Petition — Masri v. United States

VED

MAY 23 1977

OF THE CLERK

E COURT, U.S.

Muse, No, 76-463

SAMIH K. MASRI,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEAL FOR THE FIFTH CIRCUIT

/,

DONALD I. BIERMAN, UIRE

BIERMAN, SONNETT, BEI

1 & ~— P.A.

28 West Flagler reet

600 Roberts Buildi

Miami, Florida 331

Attorney for Petitioner

— , —— ee

õC ......

JURISDICTION

QUESTIONS PRESENTED FOR REVIEW ..

CONSTITUTIONAL PROVISIONS INVOLVED ..

RULE OF CRIMINAL PROCEDURE

INVOLVED

STATEMENT OF THE CASE

I. THE POLYGRAPH .

II. THE REWARD LIE

REASONS FOR GRANTING THE WRIT

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

11

14

TABLE OF CITATIONS

Case

Brady v Maryland,

373 U.S. 83 (1973)

Giglio v United States,

405 U.S. 150 (1971) ..

Marshall v United States,

360 U.S. 310 (1959)

McNabe v United States,

318 U.S. 332 (1943)

Mesarosh v United States,

352 U.S. 1 (1956)

Napue v Illinois,

360 U.S. 264 (1959)

Santobello v New York,

404 U.S. 257 (1971)

United States v Agurs,

U.S. ____ 96 S.Ct. 2392

United States v Baller,

519 F.2d 463 (4th Cir. 1975)

United States v Bandel,

244 F.2d 833 (2nd Cir. 1957)

15

—

TABLE OF CITATIONS (Cont.)

Case

United States v Cochran,

499 F.2d 380 (5th Cir. 1974)

United States v DeBetham,

470 F.2d 1367 (9th Cir. 1972) cert. den. 93

S. Ct. 2299

United States v Frogge,

476 F.2d 696 (5th Cir. 1973)

United States v. Gloria,

494 F.2d 477 (5th Cir. 1974)

United States v Hale,

422 U.S. 171 (1975)

United States v Infelice,

506 F.2d 1358 (7th Cir. 1974)

United States v Ladley,

517 F.2d 1190 (9th Cir. 1975)

United States v Mayes,

512 F.2d 637 (6th Cir. 1975)

cert. den. 95 S.Ct. 2629

United States v Oliver,

525 F.2d 731 (8th Cir. 1975)

United States v Penick,

496 F.2d 1105 (7th Cir. 1974)

15

15

15

15

21

15, 16

15

15

15

IV

TABLE OF CITATIONS (Cont.)

Case

United States v Ridling,

350 F.Supp. 90 (E.D. Mich. 1972)

United States v Rogers,

419 F.2d 1315 (10th Cir. 1969)

United States v Ruasell,

411 U.S. 423, 93 S.Ct. 637 (1973)

United States v Salazar-Gaeta,

447 F. 2d 468 (9th Cir. 1971)

United States v Skeens,

494 F.2d 1050 (D.C. Cir. 1974)

United States v Stifel,

433 F.2d 431 (6th Cir. 1970)

United States v Tremont,

351 F.2d 144 (6th Cir. 1965)

United States v Watts,

502 F.2d 726 (9th Cir, 1974)

United States v Wainwright,

413 F.2d 796 (10th Cir. 1969)

Williamson v United States,

311 F.2d 441 (5th Cir. 1962)

16

15

15

15

17

15

15

15

in the

Supreme Court

Anited States

SPRING TERM. 1977

Misc. N.

SAMIH K. MAS RI,

Petitaoner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEAL FOR THE FIFTH CIRCUIT

Petitioner, SAMIH K. MASRI, by undersigned

The

counsel, respectfully requests that a Writ of Certiorari

issue to review the Judgment of the United States Court

Appeals for the Fifth Circuit, Case No. 75-4432

rendered on February 28, 1977, rehearing denied March

1977.

=

2

The Opinion and Judgment of the Court of Appeals

was entered on February 28, 1977, rehearing was denied

on March 24, 1977 without opinion. By Order dated April

26, 1977, the time for filing this Petition was extended by

this Court (A. 875) to and including May 23, 1977. The

jurisdiction of this Court is based upon Title 28, United

States Code §1254/1) and Rule 19(b), Supreme Court

Rules.

QUESTIONS PRESENTED

FOR REVIEW

I.

WHETHER THE RULE OF THE FIFTH

CIRCUIT COURT OF APPEALS EXCLUDING

ALL EVIDENCE OF RESULTS OF POLY-

GRAPH EXAMINATIONS, WITHOUT AL-

LOWING THE TRIAL COURTS’ DISCRE-

TION, IS IMPROPER AND SHOULD BE

3 °

II.

WHETHER THE DEFENDANT WAS DENIED

SUBSTANTIAL DUE PROCESS WHEN

THE TRIAL COURT, USING A SUBJECTIVE

STANDARD, DF NIED A MOTION FOR NEW

TRIAL BASED ON NEWLY DISCOVERED,

IMPORTANT EVIDENCE ADMITTEDLY

CONCEALED IN VIOLATION OF BRADY

v MARYLAND, 373 U.S. 83 (1973), BECAUSE

HE FOUND IT WOULD NOT HAVE AL-

TERED HIS DECISION TO CONVICT THE

DEFENDANT IN THE NON-JURY TRIAL.

III.

WHETHER THE GOVERNMENT'S PURPOSE-

FUL STRATEGY IN WITHHOLDING PAY-

MENT OF A $15,000 CONTINGENT FEE TO

ITS INFORMANT/WITNESS UNTIL AFTER

THE DEFENDANT’S CONVICTION AND

SENTENCING IN ORDER TO ENHANCE

THE INFORMANT’S CREDIBILITY, WAS

MISCONDUCT THAT DENIED THE DE-

FENDANT SUBSTANTIAL DUE PROCESS

CONSTITUTIONAL PROVISIONS

INVOLVED

AMENDMENT FIVE

REVERSED TO BRING IT INTO ACCORD No person shall be held to answer for a capital or

WITH OTHER CIRCUITS. otherwise infamous crime . . . nor be deprived in life,

liberty or property without due process of law.

4

RULE OF CRIMINAL PROCEDURE

INVOLVED

Rule 33, Federal Rules of Criminal Procedure

18 United States Code Annotated.

The court on motion of a defendant may grant a

new trial to him if required in the interest of justice. If

trial was by the court without a jury the court on motion

of a defendant for a new trial may vacate the judgment if

entered, take additional testimony and direct the entry

of a new judgment. A motion for a new trial based on

the ground of newly discovered evidence may be made

only before or within two years after final judgment, but

if an appeal is pending the court may grant the motion

only on remand of the case. A motion for a new trial based

on any other grounds shall be made within 7 days after

verdict or finding of guilty or within such further time

as the court may fix during the 7-day period.

STATEMENT OF THE CASE

SAMIH K. MASRI, the Petitioner was tried and con-

vieted in the Southern District of Florida, after a non-

jury trial, pursuant to a one count Indictment charging

him and another’ with conspiring to violate the controlled

substance laws in that they allegedly conspired to import

heroin into the United States in violation of 21 U.S.C.

