important thing the

jury would be called upon to decide (Tr. 1600) and the trial

court so instructed: ‘‘All the parties agree that this case or

the outcome of this case will turn on the credibility of

witnesses”. (Tr. 1667) Thus, petitioner’s statement of

facts does not rehearse the evidence at any great length but

instead attempts a brief overview focusing in any detail only

on those tacts directly relevant to the issues raised herein.

Such further facts as necessary are stated in the argument

in the Reasons for Granting the Writ.

Pierre Gahou, a self-confessed heroin trafficker serving a

seven-year sentence testifying under threat of prosecution

for non-cooperation and under promise of freedom from

further prosecution for cooperation (Tr. 78, 193). appeared

as the government’s first witness. In July of 1969 he was

living in Paraguay with one August Ricord. He agreed to

act for Ricord in arranging delivery of a shipment of

narcotics in New York City. After being introduced to a

5

man by the name of Mitto who, he was advised, would

rendezvous with him in New York and assist him in his

duties there, Gahou departed for the United States.

Gahou arrived in Miami, traveled to New York, and

located Mitto. After some delay he also located one Jean

Claude, as instructed, who had previously arrived from

France with a Peugeot. Shortly he encountered the

defendants, petitioner Mario Lobo and his co-defendant,

Aurelio Martinez-Martinez, who were allegedly the

American buyers of the 30 kilograms of heroin secreted in

the auto. Gahou testified that as things turned out

petitioner and Martinez-Martinez were asked to help in the

dismantling of the Peugeot. A garage was located and he,

Jean Claude (also known as Gerald Nobile), Mitto,

petitioner and Martinez-Martinez proceeded there where

Martinez-Martinez then took charge of ferreting the heroin

out of the car. During the five hours of this probe Mitto

and petitioner were absent from the garage, apparently in a

nearby tavern.

As a result of the delivery of the heroin Gahou was given

$20,000 by Mitto and returned to Paraguay. Ricord was

unhappy with this part-payment and sent Gahou back to

the United States several more times. Gahou testified that

on the first return trip he saw Mitto, petitioner and

Martinez-Martinez conversing together, and that on the

next he met with Martinez-Martinez and discussed the -

payment as well as the prospect of future direct

transactions. On his last trip, which was to Miami, Gahou

was supposedly given overnight custody of $200,000 in cash

by Mitto, intended as final payment for the 30 kilos. In the

morning Mitto retrieved the money and apparently

6

accomplished independent delivery of it to Ricord (Tr. 77-

193).

The prosecution was able to corroborate a few evidential

details of Gahou's travels with such as passport and hotel

records.

On cross-examination Gahou admitted, or claimed,

perjury at a previous federal trial |of August Ricord]. There

Gahou had purported to testify as to the very same events

in question in the instant case. Among the differences were

Gahou's claim in the earlier trial that Ricord had sent him

to America in July of 1969 to meet with one Alberto

Marchetti (Tr. 284-306). Gahou claimed that this original

complete co-operation was not in fact complete but that

when threatened with further prosecution he then told

everything true including, for the first time, the facts

inculpating petitioner and Martinez-Martinez (Tr. 318-

323).

Alfredo Aviles, a habitual offender who purported to

cooperate with the government in 1972 when he had four

separate narcotics felony cases pending against him, was

another principal witness for the government. As a result of

his co-operation he was free on a suspended sentence (Tr.

419-423). He testified in substance that starting about the

summer of 1969 and ending in December he began to

purchase a series of 15 one kilo !ots of heroin. At first they

were delivered by Martinez-Martinez and then by

Martinez-Martinez together with petitioner (Tr. 418-442).

Aviles’ testimony is not externally corroborated and

upon cross-examination it was revealed, among other

things, that the two years of his co-operation with federal

authorities has not produced one prior interview statement

i rll

sa

7

of Aviles concerning his alleged dealings with petitioner

and Martinez-Martinez.

Following Aviles’ testimony, co-defendant Martinez-

Martinez failed to appear at the next court session. Counsel

for petitioner Lobo objected to going forward without a

severance (Tr. 697). And, when the trial court intimated it

would allow proof of flight to the jury and instruct as to the

inference of guilt, counsel for petitioner objected

strenuously:

“MR. KRIEGER: That really blows Mario Lobo

right out of the courtroom, if your Honor please.

