Petition — Greenberg v. United States

Su - Court, US,

PILED ®

JUN 18 1976

a

R., CLERK

In The

Supreme Court of the United States

October Term, 1975

No. 75-1827

LEON GREENBERG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Herald Price Fahringer, Esq.

Attorney for Petitioner

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

Lipsitz, Green, Fahringer,

Roll, Schuller & James

of Counsel.

Daily Record Corporation ( 202 3 ) Spauiding Law Printing

Rochester, New York Syracuse, New York

TABLE OF CONTENTS

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Constitutional Provisions Involved ...................

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Reasons for Granting the Writ:

I. The trial court’s grievous error in charging the jury

that a reasonable doubt was equivalent to a ‘‘sub-

stantial” doubt, in direct defiance of Winship, denied

petitioner due process of law. ................00005

Il. The federal grand jury’s designation of the

petitioner's alleged accomplices as unindicted co-

conspirators denied him due process of law. .........

III. Petitioner was denied due process of law by the

trial court’s refusal to hold a hearing on his complaint

that illegally seized evidence was used in a federal

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Appendix:

A. Opinion of the United States Court of Appeals for

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A-1

TABLE OF CASES

Page

Elkins v. United States, 364 U.S. 206 (1960) .......... 18

Holland vy. United States, 348 U.S. 121 (1954) ........ 10

In re grand jury subpoena of Stolar, 397 F.Supp. 520

I IE «62.555 458 vaca ka sok ecuak ee ees 14

In re Winship, 397 U.S. 358 (1970) ................. 8,9, 11

Johnson v. Superior Court, 18 Crim. L. Rptr. 2054 (Sept.

GY eae Nadav Adgeccskeneaudeenne eer ate aa 14

McClure v. County Court of the County of Dutchess, 41

A.D.2d 148, 341 N.Y.S.2d 855 (2d Dept. 1973) ..... 14

Missouri v. Davis, 482 S.W.2d 486 (Mo. 1972) ........ 10

Nardone v. United States, 308 U.S. 338 (1939) ........ 17

People v. Ferrara, 370 N.Y.S.2d 356 (Nassau County Ct.

DT 4 KOdeak suai edecds ba eeuhk Wok sekes Sens 14

People v. Lawson, 374 N.Y.S.2d 270 (Sup. Ct. 1975)... 14

People v. Mackey, 371 N.Y.S.2d 559 (Suffolk County Ct.

Sa. F5sd> 54 as Ghbs Cds AVENE Khe dhadcekese ice 14

People v. Percy, 45 A.D.2d 284, 358 N.Y.S.2d 434 (2d

Dept. 1974), aff'd, N.Y.2d ; N.Y.S.2d

I oa ot ee ae es 14

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

EN had tia uid Fads axed eee 6eerut ee euescwek mes 17

Sussman v. New York State Organized Crime Task

Force, 48 A.D.2d 154, 368 N.Y.S.2d 588 (3d Dept.

1975), aff'd, N.Y.2d , N.Y.S.2d

ES 6 Ou icine abet bas Rade kebictene aos 16

United States v. Alvero, 470 F.2d 981 (5th Cir. 1973)...

United States v. Atkins, 487 F.2d 257 (8th Cir. 1973)...

United States v. Basurto, 497 F.2d 781 (9th Cir. 1974) .. 14

United States v. Birrell, 470 F.2d 113 (2d Cir. 1972).... 18

United States v. Bridges, 499 F.2d 179 (7th Cir. 1974). 8

United States v. Briggs, 514 F.2d 794 (5th Cir. 1975) ...

Le SECERMAGLIRL CORREO ERED Cas VORee ieeaieds 12, 13, 14

United States v. Christy, 444 F.2d 448 (6th Cir. 1971) .. 8

United States v. Dardi, 330 F.2d 316 (2d Cir. 1964) .... = 14

United States v. Estepa, 471 F.2d 1132 (2dCir.1972).. 14

United States v. Fein, 504 F.2d 1170 (2d Cir. 1974) .... = 14

United States v. Fisher, 455 F.2d 1101 (2d Cir. 1972)... = 14

United States v. Gratton, 525 F.2d 1161 (7th Cir. 1975). 9

United States v. Hunt, 496 F.2d 888 (Sth Cir. 1974) .... 19

United States v. McSurely, 473 F.2d 1178 (D.C. Cir.

rere ner Crete re tere rr eT 19

Wong Sun v. United States, 371 U.S. 471 (1963) ....... 17

UNITED STATES CONSTITUTION

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In The

Supreme Court of the United States

October Term, 1975

No.

LEON GREENBERG,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, LEON GREENBERG, prays that a writ of

certiorari issue to review the judgment of the United States

Court of Appeals for the Second Circuit entered on April 19,

1976.

Opinion Below

The opinion of the Court of Appeals dated April 19, 1976, is

unreported, but is printed in Appendix A, infra, at p. A-1, et seq.

