Petition — Stassi v. United States
Supreme Court brief1977
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FILED
NEC 99 1976
| MICHAEL RODAK, JR CLE
EN Ay VLERK
In THE a
Supreme Court of the United States
OCTOBER TERM, 1976
BD> ecmmeanninins q 6 - 86 5
JOSEPH STASSI,
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
ce ee re ee ee ee ae ae ee
PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
ee ee ee ee ee ee ee a ee ee ee ee ep ee ee ee ee ee ee ee ee
ARNOLD E. WALLACH
Attorney for Petitioner
11 Park Place
New York, N.Y. 10007
(212) 227-0959
Dick Bailey Printers, 290 Richmond Ave., Staten Island, N.Y. 10302
Tel.: (212) 447-5368
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Page
Jurisdiction... .. 6. cece cece eee e eee eeneeeneneeees 2
Questions Presented .......6+ssseeerereeeeeeeeees 2
The Principal Constitutional Provisions, Statutes and
Federal Rules of Criminal Procedure Relied Upon .
Statement of the Case ........seeeee rere eeeeeeeees
The Pre-Trial Hearing to Determine Whether the
Petitioner, Joseph Stassi, Was Denied his Fun-
damental Right to Compulsory Process or to Call
Witnesses, Namely one Jean Claude Otvos, in that
the Government, While the Investigation in this
Case was Pending Deported Otvos ......-++++++:
Reasons For Granting The Writ .....-.seeeeeeeeees
POINT I—The Petitioner Was Denied the Right to Call
a Witness in his Defense and Otherwise Was
Deprived of Due Process of Law by the Deportation
To
POINT Il—The Court in Effect, Directed the Jury to
Find the Petitioner Guilty of the Substantive
COUMS .cccccccccccscccvecscscveecccscercess
ii
POINT III—The Court by Directing the Jury to Find a
Special Verdict as to When the Petitioner Became a
Member of the Conspiracy Prejudiced the
Petitioner's Right to a Fair Trial and a Fair Jury
WEED Sebvcdecansdakdes uceue ed sudcede 33
POINT IV—The Trial Court's Statement That The
Prosecution Was Founded On The Government's
Belief That The Petitioner And Co-Defendants
Were Guilty, Prejudiced The Petitioner's Right To
A Fair Trial And The Motion For A Mistrial
Should Have Been Granted. ................... 37
POINT V—The Prosecutor's Summation Exceeded
The Bounds Of Fair Comment. ................ 38
SINC bid odd Wh Caciicde bat ee aa 40
Appendix—Order of Affirmance of the United States
Court of Appeals, Second Circuit, dated October
ME EN nS 46 Cee Siebel ended ceekveeca cous la
CASES CITED
Anderson v. U.S., 417 U.S. 211 (1974) ..... 0.000005, 25
Barker v. Wingo, 407 U.S. 514 (1972) .............. 36
Pe OL clls OPE G FO Pais cdvcevccenvedececes 39
Bradley v. U.S., 328 U.S. 640 (1945)... . eee eee 33
Bruton v. U.S., 391 U.S. 123 (1968) ........00 cee 37
Chambers v. Mississippi, 410 U.S. 284 (1973) ...... ; . 26
Cool v. U.S., 409 U.S. 100 (1972) 2.0... cece cee eee 26
iii
Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ...... 39
Flint Ridge Development Co. v. Phoenic Rivers
Association, 49 L. Ed. 2d, 205 (1976)... 6.6.0 ees 27
Giglio v. U.S., 405 U.S. 180 (1972) vo .cceeeeeeeeees 27
Henry v. Mississippi, 379 U.S. 443, 447, 447 (1965) ... 36
Palno v. U.S., 58 F. 2d U1 (Cir. 8th, 1932) .. 6... 666. 37
Pinkerton v. U.S., 328 U.S. 640 (1945) oo c eee eee 25
U.S. v. Agurs, 49 L. Bd. 2d 342 (1976) oo. c ccc ee eens 29
U.S. v. Ballesteros-Acuna, 527 F. 2d 928, (Cir. 9th,
1D7S) cowie eerere ala oo WoW conse worvececesccccras 30
U.S. v. Bell, 56 F. 2d 907 (D.C. Cir., 1974) 0... eee. 29
U.S. v. Crane, 499 F. 2d (Cir. 6th, 1974)... cece eens 30
U.S. v. Dotterweich, 320 U.S. 277 (1943) wee e eee es 82 |
U.S. v. Dunn, 284 U.S. 390 (1942) occ cece eee eennes 32
U.S. v. Finkelstein, cited in the Court below, 527 F. 2d
517 (Cir. 2d, 1975) cert. den. 96 S.Ct. 1742 ...... 30
U.S. v. Frank, 494 F. 2d 145 (Cir. 2d, 1974) «0... eee. 22
U.S. v. Ludwig, 508 F. 2d 140, 143 (Cir. 10th, 1974) .. 39
U.S. v. Martinez. 496 F. 2d 664, (Cir. Sth, 1974) cert.
dam. 419 U.S. 1081 .cccccccccccvccccsccccncee 38
U.S. v. Maybury, 274 F, 2d 899 (Cir. 24 1960) ......- 32
iv
U.S. v. McQuillan, S07 F. 2d 30 (Cir. 9th, 1974) ..... 29
U.S. v. Mendez-Rodriguez, 4S0 F, 2d 1 (Cir. 9h, 1971) 26
U.S. v. Ogull, 149 F. Supp. 272 (S.C.N.Y. 1957) ..... 36
U.S. v. Papadakis, 510 F. 2d 287 (Cir. 2d, 1975) ..... 36
U.S. v. Phillips, 527 F. 2d 1021 (Cir. 7th, 1975) ...... 39
U.S. v. Quinn, 44S F. 2d 940 (Cir. 2d, 1971) Cert. den.
TRS DUGT se dicccwetddedcvetercopsdovdebonte 30
U.S. v. Salazar, 293 F, 2d 442 (Cir. 2d, 1961) ........ 38
U.S. v. Spock, 416 F. 2d 165 (Cir. Ist, 1969) ......... 34
U.S. v. Tsuteagawa, SOO F, 24 420 (Cir. 9, 1974) ...... 28
U.S. v. Woods, 252 F, 2d 334 (Cir. 2d, 1958) ........ 38
Washington v. Texas, 409 U.S. 95 (1972) 0... cee 25
Webb v. Texas, 409 U.S. 95 (1972) oo. ccc cece eeeees 25
STATUTES CITED
1D U.S.C. os cccscevccccevesccdeoseceebesseuuenes 1
20 U.S.C. O79, 176 woccccecdevccctscnesowesvsosans 1
21 U.S.C. 812, 841, 846 and 963 «0... cece cee eee 1
21 U.S.C. GORGE) oo ccvoccccscovosssususseacmonel 1
OTHER AUTHORITIES
Federal Rules of Criminal Procedure, Rule re das's be
Federal Rules of Criminal Procedure, Rule S2 ...... me
IN THE SUPREME COURT
OF THE UNITED STATES
JOSEPH STASSI,
Petitioner,
-against-
UNITED STATES OF AMERICA,
Respondent.
Petitioner, Joseph Stassi, respectfully requests that a writ
of certiorari issue to review the judgment and order of the
United States Court of Appeals, Second Circuit, entered on
or about October 26, 1976,* affirming the judgment of the
United States District Court, Southern District of New
York, entered February 26, 1976, convicting the petitioner
for a conspiracy under the first count of the indictment,
based on 21 U.S.C. 173, 174 (repealed); 21 U.S.C. 812,
841, 846 and 963; under the second count of the indictment
charging the illegal importation of heroin in violation of 21
U.S.C. 173, 174, 18 U.S.C. 2; under the third count of the
indictment for receiving, concealing and selling heroin;
under the fourth count of the indictment for importing in
July 1971 heroin, in violation of 21 U.S.C. 812, 841(a)(1)
and 841(b)(1)(A), and under the fifth count of the in-
dictment for the illegal distribution and possession with
intent to distribute in June 1971 heroin, in violation of 21
*Pursuant to an order of Associate Justice Marshall, the petitioner's time to
serve and file this petition was enlarged to December 23, 1976.
2
U.S.C. 812, 841(a)(1) and 841(b)(1)(A). As a consequence
of the conviction, the petitioner was sentenced to thirty (30)
years imprisonment, on counts 1, 2 and 3 to be served
concurrently and fifteen (15) years imprisonment on counts
4 and 5, each fifteen (15) year term to run consecutively to
the other but concurrently with the sentence under counts
1, 2 and 3; additionally, fines were imposed in the sum of
$20,000 on counts 1, 2 and 3 and $50,000 on counts 4 and
5.
JURISDICTION
The order of affirmance of the United States Court of
Appeals, Second Circuit, is dated October 26, 1976 and a
copy of said order is reprinted herein as Appendix A, infra,
the same being contzined in the opinion of the said Circuit
Court of Appeals for the Second Circuit.
The jurisdiction of this Court is invoked, made and
conferred under 28 U.S.C. 1254 (1).
QUESTIONS PRESENTED
A. Was the petitioner deprived of his right to summon
witnesses in his defense when the government deported a
co-defendant named Jean Claude Otvos?
B. Did the Court in effect direct a verdict of guilty as to
the substantive counts when it did not charge the jury that
the petitioner could be acquitted of some or all of such
counts, even though the jury could find the petitioner guilty
under those counts if the jury found that the petitioner was
a member of the conspiracy?
C. Did the Court below violate Rule 31, Federal Rules of
Criminal Procedure, by requiring the jury to specifically
respond to the Court’s inquiry as to when the petitioner
entered the conspiracy?
D. Were the trial court’s comments that the government
believed the petitioner guilty because this action was in-
stituted, prejudicial to the petitioner’s right to a fair trial?
E. Did the prosecution exceed the limits of fair comment
in the presecution’s summation to the jury?
THE PRINCIPAL CONSTITUTIONAL
PROVISIONS, STATUTES AND FEDERAL
RULES OF CRIAINAL PROCEDURE RELIED
UPON
Amendment V (in part):
“No person. . . , be deprived of life, liberty,
or property, without due process of law; ...”
Amendment VI (in part):
‘In all criminal prosecutions, ...; to be con-
fronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his
favor, and to have the Assistance of Counsel for his
defence.”
21 U.S.C. 841 (a):
“Except as authorized by this title, it shall be
unlawful for any person knowingly or intentionally
(1) To manufacture, distribute, or dispense or
possess with intent to manufacture, distribute or
dispense, a controlled substance; .. . a
21 U.S.C. 846:
“ATTEMPT AND CONSPIRACY”
“Any person who... conspires to commit any
offense defined in this title is punishable by im-
prisonment or fine or both which may not exceed
the maximum punishment prescribed for the
offense, the commission of which was the object of
the attempt of the conspiracy.”