There is a horrendous fact, post-conspiracy, four

years post-conspiracy, four and a half years post-

conspiracy for which he is going to be held

accountable.” (Tr. 704)

Subsequently, over further and continued objection, the

prosecution was permitted to show that on November 7,

1974, Martinez-Martinez left the New York Hiiton and was

not heard from thereafter. It showed that just prior to this

disappearance Martinez-Martinez had discussed the

upsetting testimony of Aviles with Julio Ferrer, a defense

investigator who had accompanied Martinez-Martinez to

the trial and who was sharing a hotel room with him.

Counsel for Martinez-Martinez on cross-examination of

Ferrer attempted to show that Martinez-Martinez had

started to repeat himself, lost his sense of humor, and

became absent-minded and disoriented near the time of the

trial. (Tr. 1176-1199). And counsel attempted, with

questionable success, to lead Ferrer into testifying that

Martinez-Martinez had specifically said the Aviles

testimony “was a pack of lies” (Tr. 1187). The Court

elicited from Ferrer that Martinez-Martinez had stated

8

“Aviles couldn't testify here against him as to those

occasions that they met in the time alleged in the

indictment because at the time alleged in the indictment

Mr. Aviles was supposed to be in jail and couldn't be out in

the street’’ and that Martinez-Martinez had insisted upon

this view even after Ferrer investigated and intormed him tt

was not the fact (Tr. 1189-1190).

And the Court instructed the jury on several occasions

that if proof of knowing and intentional flight were

established, the jury permissibly could infer that the flight

resulted from Martinez-Martinez’s consciousness of guilt

(E.g., Tr. 1170), but that such evidence must not be

considered against petitioner Lobo (E.g., Tr. 1171).

Meanwhile, following Martinez-Martinez’s flight. Felia

Martinez, a four-time loser in narcotics cases who had

decided to become a co-operating individual. was called to

testify (Tr. 712-714).

Felix Martinez testified that in November of 1969 he was

put in touch with petitioner through one George Warren

Perez (who ran a travel agency) and that as a result, an

appointment was made at Perez's office where Felix

Martinez and petitioner met. Martinez-Martinez

accompanied petitioner. Felix Martinez already knew

Martinez-Martinez by the name of Julio or El Nino. Felix

Martinez testified that the three of them shortly agreed on

a narcotics deal. Eventually, Felix Martinez sold the pair

two two-kilo lots of heroin, with Martinez-Martinez taking

care of the physical arrangements (Tr. 712-743).

On cross, among other things, we learn that Felix

Martinez had once paid $120,000 to fix his own narcotics

case (Tr. 749) and obtained a 90-day “‘license” to traffic in

9

narcotics without fear of being arrested by City Police (Tr.

753).

Finally, George Warren Perez, who had also been

convicted of involvement in a large quantity of heroin (Tr.

884), testified that in approximately November of 1969

Felix Martinez came to his travel agency looking for heroin

buyers. Perez says he mentioned petitioner Mario Lobo and

arranged a meeting which was attended by Martinez,

petitioner and a man whose photograph had been

identified by Felix Martinez as Martinez-Martinez’s.

Assertedly, after the three met, petitioner told Perez that

he had made a deal (Tr. 883-890).

On cross, again, among other things, it developed that

Perez's memory of this event had been prompted and

reconstructed by Felix Martinez.

2. The Court of Appeals affirmed petitioner’s conviction.

It said both that Martinez-Martinez’s decision to flee

implied the guilt of no one but himself (App.) and that the

inference of petitioner’s guilt was “insubstantial” (App.).

It concluded that, under the Second Circuit test, limiting

instructions can be relied upon to overcome confrontation

clause violations, despite the teachings of Bruton v. United |

states, 391 U.S. 123 (1968), unless the inference of a

detendant’s guilt is “clear and practically inescapable”.

10

Reasons For Granting The Writ

A

Introduction and Summary

retitioner Lobo’s conviction was obtained at a joint trial

the most dramatic and, we submit, for the jury,

unforgettable feature of which was the flight of his sole co-

defendant (and alleged “‘lieutenant” (Tr. 1648) ) after

hearing the prosecution's first two principal witnesses

against them. The trial of course proceeded in co-

defendant Aurelio Martinez-Martinez’s absence. But

rather than leave bad-enough alone, the prosecution seized

upon and exploited this unexpected occurrence — at the

expense of petitioner.

