Respondents Brief — United States v. Ceccolini

Supreme Court, U. $

ED

OCT 25 1977

IW THE

Supreme Court of the United ———T_\_—

Ocroszn Team, 1977

No. 76-1151

UNITED STATES OF AMERICA,

| 8

V.

RALPH CECCOLINI,

Respondent.

Gaeewsrpan Kananex Jarre & Fuwx

Attorneys for Respondent

14 Mamaroneck Avenue

White Plains, New York 10601

TABLE OF CONTENTS

Statutory Provisions [Nvo_vep

Fepera, CRMMIN AL. Rove Lyvoivep

Pretaminarny STATEMENT .........................

Z

ARGUMENT:

Point 1—The Government appeal of the instant

case is precluded by the double jeopardy

clause

Point II— The exclusion of the fruits of the con-

cededly illegal search was proper

Point III— The trial court below properly sup-

pressed the testimony of Lois Hennessey ........

Point 1V—The Government totally failed to

establish that Lois Hennessey’s testimony

would have discovered absent the illegal

search -

Point V—The inequitable conduct of the Gov-

ernment estops it from appeal or from as-

serting a claim of attenuation of taint —.........

ConcLusion _—

11

17

31

S

ii TABLE OF CONTENTS

Cases Cited —

Bell & Howell Co. v. Bliss, 262 F. 131 (7th Cir.,

1919) 35

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056,

23 L.Ed. 2d 707 (1969) * 37

Brady v. State of Maryland, 313 U.S. 83, 83 S.Ct.

1194, 10 L.Ed. 2d 215 (1963) ec ceeeeeeeeens 37

Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 |

Re eS 23

Elkins v. U.S., 364 U.S. 206, 80 S.Ct. 1437, 4 L. Ed. 2d

F . 27

General Electric Company v. — Sylvania

Corp., 45 F.Supp. 714 (S. D. N. V., 1942) 35

Gilbert v. California, 388 U.S. 218, 87 S.Ct. 1926,

18 L.Ed. 2d 1149 (1967) 37

Gissendanner v. Wainright, 482 F. 2d 1293 (5th

f — — —

Green v. U.S., 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed. 2d

1 — .. 15

Griffin v. California, 351 U.S. 12, 76 S.Ct. 585 100

e 37

Gynex Corp. v. Dilex Institute of . 85 F.2d

K 35

Harris v. New York, 401 U.S. 722, 91 S.Ct. 643, 28

L.Ed. 2d 1 (1971) —— — 37

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L. Ed.2d

1081 (1961) reh. den. 368 U.S. 871, 82 S.Ct. 23,

7 L. Ed.2d 72 25, 36

McCann v. Charm Power Company, 211 N.Y. 301

(1914) 36

TABLE OF CONTENTS iii

PAGE

McMullen v. Hoffman, 174 U.S. 639, 19 S.Ct. 839,

43 L.Ed. 1117 35

MeNabb v. U.S., 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed.

819 (1942) 24

Memphis Keeley Institute v. Leslie E. Keeley Co.,

155 F. 964 (6th Cir., 1907) = 35

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. *

16 L.Ed.2d 694 (1966) 36

Nardone v. U.S., 308 U.S. 338, 60 S.Ct. 266, 84 L. Ed.

307 (1939) 28

National Distillers & Chemical Corp. v. Sayopp

Corp., 17 N.Y. 2d 12 (1966) ——————— 36

Olmstead v. US., 277 U.S. 438, 48 S.Ct. 564, 72

L.Ed. 944 (1928) ' 26

People v. Martin, 382 III. 192 (1942) 22———— 25

Peterson v. U.S., 411 F. 2d 1074 (8th Cir., 1969) ...... 31

Rea v. U.S., 350 U.S. 214, 100 L. Ed. 233 (1956) 27

Seagirt Realty Corp. v. Chaznoff, 13 N.Y. 2d 282

(1964) * 36

Serfass v. U.S., 420 U.S. 377, 95 S.Ct 1055, 43 L. Ed.

11. ——K——B—————— 13

S. Etheridge v. U.S., 380 F. 2d 804 (Sth Cir., 1967) 28

Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1907, 18 L. Ed.

ee 37

9 v. — 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed. 2d

11.——2— 23

U.S. v. Basurto, 497 F. 2d 781 (9th Cir., 1964) 28

U.S. v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574,

45 L.Ed.2d 607 (1975) 29

iv TABLE OF CONTENTS

PAGE

U.S. v. Calandra, 414 U.S, 338, 94 S.Ct. 613, 38 L. Ed.

2d 561 (1974) 24, 25

U.S. v. Cole, 463 F.2d 163 (2nd Cir., 19727 38

U.S. v. Dinitz, —— U.S. —, 96 S.Ct. 1075, 47

L.Ed.2d 267 (1976) 39

U.S. v. Edmons, 432 F. 2d 577 (2d Cir., 1970) ...... 26

U.S. v. Edwards, 441 F. 2d 749 (5th Cir., 1971) ........ 24

U.S. v. Evans, 454 F.2d 813 (8th Cir., 1972) 0000... 34

U.S. v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.

2d 627 (1966) 37

U.S. v. Falley, 489 F. 2d 33 (2nd Cir., 1973) 32-34

U.S. v. Fay, 553 F. 2d 1247 (10 Cir. 19777 13

US. v. Fayer, 523 F. 2d 661 (2d Cir., 19755 15

U.S. v. Guana-Sanchez, 484 F. 2d 590 (7th Cir.,

1973) 29

U.S. v. Isaacs, 347 F. Supp. 743 (N.D.E.D. I.

1972) 24

US. v. Jacobs, 547 F. 2d 772 (2d Cir., 19765 6

U.S. v. Jaramillo, 510 F. 2d, 808 (8th Cir., 1975)

cert. den. 423 U.S. 1048 15

U.S. v. Jenkins, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.

250 (1975) 14, 15

U.S. v. Karanthanos, 531 F. 2d 26 (2nd Cir., 1976),

Cert. Den. 428 U.S. 910 29

U.S. v. Kopp, 50 L.Ed.2d 336, 97 S.Ct. 400 (1976) 14

U.S. v. Lueido, 517 F. 2d 1 (6th Cir., 1975) oo. 14

U.S. v. Maery, 185 F.Supp. 144 (D. Conn. 1960) 31

TABLE OF CONTENTS v

PAGE

U.S. v. Mangujano, 425 U.S. 564, 96 S.Ct. 1768, 48

L.Ed.2d 212 (1976) 21

U.S. v. Marder, 474 F. 2d 1192 (1973) 28

U.S. v. Martin Linen Suply Co., 97 S. Ct. 1349

(1977) 2, 12, 13

U.S. v. Monroe, 205 F. Supp. 175 (E. D. Louisiana,

1962) 25

U.S. v. Morrison, 50 L. Ed. 2d 1 (1975 14

U.S. v. Paepke, 550 F.2d 385 (7th Cir., 1977) —— 21

U.S. v. Paroutian, 299 F.2d 486 (2nd Cir., 1962) .....33, 34

U.S. v. Raftery, 534 F.2d 854 (9th Cir., 1976) —— 21, 22

U.S. v. Robbins, 510 F. 2d 301 (6th Cir., 1975) —— 15

U.S. v. Rose, 50 L. Ed. 2d 5 (1977 14

U.S. v. Schipani, 414 F.2d 1262 (2nd Cir., 1969) 33, 34

U.S. v. Sorenson, 504 F. 2d 406 (7th Cir., 1974) —— 15

U.S. v. Tane, 329 F. 2d 848 (2d Cir., 1964) ...........29, 33, 34

U.S. v. Turk, 526 F.2d 654 (5th Cir., 1976) 21, 22

U.S. v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.

2d 1178 (1967) 37

U.S. v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.

2d 232 (1975) 15

U.S. v. Winsett, 518 F. Supp. 51 (9th Cir. 1975) .. 24

Walder v. U.S., 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed.

2 GOS (160) ——7X—X—v᷑ 28, 38

Weeks v. United States, 232 U.S. oe Sn

58 L.Ed. 652 (1914) 24

vi TABLE OF CONTENTS

PAGE

Williams v. United States, 382 F. 2d 48 (5th Cir.,

1967) 29

Wong Sun v. U.S., 371 US. 471, 83 S.Ct. 407, 9

L.Ed.2d 441 (1963) 27, 28

United States Constitution Cited

Fourth Amendment 2, 23-26, 28

Fifth Amendment 1 2

Statute Cited

18 U.S. C.:

Sec. 3731 2, 4, 13, 38

Rules Cited

Federal Rules of Criminal Procedure:

R. 12 39

R. 12(D)(1) 12

R. 12(e) 11, 16, 39

R. 29 : 2, 3, 10

Other Authorities Cited

30 CJS Equity:

See. 97, pp. 1031-1032 35

Maguire, “How to Unpoison the Fruit, The Fourth

Amendment and the Exclusionary Rule,” 55 J.