2

Jurisdiction

Following a jury trial, petitioner was found guilty in the

United States District Court for the Southern District of New

York of conspiracy and mail fraud in violation of §§ 371 and

1341 of Title 18 of the United States Code. On January 21,

1976 petitioner was fined $9,000 and placed on probation for

two years. :

On April 19, 1976, the Court of Appeals for the Second

Circuit affirmed petitioner’s conviction.

This petition for a writ of certiorari is filed within sixty days

following that affirmance, an extension of time having been

granted by Mr. Justice Marshall in an Order dated April 30,

1976. The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254/1).

Constitutional Provisions Involved

AMENDMENT IV

The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures,

shall not be violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affixmation, and par-

ticularly describing the place to be searched, and the persons or

things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval forces, or

in the Militia, when in actual service in time of War or public

danger; nor shall any person be subject for the same offence to

be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law ;

nor shall private property be taken for public use, without just

compensation.

Statutes Involved

§ 371. Conspiracy to commit offense or to defraud United

States

If two or more persons conspire either to commit any offense

against the United States, or to defraud the United States, or any

agency thereof in any manner or for any purpose, and one or

more of such persons do any act to effect the object of the

conspiracy, each shall be fined not more than $10,000 or im-

prisoned not more than five years, or both.

If, however, the offense, the commission of which is the object

of the conspiracy, is a misdemeanor only, the punishment for

such conspiracy shall not exceed the maximum punishment

provided for such misdemeanor.

§ 1341. Frauds and swindles

Whoever, having devised or intending to devise any scheme or

artifice to defraud, or for obtaining money or property by means

of false or fraudulent pretenses, representations, or promises, or

to sell, dispose of, loan, exchange, alter, give away, distribute,

supply, or furnish or procure for unlawful use any counterfeit or

spurious coin, obligation, security, or other article, or anything

represented to be or intimated or held out to be such counterfeit

or spurious article, for the purpose of executing such scheme or

artifice or attempting so to do, places in any post office or

authorized depository for mail matter, any matter or thing

whatever to be sent or delivered by the Post Office Department,

or takes or receives therefrom, any such matter or thing, or

knowingly causes to be delivered by mail according to the

direction thereon, or at the place at which it is directed to be

delivered by the person to whom it is addressed, any such matter

cre

4

or thing, shall be fined not more than $1,000 or imprisoned not

more than five years, or hoth.

Questions Presented

1. Whether the trial court’s grievous error in charging the

jury that a reasonable doubt was equivalent to a “substantial”

doubt, in direct defiance of Winship, denied petitioner due

process of law.

2. Whether a federal grand jury has authority to designate

persons as “unindicted co-conspirators”’.

3. Whether petitioner was denied due process of law by the

trial court’s refusal to hold a hearing on his complaint that

illegally seized evidence was used in a federal prosecution.

STATEMENT OF FACTS

The petitioner, Leon Greenberg, a lawyer and president of the

Monticello Raceway in Sullivan County, New York, was

charged in a five-count indictment with the crimes of conspiracy

and mail fraud. The alleged crimes centered around the bar

mitzvah held for petitioner's son on November 7, 1970 at the

Grossinger Hotel. Paul Grossinger, a long-time friend and a vice

president of the Raceway, prevailed upon petitioner to hold his

son's bar mitzvah at the Grossinger resort. Petitioner contended

that Grossinger promised to dorate the food, and he agreed to

pay all other expenses, which nicluded the cost of flowers, or-

chestra, magician, photographer, gratuities, and all other in-

cidental expenses.

As of November 8, 1970, the day after the bar mitzvah,

Gossinger’s records showed the outstanding retail price of the

bar mitzvah as $3,171.* In the spring of 1971 the petitioner

*The retail charges of $3,171 included a gratuities charge of $1,200 which

petitioner proved he paid on the day of the bar mitzvah. That would reduce

the bill to $1,971. All the figures are rounded off to the nearest dollar.

received his first bar mitzvah bill from Grossinger’s in the

amount of $5,843. The statement was not itemized and did not

correspond with the Grossinger ledger card containing charges

of $3,171.

Since the bar mitzvah bill did not correspond with his un-

derstanding vi the financial arrangements, on April 6, 1971

petitioner wrote a letter to Grossinger’s which simply stated,

“Will you please verify the correctness of this bill?”

The Horsemen’s Outings

Over the years the Raceway encouraged its drivers to race at

its track by entertaining them rather lavishly. Every Wednesday

during the summer of 1970 the horsemen — trainers, drivers,

grooms and other racetrack personnel — were invited to

Grossinger’s or another resort hotel in Sullivan County for

cocktails, lunch, golf and dinner.

Peter Donnolly, the golf pro at Grossinger’s in 1970, testified

that there were about six horsemen’s outings held at

Grossinger’s on Wednesdays throughout the summer of 1970.

