Petition — Lasky v. United States

In The .

Supreme Court of the United States

October Term, 1976

no. 26 °1542

ELLIOT LASKY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

— — Ss

—— —— ——

ae

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

ae —__

ee —.

Herald Price Fahringer, Esq.

Attorney for Petitioner

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

Lipsitz, Green, Fahringer,

Roll, Schuller & James

of Counsel

Daily Record Corporation (2873 ) Spaviding Law Printing

Rochester, New York Syracuse, New York

Reasons for Granting the Writ ...............655:

I. Petitioner's conviction cannot be constitutionally

sustained where a federal prosecutor deliberately

suppresses critical evidence, specifically requested by

defense counsel, which would have discredited the

prosecution's chief witness. .............6000055

Il. An error of due process proportion was committed

by the trial court in permitting the chief prosecution

witnesses to testify to separate transactions that oc-

curred as long as one year after the incident for which

petitioner was indicted, tried, and convicted. ......

Appendix

FREES FO OR Panne

cocowwwnw ee ©

Preliminary Statement

Petitioner is a law school graduate whose first trial on a

federal drug charge ended in a hung jury. In his second trial the

prosecution produced a new witness, David Stutler, who was

serving a three-year term for a cocaine smuggling conviction.

He was allowed to testify about petitioner's involvement in

another drug importation incident, not covered by the in-

dictment, on a “‘similar acts” theory.

Under cross-examination Stutler denied engaging in any

other smuggling trips. In truth, the United States Attorney

knew Stutler had smuggled over 700 pounds of marijuana into

the United States on two previous occasions and was never

prosecuted. Defense counsel had specifically requested this

information in advance of trial.

Petitioner was convicted and sentenced to seven years in

prison. Thereafter, Stutler’s sentence was modified to time

served, on the government's recommendation, and he was

immediately released from prison. In a few words, that is what

this case is all about except to say that the judgment below,

approving this form of prosecutorial malfeasance, raises the

gravest constitutional doubts. The awful spectre of

prosecutorial misconduct continues to stalk across the pages of

this Court's opinions and must be halted. A grant of certiorari in

this case will help achieve that objective.

Table of Cases

Page

Brady v. Maryland, 373 U.S. 83 (1963) .......... 8, 9, 15, 16

Drew v. United States, 331 F.2d 85 (D.C. Cir. 1964)... 19

Gart v. United States, 294 F . 66 (8th Cir. 1923)........ 19

Giglio v. United States, 405 U.S. 150 (1972)....... 8, 9, 10, 13

Giles v. Maryland, 386 U.S. 6641967). .........0065 10

Hubby v. United States, 150 F.2d 165 ‘Sth Cir. 1945). . . 18

Kraft v. United States, 238 F.2d 794 (8th Cir. 1956). . . . 19

Labiosa v. Government of Canal Zone, 198 F.2d 282

ea andonses 19

Napue v. Illinois, 360 U.S. 264 (1959) ..........000. 10, 13

Paris v. United States, 260 F . 529 (8th Cir. 1919). ..... 19

United States v. Agurs, U.S. __, % S.Ct. 2392

REN RT a, Sar ae 8,9, 16

United States v. Bozza, 365 F.2d 206 (2d Cir. 1966). ... 17

United States v. Broadway, 477 F.2d 991 (5th Cir.

United States v. Brown, 548 F.2d 1194 (5th Cir. 1977). . 18

United States v. Spica, 413 F.2d 129 (8th Cir. 1969). . .. 19

United States Constitution

PU RIED cc cc ccccsccceccsccecccccceces 2

Statutes

PELE ccccccecccccccccccsccecccccccss 2.3

BED ccvscendcccccesccccccccccessocs 2.3

BOGE ccccccccccccsccccccscccccecsces 2,3

a 2

Supreme Court of the United States

October Term, 1976

No.

ELLIOT LASKY,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Petitioner, ELLIOT LASKY, prays that a writ of certiorari

issue to review the judgment of the United States Court of

Appeals for the Ninth Circuit entered on January 5, 1977.

Opinion Below

The opinion of the Court of Appeals dated January 5, 1977 is

reported, United States v. Lasky, 5A8 F.2d 835 (9th Cir. 1977),

and is printed in Appendix A, infra, at p. A-| et seq.

the petitioner was sentenced to two concurrent seven-year terms

in prison with a ten-year special parole term.

Petitioner appealed to the United States Court of Appeals for

the Ninth Circuit and subsequently moved for a new trial on the

ground of newly discovered evidence. The Ninth Circuit

remanded the case to the district court to review the new

evidence claim.

After a hearing, the district court declined to entertain the

motion for a new trial, and petitioner appealed the ruling to the

Ninth Circuit. The appeals were then consolidated, and on

January 5, 1977, the circuit court affirmed appellant's con-

viction. An application for rehearing was denied on March 8,

1977.

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

of the denial of the rehearing, an extension of time having been

granted by Mr. Justice Rehnquist in an Order dated April 6,

1977. The jurisdiction of this Court is invoked under 28 U.S.C.

§12541).

Constitutional Provision Involved

AMENDMENT V

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

infamous crime, unless on a presentment or indictment of a

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

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

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

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

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

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

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

compensation.

Statutes Involved

Sections 952, 960, and 963 of Title 21 of the United States

Code, because of their length, are reprinted in Appendix B,

infra, at p. B-1 et seq.

Questions Presented

1. Whether petitioner's conviction can be constitutionally

sustained where a federal prosecutor deliberately suppresses

critical evidence, specifically requested by defense cuunsel,

which would have discredited the prosecution's chief witness.

2. Whether an error of due process proportion was com-

mitted by the trial court in permitting the chief prosecution

witnesses to testify to separate transactions that occurred as long

as one year after the incident for which petitioner was indicted,

tried, and convicted.

Statement of Facts

The petitioner is an aspiring lawyer, having graduated with

honors from the University of Buffalo Law School in 1975. He

was convicted in the Southern District of California of im-

porting and conspiring to import cocaine, involving an episode

that occurred in the fall of 1971, and was sentenced to serve a

seven-year term of imprisonment. That simple statement

suggests the awful solemnity of the occasion that brings us to

this Court.

