Petition — Cameron v. United States
Supreme Court brief1977
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%6-8148
October Term, 1976
No.
CHARLES WILLIAM CAMERON,
Petitioner,
VS.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
LAWRENCE K. FEITELL
Attorney for Petitioner
150 East 58th Street
New York, New York 10022
(212) PL 3-7500
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TABLE OF CONTENTS
NE GE Ge TD cncccccccccsccs cocsctodass
Questions Presented for Review .......ccccccccccsccccces
Constitutional Provisions and Statutes Involved in this Case .
Sentommemt OF te Cass .cccccccccccccescccscccscovcecces
A. The Incriminating Statements Given by Petitioner to
the Police After his Rescue from the Kidnappers. .
B. The Proofs Relating to Petitioner’s Failure to File
OGRE TEE THIEN. «cdc cceccctcodcccésccecces
Reasons for Granting the Writ:
I. The trial court erred in refusing to suppress
petitioner’s statements to the police made by him
after the indictment herein was filed. ...........
Il. The trial court committed reversible error by
allowing into evidence proof that petitioner had not
filed federal tax returns. The proffer was irrelevant
to the crime of narcotics conspiracy, inflammatory,
and violative of petitioner’s Fifth Amendment rights.
3
Contents
TABLE OF CITATIONS
Cases Cited:
Griffin v. California, 380 U.S. 609 ........cc cece eeeeeees
Grunewald v. United States, 353 U.S. 397 ..........0000.
Johnson v. United States, 318 U.S. 184 ...........e eens
- fe UG GS PPT TTT TT Tre eT Tee
Leary v. United States, FS U.S. 6 .nccccccccccccccccees
Lopez v. Zelker, 344 F.S. 1050, aff'd., 465 F.2d 1405
Massiah v. United States, 377 U.S. 201 ......... cece eens
REG Res ©. GRE, TES DS. TED ccsccccnccccccccesescccs
Shepard v. United States, 290 U.S. 96 .......... cee eeees
Tot v. United States, 319 U.S. 463) ....... cece cece ee eeee
Turner v. United States, 396 U.S. 398 22... . cece eee eens
United States v. Barnes, 412 U.S. 837 " TTT TTT TT TT Ty
United States v. Falley, 469 F.2d 33 .....ccccccccscccccs
United States v. Frank, 520 F.2d 1287 (2 Cir.) ..........
ey ee Oh Se, BP GS GP ccccdcccesonesecoses
United States v. Hale, 422 U.S. 171.0... ce eee eee ween
14
14
ne eee ee
iii
Contents
Page
United States v. Hayles, 471 F.2d 788 (5 Cir. 1973) ...... 8
United States v. Massimo, 432 F.2d 324 .........0005 6s 10
United States v. Masullo, 489 F.2d 217 ........eeeeeeeee 10
United States v. Romano, 382 U.S. 136 ..........eee eee 14
United States v. Satterfieid, (Opin. of Knapp, U.S.D.J.,
S.D.N.Y. 7-8-76; 417 F.S. 293; 19 Cr. L. Rptr. 238,
aff'd., 2 Cir., 12-776) ......ccecccccceccceccevesees 10
United States v. Sullivan, 274 U.S. 259 ...... cece ee eee 13
United States v. Tramunti, 513 F.2d 1087 ...........+++. 12
Statutes Cited:
21 U.S.C. §§812, 841(a)(1), 846, 960(a)(1), 963 ........... l
28 U.S.C. Section 12541) .......ceeeccrcccccccceccccens 2
United States Constitution Cited:
PUR AmMOMGMNERE .ncccccccccccccccccccccccsccceces Dm 8
Sinth Ammem@mmemt 2. cccccsccccccccccccccsccccccccccces 3
APPENDIX
A Judgment of the United States Court of Appeals for the
Second Cirewit 2... ccccccccccccccccccccccccccscees la
B Opinion of the Court of Appeals ..............5505: 4a
C Orders of Denial for Rehearing and Rehearing En Banc. 34a
In The
Supreme Court of the United States
—_—_@—
October Term, 1976
No.
CHARLES WILLIAM CAMERON,
Petitioner,
vs.
UNITED STATES OF AMERICA,
| Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SECOND CIRCUIT
STATEMENT AND OPINION BELOW
Petitioner prays that a writ of certiorari issue to review the
judgment of the United States Court of Appeals for the Second
Circuit affirming his criminal conviction on September 27, 1976
(see Appendix A, la). Petitioner was indicted and convicted upon
a single count for conspiracy to violate the federal narcotics laws
(21 U.S.C. §§812, 841(a)(1), 846, 960(a)(1) and 963] in the
United States District Court for the Eastern District of New
York. Petitioner was sentenced on December 19, 1975 by United
States District Judge Jacob Mishler, to a term of eight (8) years
imprisonment, a parole term of five (5) years and a $5,000 fine.
2
Petitioner was convicted along with seven (7) other
defendants, six of whose convictions were, likewise, affirmed in
the Court of Appeals. The conviction of one of the appealing
defendants (Barbara Hinton) was reversed and the indictment
was dismissed as to her (see Appendix B, 4a). Five of the
original thirteen defendants who were tried in this case were
acquitted after a jury trial. As of the preparation of this petition,
petitioner Cameron is at large on bail pending return of the
mandate from the Court of Appeals to the District Court of the
Eastern District of New York.
In the Court of Appeals, petitioner made applications for a
rehearing and rehearing en banc which were denied without any
opinion on November 16, 1976 (see Appendix C, 34a).
The jurisdiction of this Court is invoked under 28 U.S.C.
Section 1254(i).
QUESTIONS PRESENTED FOR REVIEW
|. Where petitioner had already been indicted on the
charges herein, and the indictment had been sealed pending
arrest of all the defendants, was petitioner’s interrogation at a
police station in relation to his recently being kidnapped and his
past activities in the narcotics trade, violative of his
constitutional rights, in view of the fact that such interrogation
was not preceded by Miranda warnings and petitioner’s
responses were being .imultaneously secretly recorded and
transmitted to the federal drug enforcement officers who had
procured the sealed indictment against him?
2. Where petitioner’s attorney had only recently spoken to
the police about petitioner’s kidnapping and drug-related
activities while petitioner was still in the hands of his
kidnappers, and such attorney had identified himself to the
police as petitioner’s counsel, was such counsel entitled to be
notified of petitioner's interrogation where the interrogation was
3
preceded by notification to federal narcotics agencies and the
Joint Task Force whose personne] listened in to petitioner’s
secretly tape recorded post-kidnapping statements in relation to
narcotics?
3. Did the trial court er: in allowing into evidence proof
that petitioner had been kidnapped for a large ransom, by Black
Muslims, in view of the fact that such proof prejudicially tended
to support both the contention of the indictment that petitioner
was a drug dealer, and a related inference that the kidnappers
very likely knew about petitioner's drug-related activities, and
for that reason had focussed on him as a financially viable
kidnap target? |
4. The Government offered proof at the trial, over defense
objection, that petitioner had not filed federal income tax
returns for the years 1969-1974. Was proof of petitioner’s failure
to file federal tax returns admissible to establish complicity in
the drug conspiracy charged against him? Was not such proof
offensive to petitioner’s Fifth Amendment right to refuse to
testify at the trial? And, was proof of failure to file tax returns
both irrelevant on the issue of conspiratorial membership, and
inflammatory insofar as it proved the commission of a separate
crime not charged in the indictment?
CONSTITUTIONAL PROVISIONS AND STATUTES
INVOLVED IN THIS CASE
This case involves the applicability and interpretation of the
Fifth and Sixth Amendments of the United States Constitution.
STATEMENT OF THE CASE
Petitioner Cameron was convicted of conspiracy to sell and
transport narcotics under Count I of the indictment which was
the only count in which he was named. The independent proof
against him tending to establish membership in the conspiracy
4
was extremely weak, consisting of the testimony of but one
witness (Morehead) who stated that in 1969 (six years prior to
the trial) he had once seen petitioner for about 20 minutes in an
apartment in Brooklyn where, with others present, petitioner
had demonstrated to him how to fold giassine bags properly,
and he had also seen petitioner with some empty plastic
sandwich bags.
Petitioner’s conviction was the direct result of two
categories of proof which together, or even separately, would
have been sufficient to propel petitioner into a guilty verdict. The
first of these related to a skein of evidence dealing with the
kidnapping of petitioner shortly prior to the publication of the
indictment herein. Following petitioner’s release by Black
Muslim kidnappers in exchange for a large ransom, petitioner
was energetically ‘debriefed’ by the police who were then
working covertly with Joint Task Force officials who had caused
petitioner to be indicted upon the instant charges. Petitioner, at
the time of the debriefing, was already under sealed indictment
which had been filed in the Eastern District Court of New York
prior to his kidnapping. During petitioner’s debriefing, or
interrogation — which was preceded by no Miranda or other
warnings to him of possible self-incrimination — petitioner
made oblique references to prior narcotics activity on his part,
being then wholly unaware of the sealed, but pending, charges in
this case. His remarks were in the context of the expressed
interest of his police interrogators to get to the root of the
kidnapping and murder activities of Black Muslims which
seemed to them to be directed mainly at black drug dealers.
Unbeknownst to petitioner, who was worn, battered and beaten
after three days of Black Muslim brutality, which included rectal
torture by firebrand, among other brutalities, his every word was
being secretly recorded and simultaneously transmitted to the
very federal and state officers in the next room who had earlier
procured his indictment in this case. The admission into
evidence of petitioner’s tape recorded statements, showing
knowledge peculiar mainly to those.involved in drug dealing, and
making it plain that he was a kidnap victim precisely because of
5
his presumed wealth garnered from narcotics, made it nnerenne
for petitioner to receive a fair. trial.
A second vitally prejudicial thrust against petitioner,
rendering a fair trial impossible, was the admission into
evidence, as proof of membership in the drug conspiracy, of the
fact that petitioner had not filed federal income tax returns from
1969 to 1974. From this fact, the jury was improperly invited to
speculate that petitioner had not filed tax returns only in order
to avoid disclosing income produced from the narcotics activity
charged in the instant case. The Government was, thus,
permitted to prove a crime not charged in the indictment (non-
filing) on the assumption that non-filers are involved in criminal
activities, which in petitioner’s case, related to illicit drug sales.
A. The Incriminating Statements Given by Petitioner to the
Police After his Rescue from the Kidnappers.