Krim. L.C.&P. S. (1964):

307, 317

20 NY Jur., Equity:

See. i12, p. 132

Ruffin, Out on a Limb of a Poisonous Tree: The

Tainted Witness, § 15 UCLA L.Rev. (1967):

32-33

S. Rep. No. 91-1296, Page 2 (1970)

•—ͤ—vlͤ œ—„—— „„

vii

PAGE

Iw THE

Supreme Court of the United States

Ocroser Team, 1977

No. 76-1151

—

UNITED STATES OF AMERICA,

Petitioner,

RALPH CECCOLINI,

BRIEF OF RESPONDENT

Pursuant to an Order of this Court, the time for filing

the within Brief has been extended to October 25, 1977.

Questions Presented

In the opinion of respondent, the following questions are

presented :

(1) Does the double jeopardy issue clause, and the

decision of this Court in U.S. v. Martin Linen Supply Co.,

97 S.Ct. 1349 (1977), bar the government’s attempted ap-

peal from the judgment of acquittal entered in the Dis-

trict Court pursuant to Rule 297

(2) Whether the holding of the Courts beiow, that the

government failed to meet its burden of establishing atten-

uation of the taint of a concededly illegal search was free

from error and supported by substantial evidence?

(3) Whether the Government is estopped from main-

taining an appeal by virtue of its unclean hands?

Constitutional Provisions Involved

The United States Constitution Amendment 5:

„. .. nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb;

”

The United States Constitution Amendment 4:

“The right of the People to be secure in their per-

sons, houses, papers and effects against unreason-

able searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause,

supported by Oath or Affirmation, and particularly

- describing the place to be searched, and the persons

or things to be seized.”

Statutory Provisions Involved

18 U.S.C. §3731:

“In a criminal case an appeal by the United States

shall lie to a court of appeals from a decision, judg-

ment, or order of a district court dismissing the

indictment or information as to any one or more

counts, except that no appeal shall lie where the

double jeopardy clause of the United States Consti-

tution prohibits further prosecution.”

Federal Criminal Rule Involved

Federal Rule of Criminal Procedure 29:

“Motion for Judgment of Acquittal (a) motion be-

fore submission to jury. Motions for directed verdict

are abolished and motions for judgment of acquittal

shall be used in their place. The court on motion

a defendant or of its own motion shall order the

of judgment of acquittal of one or more of-

charged in the indictment or information

the evidence on either side is closed. If the

sustain a conviction of such

a defendant’s motion for a

of acquittal at the close of the evidence

by the government is not granted, the de-

offer evidence without having reserved

b) Reservation of Decision on Motion.

for judgment of acquittal is made at the

of all evidence, the Court may reserve decision

motion, submit the case to the jury and decide

motion either before the jury returns a verdict

it returns a verdict of guilty or is dis-

charged without having refyyned a verdict. (e)

Motion after Discharge of Jury. If the jury returns

a verdict of guilty or is discharged without having

returned a verdict, a motion for judgment of ac-

at

‘iN

2727

115

a verdict of guilty is returned

the court may, on motion, set aside the verdict and

enter judgment of acquittal. If no verdict is re-

turned, the court may enter judgment of acquittal.

gambling activities. The surveillance was ultimately dis-

continued, in December, 1973 (A63).

On December 18, 1974 North Tarrytown Patrolman

Ronald Biro, entered defendant-respondent’s flower shop

Ms. Hennessey concerning them (A34-37, 51-53, 54-57). In

this way he then and there discovered the existence of

Ms. Hennessey as a person having knowledge that could

be utilized by the Government (A58-59). He thereafter

replaced the envelope and its contents on the cash register,

and left'. The defendant, was not present at any time

during this occurrence and was in no way aware that there

had been a search (A46).

Patrolman Biro notified the North Tarrytown Detective

Division without twenty-four hours of the previously men-

tioned occurrence (A56-57). The Detective Division there-

then proceeded to notify prosecutor Abzug (A73) and ti.en

interviewed Ms. Hennessey specifically about the incident

it subsequently disappeared and there was thus no physical evi-

dence in the possession of the Government to be suppressed. Only

the testimony of Patrolman Biro (upon which Judge Gagliardi never

ruled explicitly) and that of Ms. Hennessey remained as the fruits

of the illegal search.

of December, 1974 ( A67-68, 42-43; ef. 68-69). The Emory-

Hennessey interview occurred in or about April of 1975

(A73). The defendant was subsequently subpoenaed be-

defendant's appearance before the Grand Jury he appeared

without counsel and was somewhat disingenuously advised

that he was not the target of investigation (A73). It is

interesting to note from a point of comparison that the

witnesses in the i i i

:

:

it

itl

44143

71145

Bul

— 8 "2

i

1

Albanese, who appeared with counsel, was spe-

of her privilege against self-incrimination

but received no statement that

not a target of the investigation. Compare this

F. 2d 772 (2d Cir., 1976). The

was, however, indicted immediately thereafter

variance with those of Ms.

é

2 2

44

He

11 841

2

proached ‘

subsequent to defendant’s i other employees of

the flower shop were, in fact, subpoenaed and their testi-

mony was consistent with that of the defendant and in-

consistent with that of Lois Hennessey.“

Jane Vitagliano began working at the flower ebruary

* (A77), which was long after ———

upon by the Grand Jury. She testified over two months after Cecco-

(Footnote continued on following page)

of defendant’s preparation for trial various

motions were made and presented to the Court. The

Court a conference and made its rulings in July of

1975. It took the Government in excess of two months to

finally with

defense. It was at this point in time that the defendant

learned for the first time of the existence of a search

(TRI17-18).

The Government had contributed in no small measure

to the defendant’s surprise. Completely aside from failing

to advise the defendant of a search of his premises when

he was not present, and in the absence of a warrant for

any conceivable probable cause, the Government took it

upon itself to include in its discovery exhibits a certain

envelope marked “12/31/74” which appeared to be, but

was in fact not, the December envelope referred to in the

(Footnote continued from preceding page)

lini’s testimony and after his indictment as did each other flower shop

witness. Her testimony was that Millow came in just to say “hello”

(A77-78). She had never seen any gambling of any kind at the shop

(A78). Cathleen Kosilla, a part-time employee (A78-81) was sum-

83) when Lois Hennessey did not work there (A82-83), was the

wife of a New York City Police Sergeant (A82), had never been

interviewed by the FBI and saw absolutely no gambling (A83).

Lois Hennessey was there only for a matter of minutes after 5:00

during these months (A82-83). Defendant's girlfriend, Rosemary

Albanese, brought to the Grand Jury in October after defendant's

(A48-49) saw absolutely no evidence of gambling at the

shop (A50-51).

i

Grand Jury testimony. Aside from its misleading appear-

ance, it had absolutely no other significance on the outcome

of the case.

Upon discovery of the existence of a search, which de-

fendant did not become aware of until the eve of trial,

an immediate motion was made orally by defendant’s at-

torneys before Judge Gagliardi, who observed that the

defendant could not have moved sooner because he had no

knowledge of the search (TRI7-18). Judge Gagliardi

directed that the hearing on the motion proceed simultane-

ously with the trial. The defendant waived his right to

trial by jury and the trial commenced.

During the course of the trial, all the testimony that

related to the search and its fruits came from Government

witnesses during the direct case. The testimony with re-

spect to this search and its fruits was given by Patrolman

Biro and FBI Agent Emory, Detectives Spota and DeFaleo

and Ms. Hennessey. As the transcript of the opinion of

the Court below demonstrates, Judge Gagliardi determined

during the trial that the search was illegal and suppressed

the result of the search. The relative portion of this

commentary was contained in petitioner’s Appendix D,

Page 34a of the Appendix before this Court on petitioner’s

application for writ of certiorari. On Page 36a of that

same document the Court however stated:

“I don’t think it makes any difference as to when I

passed upon the exclusion of the fruits of the search

because it was clearly inadmissable.”