In October of 1971, petitioner, while in California to purchase

inventory for a part-time waterbed business conducted in

Buffalo, met a Claudia Edman (later, Mangiameli) for the

purpose of buying a small amount of cocaine (RT-558).* Miss

Edman had recently returned frora Columbia with eight ounces

of cocaine (RT-558). Petitioner declined to purchase any

cocaine, but discussed with her a Thomas Saytes, who was

expected to travel to Columbia to import various handicrafts.

Petitioner had met with Saytes to discuss the possible resale of

the handicraft imports in the United States (RT-876). Petitioner

gave Saytes the names of three friends of his in Columbia so the

latter would have people to socialize with while in Columbia

(RT-876, 878, 881).

Later that year Saytes traveled to Columbia, where he met

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Claudia of a fabrication” (548 F.2d at 838).

Based upon this highly dubious proof, petitioner's first trial

understandably ended in a hung jury. At the second trial, the

government produced up one David Stutler, who had been

convicted of smuggling 224 pounds of cocaine into the United

States and was serving a three-year term of imprisonment.*

David Stutler, who appeared to be the “cleanest” of the

prosecution's witnesses, testified to a similar transaction which

occurred in December of 1972. He said that he flew what he

thought to be a trial cocaine run to Mexico for one Fred Chase.

Later, at a dinner party, he claimed that it was not “a dry run”

but a successful run. Stutler testified that at the party Lasky

gave Fred Chase an envelope from which Chase later paid

Stutler for piloting the aircraft (548 F.2d at 838). Stutler ad-

mitted that he had been convicted of importing the cocaine and

*In the first trial the government offered Stutler's testimony but the trial

justice refused to receive it because of its prejudicial nature and remoteness.

However. in the second trial the judge permitted this highly questionable

proof over defense counsel's objection.

was presently serving a prison sentence for that offense. Un

cross-examination, petitioner's attorney questioned Stutler

about any other trips he made besides the cocaine ventures.*

Stutler denied any other smuggling trips. At the time Stutler

gave this false testimony, the Assistant United States Attorney

knew that the witness had made two other trips to import

marijuana in addition to the two cocaine trips. Nevertheless, the

government deliberately waited for six days before disclosing

this crucial information to the court and only then after the jury

was in its second day of deliberation. Also petitioner's trial

counsel had just left the jurisdiction to fulfill another com-

mitment and a young assistant was acting in his place. Sub-

stitute counsel immediately insisted that the jury be made aware

of this impeaching evidence. However, before agreement could

be reached about how the information should be transmitted to

the jury, a guilty verdict was reached and reported.

One week after petitioner was sentenced to seven years im-

prisonment, David Stutler's sentence was modified to time

* “Q. And the trial in which Mr. Coffin asked you about was a trial where

you attempted to smuggle twenty-two and a half pounds of cocaine into the

United States. Is that right”

A. That's right.

Q. And you were arrested in — on an island near Columbia. Is that

right?

A. Yes, that is right.

Q. And as a result of that arrest and the cocaine that was found in your

airplane. you went to trial here in San Diego. Is that right?

A. Yes.

(Q. How many other trips have you made besides that one?

A. The one that | am presently incarcerated on?

Q. Yes.

A. The one in question here, in 1972.

Q. Se you only made two trips?

A. Yes” (548 F.2d at 839).

served and he was immediately released over the probation

department's objection. Thomas Coffin, the Assistant United

States Attorney in this case, requested that he be released from

custody .*

On January 30, 1976 petitioner's counsel learned that Fred

Chase, a co-conspirator in the instant case and an alleged co-

conspirator of David Stutler, gave a signed statement to Mr.

Coffin indicating that Stutler had lied on the witness stand in

the petitioner's trial.**

*See Transcript and proceedings in United States v. David Stutler, No.

15682, August 25, 1975.

** See affidavit of Philip Ryan submitted in support of motion for new trial in

district court.

REASONS FOR GRANTING THE WRIT

Petitioner's conviction cannot be constitutionally

sustained where a federal prosecutor deliberately sup-

presses critical evidence, specifically requested by defense

counsel, which would have discredited the prosecution's

chief witness.

Seldom has there been so shocking a conviction of an up-

standing young man based upon the most infamous form of

prosecutorial deceit. The Ninth Circuit grievously misconstrued

this Court's decision in Agurs and concluded that the evidence

suppressed by the prosecution, so vital to the petitioner's

defense, ‘would not create a reasonable doubt that did not

otherwise exist” (548 F.2d at 840). Consequently, the lower

court's decision is in direct defiance of the regime of Brady-

Giglio- Agurs and is so serious a threat to the continuing vitality

of that range of law as to require immediate corrective action by

this Court.*

The primary question we bring to this Court is whether

petitioner's conviction can be constitutionally sustained where

the prosecution deliberately and knowingly suppressed crucial

evidence bearing indirectly on the credibility of the govern-

ment’s chief witness. The resolution of this significant question

is desperately needed in order to maintain the integrity of this

important rule of law so crucial to the defense of criminal cases

in this country.

In 1963 this Court gave birth to the Brady doctrine by

holding, in a constitutionally triumphant decision, that the

*United States v. Agurs, U.S. . % S.Ct. 2392 (1976); Giglio v.

United States, 405 U.S. 150 (1972); Brady v. Maryland. 373 U.S. 83 (1963).

prosecution's suppression of evidence favorable to an accused

and material to either guilt or punishment, violates the due

process clause irrespective of the prosecution’s good faith. The

principal impulse for the Brady rule grew out of this Court's

recognition that law enforcement officers are duty bound to

conduct impartial investigations and are obliged to share with

the defense evidence favorable to the latter's cause.