On January 29, 1975, the indictment herein was filed, but
was kept sealed pending arrests which did not begin until
February 20, 1975. On February 4, 1975, petitioner was
kidnapped by Black Muslims and word of this was relayed by
petitioner’s family to the police who, in turn, notified the Joint
Task Force investigating narcotics activity. Two Joint Task
Force officers (Garay and Mulhearn) who had worked on the
sealed indictment of petitioner, promptly notified the Assistant
U.S. Attorney in charge of this case of the fact of the
kidnapping. These officers then proceeded to look for petitioner,
in view of the sealed indictment naming him as a defendant, and
because they had been investigating him in relation to the instant
case since 1972.
(sn February 7, 1975, petitioner — after a large ransom was
paid — won release from his kidnappers. During his captivity,
he had been brutally tortured rectally (with a hot iron), pistol
whipped, kicked, and punched. His eyes had been taped closed
for three days, and he had little to eat, and scarcely any sleep
6
because of fear that he would be shot in the head, as threatened.
The Black Muslims had also threatened to chop the hands of his
young son off if the ransom was not paid.
With the help of a friend to drive him there, petitioner went
as soon as possible, after his release, to an address in Brooklyn
to check on his son for whose safety he had feared. The police,
alerted to his release earlier because of telephone surveillance at
the Brooklyn apartment which was their ‘command-post’, as well
as the ‘hiding’ place of petitioner’s wife and son, intercepted
petitioner and quickly brought him to the 77th Precinct.
Petitioner, while strenuously objecting at first to go with the
police, was, after much dispute and police pressure, finally
escorted by eight (8) officers to the 77th Precinct headquarters,
there to be interviewed by one Capt. Steproe — the senior
officer working on the kidnapping case. Petitioner was told by
the officers that, while he objected to going with them, they
would not take “No” for an answer.
During the time of petitioner’s captivity by Black Muslims,
his attorney had spoken with Capt. Steproe’s men advising them
that petitioner was a person previously convicted for narcotics
possession. This information, furnished to provide a perspective
for the police, had been passed on to Capt. Steproe, who upon
being later notified of petitioner’s release, directed his men to
intercept petitioner and bring him directly to the 77th Precinct.
At the same time, Capt. Steproe directed that all federal and
state narcotics units be invited to sit in on a secret taping of
petitioner at the 77th Precinct. Capt. Steproe conceded, during
the suppression hearing, that he and the federal officers and
Joint Task Force investigating drug activities were working
together as a team. Petitioner’s attorney was not notified of the
projected interview with his client.
In this setting, the two Joint Task Force officers (Garay and
Mulhearn) who had brought about petitioner’s indictment in this
case (which was already filed, but still sealed), were notified to
me ee
’
7
show up at the 77th Precinct to listen in to the ‘debriefing’ of
petitioner. These Joint Task Force officers notified the Assistant
U.S. Attorney in charge of the instant case, and for whom they
were working, that they were headed to the 77th Precinct.
Pursuant to his instructions, the Task Force officers took along
a grand jury subpoena to serve on petitioner — to use only as a
means of keeping him in town until it was decided when to
arrest him on the sealed indictment. There was no actual
intention to have him appear before the Grand Jury.
The two Joint Task Force officers, knowing of petitioner’s
sealed indictment, slipped into the room next to the one in
which petitioner was being questioned by Capt. Steproe at the
77th Precinct there, they listened in to the questions and answers
as petitioner went through a 4/4 hour secretly tape recorded
session, during which he was repeatedly discouraged from
leaving. On one occasion, in order to disarm the groggy and
yawning petitioner, a federal agent took over the questioning of
petitioner after being falsely introduced by Capt. Steproe as a
local or state police officer.
Capt. Steproe’s notes of the interrogation recorded the
secret ‘presence’ in the next room of both Joint Task Force
agents aforementioned and also noted that their attendance was
in relation to “Frank Mathews” — the primary named defendant
in the instant indictment who had fled prior to trial. From time
to time, the inquiry dealt with narcotics, the people in this
‘business’, and petitioner's activities in the field, as well as his
knowledge of other drug dealers. It is these responses of
petitioner which were admitted into evidence at the trial, over
objection, and after a suppression hearing. The excerpts played
for the jury arguably indicated a level of knowledge respecting
drug activities and personalities in the drug trade borne of close
association with narcotics traffic.
B. The Proofs Relating to Petitioner’s Failure to File Income
Tax Returns.
Although objected to by defense counsel, the trial court
allowed into evidence proof that petitioner had not filed income
tax returns for the tax years of 1969 to 1974. The proofs were in
the form of reports from a federal computer data bank showing
that no returns had been filed for the years in question under the
Social Security number belonging to petitioner. Although there
was no proof on petitioner’s part of large, or even moderate
expenditures, taking place during the period of the alleged
conspiracy, the proof of non-filing was offered and received as
evidence of membership in the conspiracy to sell drugs charged
in the First Count of the indictment.
REASONS FOR GRANTING THE WRIT
I.
The trial court erred in refusing to suppress petitioner's
statements to the police made by him after the indictment herein
was filed.
Petitioner was under indictment in the instant case
(although the indictment was still sealed) when the police
improperly conducted a four and one-half hour secretly tape
recorded interrogation which was contemporaneously overheard
by several federal and state narcotics agents interested in
petitioner’s narcotics activities. (Massiah v. United States, 377
U.S. 201; Kirby v. Illinois, 406 U.S. 682, 688; McCleod v. Ohio,
381 U.S. 356; United States v. Hayles [5 Cir. 1973]471 F.2d 788;
United States v. Frank [2 Cir.] 520 F.2d 1287, 1290-2). The
opinion below does not find this procedure offensive to
petitioner’s rights under Massiah v. United States, 377 U.S. 201,
because it concludes that the debriefing was not sponsored by
the federal authorities and that the officers conducting the
session did not know that petitioner was then under indictment.
9
The Court of Appeals also has concluded that petitioner’s
statements were made voluntarily. The panel’s decision on this
subject is open to question based upon various facts appearing
in the opinion and other record facts to which the panel gave no
notice.
The Court of Appeals’ opinion is amiss because it ignores
the fact that petitioner was in any extremely debilitated
condition and lacking in substantial volitional capacity as a
result of brutal torture and burnings at hands of his Black
Muslim captors during a lengthy and harrowing captivity.
Petitioner had, among other tortures, been burnt rectally by a
hot stove iron. The panel opinion notes that petitioner was
escorted by eight (8) police officers to the station house almost
immediately after his kidnap-release. There, petitioner sought to
leave several times, but was always talked out of leaving.
The Court of Appeals’ opinion also overlooks the fact that
the police captain in charge of petitioner's interrogation notified
all federal and state drug authorities to attend the secret
debriefing — knowing that petitioner’s state drug case was on
appeal and that the Joint Task Force was extremely interested in
petitioner. Indeed, the Joint Task Force agents (state and
federal) most directly responsible for petitioner’s indictment in
the instant case, came to the station house and listened to the
interrogation in a private room wired for them by the police
interrogation team which was bolstered by a federal agent falsely
introduced to petitioner as a local police officer.
The tape recording of petitioner is a skillfully conducted
interrogation broaching the subject of drugs on several
occasions. The interrogator, a police captain, brought together a
composite of narcotics enforcement personnel at every level of
government — state and federal. This officer, Capt. Steproe,
either knew that petitioner was indicted (because he invited the
very federal and state agents who had procured petitioner’s
indictment in this case), or he should have known. The federal
10
and state officers who knew of petitioner’s indictment were
present in an adjoining room to overhear his interrogation and
such coordinated state-federal action should not leave room for
the high ranking police officer in charge of the inquiry to plead
ignorance. Capt. Steproe was in a position to know of
petitioner's indictment and his dubious lack of knowledge
should not constitute a buffer against responsibility for putting
petitioner on notice. Capt. Steproe could not constitutionally
seek to remain ignorant of petitioner's indictment while dealing
so closely with those who were investigating petitioner and had
already procured an indictment against him. Moreover,
petitioner was in a position equivalent to custody and his lack of
knowledge of the fact of his indictment required that specific
warnings be put to him (Lopez v. Zelker, 344 F.S. 1050, affd.,
465 F.2d 1405; see also dissent of Judge Friendly in United
States v. Massimo, 432 F.2d 324, 326).
Even assuming that petitioner’s post-indictment statements
were voluntary under Miranda standards, he would have been
entitled to very particularized warnings setting forth the pitfalls
of self-representation, United States v. Satterfield (opin. of
Knapp, U.S.D.J., S.D.N.Y. 7-8-76; 417 F.S. 293, 303; 19 Cr.L.
Rptr. 238; affd., 2 Cir., 12-776); see also Lopez v. Zelker, 344
F.S. 1050, affd., 465 F.2d 1405.
Moreover, the panel opinion overlooks the fact that
petitioner's attorney had telephoned the police relative to his
client during the period of petitioner's kidnapping. This fact was
known to Capt. Steproe who, nonetheless, made no effort to
alert petitioner's attorney regarding petitioner’s interrogation.
Since petitioner's attorney did telephone the police relating to
the kidnapping prior to petitioner’s release by his captors,
counsel was entitled to be notified of the proposed interrogation
of his client. Petitioner's attorney was identifiable and known
prior to the interrogation. He had already discussed the
kidnapping with the police and was not in the category of
“house counsel” referred to in United States v. Masullo, 489
F.2d 217, a case relied upon by the Court of Appeals.
——~——,
Finally, any chance that petitioner had to receive a fair
trial was destroyed by permitting the jury to learn that he had
recently been kidnapped for a ransom by Black Muslims. The
fact of the kidnapping and the ransom demand improperly
stamped petitioner as a narcotics dealer. In the context of the
entire case, these facts made it clear to the jury that the Muslims
had selected petitioner as a hostage only because he was known,
or believed to be, a ‘well-heeled’ narcotics seller.
The trial court committed reversible error by allowing into
evidence proof that petitioner had not filed federal tax returns.
The proffer was irrelevant to the crime of narcotics conspiracy,
inflammatory, and violative of petitioner's Fifth Amendment
rights.
In an effort to bolster its proofs against petitioner, the
Government offered into evidence proof that he had not filed
any federal income tax returns for the years from 1969
through 1974 (Tr. 6007 et seq.). The form of the offer was
testimony from an I.R.S. clerk to the effect that a computer
search of the records of the Internal Revenue Service showed no
returns filed under petitioner’s Social Security number for the
years in question. The proof was admitted over defense counsel’s
repeated objection.