He recalls that 20 to 40 horsemen from the Raceway attended

each outing. Other witnesses testified to the occurrence of the

outings, including various horsemen, the Raceway’s comptroller

and Grossinger’s assistant maitre d’. The only witness who

testified that the outings could not have occurred was Paula

Bergman, a former employee of Grossinger’s who admitted on

cross examination that her testimony was based on the absence

of records and not on her personal knowledge. She worked in the

golf clubhouse during 1970 and contended that a separate score

would be made up for each golfer, whether he was a horseman or

a guest. However, petitioner offered proof that special events

such as the horsemen’s outings were not normally recorded on

golf slips.

When petitioner realized that the Raceway had never been

billed for the horsemen’s outings held during July and August of

6

1970, he contacted Grossinger who in turn told his comptroller,

Bernard Roth, to call petitioner for the details of the outings for

billing purposes. After Roth had computed the five bills, he

contacted petitioner and told him that the total was ap-

proximately $3,000. Because petitioner understood the affairs to

have consisted of lunch, cocktails, golf and dinner for at least

168 horsemen, he believed that the Raceway owed Grossinger’s

approximately $5,000. Grossinger’s eventually billed the

Raceway $4,856 for the outings.

The Raceway’s check in payment of the horsemen’s bills was

drawn on October 29, 1970 but held for Executive Committee

approval. It was signed at the Executive Committee meeting by

Sidney Sussman, the chairman of the board of Monticello

Raceway, and petitioner. When the check, in the amount of

$4,856.16, was received by Grossinger’s, it was posted under

the account of Sullivan County Harness Racing Association.

The Bar Mitzvah Bill

Paul Grossinge-, without ever talking to petitioner, instructed

Bernard Roth to reduce the bar mitzvah bill by the amount of

the check received by Grossinger’s for the horsemen’s outings.

At the trial Grossinger freely admitted that his action was based

upon a conclusion he reached himself. A misunderstanding

apparently arose when, in the summer of 1970, petitioner had

indicated to Grossinger that he had executive committee ap-

proval for the billing of the horsemen’s outings. Petitioner paid

the balance of $987 by his personal check.

The Investigation

In January, 1974 the New York State Organized Crime Task

Force (Task Force) acting under authority of New York

Executive Law §70-a, launched an investigation into the

running of superfecta races at Monticello Raceway. No in-

dictments were returned accusing anyone of misconduct con-

7

cerning the handling of superfecta races. When this phase of the

investigation was closed, the Task Force turned on petitioner

and began looking into his personal affairs. The bar mitzvah

records were examined and Paul Grossinger contacted. Paul

Grossinger resigned as a director of the Raceway and returned

the Raceway’s $4,856 check. He then went to the Task Force

and testified under an alleged grant of immunity. All in-

formation was turned over to the United States Attorney’s office.

A five-count indictment was returned against the petitioner,

charging him with conspiracy under §371 of Title 18 and mail

fraud under §1341. Paul Grossinger and Bernard Roth were

named in the indictment as unindicted co-conspirators.

The petitioner was convicted on November 5, 1975 and was

fined $9,000 and placed on probation for two years. The United

States Court of Appeals for the Second Circuit affirmed his

conviction on April 19, 1976.

8

REASONS FOR GRANTING THE WRIT

The trial court’s grievous error in charging the jury that

a reasonable doubt was equivalent to a “substantial” doubt,

in direct defiance of Winship, denied petitioner due

process of law.

The question which dominates this petition involves the trial

court's misinstruction on the important doctrine of reasonable

doubt. In direct defiance of this Court's recent pronouncement

in In re Winship, 397 U.S. 358 (1970) the court misadvised the

jury:

“A reasonable doubt is one that arises out of the

evidence in the case or the lack of evidence. It is a doubt

which is substantial and not merely shadowy” (A-635).*

Counsel specifically objected to this charge. The jurors, after

deliberating for over a day, asked to hear, once again the judge's

“interpretation” of a reasonable doubt. The court repeated the

above instruction. Certainly, this provocative event did the most

to ruin petitioner's case. This version of the reasonable doubt

instruction is constitutionally intolerable and demands im-

mediate corrective action. This wayward instruction is in direct

conflict with the decisions of other circuits which have

specifically rejected the ‘‘substantial doubt” precepts. United

States v. Bridges, 499 F.2d 179 (7th Cir. 1974); United States

v. Atkins, 487 F.2d 257 (8th Cir. 1973); United States v.

Alvero, 470 F.2d 981 (5th Cir. 1973); United States v. Christy,

*Refers to pages of appendix filed in United States Court of Appeals for the

Second Circuit.

9

444 F.2d 448 (6th Cir. 1971).* Consequently there is a

dramatic position in the circuit courts that must be resolved if

the reasonable doubt doctrine is to remain viable and

meaningful.