A decade later, in Giglio v. United States, 405 U.S. 150

(1972), the Court expanded the frontiers of Brady by bringing

within its territorial limits the principle that a state cannot stand

by and permit perjured testimony to go uncorrected. Thus,

under Giglio the standard for awarding a new trial is whether

there is any reasonable likelihood that the disclosure would have

affected the jury's judgment. The co-existence of Brady and

Giglio spawned a mass of authority which eventually reached

unmanageable proportions. Thus, this past year, the court

undertook to formulate more definitive standards for measuring

the legal consequences flowing from Brady-Giglio failures.

In United States v. Agurs, U.S. , 96 §.Ct. 2392

(1976), the Court refined the contours of the Brady doctrine by

classifying the various forms of prosecutorial malfeasance,

relating to the nondisclosure of evidence favorable to the defense

in a criminal prosecution, in the following manner:

(1) The prosecution's use of perjured testimony;

(2) The prosecution's failure to disclose favorable evidence

specifically requested by the defense; and

(3) The prosecution's failure to disclose favorable evidence

when the defense makes no request or a general one.

In the first situation, a new trial must be granted “if there is

any reasonable likelihood that the false testimony could have

affected the judgment of the jury” (96 S.Ct. at 2397; emphasis

supplied). This stricter standard is applicable because the truth-

seeking function of the jury is compromised and prosecutorial

misconduct is present.*

This Court has repeatedly held that critical impeachment

evidence may play a large role in determining the outcome of a

trial. Giglio v. United States, 405 U.S. 150 (1972); Giles v.

Maryland, 386 U.S. 66 (1967); Napue v. Illinois, 360 U.S.

264 (1959). See Comment, “Materiality and Defense Requests:

Aids in Defining the Prosecutor's Duty of Disclosure,” 59 Iowa

L. Rev. 433, 438 (1973).

The Ninth Circuit became preoccupied with defense counsel's

request, mislabeled “general,’’ for evidence ultimately sub-

verted by the prosecution. In fact, defense counsel's demand

was really quite specific as pointed out later in the petition.

However, more important, the Court of Appeals overlooked

the prosecution's use of perjured testimony resulting in

prosecutorial misconduct of the worst kind. Thus, the ap-

plication of the first branch of the Agurs standard of materiality

should apply, requiring a new finding that there was a

“reasonable likelihood” that the false testimony could have

“affected the judgment of the jury” (96 S.Ct. at 2397; emphasis

supplied). Instead, the Ninth Circuit imposed the reasonable

doubt test which is contrary to Agurs’ mandate. This dangerous

* In the other situations. not relevant here. constitutional error is com-

mitted only when a reasonable doubt of guilt is created where otherwise

none existed (96 S.Ct. at 2401). Agurs established a less stringent test to be

applied when the defense requests specific evidence. In that situation, if

there is “a substantial basis for claiming materiality exists, it is reasonable

to require the prosecutor to respond either by furnishing the information or

by submitting the problem to the trial judge” (96 S.Ct. at 2399).

Agurs must be viewed as a “discovery” case. Neither a promise of

leniency nor perjured testimony was involved. Instead. there was the rather

typical contention that the government possessed information unknown to

the defense which it should have divulged. Since there was no prosecutorial

misconduct and no reason to question the veracity of any of the

prosecution's witnesses, the test of any reasonable likelihood that the jury

verdict could have been affected was not applicable.

1!

ruling is not only erroneous and largely unworkable but con-

stitutes a terrible threat to the vitality of the Agurs doctrine.

Gauged by the Agurs criteria, petitioner was clearly entitled to a

new trial.

The questions left unanswered by Agurs, posed by this

petition, involve the deliberate concealment of highly relevant

evidence which was also specifically sought in advance of trial.

Thus, this case carries the Court into new territory. Petitioner's

counsel specifically sought to learn before trial whether any of

the government witnesses were involved in any other illicit

transactions or whether they were afforded special con-

siderations in exchange for their testimony.* It requires no gift

of prophecy to perceive that the defense was clearly seeking

material that would provide a basis for a claim of prosecutorial

favoritism or preferential treatment of government witnesses.

Clearly, David Stutler was the premier witness against

petitoner. Without him, the jury in the first trial was un-

convinced of petitioner's guilt. He was the ‘cleanest’ appearing

of the government witnesses and was serving a prison term for

the two cocaine trips disclosed in his direct testimony. Thus the

jury was left with the erroneous impression that he was paying

his debt to society for these transgressions and had no motive to

lie. In other words, the jury was falsely led to believe that

Stutler was motivated only by conscience and that there was no

*Specifically , counsel alleged m his Omnibus Motion:

“|Defendant| . . . believes that many of the witnesses that will be

testifying on behalf of the prosecution in this case. several of whom

may be key government witnesses, were made promises by the

prosecution, that by cooperating with the government. they might

receive certain benefits such as reduced sentence, probation.

recommendations to the Court for early release and agreements not

to prosecute (T-03; emphasis supplied).

Defense counsel requested in open court that he wanted to know whether

the individuals who were testify ing as witnesses were involved in any other

illicit transactions (RT-36).

deal made when, in truth, it is highly likely he was responding

to the government's promises that he would not be prosecuted

for the other two smuggling trips.

At the very moment Stutler denied his involvement in any

other smuggling trips, the United States attorney knew he was

lying.* The prosecutor knew that Stutler, on two other oc-

casions, had unlawfully imported 700 pounds of marijuana into

the United States. But instead of disclosing that crucial in-

formation, the prosecutor chose to “stonewall it'’ and suppress

the evidence.

knowledge of these other two marijuana trips would have

probably opened up other obvious avenues of inquiry into the

relationship of the witness with the prosecution from the outset

of the case. Cross-examination of Stutler would have been

highly more profitable with the valuable information of the

other two unprosecuted smuggling trips. Indeed, all that was

needed for an acquittal was for the jury to doubt Stutler’s

testimony because of his obvious motive to lie. Instead, the jury

was left with the impression that Stutler, having admitted his

two cocaine trips, was being punished for those miscalculations

and had no reason to speak falsely. Had they known about his

two additional smuggling fiights, involving illegal importation

of over 700 pounds of mwijuena, they would have surely

considered more seriously his apprehension that he would be

prosecuted for those offenses if he did not say what the

government urged.