The discussion in the opinion of the Court of Appeals on
this issue (Appendix B,23a) is based upon the misconception
that “large expenditures were made by Cameron. . . .” In writing
to this mistaken effect, the Court of Appeals overlooked the fact
that the trial proofs showed that over a seven (7) year period of
time, petitioner spent only a paltry $3,000; that is, less than $500
per year. And, none of the items purchased consisted of
extravagant merchandise, but rather household items and
clothing. Nor did the record show that petitioner had bought or
owned any expensive vehicles, such as was the case with the
oe td
12
other defendants. The factual foundation for the panel's
discussion of petitioner's failure to file tax returns was, thus,
completely distorted.
| We recite the foregoing only to set straight the framework
in which the panel opinion sought to deal with the question of
the propriety of allowing into the record proof that petitioner
did not file income tax returns from 1969 to 1974.
We do not quarrel that there is a line of cases supporting
the admissibility of proof showing the sudden acquisition of
large amounts of money, these large amounts being consistent
with a defendant’s involvement in the revenue producing
criminal enterprise with which he is charged (United States v.
Tramunti, 513 F.2d 1087, 1104; United States v. Falley, 489
F.2d 33). Proof of that sort was not developed against the
petitioner in this case.
Petitioner was shown, however, to have failed to file income
tax returns from 1969 to 1974, and from this the jury was invited
to infer that the failure to file returns was indicative of
implication in the crime of conspiring to deal in narcotics.
Failure to file an income tax return is not an omission tending to
indicate that the limited monies utilized by petitioner to live on
in the years of non-reporting were derived from an illegal source
— let alone one involving the drug conspiracy with which he was
charged. In its opinion the Court of Appeals, however, flatly
States that failure to file a return is indicative of involvement
with income not legitimate in its source — and so is relevant on
the issue of complicity in a drug conspiracy (Appendix B, 24a).
For this bald assertion there is absolutely no basis offered except
the panel’s bare ipse dixit. In so ruling, the panel did not pin its
conclusion on any criteria borne of tested experience, or
otherwise subject to verification. The proposition thus advanced
was completely new, and hardly suitable to implementation in
criminal trials where something more than the merest suggestion
of probabilities is necessary before “proofs” become operative
criteria for fastening guilt upon persons otherwise presumed to
be innocent.
13
The first misstep of the Court of Appeals was that it
completely overlooked the decision of the United States
Supreme Court in United States v. Sullivan, 274 U.S. 259.
There, the Supreme Court ruled that a taxpayer may not refuse
to file a tax return simply because he fears that such filing is apt
to lead to disclosure of his involvement in crime. In Sullivan, the
Supreme Court observes that the mere act of filing a tax return
does not immediately carry with it an infringement of one’s Fifth
Amendment rights against self-incrimination. The reason for this
is that the filing of the return may truthfully be crafted to avoid
any disclosures which are criminal per se, or the return itself
may be utilized to make the claim of self-incrimination. The act
of filing is, however, not to be viewed as co-extensive with self-
incrimination.
Since the very act of filing a return cannot be equated with
incrimination under the view expressed in Sullivan, supra, the
failure to file a return should, likewise, have no collateral
criminal impact. However, the panel opinion below specifically
provides that the failure to file is some proof of involvement in
crime because the filing omission bespeaks the existence of
income derived from criminal activity. The premise of the panel
opinion on this subject is, thus, directly at odds with the
rationale of the Supreme Court in the Sullivan case, supra.
The opinion of the Second Circuit also warrants concern
because it permits a jury to be instructed that it may infer
complicity in a narcotics conspiracy merely from the act of non-
filing of a tax return. The allowance of such an inference has no
experiential basis or statistical validity. As has been stated in the
United States Supreme Court, in United States v. Barnes, 412
U.S. 837, 844:
“Common law inferences, like their statutory
counterparts must satisfy due process standards
in the light of present-day experience.”
14
Numerous cases support the proposition that before an inference
of ultimate criminal complicity growing out of an intermediate
fact may be suggested to a jury, there must be a valid and
rational basis supporting the hypothesis (Tor v. United States,
319 U.S. 463, 467; United States v. Gainey, 380 U.S. 63; Turner
v. United States, 396 U.S. 398; Leary v. United States, 395 U.S.
6; United States v. Romano, 382 U.S. 136). Failure to file tax
returns is not an uncommon phenomenon. Highly placed
persons in government and industry (i.e., president of N.B.C.)
are known to be non-filers. It is pure speculation to equate-non-
filing with membership in a drug conspiracy and to allow the
fact of non-filing to act as a substitute for conspiratorial proof.
While petitioner’s failure to file tax returns may involve a
decision on his part to stand mute before the Internal Revenue
Service, such silence should not be a basis for inferring
criminality on his part for crimes other than the failure to file a
tax return (see Griffin v. California, 380 U.S. 609; United States
v. Hale, 422 U.S. 171; Johnson v. United States, 318 U.S. 184;
Grunewald v. United States, 353 U.S. 397; Shepherd v. United
States, 290 U.S. 96, 104).
The rule endorsed by the opinion of the Court of Appeals is
novel and threatens to engulf defendants in all manner of cases,
both criminal and civil. Proof of one crime (non-filing) should
not be admissible as proof of an altogether different charge or
claim where there is no rational nexus for making the desired
assumptions.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
s/ Lawrence K. Feitell
Attorney for Petitioner
~
la
APPENDIX A
JUDGMENT OF THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
FILED SEPTEMBER 27, 1976
A. DANIEL FUSARO, CLERK
At a stated Term of the United States Court of Appeals for
the Second Circuit, held at the United States Courthouse in the
City of New York, on the twenty-seventh day of September, one
thousand nine hundred and seventy-six.
Present:
HON. STERRY R. WATERMAN
HON. PAUL R. HAYS
HON. THOMAS J. MESKILL
Circuit Judges,
76-1024 75-1402
75-1418 75-1441
75-1443 75-1444
75-1442 75-1445
United States of America,
Plaintiff-Appeliee,
Se re Se
2a
‘Appendix A
Frank Matthews, a/k/a “Pee Wee”, “Big Book”, “Frank
McNeil”, “Mark IV Frank”, Barbara Hinton, a/k/a “Barbara
Matthews”, Gattis Hinton, a/k/a “Bud”, “Slim”, “Joseph
Jackson”. William Beckwith, a/k/a “Mickey”, “McGill”,
“Miguel”, Donald Conner, Robert Currington, a/k/a “Pedro”,
Charles William Cameron, a/k/a “Swayzie”, James Wesley
Carter, a/k/a “Brother Carter”, “Big Head Brother”, “Big B”,
John Darby a/k/a “Pop”, “John Smith”, Thelma Darby, a/k/a
“Flossie”, “Thelma Reese”, David Clement Bates, a/k/a “Rev.
Walter Rosenbaum, Ernest Robinson, a/k/a “Ernie”, James E.
Martinez, Scarvey McCargo, Fred Brown, Lucy Mathews,
Marzella Steele Webb,
Defendants,
Barbara Hinton, a/k/a “Barbara Matthews”, William Beckwith,
a’/k.a “Mickey”, “McGill”, “Miguel”, James Wesley Carter,
a/k/a “Brother Carter”, “Big Head Brother”, “Big B”, Scarvey
McCargo, Charles William Cameron, a/k/a “Swayzie”, John
Darby, a/k/a “Pop”, “John Smith”, Thelma Darby, a/k/a
“Flossie”, “Thelma Reese”, David Clement Bates, a/k/a “Rev.”,:
Defendants-Appellants.
Appeal from the United States District Court for the
Eastern District of New York.
This cause came on to be heard on the transcript of record
from the United States District Court for the Eastern District of
New York, and was argued by counsel.
3a
Appendix A
ON CONSIDERATION WHEREOF, it is now hereby
ordered, adjudged, and decreed that the judgments of said
District Court be and they hereby are affirmed except as to
appellant Barbara Hinton, the said judgment be and it hereby is
reversed and that the action as to Barbara Hinton be and it
hereby is remanded to said District Court for further
proceedings in accordance with the opinion of this court.
A. DANIEL FUSARO
Clerk
by
Vincent A. Carlin
Chief Deputy Clerk
4a
APPENDIX B
OPINION OF THE COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
>So
Nos. 1018, 1019, 1023,
1062-1065, 1390—September Term, 1975.
(Argued July 19, 1976 Decided September 27, 1976).
Docket Nos. 75-1402, 75-1418, 75-1441-75-1445, 76-1024
oo
UNITED STATES OF AMERICA, |
Plaintiff-A ppellee,
Vv.
BARBARA HINTON, WILLIAM BECKWITH, CHARLES
’ WILLIAM CAMERON, JAMES W. CARTER, JOHN DARBY,
THELMA DARBY, Davip BATES and SCARVEY MCCARGO,
Defendants-A ppellants.
-o oe
Before:
WATERMAN, HAYS and MESKILL,
Circuit Judges.
->oo
Appellants were all charged in one indictment and
were convicted after jury trial in the Eastern District of
New York, Mishler, Ch. J., of having conspired to violate
the federal narcotics laws, 21 U.S.C. §§812, 841(a)(1), 846,
960(aX1) and 963; and four of the eight, Barbara Hinton,
William Beckwith, John Darby, and David Bates, were
also convicted of violating 21 U.S.C. §843(b) through the
use of the telephone in furtherance of the objectives of the
conspiracy. Upon their several appeals all the convictions,
save that of Barbara Hinton, are affirmed. The conviction
of Barbara Hinton is reversed and the indictment, as to
her, is ordered dismissed.
Fy TN Eo om nd wena cee ie al oT
SE
Sa
Appendix B
oo
JOEL A. BRENNER, New York, N.Y. (Gino E.
Gallina, New York, N.Y., on the brief), for
Defendant-Appellant Hinton.
IRVING J. BisHoP, Brooklyn, N.Y., for Defend-
ant-Appellant Beckwith.
LAWRENCE K. FEITELL, New York, N.Y. for
Defendant-A ppellant Cameron.
JOSEPH I. STONE, New York, N.Y., for Defend-
ant-Appellant Carter.
JEFFREY C. HOFFMAN, New York, N.Y. for
Defendant-A ppellant John Darby.
LESLIE A. BLAU, New York, N.Y., for Defend-
ant-Appellant Thelma Darby.
HAROLD R. VENOKUR, Brooklyn, N.Y. for De-
' fendant-Appellant Bates.
Gary R. SUNDEN, New York, N.Y., for Defend-
ant-Appellant McCargo.
PauL A. DEPEtTRIS, Assistant U.S. Attorney
(David G. Trager, U.S. Attorney, Eastern
District of New York, Paul B. Bergman and
Alvin A. Schall, Assistant U.S. Attorneys,
on the brief), for Plaintiff-Appellee.