Despite the prosecution’s knowledge that Martinez-

Martinez and petitioner were practically wed as

defendants, it adduced as evidence of guilt that Martinez-

Martinez had intentionally and knowingly fled the trial

and, moreover, that this guilty flight oecurred following the

testimony of a witness, Aviles, which testimony inculpated

both defendants (E.g., Tr. 432-433, 437-443) and which,

by extrajudicial declaration, “kind of upset” Martinez-

Martinez (Tr. 1176). The prosecutor banged home in

summation that the flight was proof Martinez-Martinez

‘Knew in his own mind that he was guilty of the charge”’.

(Tr. 1646) And the prosecutor also convinced the trial

court itself to instruct the jury immediately prior to

admission of the flight testimony that ‘‘you may infer from

such testimony together with all the other evidence. a

consciousness of guilt. In other words, that the party

fleeing felt he was guilty of the crime charged"’ (Tr. 1170)

1i

and to similarly instruct them in the main charge.*

This emphasis upon guilty flight was not lost on the jury

which interrupted its deliberations to request, inter alia,

that the Court read them the testimony concerning the

comments Martinez-Martinez made on the eve of his flight

(Court Exhibit 6) (Tr. 1717) as well as the preceding

testimony of Aviles inculpating both Martinez-Martinez

and petitioner (Tr. 1747), requests granted by the Court

(Tr. 1733, 1747).

After the precipitous flight of Martinez-Martinez

apparently affirming the truth of the testimony he had

heard, the prosecution’s rapacious evidentiary and

argumentative exploitation of the flight as an admission by

conduct, and the trial court's instructions approving its

probative value, the jury which convicted both Martinez-

Martinez and petitioner could certainly not be presumed to

have performed the ‘mental gymnastic” of insulating

petitioner Lobo from the probative force of his “‘trusted

man[s]"’ (Tr. 733) flight. Bruton v. United States, 391 U.S.

123, 132 n.8 (1968) quoting Circuit Judge Learned Hand in

Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932).

That is, the “powerfully incriminating’ conduct of co-

defendant Martinez-Martinez who stood accused “‘side-by-

side with the defendant” ‘‘posed a substantial threat to

[petitioner Lobo’s] right to confront the witnesses against

him, and this is a hazard we cannot ignore’. Bruton v.

United States, 391 U.S. at 135-137. We therefore

conclude, as did this Court in Bruton, that “[dJespite the

* The complete instructions given the jury on the subject of the

co-defendant’s flight may be found at Tr. 1169-1172, 1644-1645, and

1662-1664.

12

concededly clear instructions to the jury to disregard |co-

defendant's} inadmissible hearsay evidence inculpating

[detendant}, in the context of a joint trial we cannot accept

limiting instructions as an adequate substitute for

[defendant's] constitutional right of cross-examination.

The effect is the same as if there had been no instruction at

all.” Id. at 137 (citations omitted). Petitioner’s right to a

fair trial was prejudiced by the ‘‘substantial threat’’ to his

right of confrontation posed by the uncalled for emphasis

of his co-defendant’s flight, and his conviction should be

reversed. Bruton v. United States, 391 U.S. 123, 137

(1968).

But the Second Circuit Court of Appeals requires more

than circumstances posing a ‘substantial threat’’ to the

_ defendant’s right to confront the witnesses against him.

- Following its own decision in United States v. Sparano, 422

F.2d 1095S, 1099 (2d Cir. 1970), the court below held that to

constitute a violation of Bruton the inference of a

defendant’s guilt arising from the unconfronted behavior ot

a co-defendant “‘would have to be clear and practically

inescapable’ (App.). Certiorari should be granted to

reinstate the ‘‘substantial threat’’ rule announced in

Bruton and to rectify the decisions in the Second Circuit,

and other Circuits, which have nearly limited Bruton to its

own facts.

13

B.

THE PROOF, ARGUMENT AND JURY

INSTRUCTIONS EMPHASIZING’ CO-

DEFENDANT MARTINEZ-MARTINEZ’S MID-

TRIAL FLIGHT AS EVIDENCE OF

CONSCIOUSNESS OF GUILT UNDER THE

-CIRCUMSTANCES PRESENT HEREIN POSED

A *“*SUBSTANTIAL THREAT” TO

PETITIONER’S CONFRONTATION RIGHTS

AND THEREFORE THE TRIAL COURT'S

ADMONITIONS THAT THE JURY LIMIT THE

PROBATIVE FORCE SOLELY TO MARTINEZ-

MARTINEZ WAS AN _ INADEQUATE

SAFEGUARD UNDER BRUTON v. UNITED

STATES, EVEN IF THE INFERENCE OF

PETITIONER’S GUILT ARISING FROM THE

CO-DEFENDANT’S FLIGHT IS NOT “CLEAR

AND PRACTICALLY INESCAPABLE”.