£8952(a) and 963. (R. 1-4, 111, Tr. 1098). The Indict-

ment did not charge and the Government did not prove

nor attempt to prove, that an actual importation of heroin

by either or both of the defendants occurred, nor did they

prove that any heroin was ever contracted for by either

of the defendants—+Tr_1-1098). The defendants were

sentenced on November 19, 1975 to a twelve year period

of incarceration plus a three year special term of parole

for the defendant Marsi and a three year period of in-

carceration and a three year special parcle term for the

defendant Ghalayini (notwithstanding the fct that Ghal-

ayini had a proven previous involvement with heroin

which was seized in Lebanon and that the defendant Masri

had no proven prior involvement). (Tr. 91, R 127).

A timely Notice of Appeal was filed and after oral

argument before the Fifth Circuit, the case was remanded

for an evidentiary hearing on a motion to set aside the

guilty verdict or in the alternative to grant a new trial

based upon facts relating to the Government’s major wit-

ness, the informant, Bud Miller. The motion demonstrated

that: (1) Miller had testified falsely at the trial when he

denied previously applying for a reward from the Internal

Revenue Service in an unrelated case; 2) upon the fact

that the Government had made a fifteen thousand dollar

reward payment to Miller after Masri’s conviction and

sentencing. An evidentiary hearing was held on the matter

on October 26 and 27, 1976. (3 Supp. R. 25, 26, 32, 36,

43). Thereafter the Court of Appeals upon receiving the

certified findings of the trial court, affirmed the convic-

tion. The Petitioner is scheduled to surrender to begin

service of his sentence on May 31, 1977.

The Polygraph

The Petitioner’s defense consisted of his claim that

he never intended to bring drugs into the United States

and that the conversations between himself and the Gov-

ernment agent, Short, purportedly relating to a drug im-

portation scheme were for the purpose of setting Short

up to be defrauded by which the Petitioner and Miller

would take advance monies and then have him arrested.

Petitioner offered into evidence the results of a poly-

graph examination confirming his innocence and set up

explanation. (Tr. 704).

Although inclined toward admission of a new poly-

graph, by an agreed upon expert, the Court ruled that the

Fifth Circuit prohibits per se the admission of polygraph

results. (Tr. 707-715).

| Consisting of disjointed and unconnected conversations

over a two year period (Tr. 265, R. 3), the Government’s

case was as follows:

Bud Miller was a paid informant for the Drug En-

forcement Administration beginning in the year 1969

when he met Agent Short. (Tr. 137, 148). Miller had

known Masri for 10 to 12 years as of the time of trial.

(Tr. 46). Miller knew Masri and Ghalayini from Sheehan

Buick, where Miller was an automobile salesman and

Masri and Ghalayini had been mechanics in the body shop.

(Tr. 137, 188). Short asked about Masri in 1969 but did

not again mention Masri to Miller until February 7, 1972,

7

when Short asked Miller to introduce him to Masri. (Tr.

137, 160, 193). Miller had never seen Masri with any

narcotics and Masri had never talked to Miller about find-

ing anyone to buy or sell narcotics. (Tr. 139, 177).

According to Miller’s testimony, there was no contact

between himself and Masri or Ghalayini until March 13,

1974 when Masri, for the first time in his acquaintance

with him, began discussing Short and the fact that Short

had met with Masri for the purpose of buying heroin.

(Tr. 189, 177, 48, 508). Miller also indicated that Masri

had offered to demonstrate to Short that he could dissolve

heroin in water and then convert it back to heroin. (Tr.

48-53). No plan to import heroin was discussed at the

March 14, 1974 meeting.

The first time that Short met Ghalayini relative to

this case was on November 23, 1973, when they met at the

Skyways Motel at Short’s request. (Tr. 317). Throughout

all prior conversations between Masri and Short, the only

mention of Ghalayini was initiated by Short, and Masri’s

responses were simply that he did not want to have any-

thing to do with Ghalayini. (Tr. 273, 277, 489, 529). The

conversations between Masri and Short during this period

of time pertained to many subjects, including Short’s

purchasing a home (Tr. 266), Short’s selling narcotics

to Masri (Tr. 276, 281, 289) and the making of some kind

of narcotics deal between Short and Masri. No such deal

was ever made between Short and Masri. (Tr. 528, 529).

At no time was any agreement between Masri and Ghal-

ayini mentioned. The first mention of Ghalayini as a po-

tential participant in any dealings between Short and

Masri was made by Short on November 23, 1973. (Tr.

74). Masri was continuing to decline to have any dealings

with Short, and Short suggested that they use Ghalayini

as a contact between them for the purpose of establishing

confidence in each other.

The next conversation between Short, Masri and

Ghalayini took place at the Holiday Inn in Fort Lauder-

dale, Florida on January 26, 1974. (Tr. 434). According

to Short, Masri stated that he only talked to Short be-

cause of Short’s acquantance with Ghalayini (Tr. 437),

that Masri could still get the stuff in Lebanon once there

was a confidence between him and Short (Tr. 437), that

Masri could dissolve heroin in water (Tr. 439), that

Masri would demonstrate to Short that Masri could dis-

solve heroin in water and then extract it again, that this

experiment would be done in Atlanta with heroin to be

provided by Short, and that Masri could bring kilos from

Lebanon to the Bahamas, where Short could pick it up in

his boat and bring it inte the United States. Short brought

up Ghalayini’s name and told Masri that Short was going

to offer Ghalayini $2,000 for every kilo. Masri told Short

not to tell Ghalayini what they were going to do. (Tr.

434-445).

Short testified to a meeting with Miller and Masri on

June 4, 1974 at which time Masri allegedly indicated he

would bring some heroin to Short in Atlanta by July 15,

1974 through a Bishop in the Church who imported it into

the United States through Canada. (Tr. 473-475). At this

meeting, Masri asked Short to advance money to him in

the amount of $5,000 plus an additional $1,000 for Miller.

(Tr. 477).

Masri testified that the idea of getting advance money

from Short wa. suggested by Miller in an attempt to de-

fraud a drug dealer, to wit: Short, of his money with no

intention of ever delivering drugs to him. Miller, of

course, denied this. Interestingly enough, Miller received

$2,000 of his first reward money out of this $6,000 which

was eventually returned to Agent Short.

On August 27, 1974, Masri met with Short and in an

- effort to continue his scheme to defraud Short, he told

him that the drug courier was arrested in Rome, Italy

and that three kilograms of heroin were seized there and

therefore Short’s advance money had been lost. (Tr. 486).

Ghalayini was not mentioned at this meeting except by

Short and Masri replied that he did not want Ghalayini

to know anything. (Tr. 489).

On September 27, 1974, Short and Miller went to

Sam’s Body Shop, Masri’s place of business, to talk to

Masri. (Tr. 494). Short told Masri that Short’s contacts

had ascertained that no one had been arrested in Rome,

Italy, as Masri had stated, and accused Masri of “playing

me for a sucker”. (Tr. 494, 495). They then discussed

some property that Masri thought he was going to sell to

Short. (Tr. 497). —

On Oetober 2, 1974, Short and Miller again went to

Sam's Body Shop. Masri indicated that he was distrustful

of Short. Short asked Masri to return Short's money,

which Masri did. (Tr. 498-502).