-
WATERMAN, Circuit Judge:
Following a ten week jury trial in the United States
District Court for the Eastern District of New York,
appellants Barbara Hinton, William Beckwith, James
Carter, David Bates, Scarvey McCargo, Charles Cameron,
John Darby, and Thelma Darby were convicted of
conspiracy to violate the federal narcotics laws, 21 U.S.C.
6a
Appendix B
§§812, 841(a)(1), 846, 960(aX1) and 963. Four of them,
Hinton, Beckwith, John Darby, and Bates, were also
convicted of using the telephone to further the conspiracy,
21 U.S.C. §843(b). In support of their prayers for reversal,
appellants raise a plethora of claims; but, save one raised
by Barbara Hinton as set forth below, we find these
claims to lack merit. Accordingly, we affirm all of the
convictions except the conviction of Barbara Hinton.
I. FACcTs
Appellants, and ten other co-defendants, were charged
in Count One of an indictment filed January 29, 1975, with
conspiring between September, 1968, and January, 1975,
to import into the United States, and to distribute and
possess with intent to distribute, substantial quantities of
heroin and cocaine. In Counts Two through Nine of the
indictment, many, though not all, of the defendants were
separately charged with using the telephone to further
the conspiracy charged in Count One.!
Two defendants pleaded guilty prior to trial.2 Three
other defendants, including Frank Matthews, the kingpin
of the narcotics operation, were, and still are, fugitives.*
Of the remaining thirteen defendants who proceeded to
trial before Chief Judge Mishler, five were acquitted by
the jury.‘ The eight convicted at trial, all of whom now
1 Hinton was so charged in two counts, Beckwith in five counts, John
Darby in five counts, Bates in two counts, Thelma Darby in one count,
and Matthews in six counts.
2 Donald Conner and Walter Rosenbaum. Conner pleaded guilty to the
conspiracy charge and was sentenced to ten years imprisonment, a
special parole term of five years, and a $10,000 fine. Rosenbaum, who
testified as a Government witness, pleaded guilty to a superseding
information charging a violation of 21 U.S.C. §843(b); and the court
suspended the imposition of sentence, imposing a three year term of
probation. The underlying conspiracy charge was dismissed.
3 Gattis Hinton and Fred Brown are the two others yet at large.
4 Robert Currington, Ernest Robinson, James E. Martinez, Lucy
——— LT SH IH
ee te eg mn eee —
a
wm
Ta
Appendix B
appeal their convictions, were each sentenced to at least
two years imprisonment; and, except for John Darby and
Carter, they have all been released pending appeal.
No elaborate recitation of the rather extensive facts
need be given in order to construct a backdrop for the
arguments appellants have raised. In essence, the Govern-
ment’s proof at trial established the existence of a large
narcotics conspiracy operating from 1968 through 1975,
with the not uncommon structure of receivers, distribu-
tors, couriers for sub-organizations, and suppliers of
diluents used in the “cutting” of narcotics.
Matthews, and Marzella Steele Webb, named in the conspiracy count,
were so acquitted.
5 The judgments of conviction, and the sentences imposed, were entered
against the appellants as follows:
Barbara Hinton - convicted on conspiracy count and on one telephone
count; acquitted on second telephone count. Sentenced to two years
imprisonment and a three year special parole term on Count 1; to a
concurrent two year term of imprisonment on the telephone count.
William Beckwith - convicted on conspiracy count and one telephone
count. Sentenced to fifteen years imprisonment, a special ten year parole
term, and a $25,000 fine on Count One; to a concurrent four year prison
term on the telephone count.
James W. Carter - convicted on conspiracy count. Sentenced to fifteen
years imprisonment and a five year special parole term.
Scarvey McCargo - convicted on conspiracy count. Sentenced to five
years imprisonment and a five year special parole term.
Charles W. Cameron - convicted on conspiracy count. Sentenced to
eight years imprisonment, a five year special parole term, and a $5,000
fine.
John Darby - convicted on conspiracy count and five telephone counts.
Sentenced on Count One to fifteen years imprisonment, a five year special
parole term, and a $25,000 fine; on Counts Four through Eight, to three
years imprisonment, each consecutive to each other, but concurrent to
Count One.
Thelma Darby - convicted on conspiracy count; acquitted on telephone
eount. Sentenced to five years imprisonment, a five year special parole
term, and a $25,000 fine.
David C. Bates - convicted on conspiracy count and on one telephone
count: acquitted of one telephone count. Sentenced to eight years
imprisonment, a special parole term of five years, and a $5,000 fine on
Count One; to a concurrent four year prison term on the telephone count.
8a
Appendix B .
Frank Matthews, common-law husband of appellant
Hinton, occupied a central position in the operation; and it
was he who principally orchestrated the importation of
drugs from connections abroad, largely from Venezuela.
The drugs were then diluted and packaged at one of the
organization’s drug “mills,” such as the apartment located
at 925 Prospect Street, Brooklyn, nicknamed the “Pon-
derosa,” and were thereafter distributed by organization
lieutenants and other connections in Maryland,
Pennsylvania, Ohio, New York, North Carolina, and other
United States locations. McCargo, a Matthews lieutenant,
worked principally at the “Ponderosa,” cutting and
bagging narcotics. Carter, an upper-level receiver of
narcotics from the organization, acted as the major
distributor in Maryland, utilizing a sub-cadre of couriers
and connections in that state. For instance, in late 1970,
there was a shortage of heroin in Maryland; and several of
Carter’s people met to discuss the problem. Purcel Wylie,
a Carter courier, told one of Carter’s customers, Norman
Coleman, that Frank Matthews was Carter’s connection
and that to obtain a supply of narcotics he was to call a
phone number in New York to contact Matthews’ wife,
Hinton, and that she would connect Wylie with one of the
organization’s lieutenants who would supply the heroin.
John Darby, a key lieutenant in the organization,
supervised the distribution of narcotics in Pennsylvania.
After Darby was arrested in September, 1972, and later
was sentenced on a state “gun” charge to imprisonment in
New York, his wife, appellant Thelma Darby, assumed
his functions in the organization. In 1974, in particular,
she had frequent contact with Walter Rosenbaum, who
supplied the organization with mannitol and quinine used
in cutting narcotics. Bates and Cameron, major receivers
of narcotics from the Matthews organization, distributed
in Pennsylvania and North Carolina, respectively. Beck-
9a
Appendix B
with acted as one of Matthews’ lieutenants, assisting in
the acquisition of diluents through Rosenbaum and other
contacts. There was also evidence that Beckwith owned
one of the organization’s “cutting mills,” an apartment at
101 E. 56th Street, Brooklyn, from which, among other
things, a 32-gallon drum and oar used to cut and mix
heroin, sifters, spoons, and other “cutting” paraphernalia,
cases of quinine, various quantities of heroin and cocaine,
and approximately $148,000 in cash were seized on
September 15, 1972, during a search incident to a valid
warrant.
Investigation by federal and state narcotics agents of
the Matthews organization commenced in 1971, ap-
parently as a result of the observations of one Detective
Kowalski of the New York City Police Department, who
lived at 180 Clarkson Avenue, Brooklyn, a building in
which Matthews and Hinton also maintained an apart-
ment. In 1971 and 1972, Kowalski observed several
of the appellants, including Hinton, John and Thelma
Darby, McCargo, and Cameron, frequently entering and
leaving the apartment; and, on occasion, he observed them
carrying paper bags, attache cases, and suitcases.
Kowalski’s observations triggered surveillance by federal
and state authorities of the comings and goings of
Matthews and other organization members from other
locations utilized by the organization, including 3333
Henry Hudson Parkway, Bronx. In 1972, surveillance
was greatly increased; and in June and August of that
year, two court-ordered wiretaps were obtained for the
3333 Henry Hudson Parkway apartment and for 7
Buttonwood Road, Toad Hill, Staten Island, a large
residence built by Matthews and Hinton. A September,
1972, search of the 130 Clarkson Avenue apartment
followed shortly thereafter; and various documents were
turned up which concerned money received from nar-
10a
Appendix B
cotics purchasers and disclosed some of the expenditures
made by the organization.
The arrest of various organization members in 1972 and
1973, such as that of Norman Coleman in March, 1972,
and their agreements to cooperate with the Government,
assisted federal and state authorities in pursuing the
already extensive investigation underway. In January,
1973, Frank Matthews was arrested in Las Vegas,
Nevada. His arrest, and the organization’s efforts
directed at meeting his $325,000 bail bond, reduced from
an initial $5,000,000, threw the organization into tem-
porary disarray. Following the posting of the bond,
Matthews “jumped“ bail; and he has since been at large.
After Rosenbaum’s arrest and agreement to cooperate
with the Government in June, 1973, undercover agents
began to infiltrate the organization, posing at times as
prospective suppliers of the then scarce diluents quinine
and mannitol. Organization narcotics sales nonetheless
continued through early 1975.
II. THE INDICTMENT OF BARBARA HINTON
Appellant Hinton raises seven points of error, one of
which is of importance and is discussed forthwith. She
claims that her indictment by the same grand jury which
heard her give immunized testimony constitutes a viola-
tion of her Fifth Amendment rights and her right to due
process, and that, accordingly, as to her, the indictment
must be dismissed and her conviction after having been
tried upon that indictment must be reversed.
The grand jury which returned the instant indictment
was convened in June, 1972. On November 21, 1972,
Hinton appeared before that grand jury for the first time.
After giving some 20 pages of testimony, during which
she claimed her privilege against self-incrimination as to
nearly all questions not pertaining to her “pedigree,” she
lla
Appendix B
was excused. The Government subsequently sought an
order granting Hinton immunity; and on February 16,
1973, the late Judge George Rosling of the U.S. District
Court, Eastern District of New York, signed such an
order. On February 20, 1973, Hinton was recalled to
testify; but she persisted in claiming her privilege and
was shortly thereafter excused, apparently to enable the
prosecutor and her attorney to discuss the immunity
issue. She was then recalled on both February 21 and
March 7, 1973, during which appearances she gave
approximately 200 pages of testimony. Two years later,
this same grand jury, the grand jury which had heard her
immunized testimony, indicted her; and she stood trial on
the allegations contained in that indictment.
At trial, Hinton’s counsel moved at least three times for
a dismissal of the indictment, or, in the alternative, for a
hearing on the issue of whether the indictment had been
tainted by the improper use of her immunized testimony.
