Petition — Lupo v. United States

In The

Supreme Court of the Anite

—o—

October Term, 1976

vo. @6-17%

HARRY LUPO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

FREDERICK P. HAFETZ

GOLDMAN & HAFETZ

Attorneys for Petitioner

60 East 42nd Street

New York, New York 10017

(212) 682-8337

(8959) LUTZ APPELLATE PRINTERS, INC.

Law and Financial Printing

South River, N.J. New York, N.Y. Philadelphia, Pa. Washington. D.C.

(201) 257-6850 (212) $63-2121 (215) 563-5587 (201) 783-7288

TABLE OF CONTENTS

Opinion Below ......cccccccccccccsccccess

FerteGhctieR ccc ccccccccccccccccccccccceces

Constitutional Provisions and Statute Involved

Questions Presented ......ccccccccccceccces

GOMASTAGME cc ccccccccccccccescccescecccnces

Reasons For Granting the Writ ............

CORD * vccecccccccencccecceveccesesecs

TABLE OF CITATIONS

Cases Cited:

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868) ........

McNabb v. United States, 318 U.S. 332 (1942)

Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850)

United States v. Klein, 13 Wall. 128 (U.S. 1872) .........

Yakus v. United States, 321 U.S. 414 (1944) .............

Statutes Cited:

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Contents

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United States Constitution Cited:

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Rule Cited:

Federal Rules of Criminal Procedure, Rule 17 .......... SS

APPENDIX

Appendix A — Opinion of the Court of Appeals ........ la

In The

Supreme Court of the Hnited States

o

October Term, 1976

No.

HARRY LUPO,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT

TO: The Honorable, The Chief Justice of the United States

and the Associate Justice of the United States Supreme

Court.

The petitioner, Harry Lupo, respectfully prays that a writ of

certiorari issue to review the judgment and opinion of the United

States Court of Appeals for the Third Circuit in this case.

2

OPINION BELOW

The opinion of the Court of Appeals (App. A, infra, pp. la-

31a), is not yet reported. No opinion was rendered by the district

court.

JURISDICTION

The judgment of the court of appeals was entered on June

7, 1976. On June 22, 1976, Mr. Justice Brennan extended the

time for filing a petition for a writ of certiorari to August 6,

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

1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTE

INVOLVED

Article Three of the Constitution provides in pertinent part:

“Section 1. The judicial power of the United

States shall be vested in one supreme Court and

in such inferior Courts as the Congress may from

time to time ordain and establish. . .

Section 2. The judicial power shall extend to all

cases in law and equity arising under this

Constitution, the Laws of the United

States .. . to Controversies to which the United

States shall be a party... .”

The Fifth Amendment to the United States Constitution

provides in pertinent part:

“No person shall be . . . deprived of life, liberty,

Or property without due process of law.”

The Sixth Amendment to the United States Constitution

provides in pertinent part:

3

“In all criminal prosecutions, the accused shall

enjoy the right...to have the Assistance of

Counsel for his defense.”

Title 18 U.S.C. §3501 provides in pertinent part:

“(a) In any criminal prosecution brought by the

United States...a confession... shall be

admissible in evidence if it is voluntarily given.”

QUESTIONS PRESENTED

1. Whether the government’s use of a “forthwith” grand

jury subpoena to conduct an office interrogation of petitioner

violated his Fifth Amendment right to due process and therefore

required suppression of the confession made by him during that

interrogation?

2. Whether the government’s use of a “forthwith” grand

jury subpoena to conduct an office interrogation of petitioner

violated his Sixth Amendment right to counsel and therefore

required suppression of the confession made by him during that

interrogation?

3. Whether 18 U.S.C. §3501 which precludes the federal

courts from suppressing a confession on grounds other than

involuntariness violates the constitutional separation of power

between the legislative and judicial branches of the United States

Government?

STATEMENT

Defendant, together with three others, was charged in a

two-count felony indictment with: (1) violating 18 U.S.C. §371

by conspiring to violate 18 U.S.C. §641 and conspiring to

defraud the United States and (2) violating 18 U.S.C. §641 by

stealing “records of the United States; that is, photocopies of

4

official files of the Federal Bureau of Investigation, of a value in

excess of $100.00” (Indictment, p. 5). The conspiracy to defraud

aspect of count one was dismissed at the conclusion of the

government's case. The jury acquitted petitioner of the two

felonies charged, but convicted him of a misdemeanor as a lesser

included crime under each of the two counts. On count one, he

was sentenced to a prison term of six months and a fine of

$1,000. On count two, he was sentenced to a prison term of one

year, execution of which was suspended. Additionally, he was

placed on probation for a period of five years to commence

upon completion of the sentence imposed under count one.

|. Virtually the entire case against petitioner at trial

consisted of his confession to two F.B.I. agents. At trial the

government acknowledged that without this confession, it could

not establish a prima facie case against petitioner (T2812).

Petitioner moved to suppress this confession prior to trial. After

a hearing, that motion was denied. As stated by the court of

appeals in its summary of the facts adduced at the pre-trial

suppression hearing, App. A, infra, pp. 19a-20a, the confession

was obtained in the following manner. On July 14, 1974, two

F.B.1. agents, after a fruitless early morning interview with -

petitioner, served him “a grand jury subpoena, commanding

Lupo to appear before the federal grand jury in Newark

‘forthwith.”” /d. at 19a. After petitioner elected to drive to

Newark with the agents, the agents, instead of bringing

petitioner to the grand jury, took him to their office:

“where Lupo remained from 9 a.m. to 2 p.m.

During this five hour period Lupo made some

incriminating statements. He was then taken to

the office of the Organized Crime Strike Force,

where agents interrogated him for another two

hours. He was then taken to the office of the

United States Attorney, who questioned him for

an additional 15 minutes. Lupo was then taken to

the United States Marshal’s office to await his

5

appearance before the grand jury which was then

in session. About this time he requested that his

grand jury appearance be postponed so that he

could talk with his wife.” Jd. at pp. 19a-20a.

2. Agreeing with petitioner’s contention that the

government here had obtained the confession from him dy abuse

of the subpoena power under Rule 17, Fed. R. Crim. P., the

court of appeals stated that “the record here amply supports the

contention that the subpoenas were misused.” Jd. at 22a.

However, the court of appeals ruled that it was precluded from

exercising its supervisory power to “enforce a suppression

remedy for the abuse of Rule 17 process” because “Congress has

decreed in 18 U.S.C. §3501 that all ‘voluntary’ confessions shall

be admissible.”* Jd. at 23a.

The opinion by the court of appeals did not discuss

petitioner’s contention that the government’s use of the

“forthwith” grand jury subpoena to obtain a confession from

him violated his Fifth Amendment right to due process and his

Sixth Amendment right to counsel.

REASONS FOR GRANTING THE WRIT

This case presents three significant issues. It raises the issues

of whether the government’s use of a “forthwith” grand jury

subpoena to gain the opportunity of an interrogation outside the

protective presence of the grand jury violated petitioner's Fifth

Amendment right to due process and Sixth Amendment right to

counsel, requiring suppression of his confession during that

interrogation. Further, it raises the far-reaching issue of whether

in a case over which a federal court has jurisdiction, Congress

may preclude the court from deciding the case in the manner the

court deems appropriate. In short, does 18 U.S.C. $3501 violate

the separation of powersdoctrine set forth in the United States

* Co-defendant Szwandrak had also been served by F.B.1. agents with a “forthwith”

grund jury subpoena.

6

Constitution? Certiorari should be granted to resolve these

important questions.

|. Assessment of how due process was violated by the

government use of a “forti:with” grand jury subpoena to conduct

an interrogation in its offices begins with recognition that in our

system the court has supervisory power over the administration

of the grand jury. Although the prosecutor may issue grand jury

subpoenas ex parte without prior approval of the court or the

grand jury itself, the court, in its supervisory power, determines

whether the subpoena power is properly exercised or constitutes

an abuse of process. Meaningful supervision by the court as to

whether the subpoena process has been abused pre-supposes, of

course, reasonable time for the subpoenaed party to apply to the

court for appropriate relief from the subpoena. A “forthwith”

subpoena, mandating immediate appearance before the grand

jury, cuts off any opportunity for judicial review of the subpoena

at this stage. Thus, use of a “forthwith” subpoena here gave the

prosecutor untrammeled power in the subpoena process and

constituted a violation of petitioner's right to due process.