As Mr. Justice Black stated for this Court in Pointer v.

Texas, 380 U.S. 400, 405 (1965):

‘There are few subjects, perhaps, upon which this

Court and other courts have been more nearly

unanimous than in their expressions of belief that

the right of confrontation and cross-examination 1s

an essential and fundamental requirement for the

kind of fair trial which is this countrys

constitutional goal.”’

See also, Davis v. Alaska, 415 U.S. 308 (1974) (Burger,

C.J.): Chambers v. Mississippi, 410 U.S. 284 (1973)

(Powell, J.); Turner v. Louisiana, 379 U.S. 466 (1965)

(Stewart, J.).

14

Nor can there be any dispute that petitioner was demied

both the right to confront his disappeared co-defendant

Martinez-Martinez in a physical sense and. more

importantly, the right to cross-examine him as to his flight.

the fact of it, its purport, its relationship to the Aviles

testimony, its purpose, whether it reflected a consciousness

of guilt and, if so, individual guilt or joint guilt. The

absence of Martinez-Martinez precluded cross

examination just as effectively as did the adherence to the

privilege against self-incrimination by the co-defendant in

Douglas v. Alabama, 380 U.S. 415 (1965).

The teachings of Bruton v. United States, 391 U.S. 123

(1968) were properly and timely urged to the trial court (Tr

697-698, 704-707, 982-985, 1087-1088, 1160, 1635-1645.

1696-1697) and the court of appeals below. As a

consequence of the rigid test by which the Second Circuit

has throttled Bruton, it found the prejudice to petitioner

“insubstantial” (App.). But by the test of Bruton the threat

posed to petitioner’s confrontation rights can only be

regarded as substantial.

To begin with, the testimony concerning Martinez-

Martinez’s flight was admitted against him on the premise

that it amounted to a party admission (Tr. 1007. 1027,

1087). There can be no disagreement that “[mJany acts of a

defendant after the crime seeking to escape the toils of the

law are uncritically received as admissions by conduct.

constituting circumstantial evidence of consciousness of

guilt and hence of the fact of guilt itself.” McCormick

Evidence §271 at p. 655 (2d Ed. 1972). “Flight from

justice, ay! its analogous conduct, have always been

deemed indicative of a consciousness of guilt.” 2 Wigmore.

Evidence, §276 at p. 111 (3d ed. 1940). Similarly, there can

15

be no disagreement that “‘[t)he flight of another person is

relevant so far only as the accused has connived at it;

....” Id., §276, at p. 116 (emphasis in original). And

certainly petitioner did not connive at Martinez-Martinez’s

flight nor was the flight an act in furtherance of or during

the pendency of the alleged conspiracy and thus chargeable

to petitioner. See Fiswick v. United States, 329 U.S. 211

(1946).* Thus, the testimony concerning Martinez-

Martinez’s flight was offered as and constituted an implied

confession of guilt admissible in theory only against

Martinez-Martinez. The jury was permitted to infer that

Martinez-Martinez, preyed upon by his guilt, and

confronted by his accusers, bolted Justice. ‘“The wicked

flee where no man pursueth.”’

But in fact the implied confession could only taint

‘petitioner as well as Martinez-Martinez. Unfortunately,

the co-defendants did not pretend each other’s non-

existence at trial, as Judge Mishler made of record:

“MR. KRIEGER: Because in Bruton—under

Bruton the Government couldr’t put a witness on

—- | ae to say that Martinez[-Martinez| admitted

guilt.

THE COURT: But the Government could put a

witness on the stand who said Martinez[-Martinez]

admitted guilt without implicating the other co-

defendant.

MR. KRIEGER: But in these circumstances it is

oing to implicate him because they see the two of

them sitting together, your Honor.

THE COURT: Well, if they are sitting close

together during the trial or if they walk out of the

* To further narrow the area of dispute, it should be clear that this

petitioner does not contest the trial court’s power to try his co-defendant

in absentia. Tavlor v. United States, 414 U.S. 17 (1973). The only

question is, what kind of a trial is consonant with petitioner’s own rights.

16

courtroom together, or if you see them in

conversation all through the trial together it is not

the Court's fault. That is their choice.

MR. KRIEGER: Of course they will be

together. What was there going to be, a subterfuge

practiced? That’s nonsense. Where you go into a

trial and the defendant says, “Say you don’t know

me,” something like that.