Judge Mishler did not dismiss the indictment, and at first
declined to grant the alternative request for a hearing;
but he stated that he would examine the grand jury
minutes to ascertain whether an independent source
existed for the evidence upon which the indictment was
founded. Later, upon a renewed motion, the court stated
that “{i}f the defendant is convicted I will give you a full
hearing.” However, when counsel, after the Government
had rested, again moved for a hearing, the judge, stating
that he had decided against Hinton’s petition, retracted
his earlier commitment.®
6 Judge Mishler concluded that there was no need for a hearing as “there
is no question in my mind that the Government used none of the testimony
that she gave before the grand jury.” There is no evidence in the record,
however, that the Government was ever required to affirmatively
establish that the indictment was based on evidence fully independent of
Hinton’s testimony.
Judge Mishler further concluded, in agreement with the Government's
12a
Appendix B
Hinton contends that, as to her, the indictment was
necessarily tainted by the grand jury’s having heard her
immunized testimony; and thus that she has suffered an
unconstitutional deprivation of her privilege against self-
incrimination. She further contends that, inasmuch as the
Government was never required to show that it had an
independent source for the evidence which formed the
basis of her indictment, the trial court’s refusal to conduct
a hearing on the issue of taint constitutes reversible error.
The Government counters that the evidence underlying
Hinton’s indictment was obtained or derived from an
independent source because: (1) Hinton’s’estimony was
entirely self-exculpatory; (2) she was indicted nearly two
years after giving her immunized testimony; and (3) the
evidence incriminating Hinton came primarily from one
Donald James, who testified before the grand jury prior to
Hinton, and also came from the wiretaps conducted in
June through September, 1972.
At first glance, it would seem that where the indictment
is returned by the same grand jury which heard the
defendant’s immunized testimony, it would be virtually
impossible for the Government to show that it had an
independent source for the indictment’s evidentiary base
as “[djespite any instructions from the judge, it would be
well nigh impossible for the grand jurors to put [the
immunized witness’s] answers out of their minds, ef.
Bruton v. United States, 391 U.S. 123 (1968)... .”
Goldberg v. United States, 472 F.2d 513, 516 (2d Cir.
position, that the necessity for permitting the same grand jury to indict
Hinton that had heard Hinton’s immunized testimony was occasioned by
the fact that the grand jury's term extended from 1972-1975 during
which so many witnesses were heard in connection with this conspiracy
that “it’s very likely that some of the witnesses who appeared before the
Grand Jury, some of them might be targets, and were also indicted by the
Grand Jury. It seems like a needless process, to just hear the entire
testimony and hand it over to [a new] Grand Jury for indictment.”
3a
Appendix B
1973).’
Here, however, the issue is complicated by the Govern-
ment’s assertions, assertions emphasized by the trial
court, that, in fact, Hinton gave no incriminating testi-
mony before the grand jury, and that she did not admit
any knowing involvement in the facts and circumstances
later charged in the indictment against her. From this,
the Government contends in its brief that Hinton’s
testimony was not necessary to form a factual predicate
for her indictment. The Assistant United States Attorney
did admit at oral argument, however, that it was not until
after Hinton’s own testimony that he realized the extent of
her involvement. Further, the Government argues that
Hinton’s denial of any involvement in the narcotics
operation the grand jury was studying left her in the same
position as if she had claimed the Fifth Amendment
privilege.
Analysis must begin with 18 U.S.C. §6002, the im-
munity statute. It provides, in relevant ; art, that:
7 It has been suggested, however, that this dictum from Judge Friendly’s
opinion in Goldberg has been overruled by United States v. Calandra, 414
U.S. 338 (1974). United States v. Dornau, 491 F.2d 473, 481 n.15 (2d Cir.
1974). This suggestion is based on the dictum in Calandra, supra, at 345,
that “an indictment valid on its face is not subject to challenge on the
ground that the grand jury acted . . . on the basis of information obtained
in violation of a defendant's Fifth Amendment privilege against self-
incrimination,” citing Lawn v. United States, 3565 U.S. 339 (1958). We
agree with appellant Hinton that the Dornau suggestion is suspect,
inasmuch as the Goldberg panel considered Lawn and concluded that that
decision did not settle the question, 472 F.2d at 516 n.4, a viewpoint which
we share. Lawn involved two successive grand juries, the first of which
heard defendants’ testimony and received their reocrds, and the second of
which returned the indictment upon which they were tried. In direct
contrast to the instant case, the defendants in Lawn “had no reason,
beyond suspicion, to believe that the [second] grand jury considered any
of the materials produced by petitioners before the [first] grand jury.”
355 U.S. at 348-49. Where the grand jury which hears the witness's
testimony and the grand jury which indicts is the same grand jury, as
here, consideration of the immunized testimony by that jury is a virtual
certainty.
14a
Appendix B
[N]o testimony or other information compelled under
the order [granting immunity] (or any information
directly or indirectly derived from such testimony or
other information) may be used against the witness in
any criminal case, except a prosecution for perjury,
giving a false statement, or otherwise failing to
comply with the order.
The question here is whether any of Hinton’s immunized
testimony, or any information directly or indirectly
derived from that testimony, was used against her in her
prosecution. In Kastigar v. United States, 406 U.S. 441
(1972), in upholding the constitutionality of §6002, the
Court stated that once a défendant demonstrates that he
has testified under immunity to matters relating to the
federal prosecution, the prosecution has “the affirmative
_ duty to prove that the evidence it proposes to use is
derived from a legitimate source wholly independent of
the compelled testimony.” 406 U.S. at 460. As we have
previously emphasized, the burden imposed by Kastigar
requires not merely a showing by the Government that
the immunized testimony was not the indictment’s “legal
cause”; rather the prosecution must establish that the
legitimate evidence upon which the indictment was
founded was gleaned from a source “wholly independent
of the compelled testimony.” United States v. Kurzer, 534
F.2d 511, 516 (2d Cir. 1976).
The cases since Kastigar in which appellate courts were
faced with the claim that evidence was improperly
derived from immunized testimony, cr that the im-
munized testimony was itself improperly used, are of
little assistance in resolving the question here. None of
them involved the situation where the same grand jury
which heard a witness’s testimony returned an indictment
against that witness based upon facts about which the
ee
1Sa
Appendix B
witness testified.* It is clear from these subsequent cases,
however, that the fact that none of Hinton’s immunized
testimony was introduced at the trial does not resolve the
question, for §6002 speaks of any use of the immunized
testimony against the witness in any criminal case, and so
prohibits its use not merely at trial, but in the grand jury
proceedings as well. United States v. Kurzer, supra; cf.
Kirby v. Illinois, 406 U.S. 682, 688-9 (1972).
We cannot agree with the trial judge that the Govern-
ment has satisfied its burden of demonstrating a “wholly
independent” source for the evidence upon which Hinton’s
indictment was grounded. Even if Hinton in her testi-
mony before the grand jury substantially denied any
involvement in the conspiracy, that denial does not
preclude the possibility of improper use against her of her
testimony. A juror can draw an inference of a witness's
guilt from either a confirmation of, or a denial of
participation in, acts about which he is questioned. For
instance, if witness X denies involvement in a situation in
which one or several other witnesses have already
confirmed X’s participation, the jurors could reasonably
draw an inference that X had not truthfully testified
about the incident. Distrust of his testimony on that one
point could reasonably lead the jurors to distrust all or a
large part of X’s testimony on other matters. If witness X
had kept silent, or had been permitted to assert his Fifth
Amendment privilege, those negative inferences would
x United States v. Kurzer, 534 F.2d 511 (2d Cir. 1976); United States v.
Bianco, 534 F.2d 501, 510-11 (2d Cir. 1976); United States v. DeDiego, 511
F.2d 818 (D.C. Cir. 1975); United States v. First Western State Bank of
Minot, North Dakota, 491 F.2d 780 (8th Cir.), cert. denied sub nom.
Thompson v. United States, 419 U.S. 825 (1974); United States v.
Catalano, 491 F.2d 268, 272 (2d Cir.), cert. denied, 419 U.S. 825 (1974);
United States v. McDaniel, 449 F.2d 832 (8th Cir.), on remand, 352 F.
Supp. 585 (D. N.Dak. 1972), aff'd, 482 F.2d 305 (8th Cir. 1973). See also
United States v. Dornau, 359 F . Supp. 684 (S.D.N.Y. 1973), rev'd on other
grounds, 491 F.2d 473 (2d Cir.), cert. denied, 419 U.S. 872 (1974).
és.
16a
Appendix B
have been precluded.
We are thus unpersuaded by the Government’s conten-
tion that the evidentiary basis for the indictment of
Hinton was derived in toto from the testimony of Donald
James and the wiretaps. While that evidence may have
been incriminating, it is difficult, if not impossible, to
to determine, without questioning the grand jurors them-
selves, whether, standing alone, it would have justified the
indictment of Hinton. The Government found it necessary
to call Hinton under grant of immunity after James had
testified, and this would tend to indicate his testimony
was not sufficient to inculpate her, and the jurors needed
to have her face them before deciding to indict.
The fact that Hinton was indicted some two years after
she testified also fails to negate the existence of taint. As
she notes, we have no information as to whether her
testimony was later reread to, or summarized for, the
grand jury, or whether any leads or other information
were derived from her testimony that were later used by
the Government in obtaining evidence to influence the
grand jury’s decision whether to indict her. This Govern-
ment argument that the lapse of time cleanses taint
borders on the frivolous: there was but one indictment,
and it was returned against all of the defendants when the
grand jury had completed its four-year studies. Likewise,
the Government’s final argument is also particularly
unconvincing; to wit, that it would have been too costly
and time-consuming to convene a new grand jury to indict
Hinton inasmuch as the original grand jury had heard
scores of witnesses during its four-year term.
Thus we conclude that there has been no compliance
with the Kastigar requirement that the Government must
affirmatively prove that the evidence against Hinton was
derived from a wholly independent source; but we are
now faced with the equally important issue of whether a
ee ee ee eee
A ae
17a
Appendix B
hearing to ascertain whether the immunized testimony
was improperly used is a fit remedy to be applied here.
We are convinced that such a hearing on the question of
taint would not suffice. Beyond the forseeable difficulties
of establishing at a hearing that the grand jurors, when
they decided to indict, did not improperly use the
immunized testimony or leads or evidence derived from
it, for us to condone the practice of having the same grand
jury that heard the immunized testimony indict the
witness who so testified’ is to invite action where the cure
is worse than the malady. The prospect of peering into the
grand jurors’ minds, or of examining them individually,
to ascertain whether Hinton’s testimony was improperly
used, is both impractical and unpalatable.’® To so defile
the secrecy of the grand jury process in order to inquire
into apparent slipshod prosecutorial practices is to
compound the problem the Government has created,
rather that to alleviate it. The alternative of convening a
grand jury distinct from that which heard the immunized
testimony is not so onerous as to justify the jeopardizing of
a defendant’s Fifth Amendment rights. To hold otherwise
is to permit intrusion into the long-approved common law
9 Of Course the right of any grand jury to consider (18 U.S.C. §6002) “a
prosecution for perjury, giving a false statement, or otherwise failing to
comply with the order [granting immunity’ is not involved in this appeal
in any way.