2. The government’s improper use of a “forthwith”

subpoena also contravened petitioner’s Sixth Amendment right

to counsel. Where served with a subpoena that grants a

reasonable time for compliance, an individual has the

opportunity to exercise his right to consult counsel. Counsel will

of course advise the individual that he has the Fifth Amendment

privilege against self-incrimination in the grand jury. Thus,

counsel in the present case obviously would have suggested to

petitioner that he assert his privilege against self-incrimination

unless he was granted immunity. Or counsel might have

negotiated with the prosecutor for immunity which the

government at that time might well have granted for many

reasons: without a confession by petitioner it had no case against

him; his testimony at trial would have been extremely helpful to

the government; his role in the conspiracy was merely that of a

“messenger;” he had no prior convictions and was gainfully

~ ee ee

Ae Ee

»” .

7

employed, supporting a wife and two children. In short,

petitioner was an excellent candidate for immunity. Government

use of the “forthwith” subpoena here eliminated the opportunity

for any such negotiation on behalf of petitioner at this critical

stage of the investigation.

Additionally, a subpoenaed witness with time to consult

counsel will be advised that it is his right to have counsel wait

outside the grand jury room and be available for consultation

there with the witness any time the latter seeks such assistance.

Again, use of a “forthwith” subpoena incontrovertibly and

arbitrarily eliminates this fundamental right by commanding

“immediate” appearance before the grand jury. To the laymen,

indeed to the sophisticate, “immediate” means immediate — no

deviation for the purpose of consulting counsel, or even one’s

family.

3. Petitioner’s third issue raises a fundamental question as

to the separation of powers between the legislative and judicial

branches of the federal government. The court of appeals here

agreed with petitioner’s contention that the government obtained

a confession from him by an abuse of the subpoena power under

Rule 17, Fed. R. Crim. P. Agreeing further with petitioner's

contention that this abuse of power rendered appropriate the use

of its supervisory power over the administration of justice to

control this conduct [see McNabb v. United States, 318 U.S. 332

(1942)], the Court, however, held that in 18 U.S.C. §3501

Congress had precluded it from exercising its supervisory power

to grant the remedy sought by petitioner — suppression of his

confession.

Petitioner, of course, recognizes that Congress may limit the

jurisdiction of the inferior courts created by it pursuant to

Article Three of the Constitution. See e.g. Yakus v. United

States, 321 U.S. 414 (1944); Ex parte McCardle, 74 U.S. (7

Wall.) 506 (1868); Sheldon v. Sill, 49 U.S. (8 How.) 441 (1850).

But in its enactment of 18 U.S.C. §3501, Congress has done

8

more than this. By this statute Congress has told the federal

courts that in cases in which they have jurisdiction — criminal

prosecutions brought by the United States — where the

defendant seeks to suppress his confession from admission into

evidence at trial, the courts must rule against the defendant

unless the confession was involuntarily made. If the court was of

the opinion that on grounds other involuntariness the motion

should be granted, 18 U.S.C. §3501 renders the court powerless

to decide the case in that manner. Thus, under this statute,

in cases where the federal courts have jurisdiction,

Congress has dictated to those courts how they are to decide a

particular issue. The congressional statute here in question is an

intolerable incursion into the judicial power and at war with the

separation of powers between the legislative and judicial

branches of our government. See United States v. Klein, 13

Wall. 128 (U.S. 1872).

CONCLUSION

The issues raised by this case merit the attention of the

Court, and the petition for a writ of certiorari should therefore

be granted.

Respectfully submitted,

s/ Frederick P. Hafetz

GOLDMAN & HAFETZ

Attorneys for Petitioner

August, 1976.

Ao Ie @ Deemer

APPENDIX A — OPINION OF THE COURT OF APPEALS

UNITED STATES COURT OF APPEALS

For tHe Tuiep Crecurr.

Nos. 75-2218, 75-2219, 75-2220

UNITED STATES OF AMERICA

v.

JOHN D:GILIO, JOHN GRILLO, HARRY LUPO,

PETER SZWANDRAK, GEORGE KUCZYNSKI,

IRENE (KLIMANSKY) KUCZYNSKI

JOHN DrGILIO, Appellant in No. 75-2218

HARRY LUPO, Appellant in No. 75-2219

PETER SZWANDRAK, Appellant in No. 75-2220

(D.C. Crim. No. 74-314)

AppgeaL From tHe Unitep States District Court ror THE

District or New JERSEY

Argued April 8, 1976

Before: Cuark,* Associate Justice, Gissons and Hunter,

Circuit Judges

OPINION OF THE COURT

(Filed June 7, 1976)

* Sitting by designation.

2a

Appendix A

Richard A. Green, Esquire

Katherine L. Boland, Esq. On the Brief

1730 Rhode Island Avenue, N.W.

Washington, D.C. 20036

Seymour Margulies, Esq.

Robert Margulies, Esq. On the Brief

921 Bergen Avenue

Jersey City, New Jersey 07306

Attorneys for John DiGilio

Frederick P. Hafetz, Esq.

Goldman & Hafetz, Esqs.

60 East 42nd Street

New York, New York 10017

Attorneys for Harry Lupo

Thomas S. Higgins, Esq., Assistant Federal

Public Defender District of New Jersey

976 Broad Street

Newark, New Jersey 07102

Attorney for Peter Szwandrak

Jonathan L. Goldstein, United States Attorney

James A. Plaisted, Asst. United States Attorney

Federal Building

Newark, New Jersey 07101

Grspons, Circuit Judge:

These are consolidated appeals from judgments of

conviction and sentence. Appellants John DiGilio (Ne.

75-2218), Harry Lupo (No. 75-2219) and Peter Szwandrak

(No. 75-2220) were indicted, with three other persons not

parties to this appeal for violations of 18 U.S.C. §$§ 371

and 641. The indictment charged that the defendants

conspired to defraud the United States (Count 1), and

converted to their own use ‘‘records of the United States ;

that is, photocopies of official files of the Federal Bureau

3a

Appendix A

of Investigation, of a value in excess of $100.00” (Count

II). Two of the defcidants, George Kuezynski and Irene

Klimansky (now Irene Klimansky Kuczynski), pleaded

guilty to the conspiracy count of the indictment and were

severed from the trial. The Kuczynskis testified for the

government at the trial of the four remaining defendants.

One of the defendants, John Grillo, was acquitted at trial

on both counts.

A jury found DiGilio, Lupo and Szwandrak guilty on

both counts. The jury, however, found Lupo guilty only

of theft of property of a value under $100. He was sen-

tenced, therefore, in accordance with the proviso in the

third paragraph of §641' on the substantive count, and

in accordance with the second paragraph (misdemeanor)

of § 371? on the conspiracy count.’ DiGilio and Szwandrak

received felony sentences on both the conspiracy and sub-

stantive counts. Each appellant contends that his con-

viction should be reversed because the conduct charged in

the indictment and proved at trial was not a crime pro-

scribed by 4641. Each defendant also urges that there

1. “Whoever [converts to his own use government records]

“Shall be fined not more than $10,000 or imprisoned not more than 10

me but if the value of such property does not exceed the sum

of $100, he shall be fined not more than $1000 or imprisoned not more than

one year, or both.”

18 U.S.C. § 641.

“If two or more persons conspire either to commit any offense against

hs United States, or to defraud the United States, or - agency thereof

in any manner or for any purpose, and one or more of such persons do not

act to effect the object of the conspiracy, each shall be fined not more than

$10,000 or imprisoned 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.

18 U.S.C. § 371.

. district court sentenced Lupo to a prison term of six months and a

fine of $1000 on Count 1. On Count II he received a suspended one year jail

sentence, and five years probation.

4. DiGilio was sentenced to nine years’ imprisonment on Count II and was

fined $10,000. A five-year concurrent term of imprisonment was imposed on

Count I. Szwandrak received concurrent six month custodial sentences on

Counts I and II, and was placed on probation for four and one-half years.