On April 25, 1975, Short and Miller went to Sam’s

Body Shop and talked to Masri. (Tr. 499, 504). Masri told

Short that Masri had been indicted on income tax matters.

According to Short, Masri said that he could not bring any

stuff into the United States, but that after his trial, “he

10

was going to start sending stuff into the states on a large

scale.” (Tr. 506). According to Short, Masri stated that on

his last trip to Lebanon, he had made all the arrangements

and the stuff was ready. (Tr. 506, 507). This was the

last conversation that Masri had with Short or Miller.

The Court disallowed the polygraph examination and

granted the Government’s motion to strike any evidence

pertaining thereto. (Tr. 716).

Masri testified in his own behalf indicating that

Miller, the informant, had approached him in early 1970

with relation to Short and with an attempt to steal Short’s

money by strongarm. Masri rejected this completely.

(Tr. 734). According to Masri, Miller introduced Short

to him and then continued to tell him of all the money

that Short had and that if they could sell him anything

or any kind of business with him, there was a lot of money

available and that Miller expected his cut. (Tr. 736).

Masri denied ever having anything to do with narcotics

and denied ever having any source of narcotics to sel! to

Short. Tr. 778-779). He testified that all of his conver-

sations with Short were directed by Miller who told him

that he needed to impress Short, that he was “a top man”

so that together they could defraud Short of large sums

of money. (Tr. 742). Both Short and Masri testified that

Short had offered to sell him cocaine, yet Masri declined.

(Tr. 744). Masri admitted using the names of several

well-known narcotics cases which he had read about in the

newspaper for the purpose of impressing Short as Miller

had suggested. (Tr. 745, 746).

Masri testified that he was trying to “bluff” Short

so that he could receive money from him and that the idea

11

of receiving the $6000 advance money was Miller's. (Tr.

749). Masri then related some bizarre stories which he had

told Short concerning the bringing of heroin from the

Bahamas in Short’s boat and placing it in the radiator.

When Short questioned overheating in the radiator, Masri

replied that they could add yogurt which would prevent

the overheating. (Tr. 742). Masri, a semi-literate Lebanese

immigrant who operates a body shop, testified he did not

know anything about chemistry or dissolving heroin in

water. (Tr. 753). He further testified that it was his plan

with Miller to turn Short in to the authorities after they

had received advance money from him. (Tr. 754).

II.

The Reward Lie

The obvious conflict between the testimony of Masri

and Miller became the central issue of the case. Most of

the Government’s closing argument was based upon the

credibility of Miller as was most of Petitioner’s closing

argument as well as a vigorous cross examination. During

that cross examination of Miller, he denied working for

reward at all, knowledge of the reward system of the Drug

Enforcement Agency or any agency of the United States,

and denied having applied for a reward in the companion

case which he was working, to wit: the tax evasion case

of John Sheehan, the owner of Sheehan Buick. (Tr. 219,

3SR40) Knowledge of the application for reward in the

Sheehan case (such application pre-dating the trial of

Petitioner) came to the Petitioner’s counsel when this ma-

terial was turned over to counsel for Sheehan under the

Government’s obligations pursuant to Brady v. Maryland.

This material was turned over by another Assistant United

It was established at that hearing that (1) Miller had

in fact applied for a reward in the Sheehan case, (2) that

IRS agents were actively involved in the Masri case and

were in fact introduced to Miller by DEA Agent Short,

(3) that Short was aware that Miller was cooperating in

the Sheehan case, (4) that he was aware that Miller could

receive a reward in the Sheehan case, (5) that Short was

present in court throughout the entire Masri trial. It was

further established that prior to trial defense counsel had

made continuous requests to IRS agents, DEA agents and

prosecutors for discovery revealing any payment of re-

wards or any familiarity that Bud Miller may have had

with the reward system and that the application in ques-

tion was not turned over. In addition, it was shown that

Miller had been paid $15,000 in January after the trial

and sentencing. Both he and Agent Short testified that

prior to the trial there had been no specific agreement

whatsoever that he would get paid anything. However,

Agent Short testified that this money would not have been

paid unless a guilty verdict had been returned, as was the

policy of D.E.A. (Supp. Tr. 35) He further stated that

this was an unusually high reward and that he had never

seen a payment as quickly as the four days in this case.

In attempting to question Short with respect to DEA

policy and the apparent facility with which the $15,000

was paid, the trial court restricted defense counsel in their

questioning.

13

Agent Short testified that the reason that the pay-

ment was made after the trial was over was “I don’t know

whether it would weaken the testimony or not, but it would

not look good I don’t think, to a jury or anyone that he

had been promised an undue amount of money and we

don’t promise them because I can’t tell.” (Supp. Tr. 40). In

response to the following question Agent Short made the

following answer:

Q. It would look better to pay him after when

the Defendants are not aware of it, is that

the thrust of your comment?

A. Yes, sir. I don’t see that 1 am hiding any-

thing there. I did not promise him anything

like that either and we don’t pay until after

trials. (Supp. Tr. 41).

The trial court made findings of fact and denied the

motion for new trial stating that it found no agreement

prior to trial to pay money to Bud Miller; that the Gov-

ernment had failed in its duty under Brady v Maryland

to turn over the application for reward made by Bud

Miller in the Sheehan case prior to the instant case; that

Miller had testified falsely when he denied applying for

a reward in the Sheehan case, yet this testimony was only

an error and not perjurious. The Court further found that

Miller had no prior agreement nor knowledge that he

would receive a reward in the Masri case if there was a

conviction and at best he might have hoped for reward,

but had no knowledge or certainty of getting one. (Supp.

Tr. 150-156). Notwithstanding these findings and not-

withstanding the Government’s failure to correct Miller’s

perjurious statement, the Court refused to grant a new

trial on these bases, stating that he, as trier of the fact.

14

would not have changed his verdict had he known of

Miller’s application for a reward in the Sheehan case.

(Tr. 156-157) In reaching this conclusion, the Court stated

that there was a wealth of evidence corroborating the

testimony of Miller as to conversations and meetings with

Masri. However, this finding neglected the fact that Masri

testified to conversations with Miller in which Miller

suggested the language which Masri should use in talking

to Short so that they could defraud Short out of money.

There was no corroboration to any of these conversations.

The Court specifically found that he would not have

been affected by this testimony and that we need not

speculate as to what a jury would have been affected by.

(Supp. Tr. 158)

REASONS FOR GRANTING THE WRIT

I

THE DECISION BELOW PRESENTS AN IM-

PORTANT EVIDENTIARY QUESTION AS TO

THE ADMISSION OF THE RESULTS OF

POLYGRAPH EXAMINATION AND IT CON-

FLICTS WITH DECISIONS IN THE SIXTH,

SEVENTH, EIGHTH AND NINTH CIRCUIT

COURTS OF APPEAL.

The decision of the Fifth Circuit Court of Appeals

recognizes that its rule which forbids the admission of

polygraph examination test results in all cases without

allowing the trial court any discretion, is at variance with

other circuits. The Fifth Circuit has well establishea its

rule of per se inadmissibility in federal criminal cases.