10 The apparent necessity for examining the grand jurors themselves at a
hearing to determine whether any of the immunized testimony was
improperly used against the defendant does not pertain in those cases
where the question is whether an illegitimate use was made by a
subsequent, entirely separate grand jury or at the trial of the defendant.
In those cases, exploration of the question of taint can be made through
examination of the defendant, the witnesses for the prosecution, and the
witnesses whose testimony incriminated the defendants, see, ¢.g., United
States v. Kurzer, 534 F.2d at 515-518, and by review of the prosecution's
evidence and of the grand jury transcript, see. e.g. United States v.
Bianco, 534 F.2d at 509-11; United States v. First Western State Bank of
Minot, North Dakota, 491 F.2d at 786-788.
— = Zz
18a
Appendix B
secrecy of the grand jury process.
We believe that as a matter of fundamental fairness, a
Government practice of using the same grand jury that
heard the immunized testimony of a witness to indict him
after he testifies, charging him with criminal participa-
tion in the matters being studied by the grand jury,
cannot be countenanced. The procedure is so fraught with
applicable constitutional problems and with the potential
for abuse that in our supervisory power over the
administration of criminal justice in the district courts of
this circuit, cf. United States v. Toscanino, 500 F.2d 267
(2d Cir. 1974), we are compelled to conclude that the
procedure the Government adopted here falls outside the
bounds of permissible prosecutorial conduct. Accordingly,
we reverse the conviction of appellant Hinton and instruct
that the indictment be dismissed as to her."
III. THE WIRETAPS
Appellants John Darby, Cameron, Hinton, Bates, and
Thelma Darby” argue that the trial court erred in
denying a pre-trial motion to suppress evidence obtained
pursuant to two state wiretap orders. The first order,
dated June 27, 1972, and signed by Justice William
Kapelman of the New York Supreme Court, Bronx
County, authorized interception of the narcotics-related
conversations of Matthews, Hinton, John Darby, Carter,
and others, over the telephone bearing the number
212-884-2043, located in Matthews’ apartment at 3333
11 Having thus reversed her conviction by upholding her second claim of
error, we need not reach the six additional arguments advanced by
Hinton in support of reversal.
12 The appellants have standing to challenge the validity of the wiretap
order since they are persons whose conversations were intercepted or
against whom the interception was directed. N.Y. Crim. P. L. §§710.20
ard 710.105.) and N.Y.C.P.L.R. §4506(2.). See also 18 U.S.C. §§2510(11)
and 2518(10)a).
19a
Appendix B
Henry Hudson Parkway. The order was extended once
and expired August 24, 1972. The second order, dated
August 24, 1972, and signed by Justice Samuel Rabin of
the New York State Appellate Division, Second Judicial
Department, authorized the interception of Matthews’
conversations over the telephone bearing the number
212-979-4022, located in his residence at 7 Buttonwood
Lane, Staten Island. Both orders contained provisions
requiring minimization of interception of calls unrelated
to the narcotics investigation.
Appellants claim that the evidence derived from the
wiretap surveillance should have been suppressed as: (1)
the Government failed to show as a prerequisite for the
interception orders that normal investigative techniques
would not suffice to unearth conspiracy; and (2) Govern-
ment agents failed to minimize the interception of com-
munications. As the wiretap orders were issued pursuant
to New York law (N.Y. Crim. Proc. L. §§700.15(4) and
700.20(2) ) and the surveillance was conducted pursuant to
those state statutes, the validity of the orders must be
determined under state law. The equivalent federal
statutes (18 U.S.C. §2510 et seg.) and relevant federal
decisional law may, however, be considered where there is
inadequate state case law on a particular point. United
States v. Manfredi, 488 F.2d 588, 599 (2d Cir. 1973), cert.
denied, 417 U.S. 936 (1974); People v. Castania, 73
Misc.2d 166, 340 N.Y.S.2d 829, 833-36 (Monroe Cty. Ct.
1973).
Section 700.15(4) provides that an eavesdropping war-
rant may issue only “{ujpon a showing that normal
investigative procedures have been tried and have failed,
cr reasonably appear to be unlikely to succeed if tried, or
to be too dangerous to employ.” Section 700.20(2\d)
supplements the above provision by requiring that every
application for a wiretap warrant must contain a full and
20a
Appendix B
complete statement of facts establishing that normal
investigative procedures have been tried and have failed,
or that they reasonably appear to be unlikely to succeed if
tried, or to be too dangerous to utilize. We agree with
Judge Mishler that the affidavits submitted to the state
courts in support of the wiretap application adequately
established that normal investigative techniques would
be unavailing, and that they thus complied with the
mandates of §§700.15(4) and 700.20(2).
Judge Mishler noted that the purpose of the statutory
requirements is not to preclude resort to electronic
surveillance until] after all other possible means of
investigation have been exhausted by investigative agents;
rather, they only require that the agents inform the
authorizing judicial officer of the nature and progress of
the investigation and of the difficulties inherent in the use
of normal law enforcement methods. Cf. People v. Holder,
69 Misc.2d 863, 331 N.Y.S.2d 557 (S.C. Nassau Cty. 1972).
Here, the affidavits submitted to the state courts by
Officer Garay and Detective Nannery indicated that a
rather extensive investigation to Frank Matthews and a
number of his cohorts was already underway; but, as
appellants suggest was the situation, the case against the
co-conspirators was far from “airtight.” The affidavits
further indicate, based on ongoing non-wiretap surveil-
lance, that Matthews was very likely involved in an
expansive narcotics operation, and that he was using the
telephone to further this enterprise. Use of normal
investigative techniques had become increasingly un-
successful, the affiants stated, as Matthews had become
more and more evasive and had been changing his phone
numbers and his phone usage. Thus, even though state or
federal officers may have garnered sufficient information
without the use of wiretaps to support an indictment
against Matthews, and possibly against a few others,
2la
Appendix B
there was every reason to believe that additional co-
conspirators were involved who could not be successfully
investigated without wiretapping. The order instituting
wiretapping was thus not in error.
With reference to appellants’ claim that the agents
conducting the wiretaps failed to minimize interception
in accordance with statutory requirements and the
specific language of the wiretap orders themselves, we
also agree with Judge Mishler that appellants’ arguments
must fail.'* Section 700.30, N.Y. Crim. P. L., requires in
paragraph 7 that every eavesdropping warrant contain a
provision that interception “shall be conducted in such a
way as to minimize the interception of [non-pertinent]
communications. .. .” In determining whether the agents
have complied with this requirement, a requirement
included in the wiretap orders, neither the New York
courts nor the courts of the circuit have applied a precise,
mechanical standard. We must look to whether the agents
devised a reasonable means of limiting interception, and
to whether they utilized those sapeguards in good faith.
See People v. Holder, supra, at 562; United States v.
Manfredi, supra, at 600; United States v. Tortorello, 480
F.2d 764 (2d Cir.), cert. denied, 414 U.S. 866 (1973).
The Government submitted to Judge Mishler affidavits
of the agents who executed the wiretapping. The agents
stated that, although all calls were monitored, as soon as a
call was determined to be personal in nature, the
recording equipment was deactivated, and only “spot
13 It should be noted that it is doubtful that any of the appellants, aside
from Hinton, even has standing to challenge minimization; and she may
only have standing to challenge the wiretap at her residence on Staten
Island. The Bronx apartment was apparently not used as a residence by
any of the appellants. See, ¢.g., United States v. Poeta, 455 F.2d 117, 122
(2d Cir.), cert. denied, 406 U.S. 948 (1972) (only those persons who have
a privacy interest in the residence in which the tapped phone is located
have standing).
a
ee a ee
22a
Appendix B
checks” were thereafter made to insure that the conversa-
tion did not turn to the subject of narcotics. It has been
previously held that the mere fact that every conversation
is monitored does not of necessity render the surveillance
violative of the minimization requirement, see, e.g.,
United States v. Bynum, 485 F.2d 490, 500 (2d Cir. 1973),
vacated on other grounds, 417 U.S. 903 (1974), later
reinstated, 513 F.2d 533 (2d Cir. 1975), and cases cited
therein. And this is not a case where every conversation
coming into and emanating from the wiretapped resi-
dences was recorded and overheard in its entirety, as in
People v. Holder, supra, at 570. The agents stated below in
their affidavits that they utilized a maximum of five
minutes to ascertain whether a conversation was perti-
nent to their investigation or was a distinctly personal
one. While a five-minute ascertainment period is some-
what long (compare United States v. Bynum, supra), it
was pointed out by the agents that the identification of
types of calls was particularly difficult because of the
conspirators’ frequent use of code language when talking
about narcotics, and because many calls which seemed at
the outset to involve purely personal matters later turned
out to be narcotics related. Here, as in Bynum and
Manfredi, there was no way to frame screening instruc-
tions so as to avoid the taping of some “innocent”
conversations. The calls were carefully catalogued, and
those catalogues are discussed in some depth by Judge
Mishler. We share his view that while it may be fairly said
that the agents did not strictly adhere to the minimiza-
tion instructions, it appears that a good faith attempt was
made to limit intrusion into private intimacies so as to
preserve the privacy interests of those whose conversa-
tions were monitored. Judge Mishler thus properly
refused to suppress the wiretap evidence.
Ce AE a we be
23a
Appendix B
IV. OTHER ARGUMENTS
McCargo and Cameron contend that the trial court
erred in admitting into evidence proof that they failed to
file any federal income tax returns during the years 1968-
1974. They argue first that the admission of the returns
was based upon Rule 404(b), F. R. of Evid., which pertains
to admission into evidence, for limited purposes, of proof
of other crimes, and that evidence should have been
excluded as its prejudicial effect outweighed its probative
value.
It is quite apparent from the trial transcript, however,
that the evidence of failure to file tax returns was not
admitted under Rule 404(b); but the proof was offered and
was admitted as a corrollary to the Government’s
presentation of evidence regarding large expenditures
made by Cameron and McCargo during several of the
years in question; and the Government’s purpose was to
negate the existence of any legitimate source for the
money they had expended. The court so charged the jury
as to the evidentiary use of the returns and explained that
the jurors could in their discretion infer from the
appellants’ failure to file returns that they had no bona
fide source of income upon which they could have drawn
to make their large purchases.