4a

Appendix A

were trial errors with respect to the court’s charge and

its rulings admitting and failing to suppress evidence,

which warrant a new trial. Defendants DiGilio and

Szwandrak contend that even if their judgments of con-

viction should be affirmed, they should be resentenced

pursuant to the lower range of sanctions prescribed in

the proviso to §641. Finally, DiGilio argues that he

should not have been tried at all because he was incom-

petent to stand trial. We conclude that defendants

DiGilio and Szwandrak must be resentenced, but that prior

to resentencing the district court must hold a hearing to

determine (1) whether DiGilio was competent to stand

trial throughout the proceedings in the district court and

(2) whether he is competent to be resentenced.

I. Tue Facts

The evidence at trial tended to show that from the

fall of 1971 through the spring of 1972 DiGilio, acting

first through Lupo and Szwandrak and later through

Grillo, procured the unauthorized copying of documents

in the FBI files. The documents which were copied related

to an investigation of alleged criminal activity by

DiGilio. The unauthorized copies were made by Irene

Klimansky, a clerk-typist in the Newark, New Jersey office

of the FBI, during her working hours and with govern-

ment paper and copying equipment. The original records

were returned by Klimansky to the proper files. She de-

livered the copies of the documents to her then-fiancé,

George Kuczynski. Kuezynski delivered the copies from

time to time to DiGilio’s intermediaries, who paid him

from $25 to $100 for each delivery. On one occasion

Kuezynski received a $200 payment, but this was not

related to the delivery of any specific group of documents,

and was described as a Christmas bonus. There were

multiple deliveries of copies from Klimansky to Kuczynski.

Kuczynski broke down some of the deliveries from Kli-

mansky into smaller components, in an effort to get more

money from DiGilio. Thus there were more deliveries

Sa

Appendix A

from Kuczynski to DiGilio’s intermediaries than from

Klimansky to Kuczynski. The evidence did not connect

a payment in excess of $100 to any particular delivery.

Nor was there evidence that DiGilio arranged with

Kuczynski for the delivery in installments of a previously

identified group of documents or records. During the

apparent life of the conspiracy, however, over $1000 was

funneled to Kuczynski through JiGilio’s intermediaries.

Most of the above-recited facts were stipulated by the

defendants. In addition, Kuczynski’s testimony at trial

identified Szwandrak as the initial intermediary from

DiGilio, and tended to incriminate DiGilio, Grillo and Lupo

as conspirators, and DiGilio as the source of payments

and the ultimate recipient of the contraband copies.

Kuczynski testified that he passed on documents both to

Szwandrak and to Grillo. The remainder of the govern-

ment’s case consisted of statements made to various FBI

agents by Lupo and Szwandrak, to which more particular

reference will be made in Parts IV and V of this opinion.

Il. Tue § 641 Vio.ation

The second count of the indictment charges that the

defendants converted to their own use ‘‘records of the

United States; that is, photocopies of official files of the

Federal Bureau of Investigation ....’’ The statute under

which they were indicted provides:

‘“‘Whoever . . . converts to his use or the use of

another . . . any record, voucher, money, or thing of

value of the United States ... shall be fined .. . or

imprisoned ... .”’

The defendants urge that the facts set forth above do not

fall within § 641, because that section does not apply

where, as here, the government was not deprived of the

use of the information contained in the records. They

contend that unauthorized copies of government records

are not themselves ‘‘records’’ within the meaning of the

6a

Appendix A

statute, and that the unauthorized transmission of infor-

mation is not proscribed by § 641. They assert that at

most, the government lost exclusive possession of the

information contained in its confidential records, and that

Congress never intended § 641, which is essentially a lar-

ceny statute, to protect the governmental interest in ex-

clusive possession of information. Reminding this court

of the celebrated cases of Anthony Russo and Daniel

Ellsberg * and, of more recent vintage, the Daniel Schorr

affair,® defendants argue that the government’s expansive

interpretation of 4641, if accepted, would pose serious,

perhaps fatal, first amendment, vagueness and overbreadth

problems.

The government, on the other hand, is of the view

that the misappropriation of information falls within

§ 641’s sanction. It places principal reliance on Judge

Friendly’s opinion in United States v. Bottone, 365 F.2d

389 (2d Cir.), cert. denied, 385 U.S. 974 (1966), holding

that the microfilming of a scientific process with equip-

ment owned by the thieves, and the asportation of those

copies violated 18 U.S.C. § 2314.7 See also United States

v. Seagraves, 265 F.2d 876 (3d Cir. 1959); United States

v. Lester, 283 F.2d 750 (3d Cir. 1960), cert. denied, 364

U.S. 937 (1961).

It is not necessary to accept the government’s thesis

in its entirety to hold that in this case a 4 641 violation

5. Ellsberg and Russo were indicted under §641. The indictment claimed

that the defendants had deprived the United States of the exclusive possession

of the information contained in the Pentagon Papers. For an excellent over-

view of the criminal case and a criticism of the application of § 641 to repro-

auctions of original records, see Nimmer, National Security Secrets v. Free

Speech: The Issues Left Undecided in the Ellsberg Case, 26 Stan. L. Rev. 311

(1973). See especially id. at 317 n.27, 322.

6. See, e.g., N.Y. Times, Feb. 24, 1976, at 1, col. 1; N.Y. Times, Feb. 25,

1976, at 10, col. 1.

7. 18 U.S.C. §2314 makes criminal the transportation in commerce of

stolen “goods”. Judge Friendly had no trouble concluding that the microfilms

were “goods” within the meaning of § 2314, and had little difficulty in finding

the films—the physical embodiment of intangible information—to have been

stolen as well. See 365 F.2d at 393.

7a

Appendix A

was established. This case does not involve memorization

of information contained in government records, or even

copying by thieves by means of their own equipment.

Irene Klimansky availed herself of several government

resources in copying DiGilio’s files, namely, government

time, government equipment and government supplies.’

That she was not specifically authorized to make these

copies does not alter their character as records of the

government. A duplicate copy is a record for purposes

of the statute, and duplicate copies belonging to the gov-

ernment were stolen. See United States v. Friedman, 445

F.2d 1076, 1087 (9th Cir. 1971); see also United States v.

Rosner, 352 F. Supp. 915, 922 (S.D. N.Y. 1922), modified,

485 F.2d 1312 (2d Cir. 1973).°

We do not, by resting upon the narrower ground that

a technical larceny has been proved, intend to imply a

rejection of the government’s broader interpretation of

§ 641. In Chappell v. United States, 270 F.2d 274 (9th

Cir. 1959), the Ninth Circuit refused to hold that mis-

appropriation of an airman’s labor to paint private houses

during duty hours fell within the statute, because theft

of labor or intangibles was not in the nature of a larceny

offense. Compare Burnett v. United States, 222 F.2d 426

& On one occasion Klimansky made an extra copy of a transcription of a

dictating machine tape.

9. A Committee of the Senate has indicated a belief that existing federal

criminal statutes reach the theft of copies of documents containing confidential

information :

Intangible personal property is also meant to be broadly construed. It

is intended to cover contract rights, including insurance, guarantees and

other obligations, privileges, interests, and claims as well as intellectual

property. Thus, theft of trade secrets and documents containing confidential

information would be covered under section 1731.

__In prohibiting the theft of documents—and duplicates of documents con-

taining confidential information—this section refiects current law. Where

1975, Oath Cong. Ist Sess. 673" (1

8a

Appendix A

(6th Cir. 1955). Much ean be said in favor of the govern-

ment’s argument that Chappell v. United States, supra,

is inconsistent with the interpretation of § 641 by the

Supreme Court in Morisette v. United States, 342 US.

246, 269 n.28 (1952):

‘‘The history of § 641 demonstrates that it was

to apply to acts which constituted larceny or embezzle-

ment at common law and also acts which shade into

those crimes but which, most strictly considered,

might not be found to fit their fixed definitions.’’

But since there was an asportation of records owned by

the United States we need not in this case decide whether

appropriation of information alone falls within § 641.’°

The statute gives fair warning that at a minimum, it pro-

scribes all larceny-type offenses. The indictment charges

such an offense, and the government proved such an

offense.

We recognize that the Department of Justice prob-

ably would not have presented this case for indictment

but for the informational content of the documents. A

statute like §641 which prohibits the theft of any gov-

ernment property of any kind does indeed, as the defend-

ants observe, vest considerable discretion in the Depart-

ment of Justice with respect to selective enforcement.