THE COURT: Why not that concept? I have

seen that practiced. I have seen cases where co-

conspirators who were lifetime buddies and who

wouldn't sit together or talk together during the

trial. But I see D pe are talking about what the jury

will look at and what the jury will see. I am telling

ree that the jury has seen Mr. Lobo—I have seen

im so | assume the jury has—talk to each other.

They never left one another when they left the

courtroom. They always came in together when

they came into the courtroom. And if that is the

kind of prejudice you are talking about I say this

was the making of the defendants.” (Tr. 705-706).

Worse than the apparent inseparability of the two

defendants at trial, however, is the inseparability of the

evidence offered against the two. If Martinez-Martinez’s

flight was taken as a confession of guilt, it was inherently

and necessarily a confession of guilt to the alleged

conspiratorial conduct of the two, for the prosecutions’s

witnesses seemed to chorus that wherever Martinez-

Martinez went petitioner was sure to follow. For more

precise example, Felix Martinez claimed that Lobo

referred to co-defendant Aurelio Martinez-Martinez

expressly as his “trusted man” (Tr. 733). And if the

‘government evidence did not tend enough to tie the pair

together, the prosecutor's summation knotted them beyond

the power of any mere limiting instruction to unravel:

“I suggest to you, Ladies and Gentlemen, that the

beauty of our case is that Mr. Martinez-Martinez

acted as Mr. Lobo’s lieutenant, that Mr. Lobo did

17

not handle narcotics, that Mr. Lobo had Aurelio

Martinez-Martinez to handle the narcotics, that

Mr. Lobo was close to the situation when it came to

the transfer of narcotics. but not too close, that

Mr. Lobo was the man who wanted to make sure

that the operation was functioning smoothly, but

at all times sensitive to his own well-being.

And that Mr. Martinez-Martinez was the

person, when necessary, that was dispatched by

Mr. Lobo to either receive the narcatics, or to

conduct the actual dealings which involved the

possession of the narcotics.

And, Ladies and Gentlemen, what it all adds up

to, I suggest to you, and what all the testimony that

you have heard in this trial means, Is that Mario

Lobo and Aurelio Martinez-Martinez were

engaged together for their own mutual profit in a

Conspiracy to traffic in heroin; that during an

eminently fair trial, evidence was developed which

proves their complicity—by “‘their,” | mean Mr.

Lobo’s and Mr. Martinez-Martinez’s complicity—

with Pierre Gahou, with Freddie Aviles, with

George Warren Perez and with Felix Martinez,

and with others, beyond all doubt; and on the basis

of that evidence, Ladies and Gentlemen, and for

no other reason, we ask you to find Mr. Lobo and

Mr. Martinez-Martinez guilty as charged.”’ (Tr.

1648-49)

Worse for petitioner even than the prosecution’s casting

the two defendants as partners in crime, however, is the

particular adhesive of the Aviles testimony. Aviles

inculpated both petitioner and Martinez (see Tr. 425, 432-

433, 437-443) specifically stating that once petitioner first

came to his apartment with Martinez-Martinez thereafter

they “practically always” used to come together (Tr. 439) .

The purpose of these alleged trips to Aviles’ apartment. of

18

course, was the joint delivery of about nine or ten separate

kilos of heroin or the collection of money in payment for the

transactions (See Tr. 431-433, 438-440). Thus, the

circumstance of Martinez-Martinez’s flight taking place

immediately following this testimony was doubly damning.

And, the government’s evidence of flight emphasized

that it was the Aviles testimony which lit Martinez-

Martinez’s fuse (Tr. 1176-1177). The prosecutor

specifically and purposefully elicited from Ferrer that

Martinez-Martinez knew Aviles, that Martinez-Martinez

on the night of his departure had a conversation with

Ferrer concerning the testimony of Aviles, and that he told

Ferrer he was “kind of upset about Mr. Aviles testifying

against him” (Tr. 1176). Finally, in summation the

prosecutor attempted to argue that Martinez-Martinez’s

flight in face of the Gahou and Aviles testimony was

“strong evidence”’ that “these witnesses in fact told the

truth” (Tr. 1632) and upon defendant’s objection (Tr.

1633-1644) the court attempted to instruct the jury to shut

its mind off to this particular probandum of the flight

evidence (Tr. 1644-1645).