Cameron and McCargo argue, however, that evidence
of their failure to file is not probative of the fact for which
it was offered—to show the absence of any legitimate
income source. In United States v. Falley, 489 F.2d 33, 38-
39 (2d Cir. 1973), we sustained, as tending to show the lack
of any legal source of income, the admissibility of tax
returns on which the defendants had reported very low
income. Appellants contend that Falley is inapposite,
arguing that the failure to file any returns at all, in
contrast to the reporting of low income, could be the result
—
24a
Appendix B
of any number of non-comparable factors, and thus
admissibility in Falley does not preclude rejection here.
We are not persuaded by this argument. While proof of
non-filing in concededly of less probative force than a tax
return showing minimal income, there can be little doubt
that it does tend to negate the existence of a iegitimate
source of income. It is hardly conclusive, but it is
undeniably relevant. The determination of the weight
which might properly be accorded it was for the jury’s
determination, and they were so instructed. Appellants
were free to rebut this evidence with proof that they had
sufficient prior net worth to fund the expenditures they
had made, or that they obtained the necessary funds
through non-reportable, non-taxable sources, but they
apparently offered no such explanations. We agree with
Judge Mishler that the probative value of the evidence
outweighed any incidental prejudice, and we uphold the
propriety of his ruling admitting the evidence.
Appellant Thelma Darby claims that she was ir-
reparably prejudiced by the court’s failure to grant her a
severence.'* This prejudice allegediy arese from the
fact that she and her husband were tried together. She
argues that she was prohibited from introducing evidence
explaining that the reason she made frequent trips to
New York in 1974-75 from her home in Philadelphia was
to visit her husband who was then incarcerated in a New
York state prison, and not for the reason suggested by the
Government, that she traveled on narcotics business.
This claim is disingenuous. It is clear from the trial
transcript that while the court instructed both the
14 There is some question as to whether a timely motion for severance was
ever made by Mrs. Darby below. She contends that while such a motion
may not have been formally made on her behalf, Judge Mishler
considered her to have joined in the severance motions voiced by three of
her co-defendants. The Government sharply disputes this contention, and
the relevant portion of the transcripts does not resolve the controversy.
eee ee ee es
25a
Appendix B
Government and several of the defense counsel to avoid
elicitation of testimony regarding John Darby’s incar-
ceration, Judge Mishler explicitly told Thelma Darby’s
trial counsel that he was free to present evidence before
the jury that Mrs. Darby journeyed to New York for the
purpose of visiting her husband. Once given this green
light, defense trial counsel inexplicably failed fully to
pursue the opportunity, except to inquire of a co-
defendant who had taken the stand on his own behalf
whether the witness knew that Mrs. Darby was going to
New York to see her husband. If there were failure here,
not justified by trial strategy, that failure is hardly
chargeable to the trial court. Absent any further specific
allegations of prejudice, we are unable to conclude that it
was error to deny a severance.
Appellant Beckwith raises two points of error, both of
which lack substance. First, he claims that his prosecu-
tion was barred by the double jeopardy clause of the Fifth
Ame dment. His argument is based on his indictment in
September, 1972, in the Eastern District of New York for
possession with intent to distribute quantities of heroin
and cocaine in violation of 21 U.S.C. §841(a\(1), a charge
upon which he was subsequently convicted following a
jury trial. He claims that the instant conspiracy prosecu-
tion arises from the same substantive violations involved
in the earlier indictment.
While it is concededly true that the 1973 conviction
arose out of an incident which was also part of the
conspiracy for which Beckwith was indicted and upon
which he was convicted below, his claim misconstrues the
principle of double jeopardy. A conspiracy count may be
charged along with substantive offenses in the same
indictment, Pereira v. United States, 347 U.S. 1 (1954), or
it may be charged separately, and the defendant tried
separately. United States v. Ortega-Alvarez, 506 F.2d 455,
26a
Appendix B
457 (2d Cir. 1974), cert. denied, 421 U.S. 910 (1975). So
long as the elements of each offense are sufficiently
distinct from those of the other offenses separately
charged, multiple violations of the narcotics laws arising
out of a single transaction may be tried in two or more
separate trials. /d.
Here, the charge of Beckwith’s involvement with
numerous co-conspirators in a far-flung narcotics
venture, and the proof of his active participation from
1969-1972 in a conspiracy to import heroin and cocaine
and to distribute those drugs in various United States
locations, is irrefragably distinct from his earlier con-
viction on a single charge of possession. United States v.
Ortega-Alvarez, supra, at 457-58. His argument that he is
entitled to relief on the ground of collateral estoppel is
similarly misplaced for no issue was determined in his
favor at his prior trial on the substantive offense. See Ashe
v. Swenson, 397 U.S. 436, 443 (1970); Sealfon v. United
States, 322 U.S. 575, 578-79 (1948).
In Beckwith’s second claim he argues that the evidence
at trial clearly established the existence of multiple
conspiracies rather than the single conspiracy charged in
the indictment. This claim is frivolous. The sole sub-
stantiating point urged by Beckwith is the fact that
Frank Matthews and another co-conspirator, Miguel
Garcia, were separately charged in an indictment re-
turned by the grand jury prior to the return of the
indictment before us. This, he suggests, renders in-
escapable the conclusion that there was one conspiracy in
operation from 1969-1972, and an entirely separate one
from 1972-1975. However, the proof against Beckwith
points to the contrary. The testimony of Carreron,
Norman Coleman, Walter Rosenbaum, and other estab-
lished that Beckwith worked with Matthews, John Darby,
and other organization members on a continuing basis
27a
Appendix B
throughout 1969-1773. The consistency of personnel,
method and type of operation throughout that period
militates against a finding of discrete conspiracies and
facilitates ready distinction of this case from United
States v. Bertolotti, 529 F.2d 149 (2d Cir. 1975), where we
found an improper consolidation of at least four separate
and unrelated criminal ventures. There was no material
variance here between the indictment and proof.
We are similarly unconvinced by appellant Bates’s
conclusory allegations, unsupported by any facts, of
multiple conspiracies. The Government’s proof estab-
lished his continuous membership in the Matthews
organization from 1972-1975, during which time he was
chiefly involved in the distribution of drugs in
Pennsylvania, both individually and in conjunction with
the Darbys. Here, too, there is no evidence of prejudicial
variance.
Relying on Massiah v. United States, 377 U.S. 201
(1964), appellant Carter contends that tape recordings of
conversations between him and Norman Coleman, a
Government witness, were erroneously admitted into
evidence at trial. In 1972, subsequent to his agreement to
cooperate with the Government, Coleman was outfitted by
federal agents with a Kel transmitter. On June 5 and
August 22 of that year, he recorded on the Kel set two
conversations he had with Carter. At the time the
recordings were made, Carter was under indictment on a
Maryland state narcotics charge and was represented by
counsel in that pending case. Carter contends that the
tapes were obtained in violation of his rights under
Massiah as the federal agents were aware of the
Maryland prosecution.
Carter’s claim is illfounded. His statements to Coleman
on June 5 and August 22, 1972, were elicited and recorded
in the course of an investigation wholly distinct from the
28a
Appendix B
indictment in Maryland. Massiah speaks only to the
situation where in the absence of retained counsel,
statements are deliberately elicited from a defendant in
connection with a crime for which he has already been
indicted. 377 U.S. at 206. See also United States v.
Edwards, 366 F.2d 853, 873 (2d Cir. 1966), cert. denied
sub nom. Jakob v. United States, 386, U.S. 908 (1967). The
statements were properly admitted.
Carter next contends that irreparably prejudicial error
was committed at trial when Special Agent Louis Candell
of the Drug Enforcement Administration, testifying
regarding one of the taped Carter-Coleman conversations,
inadvertently mentioned that Carter had referred to his
pendiig narcotics case in Maryland. In response to
Carter’s immediate objection, Judge Mishler excused the
jury. He denied Carter’s motion for a mistrial, but
inquired of his counsel whether he wished a corrective
instruction to be given to the jury. Counsel declined the
offer, stating that he feared that any further comment
would merely accentuate the problem.
Undeniably, the reference to Carter’s pending indict-
ment in Maryland in the jury’s presence constituted error.
However, because of the overwhelming evidence of
Carter’s guilt and the nature and context of the comment,
we are constrained to conclude that the error must be
15 The relevant portion of the transcript reads as follows:
“(Tape played.)
A [(Candell] (Continuing) At this point Mr. Carter is talking to Mr.
Coleman and he told him that he didn’t have or forgot his money and he is
asking Mr. Coleman to lend him some money and Mr. Coleman says he
has about $100 on him and Mr. Carter asks Coleman for $20.
(Taped played.)
A (Candell] (Continuing) Mr. Coleman asked Mr. Carter, he said ‘When
are you going to be ready to do something’ and as | said earlier, Mr.
Carter didn’t respond specifically to that question. He began to engage in
a conversation about a pending narcotics case that he had against him in
the state of Maryland... .” [Emphasis added]
29a
Appendix B
deemed harmless. It is important to note that agent
Candell did not say that Carter had spoken of a conviction
on a narcotics charge; the comment referred to a case
pending against Carter. The outcome of that prosecution
was not revealed to the jury. Further, the comment was
not induced by the Government; it was inadvertent.
Finally, the improper reference occurred on the tenth day
of a ten-week-long trial during which the jury heard
thousands of pages of testirnony. The comment did not
serve to deprive Carter of a fair trial. See United States v.
Stromberg, 268 F.2d 256, 269 (2d Cir.), cert. denied, 361
U.S. 63 (1959) (inadvertent reference to defendant’s
having served time in jail was “an isolated [incident]
during the course of a long trial”; curative instruction
given); Hardy v. United States, 343 F.2d 233, 234 (D.C.
Cir. 1964), cert. denied, 380 U.S. 964 (1965) (reference by
government witness to defendant’s having done “time in
the penitentiary”; curative instruction declined).
Appellant Cameron argues that the admission into
evidence at trial of statements made by him at the 77th
Precinct stationhouse in Brooklyn, New York, on
February 7, 1975, was error. He contends first that the
statements were elicited and recorded in violation of his
Fifth Amendment right as defined in Massiah v. United
States, supra, and second, that the admission of the
statements constituted a “gross abuse of discretion.”