The solution to that problem, however, would appear to

be legislative. Cf. Edgar & Schmidt, The Espionage

Statutes and Publication of Defense Information, 73

Colum. L. Rev. 929, 930 (1973). We may not rewrite the

statute in order to substitute our own enforcement

standards for those of the executive branch. See Newman

v. United States, 382 F.2d 479 (D.C. Cir. 1967). We there-

fore hold that on the law and the facts, the defendants

were properly convicted under § 641.

10. The government obviously did not consider this merely a theft of infor-

mation case, because the indictment charges defendants only with converting to

their use government records. Section 641 also prohibits conversion of any

“thing of value”, and the government would presumably rely on this term in

an information case.

9a

Appendix A

Ill. Tae Vatvuation Prostem

In the 1948 revision of the criminal code, Congress

consolidated several separate provisions treating the prob-

lem of theft from the United States. At the same time,

it adopted a suggestion that the punishment provision of

a preceding section be amended to make the offense punish-

able as a misdemeanor when the amount involved was

small.'' The effect of the revision is to divide the statute,

for purposes of sanctions, into felonies and misdemeanors.

Once it is established, however, that a person has

wrongfully appropriated a government record or other

thing of value as defined in § 641, the prima facie case of

violation is complete. United States v. Ciongoli, 358 F.2d

439, 441 (3d Cir. 1966). Proof that the value of the stolen

property is in excess of $100 is an element of the offense

if the felony sanction is to be imposed. See United States

v. Ciongoli, supra; United States v. Wilson, 284 F.2d 407

(4th Cir. 1960); Cartwright v. United States, 146 F.2d 133

(Sth Cir. 1944); Stevens v. United States, 297 F.2d 665

(10th Cir. 1961) (per curiam); Churder v. United States,

387 F.2d 825 (8th Cir. 1968). Before it can be invoked the

government bears the burden of proving beyond a reason-

able doubt that the misappropriated property has the

requisite value.

Section 641 defines ‘‘value’’ as ‘‘face, par, or market

value, or cost price, either wholesale or retail, whichever

is greater.’’ Obviously, the stolen records had no ‘‘face’’

or ‘‘par’’ value. No evidence was introduced as to their

‘*cost price.’’ Thus we are concerned with market value.

As a general rule, that value will be determined by market

forces—the price at which the minds of a willing buyer and

a willing seller would meet. See generally Abbott v.

United States, 239 F.2d 310, 313 (5th Cir. 1956). If no

commercial market for particular contraband exists, value

11. See 18 U.S.C. § 641, Reviser’s Note, discussed in Morisette v. United

States, supra, 342 U.S. at 266-69 n.28.

10a

Appendix A

may be established by reference to a thieves’ market. See

Churder v. United States, supra, 387 F.2d at 833 (blank

postal money orders); United States v. Ctongoli, supra,

358 F.2d at 441 (same); Jalbert v. United States, 375

F.2d 125 (Sth Cir.), cert. denied, 389 U.S. 899 (1967).

While market value is thus usually determined by

conventional market forces of some kind, this court in a

related context under 18 U.S.C. § 2314 has recognized that

there must be some flexibility with respect to methods of

proof of value. United States v. Lester, supra, involved

the valuation of geophysical maps not known to be traded

on an open market. Nevertheless, there was expert testi-

mony that the value of the maps exceeded $5000." This

court accepted that proof as sufficient:

Of course in most instances market value is used

because under ordinary circumstances it is easily

ascertainable. But where an exceptional type of

goods that has no market value is the subject matter

of the indictment, any reasonable method may be em-

ployed to ascribe an equivalent monetary value to

the items.

It would do violence to the purpose of the statute

were the Justice Department able to take action against

the transportation of one carload of, let us say, house-

hold goods worth $5,000 but have their hands tied

by semantics when the transporting is of geophysical

maps worth a sizable fortune.

282 F.2d at 755 (footnote omitted).

In this case the government introduced the following

evidence bearing on the value of the stolen documents:

Kuczynski testified that he delivered groups of documents

to DiGilio on 25-35 separate occasions, and that he re-

ceived $25-$100 for each delivery. He also testified that

DiGilio had told him that some of the documents he de-

12. The opinion dues not disclose the basis for this valuation.

Appendix A

livered were good and some weren’t, and that DiGilio asked

for better ones. Regardless of the quality of the docu-

ments, DiGilio paid something for each delivery, but the

size of any payment was related to DiGilio’s assessment

of their value to him. Altogether, the evidence showed

that Kuczynski received a little over $1000 from DiGilio.

This sum included a $200 Christmas ‘‘bonus’’.

The evidence also tended to show that there were

many references and cross-references to other persons

and files in the stolen documents. There was some testi-

mony that these documents were being peddled around

town, and that others besides DiGilio had been approached

about purchasing them. There would appear to be suf-

ficient evidence to sustain a finding that a thieves’ market

for the stolen records existed.

We are not persuaded, however, that proof of the

existence of a thieves’ market satisfied the government’s

burden of proof as to the value of the misappropriated

records. For most tangible objects, some market exists,

and proof of that fact alone is not enough to establish

value in the market. Since there is no proof regarding

exchange price in the thieves’ market generally, evidence

showing only the existence of that market is insufficient

on the question of value for felony sentences under § 641.

The felony sentences of DiGilio and Szwandrak can be sus-

tained, if at all, only if the evidence showing what DiGilio

paid Kuczynski is adequate to prove value in excess of

$100.

Discounting the $200 Christmas gratuity, the sum of

the evidence on value was that DiGilio paid Kuezynski

about $1000 in exchange for the duplication and trans-

mission of a series of packets of FBI records. Because

the thefts occurred in installments, however, each of which

would amount to a separate offense, the more-than-$100

figure cannot be attained simply by aggregating the values

of all the documents taken. While the evidence showed

that Kuczynski sold documents to DiGilio on 25-35 occa-

12a

Appendix A

sions, there is no evidence showing the number of times

Klimansky actually copied and took them. That number

would appear to be less than the number of sales, since

Kuezynski testified that he sometimes broke groups of

documents down into smaller packets. There is no evidence

establishing that the value of any single document or group

of documents taken, as opposed to sold, at any time ex-

ceeded $100.

Of course, the price DiGilio paid for each batch of

documents he received is some evidence of value. Whether

or not the records had any value to DiGilio, however, he

paid not less than $25 per delivery. It is plain, then, that

DiGilio was paying both for Kuczynski’s services in ar-

ranging the thefts, and for the documents themselves.

The government produced no evidence apportioning the

transmittal price between the service, which was pur-

chased, and documents, which were stolen.

The government would have us hold that because in

the aggregate DiGilio paid over $1900, the jury could infer

that at least one of the thefts was of records having a

market value of over $100. The case law that has con-

sidered the issue of market value does not support the

government’s position. Judge Sobeloff’s opinion in United

States v. Wilson, 284 F.2d 407 (4th Cir. 1960), is perhaps

the leading federal case. There the defendant was charged

under § 641 with a single theft of 72 United States Army

rifles. The prosecution introduced no evidence of valuc.

The jury, having inspected the weapons, nevertheless con-

victed defendant of a felony, which required a finding that

the weapons were worth more than $100 ($1.39 per weapon).

The Fourth Circuit vacated the felony conviction, declining

in the absence of any record evidence to take judicial notice

that the guns were worth more than the statutory minimum.

Nor would the court permit the jury to substitute specula-

tion for hard evidence of value:

If a value of more than $100.00 had been proved

along with the other elements of the crime, the sentence

13a

Appendix A

of 7% years would have been within permissible limits.

The Government, however, failed to produce any evi-

dence whatsoever as to the value of the stolen weapons.

We are asked to take judicial notice that 72 rifles are

worth more than $100.00, but we cannot on the basis

of anything in the testimony form a judgment as to

value for the purpose of supporting the greater pen-

alty. Nor, in the absence of any proof of value, could

the jury be permitted to speculate on this point merely

from the appearance of the articles. A fact which

distinguishes a violation punishable by imprisonment

for not more than one year from a violation punishable

by imprisonment for ten years cannot be permitted to

rest upon conjecture or surmise. In order to sustain

the imposition of the higher penalty, it was as in-

cumbent upon the Government to prove a value in

excess of $100.00 as it was to prove the identity of

the defendant as the perpetrator of the crime, or the

ownership of the property.