His Honor also stated that without the fruit of the illegal

search :

“There was insufficient evidence to say beyond a rea-

sonable doubt that Ceccolini was guilty of Count 1

charged in the indictment.” (Petitioner’s Petition

Appendix 32a).

The Court added that the remaining evidence:

“standing by itself it is insufficient to prove Cecco-

lini guilty beyond a reasonable doubt.” Id.

Notwithstanding that the motion to suppress was made

immediately prior to the trial, and then only because the

Government had withheld the existence of the search from

the Court and the defendant, the Court, which heard both

the motion and trial jointly, purported to decide the merits

first and the ruling on the motion to suppress only there-

after in connection with the motion for judgment of acquit-

tal. The combined procedure of the Government and the

Court resulted in depriving the defendant of a pre-trial or

during the trial suppression ruling (beyond the judge’s

post-verdict statement that he excluded the result of the

search and that it made no difference when he passed upon

the exclusion of the fruits of the search which were clearly

not admissible). In the normal course of events (had the

judge suppressed prior to or during trial or prior to

announcing his verdict), since the remaining evidence was

clearly insufficient and so found by the Court, the defend-

ant would have been entitled as a matter of right to an

acquittal. Instead, the Court endeavored, by the order of

its rulings, to create a right of appeal in the Government.

It is respectfully submitted that the procedure utilized was,

in fact, a judgment of acquittal or the functional equivalent

thereof and that any attempted appeal therefrom violates

the double jeopardy clause, or in any event should not be

permitted because of the inequitable conduct of the gov-

ernment.

The illegal search itself was described by both parties

present (A25, 35-36, 51-52, 55-56). It was further added

by Patrolman Biro that he had no prior knowledge of Ms.

Hennessey as a possible witness and that he further

specifically learned this during the illegal search conducted

by him on December 18, 1974 (A58-59). He further testi-

fied that he notified the North Tarrytown detectives within

10

twenty-four hours. The testimony of the detectives indi-

cated that they notified FBI Agent Emory. Agent Emory

corroborated these statements by testifying that the North

Tarrytown Police had notified him. Ms. Hennessey stated

that Agent Emory told her he received his information

regarding her and the December incident from the North

Tarrytown Police and that he specifically asked her about

the December incident (41-42). She described it to him

because she knew he already had or could get that infor-

mation from the North Tarrytown Police (A42-43). On

the other hand, Ms. Hennessey testified that although it

was football season and football tickets were hidden in

wax paper at the store, she did not show these to Patrol-

man Biro (A43-44).

It was clear from all the testimony summarized above

that the search was:

(a) Without probable cause,

(b) Without a warrant,

(e) Without consent,

(d) Not incidental to a lawful arrest, and

(e) Conducted by a law enforcement officer on duty and

in uniform, without justification and unlawfully.

It was equally clear to the Court that Ms. Hennessey

and her knowledge were the instant and immediate fruits

of that search and the interrogation which took place was

a part of that search (A36, 58, 39, 41-43). The district

court specifically found the search illegal and suppressed

both the results of the search (Petitioner’s Petition Ap-

pendix 35A) and the fruits of the search (Petitioner's

Petition Appendix 36A). It then set aside the verdict on

the first count as the remaining evidence which was clearly

insufficient to convict, exonerated bail and pursuant to the

power vested in the Court by F.R.Cr.P. 29 entered judg-

ment of acquittal in favor of defendant.

11

ARGUMENT

POINT I

The Government appeal of the instant case is pre-

cluded by the double jeopardy clause.

When the instant case appeared before the District

Court below, Judge Gagliardi directed that defendant’s

motion to suppress and the trial be determined together

as permitted by Federal Rule 12E where good cause is

shown. During the course of trial, Judge Gagliardi made

a specific finding that the search which transpired on De-

cember 18, 1974 was illegal and thereafter excluded what

were the results of the search holding that the fruits of

the search were clearly not admissible by reason of the

exclusionary rule. It was the further finding of the Court

below that the Government’s attention had not focused on

Lois Hennessey prior to the illegal search (Petitioner’s

Petition Appendix 28A-29A) and that the Government had

not sustained its burden of showing that Ms. Hennessey’s

testimony would have been obtained definitely without the

illegal search (Petitioner’s Petition Appendix 29A). The

Court below concluded that without Hennessey’s testimony

there was insufficient evidence to find defendant guilty on

Count 1 and that the corroborating evidence standing by

itself was insufficient to prove defendant’s guilt beyond a

reasonable doubt (Fetitioner's Petition Appendix 32A).

Although a Court determination of acquittal was both

merited and warranted by the finding below, Judge Gag-

liardi failed to follow this procedure. In a somewhat

unique procedure, the Court purported to consider all the

evidence before it including that evidence which it sup-

pressed despite the fact that such evidence was inadmis-

sible at trial. A determination was thereafter made by

the Court which was based upon consideration given to

all of the evidence, both legal and illegal. This determina-

12

tion stated that defendant Ceccolini was guilty on Count

1 of the indictment. However, Judge Gagliardi took this

determination one step further and proceeded to immedi-

ately set aside his own verdict on the grounds that it could

not stand without the illegal suppressed evidence and

thereafter exonerated bail.

The events which transpired in the proceedings below

ean be best brought into focus by the recent decision of this

Court in United States v. Martin Linen Supply Co., 97

S. Ct. 1349 (1977). The defendant in the proceedings

below was totally unaware that a search of his premises

had occurred in his absence. This unawareness was due

primarily to the Government’s decision not to utilize the

provisions of Federal Criminal Rule 12(D)(1) whieh pro-

vides notice to a defendant that the Government intends

to introduce evidence obtained by search and seizure. Fur-

ther difficulty arose when the Government egregiously

delayed complying with Judge Gagliardi’s pre-trial Order

for several months so that defendant’s counsel could not

have learned of Patrolman Biro or that there had been a

search until the eve of trial. This situation was expressly

recognized by the Court below when it stated that the

defendant was unable to move for suppression any earlier

than he did as a result of the conduct of the Government

(TR17-18). The Government's original position with re-

spect to this fact was clearly set out in their Trial Memo-

randum of Law at Page 11 where they stated:

“Until the trial, the Government was not concerned

about the ‘taint problem’ because it believed Biro’s

search to be lawful.”

Interestingly enough at trial, the Government utterly aban-

doned any argument that the search was consented to, or

lawful, when the testimony of its own witnesses clearly

established otherwise.

It should be apparent to this Court that the acquittal

involved in the instant case was:

—

13

“a legal determination on the basis of facts adduced

at trial relating to the general issue of the case.”

(See Serfass v. U.S., 420 U.S. 377, 393, 95 S.Ct. 1055,

40 L. Ed. 2d 265 (1975))

The decision of Judge Gagliardi was not an order dis-

missing an indictment, but rather an acquittal based upon

the insufficiency of admissible evidence before the Court

(See Opinion of Mr. Justice Stevens, concurring U.S. v.

Martin Linen Supply Co., supra at 1357). It should be

noted that the acquittal was based upon the Judge’s deter-

mination that the residuum of legal evidence introduced at

trial

“was insufficient evidence to say beyond a reasonable

doubt that Ceccolini was guilty . . .”

“standing by itself, it is insufficient to prove Cecco-

lini’s guilt beyond a reasonable doubt.” (Petitioner's

Petition Appendix 32A)

The Tenth Circuit in reviewing a situation closely akin

to Judge Gagliardi’s procedural determination below found

that jeopardy had attached and that 18 U.S.C. §3731 did

not allow the Government the right to appeal. See U.S. v.

Fay, 553 F. 2d 1247 (2nd Cir. 1977).

A review of the legislative history of 18 U.S.C. 83731

clearly demonstrates the fact that it was not the intention

of Congress to authorize the right of the Government to

take an appeal from an acquittal. The legislative report

begins by stating that the purpose of the bill is

“to resolve serious problems which frequently have

arisen with respect to the right of the United States

to appeal the rulings which terminate prosecutions

other than by judgment of acquittal...” [S. Rep.

No. 91-1296, Page 2 (1970)]

14

The report further defines what a true acquittal is in the

eyes of Congress at Page 11. It is there stated

“A true acquittal is based upon the insufficiency of

the evidence to prove an element of the offense.”