21 U.S.C. 963:
“ATTEMPT AND CONSPIRACY”
“Any person who. . - conspires to commit any
offense described in this title is punishable by
imprisonment or fine or both which may not ex-
ceed the maximum punishment prescribed for the
offense, the commission of which was the object of
the . . . conspiracy.”
Federal Rules of Criminal Procedure, Rule 31:
“Verdict — (a)***
““(b) aK
**(c) ***
“(q) #**
“(e) Criminal Forfeiture. — If the indictment or
the information alleges that an interest or property
is subject to criminal forfeiture, a special verdict
shall be returned to the extent of the interest or
property subject to forfeiture if any...”
Federal Rules of Criminal Procedure, Rule 52:
(6) Plain Error. Plain errors or defects affecting
substantial rights may be noticed, although they
were not brought to the attention of the Court.”
STATEMENT OF THE CASE
THE PRE-TRIAL HEARING TO DETERMINE
WHETHER THE PETITIONER, JOSEPH
STASSI, WAS DENIED HIS FUNDAMENTAL
RIGHT TO COMPULSORY PROCESS OR TO
CALL WITNESSES, NAMELY ONE JEAN
CLAUDE OTVOS, IN THAT THE GOVERN.
MENT, WHILE THE INVESTIGATION IN
THIS CASE WAS PENDING DEPORTED
OTVOS
The Government's case against Joseph Stassi was based
on the testimony of various accomplices who were inmates
5
of the Correctional Institution at Atlanta, Georgia, as was
Joseph Stassi. Two of these witnesses, one Perna and
Verzino, who testified for the Government in its case
against Joseph Stassi, are not newcomers to this Court. As
the further presentation of the facts herein will disclose, the
Government claimed and offered to prove that a plot was
formulated in the Correctional Institution at Atlanta to
engage in the narcotic: business. The source of the narcotics
was to be from the brother of Otvos who was in France, and
therefore Otvos, an inmate, was the “French connection”.
Ultimately Otvos was paroled and deported to France. The
Government was instrumental in this. Otvos was an ac-
cessory and as is obvious, he was named in the indictment
as a defendant.
THE EVIDENTIARY HEARING
The first witness called by the Government was J. Wayne
Allgood who was employed by the United States Board of
Parole as a hearing examiner for the Southeast region of
the United States, which covered Atlanta, and specifically
the supervision of the parole system in Atlanta Penitentiary
(44).*
Otvos was sentenced in the United States District Court,
Eastern District of New York, for a narcotic offense on
May 11, 1967 and was committed to serve a term expiring
January 28, 1981 (44). His net term, based on satisfactory
institutional behavior, was fixed as June 23, 1976 which
was also designated as the term of mandatory release (46,
47). Due to an intervening change in law, Otvos became
eligible for parole in January 1974 (48). Accordingly, a
request was made by the parole authorities to the
Department of Justice for information as to whether Otvos
was engaged in large scale crime of a “sophisticated
nature” (49, Government’s Exhibit 1D).
This refers to the pagination of the Appendix.
6
Gerald Shur, a Government attorney, was to deal with
this request. The procedure was adopted because Otvos
was a major narcoti: offender (49, 50).
This witness’ superior was Thomas Holsclaw, who died
September 15, 1975. (t was determined that Otvos, because
of the change in the law effective September 28, 1971, was
afforded a parole hearing and a summary of that was
received in evidence as Government's Exhibit 1C (50-52).
The summary referred to remanding the case to the entire
Board of Parole in W ashington (52). However alternatively,
the authorities in Atlanta could have acted upon the case
without the remand and ultimately they did (53). Before
receiving an answer to the request referring to Otvos’ in-
volvement in major crime, the authorities granted parole
solely for deportation on March 3, 1975 (S3, 54, Govern-
ment’s Exhibit 1B),
The Immigration and Naturalization Service lodged a
detainer against Otvos (55). Government's Exhibit 1D, a
report from a Mr. Kinney, who was an Assistant Attorney
General, was received by the authorities after a decision
was made to deport Otvos (55, 56). On March 3, 1975
Otvos was deported (56). It was admitted that the regional
parole authorities received the response to their inquiry but
no action was taken on it (57, 58). Further copies of that
response were sent to the institution at Atlanta, but not to
the Department of Justice (59), Specifically a copy of that
memorandum did not go to the Drug Enforcement Ad-
ministration or the U.S. Attorney for the Southern District
of New York, or anybody else (59). On cross examination
this witness testified that the Board of Parole formulated
the policy as to notice of parole (60, 61). It was admitted
that the parole authorities as well as the Bureau of Prisons
constituted a branch of the Department of Justice.
However, the witness didn't know whether the Immigration
and Naturalization Service was a branch of the Department
of Justice (63). Allgood also admitted that if a warrant to
hold Otvos were issued, the warrant would have been acted
upon first (64). That the parole decision was received at the
7
Atlanta institution within three (3) days after it was made,
namely January 30, 1975 and was on file with the local
parole authorities where it could have been available for
inspection by a U.S. agent (64). An agent for the Drug
Enforcement Administration by merely making a
telephone call could have ascertained that Otvos was to be
paroled and deported (64). Allgood was questioned
whether in 1975 there were practices with aliens who were
paroled as was Otvcs and Allgood stated that there may
have been others that were paroled solely to be deported
(6S).
Of course Otvos’ parole was limited only so that he could
be deported and not otherwise (65). Copies of that parole
decision were sent to the Court where the conviction of
Otvos was had, (Government's Exhibit 1D). Further the
report from Kinney, the Assistant Attorney General, was
received one day afier the decision was mailed to Otvos
(66). Allgood did noi know whether it was reviewed by the
local parole authorities (66). Further that report never
appeared in the file (67).
However the Parole Board did conduct what was termed
rescission hearings which were conducted usually after
parole was granted, but before the parolee’s release (68,
69). Thus Otvos’ parole could have been “retarded’’ so
that a rescission hearing could have been conducted (69).
Government's Exhibit 1D could have been a basis for the
rescission hearing (69). Furthermore a report such as
Government's Exhibit 1D usually was received before a
decision was made by the parole authorities ana if it was so,
this witness would have seen it and its contents would have
been an element of the decisional process involved in a
parole hearing (70).
Allgood also related that a pre-release analyst upon
receiving such a report as Government's Exhibit 1D, would
have called Mr. Kinney to inquire about the contents (70).
The pre-release analyst in this case, a Mr. Chait, however
never remembered seeing that report (70, 71).
Allgood also confessed that there was no reason why a
rescission hearing was not had in Otvos’ case (71).
It further appeared that the files of the parole authorities
were available to the United States Attorney, the FBI and
the Drug Enforcement Administration. No request from
the FBI was ever made as to Otvos (72). In January 1975
the petitioner Joseph Stassi came up for parole review (73).
However the witness was uncertain as to whether the report
as to Otvos was made prior to the report as to Joseph Stassi,
the petitioner (73-75).
Allgood also testified that there was evidence that thé
petitioner was a suspect in conspiring with Otvos to import
narcotics. However, Allgood could not remember the
details and was not able to testify ‘exactly as to what that
report alleged (76). But to his “knowledge” the report did
not so state (77). Counsel for Joseph Stassi then made a
demand for that report but the U.S. Attorney stated that
he did not have it (77, 78). Allgood also related that if an
inmate was suspected of engaging in criminal activity
during his incarceration, the parole authorities would
investigate the matter as that would be essential in order to
arrive at a decision as to whether parole would be granted
(79, 80).
Allgood on cross éxamination testified that Govern-
ment's Exhibit 1F, a report numbered 792, was the report
received by the U.S. Attorney of the Eastern District of
New York in this case, where the inmate is to be considered
for parole (82). In this case no other United States agency
requested information as to Otvos (84). It was not the
policy of the parole authorities to notify the Attorney
General when parole was granted (86).
Next the Government called James Bradley, an agent of
the Drug Enforcement Administration (90). On direct
examination he testified that either in November or
December of 1974 he was investigating Otvos (91). He
caused Otvos to be transferred from Atlanta to Newark,
New Jersey for questioning (91). That in December 1974
9
Otvos was institutionalized at the West Street House of
Detention and Bradley participated with another agent in
interviewing Otvos (92). The other agent who participated
in the interview was Anthony Mangiarcana (92). Bradley
told Otvos that he was under suspicion of participating in
narcotic activities wh le he was an inmate at Atianta. Otvos
denied this. Bradley :old him that the authorities intended
to charge him with narcotic trafficking and Otvos told the
agent that the conspiracy laws of the United States were
unfair as he never sold or possessed narcotics at Atlanta
(93).
Further Otvos refused to cooperate with the authorities
(93, 94). However Otvos admitted knowing the petitioner
but he was not asked by the agent whether he was colluding
with the petitioner ($4). Nor was Otvos ever asked whether
he was involved with Verzino, Perna and others (95). Otvos
however told this witness that he was eligible for parole in
May 1975 (96). Government's Exhibit 2 was identified as a
report the agent made in regard to Otvos (96). Bradley
admitted that the authorities knew that Otvos was involved
allegedly with the petitioner in narcotic trafficking (96).
However Otvos was never asked as to his involvement (97).
Further that in December of 1974 there was an ‘‘on-going”™
investigation of the other defendants and co-conspirators
and Bradley testified he did not want to refer to them when
he was questioning Otvos (97, 98).
This witness learned that Otvos was deported one week
after he was indicted (98, 99). The date of the indictment
was April 1975 (99). This witness never contacted the
Atlanta institution in regard to Otvos at the time he made a
report marked Government's Exhibit 2A (99). There was
another report by this agent designated Government
Exhibit 2B which was dated June 3, 1975 (99).
The Court's Exhibit 1 consisted of a file from the Im-
migration and Naturalization Service and the Court found
that the contents were irrelevant to this case (102).
10
On cross examination this witness admitted that in
November of 1974 when he interviewed the petitioner he
never discussed the possibility of an indictment naming
him (102, 103).
But in July 1974 this witness might have discussed the
petitioner's involvement in the narcotic activities at Atlanta
(103). This interview took place in Newark, New Jersey
(103, 104). It was also aclmitted by this witness that the
authorities believed that the petitioner was involved in the
activities at the institution (104, 105).
Referring to the iransportation of the petitioner and
Otvos to Newark, New Jersey, this witness testified that the
petitioner was told that his brother was already indicted
(108, 109). Moreover the agent considered that the others
would be indicted together with Otvos (107, 108). That
since one Anthony Stassi, brother of petitioner was already
indicted, this witness might have related this to the other
agent that a superseding indictment might be sought (108).