But we submit that whatever the verbal clarity of this

limiting instruction may have been, the court was simply

asking too much of the jury. As stated by Judge Friendly in

United States v. Bozza, 365 F. 2d 206, 217 (2nd Cir. 1966),

“... there is a point where credulity as to the efficacy of

such instructions with respect to a confession implicating

co-defendants is overstrained, and... this point was

reached here.”

In the context we have described herein the natural and

ineluctable probative force of Martinez-Martinez’s flight

19

was to signal an affirmation of the truth asserted in Aviles’.

and probably also Gahou's, testimony. The court's

admonitions to draw inferences only against Martinez-

Martinez and not against his partner and only as to

Martinez-Martinez’s guilt and not as to the veracity of his

accusers most probably, indeed, almost certainly

amounted to “‘a futile collocation of words” and thus failed

its purpose to steer the jurors’ mental processes through the

shoals. Bruton v. United States, 391 U.S. 123, 129 (1968).

quoting Mr. Justice Frankfurter dissenting in Delli Paoli v.

United States, 352 U.S. 232, 246, 247 (1957).

In this case, the proof of the pudding is in the

deliberations. The jury interrupted its deliberations to

request, inter alia, that the Court read it the testimony of

the comments Martinez-Martinez made on the eve of his

flight (Tr. 1717). Compare United States v. Bozza. 365 F.

2d 206, 216-217 (2nd Cir. 1966) (Friendly, J.). The jury's

telltale note is replicated below, completed with its original

editing:

*Ferrar—

Testimony concerning the comments Mr.

Martinez-Martinez made on the night of Thursday

November 7th.’’ (Court Exhibit 6)

And reinforcing this graphic proof that the jury was at least

subliminally bewitched by Martinez-Martinez s reaction tc

the Aviles testimony (See Tr. 984)—and that this reaction

was doubly dam.ing—is the jury’s request short,

afterwards for testimony of conversations and events at

Aviles’ apartment only when both Lobo and Martinez

Martinez were present there (Tr. 1747). Peculiar.

We cannot and do not pretend to psychoanalvze the jurs

deliberations. Nonetheless, we unhesitatingly suggest thar

20

the deliberations at minimum spawn “real doubt . . . that

at least some of [the jurors] ‘failed to follow the court’s

instructions’ "’. United States v. Bozza, 365 F. 2d at 216.

And, under all the foregoing facts—including the

inseparability of the defendants, the inseparability of the

evidence against them, and the exceptional bond of Aviles’

testimony—it must be concluded that the evidence of

Martinez-Martinez’s flight was ‘‘clearly inculpatory”’ of

petitioner Lobo, as well as Martinez-Martinez, see United

States v. Cassino, 467 F. 2d 610, 623 (2nd Cir. 1972), cert.

denied, 410 U.S. 928 (1973), whether he directly “pointed

the finger’ at petitioner or not. See Chambers v.

Mississippi, 410 U.S. 284, 297-298 (1973). Cf, Douglas v.

Alabama, 380 U.S. 415, 419 (1965); Harrington v.

California, 395 U.S. 250, 253 (1969).

The devastating impact on _ petitioner’s trial of

emphasizing Martinez-Martinez’s flight cannot be

gainsaid. As trial counsel argued, such circumstnces have

“intense traumatic value” (Tr. 697). First, the courtroom

drama is shocked out of its routine by a real life happening:

a fleeing defendant. Second, here the ensuing testimony

stitching the two defendants together in alleged past events ”

must have continually directed the jury’s attention to the

now empty chair haunting the courtroom as a reminder of

the guilty flight. Indeed, every action by co-defendant’s

counsel must have served as a reminder. And, third, the

specific proof of, argument about, and instructions on the

Martinez-Martinez disappearance surely kept the wound

open. We even have here some specific evidence that the

trauma reached into the juryroom itself, a showing of

prejudice greater than normally is required for recognition

of confrontation rights.

21

Ordinarily, an extreme inherently prejudicial situation

Turner v. Louisiana, 379 U.S. 466, 473 (1965S). or a

“substantial threat’? to the defendant’s confrontation

rights, Bruton v. United States, 391 U.S. 123, 137 (1968).

is sufficient. We note further that the instant jury

deliberated between 11:45 a.m. (Tr. 1713) and 7.30 p.m.

(Tr. 1757) over the fate of these two defendants. Compare

United States v. Bozza, 385 F. 2d 206, 210 (1966) (jury

deliberated three and one-half hours over six defendants).

Even the trial court recognized some prejudice to Lobo (Tr.

1087). On the totality of the c:*cumstances herein, the

court surely cannot declare the confrontation error was

“harmless bevond a reasonable doubt’, Harrington v.