~ CO

See, e.g. United States v Cochran, 499 F.2d 380, 393 (5th

Cir. 1974); United States „ Frogge, 476 F.2d 969, 970

(5th Cir. 1973); United States v Gloria, 494 F.2d 477

(5th Cir. 1974). Decisions in three other circuits appear

to be in accord with the decisions of the Fifth Circuit.

See, e.g. United States v Bandel, 244 F.2d 833 (2nd Cir.

1957); United States v Rogers, 419 F.2d 1315 at 1319

(10th Cir. 1969) United States v Wainwright, 413 F.2d

796 (10th Cir. 1969); United States v Skeens, 494 F.2d

1058 at 1058 (D.C. Cir. 1974).

The opinion in the instant case recognizes that other

circuits allow polygraph admissibility to be a question for

the trial court’s discretion. The decision cites United

States v Infelice, 506 F.2d 1358, (7th Cir. 1974) ; United

States v Penick, 496 F.2d 1105 (7th Cir. 1974), showing

the rule of the Seventh Circuit permitting the trial court

to exercise its discretion in this regard. In accord with

this are several decisions of the Sixth, Eighth and Ninth

Cireuits. See, e.g. United States v Mayes, 512 F.2d 637

(6th Cir. 1975), cert den. 95 S.Ct. 2629; United States v

Tremont, 351 F.2d 144 (6th Cir. 1965); United States

v Oliver, 525 F.2d 731 (8th Cir. 1975); United States v

Watts, 502 F.2d 726 (9th Cir. 1974); United States v

DeBetham, 470 F.2d 1367 (9th Cir. 1972), cert. den. 93

S.Ct. 2299; United States v Salazar-Gaeta, 447 F.2d 468

(9th Cir. 1971).

The majority of the opinions in the other circuits, by

e diseretion in the trial court, do not require the

of polygraph examinations, however, the other

. „mit discretion so that in the appropriate case,

such as the instant case, the trial court may set up its

own standards and permit the use of polygraph examina-

courts, that not all cases will be appropriate for the use

of polygraph examinations. In the case of United States v

Ridling, 350 F.Supp. 90 (E.D.Mich. 1972), the Court held

in admitting a polygraph examination under rigid condi-

tions that certain types of cases were ideal for the ac-

knowingly. United States v Ridling, supra at 93, 98. The

Ridling decision is particularly compelling in the instant

case since the great majority of the evidence for both the

the truth. In the instant case, a strikingly similar set of

17

circumstances arose. The argument relating to the admis-

sion of polygraph evidence centered around the fact that

this was a case involving an issue with which the Court

needed some help to “resolve the issue of intent”. (Tr.

705) The Court went on to state,

[T)his might be one of those rare cases where

some sort of qualified experienced professional

guidance, if it can be obtained, would be helpful

in determining intent, because we are down to

some straws in the wind, there

late the narcotics laws.” (Tr. 707, 708).

All of the polygraph argument preceded a recess for the

day. When court resumed the next day, the Government

had submitted a memorandum reflecting the Fifth Circuit

per se inadmissibility rule at which time the Court with-

drew from its prior remarks and ruled the polygraph

inadmissible. 7

It would appear clear that at a time when new

scientific evidence such as voice prints are being admitted

into evidence, see United States v Baller, 519 F.2d 463

(4th Cir. 1975) ; United States v Stifel, 433 F.2d 431 (6th

Cir. 1970), there should be no absolutest rule forbidding

similar scientific evidence when properly presented. The

court in United States v Baller, supra observed that “ab-

solute certainty of result or unanimity of scientific opin-

ion is not required for admissibility” of a new scientific

technique. (at 466) Thus, it is respectfully submitted that

this Honorable Court should set the guidelines for, or at

least permit the trial courts to, develop a discretionary

evidentiary rule for the admission of important scientific

testimony relating to polygraph examinations, particularly

in cases such as the instant case where the results were

so crucial to the outcome of the trial.

II

THE DECISION BELOW PRESENTS AN IM-

PORTANT ISSUE OF CONSTITUTIONAL

LAW CENTERING ON THE DEFENDANT'S

RIGHT TO HAVE THE EFFECT OF A

CLEAR VIOLATION OF BRADY v. MARY-

LAND JUDGED ON AN OBJECTIVE

STANDARD.

This Petition presents a unique situation in which

both the trial court and Court of Appeals found a violation

of the principles of Brady v. Maryland, 373 U.S. 88 (1973)

and yet the trial court denied a new tria! on the subjective

basis that the new evidence would not have affected his

verdict had it been known at the time of trial. The result

of the use of such a standard is that a jury trial and non-

jury trial stand on different footings in regard to the post

trial relief. It is unthinkable that in a jury trial, jurors

would be called in and asked whether a new revelation of

certain important evidence could have changed their ver-

dict. Rather the test as set forth by this Honorable Court

in United States v. Agurs, U.S. 96 S.Ct. 2392 con-

trols:

19

The proper standard of materiality must re-

flect our overriding concern with the justice of

the finding of guilt. Such a finding is permissible

oniy if supported by evidence establishing guilt

beyond a reasonable doubt. It necessarily follows

that if the omitted evidence creates a reasonable

doubt that did not otherwise exist, constitutional

omission must be evaluated in the context of the

entire record. If there is no reasonable doubt

about guilt whether or not the additional evidence

is considered, there is no justification for a new

trial. On the other hand, if the verdict is already

of questionable validity, additional evidence of

relatively minor importance might be sufficient

to create a reasonable doubt.

The Agurs, supra standard must be considered in light

of the unusual nature of the trial below. There was an

admission by the Defendant that all of the conversations

which were testified to between himself and the under-

cover narcotics agent, Jack Short, occurred. The Defend-

ant’s entire defense was that it was his intent to defraud

Agent Short who he believed to be a major international

narcotics dealer, by receiving advance money from him

and then turning him in to the police. Masri also contended

that Miller, the informant, was well aware of this and

encouraged his efforts by telling him exactly what to say

to Short in order to build himself, Masri, up as an inter-

national narcotics dealer. As has been set forth in Point I

above, the polygraph examination which was proffered

supported Masri’s position. The facts as stated herein make

it clear that the fact finder, to wit: the district judge, was

required to determine whether Miller or Masri was giving

credible testimony. Under both versions of the facts, the

statements of Agent Short relating to his conversations

with Masri were accurate.

It is thus obvious that impeachment testimony relat-

ing to Miller was highly crucial. The Government argued

in its closing argument that Miller’s credibility was crucial

and the Court stated that deciding between Miller’s ver-

sion and Masri’s version was a very difficult task which

hung in the balance. (Tr. 705-708). Thus, the two factors

raised on the motion for new trial relating to Miller’s

credibility were extremely important. The fact that Miller

had testified falsely (either intentionally cr by oversight)

that he had never previously applied for a reward, created

an obvious false premise for the continuation of his cross

examination. When this is coupled with the fact that Miller

received a post trial award of Fifteen Thousand Dollars

after the conviction and sentencing of Masri, it becomes

clear that his credibility was in question.

This Honorable Court in reversing a conviction in

Giglio v. United States, 405 U.S. 150 (1971) pointed out

the absolute necessity of full government candor with re-

lation to promises of immunity, leniency or rewards.