The Gagliardi decision with respect to Count 1 truly fits

the definition of acquittal as referred to in the Congres-

sional report. To take an appeal from this decision would

be in direct contradiction to the legislative intent and is

simply and unequivocally not allowed by the statute. The

case which is presently before this Court is not simply a

ease where the post-verdict ruling is to dismiss an indict-

ment after a guilty verdict where no new trial would

necessarily result if the Government prevailed. See e.z.,

US. v. Wilson, 420 U.S. 332 (1975); U.S. v. Morrison, 50

L. Ed. 2d 1 (1976); U.S. v. Rose, 50 L. Ed. 2d 5 (1976);

U.S. v. Copp, 50 L. Ed. 2d 336 (1976). In Morrison and in

Rose there was neither an acquittal nor an order of dis-

missal. There was merely an order of suppression, which

provided that appropriate action would be taken if the

order was affirmed on appeal or not appealed from by the

Government. In Copp the Court entered a dismissal (not

an acquittal) based upon an error of law relating to the

matter determined at a pre-trial motion and not during

the trial of the general issue. In Wilson the District Court

dismissed the indictment, again reversing a ruling on a

motion made prior to the trial and not upon the matter in

issue and litigated during the trial of the general issue as

was the case here. Compare U.S. v. Lucido, 517 F. 2d 1

(6th Cir., 1975) in which case the Sixth Circuit ruling on

an analogous fact pattern to the case before this Court

held that the double jeopardy clause precluded review.

In recent years, some leading cases have emerged from

the Supreme Court with respect to this area. The two

perhaps leading cases are those of U.S. v. Jenkins, 420

15

U.S. 358 (1975) and U.S. v. Wilson, 420 U.S. 332 (1975).

It is defendant’s position that although the factual pattern

of the instant case may superficially appear similar to

that in Wilson due to the unique fact pattern of this case

it falls more appropriately within the Jenkims rule as

opposed to the rule set out in Wilson. Were this Court

to entertain jurisdiction in this case, in the event of a

reversal, before the verdict of guilty could be reinstated,

new, different and additional findings of fact would be

required with regard to the illegality of the search, the

attenuation of the taint, and admissibility of the tainted

testimony. The case would then come within the rule of

U.S. v. Fayer, 523 F. 2d 661 (2d Cir., 1975). See also

U.S. v. Jaramillo, 510 F. 2d, 808 (8th Cir., 1975); U.S. v.

Robbins, 510 F. 2d 301, (6th Cir., 1975); U.S. v. Sorenson,

504 F. 2d, 406 (7th Cir., 1974). The Government, in the

instant case, is not seeking an appeal solely on a question

of law, but rather from the resolution of fact issues at

trial which resulted in the defendant’s discharge. How-

ever denominated, the defendant was in reality acquitted

by the trial court’s resolution of disputed fact issues in

his favor. The double jeopardy clause makes the ruling

final. To subject the defendant to any further proceedings

at this time would violate the double jeopardy clause:

“The underlying idea, one that is deeply ingrained

in at least the Anglo-American system of jurispru-

dence, is that the State with all its resources and

power should not be allowed to make repeated

attempts to convict an individual for an alleged

offense, thereby subjecting him to embarrassment,

expense and ordeal of compelling him to live a con-

tinuing state of anxiety and insecurity...” (Green

v. U.S., 355 U.S. 184, 187, 78 S.Ct. 221, 2 L. Ed. 2d

199 [1957])

As a result of the Government’s failure to disclose the

existence of the search and the District Court’s insistence

16

that contrary to the preferable method of proceeding in

the Second Circuit there will be a joint hearing of the

motion of suppression and the merits, no pre-trial hearing

took place on the issue of suppression. Moreover, there

was no good cause shown for deferring the ruling on the

motion to suppress until after the verdict (which is re-

quired by Rule 12[e]) as distinguished from cause for

hearing the general issue and the motion together. The

basic understanding of the defense counsel on the court

directed a joint hearing on the motion and trial was that

the ruling on the suppression motion would precede the

verdict on each count, and the findings on each count

would be based on that evidence which survived the mo-

tion to suppress (Petitioner’s Petition Appendix 33A).

At no point below was defense counsel’s original under-

standing ever disputed by the Court or the Government.

It should be quite apparent that this understanding played

a significant factor in defense counsel’s reaction to the

Court’s decision to hold a joint hearing and defendant’s

decision to waive trial by jury. It cannot be disputed that

the Government’s action deprived the defendant of an

opportunity to raise the question of suppression at any

point prior to trial. Indeed, the findings of fact which the

District Court made to support its judgment of acquittal

were precisely those which result from a trial of the gen-

eral issue that “There was sufficient evidence to say be-

yond a reasonable doubt that Ceccolini was guilty” and

that the admissible evidence “Is sufficient to prove Cecco-

lini’s guilt beyond a reasonable doubt”. (Petitioner’s Peti-

tion Appendix 32A). Upon the unique set of facts demon-

strated by this case, the District Court’s ruling however

denominated, was a judgment of acquittal based upon

factual issues elicited at the trial of the general issue and

the Government’s attempted appeal therefrom is clearly

offensive to the provisions of the double jeopardy clause.

17

POINT 11

The exclusion of the fruits of the concededly illegal

search was proper.

The various factors involved with the aspect of the

fruits of the illegal search have been painstakingly exam-

ined in meticulous detail by both the District Court below

and the Cireuit Court of Appeals. The Trial Court's

findings that the December search was illegal, that witness

Hennessey was discovered directly as a result of and in

the course of that search and that the information was

immediately conveyed to the local police and later to the

FBI can hardly be disputed. The search was conducted

by a police officer, in uniform, who was no stranger to

the gambling investigation which related to the flower

shop in that he had previously participated in the investi-

gation. Without so much as one request for permission

the police officer deliberately placed himself, without con-

t, in an area of the flower shop that was designated

or employees , and in which area he had no right to

be in without permission of either an employee or the

management of the flower shop. In a deliberate action

the police officer seized and opened an envelope lying on

the cash register which could in no way be construed as

suspicious by reason of the fact that money appeared to

be in the envelope, or protruding therefrom, since the cash

register is not at all an unusual place to place money,

either in or on.

After having seized and searched the envelope and its

contents without warrant, probable cause, or consent, the

Patrolman then immediately interrogated Lois Hennessey,

who was working in the store at that very moment. At

no time during this entire occurrence was defendant Cecco-

lini ever present. We can see by the actions of the police

officer that immediately after the search, he exploited the

illegality without the lapse of even a moment. The testi-

. 18

mony below indicates after the police officer had gotten

what he wanted from Miss Hennessey, he replaced the con-

tents into the envelope, placed it back on the cash register.

Within 24 hours after his interview with Hennessey, the

information which was obtained by the Patrolman as a

result of his illegal search was conveyed to the Detective

of his Department. The Detective Division notified FBI

Agent Emory, and Agent Emory in turn relayed the in-

formation to the prosecutor.

The Government would have us believe that FBI Agent

Emory was unaware of the illegality which tainted the

origin of the information which he received. It is some-

what disingenious to suggest that the Government had no

knowledge of the illegality of the search, since the “Silver

Platter” doctrine renders knowledge of the local police who

reported the information to the FBI, chargeable to the

FBI. It is somewhat incredulous to say that the Govern-

ment had no knowledge of the illegality since Lois Hen-

nessey’s description of the Search (A25, 26) made clear

the illegal manner in which it occurred. Patrolman Biro

was equally candid about this fact (A51-52, 55-56) the

Government attempts to argue that the Hennessey testi-

mony was somehow free of the taint of the manner in

which she was discovered. However, it is clear that she

was discovered solely and directly as the result of the

search (A58-59). It is also clear that that fact, and that

fact alone, relayed from the police to the FBI and the

prosecutor, led the FBI to their interview with Miss

Hennessey (A58-59, 67-68, 75-76). It should be apparent

that she answered Patrolman Biro originally after he

confronted and interrogated her with the illegally received

evidence in his hands at a time and place where he was

in uniform, and she felt constrained by the circumstances

to answer his questions, but not to volunteer information

(A43-44). Miss Hennessey further testified that she an-

swered Agent Emory’s questions because she knew that he

had or could get the information which he inquired about

as “both straight and uninterrupted”. Judge Gagliardi, in

the District Court below, specifically found that Lois Hen-

nessey’s knowledge first came to the attention of the Gov-

ernment as a result of the illegal search (Petitioner’s Peti-

tion Appendix 28A, 29A). The FBI ogent testified that

Hennessey came to his attention because of the illegal

search (Petitioner’s Petition Appendix 30A). It was the

further finding of the Court below that prior to the search

the Government’s attention had never focused on Miss

Hennessey. Moreover, at the time she was interviewed,

Hennessey no longer was an employee of the store, and

therefore had no current information to provide. It is ap-

parent that the findings of the District Court, affirmed on

appeal, that the Government had failed to attenuate the

taint of the illegal search, was not clearly erroneous. In-

deed, the Government conceded as much on oral argument

in the Second Circuit.