284 F.2d at 408.

Wilson was followed in United States v. Horning, 409 F.2d

424 (4th Cir. 1969). In that case defendant was indicted

under § 641 for stealing tools worth more than $100. The

only competent evidence on value was the testimony of a

pawnbroker who hocked the tools for $50. The government

asked the court to infer from the commonly-known fact

that the pawn value of goods is substantially below market

value the fact that the tools were worth $100 or more. The

court, relying on Wilson, declined this invitation.

In United States v. Thweatt, 433 F.2d 1226 (D.C. Cir.

1970), a case involving the District of Columbia larceny

statute, the court held that, where the only evidence on the

value of stolen clothes was the purchase price four years

previously and the testimony that a pawnbroker loaned

$55 on the items, the government had failed to carry its

burden of proving value in excess of $100:

l4a

Appendix A

‘When there is a possibility of convicting the defend-

ant of either grand or petit larceny—offenses which

carry significantly different penalties and which are

distinguished solely by the value of the property

taken—it is essential that the government introduce

evidence of that value in order to give the jury a firm

basis upon which it can render a verdict.’’

433 F.2d at 1233.

Accord, Boone v. United States, 296 A.2d 449 (D.C. Ct.

App. 1972) (jury can’t speculate on value from appearance

of stolen property). See also United States v. Thomas,

135 F. Supp. 662 (E.D. Pa. 1955) ; United States v. Barker,

313 F. Supp. 987 (D. Del. 1970) ; Carlson v. United States,

187 F.2d 366 (10th Cir. 1951); Cooper v. State, 43 Ala.

App. 385, 191 So. 2d 224, cert. denied, 280 Ala. 711, 191

So. 2d 229 (1966); Johnson v. State, 102 So. 2d 412 (Fla.

Dist. Ct. App. 1958); Price v. State, 165 Tex. Crim. 326,

308 S.W.2d 47 (1957). Compare Head v. Hargrave, 105

U.S. 45, 49-50 (1881).

We conclude that there was insufficient evidence from

which the jury could find that any of the several thefts

that the government proved was of a record having a value

in excess of $100. We do not approve the court’s charge

that the jury could determine the cost of gathering and

producing the information or the market value in a

thieves’ market ‘‘on the basis of [its] common knowledge

and experience, and the reasonable inferences to be drawn

from the evidence.’’ No reasonable inferences of market

value of property involved in any particular theft could

be drawn from the evidence. Permitting juror speculation

as to value in the absence of evidence was, for the reasons

set forth in United States v. Wilson and the cases which

have followed it, error.

We hold that the evidence does not support the felony

convictions of DiGilio and Szwandrak under (641. That

defect does not, however, require us to set aside the jury

verdicts. The proper course, assuming the verdicts are

1Sa

Appendix A

otherwise unexceptionable, is to remand for misdemeanor

resentencing. See United States v. Ciongoli, supra, 358

F.2d at 441; United States v. Horning, supra, 409 F.2d at

426. And if the jury verdict of guilt is otherwise unex-

ceptionable, the felony conspiracy sentences will also be

vacated and the cases remanded for misdemeanor resen-

tencing. We turn, then, to the remainder of the defendants’

objections to the proceedings below.

IV. Bruton Issugs

In the course of the investigation leading to the instant

indictments, FBI agents interviewed defendants Lupo and

Szwandrak, and obtained statements in which each incrimi-

nated himself and others in the theft of the FBI records.

Szwandrak also incriminated himself and others in testi-

mony before the grand jury. At trial these statements

and grand jury testimony, in redacted form, were read to

the jury. The court cautioned the jury in each instance

not to consider the statements as evidence against any

defendant other than the utterer. It added that ‘‘[iJn

order to aid you in adhering to that instruction certain

omissions have been made from the statement . . . by

using . . . the word ‘blank’... .’’ Since neither Lupo

nor Szwandrak testified at trial, no co-defendant could

cross-examine the utterer on any aspect of the statements.

The Lupo and Szwandrak statements, as read to the

jury, contained no references whatsoever to DiGilio. In

Lupo’s statement, all incriminating references to defend-

ant Grillo were omitted, but one non-incriminating ref-

erence to Grillo was retained and no references to Szwan-

drak were deleted. Thus Lupo’s statement, as read to the

jury, contained incriminating references to Szwandrak.

Both Szwandrak’s FBI statement and his grand jury testi-

mony, as read to the jury, contained incriminating refer-

ences to Lupo. Non-incriminating references to Grillo

were included but incriminating references to Grillo were

excised.

16a

Appendix A

The net effect of the redaction process was to preserve

incriminating references to co-defendants who incrimi-

nated themselves in pre-trial confessions, but to redact

incriminating references to co-defendants who had not.

Each of the appellants, citing Bruton v. United States,

391 U.S. 123 (1968), says that this was prejudicial and

reversible error. Bruton held that a defendant is denied

his sixth amendment right of confrontation when the in-

eriminating confession of a co-defendant is introduced,

unless the accused is given an opportunity for cross-

examination of his co-defendant.

A. Lupo and Szwandrak

This court has on at least three occasions approved

the use at trial of the confessions of co-defendants where

all references to the appealing party had been redacted.

See United States v. Lipowitz, 407 F.2d 597 (3d Cir.),

cert. denied, 395 U.S. 946 (1969); United States v. Pane-

pinto, 430 F.2d 613 (3d Cir. 1970); United States v. Al-

varez, 519 F.2d 1056 (3d Cir.), cert. denied, 423 U.S. 914

(1975). These holdings were predicated on our finding

iuat tue redacted versions of the confessions did not in

any way suggest the appellants’ participation in the ad-

mitted offenses. That certainly was not the case with the

mutually incriminating hearsay statements of Lupo und

Szwandrak. No case in this circuit has authorized the

admission of parallel statements by co-defendants as an

exception to the Bruton rule. The government asserts

that such an exception is recognized in the Second Cireuit

and elsewhere. That notion arises, we think, from an

overly broad reading of Judge Hays’ opinions in United

States ex rel. Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir.

1968), cert. denied, 397 U.S. 942 (1970), and United States

ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert.

denied, 406 U.S. 932 (1972). In those state habeas corpus

eases the Second Circuit affirmed the denials of the peti-

tions alleging Bruton violations such as occurred here, not

17a

Appendix A

because it approved of the practice of admitting non-

redacted parallel confessions, but because in each instance

it could find the hearsay violations harmless beyond a rea-

sonable doubt. Metropolis v. Turner, 437 F.2d 207, 208-09

(10th Cir. 1971), another state habeas corpus case, reaches

the same conclusion and explains Catanzaro as a harmless

error case. The only direct appeal which has been called

to our attention involving the type of Bruton violation

committed here is United States v. Spinks, 470 F.2d 64

(7th Cir.), cert. denied, 409 U.S. 1011 (1972). It, too,

rejects a Bruton challenge not on the ground that there

was no violation, but because any error was harmless be-

yond a reasonable doubt. See also United States ex rel.

Stanbridge v. Zelker, 514 F.2d 45 (2d Cir. 1975).

The harmless error rule is not a predicate for the ad-

mission of evidence. We expressly disapprove of the sug-

gestion that there is a ‘‘parallel statements’’ exception to

the Bruton rule in this circuit. Hearsay errors both of

constitutional and of non-constitutional dimensions will in

appropriate cases be regarded as grounds for reversal,

and this includes the hearsay error upon which the Bruton

court focused.

Nevertheless, the Supreme Court has made it clear

that the constitutional harmless error rule of Harrington

v. California, 395 U.S. 250 (1969), is applicable to a Bruton

violation. Brown v. United States, 411 U.S. 223 (1973).

In this case Kuczynski testified without contradiction that

Szwandrak served as the intermediary between DiGilio

and him, disbursing cash in exchange for the stolen gov-

ernment documents. That uncontradicted testimony was

corroborated by Szwandrak’s confession to the FBI and

his statement to the grand jury. In these circumstances

the error of admitting the unredacted Lupo statement,

which added nothing of substance to the government’s

case, was, we find, harmless beyond a reasonable doubt.