Bradley's superior was an agent named Anthony Boc-
chiochio (109). Bocchiochio was in communication with the
U.S. Attorney named Harry Batchelder (109). In
December or January 1974 the U.S. Attorney was com-
municated with by the agents. Also this agent spoke to
Otvos and a Francisca Williams about the deportation of
Otvos. Williams was with the Eastern District Strike Force.
She was conducting an investigation for the Board of
Parole regarding the relationship of Otvos with organized
crime (109-111). The only information he related to this
agent was that Otvos was eligible for parole in May 1975.
He also had discussions over ten times with the U.S. At-
torney about the possible indictment of Otvos in December
1974. However he had no discussions with the immigration
authorities (112). Petitioner's Exhibit A was characterized
as a personal history sheet of Otvos that was prepared by
this witness January 1974 (113). However this agent did not
file that with the immigration authorities (113, 114). Nor
did he not know that the report was in the file of the Im-
migration and Naturalization Service (114).
11
The statement by Otvos to this witness denying any
participation in narcotic trafficking at the Atlanta in-
stitution was communicated to the superior of this witness,
one Boccia (118). Around November 7, 1974 Otvos’ in-
volvement came to this agent's attention (117). But when
Joseph Stassi was interviewed in July 1974 this witness did
not have any knowledge of Otvos by “name” as being
involved (118). Nor did this witness believe that other
agents knew that Otvos by ‘“‘name” was so involved.
However other agents might have known that a
Frenchman” was involved (118).
There was further testimony that there was a liaison
between the Drug Enforcement Administration and the
French National Police but the witness was not sure
whether that relaticn specifically involved narcotic of-
fenders to be deported to France from the United States
(129). In 1973 the witness first learned of the petitioner's
possible involvement and he learned that from Perna. But
at that time he didn’t learn of Otvos (131). Either in
December 1974 or January 1975 the agent learned of the
petitioner's alleged involvement from Verzino (131). He
also learned of Otvos’ participation either in October or
November 1974 (131, 132).
The witness anticipated the indictment of Otvos in
January 1975. However he never communicated with the
Bureau of Prisons or the Board of Parole to ascertain
whether the release date given to him by Otvos was correct
(133).
Carlo Boccia, another federal agent testified (135). He
was affiliated with the Drug Enforcement Administration
and he testified that he was a group supervisor. Either in
November or December of 1974 he interviewed Otvos with
another agent (136). He also questioned Otvos as to the
petitioner and Otvos told him that he knew the petitioner
(137, 138). It appeared that Joseph Stassi was transported
to Newark, New Jersey with Otvos (138). However the
witness could not recall whether he ever asked Otvos
whether he and the petitioner were involved in narcotic
transactions. He did ask Otvos to cooperate (138).
12
Boccia admitted that when he questioned Otvos there
was a pending investigation as to the participation of Otvos
with the petitioner in regard to narcotics (139). That he
may also have questioned Otvos about Perna and Verzino
(139, 140). Boccia admitted that there was “mention”
about Otvos'’ eligibility or possible release on parole (140).
However neither this witness or any other agent had any
contact with the Parole Board or the Immigration and
Naturalization Service about Otvos (140).
On cross examination Boccia admitted that when Joseph
Stassi was interviewed in New Jersey, the witness believed
that he was questioned about Otvos (145). The in-
vestigation concerned narcotic transactions at the in-
stitution in Atlanta.
There was also rsed into the record a communication
that Otvos was set for parole and deportation March 3,
1975 and was expected to arrive in Paris March 4, 1975
(153, 154).
Anthony Mangiaracina, another federal agent with the
Drug Enforcement Administration testified (154). On
direct examination he testified that in 1974 he was
stationed at the Newark District Office (155). He attended
the questioning of Otvos (155, 156). Otvos was asked
whether he would be cooperative and whether he knew the
petitioner Joseph Stassi (156). Otvos replied that he was
“not affiliated” with the petitioner and this witness stated
he ‘‘must have'’ questioned Otvos about narcotic traf-
licking with the petitioner. Otvos denied this (157).
This witness was told by Bradley, the prior witness who
also was an agent, that the involvement of Otvos consisted
of procuring narcotics from Europe (160).
At this hearing the petitioner also testified (176). He
related that he was removed from Atlanta to Newark July 4,
1974 (176, 177). He was questioned by three agents and the
U.S. Attorney (177). At that interview he told them that he
13
had no relationship with the “Frenchman” and that aside
from knowing inmates, such as Perna and Verzino, he had
no other relationships (178). At a second interview he was
questioned about Otvos who was also transferred with him
to Newark (180).
Joseph Stassi told the Court that if Otvos were available
he would call him as a witness (181). That Otvos would be
called as a witness to rebut or deny what the Government
witnesses Verzino and Perna would testify to (181). That
without Otvos, Perna and Verzino could testify as to
anything (181).
In April 1975 the petitioner first learned that he was
indicted (181, 182).
The record shows that the Government did not know
where Otvos was located at the time of the trial (190).
The Court's findings are found on pages 193-195 of the
Appendix filed in the Court below.
THE FACTS
Mario Perna testified for the Government (209). He
formerly was an inmate at Atlanta (210). He entered into
narcotics trafficking there with Verzino (210). Verzino and
Perna planned to contact “whatever” Frenchman they
could in order to import narcotics (210). Perna met the
petitioner Joseph Stassi in 1969 (210, 211). Joseph Stassi
was known to him as the “old man” (211). He also met
Joseph Condello and Sorenson, as well as other inmates
(212). Perna would have Verzino close with the petitioner
Joseph Stassi and one Kapatos (214).
Perna and Verzino spoke to Otvos about importing
narcotics and Otvos replied that there was “no problem”
provided they had an outlet in the United States who could
handle the import (215).
Perna and Verzino were not successful in procuring an
outsider. Verzino and Perna spoke to Joseph Stassi in
January or February 1970. Joseph Stassi allegedly told him
that he would speak to his brother, Anthony Stassi (217).
14
Ultimately Verzino stated he would arrange with Otvos
for a letter of introduction to Otvos’ contact in France, so
that Anthony Stassi could meet the persons who would
arrange for the exportation to the United States (219).
Verzino finally obtained this letter which was written in
French on onion skin paper so that it could be concealed
(219). It was addressed to the brother of Otvos in France
(219, 220). Perna learned that petitioner Joseph Stassi had
a visit from his brother Anthony Stassi in the beginning of
1970 (220, 221). Joseph Stassi allegedly told Perna that his
brother would go to France to make contact and that upon
his return Anthony Stassi would let Joseph Stassi, the
petitioner, know the results of the visit (221). According to
Perna there was also talk of procuring the purchases of the
import and the ‘‘Malizia brothers’ were mentioned (221,
222). Perna also spoke about one Sorenson as being a
possible outlet or dispenser of the narcotics (222, 223). This
was explained as concealing Anthony Stassi as being active
in the enterprise (223, 224). There was also a proposal that
Anthony Stassi would operate with Sorenson upon
Sorenson's release from the institution (225, 228).
Perna further narrated as to how the proceeds would be
divided between him and Verzino (227, 228). Thus ac-
cording to Perna, Joseph Stassi met Sorenson and there
was a discussion as how Sorenson would meet Anthony
Stassi when Sorenson was released (229, 230). In November
or December of 1970 Sorenson was released.
In a later conversation with the petitioner Joseph Stassi,
Perna and Verzino were told that Anthony Stassi was in
France and arrangements there were made. That the
brother of Otvos initially was reluctant to deal with An-
thony Stassi but it was finally agreed upon because Otvos’
brother had a common acquaintance named Mondolone
who khew the petitioner (232).
15
Subsequently the petitioner received visits at the in-
stitution from his brother Anthony Stassi (232, 233). Perna
also testified that Anthony Stassi met the Malizia brothers
also known as the Pontiac brothers and that a shipment
from France was anticipated (233). That the Frenchman
was to communicate with Anthony Stassi by way of a
“letter drop” in New York City (234).
Perna also explained that his share of the proceeds was
changed from cash to narcotics (for resale) (234, 235).
Verzino’s outlet was to be “Suzie’’ who would get the
narcotics from Sorenson (235). Suzie was Verzino’s wife
and her full name was Susan O'Neill (236).
Perna was also tod by the petitioner that his brother,
Anthony, missed meetings in New York because of late
deliveries at the “lecter drop” (237, 238).
Finally in October 1970 the petitioner told Perna that the
deliveries were made and that future deliveries were an-
ticipated (239, 240). Further that Anthony Stassi per-
sonally delivered narcotics to the Pontiac brothers and was
paid (241).
Meanwhile Perna would have Verzino telling him that
Sorenson received the delivery but this was from a source
other than the petitioner (241, 242). It next appeared that
Sorenson had a disagreement with Suzie over $2,500 and
was therefore disinclined to make any deliveries to her.
This was in October 1970 (242, 243).
Continuing his narrative, Perna related that Verzino told
him that Joseph Stassi told him that the balance of the
export was delivered. That Joseph Stassi told his brother to
settle the dispute between Suzie and Sorenson (243-247).
Perna believed that the total quantities that were imported
were between 130 to 140 kilos (244).
Perna was allegedly told by the petitioner that his share
in the enterprise was to be two (2) kilos of heroin plus a
bonus of another kilo (249). Verzino also told Perna that
Anthony Stassi told his brother, the petitioner, that a third
delivery was expected in January 1971. It appeared that
ee ea —
16
this never arrived and this was discussed with the
petitioner, Verzino and Otvos (250, 251). Otvos, according
to Perna, also stated that his brother in France was
“looking out for his 2nd’’ (251). Joseph Stassi told Perna
that his brother was waiting to hear about the third load
that never arrived. This was in March 1971 (252).
Perna also recounted many conversations with Otvos
(252).
Perna spoke to Otvos who told him that “Frenchmen”
and South Americans were asked by Verzino for their
addresses as he wanted to transact with them. When Otvos
confronted Verzino <bout this, Verzino denied this (255,
256).
According to Perna, disharmony arose between Verzino
and Joseph Stassi because Verzino was talking to other
inmates at the institution about the narcotics business.
Otvos allegedly told this to the petitioner (256).
It next appeared that ‘Suzie’ who was affiliated with
Verzino, was also talking about Sorenson's way of life since
he acquired his newly found source of income (256, 257).
As a result there was attributed to the petitioner a
statement that it was necessary to murder Suzie, Sorenson
and Verzino (257-259).
The petitioner allegedly asked Perna to send him some
poison after Perna was released so that it could be ad-
ministered to Verzino by the petitioner himself (259).
Further that Anthony Stassi would help Perna kill the
others (260). The petitioner allegedly also told Perna not to
discuss the narcotic venture with Verzino (264).
When Perna was released he was to meet Anthony Stassi
(265, 266).