Indeed, the facts in the instant case are strikingly

similar to those in Giglio, supra. Testimony was given

with relationship to rewards (in Giglio, promises), the

statement was untrue, the Government knew or should

have known the answer was untrue and the statement re-

lated to an important fact. In both cases the Government

made no effort to correct the misstatement as was their

duty then and now. See, Napue v. Illinois, 360 U.S. 264

(1959).

21

On remand, the trial court found that the prosecutor

in the instant case had no actual knowledge of the appli-

cation for reward in the Sheehan case. This fact, even if

true, is nevertheless irrelevant, since the Government can

only speak through one voice. Notwithstanding the maxim

of the law as set forth in Santobello v. New York, 404 U.S.

257 (1971), that the government through one prosecutor

is charged with knowledge of the actions of another prose-

cutor or another prosecutorial branch of government, the

facts in the instant case indicate actual knowledge. The

testimony reflected that the informant Miller was in fact

introduced to the IRS agents for the purpose of making

the Sheehan case by Special Agent Short. In addition, the

facts reflect that throughout the Masri narcotics case, a

Special Agent of the IRS was actively working on a tax

case and was in constant contact with Agent Short. Agent

Short was present throughout all of the testimony and

made no effort to correct Miller’s misstatement.

Ironically, the material relating to the reward appli-

cation was — turned over in the Sheehan case by

another Assistant United States Attorney in Miami ap-

proximately six months after the Masri sentencing. That

Assistant United States Attorney saw her clear duty to

turn such material over under Giglio, supra and Brady,

supra, The Government still made no effort to correct the

Masri record and it was only by chance that Petitioners

learned of this evidence.

After the trial court found a violation of Brady v.

Maryland, supra with regard to the reward application

(which is compounded by the post-trial payment of the

$15,000 reward), the Court took it upon himself to decide

that these matters would not have affected his decision.

It is patently unfair to permit the trial court to make a

post-trial finding, some thirteen months after the trial

that these matters would not have affected his verdict.

There is no question but that an objective standard must

be applied to Brady violation material. That objective

standard must be whether the evidence could create a

reasonable doubt in the mind of a jury or a fact finder.

The subjective findings of the trial court, that he was not

concerned with the informant’s obvious trial posture as a

patriot interested only in ferreting out crime, does not an-

swer the question, whether a reasonable fact finder would

be affected by the knowledge that the informant was not

only aware of the Government reward system but had in

fact applied for a reward in a similar situation. This is

particularly true where the questioning of the informant

was specifically directed at this area and where specific

questions relating to the information which he supplied in

the Sheehan case (wherein he applied for the reward)

were directed at him and answered falsely.

Petitioner urges this Court to consider the fact that

a determination by the trial court in hindsight after the

Court itself had been involved in the fact finding process,

had determined the witnesses to be credible, had read pre-

sentence reports and had in fact sentenced the Defendant,

was an impossible task in mental gymnastics. The Court

admitted at the hearing that it was not attempting to

measure the effect of the prejurious statement upon an

objective reasonably minded factfinder, but rather upon

the judge himself as trier of the facts.

The prosecutor in closing argument made constant

references to Miller and his credibility. (Tr. 1007, 1010,

1020, 1024, 1028, 1031). Her closing argument included

strong language to the effect that the informant provided

this information purely as a good citizen and scoffed at

Petitioner’s counsel’s argument.

Mr. Bierman testified (sic) as to some govern-

ment method of rewarding people. Nothing like

that is in evidence and I don’t know that to be

the case, Your Honor. (Tr. 1085, 86)

She went on to state

Your Honor, as trier of the facts has to decide if

Bud Miller is credible. (Tr. 1092).

It would seem clear that if an objective test were used in

a case where the credibility of the informant vis a vis that

of the defendant was the crucial issue, where there was a

denial of any reward motivation, and where a false state-

ment was made at trial with regard to that reward, that a

reasonable fact finder would have a reasonable doubt as to

the guilt of the defendant. The very minimal requirements

of due process suggest that this Court reverse the convic-

tion and order a new trial.

——

THIS CASE PRESENTS AN IMPORTANT

ISSUE RELATING TO GOVERNMENTAL

CONDUCT WHICH HAS NOT BEEN BUT

SHOULD BE ADDRESSED BY THIS COURT

UNDER ITS SUPERVISORY POWERS.

This case involved a four-year investigation of an

identifiable target of the Drug Enforcement Agency, to

wit: Sam Masri, and the payment of a Fifteen Thousand

Dollar reward to an informant/witness after Masri’s con-

viction. Strikingly, not one single particle of narcotic drug

be it heroin, cocaine or marijuana, was produced through-

out the conspiracy, nor was there any evidence of the ac-

tual existence of any heroin or other drugs. The entire

trial rested upon the conflict between the informant Miller

and the Defendant Masri. It was Masri’s position through-

out, as has been stated before, that he was urged to tell

lies to Agent Short so that he and Miller, the informant,

could defraud Short who Miller had stated was a wealthy

drug dealer.

While admittedly Masri’s motives in defrauding the

undercover agent, who he believed to be a drug dealer, were

not perfect, the Government process of finding a target,

creating a case against him and thereafter paying an enor-

mous reward cannot stand.

The Court of Appeals in its decision, found that there

was no contingency arrangements such as the one con-

demned in Williamson v. United States, 311 F.2d 441

(5th Cir. 1962). While the facts at the post-trial hearing

reveal that there was no testimony showing a concrete

agreement between Short, in behalf of the DEA, and Miller

for the receipt of an reward, there was proof that Miller

had previously received payment in other cases and had

applied for a reward in an Internal Revenue Service case.

If it is possible to avoid the evil of contingency payments

condemned in Williamson, supra by simply setting up a

pattern of post-trial payments to an informant/witness,

then the Williamson, supra condemnations will be meaning-

less. Judge John R. Brown wrote in Williamson in con-

demning a contingent fee arrangement:

There comes a time when enough is more than

enough — it is too much. When that occurs, the

law must condemn it as offensive whether the

method used is refined or crude, subtle or spec-

tacular. Williamson, supra at 445.

What could be more subtle than the instant case in which

the informant/witness was aware of the reward system,

yet denied that knowledge and after the conviction and

sentencing was paid a huge reward.

It is respectfully suggested that the instant case meets

the tests in United States v. Russel, 411 U.S. 423, 93 S.Ct.

637 (1973), wherein this Court stated it could be “pre-

sented with a situation in which the conduct of law en-

forcement agents is so outrageous that due process prin-

ciples would absolutely bar the government from invoking

judicial process to obtain a conviction.” 411 U.S. at 431,

432. What we have in the instant case is the possibility

and probability that a government informant, for the pur-

post of receiving a large payment, would create a case by

his own imaginations, persuade a defendant to make state-

ments that could be used to indicate that he was involved

in a drug conspiracy while at the same time convincing the

defendant that he and the informant were defrauding a

drug dealer and planned to turn him in to law enforce-

ment. In the instant case, the entire defense showed that

it was purely the word of the informant Miller as opposed

to the word of the Defendant Masri. The true motivations

of the informant were hidden from the Court, as trier of

the facts, and from the Defendant’s counsel. After the

trial and conviction, the informant received the reward

that he was hoping for and we suggest rightfully expect-

ing. Unlike the entrapment cases, the instant case involved

26

no actual production of a narcotic drug by the Defendant

Masri or his co-defendant Ghalayini. The payment of

bounty fees have been condemned in numerous courts.