What the Government seeks to do here is to totally

destroy the last vestige of the exclusionary rule by al-

lowing illegally obtained evidence to come in as part

of the prosecutor’s direct case. Indeed, it comes in as

the prosecution’s entire case, because without it the

evidence against this defendant is concededly insufficient.

It should further be noted that it is false and mislead-

ing to suggest that an ongoing Federal gambling in-

vestigation involving contacts with various flower shop

employees, was occurring at any time prior to defend-

ant’s Grand Jury testimony. As the testimony of Agent

Emory indicated, his surveillance in the area had termi-

nated at least one year before the occurrence of the

illegal search. In six months the FBI had made no con-

tact with any employees of any enterprise for fear of

tipping off those under observation (A73-74). In Decem-

ber of 1974, and in February of 1975, no employees of

any enterprise had been contacted. In February of 1975,

Miss Hennessey terminated her employment at the flower

shop (TR60) and was not in an employee status when

contacted by the FBI (A37-38). No other employees or

ex-employees were ever contacted by the FBI until after

the defendant had been indicted. Even then, no other

employee of any other business enterprise in the area was

ever contacted. The FBI policy at this time was to avoid

contacting people such as Miss Hennessey for fear of

compromising their investigation. It should be apparent

that when Agent Emory attempted to suggest that at

some date in the future he might ultimately have made

contact with an employee, he was clearly talking about

an employee still within the store to inform the FBI of

current developments, rather than an employee who was

no longer employed in the store, and was totally unaware

of the recent developments which had taken place (A73-

74).

Miss Hennessey clearly did not fit the pattern em-

ployed by the FBI in their investigation. In fact, none

of the people who fit this pattern were contacted by the

authorities until after the defendant had been indicted.

Even after they were contacted, they supplied the Govern-

ment with absolutely no helpful information. In fact, the

evidence they supplied contradicted that which was given

by Miss Hennessey. From this factual pattern Judge

Gagliardi found that the conclusion that Miss Hennessey’s

testimony was a direct result of the illegal search was

compelled by the record.

The Government’s position that the exclusionary rule

should not be applied to suppress evidence in prosecutions

for crimes committed after an illegal search is incorrect,

despite the fact that its draftsmanship was both artful

and skillful. The defendant in the instant case never knew

21

of the illegal search until the eve of trial. It is incon-

ceivable to infer that he would have had the intent to

exploit its occurrence when he was not aware of it. He

had no independent intent to commit any crime. The

defendant appeared before a Federal Grand Jury by rea-

son of a subpoena which was issued from a Federal

prosecutor who knew full well of the prior search. If

anyone is guilty of exploitation it should be clear that it

was the prosecutor who exploited the illegal search, not

only in the secrecy of the Grand Jury, but under the most

egregious circumstances. The prosecutor substantially dis-

armed defendant by advising him that he was not a target

of the investigation, and this was the only advice which

the defendant received from the prosecutor. By contrast,

other witnesses in this same investigation were warned

specifically of their right to counsel, and of the privilege

against self-incrimination, and were not given any dis-

arming advice that they were not targets of the investiga-

tion, even when, in fact, they were such targets. This

sequence of events, which resulted in the defendant’s im-

mediate indictment does not eliminate the suggestion of

sophisticated, calculated abuse of the Grand Jury. See

U.S. v. Mangujano, 425 US 564, 96 S.Ct. 1768, 48 L.Ed.2d

212 (1976), Brennan, J. and Stewart J. concurring.

It is particularly noteworthy that in two cases cited for

the prosecution, that such evidence should be admitted, in

the Fifth and Ninth Cireuit Courts of Appeal took pains

to point out that the situation might be very different if

the defendant did not know prior to the Grand Jury of

the illegal search. U.S. v. Turk, 526 F.2d 654, 667, n.39

(5th Cir. 1976); U.S. v. Raftery, 534 F.2d 854, 857, n.7

(9th Cir. 1976). As the Fifth Circuit observed, there

would be a deterrent value in prohibiting the surprise use

of illegally seized evidence to obtain a perjury conviction.

This distinction is also alluded to in U.S. v. Paepke, 550

F.2d 385 (7th Cir. 1977). The Government's conduct rose

to the level of entrapment offensive to the fundamental

concepts of fair play embodied in due process clause. The

defendant had no pre-disposition to go to the Grand Jury.

He appeared before the Grand Jury under compulsion of

Federal subpoena and uncounselled. It was not his choice

as to the subject matter of his interrogation or its time

or place. He was given no warning of his right to counsel,

although that warning is normally given by United States

Attorneys in the Second Circuit. Nor was the defendant

given any warning regarding his privilege against self-

incrimination, although that warning is usually given by

United States Attorneys in the Second Circuit. Still un-

aware of the illegal search, he was advised and, indeed,

substantially disarmed by the prosecutor, who told him

that he was not a target of the investigation. This was

the only advice he received from the prosecutor. This

was the basis upon which the prosecutor chose not to

fairly apprise him of his situation, but rather, to steer

the defendant toward the shoals of a perjury indictment

as he sat blindfolded, disarmed, uncounselled and un-

warned in the Grand Jury.

The fact pattern before this Court is a far cry from

those underlying the Turk and Raftery decisions. In each

of those cases the defendants sought to take advantage of

his knowledge that the search was illegal. A fair balance

struck between the competing interests cannot allow the

Government to play its cards as close to the vest as it

did here and then allow the Government to turn around

and request of this Court the right to violate the defend-

ant’s rights just one more time. This is doubly so with

the evidence as introduced as part of the Government’s

direct case, and is the only evidence upon which a convic-

tion may be based. The procedure employed by the Gov-

ernment in this case dates back to the inquisitorial days

of Spain. No case has gone so far as to sanction such a

result and it is insisted that none should.

23

“Courts which sit under the Constitution cannot and

will not be a party to lawless invasion of the con-

stitutional rights of citizens by permitting unhin-

dered Governmental use of the fruits of such inva-

sions.” [Terry v. Ohio, 392 U.S. 1, 12-13, 88 S.Ct.

1868, 20 L.Ed.2d 889 (1968) }.

The deterrent value of the exclusionary rule is most

likely to be effective at cases where official conduct is

flagrantly abusive of the Fourth Amendment rights. The

corresponding mandate to preserve judicial integrity most

clearly demands that the fruits of official misconduct be

denied in this case. See Brown v. Illinois, 422 U.S. 590,

95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

There is no evidence present in the instant case which

could insinuate that Patrolman Biro had any reason to

believe that his search was legal. His testimony clearly

excludes that possibility. To allow into the Government’s

direct case the results of so flagrant and deliberate an

intrusion is to discard the Fourth Amendment totally.

By reason of the fact that Biro returned the physical

evidence to its original location after interrogating Ms.

Hennessey and its subsequent disappearance, there was

no physical evidence to suppress. Unless the testimony

of Biro and Hennessey were suppressed, the Government

would suffer naught for the flagrant violation of the de-

fendant’s rights.

The Government’s next attempt to escape the logic that

Ms. Hennesey’s testimony was excluded by reason of the

exclusionary rule. The Government argues that the purpose

of the exclusionary rule is not served by forbidding the

use of the legally obtained evidence to prove the entirely

separate offense of the defendant’s perjury before the

Grand Jury. It is the Government’s position that the

purpose of the exclusionary rule is satisfied since the

Government is precluded from using this testimony in a

prosecution of the defendant for gambling offenses, and

thus the deterrent intent of the rule is preserved. Such

an argument, however, conveniently avoids the more funda-

mental guarantees of the Fourth Amendment which are

secured and protected by the exclusionary rule and spe-

cifically set out in the Fourth Amendment:

“The purpose of the exclusionary rule is not only

to discourage overreaching by the police, but also,

and primarily to protect the rights and privacy of

the citizen.” (U.S.C.A. Const. Amend. 4)

The rationale set forth in the Fourth Amendment has

been followed by this Court on several instances. In the

case of McNabb v. U.S., 318 U.S. 332, 339 (1942) the

Court stated

“A conviction in Federal courts, the foundation of

which is evidence obtained in this regard and vio-

lation of liberties deemed fundamental by the Con-

stitution cannot stand.”