The evidence against Lupo differs from that against

Szwandrak in only one respect. While. Kuczynski’s testi-

18a

Appendix A

_mony directly implicated Szwandrak, it implicated Lupo

through the statements made about him by other members

of the conspiracy and in furtherance of its ends. This

evidence, though different in kind, was not in our view

significantly different in weight in this instance. The

totality of the evidence of guilt was overwhelming. We

find in Lupo’s case that the error of admitting Szwan-

drak’s unredacted statements implicating him was harm-

less beyond a reasonable doubt.

B. DiGilto

DiGilio’s Bruton argument is postured somewhat dif-

ferently from that of his co-defendants. All references to

his name were deleted from all of his co-defendants’ state-

ments. DiGilio argues, however, that because references

to the activities of unnamed co-defendants remained, and

in some instances those co-defendants were named, the

jury must inevitably have associated his name with the

blanks in the redacted statements.

The redactions performed here differed qualitatively

from the redactions we approved in United States v.

Alvarez, supra, and United States v. Lipowitz. supra,

where all references to co-defendants were omitted, and

even from the redaction in United States v. Panepinto,

supra, where all names were deleted. Despite the district

court’s limiting instruction; the jury might well have drawn

the inference that DiGilio was the ‘‘blank’’ referred to in

the Lupo and Szwandrak statements. We cannot approve

of the practice of limited redaction in which the redaction

exception gradually swallows up the Bruton rule. We

find merit to DiGilio’s contention that in the particular

circumstances of this case a Bruton violation did occur.

The government’s case against DiGilio consisted pri-

marily of the testimony ef Kuezynski, who testified about

incriminating conversations that he had directly with

DiGilio. Kuezynski was, of course, an accomplice. But

.

Oe EE Ee

19a

Appendix A

his testimony implicating DiGilio was corroborated to a

significant extent by the stipulated fact that only records

relating to DiGilio were removed from the FBI office.

DiGilio called several defense witnesses, but none of them

contradicted Kuezynski’s testimony. Thus in DiGilio’s

case, as in those of Lupo and Szwandrak, we find that the

error of admitting without cross-examination the co-

defendant statements was harmless beyond a reasonable

doubt. Brown v. United States, supra.

V. Suppression Issues

Lupo and Szwandrak urge that the district court erred

in admitting their statements because they were obtained

in violation of the due process and self-incrimination

clauses of the fifth amendment. These appellants contend

that the confessions were procured as the result of an

illegal arrest, and of an abuse of process of this court,

and in any event were involuntary.

A. The Facts

° (1) Lupo

FBI agents approached Lupo at his place of employ-

ment at 8 a.m. on July 14, 1974, identified themselves, and

indicated they wished to question him about the theft of

the DiGilio records from the FBI office. The agents ad-

vised Lupo of his Miranda rights and he signed a Miranda

waiver. At Lupo’s request the agents drove him from

his place of employment to conduct the interview. When

this interview proved fruitless the agents served on him

a grand jury subpoena, signed by an attorney of the

Organized Crime Strike Force, commanding Lupo to ap-

pear before the federal grand jury in Newark ‘‘forthwith.’’

They also advised Lupo to go to the Newark federal court-

house at once. Lupo elected to accompany the agents in

their car. They dreve to the FBI office, where Lupo

remained from 9 a.m. to 2 p.m. During this five hour

period Lupo made some incriminating statements. He was

20a

Appendix A

then taken to the office of the Organized Crime Strike

Force, where agents interrogated him for another two

hours. He was then taken to the office of the United States

Attorney, who questioned him for an additional 15 minutes.

Lupo was then taken to the United States Marsial’s

office at 4:30 p.m. to await his appearance before the grand

jury which was then in session. About this time he re-

quested that his grand jury appearance be postponed so

that he could talk with his wife. The FBI agents then

drove Lupo to his home, where further conversations took

place in front of his wife.

(2) Szwandrak

On July 17, 1974 two FBI agents went to the home of

Szwandrak’s mother. Szwandrak did not live there, but

she furnished the agents with his address. The agents

proceeded to that address and promptly served Szwandrak

with a ‘‘forthwith’’ grand jury subpoena identical to that

served on Lupo. Szwandrak admitted the agents to his

home. The agents read Szwandrak his Miranda warnings

and he signed a Miranda waiver. The agents then ques-

tioned him for an hour and a half, during which he made

incriminating statements. When the interrogation was

completed Szwandrak drove his car to Newark, accom-

panied by one FBI agent. They went to the office of the

Organized Crime Strike Force and later to the office of

the United States Attorney. Szwandrak was interrogated

three additional times, always after having been advised

of his Miranda rights. Some incriminating details were

added to his prior confession during these interrogations.

At 4:30 p.m. he was taken before the grand jury where

he gave the testimony later used at the trial.

B. The illegal arrest contention

Both Lupo and Szwandrak contend that their state-

ments should have been suppressed as the fruits of an

illegal arrest. They contend that the ‘‘forthwith’’ sub-

poena was used as the substitute for an arrest warrant,

2la

Appendix A

and as a means for subverting the requirement that a

judicial officer make a probable cause determination prior

to issuing an arrest warrant. Fed. R.C.P., Rules 4, 9.

Under Rule 17, Fed. R.C.P., the clerk issues subpoenas in

blank.

We recognize that the misuse of ‘‘forthwith’’ grand

jury subpoenas issued in blank pursuant to Rule 17 may

circumvent the more rigorous procedural requirements of

Rules 4 and 9. But there are several difficulties with the

argument of Lupo and Szwandrak that such putative mis-

use justifies suppression in this case. First, service of the

‘‘forthwith’’ subpoenas took place at a time when the

government already had a statement from Kuczynski

establishing probable cause for the arrest of both of them.

In United States v. Watson, 44 U.S.L.W. 4112 (U.S. Jan.

26, 1976), the Court held that where probable cause for

arrest exists the fourth amendment does not require a

warrant even where, as here, there is ample time to obtain

one. It is true that the authority of FBI agents to arrest

without a warrant is limited to cases where they have

reasonabl. cause to believe that the person to be arrested

has committed a felony. 18 U.S.C. $3052. Hemry v.

United States, 361 U.S. 98 (1959). We have held above

that the government proved only an offense punishable

as a misdemeanor. But the standard of proof beyond a

reasonable doubt is considerably higher than that of 18

U.S.C. § 3052: ‘‘reasonable grounds to believe that the

person to be arrested has committed’’ a felony. Probably

the information already in hand from Kuczynski sufficed

to justify an arrest without a warrant. Cf. Draper v.

United States, 358 U.S. 307, 313-14 (1959).

We need not rest our holding that neither Lupo’s nor

Szwandrak’s confession was the fruit of an illegal arrest

upon the recent decision in Watson."* In connection with

13. If it is assumed that the service of the “forthwith” subpoena was con-

structive arrest, and if it is further assumed that the FBI had probable cause,

or at least reasonable cause, at that time, Watson would clearly control dis-

position of Lupo’s illegal arrest contention. The arrest, if any, of Szwandrak,

22a

Appendix A

the suppression motions, the district court found as a fact

that neither Lupo nor Szwandrak were under any restraint

whatsoever at the time they gave their incriminating state-

ments to the FBI agents. See 18 U.S.C. §3501(d). The

court’s finding, based on credibility judgments, cannot be

disregarded. Government of the Virgin Islands v. Gereau,

502 F.2d 914 (3d Cir. 1974),. cert. denied, 420 U.S. 909

(1975). For purposes of this appeal there was no arrest,

legal or illegal.