See United States v. Ladley, 517 F.2d 1190, 1193 (9th Cir.

1975).

There is absolutely no way to delve into the secret con-

versations between a long-term informant and an experi-

enced drug agent. It may well be that no specific promise

was ever made by Short to Miller, yet the wink, inuendo

and friendly pat on the back to an experienced informant

lets him know that his reward will not wait for heaven

but will come in cash when the trial is concluded.

While it has been a long-standing policy of the fed-

eral government to pay rewards, they are usually based on

the amount recovered in terms of drugs, or the amount re-

covered in terms of taxes or custom duties or proof of an

actual substantive crime through testimony of an inform-

ant and corroborating physical evidence. In the instant

case, there was only conspiracy talk hich could have

been created by the informant for his own purposes of

receiving the reward. 0

The error was compounded in this case since the agent

admitted that this unusually large reward paid faster than

he had ever paid before, was not paid prior to trial be-

cause he felt it would not have been looked upon favorably

by the trier of facts. This attempt to paint a glowing pic-

ture of the informant as a public spirited citizen by with-

holding his reward until after the trial cannot be counte-

nanced. This Honorable Court has invoked its supervisory

power on many occasions, e.g. Marchall v. United States,

360 U.S. 310 (1959) (reversing conviction based on jury’s

27

newspaper exposure) ; United States v. Hale, 422 U.S. 171

(1975) (reversing conviction because the defendant was

impeached based upon the exercise of his constitutional

right to silence); McNabe v. United States, 318 U.S. 332

(1943) (unwarranted delay before preliminary hearing) ;

Mesarosh v. United States, 352 U.S. 1 (1956) (ordering a

new trial based upon the testimony of an unsavory inform-

ant who the government admitted had committed perjury

in other cases).

In the instant case, not only was the informant paid a

huge reward, inappropriate with the work which he had

done at a time when it could not be used to impeach him,

but in addition, the informant made a false statement as to

his prior requests for rewards. The Petitioner would re-

spectfully suggest that the Court’s statement in Mesarosh,

supra is particularly applicable here:

The government of a strong and free nation

does not need convictions based upon such testi-

mony. It cannot afford to abide with them. at 14.

Accordingly, Petitioner respectfully requests that this

Court grant a certiorari review and set a firm national

policy as to what conduct involving informant witnesses

would be permitted in the trial of federal criminal cases

under the supervisory power of this Honorable Court.

28

CONCLUSION

For the foregoing reasons, Petitioner requests that

this Court grant this Petition for Writ of Certiorari.

Respectfully submitted,

BIERMAN, SONNETT, BEILEY

SHOHAT & OSMAN, P.A.

— Lie APPENDIX

DONALD I. BIERMAN

Attorney for Petitioner

United States Court of Appeals,

Fifth Circuit.

No. 75-4432.

UNITED STATES of America,

Plaintiff-Appellee,

v.

Samih K. MASRI and Wally Ghalayini,

Defendants- Appellants.

Feb. 28, 1977.

Defendants were convicted before the United States

District Court for the Southern District of Florida, James

Lawrence King, J., of conspiracy to import heroin, and

they appealed. The Court of Appeals, Tjoflat, Circuit

Judge, held that although form entitled “Waiver of Jury

and Special Findings” contained only one line for the

attorney's signature, use of such form was not error, es-

pecially since no request was ever made for special find-

ings and form did not make the two waivers conditional

on each other that, in any event, any error was harmless,

that even if incriminating statements allegedly made prior

to instigation of conspiracy were technically inadmissible

to prove the truth of their contents such production was

harmless since substance thereof was repeated in post-

conspiracy conversation and that although at trial inform-

er admitted to having received $500 expense money sub-

sequent discovery that he received an additional $15,000

after convictions did not warrant new trial where addi-

App. 2

tional sum was not expected and was given only on recom-

mendations of undercover agent.

Affirmed.

1. Criminal Law — 1144.13(3)

In reviewing claim of sufficiency of the evidence to

support conviction the Court of Appeais views the evidence

in the light most favorable to the Government.

2. Criminal Law — 1166(1)

Jury — 29(6)

Although form entitled “Waiver of Jury and Special

Findings” contained only one line for the attorney’s signa-

ture use of such form was not error, especially since no

App. 3

4. Criminal Law — 1169.2(6)

Even if incriminating conversations between govern-

ment agent and alleged contact with importer of heroin

were technically inadmissible to prove the truth of their

contents, in that statements were admitted prior to exis-

tence of a conspiracy, such introduction was harmless in

that substance of the conversations was repeated several

times after the alleged importer had become an active

participant in the conspiracy and, furthermore, there was

ample evidence to convict the importer. Comprehensive

Drug Abuse Prevention and Control Act ot 1970, §§ 1002

(a), 1013, 21 U.S. C. A. 952 a, 963.

5. Criminal Law — 260.112

In a nonjury case the trial judge is presumed to rest

his verdict on admissible evidence and to disregard the

inadmissible.

6. Criminal Law — 986

Although sentence imposed was exactly that recom-

mended in presentence investigation report, which judge

declared his intention not to consider in any way, defend-

ant was not improperly sentenced where Government

viewed defendant as major international heroin smuggler

and recommended 15-year sentence, both the Government

and the defense presented witnesses whose testimony was

to be considered in sentencing and trial court reaffirmed

its intent to disregard the entire report before sentencing.

Comprehensive Drug Abuse Prevention and Control Act

of 1970, 1002 (a), 1013, 21 U.S.C.A. 1 952(a), 963.

App. 4

7. Criminal Law — 913(1)

Payment of compensation to informer who did sub-

stantial service for Drug Enforcement Agency did not

require a new trial where although at trial informer ad-

mitted to having received $500 expense money it was

later discovered that he received an additional $15,000 fol-

lowing convictions where trial court found that informer

had no expectation whatsoever of receiving the sum

awarded by the agency and it was only given to him on

recommendation of undercover agent after conviction;

there was no improper factual inducement since informer

had no reason unknown to the trial judge to perjure or

embellish his testimony. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, 5 1002 (a), 1013, 21

U.S.C.A. 952 (a), 963.

8. Criminal Law — 940

Informer’s erroneously informing defense counsel on

cross-examination that he had not received a reward for

his assistance in a particular Internal Revenue Service

investigation did not rise to level of materiality warranting

new trial where trial court concluded that had the truth

been known it would not have altered the verdict.

Appeals from the United States District Court for

the Southern District of Florida.

Before BROWN, Chief Judge, and TUTTLE and

TJOFLAT, Circuit Judges.

App. 5

TJOFLAT, Circuit Judge:

The defendants-appellants, Masri and Ghalayini,

where convicted in a joint, non-jury trial of conspiracy to

import heroin in violation of 21 U.S.C. §§ 952(a) & 963

(1970). They assert multiple errors on appeal. Finding

each of them either meritless or harmless, we affirm.