Perna was released May 5, 1972 (265).
“Suzie” paid Perna for his share of the venture by giving
money to his niece (266).
Perna also described his meetings with Anthony Stassi
after his release from the institution (267-269).
17
Perna finally related how he and Anthony Stassi planned
to kill Sorenson (273, 274).
Having earned his freedom Perna described how he met
Malizia and agreed to go into the narcotic business with
him (275, 276).
Upon release, Perna offered to buy the narcotics from
Anthony Stassi that would be imported from Mexico.
Malizia also allegedly told Anthony Stassi that he would
have purchased the import from Mexico. Subsequently and
after release, Perna met Sorenson who told him that he
heard from the “olc. man” (277-282).
Anthony Stassi also told Perna that he went to France
and expected a shipment from Canada asking Perna and
Malizia whether thev would be interested in purchasing it
(282, 283).
Perna also spoke to Verzino after Verzino was released
and was told that the petitioner was to call his wife’s home
and that Verzino was to be there to receive the call (288).
On cross examination Perna stated that the petitioner
had no stake in Perna’s gambling and narcotic business
conducted at the institution (289). That Malizia and Perna
entered into another narcotic partnership. That one ‘“Tony
West” was his othe: source of narcotics (290).
That he planned to kill Verzino because Verzino was
talking about the narcotic activities that Perna was
engaging in with his new partner, Malizia (292).
When he first began cooperating he never referred to
petitioner (283).
Perna also narrated his various jail escapes but stated
that the petitioner had nothing to do with those (294).
Finally, Perna admitted that lying was part of his
lifestyle (300).
On re-direct examination, Perna testified that when he
was recaptured after his jail break he told Bradley, the
agent, about transactions and conversations with the
petitioner, Otvos and the others (305).
= ie te
~~ =
18
Next Joseph Condello was called by the Government
(306). He knew the petitioner, Sorenson and Anthony
Stassi, as well as others (307, 308). He met the petitioner at
the insiitution in Atlanta. Condello was an inmate from
1968 to 1972 when he was transferred to another institution
(308, 309). However while at the institution in Atlanta he
did not associate with the petitioner (309, 310). But he
knew that the petitioner was also known as the “old man”’
(311). He also knew * Jean Claude”’ but didn’t know his last
name (312). He heard Verzino, Sorenson and Perna talk
about importing narcotics from France through Canada
(315, 316, 319). He also heard the petitioner mention
Verzino (320, 321). This was in connection with killing
Verzino and “Suzie (322, 323). He claimed that the
petitioner stated that it was best that Verzino not be killed
(323). Later he spoxe to the petitioner who mentioned
about-Condello gettig into the narcotics business after he
was released from the institution and stated he would get in
touch with him. The last time he saw the petitioner was at
the institution in Atlanta (325-327).
On cross examination he testified that Perna and Malizia
were his source of narcotics (336). This was distinct from
the petitioner (337).
When he started to cooperate the agents told him that
they would try to help him (337). Condello spent 1200 days
at the institution in Atlanta and the only time the petitioner
asked to talk to him was when he was being released (354).
Next, James Bradley an agent with the Drug En-
forcement Administration testified (361). He told the jury
that Perna was arrested February 1, 1974 (363). Between
November 1973 and February 1, 1974 Bradley met with
Perna and Condello. Bradley acting in an undercover
capacity obtained narcotics from Perna (363). On
December 27, 1973 Perna and Condello met with him
(363). Perna told him that he did not deal with Anthony
Stassi (364). This related to a shipment of narcotics that
was to be exported from Canada, Perna explaining that
Malizia, his partner, was not interested (364, 365).
19
When Bradley interviewed Condello after Condello’s
arrest, Condello told him of the conversation he had in
October 1973 at the institution in Atlanta (369). Condello
also told Bradley that he conversed with the petitioner
about his joining with the petitioner after he, Condello, was
released (367). Also during his cooperation with Bradley,
he related the episode as to importing poison into the
prison so that the pet'tioner could kill Verzino (367).
Apparently Bradley also interviewed Perna after his
arrest and Perna told him of his conversation with Otvos
(369-374).
Bradley was then allowed to give his summary of the
facts as part of the evidence in this case.
The next witness the Government called in regard to the
petitioner was Anthony Verzino (393). Part of his penal
background can be gleaned from pages 394 to 395 of the
Appendix. He also admitted testifying falsely in his own
trial (395).
Verzino arrived at the institution in Atlanta in 1967. He
met the petitioner there for the first time (396). The
petitioner was known to him as ‘Joe Rogers’’ and the “‘old
man”’ (396). Verzino also identified other defendants in the
courtroom who were inmates at that institution in Atlanta
(397, 398). Finally, he testified he met Anthony Stassi
(399). Verzino then described his partnership with Perna at
Atlanta which involved narcotics (400). He further testified
as to others he met including Condello, Sorenson and
Kapotos (400, 401).
Verzino described his liason with Otvos. His meeting
with Otvos arose when the petitioner asked him to ask
Otvos about a person named Montelone, whom the
petitioner allegedly knew (401, 402). Otvos told Verzino
about a narcotics distribution through Sorenson (403).
Verzino spoke to Perna about this (404, 405).
At a later meeting, Otvos told Verzino that he was
trafficking in narcotics while imprisoned at Atlanta (405).
The outside conduit for the distribution was one Ralph
20
Santana, but Otvos told him that he had difficulty with
Santana (405, 406). Otvos then asked Verzino whether he
could handle the distribution (406). Verzino spoke to the
petitioner who complained of the high price that Otvos
wanted (406, 407). Eventually the arrangement came to
fruition (408, 409, 416). The source was to be Otvos’
brother in France (49), and a scheme was hatched as to
how the brother of Otvos would be assured that the
representative that was sent to him was trustworthy (409-
411).
It appeared that the petitioner’s brother Anthony Stassi
was to be the emissary to the brother of Otvos (411).
Verzino described the address where the brother of Otvos
could be found (411, 412). There was a further description
of how a note written on onion paper would be given to the
brother of Otvos unsigned by referring to an incident
between Otvos and his brother so that the brother would
know that Otvos was the communicant (412-414). The
courier to France was to have the name “Duval”. This was
to be Anthony Stassi (415).
Verzino also conversed with the petitioner as to how
Anthony Stassi would meet the brother of Otvos in France
and arrange terms (417, 418). Verzino also spoke to Perna
about this and discussed how he and Perna would take
their profits, that is, either in cash or narcotics, also
discussing the distribution of the narcotics with Perna (417-
420). ‘Suzie’’ was identified as Verzino’s wife.
According to Verzino, the petitioner found out that his
brother Anthony, succeeded in having the narcotics ex-
ported from France (422-424). Verzino also told the
petitioner that he wanted his profit in narcotics with an
option to purchase narcotics wholesale (424). Finally, the
petitioner was said to have told this witness that his brother
met some “Frenchman” in New York and arrangements
were made for deliveries (427). In the summer of 1970 the
petitioner and this witness spoke to Otvos about delays in
the shipments, and Otvos told them that the narcotics
21
would come from Canada (429, 430). Finally, Verzino’s
wife Suzie told him that Sorenson delivered two (2) kilos of
heroin to her and described how she disposed of them (430,
431). The petitioner <lso told him that 120 kilos of heroin
were received (431, 452). Later the petitioner told him that
he disapproved of Verzino’s wife Suzie being involved
(433).
In another conversation with Verzino, the petitioner
allegedly told him o' another shipment of 140 kilos of
heroin (436). In regurd to a third shipment, this never
arrived although the petitioner allegedly spoke about it
(438, 440). Later, clouds appeared on the horizon when it
was discovered that money was missing and that Sorenson
was involved in this. Verzino spoke to Perna about the
petitioner's suspicion of the others not accounting for the
proceeds of the sales (442, 443). There was also a con-
versation attributed to the petitioner regarding the seizure
of narcotics in France and also that Anthony Stassi was
offered narcotics in Canada (447, 448).
When Verzino was released, the petitioner told him to
wait until he heard from Anthony Stassi who would
communicate with him. At any rate, Verzino told Stassi
that he intended to start his own narcotic enterprise (449).
He then described his relationship to the Malizia brothers
and also getting narcotics from other sources (452-454).
Verzino was arrested February 25, 1974 (462). He agreed
to cooperate with the authorities in August 1974 (464).
Verzino also denied that while incarcerated in Atlanta,
the petitioner Joseph Stassi observed him in a homosexual
act (515, 516). Further that he never told the petitioner he
would “get even” with him because the petitioner caught
him in such an act (S16).
The Government also called an agent named Korniloff
(525). According to him he participated in interviewing
Verzino in March of 1975 with the Government attorney
who prosecuted this case participating (S25, 526). The U.S.
Attorney told Verzino of a plot to kill him, his wife and
Sorenson, and that the petitioner was involved in it (526).
Verzino told this witness he didn’t believe that (S27).
22
Later Verzino recounted the petitioner's involvement
and Korniloff, in effect, summarized the evidence in this
case coming from Verzino (528-531).
THE DEFENSE:
The petitioner put in a defense by calling various wit-
nesses who were inmates at the Atlanta institution or who
otherwise knew the viitnesses who testified against him,
namely Perna and Verzino. Additionally, the petitioner
himself testified and denied that he participated in any
narcotic transactions with Verzino, Perna or Condello.**
Joseph Staiii ‘testified. He explained that he was to be
paroled December 14 1975. That he was married and his
wife's name was Frances and she resided at 1944 East 21st
Street in Brooklyn, and he was the father of two children
(602, 603). He described his prison life, having. been
sentenced in 1967. His record in the institution was clear
and he was never subjected to any disciplinary action (603,
604).
Asked about the charges that he was on trial for, the
petitioner clearly stated that he was not guilty, that he
never entered into any agreement with Perna, Verzino or
anybody else, including Otvos (606). He denied that he ever
spoke to Perna or Verzino or Condello about importing
narcotics into the United States (606, 607). Furthermore,
he never discussed having poison brought into prison to kill
anybody (607),
** It is to be noted that the Court below held in U.S. y. Frank, 494 F. 2d 145
(Cir, 2d, 1974) at page 153 that:
“In passing upon the sufficiency of the evidence, the Court had only
the prosecution's case, the defense having offered none . . . But the
self-incrimination clause does not elevate a defendant's silence much
less the failure to present any defense case, to the level of a convincing
refutation. When a defendant has offered no case, it may be
reasonable for the jury to draw inferences from the prosecution's
evidence which would be impermissible if the defendant had supplied a
credible. exculpatory ve Lover
» 23
In regard to Perna, petitioner testified that he never had
any real personal discussions with Perna, but merely knew
him because he was an inmate (608). He also had at most, a
casual relationship with Sorenson, namely he was never
intimate with him or ever had any personal discussions with
him (609, 610). Nor cid he know the co-defendant Alaimo.