In 1970 this Court reaffirmed its devotion to the con-

stitutional proposition that a criminal charge must be proven

beyond a reasonable doubt. In re Winship, supra. There the

Court, in majestic language, proclaimed:

“The reasonable doubt standard plays a vital role in the

American scheme of criminal procedure. It is a prime

instrument for reducing the risk of convictions resting on

factual error. The standard provides concrete substance

for the presumption of innocence. . . . [I]t ‘impresses on

the trier of fact the necessity of reaching a subjective

state of certitude of the facts in issue.’

* * *

“It is also important in our free society that every in-

dividual going about his ordinary affairs have confidence

that his government cannot adjudge him guilty of a

criminal offense without convincing a proper factfinder

of his guilt with utmost certainty” (397 U.S. at 363-64;

emphasis supplied.)

The Winship proclamation has substantially undermined

those authorities that have approved the “substantial doubt”

instruction which has already spread throughout the in-

structions given in the Second Circuit. Such a charge drastically

* In Christy, the court declined to reverse because of the district court's overall

charge on reasonable doubt, but declared, “Were this the District Court's

only reference to or explanation of the concept of reasonable doubt, the

unfortunate inclusion of the questioned word would present an issue of some

magnitude” (444 F.2d at 450). See also United States v. Gratton, 525 F.2d

1161 (7th Cir, 1975), where the court approved the charge ‘‘A ‘reasonable

doubt’ means a doubt based on reason and it must be substantial rather than

speculative. ..."’ Since no objection was registered to this instruction, the

court declined to reverse the conviction.

10

depreciates the constitutional safeguard of “‘proof beyond a

reasonable doubt”’.

Nowhere in any of this Court’s pronouncements on

reasonable doubt is there the slightest suggestion that a juror

must have a “substantial dount”’ to entitle a defendant to an

acquittal.* Such an instruction overstates the degree of un-

certainty required for a reasonable doubt. A juror might well

have a doubt that is reasonable, under all the circumstances of a

case, but in his mind it may not be “‘substantial.’’ The layman’s

understanding of the term “substantial’”’ is that of being great,

significant, or large. These terms are not compatible with

“‘reasonable.”’ **

The “reasonable doubt” injunction mandates that the

prosecution must overcome all of the jury's reasonable doubts —

not ‘substantial doubts’’ — before a citizen can be condemned

forever to a criminal conviction. The practical effect of the

‘substantial doubt” direction is the unauthorized power it gives

a convicting juror to shout down uncertain jurors by declaring

‘the judge says your doubt has to be substantial!’’ Certainly

*In Holland y. United States, 348 U.S. 121 (1954), this Court was met with

the argument that the trial judge improperly charged as to reasonable doubt

when he defined it as “the kind of doubt ... which you folks in the more

serious and important affairs of your own lives might be willing to act upon”

1348 U.S. at 140). However, Holland is distinguishable because the Court

was not called upon, as it is here, to rule upon the inequivalency of a “sub-

stantial doubt” and a “reasonable doubt”.

**In Missouri v. Davis, 482 S.W.2d 486, 490 (Mo. 1972) Justice Seiler of the

Missouri Supreme Court, in a concurring opinion, observed:

Reasonable’ and ‘substantial’ are not synonymous, as can be seen by

referring to any of the standard dictionaries. The point was well put by

counsel in argument recently where he pointed out that if one had to

undergo a serious operation and were querying the doctor as to the

prospects for a successful outcome, how differently the person would

feel if the doctor told him there was only a reasonable chance of success

as opposed to being told there was a substantial chance of success.”

1]

such a charge puts jurors who are unconvinced at a decided dis-

advantage. Requiring a dissenting juror to overcome a “‘sub-

stantial’’ doubt cannot be reconciled with all that has been said

by this Court on the doctrine of reasonable doubt. Intrusion of

the term “substantial” into this rule wreaks havoc with the

principle on which our notion of proof beyond a reasonable

doubt rests.

Today more than ever we must acknowledge that any person

facing the awesome force of a federal prosecution is in great

jeopardy even when innocent. Thus, the constitutional emblem

of proof beyond a reasonable doubt is desperately needed to

protect defendants exposed to the inclemencies of a law-and-

order mood which is reaching epidemic proportions in this

nation. That great barricade must be refortified to protect

defendants against jurors who are forced to live in a world filled

with wailing sirens, drop locks and meaningless violence.

The only antidote a defendant has against these fears, which

prowl the jury deliberation room in large cities, threatening the

security of dispassionate verdicts, is the reasonable doubt parole.

A continued policy of appeasement will bring about the downfall

of this great rule.

In this close case, petitioner's fate trembled in the balance for

two days while the jury deliberated. Then, at a critical moment

in the life of this trial, the jurors asked for an explanation of

reasonable doubt and were met with the “substantial doubt”’

mandate. At that moment the petitioner’s conviction was or-

dained and this case was destined to reach this Court.