California, 395 U.S. 250, 251 (1969), and therefore

petitioner’s conviction should be reversed.

There is a further consideration in the balance. Although

a lay jury may well be greatly impressed by a defendant's

flight from the Halls of Justice, such evidence is of

questionable scientific reliability. Professor McCormick

has commented: »

‘‘However, in many situations, the inference of

consciousness of guilt of the particular crime is so

uncertain and ambiguous and the evidence so

prejudicial that one is forced to wonder whether

the evidence is not directed to punishing the

‘wicked’ generally rather than resolving the issue of

guilt of the offense charged.”. McCormick,

Evidence, §271 at 655 (2d ed. 1972) (footnotes

omitted).

See also Wong Sun v. United States, 371 U.S. 471, 483, n.

10 (1963). And the unreliability of the evidence of course is

compounded when the effect is to spill over prejudice on a

co-defendant without benefit of confrontation. See Bruton

22

v. United States, 391 U.S. 123, 136 (1968). On the other

hand, the government’s need to rely on such evidence at

this joint trial was minimal. That is to say, the evidence of

Martinez-Martinez’s flight was no part of the grand jury

presentation and no part of the prosecutive decision to take

the case to trial. In a sense, it was an option inherited by

the prosecutor only upon Martinez-Martinez’s departure.

But it should not have been exercised at petitioner’s

expense. ““The government should not have the windfall of

having the jury be influenced by evidence against a

defendant which, as a matter of law, they should not

consider but which they cannot put out of their minds.”

Bruton v. United States, 391 U.S. 123, 129 (1968), quoting

Mr. Justice Frankfurter dissenting in Delli Paoli v. United

States, 352 U.S. 232, 246, 248 (1957). In other words,

under the circumstances the inherent prejudice of the

evidence tended to outweigh the legitimate probative value,

further fuel for reversal.

Indeed, an existing ‘“‘viable alternative’ both to

infringing the defendant's right of confrontation by relying

on the placebo of limiting instructions and to severing the

trial, see Bruton v. United States, 391 U.S. at 133, was

evident. As stated in United States v. Bozza, 365 F. 2d 206,

217 (2d Cir. 1966): **. . . we think the circumstances here

were such as to put the Government to the

choice . . . either to accept a severance of the trial . . . or

forego use of the [evidence].’’ Because the government

tailed to forego the evidence and would not accept a

severance, it owes petitioner Lobo a new trial. United

States v. Bozza supra; Bruton v. United States, supra.

The confrontation Clause standard exacted by the

Secund Circuit, requiring a “clear and _ practically

23

inescapable”’ inference of the petitioner’s guilt from the co-

defendant's behavior, represents more than a departure

from Bruton, Turner v. Louisiana, supra, Douglas v.

Alabama, supra. It is a practically impossible standard

which sub silentio overrules Bruton. The hearsay even of a

co-defendant’s confession is rarely ‘‘inescapable’’* given

leeway to speculate as the court of appeals below permitted

itself, but the threat posed to the inculpated defendant's

rights of confrontation is nonetheless ‘“‘substantial’’. This

Court should grant certiorari either to reinstate the

standard proclaimed in its own decisions or to announce

forthrightly that Bruton v. United States establishes an

exception rather than the rule.

* Defendants can always argue the unreliability of accomplices and the

tendency to shift blame to others, “escapes” which the Court in fact

contemplated in deciding Bruton, 39] U.S. at 136.

24

CONCLUSION

The writ of certiorari should be granted.

Respectfully submitted,

ALBERT J. KRIEGER

Attorney for Petitioner

401 Broadway

New York, N.Y. 10013

(212) WA 5-5937 Appendix

JOSEPH BEELER

Attorney for Petitioner

2829 Bird Avenue

Coconut Grove

Miami, Florida 33133

(30S) 448-0711

27

UNITED STATES COURT OF APPEALS

For tHe Seconp Circuit

No. 1031—September Term, 1974.

(Argued May 13, 1975 Decided May 14, 1975.)

Docket No. 75-1034

Unitep Srates oF AMERICA,

| Appellee,

V .

Mario Loso,

Defendant-/ ppellant.

‘Before:

KaurmMan, Chief Judge,

Oaxes, Circuit Judge, and Jameson, District Judge.*

Appeal from judgment of conviction entered by the

United States District Court for the Eastern District of

New York, Jacob Mishler, J., for narcotics violations.

/# firmed.