Stassi related that he was friendly with Verzino (610).
Their relationship began when he found out that Verzino’s
probation report related to him and that aroused his in-
terest and then he became friendly with Verzino (611, 612).
In regard to his previous conviction, the petitioner
denied that he was guilty and explained the review of that
conviction that he was pursuing (612, 613). Furthermore,
Verzino apparently was helping him because according to
petitioner, Verzino knew the law (613, 614). He also
described litigation regarding his parole status (615).
Verzino did speak about his narcotic activities (616).
Verzino told the petitioner that when he was released he
was going to go into the narcotic business. The petitioner
explained Mondolino as being a co-defendant of his in a
prior case and that Verzino knew that fact (617, 618).
However, the petitioner did not know Mondolino, who was
a Frenchman (618).
The petitioner explained that his wife knew Verzino’s
wife, that they lived in the same neighborhood and Ver-
zino’s wife would visit. That when Verzino called his wife
who did not respond to the telephone call, he would call
Stassi’s wife so that she could call his home to find out
whether his wife was there (621).
He then described the homosexual incident involving
Verzino and somebody else (622-624). Discovering Ver-
zino’s sexual tendencies, he told Verzino not to bother with
him (622-624). He thereafter ignored Verzino (625).
Verzino’s wife lived near the premises where the
petitioner's wife lived, as he previously testified. When the
petitioner called his wife, Verzino was there and he spoke
to him (626, 627).
24
Next, the petitioner called various inmates to testify as to
the activities of Verzino and Perna at the institution. These
persons testified that there was an incident where the
petitioner saw Verzin» committing a homosexual act and
told him to stay away from him (561-563, 568-571, 579-
581). As a matter of fact, Harold Robbins, an inmate,
testified that he participated in a homosexual incident
(S87, 588). That Verzino even before being discovered by
the petitioner, had a homosexual relationship with this
inmate (588, 589). The incident occurred at the prison
library and Verzino was observed cursing the petitioner
who was walking away from him. Verzino openly
threatened to kill the petitioner and stated that he would
seek revenge (595-598).
The witness further testified that in boasting about his
narcotic activities, Verzino never mentioned the petitioner
but did say he would frame the petitioner (706-708).
Evidence was adduced that Verzino spoke to an inmate
about importing narcotics and asked the inmate whether
he knew ‘Latins’, further asking the inmate to make a
connection for him but never mentioning the petitioner
(713-717, 720-721).
Perna discussed his involvements with the law and ‘told
inmates that the authorities were pressuring him to build a
case against the petitioner (721, 759),
Other witnesses testified as to the criminal activities of
Perna and Verzino while they were institutionalized at
Atlanta (738, 739-741). Neither Perna nor Verzino ever
mentioned the petitioner (741, 742). Another inmate
testified that he knew Condello, Perna and Verzino (773).
He casually knew the petitioner (774). That he never heard
the petitioner say he was going to kill Verzino (775).
A Frenchman named Orsino, testified he was also an
inmate; that he knew Verzino who asked him whether he
could arrange any source of narcotics in France (789-791).
25
REASONS FOR GRANTING THE WRIT
POINT I
THE PETITIONER WAS DENIED THE RIGHT
TO CALL A WITNESS IN HIS DEFENSE AND
OTHERWISE WAS DEPRIVED OF DUE
PROCESS OF LAW BY THE DEPORTATION
OF OTVOS.
The conspiracy count was the basis for the case against
the petitioner. On this count the governmen’ was able to
impose liability under the substantive counts, see
Pinkerton v. U.S., 228 U.S. 640 (1945).
As is so familiar with the proving a conspiracy charge,
this Court characterizing such in Anderson v. U.S., 417
U.S. 211 (1974) at page 224 as:
We have ‘indicated in the related context,
charges of conspiracy are not to be made out by
piling inference upon inference, thus
fashioning . . . a dragnet to draw in all substantive
crimes... (Omitting internal quotations and
citations).
Moreover, in conspiracy charges, out of court statements
by accessories mouthed by testifying witnesses is a common
type of evidence and such are admissible under Rule
801(d)(2)(E), as not being hearsay.
Hence it was cardinal to the defense in this case that
petitioner have recourse to Otvos, the ‘French con-
nection’. Calling an accomplice as a witness is not an
uncommon practice. See Washington v. Texas, 388 U.S.
14 (1967).
in Webb vy. Texas, 409 U.S. 95 (1972), prior to a defense
witness testifying, the Court warned the potential witness of
the consequences of perjury. The witness then refused to
testify. This Court held that the petitioner was deprived of
due process of law (14th Amendment in such case, Sth
26
Amendment here).
In Cool v. U.S. 409 U.S. 100 (1972), the jury was in-
structed to disregard the testimony of a defense witness
unless the jury was satisfied of the witness’ testimony
beyond a reasonable doubt. This Court held that the trial
judge was in error in rendering an accomplice charge as to
a defense witness for jury appraisal. The basis of this
Court's holding was the 6th Amendment right to com-
pulsory process or t> call witnesses.
In Chambers v. Mississippi, 410 U.S. 284 (1973) at page
294 this Court stated in part that:
“The right of an accused in a criminal trial to due
process is, in essence, the right to a fair trial to
defend against the State's accusations. The right to
confront and cross examine witnesses and to call
witnesses in one’s own behalf has long been
recognized as essential to due process...”
(Internal citations omitted).
It was further stated on page 302 of 410 U.S. that:
Few rights are more fundamental than that of an
accused to present witnesses in his own
defense . . ."’ (Internal citations omitted).
In U.S. v. Mendez-Rodriguez, 450 F. 2d 1 (Cir. 9th.
1971) a government policy to deport some aliens who were
arrested for illegal entry into the United States was con-
sidered. The accused was charged and convicted in that
case for a conspiracy to smuggle aliens. He was arrested
while in the act of transporting the aliens. Some aliens were
held as material witnesses by the government, some were
deported. The accused moved to dismiss the indictment
because some of the aliens he was with at the time of his
arrest and were deported, may have been called as defense
witnesses. These possible witnesses were deported to
Mexico and their whereabouts were unknown. The motion
was granted, it being held on page 5S that:
“Appellant does not contend that the government,
without more, is under an obligation to search out
27
and produce witnesses who may be favorable to the
defense. He does contend, however, that it is a
denial of due process if such witnesses have been
made unavailable by the conduct of the govern-
ment.”’
On page 5 of 450 F 2d it was stated that:
‘Appellant concedes that he is unable to show that
the witnesses in question would have offered the
testimony favorable to the defense. Such statement
is understandable in view of the fact that the
appellant was, by government action, deprived of
the opportunity to interview said witnesses. Ap-
pellant couldn't «now what these witnesses might
say, if anything. We are in the same position as the
appellant. We decline to indulge in any speculation
that the interviews would, or would not, have been
fruitful to the defense.”
The pre-trial evidentiary hearing as to this issue, showed
negligence on the part of the government. Whether . ie
authorities deliberately did this or not is irrelevant, and in
the bureaucratic maze presented, it would be impossible to
show any deliberate suppression of Otvos as a witness. In
short, to paraphrase a recent holding of this Court in Flint
Ridge Development Co. v. Phoenic Rivers Association, 49
L. Ed. 2d, 205 (1976), at page 216, Otvos was submerged
and“. . . Shuated <side in the bureaucratic shuffle . . .
The findings of the trial court were to the effect that the
parole board was grossly negligent (193). The Court
however found that there was no negligence on the part of
the United States Attorney or other agencies (193, 194).
it would seem that if the United States Attorney went to
the Court for a conviction, the government of the United
States was represented by such United States Attorney of
the Department of Justice. As was held in Giglio v. U.S..
405 U.S. 150 (1972), at page 109:
“In the circumstances shown by this record,
neither . . . authority nor its failure to inform his
28
superiors or his associates is controlling. Moreover,
whether the non-disclosure was a result of
negligence or design, it is the responsibility of the
prosecutor. The frosecutor’s office is an entity and
as such it is the spokesman for the govern-
ment...”
The record shows that representative of the Department
of Justice were in contact with Otvos, and a study was being
made of his backyround and his relationship with
organized crime (10*-111). It would have been a telling
defense before the jury to have presented proof through
Otvos that he and his brother or whatever his gallent
compatriots were supposed to have a role in the Perna-
Verzino multi-national venture, did not exist or if existing
were not participants. Otvos was a defendant. But Otvos
may have elected to take the stand himself.
At the hearing a government witness testified that Otvos
_ told him that he did not participate in any narcotic traf-
ficking at the Atlanta institution (118). There was further
testimony as to the denial by Otvos of his participation in
narcotic trafficking at the institution (93).
In U.S. v. Tsuttagawa, SOO F. 2d 420 (Cir. 9, 1974) it
was stated on page 422 in part that:
“Since the government investigators are not
equipped with crystal balls to determine unex-
pected or unforeseen results, there may be some
circumstances in which Mendez-Rodriguez will not
apply. However, this is not such a case. Before the
apprehensions, the government had a reasonably
small, known and identifiable number of targets,
although names of potential defendants may not
have been known. . .
It was further stated on pages 422-423 that:
"*. . . Mendez-Rodriguez prevents the government
from determining who will be a helpful witness for
the accused. The accused . . . has a right to make
that decision for himself, either by interviewing the
potential alien witnesses or by waiving the right to
GPGccse
—
See also U.S. v. Bell, S06 F. 2d 907 (D.C. Cir., 1974),
footnote 113 at page 222.
As was stated in U.S. v. McQuillan, SO7 F. 2d 30 (Cir.
Mh, 1974) at page 23:
‘\. . . There is no connection whatsoever between
the aliens and the crime defendants were com-
mitting...”
“In sum, Mendez-Rodriguez is inapplicable to
the instant case because there is nothing to indicate
that the aliens here were witnesses to the crime of
which appellants were convicted and nothing to
indicate the barest possibility that their testimony
could have been cf any benefit to the accused.”’
However, in the present application, there was testimony
by the government witnesses that Otvos denied any
complicity in the crime. It would seem to follow that if
Otvos denied complicity in the crime, this would work to
the petitioner's advantage.
Unlike the ordinary case where a petitioner or an ac-
cused complains that evidence should be suppressed, on
the contrary in this case, the petitioner’s thrust is to the
very integrity of the fact finding process. See U.S. v. Agurs,
49 L. Ed. 2d 342 (1976) where dealing with the prosecutor's
duty to divulge exculpatory evidence, this Court
realistically noted on pages 354-355 that:
‘The proper standard of materiality must reflect of
overriding concern with the justice of the finding of
guilt. Such a finding is permissible only if sup-
ported by evidence establishing guilt beyond a
reasonabie doubt. It necessarily follows that if the
omitted evidence creates a reasonable doubt and
did not otherwise exist, constitutional error has
been committed. ...”