Under the centrifugal force of Winship and the authorities

contained in this brief, the highly unpredictable word “sub-

stantial’ should be forever cleansed from the reasonable doubt

edict. This case, more than any other, has imperiled that great

doctrine designed to protect all men from unjust convictions.

Thus petitioner's writ of certiorari should be granted.

12

The federal grand jury’s designation of the petitioner's

alleged accomplices as unindicted co-conspirators denied

him due process of law.

This case raises a question of constitutional proportions

involving the authority of a federal grand jury to designate

persons as “unindicted co-conspirators."” When the grand jury

accused Leon Greenberg of a criminal offense it fulfilled its

investigative purpose. Beyond that, the grand jury had no

authority to designate other persons as co-conspirators. Its

powers are not defined in the Constitution or by Congress, but

rather are delineated by the federal courts. These well-defined

functions do not include predatory, public accusations directed

at persons not named as defendants. Nevertheless, the grand

jury labeled both of the petitioner's alleged accomplices as

“unindicted co-conspirators.” The trial judge, in instructing the

jury, on 19 separate occasions read this designation to the jury.

Obviously this was highly prejudicial because both of the alleged

accomplices (Bernard Roth and Paul Grossinger) testified at the

petitioner's trial and denied any wrongdoing charged in the

indictment.

There is absolutely no authority allowing a federal grand jury

to issue a report accusing persons not indicted of criminal

conduct. There is no power for a grand jury to achieve by indict-

ment what it cannot do by issuing a public report. In United

States v. Briggs, 514 F.2d 794 (5th Cir. 1975), the Fifth

Circuit, in an unimpeachable decision, declared:

“We have found no reported opinion or scholarly

commentary, and the government suggests none,

contending that a federal grand jury is empowered to

accuse a named private person of crime by means of an

indictment which does not make him a defendant” (514

F.2d at 801).

13

The Briggs opinion combines dramatic narrative with a

scholarly treatise on the powers of grand juries. The bright glare

from this fearless opinion has lit up the whole legal firmament of

grand jury proceedings. The Fifth Circuit, without flinching,

finally concluded:

“The grand jury has been variously viewed as an arm of

the court, as an instrumentality of the people, and as an

adjunct of the judiciary but with the power to act, within

certain bounds, independently of the traditional

branches of government. We conclude, without the

necessity of adopting a particular characterization, that

a federal court has the power to expunge unauthorized

grand jury action” (514 F.2d at 806-07).

Although in the Briggs case the “unindicted co-conspirators”

moved to have their names expunged from the indictment, the

principle applies with equal force here. The harm occasioned by

the court in repeatedly describing Grossinger and Roth as

“unindicted co-conspirators”, seared into the minds of the jurors

their unproven complicity which eventually wrongly inculpated

Leon Greenberg.

The defense urged throughout the trial that no one had

committed any criminal acts and that the outings had actually

taken place. Thus, it was absolutely devastating to have the

Government's two leading witnesses, who gave testimony

favorable to the defense, impugned as ‘“‘unindicted co-

conspirators.” The jury was left with the distinct impression that

since Grossinger and Roth were conspirators and accomplices,

the petitioner must have been implicated also. For that matter,

this repeated denouncing of the witnesses as “unindicted co-

conspirators” must have detonated the jury’s worst prejudices

and caused them to come back and ask the understandable

question why these two men were not prosecuted if they were in

fact co-conspirators and accomplices.

The Briggs decision sounds a clarion of rationality during a

time when grand juries throughout the country have ravaged

14

thousands of witnesses, assailing them as “unindicted co-

conspirators” and leaving them homeless and searching for a

rule to rescue them from this calamity. This craven practice has

gone on without any legal consensus for too long.

The Court must not be lured away from this significant issue

by any claim that grand juries have been engaging in this

practice for a long time. We are proud to acknowledge that

recently our courts have bravely ventured down the mean streets

of grand jury malpractices and have been appalled by what was

seen. A new testament is now being written bringing to a stop

these subversive grand jury practices.* The Briggs case is

compatible with this philosophy and advances its objectives.

In a case as close as this, there was no excuse for drenching

the jury with the constant designation of two helpful witnesses as

*The Second Circuit has halted the misleading use of hearsay before grand

juries in United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972); it has also

foreclosed a grand jury from acting beyond the end of its 18-month statutory

life, United States vy. Fein, 504 F.2d 1170 (2d Cir. 1974); McClure v.

County Court of the County of Dutchess, 41 A.D.2d 148, 341 N.Y.S.2d 855

(2d Dept. 1973). Other courts have required the legal instructions given to

grand juries to be recorded, People v. Percy, 45 A.D.2d 284, 358 N.Y.S.2d

434 (2d Dept. 1974), affd, N.Y.2d , N.Y.S.2d (Jan. , 1976).