C. The abuse of process contention

Lupo and Szwandrak next contend that in the exercise

of our supervisory power to prevent the misuse of sub-

poenas issued pursuant to Rule 17, we should prohibit the

use of ‘‘forthwith’’ grand jury subpoenas as a means for

facilitating investigatory interrogation outside the pre-

sumably protective présence of the grand jury. The record

here amply supports the contention that the subpoenas

were misused. We have in the past made clear that we

do exercise supervisory power over the utilization of Rule

17 subpoenas. Jn re Grand Jury Proceedings (Schofield

I), 486 F.2d 85, 93 (3d Cir. 1973). Rule 17 does not, in

our view, authorize the use of grand jury subpoenas as a

ploy for the facilitation of office interrogation. Neither

the FBI nor the Strike Force nor the United States Attor-

ney has been granted subpoena power tor office interroga-

tion outside the presence of the grand jury. Compare

46 U.S.C. § 7602.

13. (Cont’d.)

however, occurred in his home. Although the majority opinion in Watson is

not so limited, see 44 U.S.L.W. at 4114 n.6, two Justices did not understand

it to decide the reasonableness under the fourth amendment of warrantless

arrests in the home. See id. at 4118 (Powell, J., concurring); id. at 4116

(Stewart, J., concurring in result). In a recent post-Watson case, the Cali-

fornia Supreme Court, reiying on dicta in Coolidge v. New Hampshire, 403

U.S. 443, 480-81 (1971), heid that in the absence of exigent circumstances, the

fourth amendment precluded warrantless arrests in the home. People v. Ramey,

16 Cal. 3d 263, 545 P.2d 1333, 127 Cal. Rptr. 629 (1976). The dissent admitted

that Watson literally left the question open, but argued that the case indicated

that sooner or later such warrantless arrests would be approved. In view of

our disposition of related points, it is unnecessary to decide Szwandrak’s illegal

arrest contention.

23a

Appendix A

But it does not follow that we can enforce a suppres-

sion remedy for the abuse of Rule 17 process. Congress

has decreed in 18 U.S.C. § 3501 that all ‘‘voluntary’’ con-

fessions shall be admissible. In United States v. Crook,

502 F.2d 1378, 1380-81 (3d Cir. 1974), cert. denied, 419

U.S. 1123 (1975), we held that once the issue of voluntari-

ness was resolved in the government’s favor, the court

lacked any supervisory authority to suppress a statement.

Thus disposition of the suppression motion properly turns

not on whether the statements were obtained as a result

of the improper use of Rule 17 subpoenas, but on their

voluntariness.

D. Voluntariness

Szwandrak does not contend that his incriminating

statements are involuntary in the fifth amendment sense.

Lupo urges that his confessions were involuntary because

the FBI agents cajoled him into incriminating himself

with promises and inducements, and by threats. It is not

disputed that Lupo received Miranda warnings. Thus, the

issue in the suppression hearing was whether in the totality

of the circumstances the confessions were voluntarily

given. 18 U.S.C. §3501(a). The trial judge carefully

reviewed the evidence of promises, inducements and

threats, and concluded that Lupo’s statements were volun-

tary. We review ‘ve trial court’s determination of volun-

tariness by the clearly erroneous standard. Government

of the Virgin Islands v. Gereau, supra, 502 F.2d at 922.

By that standard of review the conclusion of voluntariness

must be affirmed. No purpose would be served by repeating

here the factual analysis engaged in by the district court.

In summary, we reject all the grounds for suppression

advanced by the appellants.

VI. DiGm10’s Competence To Stanp TriaL

On April 7, 1975, counsel for DiGilio moved on his

behalf pursuant to 18 U.S.C. § 4244 for a determination

24a

Appendix A

of his competency to stand trial.'"* The district court

directed DiGilio to report to the Carrier Clinie at Belle

Mead, New Jersey on May 12, 1975, to be examined with

regard to his competency to go to trial on June 10, 1975.

DiGilio reported to the Clinic and underwent psychiatric

and psychological examination. On June 6, 1975 and for

eight trial days in June the district court conducted a

hearing on the motion.

Ultimately, the court concluded that DiGilio was com-

petent to stand trial. At the hearing there was substantial

evidence, which the district court apparently credited,

tending to establish that DiGilio suffers from organic brain

disorders of traumatic origin, and functions at a retarded

level. The court nonetheless concluded that he was legally

competent. That conclusion is reflected in findings of fact

dictated from the bench at the conclusion of the hearing

on June 19, 1975 and supplemented by a letter to counsel

dated June 24. At the outset the court stated that the

defendant in a § 4244 proceeding bears the burden of

proving by a preponderance of the evidence his incom-

petency to stand trial. It then reviewed the medical evi-

dence in some detail and concluded:

‘The test is: Can he cooperate with counsel to a

reasonable degree? And can he achieve a reasonable

understanding of the nature of the charges against him?

I find, in short, that Mr. DiGilio can do both; tbat

while he is mentally impaired because of his organic

brain disease, that impairment is not so extensive that

I should declare him incompetent to stand trial. And

by the standard | have previously quoted I do find

him, in fact, competent to go to trial in this case.’’

DiGilio’s attorneys urge that the court erred in two sig-

nificant respects. They first complain that in weighing the

evidence the court proceeded on the assumption that

14. In another case in the district court for the District of New Jersey a

similar motion was made on DiGilio’s behalf and denied. That case ted

in an acquittal.

25a

Appendix A

DiGilio had the burden of proof. As we pointed out above,

the court explicitly announced that assumption. They next

complain that the court, in evaluating the evidence of com-

petency to stand trial, erroneously took into account

DiGilio’s committability in the event he were adjudicated

incompetent. Certainly the court in its findings made ref-

erence to that factor.”

There is surprisingly little case law dealing with the

allocation of the burden of proof in a proceeding under

§ 4244."° Perhaps this absence of discussion reflects the

fact that a 4 4244 motion may be made by the United States

Attorney, by the court on its own motion, and ‘‘in behalf of

the accused.’’ In such a proceeding, no matter by whom

it is brought, the critical issue is the capacity of the de-

fendant to assume any burden in any adversarial judicial

proceeding. Although § 4244 does not say so explicitly, due

process requires that the trial court inquire sua sponte

into the defendant’s competence if there is reason to doubt

it. See Pate v. Robinson, 383 U.S. 375 (1966). It would

make little sense to impose such a due process burden on

the court but to place the burden of proof on the defendant.

Nor, we assume, would the burden of proof rest with the

defendant when the United States Attorney makes the mo-

tion. There is nothing on the face of the statute suggesting

that the burden of proof should be different when the mo-

tion is made ‘‘in behalf of the accused.’’ *’

15. The court said :

ing the charges society has brought against him.”

16. The government relies on United States ex rel. Johnson v. Brierley,

334 F. Supp. 661, 662 (ED. Pa. 1971), a state habeas corpus case, for the

wana his “[c}ompetency is presumed and the burden is on the petitioner

case in which the same district j placed the burden of pro competency

oS Gaeae me dr jal att the aren of Pownce

17. Compare Ill. Ann. Stat. ch. 38, § 1005-2-1, which places the burden of

proving competency upon the moving party, and upon the prosecution when the

court is the moving party.

26a

Appendix A

In the somewhat analogous context of a proceeding

under 18 U.S.C. § 4245,’* the District of Columbia Circuit

discussed, but did not resolve, the issue of the burden of

proof of incompetency to stand trial. Fooks v. United

States, 246 F.2d 629 (D.C. Cir. 1956) (per curiam); 246

F.2d 631 (D.C. Cir. 1957) (statements of majority and

minority on petition for rehearing in banc). In Fooks the

defendant was in custody following three separate sen-

tences. The federal custodians, on the basis of observation

during post-trial confinement, concluded that there was

probable cause to believe Fooks was incompetent at the

time of his trial. Pursuant to § 4245, hearings were held in

each of the sentencing courts and resulted in findings that

Fooks was competent. On appeal the panel, consisting of

Circuit Judges Miller, Bastian and Burger, in a per curiam

opinion wrote:

‘‘Two of the District Judges specifically ruled that,

even if the Government had the burden of establishing

such competency beyond a reasonable doubt, as to

which we now express no opinion, it had carried that

burden; and it is fairly inferable that the third Dis-

trict Judge, who, by consent heard the testimony with

one of the other judges, did likewise.’’ 246 F.2d at

630-31.

On petition for rehearing in banc the court divided sharply

over the effect to be given to the § 4245 certification from

the Bureau of Prisons. Then-Judge Burger for a majority

of five wrote that a § 4245 certificate created a rebuttable

presumption of incompetency, which fell out of the case

when the government introduced some evidence of com-

petency. Without deciding the issue that majority said that

even if in that posture of the case the burden of proof was

on the government, and included an obligation to establish

competency beyond a reasonable doubt, the findings of the

18. 18 U.S.C. §4245 establishes procedures for raising and determining

after trial issues of mental competency at the time of trial.