In this case, the government's case against the petitioner
was supported by three disreputable witnesses. The record
is complete with statements, utterances, all mouthed by the
three accomplices whose sordid backgrounds were set forth
30
in the record. True the petitioner testified. It is also true
that a number of witnesses testified in his behalf. But the
cardinal link in this case was Otvos himself. The petitioner
would have had a better chance before the jury if Otvos
were a witness. This went to the integrity of the fact finding
process.
The Court below cited U.S. v. Quinn, 445 F. 2d 940 (Cir.
2d, 1971) Cert. den. 92 S. Ct. 87. That case, it is suggested,
is inapplicable. There the accused complained that due to a
pre-indictment delay possible defense witnesses were dead
and hence no longer available. However the government in
that case was not responsible for the death of three possible
witnesses.
Furthermore, U.S. v. Finkelstein, cited in the Court
below, 527 F. 2d Si’ (Cir. 2d, 1975) cert. den. % S. Ct.
1742 is also inapplic ible. Finkelstein dealt with a denial of
a pre-trial motion fr a severance of the parties so that
some could be called as witnesses. But in this case, the
petitioner Stassi was deprived even of his right to move for
a severance because Otvos was not available. The govern-
ment severed in this case, but the severance was to the
detriment of the petitioner. In regard to Finkelstein, the
petitioner wishes to add that this Court should view
Finkelstein in the light of a statement in U.S. v. Crane, 499
F. 2d (Cir. 6th, 1974) at pages 1387-1388 to the effect that:
"* . . . Given what appears to be an ever increasing
demand by litigants for access to federal courts,
efforts by trial judges to keep their dockets current
are to be commended. Yet justice, not judicial
economy is the first principal of our legal system.
And under no circumstances may well-intentioned
efforts to conserve judicial time be permitted to
prejudice the fundamental right of a criminal
defendant to a fair trial.”
As was stated in U.S. v. Ballesteros-Acuna, 527 F. 2d
928, (Cir. Mh. 1975) at page 930:
“It is well established that an accused’s right
to obtain the testimony of witnesses and compel
31
their attendance is a fundamental element of due
process of law . . . This Court has held however,
that the government is under no obligation to look
for a defendants witness, in the absence of a
showing that such witness was made unavailable
through the suggestion, procurement or negligence
of the government..." (Omitting internal
quotations and citations).
As stressed, Otvos was an integral part of the oc-
currences testified to by the government witnesses. Aside
from petitioner's argument that the petitioner was deprived
of his right to call witness, it may also be argued that the
yovernment itself hal a duty. Of course if the government
were compelled to ‘ave Otvos present, the government
could not call Otvos its a witness if he were on trial, because
Otvos might have claimed the privilege against self-
incrimination. That may be so, but nevertheless, whether
the government had a duty to call Otvos. the petitioner
certainly had the right. However it may be of interest to the
Court to mention the 1966 Volume of the Washington
University Law Quarterly, at page 68, et seq. ‘Notes Duty
of the Prosecutor to Call Witnesses whose Testimony will
Help the accused to Establish his Innocence.” The thrust
of that note was that the government cannot select the
facets of an entire transaction and present them to the trial
jury. That the government had a duty to call all those
persons who were part of the “res gestae’.
32
POINT Il
THE COURT IN EFFECT, DIRECTED THE
JURY TO FIND THE PETITIONER GUILTY
OF THE SUBSTANTIVE COUNTS.
The Court instrucied the jury pursuant to Pinkerton v.
U.S., 328 U.S. 640 (1945). The Court's charge was to the
effect that if the petitioner was found to be a member of the
conspiracy by the jury, the jury could also find the
petitioner guilty under the substantive counts. The Court
left no room in its charge for the jury to acquit the
petitioner of all or some or none of the substantive counts.
Even if the jury found the petitioner guilty of the con-
spiracy, (1070, 1071, 1040, 1041, 1068).
It is respectfully submitted that the holding in
Pinkerton, while correct as applied by the Court, never-
theless did not hold that the jury must find an accused
guilty of the substan:ive crimes if the accused is a member
of the conspiracy.
This is exactly the purpose of the jury system. In U.S. v.
Dunn, 284 U.S. 390 (1942) this Court held that in-
consistent verdicts rendered by a jury are quite proper.
Each count of an indictment is a separate indictment by
itself. The joinder is for the convenience of the government
and is a method for achievirig economy; see also U.S. vy.
Maybury, 274 F. 2d 899 (Cir. 2d, 1960); U.S. v. Dot-
terweich, 320 U.S. 277 (1943), opinion of Mr. Justice
Frankfurter.
It is also true that there was no exception taken to this
charge.
However, it is respectfully submitted that the right to
have a jury consideration of the facts is so fundamental that
in a criminal case a court's direction to a jury to find a
verdict of guilty is plain error under Rule 52(b) of the
Federal Rules of Criminal Procedure, supra.
33
POINT Ill
THE COURT BY DIRECTING THE JURY TO
FIND A SPECIAL VERDICT AS TO WHEN
THE PETITIONER BECAME A MEMBER OF
THE CONSPIRACY PREJUDICED THE
PETITIONER’S RIGHT TO A FAIR TRIAL
AND A FAIR JURY CONSIDERATION.
The first count of the indictment charged a conspiracy
commencing on or at out January 1, 1970 and continuing to
and including December 30, 1972. The date of the last
overt act was alleged to be on or about June 1971. The
statutory predicates {or that conspiracy count were former
Sections 173 and 1°'4 of 21 U.S.C. and the succeeding
sections found in 21 U.S.C. 812, 841, 846, 963.
Sections 173 and 174 of 21 U.S.C. were repealed before
May 1, 1971, that being the cut-off date. Thereafter, the
new sections dealing with narcotic offenses went into effect.
See Bradley v. U.S., 410 U.S. 605 (1973).
The Court's charge to the jury was to the effect that the
petitioner could be convicted under the substantive counts
if the jury found him to be a member of the conspiracy and
that the acts constituting the substantive counts were
performed pursuant to the conspiracy (1071, 1072). See
Pinkerton v. U.S., 328 U.S. 640 (1945).
However at the conclusion of the Court’s charge the
Court informed the forelady that a form known as
“Specimen Verdict as to Each Defendant’ was available
for the jury to record the verdict. Then the Court stated as
follows:
‘| want to call your attention to the last paragraph
of that copy: ‘In the event of a guilty verdict on
count 1 (conspiracy) answer the following
questions: did the defendant become a member of
the conspiracy before or after May 1, 1971? Before
— After—.’ ” (1080, 1081).
34
It would seem that the purpose of this type of instruction
was to impose the mandatecry penal liability under the then
formerly existing sections found in 21 U.S.C. 173 and 174;
see U.S. v. Bradley, supra.
Coupled with that instruction was the Court informing
the jury that the jurv didn’t know the “details” of that
question but that it was “procedurally important”, the
Court stating that it would not give the reasons to the jury.
It is respectfully su bmitted that this type of procedure
constituted a directicn to the jury to arrive at a special
finding. Rule 31 of the Federal Rules of Criminal
Procedure relates to tlie verdict. It has five (5) subdivisions.
Subdivisions (a) to (d. describe the disposition the jury can
make. There is not ore provision in there that provides for
the procedure adopted by the Court below.
Meanwhile subdivision (e) of Rule 31 headed ‘*Criminal
Forfeiture’’, supra, provides that if the charge alleges an
interest or property subject to a forfeiture, then a special
verdict should be returned by the jury to the extent of the
property interest. This is the only provision it seems
relating to special verdicts.
In U.S. v. Spock, 416 F. 2d 165 (Cir. 1st, 1969) at page
180 it was stated in part that:
“Of more substantive importance is the fun-
damental difference in the jury’s function in civil
and criminal cases. In civil trials the judge, if the
evidence is sufficiently one-sided, may direct the
jury to find against the defend. nt even though the
plaintiff entered into the case bearing the burden
of proof... . Inacriminal case the Court may not
order the jury to return a verdict of guilty no matter
how overwhelming the evidence of guilt... Put
simply the right to be tried by a jury of one’s peers
finally exacted from the King would be
meaningless in the King’s judges could call the
turn..." (At pages 180-181, internal quotations
and citations omitted)
35
On pages 182 it was further stated in part that:
‘We are less concerned by the jury’s possible fear
of subsequent criticism with respect to special
findings than we are with the subtle and perhaps
open direct effect that answering special questions
may have upon the jury’s ultimate conclusion.
There is no easier way to reach, and perhaps force,
a verdict of guilty than to approach it step by step.
A juror wishing to acquit may be formally
catechized. By a progression of questions each of
which seems to require an answer unfavorable to
the defendant, a reluctant jury may be led to vote
for a conviction which, in the large, he would have
resisted. The result may be accomplished by a
majority of the jury, but the course has been
initiated by the judge, and directed by him through
the frame of the questions.”
It is submitted, tht the Court’s instruction to this jury
prejudiced the petiticner when the jury was told it “didn’t
know the details’ of the question but that it was
“procedurally imporiant” and finally the Court stating it
would not give the reasons to the jury.
This could have led to jury speculation all to the
prejudice of the petitioner. The jury may have felt that the
enormity of the charges warranted this instruction by the
judge.
The Court below on pages 252-253 of the opinion, dealt
with this holding that it was proper because it was relevant
to the sentence. However, this is not a case where the jury
may hear evidence in order to determine the type of
punishment to impose or not to impose.
The Court’s questioning as to this also dealt with the
issue that the jury was told that the petitioner could be
found guilty of the substantive counts, if found guilty of the
conspiracy.
This type of instruction, it is submitted, had a “chilling”
effect on the deliberations of the jury, such a deliberation
‘being a part of the fact-finding process, and being the
special responsibility of the jury which spoke for the
~ oon amma
36
sovereign. See U.S. v. Maybury, 274 F. 2d 899, (Cir. 2d,
1960).
The prosecution in framing the indictment joined two
conspiracies in one count. There were two separate statutes
that did not co-exist in point of time but succeeded each
other. This, it is submitted, caused the resulting in-
struction of the special finding by the jury not provided for
_ in Rule 31. Rule 8 of the Federal Rules of Criminal
Procedure provides in subdivision (a) that offenses may be
joined in one indictment in separate counts for each offense
if the offenses are of the same or similar character. Two
conspiracies can be joined in one indictment and in
separate counts, even though they are overlapping acts,
and it would seem that the two separate conspiracies can be
charged in separate counts in an indictment where the
statutes are different. See U.S. v. Papadakis, 510 F. 2d 287
(Cir. 2d, 1975S), at page 296, it being held that:
“While it is not unusual so to charge, there is no
reason why people cannot enter into two separate
criminal agreements more or less at the same
time . . . If they do they come within the joinder
rule F.R.C.R.P. Rule 8, subject to severance in the
interests of justice...’ (Internal citations and
quotations omitted).