New York courts have now insisted that legal instructions furnished grand

juries must be accurate, People v. Mackey, 371 N.Y.S.2d 559 (Suffolk

County Ct. 1975); People v. Ferrara, 370 N.Y.S.2d 356 (Nassau County

Ct. 1975); People v. Lawson, 374 N.Y.S.2d 270 (Sup. Ct. 1975). The

California Supreme Court has held that a prosecutor has a duty to inform a

grand jury about exculpatory evidence, Johnson v. Superior Court, 18 Crim.

L. Rptr. 2054 (Sept. 19, 1975). The abuse of grand jury process is being

stopped, United States v. Dardi, 330 F.2d 316 (2d Cir. 1964); United States

v. Fisher, 455 F.2d 1101 (2d Cir. 1972); In re grand jury subpoena of

Stolar, 397 F.Supp. 520 (S.D.N.Y. 1975). The practice of knowingly

presenting perjured testimony before a grand jury is being halted, United

States y. Basurto, 497 F.2d 781 (9th Cir. 1974); see also Frankel and

Naftalis, Grand Jury — An Institution on Trial THE NEW LEADER,

November 10, 1975, Vol. LVIII, No. 22; The New York Staie Investigation

Commission conducted hearings in New York City and Buffalo, New York,

in January of 1976 concerning grand jury leaks.

15

“unindicted co-conspirators.” The jury was left with the im-

pression that since the other two persons must have committed

the crime, the petitioner did also. The petitioner’s presumption

of innocence was severely lacerated by these unfortunate and

relentless remarks.

The establishment of fair trials is one of the most cherished

policies of our civilization. Surely good common sense and logic

require that this regrettable practice be discontinued. There is

absvlutely no authority for it, and it does not warrant approval.*

For all these reasons, the petition for a writ of certiorari should

be granted.

Il.

Petitioner was denied due process of law by the trial

court’s refusal to hold a hearing on his complaint that

illegally seized evidence was used in a federal prosecution.

Lurking immediately beneath the surface of this case is a

question of constitutional proportion sadly neglected by both the

trial court and the Second Circuit. Evidence illegally acquired

by the state permeated the federal prosecution and fatally

tainted it. To fully understand the petitioner’s complaint that

the evidence, insufficient though it is, in support of his con-

viction was the fruit of the illegal activities of the New York

*If this Court were to decide that it is still appropriate to designate a person in

an indictment as an ‘‘unindicted co-conspirator,’’ certainly it should hold that

it is inappropriate to read that language to the jury. As for the instruction on

the accomplice rule, this should never be given automatically. This advice is

similar to that of the defendant taking the witness stand. The views of lawyers

differ as to the advantage or disadvantage of that instruction. Consequently,

most federal judges will seek permission to give the instruction or otherwise

withhold it. The same rule should apply to the accomplice instruction. It is

this lawyer's view that a defendant in the federal courts profits very little from

the accomplice instruction since there is no requirement of corroboration.

What is much more devastating is to have the jury told that witnesses are

accomplices, implying the defendant's guilt.

16

State Organized Crime Task Force (““Task Force”) requires a

brief statement of the facts relative to the earlier investigation.

In January of 1974 the Task Force launched an investigation

into alleged irregularities in the running of superfecta races at

the Monticello Raceway as well as other racetracks in New York

State. The 18-month investigation ended without anyone being

charged with any misconduct.* Hiowever, the Task Force,

undaunted by this failure, veered off in a different direction and

began rummaging through the persona) affairs of petitioner. In

its efforts to obtain information about him, the Task Force

served subpoenas upon variovs members of the Raceway’s

Board of Directors on June 24, 1974. Applications were im-

mediately made to quash the subpoenas because the records

sought were irrelevant to any investigation which the Task

Force was authorized to conduct. Justice Harold Hughes, of the

Supreme Court of Albany County, quashed the subpoenas on

the grounds that the Task Force’s inquiry was unauthorized in

that its investigation did not involve organized criminal activity

that crossed county or state lines.**

However, while Justice Hughes’ decision was being appealed

by the Task Force, the records seized from the Raceway were

impounded by the state authorities. This evidence was turned

over to the United States Attorney for the Southern District of

New York and submitted to the grand jury which indicted Leon

Greenberg. The use of this poisoned evidence by the Govern-

*The Raceway has never been charged with any misconduct by the New York

State Harness Racing Commission, the Federal and State Securities and

Exchange Commissions, the State Liquor Authority, the Department of

Labor, the State Department of Taxation, or the United States Internal

Revenue Service, all of whom have jurisdiction over the Raceway.

**The Appellate Division, Third Department, unanimously upheld Justice

Hughes’ well-considered decision. Sussman vy. New York State Organized

Crime Task Force, 48 A.D.2d 154, 368 N.Y.S.2d 558 (3d Dept. 1975),

affd, N.Y.2d , N.Y.S.2d_ (April 1, 1976).