Also see Weeks v. United States, 232 U.S. 383, 34 S. Ct.

341, 586 L.Ed. 652 (1914); U.S. v. Isaacs, 347 F. Supp.

743 (N.D.E.D. III. 1972); U.S. v. Winsett, 518 F. Supp.

51, (9th Cir. 1975); and U.S. v. Edwards, 441 F. 2d 749

(5th Cir., 1971).

In addressing the Court to the issue of whether or not

the exclusionary rule should apply to subsequent trials of

perjury, it is submitted that any attempt to distinguish

between perjury trials and trials of substantive crimes be

eliminated. Support for this rule has been advocated in

the opinion of Mr. Justice Brennan in his dissenting opin-

ion in U.S. v. Calandra, 414 U.S. 338, 355, 94 S.Ct. 613,

38 L.Ed.2d 561 (1974). The crucial portion of the dis-

senting opinion stated

“The protection provided for under the Fourth

Amendment is equally extended to the actions of

25

the Government and officers of the law acting under

it. To sanction such proceedings would be to affirm

by judicial decision a manifest neglect, if not an

open defiance of the prohibitions of the Constitution,

instead for the protection of the people against such

unauthorized action.” Id, 355-356.

Thus, we submit that the Government’s position describing

the exclusionary rule as merely a judicially creative rem-

edy designed to safeguard Fourth Amendinent rights gen-

erally through its deterrent effect is in error. The more

appropriate description of the exclusionary rule is that it is

“part and parcel of the Fourth Amendment’s limita-

tion upon governmental incroachment of individual

privacy and gives to the individual no more than

that which the Constitution guarantees him, to the

police officer no less than that which honest law

enforcement is entitled and to the courts, that judi-

cial integrity so necessary in the true administration

of justice.” Mapp v. Ohio, 367 U.S. 343, 81 S.Ct.

1684, 6 L.Ed.2d 1081 (1961)

To distinguish the application of the Fourth Amendment

as applicable to one type of procedure and not another,

as the Government advances, is to “keep the words of

promise to our ear and break it in our hope”. People v.

Martin, 382 III. 192, 196 (1942).

“The Constitutional guarantee against unreasonable

search and seizure protects all: both the innocent

and the guilty.” U.S. v. Monroe, 205 F. Supp. 175

(E.D. Louisiana, 1962).

Therefore, to permit the illegal action of Patrolman Biro

in the instant case to redound to the Government’s advan-

tage impairs the Constitutional safeguard under considera-

tion, and demands suppression. It is pertinent to recall

the historic admonition of Mr. Justice Brandeis, dissenting

in Olmstead v. U.S., 277 U.S. 438, 485, 48 S.Ct. 564, 72

L.Ed. 944 (1928):

“If the Government becomes a lawbreaker, it breeds

contempt for law, and it invites every man to be-

come a law unto himself. It invites anarchy. To

declare that in the administration of crimina! law,

the ends justify the means—to declare that the Gov-

ernment may commit crimes in order to secure a

conviction of a private criminal, would bring terrible

retribution.”

See also U.S. v. Edmons, 432 F. 2d 577 (2d Cir., 1970).

Thus, it is apparent that the downgrading of the exelu-

sionary rule to a determination of whether its application

in a particular type of proceeding further deterrents of

future police misconduct therefore reflects a startling mis-

conception of both historical objective and the basie pur-

pose of the rule.

POINT III

The trial court below properly suppressed the testi-

mony of Lois Hennessey.

In an attempt to escape the logie of the effect of the

exclusionary rule with respect to Ms. Hennessey’s testi-

mony, the Government takes the contention that the wit-

ness’ testimony should not be excluded due to the fact

that she is a “live witness”. It is submitted that such a

distinction is illogical and defeats the fundamental princi-

ples of the Fourth Amendment and the exclusionary rule.

Interestingly enough, while the Government argues the

theory of live witness with respect to Ms. Hennessey, they

do not suggest that the testimony of Patrolman Biro

should thereby be admissible although he is equally alive.

27

The reason they avoid this issue is due to the fact that

suggestion of this type could only serve to make a sham-

bles of any pr tense of deterrence in that it would allow

the illegal

and

the physical evidence to be suppressed but

searcher to describe it with exactly the same force

effect. Thus, it is submitted why should the rule be differ-

ent if a second police officer is present to allow him to

testify because he is a live witness? Further, should the

rule be different as to Ms. Hennessey who is a live witness

to whom Biro revealed his ongoing illegal search, and

thereby exploited it directly?

As the case law in this area reveals, the exclusionary

rule has instructed us to decide these matters on a case by

case basis taking into account a myriad number of factors.

This procedure was employed by this Court over a decade

ago in the case of Wong Sun v. U.S., 371 US 471, 83 S.Ct.

407, 9 L.Ed.2d 441 (1963) where it was stated at Page

485 of that decision:

“Verbal evidence which derive so immediately from

an unlawful entry and an unauthorized arrest

is no less the ‘fruit’ of official illegality than the

more common tangible fruits of the unwarranted

intrusion.”

It was further stated at Page 486 of that decision:

“Nor do the policies underlying the exclusionary rule

invite any logical distinction between physical and

verbal evidence. Either in terms of deterring law-

less conduct by federal officers, or Rea v. U.S., 350

US. 214, 76 S. Ct. 292, 100 L. Ed. 233 (1956), or of

closing the doors of the federal courts to any use of

evidence unconstitutionally obtained, Elkins v. U.S.,

364 U.S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960),

the danger in relaxing the exclusionary rules in the

case of verbal evidence would seem too great to

warrant introducing such a distinction.”

To allow the Government’s differentiation would remove

all restraint upon the unlawful police conduct by enabling

them to use the derivative fruits of their legal search as

long as they could find a “living witness” discovered in-

directly by the search. It should also be apparent that this

situation would also provide for the indiscriminate viola-

tion of an individuals’ right to privacy. If logic is to

prevail, the same rule of exclusion should follow from an

illegal search whether the evidence be animate or inani-

mate, tangible or intangible, living or dead. Any conclu-

sion to the contrary would be totally inconsistent with the

basic Fourth Amendment liberties.

The Fifth Cireuit dealt with the aspect of live testi-

mony in the case of U.S. v. Marder, 474 F. 2d 1192 (1973).

The Court stated on Page 1196:

“Any other conclusion would be totally inconsistent

with the fundamental purpose of the exclusionary

rule; to instill respect in Government officers for a

citizen’s Fourth Amendment rights.”

Numerous other federal cases have dealt with this same

aspect. In the case of Walder v. U.S., 347 U.S. 62, 64, 74

S.Ct. 354, 98 L. Ed. 2d 503 (1954), the Court stated:

“Tt is settled law that the (iovernment may not use

the fruits of the unlawful conduct of its agent, that

is, either physical or intangible evidence secured

thereby, nor can it use evidence obtained through

leads from the unlawfully obtained evidence. The

evidence directly obtained and that obtained through

such leads is tainted by the unlawful conduct.” See

also Wong Sun v. U.S., supra at 484, 486, (1962) ;

Nardone v. U.S., 308 U.S. 338, 341, 343, 60 S.Ct.

266, 84 L. Ed. 307 (1939); S. Etheridge v. U.S., 380

F. 2d 804, 808, (5th Cir., 1967); U.S. v. Basurto,

497 F. 2d 781, 783 (9th Cir., 1964); Gissendanner v.

Wainright, 482 F. 2d 1293, 1295 (5th Cir., 1973).

In U.S. v. Brignoni-Ponce, 422 U.S. 873, 876, 95 S.Ct. 2574,

45 L. Ed. 2d 607 N.2 (1975) the Supreme Court expressly

did not address itself to the suppression of voluntary tes-

timony. The case there cited, U.S. v. Guana-Sanchez, 484

. 2d 590 (7th Cir., 1973) expressly held that such testi-

y should, in fact, be suppressed. This is the rule in

this Circuit. See U.S. v. Tame, 329 F. 2d 848 (2d Cir.,

1964). The Fifth Circuit in the case of Williams v. United

States, 382 F. 2d 48 (5th Cir., 1967) cited with approval

this Circuit’s decision in the Tane case.