The Court below cited a ruling of the District Court for
the Southern District of New York found in U.S. v. Ogull,
149 F. Supp. 272 (S.C.N.Y. 1957). In that case, however,
the defense consented to the Court requiring the jury to
make a special finding. It is difficult to understand how
that case has any value as a precedent.
It is of course true that the defense did not take any
exception but again, it is submitted this was plain error.
There was no showing and no claim that the omission on
the part of petitioner’s former counsel constituted trial
strategy. See Henry v. Mississippi, 379 U.S. 443, 447, 449
(1965). Furthermore since the record is silent as to
petitioner's former counsel's omission, one cannot presume
the waiver of a fundamental right as was held by this Court
in Barker v. Wingo, 407 U.S. 514 (1972).
37
POINT IV
THE TRIAL COURT’S STATEMENT THAT
THE PROSECUTION WAS FOUNDED ON
THE GOVERNMENT’S BELIEF THAT THE
PETITIONER AND CO-DEFENDANTS WERE
GUILTY, PREJUDICED THE PETITIONER’S
RIGHT TO A F.AIR TRIAL AND THE MOTION
FOR A MIS-TRIAL SHOULD HAVE BEEN
GRANTED.
During the trial a motion was made for a mistrial
because of the Court’s comment that the prosecution
thought that the di-fendants were guilty and hence in-
stituted the action (375).
The evidence against the petitioner came mainly through
the disreputable combination of Perna and Verzino. The
lurid background of this case was the activities taking place
in a penal institution, thteats of violence, and all the other
sordid aspects of a narcotics prosecution, required the most
extreme caution so that the jury could fairly appraise the
evidence. ~~
A statement of the trial judge, carrying the prestige of a
judicial office, it is suggested tended to prejudice the jury
so as to render the jury incapable of objectively appraising
the evidence. In other words, the Court’s statements added
the Court’s prestige to the government's case. In Palno v.
U.S., 58 F. 2d 111 (Cir. 8th, 1932) it was held that while a
federal judge can make some comments such should not be
in the nature of an argument or display a partisan position.
It was held that the comments, if made, should be full,
objective and the Court should not by its statements give
rise to an inference that it is not neutral.
The trial court did render a curative instruction to the
jury (377-382). However because of the sordidness of this
case, it would seem that the impression left with the jury
either was not obliterated or could not be obliterated; see
Bruton v. U.S., 391 U.S. 123 (1968).
38
In U.S. v. Salazar, 293 F. 2d 442 (Cir. 2d, 1961), the
Court inquired of a defendant when he was testifying
whether he thought that the prosecutor or the Post Office
Inspectors were fabricating a case against him. The
conviction was reversed it being held that a curative in-
struction to the jury clid not undo the prejudice. In U.S. v.
Woods, 252 F. 2d 334 (Cir. 2d, 1958), it was held that
where a Court's comments were extremely prejudicial a
curative instruction to the jury was ineffective. In U.S. v.
Martinez, 496 F. Zd 664, (Cir. Sth, 1974) cert. den. 419
U.S. 1051 held that a cautionary instruction was in-
sufficient to overcome prejudicial impact of a judge's
comment.
POINT V
THE PROSECUTOR’S SUMMATION EX-
CEEDED THE BOUNDS OF FAIR COMMENT
Following current practice, the prosecutor was afforded
two summations whilz the defense only one. At page 831 of
the Appendix the prosecutor stated to the jury that the
witnesses who testified for the government were telling the
truth and he referrec: to the “deals” with the government
that were “conditioned” on those witnesses telling the truth
(831-833). The prosecutor also informed the jury that the
sentencing judge would consider in imposing a sentence on
the government witresses whether they “‘perjured them-
selves” (833).
The rebuttal summation of the prosecutor referred again
to the fact that the government witnesses had a ‘‘deal”’
(1019). That the government witnesses “got a gun at their
heads” (1019). The prosecutor further told the jury that
truth was the only way out for the two witnesses at trial.
Perna and Verzino. That the government told them to tell
the truth and that deals were made “conditioned on telling
the truth” and that the easiest way out for the government
witnesses was to tell the truth (1019). Continuing his
39
rebuttal, the prosecutor told the jury that when the
government witnesses were sentenced, the court would take
into consideration ‘‘what these witnesses have
done . . . that’s what their deals require, that the Court be
told all the crimes :hey have done, the Court be told
everything about them.” (1020).
One inference that could have been made by the jury, a
jury of laymen, was that if the jury acquitted the petitioner
the government witnesses would be perjurers, and that the
future of the govern nent witnesses depended on a con-
viction of the petitior er. The prosecutor by referring to a
“deal” with the government endorsed the truth of the
testimony of Perna ind Verzino.
It is submitted thai the prosecutor here was ‘‘vouching”
for the veracity of the government witnesses in the most
extreme way. In U.S. v. Phillips, 527 F. 2d 1021 (Cir. 7th,
1975), the prosecutor summing up told the jury that if the
defendants were acquitted the jury would be ajudging the
government as violating the civil rights of the defendants.
That the jury would be finding that one government at-
torney conspired with a government agent. That if a
government agent were not believed the jury would be
finding that the government agent was committing a crime,
at pages 1022, 1023. The conviction was reversed. Since the
prosecutor represented the government, the duty imposed
on the prosecutor was to seek justice rather than a con-
viction. See Berger v. U.S.. 295 U.S. 78, at page 88 (1935).
It is submitted that the prosecutor in this case com-
mented on the credibility of the government witnesses. See
U.S. v. Ludwig, 508 F. 2d 140, 143 (Cir. 10th, 1974).
Recently this Court dealt with the question of excessive
summations by prosecutors in Donnelly v. DeChristoforo,
416 U.S. 637 (1974). While that was a state conviction, and
this Court held that no constitutional issue was presented
for review, the prevailing opinion in this Court in footnote
23 on pages 648 did say:
~~
on ea
| 40 t
"23. We do not, by this decision, in any way
condone prosecutorial misconduct, and we believe
that trial courts. by admonition and instruction,
and appellate ccurts, by proper exercise of their
supervisory power, will continue to discourage it.
CONCLUSION
It is respectfully st bmitted that the petition for a writ of
certiorari be grantec . |
Respectfully submitted,
ARNOLD E. WALLACH
A Member of the Bar of
the United States
Supreme Court
la
UNITED STATES COURT OF APPEALS
For 1Hz Seconp Ciecuit
Nos. 113, 114, 115—September Term, 1976.
(Argued September 1, 1976 Decided October 26, 1976.)
Docket Nos. 76-1110, 76-1175, 76-1180
Untrep States or AMEzICcA,
Appellee,
v.
Josepu Srassi, a/k/a Joe Rogers,
Anruony Srasst and Wri1am Sorenson,
Defendants-Appellants.
Before:
Kavurman, Chief Judge,
Fernserc and Van Graaremann, Circuit Judges.
Appeal from judgments convicting appellants of nar-
cotics violations following a jury triai before Judge Whit-
man Knapp in the United States District Court for the
Southern District of New York.
Affirmed.
Arnotp E. Watiacu, New York, N.Y., for
Defendant-Appellant Joseph Stasst.
Jutmu P. Herr, New York, N.Y. (Diller,
Schmuckler & Asness, New York, N. Y., of
Counsel), for Defendant-Appellant Anthony
Stasst.
2a -
Ratpx S. Napen, New York, N. Y., for Defen-
dant-A ppellant Sorenson.
James E. Nestanp, Assistant U.S. Attorney
(Robert B. Fiske, Jr., U.S. Attorney for
the Southern District of New York; How-
ard S Sussman, Lawrence B. Pedowitz,
Assistunt U.S. Attorneys, of Counsel), for
Appellee.
Van Graarerann, Circuit Judge:
After a six-week jury trial before Judge Whitman Knapp
in the United States District Court for the Southern Dis-
trict of New York, appellants were convicted of conspiracy
to import and distribute heroin between January 1, 1970
and December 30, 1972; of importing and selling 40 kilo-
grams in September 1970, and of importing and distribut-
ing 70 kilograms in .June 1971.
The tale of their misdeeds is like the all too familiar
plot of a Class B movie rerun, see United States v. Cirillo,
468 F.2d 1233 (2d Cir. 1972), cert. denied, 410 U.S. 989
(1973) ; United States v. Santana, 503 F.2d 710 (2d Cir.
1974), cert. denied, 419 U.S. 1053 (1974); United States
v. Magnano, slip op. 5471 (2d Cir. Sept. 7, 1976), and does
not merit a detailed recounting. Hatched in the federal
penitentiary in Atlanta, Georgia where appellants Joseph
Stassi and William Sorenson were incarcerated, the con-
spiracy contemplated the purchase of heroin from a
“French connection” and the smuggling of it into the
United States. Anthony Stassi, Joseph’s brother, was re-
cruited as the outside man to arrange the purchase and
distribution of the drugs, and Sorenson, upon his release
from prison in March 1970, assisted him. The proof, eval-
uated in the light most favorable to the government, was
3a
sufficient to support the convictions. Of appellants’ nu-
merous assertions of procedural error, only a few invite
discussion.
Deportation of Otvos
Indictment 75 Cr. 395, under which appellants were tried
and convicted, named Jean Claude Otvos, another inmate -
at Atlanta, as a fellow conspirator. Subsequent to the
issuance of the indictment on April 17, 1975, it was dis-
covered that Otvos had been paroled and deported on
March 3, 1975. Appellants, relying upon Washington v.
Texas, 388 U.S. 14 (1967), contend that, in deporting Otvos,
the government violated their Sixth Amendment right to
examine a potentially important witness. We find no merit
in this argument. :
There was, as Judge Knapp found, a substantial proba-
bility that Otvos, as indicted co-conspirator, would have
claimed his Fifth Amendment privilege and refused to
testify had he been present in court. See United States v.
Finkelstein, 526 F.2d 317, 524 (2d Cir. 1975), cert. denied,
44 U.S.L.W. 3624 (May 3, 1976). We need not, however,
rest our decision on that ground.
At the hearing conducted by Judge Knapp on appel-
lants’ motion to dismiss the indictment, three special
agents of the Federal Drug Enforcement Administration
testified that Otvos told them in December 1974 that he
would be eligible for parole in May 1975. This informa-
tion was confirmed by an Intelligence Analyst of the East-
ern District Strike Force, who was investigating Otvos on
behalf of the Parole Board.