27a

Appendix A

district judges that this burden had been met were not

clearly erroneous. Judge Bazelon for the minority would

have held that filing the 4 4245 certificate was prima facie

evidence of incompetency and that thereafter the govern-

ment had the burden of proving competency, which in

Fooks’ case had not been met. It appears to have been

common ground, then, that the government in a § 4245 pro-

ceeding had to meet some burden of proof. That conclu-

sion is consistent with the provision in § 4245 that ‘‘the

Certificate of the Director of the Bureau of Prisons shall be

prima facie evidence of the facts and conclusions certified

therein.’’

We note that §.4245 relief is available only when ‘‘the

issue of mental competency was not raised and determined

before or during said trial.’’ Moreover, 4 4244 does not

contain any language making a certificate ‘‘prima facie

evidence of the facts and conclusions certified therein.’’

But the obligation to hold a § 4244 hearing arises only if a

psychiatrist’s report indicates a present state of mental

incompetency. Such a report would seem to serve the

same purpose as the Certificate of the Director of the

Bureau of Prisons in a § 4245 proceeding.

But we do not believe that it is reasonable to construe

§ 4244 as placing the burden on the defendant to prove

incompetency as long as the burden shifts to the govern-

ment in a § 4245 proceeding after trial. Such a construc-

tion might well encourage defense counsel to delay rais-

ing the issue of competency until after trial, gambling for

an acquittal with the knowledge that the competency issue

could be litigated later. We are mindful, as well, of the

Court’s admonition in Pate v. Robinson, supra, 383 U.S.

at 384, that ‘‘it is contradictory to argue that a defendant

may be incompetent, and yet knowingly or intelligently

‘waive’ his right to have the court determine his capacity

to stand trial.’’ It is equally contradictory to argue that

a defendant who may be incompetent should be presumed

to possess sufficient intelligence that he will be able to

28a

Appendix A

adduce evidence of his incompetency which might other-

wise be within his grasp. As the Court said in Dusky v.

United States, 362 U.S. 402 (1960) (per curiam) and

reiterated in Drope v. Missouri, 420 U.S. 162 (1975), the

due process rule against trying an incompetent protects a

defendant who cannot effectively consult with counsel and

cannot comprehend the nature of the proceedings against

him.

Allocation of the burden of proof will be significant,

in theory at least, only in the rare case when, assuming

the evidence is weighed by the preponderance of evidence

standard, the conflicting evidence is in equipoise in the

mind of the fact finder. At that point the triability of a

defendant will depend on where the burden of proof is

placed. To put the question another way, what we are

determMing is a rule of law, of due process dimensions,

that a defendant, about whom the evidence of competency

to stand trial is in equipoise, should or should not be tried.

If, as the Court has made clear, the concept of competency

to stand trial is grounded in notions of fundamental fair-

ness in the operation of the judicial process, see Drope v.

Missouri, supra, 420 U.S. at 171-72, the question can only

be answered in the negative. Evidence showing com-

petency must be more persuasive than that showing in-

competency. Of necessity, then, there is no room for a

rule of law placing any burden of proof on the defendant.’®

DiGilio’s counsel would have us go further, and hold

that the government must prove competency, once it is in

issue, beyond a reasonable doubt. The beyond-a-reason-

able-doubt test is constitutionally mandated for all ele-

ments of a criminal offense. Mullaney v. Wilbur, 421 US.

684 (1975); In re Winship, 397 U.S. 358, 364 (1970). But

competency to stand trial is not an element of the crimes

for which DiGilio was indicted. Compare Davis v. United

19. The district court can, of course, allocate the burden of going forward

with the evidence bearing on competency in any manner which will provide for

the expeditious development of the facts relevant to its § 4244 determination.

29a

Appendix A

States, 160 U.S. 469 (1895); Government of the Virgin

Islands v. Bellott, 495 F.2d 1393 (3d Cir. 1974) (sanity at

the time of the offense). Moreover, the government is

not, on every subsidiary issue arising during the course

of a criminal proceeding, required to satisfy the beyond-a-

reasonable-doubt standard. The preponderance-of-the-

evidence test has been utilized in determining the admis-

sibility of evidence under the constitutional exclusionary

rules. See, e.g., Lego v. Twomey, 404 U.S. 477 (1972)

(plurality opinion) (voluntariness of a confession) ; United

States v. Matlock, 415 U.S. 164, 178 n.14 (1974) (fourth

amendment suppression). We do not believe that a more

rigorous evidentiary standard is warranted here, and hold

that a defendant’s competency to stand trial need be estab-

lished by a preponderance of the evidence only.

Since the district court, in weighing the evidence on

what was obviously a close and troublesome issue, ex-

plicitly referred to the defendant’s burden of proof, and

since that placement of the burden may have been decisive

in resolving the ultimate issue, we cannot affirm its finding

that DiGilio was competent to go to trial. The govern-

ment would have us hold that because DiGilio’s attorney

made no simultaneous objection to the court’s statement

with respect to burden of proof, we should disregard the

error. In view of the court’s independent due process

obligation on the competency issue, Pate v. Robinson,

supra, there is not in our view room for the mechanical

operation of the simultaneous objection rule.

There remains the question whether the district court

must hold a new hearing, and if DiGilio is found com-

petent, conduct a new trial. Here the hearing was exten-

sive and is not so remote in time as to present insurmount-

able problems of recollection. While nune pro tune

determination of mental competency are not favored,

Drope v. Missouri, supra, 420 U.S. at 183; United States

v. Pogany, 465 F.2d 72, 79 (3d Cir. 1972), we have in a

state habeas corpus case recently recognized the possibil-

30a

Appendix A

ity that a nune pro tune determination may be constitu-

tionally permissible. See United States ex rel. McGough

v. Hewitt, 528 F.2d 339, 343-44 (3d Cir. 1975). The district

court is in the best position to determine whether it can,

either on the present record or with supplementary testi-

mony, make a retrospective determination of DiGilio’s

competency throughout his trial. If the court concludes

that this can be done, and concludes after applying the

proper burden of proof that DiGilio was competent, then

no new trial will be required.

Since DiGilio’s case is being remanded for further

proceedings, it is appropriate to note that if the district

court intended by its reference to DiGilio’s non-commit-

tability to suggest that this factor is relevant to the com-

petency inquiry, we do not agree that it is. Congress has

dealt with the problem of committability, explicitly if not

satisfactorily, in 18 U.S.C. §4 4246, 4247. The statute con-

templates that in some cases a defendant may be incom-

petent to stand trial and also releasable. It is not at all

clear from the context in which the reference to non-

committability was made *° that the district judge intended

anything more than an observation about the statute. But

if the fact that DiGilio might be released without trial did

weigh in the determination of his competency to stand

trial, on remand that factor should be disregarded.

VII. Conciusion

The judgment of sentence of the district court in the

appeal of Harry Lupo (No. 75-2219) will be affirmed. The

judgment of sentence in the appeal of Peter Szwandrak

(No. 75-2220) will be vacated and the case remanded to

the district court for resentencing within the lower range

of sentences permitted by this opinion. The judgment of

sentence in the appeal of DiGilio (No. 75-2218) will be

vacated and the case remanded to the district court (1)

20. See note 15 supra.

9

3la

Appendix A

for a determination (a) whether the court can now decide

DiGilio’s competency at the time of his trial and sentence,

and if so, (b) whether he was competent at those times. If

the court concludes that DiGilio was competent at the time

of his trial and remains so, he should be resentenced within

the lower range of sentences permitted by this opinion. If

the court finds that it cannot retroactively determine

DiGilio’s competency, he must be granted a new compe-

tency hearing and if found to be competent a new trial.

In such a new trial the district court should decide in the

first instance whether, in view of the government’s failure

of proof on the value of the stolen documents at this trial,

double jeopardy considerations will limit the range of

sentences to those which we today hold permissible.”

21. See Bryan v. United States, 338 U.S. 552 (1948); United States v.

Koonce, 485 F.2d 374, 381-82 (8th Cir. 1973); United States v. Stephenson,

474 F.2d 1353, 1355 (Sth Cir. 1973) ; United States v. Howard, 432 F.2d 1188,

1191 (9th Cir. 1970). See also North Carolina v. Pearce, 395 U.S. 711 (1969).

A True Copy:

dl

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.