*The Court of Appeals concluded:

“The Assistant United States Attorney knew at the time of Stutler’s

testimony that Stutler had made two trips to import marijuana in

addition to the two cocaine trips” (548 F.2d at 839).

13

More importantly, a promise of leniency, without a definite

commitment, may be interpreted by the recipient as contingent

upon the quality of the testimony given. The more uncertain the

agreement, the greater the incentive to make the testimony

pleasing to the promisor. In short, as in Napue and Giglio, the

prosecution created a false impression at trial, when the truth

would have directly impugned the veracity of its witness.

Furthermore, the false denial by Stutler on the witness stand

of these two separate trips has a more serious bearing than the

government is willing to admit. In this respect, it cannot be said

to constitute merely cumulative impeaching material. His

answer, on cross-examination, that he only made two trips

involving cocaine was consciously untruthful. Whereas his other

answers, acknowledging his guilt in the cocaine cases, albeit

unfavorable to him, could be cited in defense of his honesty as a

witness.

The government s case against the petitioner was such that

Stutler's credibility was the decisive factor. Without his

testimony in the first trial they could not convict petitioner.

Stutler’s unimpeached testimony in the second trial turned the

tide. Thus, the conclusion is irresistible that the disclosure of his

conscious concealment of these other smuggling trips would

have generated a serious doubt concerning the rest of the

evidence he delivered against the petitioner.* Unquestionably,

this crucial proof would have exerted a compelling impact on

Stutler's credibility. The jury's knowledge that he had been

involved in two other illegal flights, for which he had not been

prosecuted, probabiy would have created sufficient doubt in the

minds of enough jurors to either result in an acquittal or another

hung jury. Surely, there was ‘‘a reasonable likelihood” that the

false testimony could have “affected the judgment of the jury.”

As this Court said so well in Napue, *‘|t}he jury's estimate of the

truthfulness and reliability of a given witness may well be

*See II, infra.

14

determinative of guilt or innocence . . .”’ (360 U.S. at 269). So it

is here, the jury was squarely faced with a hard question of

whom to believe — Stutler or the petitioner. By allowing this

perjured testimony to go uncorrected, the prosecution's

vengeance was etched on the petitioner, an aspiring lawyer

whose character was supported by two state Supreme Court

justices and a host of other outstanding citizens.*

What lends force to this argument is how uniqueiy successful

Stutler was in achieving these very objectives. Within one

month after the petitioner was sentenced, he was a free man

having smuggled 22 1/2 pounds of cocaine into the Un.ted

States and 700 pounds of marijuana. Whereas the petitioner will

be forced to serve seven years in prison for allegedly conspiring

to import a much smaller amount of cocaine into the United

States.

The government tries to rid itself of this “damned spot” by

arguing that Stutler did not testify falsely when he stated that he

had made only two trips in connection with smuggling because

defense counsel's inquiry was ambiguous. In short, the

government maintains that, notwithstanding the fact that

Stutler and the government knew of at least two other

smuggling ventures involving marijuana, the witness might

have interpreted the question as relating strictly to cocaine. This

claim must be viewed suspiciously since the prosecution waited

for six whole days and after the jury's deliberations had com-

menced, before divulging this vital information. Certainly, this

critical error then became the turning point of the case and such

a gross constitutional default is unredeemed by the

prosecution's belated (and perhaps strategically planned) mea

culpa.

*See Sentencing Memorandum presented to the Honorable William B.

Enright on July 17, 1975.

15

Moreover, since the trial court did not order the witness to be

recalled, we will never know how he interpreted the question. In

any event, the jury's impression of David Stutler was markedly

different from what it would have been had they known he was

an experienced, highly active smuggler. One need not engage in

the semantics of trial counsel's questions nor speculate on

Stutler's understanding of them. One fact remains immutably

fixed in these proceedings: the Lasky jury received a grotesquely

false picture of David Stutler. The jury was deprived of sub-

stantial probative facts in a delicate and close lawsuit deciding a

young man's life and liberty. Without this crucial proof, all

hope of a just verdict was lost.

Apparently prosecutors in this country are continuing to court

calamity by their brazen failures to comply with the Brady rule.

Courts must hold prosecutors to their duty of conducting

themselves in a responsible fashion, rather than as advocates

privileged to win their cases by any means available. A

prosecutor's responsibility to a defendant is no less than the

duty owed to any other member of society, for the investigation

of crime should be designed not only to convict the guilty but to

free the innocent.

Integrity is the lifeline of our criminal justice system. -When it

is broken, our government is jeopardized. When those charged

with upholding and enforcing the law engage in deceit, our

whole systen: is imperiled. This form of dishonesty, if allowed to

spread, will devour our system of justice like a sickle-cell

anemia. It eats away at the vitals of our Constitution and will

inevitably lead us to a garrison society. Judicial warnings are

not enough. Prosecutorial misconduct of this magnitude is

discouraged only by making these misadventures unprofitable.

Only by reversing such overzealous prosecutions can the ardor

of prosecutors be kept within the legal limits and justice be

secured.

If this Court gives in to the prosecution here, the carefully

conceived language of Agurs will be converted into a sanctuary

for errant prosecutors and further official malfeasance will be

sponsored. This case, better than any other, demonstrates why

the borders of Brady must be constantly patroled by this Court.

No higher duty, no more solemn responsibility rests with this

Court, than to see that prosecutions are maintained at the very

highest level. For all these reasons, the petition for certiorari

should be granted.

An error of due process proportion was committed by

the trial court in permitting the chief prosecution witnesses

to testify to separate transactions that occurred as long as

one year after the incident for which petitioner was in-

dicted, tried, and convicted.