The Parole Board had requested this investigation in
December 1974 but was not advised of Otvos’ possible in-
volvement in the instant conspiracy until January 31, 1975.
In the meantime, because of a change in the law, Otvos
became eligible for an earlier parole; and it was decided
4a
that he would be paroled and deported on March 3. Judge
Knapp found that the Parole Board was grossly negligent
in proceeding with the parole and deportation of Otvos
after receiving notice of the possibility of his indictment
but refused to charge the United States Attorney’s office
or the Drug Enforcement agents with the same lack of
care. Insofar as this ‘inding was one of fact, it had ample
support in the evidence. Appellants’ contention that the
Parole Board’s negligence must be imputed to the prose-
cution was properly rejected by the District Judge. United
States v. Quinn, 445 17.2d 940, 944 (2d Cir.), cert. denied,
404 U.S. 850 (1971); :f. United States v. Morell, 524 F.2d
990, 555 (2d Cir. 1975).
Appellant Anthony Stassi also relies upon the absence
of Otvos to support his contention that he was deprived of
his constitutional right to a speedy trial. Stassi was origi-
nally indicted on April 30, 1973 under Indictment 73 Cr.
405, which charged him alone with the receipt of 40 kilo-
grams of heroin on September 28, 1970. This indictment
was sealed in order that the government could pursue the
investigation which led to the uncovering of the massive
conspiracy established on the trial below.
We fail to see how the government’s delay in bringing
Stassi to trial on the 1973 indictment charging him with a
single substantive narcotics violation would require dis-
missal of the 1975 indictment charging him with long-term
participation in an extended conspiracy. This is not simi-
lar to the situation which existed in United States v. Alo,
439 F.2d 751, 754-55 (2d Cir.), cert. denied, 404 U.S. 850
(1971) where the second indictment merely supplanted a
substantially identical sealed indictment returned several
years before. Moreover, because there is no indication that
Otvos would have been a potential witness had Stassi been
prosecuted under the earlier indictment, appellant has
5a
failed to demonstrate the prejudice required for dismissal.
United States v. Alo, supra, 439 F.2d at 755.
The government was entitled to carry on its criminal
investigation despite the return of the 1973 indictment.
United States v. Poeta, 455 F.2d 117, 122 (2d Cir.), cert.
denied, 406 U.S. 948 (1972). Appellant’s further argument
that he was thereby subjected to the “humiliation and
degradation” of government surveillance furnishes too
shaky a foundation upon which to build a claim of preju-
dice. Cf. Hoffa v. United States, 385 U.S. 293, 309-10
(1966).
Evidence Outside the Scepe of the Indictment
Although the indictment charged a conspiracy running
from 1970 to 1972, the District Judge permitted evidence
of narcotics related transactions occurring in 1973. Nu-
merous decisions of this Court have held such testimony
to be admissible where it is probative of the existence of
the conspiracy charged or the participation of the alleged
conspirator. See, e.g:, United States v. Nathan, 476 F.2d
456, 460 (2d Cir.), cert. denied, 414 U.S. 823 (1973) ; United
States v. Miranda, 526 F.2d 1319, 1331 (2d Cir. 1975), pett-
tion for certiorari filed, 44 U.S.L.W. 3692 (May 1, 1976).
Judge Knapp emphasized time and again that he was ad-
mitting the disputed testimony for the limited purpose of
establishing the association of the parties. See United
States v. Diggs, 497 F.2d 391, 394 (2d Cir. 1974), cert. de-
nied, 419 U.S. 861 (1975). He also instructed the jury that
the defendants were being tried only for the conspiracy
charged in the indictment and that, if the jurors had a
reasonable doubt as to the defendants’ guilt, they were to
acquit, even though they were “dead certain” that defen-
dants had committed some other crime. There was no error
here.
nib
a ri i
6a
Proof was also introduced of numerous unrelated crimi-
nal acts by accomplices called as government witnesses,
much of it on direct examination by the prosecution. Be-
cause the defense was armed with information required by
18 U.S.C. § 3500 and Brady v. Maryland, 373 U.S. 83 (1963)
with which to discredit these witnesses, the government
was entitled to take the initiative in this regard so that it
would not be accused of withholding information from the
jury. United States v. Rothman, 463 F.2d 488, 490 (2d
Cir.), cert. denied, 409 U.S. 956 (1972). Defendants’ fail-
ure to object indicates that the prosecution’s questioning
was neither unexpected nor improper.
Special Findings by the Jury
Prior to May 1, 1971, the conspiracy with which ap-
pellants were charged constituted a violation of 21 U.S.C.
§§ 173 and 174. As of May 1, 1971, the provisions of these
sections were replaced by §{ 812, 841, 846, 952 and 963.
Because the old sections and the new provided for dif-
ferent terms of punishment, the District Judge, for sen-
tencing purposes, was required to know which sections
had been violated. See Bradley v. United States, 410 U.S.
605 (1973). With this in mind, he asked the jury to indi-
cate in writing whether, in the event they found defen-
dants guilty of the conspiracies charged, they became
members of the conspiracy before or after May 1, 1971.
Appellants argue that this was a request for a special
verdict, generally held to be improper in a criminal case.
United States v. Adcock, 447 F.2d 1337, 1339 (2d Cir.),
cert. denied, 404 U.S. 939 (1971). However, where the
specific information sought is relevant to the sentence to
be imposed, it is not error to request it of the jury. 2
Wright, Federal Practice and Procedure: Criminal § 512
(1969); Jalbert v. United States, 375 F.2d 125, 126 (5th
7a
Cir.), cert, denied, 389 U.S. 899 (1967); United States v.
Ogull, 149 F.Supp. 272 (S.D.N.Y. 1957). In any event,
appellants failed to object to the practice adopted by the
District Court and may not now be heard to complain.
Cf. United States v. Jones, 425 F.2d 1048, 1057 aa,
cert, dented, 400 U.S. 823 (1970).
Brady Material
On February 28, 1974, in a completely unrelated in-
vestigation, Special Agents James Bradley and Carlo Boc-
cia, both of whom were witnesses below, attempted to stop
the automobile of a person whom they mistakenly believed
to be a narcotics dealer. An altercation ensued, during
which Bradley shot and wounded the driver. The inci-
dent was investigated by both a federal and a state grand
jury, and no charges were filed against any of the in-
dividuals involved. Moreover, a charge of assault by
Bradley against the driver was eventually dismissed. Ap-
pellant Sorenson contends that a new trial should be
granted under Brady v. Maryland, supra, because the gov-
ernment did not disclose this information to the defense.
While the concept of the Brady rule is clear, a review
of our decisions in cases such as United States v. Keogh,
391 F.2d 138 (2d Cir. 1968); United States v. Kahn, 472
F.2d 272 (2d Cir.), cert. denied, 411 U.S. 982 (1973);
United States v. Rosner, 516 F.2d 269 (2d Cir. 1975),
cert, denied, 44 U.S.L.W. 3756 (June 30, 1976) ; and United
States v. Morell, supra, 524 F.2d at 550 shows that the
explication of the rule is sometimes as difficult as its ap-
plication. Where the undisclosed evidence relates to the
credibility of a government witness (see Giglio v. United
States, 405 U.S. 150, 154 (1972), these difficulties are
magnified by the broad scope of defendants’ inquiry. In
exploring the credibility of a government witness, de-
A
8a
fense counsel may within reasonable limits inquire as to
his “interest, his motives, his prejudices or hostilities, his
means for obtaining knowledge of the fact, his power of
memory, his way of life, his associations” and other sim-
ilar matters. United States v. Lawinski, 195 F.2d 1, 7
(7th Cir. 1952); see United States v. Dillon, 436 F.2d
1093, 1095 (5th Cir. 1971); Arpan v. United States, 260
F.2d 649, 658 (8th Cir. 1958). Because evidence as to
any or all of these matters might arguably be pertinent,
something more than »ertinancy had to be shown to man-
date the granting of 1 new trial. There must have been
a “significant chance” that the evidence would have af-
fected the judgment cf the jury. United States v. Fried,
486 F.2d 201, 203 (21 Cir. 1973), cert. denied, 416 U.S.
983 (1974). The District Judge felt that the undisclosed
evidence above described did not meet this requirement,
and we agree,
Moreover, subsequent to Judge Knapp’s decision below,
the Supreme Court fashioned a more exacting standard
for the granting of a new trial in cases such as this. The
thrust of United States v. Agurs, 44 U.S.L.W. 5013, 5017-18
(U.S. June 24, 1976) is that, in the context of the entire
record, the omitted evidence must raise a reasonable doubt
as to the defendant’s guilt. Because the undisclosed evi-
dence here was insufficient under the test previously ap-
plied in this circuit, it certainly does not satisfy the re-
quirements of Agurs.
Other Assertions of Error
Appellants’ remaining assertions of error require no
extended discussion. Judge Knapp correctly charged the
rule of Pinkerton v. United States, 328 U.S. 640 (1945)
which permitted the jury to convict each of the conspirators
of the substantive offenses charged if they were committed
in furtherance of the conspiracy and were reasonably fore-
9a
seeable by the defendant whose guilt was being considered.
United States v. Finkelstein, supra, 526 F.2d at 522. Appel-
lant Sorenson cites no authorities to support his post-trial
argument that he was “extremely prejudiced” because two
men in civilian clothes, who Sorenson asserts were police
officers, accompanied another police officer when he was
called as a government witness. The District Judge’s com-
ment that “[t]wo people walked in and walked out” appro-
priately summarizes this incident.
After a full hearing, Judge Knapp found that a govern-
ment witness’ selection of Sorenson’s photograph was “in
no way the result of suggestion”. Bearing in mind the
independent sources of identification described by the wit-
- ness, United States v. Mims, 481 F.2d 636, 637 (2d Cir.
1973), and the substantial corroborative evidence of Soren-
son’s participation in the conspiracy, United States v. Reid,
517 F.2d 953, 967 (2d Cir. 1975), we do not find this to be
the “rare exception” in which the District Judge’s deter-
mination should be overruled. United States v. Mims,
supra, 481 F.2d at 637.
With excerpts carefully culled out of context, appellants
urge that they were deprived of a fair trial by remarks
of the court and the prosecution. Having examined each
challenged incident in the setting of the whole trial, United
States v. Weazler, 79 F.2d 526, 530 (2d Cir. 1935), cert.
denied, 297 U.S. 703 (1936), we find no merit whatever in
appellants’ contentions. Insofar as the forceful character
of the prosecutor’s summation may have exceeded the
norm, this was prompted by defendants’ repeated asser-
tions that the prosecution was participating in or know-
ingly abetting a frame-up. United States v. Santana, supra,
485 F.2d at 371.
In summary, we find that appellants received a fair trial
and that there was ample proof of their guilt. The judg-
ments of conviction are therefore affirmed.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.