12

In support of its position, the Government cites several

cases involving express consent, abandoned property, a

warrant with sufficient untainted probable cause and other

cases which are totally inappropriate. In the instant case

as in U.S. v. Karanthanos, 531 F. 2d 26 (2d Cir., 1976),

Cert. Den. 428 US 910, the official misconduct was both

flagrant and deliberate, and the closeness between the

original illegality and the witness’ testimony is as clear

in this case as it is possible to be wpon an issue where the

information rests entirely within the province of the Gov-

ernment agents and Government witnesses.

In the instant case the patrolman knew he had no right

to search, and therefore replaced the material seized so

as to cover up the tracks he had no right to leave in the

first place. He did, however, utilize the results of his

search to interrogate and discover Government witness

Hennessey, and thereby compounded his intrusion by ex-

ploiting his already illegal search. He looked into the

envelope because of suspicion as to what it might contain

despite the fact that there was nothing peculiar about the

envelope. The actions of the patrolman were purposeful,

deliberate and flagrant official misconduct. Certainly, he

did not hesitate to exploit the results of his illegal search.

It is submitted by the defendant that the instant case

presents the same exploitation of illegal testimony by the

30

Government. The Government would urge that the taint

is purged by attenuation. The individual decision to speak

should not alter the fact that his discovery has been ob-

tained by the use of illegally obtained evidence, as in the

case at Bar:

“Once we focus on the relevant criteria, we will have

gone a long way toward making analysis both tract-

able and serviceable to the deterrent ends of exclu-

sionary rules by carefully defining what the inquiry

should at most consist of; not useless inquiries as

to the will or responsibility of the witness whose

utterances are in question, but in inquiry directed

solely at the responsibility of the prosecution and

its agents for turning up that evidence—an inquiry

that asks if the prosecution exploited the improper

conduct of which it was guilty.” (Ruffin, Out on a

Limb of a Poisonous Tree: The Tainted Witness,

15 UCLA L.Rev. 32, 33 [1967])

A fair and careful review of the record below estab-

lishes that the District Judge was well within the realm of

the trier of facts in concluding as he did that the search

was illegal, that Miss Hennessey’s testimony was the

fruits of illegality, and that it was required to be sup-

pressed. It is submitted that an application of facts in

the case at Bar to the aforementioned holdings dictate the

suppression of Hennessey’s testimony as fruit of the poi-

sonous tree. Any argument on the part of the Govern-

ment with respect to an exception to the exclusionary rule

on the basis of the fact that the evidence is that of a “live

witness” should not be allowed. One of the ultimate ques-

tions to he asked by the Court is how the rights of the

defendant have been affected by the actions of the Govern-

ment.

„If the rights of a citizen under the Constitutional

safeguard against unreasonable searches and sei-

31

zures are violated, any evidence so obtained for the

use against the citizen in a criminal prosecution

must be suppressed.” U.S. v. Macry, 185 F.Supp.

144, 146 (D. Conn. 1960)

The distinction proposed by the Government with respect

to tangible and intangible evidence has continually been

rejected by the courts. In addition to authority already

cited it should be noted that the Eighth Circuit has held:

“Evidence tangible or intangible, directly or indi-

rectly gained as a result of an illegal search is

tainted fruit of the poisonous tree and is inadmis-

sible.” Peterson v. U.S., 411 F. 2d 1074, 1078 (8th

Cir. 1969)

No distinction remains, if ever one existed, between tan-

gible evidence and “live witnesses” when determining what

is, or is not, the fruit of the poisonous tree. Any other

result is inconsistent with the deterrent rationale of the

fruit of the poisonous tree doctrine.

POINT IV

The Government totally failed to establish that Lois

Hennessey’s testimony would have been discovered

absent the illegal search.

The inevitable discovery exception has been found to

well the theory of the exclusionary rule by denying

the Government the use of evidence arrived at by exploi-

tation of illegality and at the same time minimizing the

opportunity for the defendant to receive an undeserved

socially undesirable bonanza. To establish the excep-

and

tion, the prosecution must

inquiries. The evidence produced was far from the normal

output of the investigation as it had been conducted up to,

and after, the December incident. Indeed, it can be fairly

said that the December search totally and radically altered

the procedure used in this investigation, with regard to the

defendant herein, so that it differed radically from every

single other surveillance of business premises conducted

on the same street during the same investigation by the

same FBI agent.

As this Court is well aware, the test in the Second

Cireuit and elsewhere has never been whether it is in-

conceivable that the Government might through some un-

specified fortuitous circumstance have stumbled across Miss

Hennessey at some time in the future. Rather, the test

employed requires that where it is clearly established

through the Government’s own witnesses that the illegal

search was the actual source of the Government’s in-

formation, and that prior to this illegal search the Gov-

ernment’s attention had not focused on her in that ca-

pacity, the Government must bear the burden of estab-

lishing that Miss Hennessey’s testimony would have been

both discovered and procured in the normal course of

its investigation. See U.S. v. Falley, 489 F.2d 33 (2nd

Cir. 1973); U.S. v. Paroutian, 299 F.2d 486 (2nd Cir.

1962); U.S. v. Schipani, 414 F.2d 1262 (2nd Cir. 1969);

and U.S. v. Tane, 329 F.2d 848 (2nd Cir. 1964). The

record below is convincing with respect to the fact that

there is no way of which the Government could have

obtained the identity of Miss Hennessey if it were not

for the illegal search of Patrolman Biro. The entire path

and subsequent history of the investigation indicates that

no attempts were ever made to interview employees for

fear of tipping off those being surveilled. This was true

in 1973 as in 1974. The Government never departed from

this procedure during the entire investigation, with the

exception of Miss Hennessey.

Lois Hennessey was interviewed for the first time a

month after she had ceased to be a part-time employee.

No other employee of the shop was then interviewed, or

had any information of value to supply to the FBI. The

only ex-employee, Mrs. Pesce, was ever interviewed by, or

apparently known to the FBI. It simply never crossed

Agent Emory’s mind to go looking for any past employee

until, as a direct result of the illegal search, he sought

out Miss Hennessey to obtain the details of the incident

surrounding the illegal search.

The only evidence offered by the Government to avoid

the obvious failure to question employees in both the 1973

and 1974 invstigations was the subpoening of other flower

shop employees * defendant’s indictment, and the

vague intentions t Emory regarding in

the future. itp iis dar cies cf te chnetan atest

by the case cited in the Petitioner’s Brief. In U. S. v. Cole,

463 F. 2d 163, 172 (2nd Cir. 1972) a saturation investiga-

tion of the particular defendant based on independent in-

formation of Vast Sums or Casu Conceacep from the Gov-

ernment was involved. In addition, that case involved a

sustainmg of findings of fact in favor of the Government.

Here the Court found against the Government and the

record supports, if not compels, that result. In U. S. v.

Evans, 454 F.2d 813, 818-19 (8th Cir. 1972) the Court ap-

proved exclusion where there was no independent source

and

“The illegality directly led to the identity of the

otherwise unknown witness without intervening fac-

tors of the attenuating character.” Id. at 818.

The Court further stated:

“Those cases which do not exclude the live testi-

mony generally involve situations where the illegal-

ity did not directly result in the learning of the name

of the informant used as a witness at the trial, or

where there were substantial attenuating circum-

stances or an independent source.”

It should be obvious to this Court that the exact oppo-

site factual pattern was disclosed by the record below in

the instant case. Thus the cases cited are not supportive

of the Government’s position because factually they are all

significantly different and distinguishable. It is insisted

that there is a total failure on the part of the Government

to meet the burden of establishing either that Lois Hen-

nessey’s testimony was not sufficient to trigger the type of

investigation which led to her, or that she would have been*

the normal output of the investigation conducted prior to

the illegal search. U. S. v. Falley, 489 F.2d 483 (2nd Cir.

1973); U. S. v. Paroutian, 299 F. 2d 486 (2nd Cir. 1962);

U. S. v. Schipani, 414 F.2d 1262 (2nd Cir. 1969); and

L. S. v. Tane, 329 F.2d 848 (2nd Cir. 1964).

A fair and careful review of this record establishes the

District Judge was well within the realm of the trier of

facts in concluding as he did that the Government failed

to meet its burden on the issue of attenuation. His deci-

sion in this regard should in all respects be affirmed.

35

POINT V

The inequitable conduct of the Government estops

—— —ͤ— a claim of attenuation

It need hardly be argued that the foundation of law is

equity. The maxims “He who seeks equity must do equity.”

and “He who seeks equity must come into court with clean

hands.” have governed the granting or denial of relief in

our civil courts. Just as our courts will not permit a

wrongdoer to profit from his wrongdoing nor will our

courts grant relief to a party who is guilty of inequitable

conduct, the courtroom door has also been barred to il-

legally obtained evidence and sanctions applied to tres-

passing prosecutors.