I. Sufficiency of the Evidence

[1] Initially, the appellants claim that the evidence

before the district court was insufficient to support their

convictions. Viewing the evidence in the light most favor-

able to the Government, as mandated by Glasser v. United

States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L. Ed. 680 (1942),

we disagree. The evidence adduced at trial demonstrated

that Masri intended to import hervin into the United

States from his contacts in Lebanon. Both he and his

brother traveled there to make arrangements and super-

vise operations. Moreover, ample testimony established

that Ghalayini agreed to act, and did act, as a contact be-

tween Masri and the purported purchaser, Agent Short of

the Drug Enforcement Agency (DEA). In the light of this

evidence, we conclude that it was well within the trial

court’s discretion to discredit Masri’s contention that he

only dealt with Short to ensnare him in an elaborate con

game and that he never did intend to traffic in drugs.

II. Pre-trial Proceedings

[2] The appellants next assert that this proceeding

must be remanded to the trial court for special findings of

fact by the trial judge. When they asked for a bench trial,

the court had them sign a form which is entitled “Waiver

App. 6

of Jury and Special Findings“ The use of the form, repro-

duced in the margin, is claimed to link impermissibly the

'The Southern District of Florida’s Form 20— Criminal is re-

produced below:

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.

UNITED STATES OF AMERICA,

Plaintiff,

vs.

Defendant.

WAIVER OF JURY AND SPECIAL FINDINGS

The undersigned Defendant, having been fully advised in the pre-

mises, hereby waives the right to a trial by Jury and requests the Court

to try all charges against him in this case without a Jury.

The undersigned Defendant further waives the right to request any

special findings of fact as provided by Rule 23(c) of the Federal Rules

of Criminal Procedure.

(Date) (Defendant)

The undersigned attorney represents that prior to the signing of

the foregoing Waiver, the Defendant above named was fully advised as

to the rights of an “0-7 under oe r — law to a

speed and public trial by an impartial Jury, an right to request

— findings in a case tried without a Jury; and counsel further

represents that, in his opinion, the above waiver of trial by jury and

special findings is voluntarily and understandingly made, and recom-

mends to the Court that said Waiver be approved.

(Date) (Attorney for Defendant)

The United States Attorney hereby consents that the case be tried

without a Jury and waives the right to request any special findings of

fact as provided by Rule 23(c) of the Federal Rules of Criminal

Procedure.

(Date) (Assistant United States Attorney)

Aproved this day of

UNITED STATES DISTRICT JUDGE

—

App. 7

two waivers, making the waiver of fact finding involun-

tary.

Reliance is placed on United States v. Livingston, 459

F.2d 797 (3d Cir. 1972) (en banc) and Howard v. United

States, 423 F.2d 1102 (9th Cir. 1970). In both Livingston

and Howard the trial court had explicitly refused to grant

a bench trial unless special findings were waived. Such

coercive conduct was disapproved in both instances.’ In the

present case, however, the trial court did not engage in

any sort of coercive behavior, and there was never a re-

quest made for special findings. The form does not make

the two waivers conditional on each other, and no attempt

was ever made by any party to reserve the right to request

special findings. Instead, the attorney for the defendant

represented that, in his opinion, “the above waiver of trial

by jury and special findings is voluntarily and understand-

ably made... .”*

Federal Rule of Criminal Procedure 23 states in relevant part.

(a) Trial by Jury. Cases required to be tried by jury shall be so

tried unless the defendant waives a jury trial in writing with the

approval of the court and the consent of the government.

(c) Trial Without a Jury. In a case tried without a jury the court

shall make a general finding and shall in addition or request find

the facts ially. If an opinion or memorandum of decision is

filed, it will be sufficient if the findings of fact appear therein.

The Livingston court stated, “The district court cannot, by procur-

ing such a pre-trial waiver, avoid its responsibility to make findings of

fact w 1 with a timely request.” 459 F.2d at 798. The Ninth

Circuit held in Howard, “We cannot condone an avoidance of Rule

23(c) by the expedient of conditioning a jury waiver on a waiver of

special findings. The defendant’s right to — findings is not trivial.

and his exercise of that right is not to be impaired by the exertion of

pressure from the court.” 423 F.2d at 1104.

See note 1 supra.

App. 8

We recognize the cogency of the appellants’ argument.

The form utilized has only one line for the attorney to sign

a waiver of both his jury trial and his right to special find-

ings. Parties could easily be misled to conclude that one

must waive both or neither. The form, therefore, by the

way it is structured violates to some extent the spirit of

our admonition in United States v. Johnson, 496 F.2d

1131, 1137 (5th Cir. 1971):

In some situations, it may be impermissibly coer-

cive for a trial court to condition a non-jury trial on

the waiver of special findings of fact. Special findings

are necessary, especially in a complex case, for an

intelligent appellate review of a defendant’s conten-

tions. Whether the defendant desires special findings

should normally be his decision alone.

Nevertheless, in the light of the totality of the circum-

stances recounted, we hold that error was not committed

in this instance. In addition, we are convinced after our

independent examination of the record that, even if there

has been error, it would have been harmless.“

III. Trial Proceedings

[3] The appellants also complain of several events

which took place during trial. The first is that the trial

court, upon the urging of the Government, refused to allow

into evidence the results of a polygraph test taken by

Masri. Unlike some other circuits, the rule is well estab-

lished in this circuit that the results of lie detector tests are

‘A simple restructuring of the form found in note | supra to

provide a separate line for signature after each waiver would help elimi-

nate the present ambiguities of that form.

App. 9

inadmissible in federal criminal cases. United States v.

Cochran, 499 F.2d 380, 393 (5th Cir. 1974) ; United States

v. Frogge, 476 F.2d 969, 970 (5th Cir. 1973). It is evident

that the trial court properly refused tc consider the results

of Masri’s test.

4, 51 Next, Ghalayini argues that the court com-

mitted reversible error in admitting into evidence incrimi-

nating conversations between Masri aud Agent Short prior

to the instigation of the conspiracy between Masri and him-

self. The Government counters that at the time the conver-

sations were made a conspiracy already existed between

Masri and his Lebanon connections and that a defendant

joining the conspiracy later is bound by prior statements

made in furtherance of the conspiracy. See United States

v. Jones, 480 F.2d 954 (5th Cir.), cert. denied, 414 U.S.

1071, 94 S.Ct. 582, 38 L.Ed.2d 476 (1973).

Without so deciding, we find that even if the state-

ments were technically inadmissible to prceve the truth of

their contents, such introduction was harmless.’ The sub-

stance of the conversations was repeated several times

after Ghalayini had become an active participant in the

conspiracy. Moreover, a trial judge is presumed to rest his

verdict on admissible evidence and to disregard the inad-

missible. As previously noted, there was ample evidence to

convict Ghalayini.

»In the Seventh Circuit, it is in the trial court’s discretion as to

whether or not to allow results into evidence. United States

v. Infelice, 506 F.2d 1358 ir. 1974); United States v. Penick. 196

F.2d 1105 (7th Cir. 1974).