One of the most prominent events in petitioner's trial oc-

curred when the government stunned everyone by questioning

prosecution witnesses Helen Smith, Thomas Saytes, and David

Stutler about incidents involving cocaine, which occurrences

took place subsequent to the activity for which petitioner was on

trial. Acting with more zeal than wisdom, the government made

a drastic choice and persisted in pressing this prejudicial proof.

The obvious effect of the testimony — as intended by the

prosecutor — was to portray petitioner as a man of moral

turpitude and one who was deeply involved in the smuggling of

narcotics. It is readily apparent that the government was at-

tempting to obscure its scanty proof on the December 197!

conspiracy by placing before the jury evidence of other in-

cidents. The jury easily became confused by the many different

dates, places, participants, and activities. The prosecution's

smoke screen was unfortunately most effective.

17

As noted by the Court of Appeals in its opinion:

“The third similar transaction occurred in December

1972” (548 F.2d at 838; emphasis supplied).

Petitioner in his own defense testified and admitted his in-

volvement in the May 1972 transaction but denied any in-

volvement in the January 1972 and December 1972 transactions

testified to by Saytes and Stutler. In fact, the only evidence

related by David Stutler concerned the December 1972 trans-

action in which he described his flying a trial cocaine run to

Mexico, which was in reality a successful run. Stutler offered

no evidence whatsoever against petitioner as to the December

1971 conspiracy, which was the subject of the indictment. We

estimate that more than 0) percent of the proof received against

petitioner was concerned with subsequent similar acts.

Clearly, the government elicited the testimony of the

unrelated transactions to create prejudice in the jurors’ minds.

The basic rule, that now requires reinforcement, provides that:

‘committed the crime on tria! because he is a man of

criminal character’™ (United States v. Bozza, 365 F.2d

206, 213 [2d Cir. 1966}).

This principle is derived from a desire to shield defendants

from the obvious prejudices flowing from a jury's consideration

of other illegal acts totally unconnected with the charges in-

cluded in the indictment.

The subsequent acts to which prosecution witnesses Smith,

Saytes, and Stutler testified were in no way part of the trans-

action for which petitioner was on trial. In point of fact, no one

had even been charged with a crime arising out of the January

1972 or December 1972 incidents. Moreover, even if evidence as

to subsequent similar acts was admissible on the questions of

petitioner's intent and knowledge, Stutler's testimony should

have been rejected because it dealt solely with the December

1972 occurrence. That act was far too remote in time to have

any probative value on the issues for which it was presumably

offered.

Hubby v. United States, 150 F.2d 165 (Sth Cir. 1945), was a

case where the indictment did not charge a continuing offense

but the distinct offenses of concealing and selling drugs. The

Fifth Circuit held that evidence of transactions similar to those

charged in the ind ctment, but subsequent thereto, could not be

used to strengthen or supplement the evidence adduced to prove

the substantive offense.

In the instant case there was only the evidence of Helen Smith

and Thomas Saytes in support of the charges in the indictment.

Saytes’ credibility as a witness had been impugned by other

witnesses (548 F.2d at 838). The indictment stated that the

conduct for which petitioner was charged ended in December

1971. There was no allegation of a continuing plan or scheme.

Therefore, it is apparent that the government illegally sought to

strengthen its case by casting doubts upon petitioner's character

through the use of the testimony of the subsequent drug in-

cidents, in violation of Hubby.

United States v. Broadway, 477 F.2d 991 (Sth Cir. 1973),

cited in the recent case of United States v. Brown, 548 F.2d

There is no way that it can be said that the proof of the

January 1972 and December 1972 offenses was plain, clear, and

conclusive when this testimony came from the mouth of a heroin

addict (Saytes) and a witness whom one can now speculate was

evidence prowling the jury room, it was impossible for the jury's

impartiality to survive, and a guilty verdict was inevitable.

The prejudicial proof of subsequent similar acts of smuggling

is but one more indication of the government's overkill in this

prosecution of a man against whom it had no evidence of

wrongdoing. The United States Attorney, driving headlong for

a conviction, in one last desperate move and in pitiful panic,

attempted to run petitioner down with this outrageous evidence

designed to stampede the jury into a guilty verdict. Once this

cutting evidence was placed in the hands of the jury, petitioner's

presumption of innocence hemorrhaged and he was doomed.

The terror of this type of proof lies in its unpredictability.

There is no way a defendant can prepare for this evidence. An

indictment advises a defendant of the charge he must meet but

he cannot arm himself against this form of inflammatory

evidence.

A reinforcement of the doctrine proscribing the use of

evidence of subsequent similar acts is badly needed for

prosecutors around the country are bound to resort to this tactic

of convicting defendants of things for which they have not been

charged. This problem of prosecutors proving uncharged

criminal acts is a continuing and growing source of controversy

in federal courts throughout the country. It is imperative that

some limits be placed on those procedures or otherwise no

defendant in a criminal case will be safe. The only manner in

which the rule of law can be revitalized is for this Court to grant

the petition for certiorari.

CONCLUSION

For all these reasons, the Court should grant this petition for

certiorari.

May, 1977

Respectfully submitted,

Herald Price Fahringer, Esq.

Attorney for Petitioner

One Niagara Square

Buffalo, New York 14202

(716) 849-1333

Lipsitz, Green, Fahringer,

Roll, Schuller & James

of Counsel

APPENDIX

A-l

APPENDIX A

Opinion of the United States

Court of Appeals

UNITED STATES of America,

Plaintiff-Appellee,

v.

Elliot LASKY, Defendant-Appellant.

Nos. 75-2860, 76-2425.

United States Court of Appeals,

Ninth Circuit.

Jan. 5, 1977

Rehearing Denied March 8, 1977.

Appeal was taken from a judgment of conviction for im-

porting and conspiracy to import cocaine entered by United

States District Court for the Southern District of California,

William B. Enright, J., and from an order denying defendant's

Court of Appeals held that cross-examination question asked of

prosecution witness as to number of trips he made to import

cocaine were vague and equivocal so that witness’ answer that

he made two trips to import cocaine was not improper answer

even though witness had, in fact, made two trips to import

marijuana in addition to two cocaine trips; and that evidence of

witness’ trips to purchase marijuana was not sufficient to create

reasonable doubt where testimony of witness, who did not

participate in charged drug conspiracy but participated in

subsequent drug transactions with defendant, was not admitted

for purpose of establishing defendant's guilt but only fer

purpose of demonstrating defendant's intent and knowledge:

A-2

Opinion of the United States Court of Appeals

thus, Government's failure to disclose such evidence pursuant to

general discovery request did not require reversal.