These principles of law are not limited to cases where

the inequitable conduct is such as to enable the moving

party to personally complain. Indeed, there is no require-

ment to plead the claim of inequitable conduct per se at all.

The Court should apply this doctrine not to favor a de-

fendant, but to protect the interests of the public. Indeed,

the Court should act sponte sua to apply these principles

at any stage of any proceedings where the inequitable con-

duet is brought to the Courft’s attention. 30 CJS Equity,

§97, pp. 1031-1032; 20 NY Jur. Equity, $112, p. 132; Me-

Mullen v. Hoffman, 174 US 639, 19 S.Ct. 839, 43 L.Ed.

1117 (1899); General Electric Company v. Hygrade Syl-

vania Corp., 4 F.Supp. 714 (SDNY 1942); Bell & Howell

Co. v. Bliss, 262 F. 131 (7th Cir. 1919); Memphis Keeley

Institute v. Leslie E. Keeley Co., 155 F. 964 (6th Cir.

1907); Gynex Corp. v. Dilex Institute of Hygiene, 8 F.2d

103 (2nd Cir. 1936).

Our courts in dispensing criminal law should be no less

required to fashion a just remedy, not only to prevent

injury to the presumedly innocent defendant who stands

36

before it, but to prevent the encouragement of wrong-

doing by the prosecution as a policy instrument of a free

Government. Our courts should never be required to

render an inequitable decree. Our courts should never

be justified in doing anything other than equity. McCann

v. Charm Power Company, 211 NY 301 (1914). In sum,

wherever the wrong is directly related to, or committed

in regard to the subject matter in litigation, equitable re-

lief has been denied, and properly so, to a civil litigant

in cases ranging from a description of a wrong as unjust

[Seagirt Realty Corp. v. Chaznoff, 13 NY 2d 282 (1964)];

reprehensible unconscientious or inequitable to immoral

or unconscionable [National Distillers & Chemical Corp.

v. Sayopp Corp., 17 NY 2d 12 (1966)].

A review of the procedural due process rights and the

substantive due process rights afforded to the accused de-

fendant in a criminal case reveals that each and every

one of them are based upon the equitable principles enun-

ciated above:

1. The right to counsel at all stages of the criminal

prosecution commencing with the accusatorial process,

where a defendant is in custody of the police. No court

will permit evidence obtained from such a defendant to

be introduced against him in à criminal proceeding where

he has not been advised of his right to counsel, right to

remain silent, and further advised that anything he says

could be held against him, and that if he cannot afford

counsel it will be provided by the court. Miranda v.

Arizona, 384 US 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

2. The exclusion of evidence obtained as a result of

an illegal search and seizure. Mapp v. Ohio, 367 US 643,

81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) reh. den. 368 US 871,

82 S.Ct. 23, 7 L.Ed.2d 72.

37

3. The exclusion of tainted identification through im-

proper lineups or showups. U.S. v. Wade, 388 US 218,

87 S.Ct. 1926, 18 L.Ed. 2d 1178 (1967); Gilbert v. Cali-

fornia, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149

(1967). Stovall v. Denno, 388 US 293, 87 S.Ct. 1907, 18

L. Ed. 2d 1199.

4. The requirement that the prosecutorial authorities

supply the defendant with exculpatory evidence coupled

with the sanction against the prosecutorial authorities

for the suppression of same. Brady v. State of Maryland,

313 U.S. 83, 83 S.Ct. 1194, 10 L.Ed. 2d 215 (1963).

5. The requirement that an indigent defendant be pro-

vided with not only counsel, but transcripts and investiga-

tory services at the Government’s expense. Griffin v.

* 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 2d 891

(1956).

6. The requirement that the defendant be guaranteed a

speedy trial U.S. v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15

L.Ed. 2d 627 1966).

7. The requirement that a defendant be afforded the

protection of double jeopardy Benton v. Maryland, 395

U.S. 784, 89 S.Ct. 2056, 23 L.Ed. 2d 707 (1969).

The sword cuts both ways. In the landmark decision,

ede York, 401 U.S. 722, 91 S.Ct. 643, 28 L. Ed.

2d 1 (1971). This Court determined that evidence il-

legally obtained by the Government, while not usable on

the prosecution’s case in chief against the defendant, may

nevertheless be used for impeachment purposes in the

event the defendant does take the stand on the theory

that the courtroom door should not be open to perjury.

In effect, the Court has stated that if the defendant seeks

to avail himself of an opportunity to lie, his inequitable

conduct in committing perjury will estop him from ob-

jecting to the introduction of otherwise illegally obtained

evidence against him for impeachment purposes or re-

buttal. Walder v. U.S. 347 U.S. 62, 74 S.Ct. 354, 98 L. Ed.

2d 503 (1954).

An analysis of the Government’s conduct in this case,

as set forth hereinabove in Points I through IV, amply

demonstrates the unconscionable and inequitable conduct

of the Government. By suppressing the fact of the il-

legal search and seizure until the eve of trial, the defend-

ant was deprived of the opportunity to make a Rule 12

motion prior to the trial which would normally—-except

for good cause shown—which good cause was never dem-

onstrated, have resulted in a pre-trial suppression of the

illegally obtained evidence. Upon trial, such evidence

would never have been admitted or considered by the trial

judge, and the verdict would have been not guilty, upon

which there would have been entered a judgment of ac-

quittal.

By acting in the manner in which it did, the Govern-

ment sought to take advantage of its own inequitable con-

duct in an attempt to create an appeal after trial, where

otherwise none would exist. It could be argued that the

Government would have had an opportunity to appeal a

pre-trial determination that the evidence was obtained as

a result of an illegal search and seizure by making the

representation required by the Statute 18 USC 63731.

However, that issue could then have been resolved at the

proper time, and in the proper manner without prejudie-

ing the defendant. Even if the Government would have

been successful (which indeed they were not) in obtaining

a judicial ruling permitting the introduction of what was

otherwise ruled illegally obtained evidence, such an ad-

verse pre-trial ruling would not have mandated the de-

fendant’s conviction. Trial strategy could have been al-

tered. Different trial tactics could have been applied by

trial counsel. Perhaps there would have been no waiver

of a trial by jury, and a jury could have acquitted. The

disclosure of the otherwise suppressed Government wit-

nesses at an earlier stage would have provided the defend-

ant and his counsel an opportunity to explore the testi-

mony and the circumstances. Other witnesses could pos-

sibly have been located to impeach or impair the eredi-

bility of Miss Hennessey and Patrolman Biro. All of this

was denied to the defendant by the inequitable conduct of

the Govermaent.

It is thus obvious that by acting in the unconscionable

manner in which it did, unwittingly aided by the trial

court, the Government was able to obtain a verdict of

guilty upon the use of the illegal evidence. When the

trial court then overturned its guilty verdict by suppres-

sing the otherwise considered illegal evidence, as author-

ized by Rule 12(e), the Government was thus placed in a

superior position. If their position is corerct, that a right

to appeal does exist through the trial court’s decision,

on the grounds that the decision was merely a dismissal

rather than a judgment of acquittal, the Government can

now argue that if the taint was attenuated, the guilty

verdict must be reinstated. Cf. U.S. v. Dinitz, — US

—, 96 S.Ct. 1075, 1081, 47 L. Ed. 2d 267 (1976).

If this Court permits such inequitable conduct on the

part of the Government to be blessed with its approval,

it would serve to encourage the Government to suppress

revelation of its illegal searches and seizures until the

last possible moment, rather than to reveal such informa-

tion at the earliest possible moment. The Government

would be encouraged to prevent pre-trial disposition of

Rule 12 motions so as to encourage, without good cause

shown, the judicial determination of Rule 12 motions at

or after the trial in order to enable the Government to

claim the right of appeal from an overturned guilty ver-

diet, where otherwise there would have been no appeal

from a judgment of acquittal entered on an innocent ver-

dict, even though based upon the suppression of illegally

obtained evidence.

In view of the foregoing, this Court should deny the

Government application for relief based upon its in-

equitable conduct. The Government has not come before

this Court with clean hands!

Dated: White Plains, New York

October 21, 1977

Respectfully submitted,

Greenspan, Kanarex, Jarrz & Fuwx,

Attorneys for Defendant-Respondent.

Leon J. GREENSPAN,

Josxryn D. DeSatvo,

Of Counsel.