After the instant indictment was returned by the grand
jury in January, 1975, but before it was unsealed in
February of that year, Cameron was kidnapped by Black
Muslims, apparently for reasons having to do with his
narcotics activities. The story of kis three days in captivity
is a sordid tale of brutality and deprivation,the specifics of
which we need not explore here. Suffice to say that he was
released in the early morning hours of February 7 after
payment of a ransom and arrived in somewhat battered
30a
Appendix B
condition at a relative’s home in Brooklyn shortly
thereafter. Upon his arrival, he was met by eight New
York City police officers and was persuaded to go with
them to the 77th Precinct for a “debriefing” regarding his
kidnapping. Present at the police station were not only the
New York authorities who questioned him, but also two of
the federal agents, Officer Garay and Special Agent
Mulhearn, who had been investigating Cameron’s nar-
cotics activities for purposes of the federal indictment.
Cameron was then questioned without an attorney
present for some 4% hours,'* and the entire interview,
unbeknownst to Cameron, was tape recorded. Certain
self-inculpatory statements regarding his narcotics ac-
tivity made by Cameron in the course of the interview
were admitted into evidence at trial following Judge
Mishler’s conduct of a suppression hearing.
Turning to the first prong of Cameron’s argument, his
Massiah claim, we do not agree that the statements were
obtained in violation of Cameron’s Sixth Amendment
rights. While the federal agents were present in the
stationhouse at the time of Cameron’s questioning, they
merely listened to the interview over an intercom of sorts
down the hall from the room in which the debriefing was
conducted. They neither posed questions nor suggested
lines of inquiry. Further, as Judge Mishler emphasized,
while the New York police officers who questioned
Cameron were aware of a federal investigation of
appellant’s narcotics activities, they were not told of
Cameron’s pending federal indictment. As we previously
16 No Miranda warnings were given Cameron, and prior to trial he
sought to suppress the statements on the additional ground that they had
been elicited in violation of his rights under Miranda v. Arizona, 384 U.S.
436 (1966). Judge Mishler ruled that Miranda was inapplicable here as
Cameron was questioned as the victim of a crime, not as a suspect, and the
interv‘ew was non-custodial. Cameron has apparently now abandoned
this argument.
2 aes — i Se &
3ha
Appendix B
stated in United States v. Garcia, 377 F.2d 321. 324 (2d
Cir.), cert. denied, 389 U.S, 991 (1967), Massiah does not
“apply in a case in which the questioner was comp!ctely
unaware of the existence of the indictment and was not
seeking information about the crime the indictment
charged had been cemmitted.” Here, Cameron was taken
to the stationhouse for the avowed purpose of questioning
him as a kidnapping victim, not as the suspect of a federal
crime; and there is no indication that this was a ruse or a
surreptitious effort by the federal agents to improperly
gather post-indictment evidence. It would take some
distortion of the facts to conclude, as Cameron would have
us conclude, that this was a deliberate effort by the New
York authorities to elicit incriminating statements con-
cerning his involvement in the crime for which he had
been indicted by the federal grand jury. United States v.
Garcia, supra. Finally, the fact that the officers in the
77th Precinct had been telephoned at some point prior to
Cameron’s interview by an attorney representing
Cameron in a separate pending criminal appeal did not,
under Massiah, obligate the officers to notify that
attorney prior to interviewing Cameron. See United States
v. Masullo, 489 F.2d 217, 222-23 (2d Cir. 1973).
We are also unpersuaded by Cameron’s claim that he
was forced to accompany the officers to the 77th Precinct
and to remain there against his will, and therefore that
his statements were not voluntarily made. After hearing
the officers’ and Cameron’s accounts of the interview at
the suppression hearing, and after reviewing the
transcript of the interview, Judge Mishler concluded that
Cameron’s statements at the stationhouse had been freely
and voluntarily made. He found that Cameron, a college
graduate with “extraordinary familiarity with leading
Supreme Court decisions,” was fully aware of his right to
refuse to be interviewed, and knew that the police had no
ranean
aa
32a
Appendix B
lawful means to compel him to answer questions. We find
no error in the trial court’s well-supported conclusion that
Cameron’s statements and presence at the stationhouse
were “matters of choice.”
Cameron’s assertion that it was an abuse of discretion
for Judge Mishler to admit the stationhouse statements is
insubstantial. This argument appears to be premised on
the erroneous assumption that the statements were
admitted as evidence of cther crimes. The transcript
demonstrates, however, that the statements were ad-
mitted as admissions relevant to proof of his membership
in the narcotics conspiracy. And it can hardly be
contested that statements such as “[y ou might think I’m a
bad guy because I deal in drugs, I, I’ve sold drugs,” or
“when you are in drugs. . . . I don’t mean no street corner
pusher—you got a network of so much information. .. .”
were relevant to Cameron’s knowledge of, and his intent
and culpability with reference to, the crime charged. In
the first statement heard by the jury, Cameron spoke of
his former involvement in the “business” when “I had
what I paid them in my closet. I had that kind of money in
my closet. My wife could put her hand on it just like that.”
The jury could reasonably infer that the “business” of
which he spoke was narcotics, and the statement was of .
particular relevance inasmuch as there had earlier been
testimony at the trial that Matthews kept mioney used in
the narcotics operation stacked in piles in a closet at 130
Clarkson Avenue. These, and additional statements re-
garding extortion practiced upon narcotics dealers in
Philadelphia, the slaying of “one of Frank Matthews
lieutenants,” and Cameron’s view that the drug business
was “all over” because the “guys that are in it are stuck in
it, but there ain’t- no new guys coming in,” tended to show
Cameron’s familiarity with the Matthews operation and
narcotics activity in general. We accordingly uphold the
33a
Appendix B
admissibility of the statements. |
We have carefully considered the remaining two claims
advanced by Bates, and John Darby’s additional point,
and we find them to be without merit.
Judgment of conviction reversed as to Hinton, with
instructions that the indictment be dismissed as to her;
judgment affirmed as to all other appellants.
:
ey
a
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SE SET SE aI 2 ED
a a
*-.
34a
APPENDIX C
ORDERS OF DENIAL FOR REHEARING AND
REHEARING EN BANC
UNITED STATES COURT OF APPEALS
SECOND CIRCUIT
At a Stated Term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the sixteenth day of
November, one thousand nine hundred and seventy-six.
Present:
HON. STERRY R. WATERMAN
HON. PAUL R. HAYS
HON. THOMAS J. MESKILL
Circuit Judges.
75-1402
75-1418
75-1441
75-1442
75-1443
75-1444
75-1445
76-1024
United States of America,
Plaintiff-Appellee,
ai ae NNN ANN RRL TTA NE ICT LS CEE EN ATi ies caine
35a
Appendix C
Frank Matthews, a/k/a “Pee Wee”, “Big Book”, “Frank
McNeil”, “Mark IV Frank”, Barbara Hinton, a/k/a “Barbara
Matthews”, Gattis Hinton, a/k/a “Bud”, “Slim”, “Joseph
Jackson”, William Beckwith, a/k/a “Mickey”, “McGill”,
“Miguel”, Donald Conner, Robert Currington,a/k/a “Pedro”,
Charles William Cameron, a/k/a “Swayzie”, James Wesley
Carter, a/k/a “Brother Carter”, “Big Head Brother”, “Big B”,
John Darby a/k/a “Pop”, “John Smith”, Thelma Dabry, a/k/a
“Flossie”, “Thelma Reese”, David Clement Bates, a/k/a “Rev.
Walter Rosenbaum, Ernest Robinson, a/k/a “Ernie”, James E.
Martinez, Scarvey McCargo, Fred Brown, Lucy Mathews,
Marzella Steele Webb,
Defendants,
Barbara Hinton, a/k/a “Barbara Matthews”, William Beckwith,
a/k/a “Mickey”, “McGill”, “Miguel”, James Wesley Carter,
a/k/a “Brother Carter”, “Big Head Brother”, “Big B”, Scarvey
McCargo, Charles William Cameron, a/k/a “Swayzie”, John
Darby, a/k/a “Pop”, John Smith, Thelma Darby, a/k/a
“Flossie”, “Thelma Reese”, David Clement Bates, a/k/a “Rev.”
Walter Rosenbaum,”
Defendants-Appellants.
A petition for a rehearing having been filed herein by
counsel for the appellant, Charles William Cameron, a/k/a
“Swayzie”
Upon consideration thereof, it is
Ordered that said petition be and hereby is denied.
A. DANIEL FUSARO
Clerk
36a
Appendix C
UNITED SFATES COURT OF APPEALS
SECOND CIRCUIT
At a stated term of the United States Court of Appeals, in
and for the Second Circuit, held at the United States Court
House, in the City of New York, on the sixteenth day of
November, one thousand nine hundred and seventy-six.
75-1402, 75-1418,
75-1441-45, 76-1024
United States of America,
Plaintiff-Appellee,
v.
Frank Matthews, a/k/a “Pee Wee”, “Big Book”, “Frank
McNeil”, “Mark IV Frank”, Barbara Hinton, a/k/a “Barbara
Matthews”, Gattis Hinton, a/k/a “Bud”, “Slim”, “Joseph
Jackson”, William Beckwith, a/k/a “Mickey”, “McGill”,
“Miguel”, Donald Conner, Robert Currington, a/k/a “Pedro”,
Charles William Cameron, a/k/a “Swayzie”, James Wesley
Carter, a/k/a “Brother Carter”, Big Head Brother”, “Big B”,
John Darby, a/k/a “Pop”, “John Smith”, “Thelma Darby,
a/k/a “Flossie”, “Thelma Reese”, David Clement Bates, a/k/a
“Rev.” Walter Rosenbaum, Ernest Robinson, a/k/a “Ernie”,
James E. Martinez, Scarvey McCargo, Fred Brown, Lucy
Mathews, Marzella Steele Webb,
Defendants,
tt — ner ~~ Ag aaa aa tata atest tata areata esse saan rmstiaccresmm de eee oo ta a a ne ll
37a
Appendix C
Barbara Hinton, a/k/a “Barbara Matthews”, William Beckwith,
a/k/a “Mickey”, “McGill”, “Miguel”, James Wesley Carter,
a/k/a “Brother Carter”, “Big Head Brother”, “Big B”, Scarvey
McCargo, Charles William Cameron, a/k/a “Swayzie”, John
Darby, a/k/a “Pop”, “John Smith”, Thelma Darby, a/k/a
“Flossie”, “Thelma Reese”, David Clement Bates, a/k/a “Rev.”,
Defendants-Appellants.
A petition for renearing containing a suggestion that the
action be reheard en banc having been filed herein by counsel
for the defendant-appellant, Charles William Cameron a/k/a
“Swayzie”, and no active judge or judge who was a member of
the panel having requested that a vote be taken on said
suggestion,
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
s/ Irving R. Kaufman
IRVING R. KAUFMAN,
Chief Judge
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