Affirmed.

1. Criminal Law 1166.14

Even though defendant was absent from in camera inquiry

no prejudicial communication took place and it was Govern-

ment who moved to excuse juror and defense counsel who

opposed Government's motion, defendant's absence from

proceeding was, at most, harmless error.

2. Criminal Law 1166.14

Even though defendant was not present at evidentiary in

camera proceeding, where his absence did not result in

Fed. Rules Crim.Proc. rule 16(d1), 18 U.S.C.A.

3. Criminal Law 374

Record did not support defendant's assertion that his decision

to testify on direct examination concerning subsequent similar

acts was result of compulsion rather than strategic trial decision.

4. Criminal Law 371(1). 67345)

Evidence of similar acts was admissible to show defendant's

intent and state of mind and admission of such evidence did not

result in prejudice to fair trial, especially in light of trial court's

instruction for jury not to consider such evidence unless other

evidence, standing alone, established defendant's guilt beyond

reasonable doubt.

5. Witnesses 280

Cross-examination questions asked prosecution witness as to

number of trips he made to import cocaine were vague and

equivocal so that witness’ testimony that he made two trips to

import cocaine was not improper answer even though witness

A-3

Opinion of the United States Court of Appeals

had, in fact, made two trips to import marijuana and two

cocaine trips.

6. Criminal Law 627.8(3)

General discovery request for all exculpatory material places

Government in no better position than if no request was made;

with broad request, any duty to respond must derive from

obviously exculpatory character of certain evidence in hands of

prosecutor.

7. Criminal Law 627.7(4)

Where defendant makes broad, general discovery request for

all exculpatory material, proper standard of materiality for

omitted evidence, for purpose of determining if there was an

illegal suppression, is whether omitted evidence creates

reasonable doubt which did not otherwise exist.

8. Criminal Law 1166(1)

Evidence that prosecution witness who testified he had made

two trips to import cocaine had, in fact, also made two other

trips to purchase marijuana was not sufficient to « cate

reasonable doubt where testimony of witness, who did not

participate in charged drug conspiracy but participated in

subsequent drug transactions with defeudant, was not admitted

for purpose of establishing defendant's guilt of charged trans-

action but only for purpose of demonstrating defendant's intent

and knowledge; thus, Government's failure to disclose such

evidence pursuant to defendant's general discovery request for

all exculpatory information did not require reversal. U.S.C.A.

Const. Amend. 5; Comprehensive Drug Abuse Prevention and

Control Act of 1970, §§1002, 1010, 1013, 21 U.S.C.A. §§952,

960, 963.

A-4

Opinion of the United States Court of Appeals

Philip Scott Ryan, San Francisco, Cal., for defendant-

appellant.

Harry D. Steward, U.S. Atty., San Diego, Cal., for plaintiff-

appellee.

Before BROWNING, Chief Judge, LAY,* Circuit Judge,

and WATERS,** District Judge.

PER CURIAM:

Elliot Lasky appeals his conviction for importing and con-

spiracy to import cocaine in violation of 21 U.S.C. §§952, 960

and 963. After a mistrial was declared because of a hung jury,

Lasky was retried and convicted on both counts. He was sen-

tenced to two concurrent seven-year terms with a ten-year

special parole term. Lasky filed this appeal, and subsequently

moved for a new trial on the ground of newly discovered

evidence. This court remanded the case to the district court, the

Honorable William E. Enright, to review the new evidence.

After a hearing Judge Enright declined to entertain the motion

for new trial, and the defendant appealed that ruling. Since both

appeals present the same fundamental issue, they have been

consolidated.

[1-4] The basic issue on appeal is the defendant’s contention

that the government suppressed information about a govern-

ment witness which was favorable to the defense in violation of

the principles announced in Brady v. Maryland, 373 U.S. 83,

“*The Honorable Donald P. Lay, United States Circuit Judge, Eighth

Circuit, sitting by designation.

**The Honorable Laughlin E. Waters, United States District Judge, Central

District of California, sitting by designation.

A-S

Opinion of the United States Court of Appeals

83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giglio v. United

States, 405 U.S. 150, 92 S.Ct. 463, 31 L.Ed.2d 104 (1972).'

The conspiracy charged in the indictment encompassed a

time period from September 1971 to December 1971. The

government's case established that the 1971] conspiracy was a

joint effort between Lasky and Sam Mangiameli. The evidence

showed that Lasky supplied part of the financing and a list of

cocaine contacts in Colombia, South America. Beyond sup-

plying the list of contacts and the financial support, Lasky

played no physical part in the purchase and importation of the

cocaine. The government's proof proceeded on the theory that

Lasky employed Thomas Say tes as his agent. Lasky gave Saytes

the purchase money and the list of contacts. Saytes then met

1. The defendant has raised several other issues. Although we do not discuss

them in detail, we have thoroughly examined them and found no merit to

them. The defendant's additional claims of error were on the following

grounds:

(1) He was absent from an in camera inquiry concerning an

best, harmless error. See United States v. Doe, 513 F.2d 709, 710 n.

1 (het Cir, 1975 United States v. Reynolds, 489 F.2d 4, 8 (6th Cir.

1973); and United States v. Larkin, 417 F.2d 617, 618-19 (Ist Cir.

1969). We

proceeding held pursuant to Fed.R. Crim.P. lotd 1).