17

ment was challenged in the petitioner’s omnibus motion filed in

advance of his trial. The court denied a hearing on this issue and

did not discuss in any way the rejection of this complaint.

Leon Greenberg's motion to suppress the evidence turned

over to the federal grand jury should have been granted on the

grounds of the “fruit of the poisonous tree” theory.

In the landmark decision of Silverthorne Lumber Co. v.

United States, 251 U.S. 385 (1920), the Government had seized

“without a shadow of authority” the defendant’s books, papers

and documents. Pursuant to a court order, the defendant

secured the return of its items; however, the Government had

photographed the documents while they were in its possession

and used the photographs to obtain: a subpoena requiring the

defendant to produce the originals at trial. The court reversed

the judgment stating:

“The essence of a provision forbidding the acquisition of

evidence in a certain way is that not merely evidence so

acquired shall not be used before the Court but that it

shall not be used at all”’ (251 U.S. at 392).*

In the instant case, petitioner would have been able to show

that the bulk of the evidence submitted to the federal grand jury

was gathered unlawiully by the state investigatory agency. Even

the testimony of Paul Grossinger was illegally acquired through

this unauthorized investigation and should have been

unavailable to the federal government as well as that of Bernard

Roth.

*Silverthorne was followed by Nardone vy. United States, 308 U.S. 338

(1939), where the Court refused to permit the prosecution to avoid an inquiry

into its use of information gained by illegal wiretapping noting that:

“Here. as in the Silverthorne case, the facts improperly obtained do not

‘become sacred and inaccessible. If knowledge of them is gained from

an independent source they may be proved like any others, but the

knowledge gained by the Government's own wrong cannot be used by

it’ simply because it is used derivatively”’ (308 U.S. at 341; emphasis

supplied). See alo Wong Sun v. United States, 371 U.S. 471 (1963).

18

In Elkins v. United States, 364 U.S. 206 (1960), this Court

defined the question as follows: ‘May articles obtained as the

result of an unreasonable search and seizure by state officers,

without involvement of federal officers, be introduced ... in a

federal criminal trial?” (364 U.S. at 208).*

There can be no doubt that the Elkins prohibition of the use

of evidence procured by unlawful search and seizure conducted

by state officials applies equally to evidence obtained through

the use of illegal state subpoenas.

Recently, in United States v. Birrell, 470 F.2d 113 (2d Cir.

1972), the Second Circuit, in a similar case, suppressed evidence

unlawfuliy acquired by the Government from state officers and

dismissed the indictment. In Birrell papers and records were

*In holding that evidence obtained by state officers during a search whic |i, if

conducted by federal officers would have violated the defendant's immunity

from unreasonable searches and seizures under the fourth amendment is

inadmissible over the defendant's timely objection in a federal criminal trial,

the Court noted:

“The very essence of a healthy federalism depends upon the avoidance

of needless conflict between state and federal courts. Yet when a

federal court sitting in an exclusionary state admits evidence lawlessly

seized by state agents, it not only frustrates state policy, but frustrates

that policy in a particularly inappropriate and ironic way. For by

admitting the unlawfully seized evidence the federal court serves to

defeat the state's efforts to assure obedience to the Federal Con-

stitution.

* * *

“Free and open cooperation between state and federal law enforce-

ment officers is to be commended and encouraged. Yet that kind of

cooperation is hardly promoted by a rule that implicitly invites federal

officers to withdraw from such association and at least tacitly to en-

courage state officers in the disregard of constitutionally protected

freedom. If, on the other hand, it is understood that the fruit of an

unlawful search by state agents will be inadmissible in a federal trial.

there can be no inducement to subterfuge and evasion with respect to

federal-state cooperation in criminal investigation. Instead, forthright

cooperation under constitutional standards will be promoted and

fostered” (364 U.S. at 221-22).

19

seized from an apartment occupied by the defendant’s girl friend

in pursuit of a murder investigation. Since the federal govern-

ment was interested in Birrell, a legendary figure in that Circuit,

it dispatched a federal agent to examine the records held by the

police. The special agent found several documents which

ultimately led to Birrell’s indictment for perjury. Since the

Government did not acquire a proper warrant to obtain this

information, the court concluded that the evidence must be

suppressed and the indictment had to be dismissed.

Our situation is no different. We would have been able to

show that the Government’s whole case in this prosecution was

originally assembled by the state Task Force in a proceeding

later determined to be unlawful because that agency was acting

outside its jurisdiction.* United States v. Hunt, 496 F.2d 888

(Sth Cir. 1974).

Here the Government plunged into these protected precincts

without regard for the consequences. They must now bear the

responsibility for that misadventure. For if these gross violations

of the fourth amendment are ignored, the deterrent effect of our

constitutional rules governing unlawful searches by both the

state and the federal government will be significantly un-

dermined. To lessen the threat to every man’s security and

privacy from low visibility searches, this petition for certiorari

must be granted.