It is unnecessary for us to determine, of course, whether” other,

independent grounds existed for the admissibility of the challenged

ulterances.

App. 10

In a similar vein, Masri contends that statements

made by Ghalayini should not have been admitted. The

trial judge ruled, however, that there had already been

introduced sufficient evidence of a conspiracy between

Masri and Ghalayini at the time the statements were of-

fered for those statements to be considered against his al-

leged co-conspirator. See Migliore v. United States, 409

F.2d 786 (5th Cir.), cert. denied, 396 U.S. 975, 90 S.Ct.

449, 24 L.Ed.2d 444 (1969); Fed. R. Ev. 801 (d) (20 (EY.

We find the trial court’s conclusion amply supported by

the record. Again, even if there was error here, we presume

that the district court would have properly sifted the evi-

dence before reaching his verdict. There was ample un-

challenged evidence before the court to prove the indict-

ment.

IV. Sentencing of Masri

[6] The appellant Masri alleges that he was im-

properly sentenced. After Masri objected to certain ma-

terial in his presentence investigation report, the judge

declared his intention not to consider the report in any way.

Both parties agreed to that solution. The trial court, how-

ever, eventually sentenced Masri to a term of twelve years

imprisonment with a special parole term of three years,

the exact recommendation of the report.

Masri argues that this coincidence in sentencing es-

tablishes a prima facie showing that the trial court reneged

on its word and actually did consider the report, depriving

him of the opportunity to contest certain charges and the

recommendation on sentencing. We decline to import such

an evil design to the court. Both the Government and the

defense presented witnesses whose testimony was to be

— <a

App. ll== .

considered in sentencing. The Government viewed the de-

fendant as a major international heroin smuggler and rec-

ommended a fifteen year sentence. The court reaffirmed

its intent to disregard the entire report before sentenc-

ing. In this light, we believe that the trial court acted

well within its broad discretion when it sentenced Masri.

See United States v. Menichino, 497 F.2d 935, 945 (5th

Cir. 1974).

V. Informer Compensation

[7] The appellants next claim that the payment of com-

pensation to an informer, Miller, who did substantial serv-

ice for the DEA in this case was violative of the precepts

of Williamson v. United States, 311 F.2d 441 (5th Cir.

1962). At trial Miller admitted to having received $500

expense money for his work on the case from DEA. It was

later discovered, however, that he received an additional

$15,000 after the convictions of the defendants. A new

trial motion was entertained by the trial court after oral

argument before us. After a hearing at which the circum-

stances surrounding the additional payment were fully de-

veloped, a new trial was denied.“

The trial court found that Miller had had no expecta-

tion whatsoever of receiving the sum awarded by DEA

and it was only given to him, upon the recommendation of

Agent Short, after the convictions had veen obtained. These

conclusions are substantially supported by the record, and

they distinguish this case from Williamson. In Williamson

the informer had been approached and offer.d bounty

Ne delayed decision in this case until the district court, pursuant

to our instructions, transmitted to us its certified order and a transcript

of the proceedngs below.

App. 12

money on two defendants if he could uncover enough le-

gally sufficient evidence to convict them. In this case there

was no such improper, financial inducement. Miller had no

reason unknown to the trial judge to perjure or embellish

his testimony. See United States v. Ladley, 517 F.2d 1190,

1193 (9th Cir. 1975) ; United States v. Gardner, 516 F.2d

334, 343 (7th Cir.), cert. denied, 423 U.S. 861, 96 S.Ct.

118, 46 L.Ed.2d 89 (1975); United States v. Jett, 491 F.2d

1078, 1081 (Ist Cir. 1974). See also United States v. Me-

Clure, 546 F.2d 670 (5th Cir. 1977).

VI. Brady Violation

[8] The district court also considered an alleged

Brady’ violation at the new trial hearing. It was admitted

at that hearing that Miller had erroneously informed

Masri’s counsel on cross-examination that he had not re-

ceived a reward for his assistance in a particular Internal

Revenue Service investigation. Conceding this to be a

Brady violation, the court next considered whether the

omission was material. The proper standard for material-

ity has been recently elaborated in United States v. Agurs,

— U.S. — 96 S.Ct. 2392, 2401-02, 49 L.Ed.2d 342

(1976) :

The proper standard of materiality must re-

flect our overriding concern with the justice of

the finding of guilt. Such a finding is permis-

sible only if supported by evidence establishing

guilt beyond a reasonable doubt. It necessarily

follows that if the omitted evidence creates a

reasonable doubt that did not otherwise exist,

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 11914, 10 L.Ed.2d 215

(1963)

App. 13

constitutional error has been committed. This

means that the omission must be evaluated in the

context of the entire record. If there is no reason-

able doubt about guilt whether or not the addi-

tional evidence is considered, there is no justi-

fication for a new trial. On the other hand, if the

verdict is already of questionable validity, addi-

tional evidence of relatively minor importance

might be sufficient to create a reasonable doubt.

(Footnotes omitted.)

This standard was meticulously followed by the trial

court, and it concluded that, had the true facts been

known, they would not have altered the verdict. We can

find no reason to disturb that finding.

VII. Conclusion

In sum, all of the points of error raised by the appel-

lants are without merit. The convictions should be, and

are hereby, AFFIRMED.

App. 14

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

October 12, 1976

EDWARD W. WADSWORTH

Clerk

[RECEIVED OCT 14 1976

TO ALL COUNSEL OF RECORD

No. 75-4432—United States of America vs.

Samih K. Masri and Wally Ghalayini

(U.S. D.C. No. 75-417-Cr-JLK)

Dear Counsel:

The Court directs that I send this letter to counsel

and to the District Court.

Since the District Court has before it a post convic-

tion motion for new trial (preset for hearing on October

19, 1976) and on the eve of argument in this Court papers

were filed with this Court raising the question about the

payment of $15,000.00 by the government to a special

agent witness, the Court has determined to defer decision

in the instant appeal until these matters are disposed of

before.

The Court urges that by suitable amendment to the

pending motion for new trial the matter of the $15,000.00

be incorporated so that a full factual record can be de-

veloped, hopefully at the same time as the other matter

ascertained in the pending motion for new trial.

App. 15

On the completion of the hearing on all such matters

the District Court shall certify a copy of its findings of

facts and conclusions to this Court as soon as reasonably

possible, If the District Court decides in whole or in part

the motion for new trial (as expanded) and one or more

of the defendants decide to appeal, the notices of appeal

shall be promptly filed. The Clerk of this Court will there-

upon specify an expedited shortened schedule for filing

the record in typewritten form of such proceedings and

also fix the expedited filing date of typewritten briefs.

Such briefs are to be directed solely to the matters raised

on the hearing of the motions for new trial without repe-

tition of the arguments previously made. The Court then

plans to dispose of the whole case at one time.

Very truly yours,

EDWARD W. WADSWORTH

CLERK

By: Barry W. Stiebing

Barry W. Stiebing

Deputy Clerk

BWS :ge

Mr. Donald I. Bierman

Mr. Thomas Almon

Mr. Bernard S. Yedlin

Mr. Samuel A. Alter, Jr.

Mr. Samuel Sheres

ce: Hon. James Lawrence King

Mr. Joseph I. Bogart