(2) There was no criminal prohibition against importing or

conspiracy to impor cocaine during the period charged in the in-

dictment. because the schedules of controlled substances were not

Footnote continued on next page

A-6

Opinion of the United States Court of Appeals

Mangiameli and his wife, Claudia, in Colombia where they

purchased the cocaine from a source on Lasky’s list. The

cocaine was then fitted on the bodies of Susan Chase and

Claudia Mangiameli (nee Edman), who then flew to Tijuana,

Mexico. In Tijuana the cocaine was packed in the spare tire of

Susan Chase's automobile which was driven across the border

by Ken Boston. At the border the car was searched and the

cocaine discovered. According to the government's evidence,

that same day in response to Saytes’ telephone call, Lasky came

to Sam Mangiameli’s house in Los Angeles to discuss the arrest

with Saytes, Sam and Claudia Mangiameli and Helen Smith.

The government's principal witnesses were Thomas Saytes

and Helen Smith. Lasky had met with Claudia Mangiameli in

Footnote continued from preceding page

republished in compliance with 2) U.S.C. §812. This claim lacks

merit. See United States v. Infelice, 306 F.2d 1358 (Tth Cir. 1974);

and United States ». Nocar, 497 F.2d 719 (7th Cir. 1974).

(3) His decision to testify on direct examination concerning

subsequent similar acts was the result of compulsion, rather than a

Garner v. United States, 424 U.S. 648, % S.Cr. 1178, 47 L.Ed.2d

370 (1976% United States ». Murray, 492 F.2d 178, 197 (9th Cir.

1973 and Shorter wv. United States, 412 F.2d 428, 431 (%h Cir.

1969). See also Doyle v. Ohio, 426 U.S. 610, % S.Cr. 2240, 2244 a.

7, 49 L.Bd.2d 91 (1976% Id. at 2249-50 2. 8 (Stevens, J .. dissenting!:

Brown v. United States, 356 U.S. 148, 78 8.C1. 622, 2 L.Ed.2d 9

(1958); and Fitzpatrick v. United States, 178 U.S. 304, 20 8.C1. 944.

44 L.Ed. 1078 11900).

(4) The admission into evidence of similar acts was prejudicial

error, We disagree. This evidence was clearly admissible to show the

defendant » intent and state of mind. There was no prejudice to a fair

trial. In addition the district court instructed the jury not to consider

thes evidence unless other evidence. standing alone. established the

defendant + guilt beyond a reasonable doubt. See [ nited States +.

Marshall, 526 F.2d 1349, 1361 (9th Cir. 1975: and United States r.

Lewis, 423 F.2d 457. 459 (8th Cir. 1970).

A-7

Opinion of the United States Court of Appeals

Helen Smith's apartment to discuss importing Colombian

cocaine, and Smith was present at the Los Angeles meeting.

Tom Saytes testified about his arrangement with Lasky to be

Lasky's agent, i.e., that Lasky gave him the list of Colombia

cocaine contacts and the purchase money. Saytes also testified

about the purchase and importation of the cocaine, and the Los

Angeles meeting.

The government also presented evidence of three subsequent

similar transactions involving Lasky. A January 1972 tran-

saction was related only by Tom Saytes. On this occasion Lasky

personally made the arrangements for the couriers. After Lasky

gave him the money, Saytes testified, he flew to Colombia,

made the purchase and supplied the cocaine to the couriers.

The May i$72 transaction involved Lasky, Saytes and Helen

Smith. Lasky provided the financing, Saytes made the pur-

chase, and Smith was the courier. Smith was arrested at a New

York airport, and subsequently all three pleaded guilty and

were convicted.

The third similar transaction occurred in December 1972.

David Stutler testified that he flew what he believed to be a trial

cocaine run to Mexico for Fred Chase. Later, at a dinner party,

he discovered it was not a “dry” run but a “successful” run.

Stutler also testified that at the dinner party Lasky gave Fred

Chase an envelope from which Chase later paid Stutler for

piloting the aircraft.

Lasky admitted his involvement in the May 1972 transaction,

but denied any involvement in the January 1972 or December

1972 transactions. In his own defense Lasky testified that he

met with Claudia Mangiameli to purchase cocaine for personal

use and not to discuss importing cocaine. He asserted that he

was not involved in the conspiracy and that Saytes was acting

independently and not as his agent. Lasky testified that the

AB

Opinion of the United States Court of Appeals

names he gave Saytes were social contacts. He explained his

attendance at the Los Angeles meeting as a response to a

friend's (Saytes) plea for help.

The other defense witnesses’ testimony supported Lasky’s

and undermined Saytes’ credibility. They testified that Saytes’

reputation for truth and veracity was poor, that he was a heroin

addict, and that Saytes had a misunderstanding with Lasky

accused Claudia of a fabrication. Saytes testified that the

statement upset him as it was Lasky’s plan to portray him as

Lasky's partner so that Saytes could have some influence over

Sam Mangiameli.

perjury, was deeply involved in the importation of illegal drugs

and was testifying in return for the government's promises of

nonprosecution and sentence modification. The defendant

asserts that the suppression of this evidence denied him the right

to a fair trial guaranteed by the due process clause of the Fifth

Amendment.

David Stutler was not called as a witness at the first trial, but

was called as a government witness in the second trial. He

testified about the December 1972 “trial run” incident and the

dinner party at which Lasky gave Fred Chase an envelope from

which Chase later paid Stutler for piloting the aircraft. Stutler

also testified that he was serving a prison sentence for importing

A-9

Opinion of the United States Court of Appeals

cocaine. On cross-examination Lasky'’s attorney questioned

Stutler about his arrest and conviction:

Q. And the trial in which Mr. Coffin asked you about

was a trial where you attempted to twenty-two

and a half pounds of cocaine into the United States. Is

was found in your airplane, you went to trial here in San

Q. How many other trips have you made besides that

one?

A. The one that I am presently incarcerated on?

Q. Yes.

A. The one in question here, in 1972.

Q. So you only made two trips?

A. Yes.

[5] The Assistant United States Attorney knew at the time of

Stutler’s testimony that Stutler had made two trips to import

marijuana in addition to the two cocaine trips. The government

brought this information to the attention of the court and

Lasky’s attorney after the jury had retired. The defendant

complained that the government had knowfingly used perjured

testimony, but the district court found that the questions were

vague and equivocal and that taken in context, “Stutler could,

in all truth and honesty, answer the questions the way he did.”