Avsert J. Krircer, New York, New York, for

Appellant.

Pau B. Bereoman, Assistant United States At-

torney, Eastern District of New York, for

Appellee.

° Of the District of Montana, sitting by designation.

28

Per Curiam:

Lobo’s sole ground for appeal is based on the flight

during trial of his codefendant, Aurelio Martinez-Martinez.

After declaring Martinez-Martinez’s $100,000 bail forfeit,

Judge Mishler permitted the joint trial to proceed, and the

jury convicted Lobo and Martinez-Martinez tm absentia.

The jury was properly instructed that although flight is

prabative of guilt, evidence of the flight should be con-

sidered only against Martinez Martinez. Lobo contends

that the limiting instruction was inadequate in light of

Bruton v. United States, 391 U.S. 123 (1968), where a lim-

iting instruction was held insufficient to dispel the prej-

udice resulting from a hearsay confession of a defendant

inculpating his codefendant.

We fail to see, however, that Martinez-Martinez’s deci-

sion to flee implied the guilt of anyone but himself; indeed,

Lobo’s continued presence, by contrast, might have been

viewed by the jury as belief in his own innocence. It seems

clear that Bruton has no application to hearsay utterances

of a defendant’ that do not inculpate a codefendant. United

States v. Mulligan, 488 F.2d 732, 737 (9th Cir. 1973), cert.

demed, 417 U.S. 930 (1974); United States v. Davis, 487

F.2d 112, 124 (Sth Cir. 1973), cert. denied, 415 U.S. 981

(1974); United States v. Lomprez, 472 F.2d 860, 863 (7th

Cir. 1972), cert. denied, 411 U.S. 965 (1973). See also

United States v. Deutsch, 451 F.2d 98, 116 (2d Cir. 1971},

1 While a flight, even though nonverbal conduct, has been said to be an

assertion (in the form of an admission) of guilt and is therefore treated

hy some authorities as an exception to the hearsay rule, see McCormick

$4 250, 271 (2d ed. 1972), it is treated in the Federal Rules of Evidence,

App. foll. 28 U.8.C., Rule 801(a) as a “statement” but because it is

an admission as “not hearsay,’ Rule 801(d)(2)(A). See Strahorn, 4

Reconside: ation of the Hearsay Rule and Admissions, 85 U. Pa. L. Rev.

484, 564, 573, 576 (1937). Preferably it is to be viewed as conduct

offered us circuinstantial evidence rather than for its assertive, testi-

monia) value See Strahorn, supra; McCormick, supra, § 262 at 628-29.

29

cert. denied, 404 U.S. 1019 (1972); United States ex rel.

Nelson v. Follette, 430 F.2d 1055 (2d Cir. 1970), cert.

denied, 401 U.S. 917 (1971); United States v. Cusumano,

429 F.2d 378, 381 (2d Cir.), cert. denied, 400 U.S. 830

(1970); United States v. Tropiano, 418 F.2d 1069, 1080-81

(2d Cir. 1969), cert. denied, 397 U.S. 1021 (1970); United

States ex rel. LaBelle v. Mancusi, 404 F.2d 690 (2d Cir.

1968).

Thus, Lobo’s argument is reduced to the claim that his

fate and that of Martinez-Martinez were so inextricably

linked that evidence of Martinez-Martinez’s guilt implied

his own guilt as well. It is plain that in the circumstances

present here, the inference is insubstantial, see Bruton,

supra, 391 U.S: at 135-36, and the jury could easily dis-

regard it under the proper limiting instruction given by

Judge Mishler. As we said in United States v. Sparano,

422 F.2d 1095, 1099 (2d Cir. 1970):

We agree and hold that, to constitute a violation,

the inference [of defendant’s guilt] would have to be

clear and practically inescapable.

Lobo has failed to make such a showing here.

Affirmed.

30

JUDGMENT

At a stated Term of the United States Court of Appeals

for the Second Circuit, held at the United States

Courthouse in the City of New York, on the Fourteenth day

of May, one thousand nine hundred and seventy-five.

PRESENT:

HON. IRVING R. KAUFMAN, Chief Judge

HON. JAMES L. OAKES, Circuit Judge

HON. WILLIAM J. JAMESON, District Judge

(TITLE)

Appeal from the United States District Court for the

Eastern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Eastern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said

District Court be and it hereby is affirmed.

A. DANIEL FUSARO, Clerk

By VINCENT A. CARLIN

Chiet Deputy Clerk

Filed June 9, 1975