*In United States v. McSurely, 473 F.2d 1178 (D.C. Cir. 1972), the Court of

Appeals held that where subcommittee subpoenas (which formed the basis of

a contempt charge) were based on an investigator's illegal seizure of

defendant's property obtained by state officials through an unconstitutional

search, the evidence should have been suppressed. The McSurely case

resembles our own and should compel this Court to reach the same con-

clusion.

20

CONCLUSION

For all these reasons, the writ of certiorari should be granted.

June, 1976

Respectfully submitted,

Herald Price Fahringer, Esq.

Attorney for Petitioner

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

Lipsitz, Green, Fahringer,

Roll, Schuller & James

of Counsel.

APPENDIX

A-l

APPENDIX A

Opinion of the United States

Court of Appeals

UNITED STATES COURT OF APPEALS

For the Second Circuit

No. 903—September Term, 1975.

(Aruged April 6, 1976 Decided April 19, 1976.)

Docket No. 76-1054

UNITED STATES OF *«MERICA,

Appellee,

v.

LEON GREENBERG,

Appellant.

Before :

ANDERSON, MULLIGAN and MESKILL,

Circuit Judges.

Appeal from judgments of conviction entered in the United

States District Court, Southern District of New York, Pollack,

Judge, and jury, finding appellant guilty of one count of con-

spiracy to commit mail fraud in violation of 18 U.S.C. §371,

and four substantive counts of mail fraud in violation of 18

U.S.C. §1341.

Affirmed.

Herald Price Fahringer, Esq., Buffalo, New York

(Lipsitz, Green, Fahringer, Roll, Schuller & James,

Buffalo, New York, on the brief), for Appellant.

A-2

Appendix A—Opinion of the United States Court of Appeals

T. Barry Kingham, Assistant U. S. Attorney,

Southern District of New York (Robert B. Fiske, Jr., U.

S. Attorney, and Lawrence B. Pedowitz, Assistant U. S.

Attorney, Southern District of New York, on the brief),

for Appellee.

PER CURIAM:

Leon Greenberg was convicted of one count of conspiracy to

commit mail fraud, in violation of 18 U.S.C. §371, and four

substantive counts of mail fraud, in violation of §1341.

The indictment alleged that Greenberg, then the President of

Monticello Raceway in Sullivan County, New York (hereinafter

referred to as Raceway), conspired with Paul Grossinger, owner

of The Grossinger Hotel and a director of Raceway, and Ber-

nard Roth, comptroller of the hotel, to defraud Raceway

through the device of billing it for services not actually rendered

to it, the payments for which were used to defray the greater part

of the cost of a bar mitzvah, held at the hotel, for Greenberg’s

son. There was evidence from which the jury could find that

Grossinger, with the complicity of Greenberg, composed

fictitious bills for outings purportedly held for Raceway per-

sonnel at the hotel on five Wednesdays in July and August,

1970. These fake bills were sent through the mail to Raceway,

and payment was made through the mail in October, 1970, in

the normal course of business.

After the bar mitzvah was held in November, 1970, the hotel

sent Greenberg a bill for $5843.25, which he returned with a

note, “please verify the correctness of this bill.’’ Grossinger and

Roth then reduced Greenberg's bill by the exact amount which

Raceway had paid for the purported outings ($4856.16), so that

Greenberg ultimately paid only $987.09. This was sufficient to

violate Title 18 U.S.C. §1341. Un‘ted States v. Maze, 414 U.S.

A-3

Appendix A—Opinion of the United States Court of Appeals

395, 400 (1974). See also United States vy. Marando, 504 F.2d

126 (2d Cir.), cert. denied sub nom. Berardelli v. United States,

419 U.S. 1000 (1974); United States v. Cohen, 518 F.2d 727

(2d Cir.), cert. denied sub nom. Duboff v. United States, 423

U.S. 926 (1975).

Appellant Greenberg offered evidence to contradict the

Government's proof but the jury resolved the questions of fact

against him. Viewing the evidence in the light most favorable to

the Government, Glasser v. United States, 315 U.S. 60 (1942),

and considering the right of the jury to determine issues of

credibility, weigh the evidence, and draw reasonable inferences

of fact, United States v. Frank, 494 F.2d 145, 153 (2d Cir.),

cert. denied, 419 U.S. 828 (1974), we are satisfied that there

was sufficient evidence to support the jury’s verdicts of guilty. In

particular, appellant claims that there was insufficient evidence

of a conspiratorial agreement among himself, Grossinger, and

Roth to defraud Raceway. There was sufficient evidence for the

jury to conclude, however, that the alleged conspirators knew

their scheme was a fraud, which was designed to redound to

Greenberg's pecuniary benefit, at the expense of Raceway

corporation and its stockholders.

The remaining claims made by Greenberg on his appeal do

not call for discussion.

The judgments of convictions are affirmed.