We agree.

‘BEST COPY AVAILABLE

A-10

Opinion of the United States Court of Appeals

As an additional basis for error the defendant contends that

the government suppressed information about David Stutler

despite discovery requests for the information. The record

demonstrates that the defendant's discovery requests did not

give ‘the prosecutor notice of exactly what the defense desired.”

United States v. Agurs, —— U.S. ——, 96 8.Ct. 2392, 2398-99,

49 L.Ed.2d 342 (1976). Before the first trial Lasky’s counsel

requested all probation reports, presentence interviews and

reports for 14 individuals including David Stutler. Subsequently

Lasky's counsel requested all “Brady material’’ and ‘Giglio

material.’’? In seeking this information the defendant was not

willing to rely on the government's judgment and requested that

the government's complete file be produced for examination by

the court and defense counsel.

[6, 7] Such a general request places the government in no

better position than if no request had been made. With broad

requests any duty to respond “must derive from the obviously

exculpatory character of the certain evidence in the hands of the

prosecutor.” United States v. Agurs, supra, 96 S.Ct. at 2399.

Therefore the proper standard of materiality is whether the

“omitted evidence creates a reasonable doubt that did not

otherwise exist."’ Id. at 2401. Although cognizant of the ad-

2. Lasky's February |1, 1975, motion requested:

In support of this motion the defendant filed a memorandum which states

his discovery request in greater detail, but the request could still be ac-

curately characterized as requesting “all Brady and Giglio material.”

A-11

Opinion of the United States Court of Appeals

monition that in certain circumstances additional evidence of

relatively minor importance might be sufficient to create a

reasonable doubt, we find that in the context of the entire

record, the additional evidence affecting David Stutler’s

credibility does not create a reasonable doubt.’

[8] David Stutler was not a participant in the 1971 con-

spiracy. His testimony did not directly link Lasky with the 1971

conspiracy, nor did his testimony corroborate any testimony

linking Lasky with the 1971 conspiracy. Stutler testified only

about the envelope incident at the December 1972 dinner party.

This testimony was admitted only for the purpose of demon-

strating Lasky’s intent and knowledge. More importantly, the

district court instructed the jury not to consider this testimony

unless the other evidence, standing alone, established the

defendant's guilt beyond a reasonable doubt. Our review of the

record reveals that the other testimony, standing alone, clearly

and convincingly established the defendant's guilt. Thus any

further evidence‘ affecting David Stutler’s credibility would not

create a reasonable doubt that did not otherwise exist.

The judgment of conviction is affirmed.

3. In Garrison v. Maggio. SA0 F.2d 1271 (5th Cir. 1976), the Pifth Circuit

limited the materiality standard of United States v. Agurs. —— U.S. —.

96 S.Ct. 2392, 49 L.Eg.2d 342 (1976), to evidence concerning a substantive

issue. and held that when the nondisclosed evidence concerns the credibility

of a witness a new trial will be granted only if the defendant demonstrates

that the evidence probably would have resulted in an acquittal. Since we

find that the defendant has failed to satisfy the materiality standard of

United States v. Agurs, we need not consider the propriety of a higher

standard for impeachment evidence.

4. The defense was able to attack Stutler's credibility by showing his con-

vietions for importing cocaine and that his sentence was still subject to

modification and that a United States Attorney might make a favorable

recommendation.

B-1

APPENDIX B

STATUTES INVOLVED

§952 Importation of controlled substances — Controlled

substances in schedules I or II and narcotic drugs in

schedules III, IV, or V; exceptions.

(a) It shall be unlawful to import into the customs territory of

the United States from any place outside thereof (but within the

United States), or to import into the United States from any

place outside thereof, any controlled substance in schedule I or

Il of subchapter I of this chapter, or any narcotic drug in

schedule III, [V, or V of subchapter I of this chapter. . .

§960. Prohibited acts A— Unlawful acts.

(a) Any person who —

(1) contrary to section 952, 953, or 957 of this title,

knowingly or intentionally imports or exports a con-

trolled substance,

(2) contrary to section 955 of this title, knowingly or

intentionally brings or possesses on board a vessel,

aircraft, or vehicle a controlled substance, or

(3) contrary to section 959 of this title, manufactures

or distributes a controlled substance, shall be punished

as provided in subsection (b) of this section.

Penalties

(b) (1) In the case of a violation under subsection (a) of this

section with respect to a narcotic drug in schedule I or II, the

person committing such violation shall be imprisoned not more

than fifteen years, or fined not more than $25,000, or both. If a

sentence under this paragraph provides for imprisonment, the

sentence shall include a special parole term of not less than three

years in addition to such term of imprisonment.

B-2

Statutes Involved

(2) In the case of a violation under subsection (a) of this

section with respect to a controlled substance other than a

narcotic drug in schedule I or II, the person committing such

violation shall be imprisoned not more than five years, or be

fined not more than $15,000, or both. If a sentence under this

paragraph provides for imprisonment, the sentence shall, in

addition to such term of imprisonment, include (A) a special

parole term of not less than two years if such controlled sub-

stance is in schedule I, II, III, or (B) a special parole term of

not less than one year if such controlled substance is in schedule

IV.

Special parole term

{c) A special parole term imposed under this section or section

962 of this title may be revoked if its terms and conditions are

violated. In such circumstances the original term of im-

prisonment shall be increased by the period of the special parole

term and the resulting new term of imprisonment shall not be

diminished by the time which was spent on special parole. A

person whose special parole term has been revoked may be

required to serve all or part of the remainder of the new term of

imprisonment. The special term provided for in this section and

in section 962 of this title is in addition to, and not in lieu of, any

other parole provided for by law.

§963. Attempt and conspiracy.

Any person who attempts or conspires to commit any offense

defined in this subchapter is punishable by imprisonment 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 or conspiracy.