Petition — Massler v. United States

76-183}

OCTOBER TERM 1976

JEROLD MASSLER,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE FiFTH CIRCUIT

HERMAN |. GRABER

SIEGEL & GRABER

Attorneys for Petitioner

100 Church Street

New York, N.Y. 10007

(212) 962-1295

Dick Bailey Printers, 290 Richmond Ave., Staten Island, N.Y. 10302

Tel.: (212) 447-5358

_-

TABLE OF CONTENTS

Page

EE. Swrace Sie been poets Seweadesedes cedeee 1

Juriediction ... 2.26.0... et UU ns eetwdsa 1

I DUS Ci os os caw iia cd ewdvecces 2

Statutory Provisions Involved ..................... 2

ELE SELLE PSE POPES POE 2

Reasons for Granting the Writ .................... 6

SND bc t65 Vb Uw dSS cee ee IS Rp He Res Kdv5 ees 22

Appendix A—Judgment of the Fifth Circuit ......... la

Appendix B—Opinion of the Fifth Circuit ........... 2a

Appendix C—Pre-Trial Decision U.S. District Court

UME RUOUUEC OE DUINOD occ cca cecteccceccescceee 27a

AUTHORITIES CITED

Cases:

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ............ 10

Johnson v. United States, 333 U.S. 10 (1948) ........ 10

Mooney v. Holohan, 294 U.S. 103 (1935) ............ 10

Nickens v. United States, 323 F.2d 808 (D.C. Cir. 1963) 16

Queen v. Robin, 1 Cox Crim. Cas. 114, 116 (Somerset

Be. TD occ kccocevccddetaaeve’ 15

Rochin v. California, 342 U.S. 165 (1952) .........+.. 10

United States v. Avalas, 541 F.2d 1100 (Sth Cir. 1976) . 20

United States v. Barket, 530 F.2d 189 (8th Cir. 1976)

Petition for Certiorari Pending ...............-- 20

United States v. Daley, 454 F.2d SOS (1st Cir. 1972) ... 20

United States v. Lovasco, U.S. 45 U.S.L.W. 4627 (June

O BGTFD cc vcccvcccesss 6 Witeteasmeneteiarss 8,10

United States v. Marion, 404 U.S. 307 (1971) ..... 6,13,16

United States v. Reitscher, 467 F.2d 269 (10th Cir.

WED on 00 ac véknenésbkdnes Vues Stee reres 20

United States v. Ross, 349 F.2d 210 (D.C. 1965) ...... 17

United States v. Russell, 411 U.S. 523 (1973) .......- 21

United States v. Washington, 463 F.2d 904 (D.C. Cir.

DEE) coue Vamcasiewe nas tne chaend eeeuseeeenes 20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1976

JEROLD MASSLER,

‘ Petitioner.

_-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, JEROLD MASSLER, prays that a Writ of

Certiorari issue to review the judgment of the United States

Court of Appeals for the Fifth Circuit, affirming the

judgment of conviction of violation of the Federal Narcotics

Laws entered in the United States District Court for the

Middle District of Florida.

OPINION BELOW

The opinion of the Court of Appeals, decided on April

20, 1977, has not yet been officially reported and is set

forth in the Appendix as Appendix B.

JURISDICTION

The judgment of the Court of Appeals was entered on

April 20, 1977 (Appendix A). The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

- QUESTIONS PRESENTED

1. Whether the Petitioner’s right to due process of law

was violated when the Court denied Petitioner’s motion for

a hearing to determine whether a pre-indictment delay of

three years and six months was for the purpose of gaining a

tactical advantage over him?

2. Whether Petitioner's right to due process of law was

violated. when the Court denied petitioner’s motion to

dismiss the Indictment, although a pre-indictment delay of

three years and six months without any indication whatever

that he was even being investigated resulted in substantial

prejudice to Petitioner as he was no longer able to recollect

events surrounding unspecified days some three and one

half years before.

3. Whether the Court erred in denying the Petitioner's

motion for a hearing to determine whether the govern-

ment’s delay was a deliberate tactical maneuver, because

the Court erroneously assumed that a showing of sub-

stantial prejudice and deliberate tactical delay was a

prerequisite for a due process violation when in fact

deliberate tactical delay alone can be sufficient.

CONSTITUTIONAL PROVISIONS AND STATUTES

INVOLVED

FIFTH AMENDMENT:

‘No person shall be. . . deprived of life, liberty, or

property without due process of law”

STATEMENT OF THE CASE

JEROLD MASSLER, together with a number of other

defendants, was indicted in the Middle District of Florida,

Tampa Division, on October 10, 1975. He was charged in a

one-count indictment alleging a conspiracy to violate 21

U.S.C. 952(a) and 841(a)(1) by importing marijuana with

intent to possess and distribute, in violation of Section 963

and 846. Title 21, U.S.C.

The trial against the petitioner and other defendants

commenced on March 1, 1976 before a jury, and on March

12, the jury found all of the defendants guilty. Petitioner

Massler was sentenced to two and one-half years im-

prisonment.

Petitioner appealed to the Court of Appeals for the Fifth

Circuit. The appeal was denied. A motion for rehearing

was denied on May 24, 1977.

When JEROLD MASSLER was indicted in October of

1975, three years and six months had elapsed from the

date when he was alleged to have committed the overt acts

specified in the indictment. Although certain that he did

not commit the acts aileged, petitioner Massler was unable

to recollect his whereabouts on ‘‘unspecified”’ days some

three and one half years earlier. All of his efforts to revive

his memory proved unsuccessful.

Prior to trial, Petitioner Massler moved for a Bill of

Particulars and Discovery, in the hope of gathering in-

formation that would enable him to remember and to

formulate his defense. These motions were denied without

hearings or argument. MASSLER also moved to make the

only witness against him, one WILLIAM KILGORE,

available for interviewing. (T669). The Government made

the witness available, but he refused to respond to any of

defense counsel's questions. Defense counsel requested the

court to instruct the witness to confer with counsel; but the

court denied the request. During the trial the request was

renewed, but again denied. (T302-30S).

Unable to recollect and without any realistic prospect of

remembering prior to or at trial, petitioner moved for a

dismissal of the indictment. In the alternative, he asked for

a hearing to determine whether the three and one half year

delay violated his due process rights on the ground that the

delay was deliberately done to gain a tactical advantage

over him. He asserted that such a tactical advantage was

indeed gained. as he was disabled from remembering facts

that could have substantiated his plea of innocence. The

Court waited until one week before trial, February 24,

1976. and denied the motions.

During trial. facts were elicited that indicated a

significant chance of deliberate delay by the prosecution.

The testimony indicated that the investigation was initiated

by the State of Florida in 1972 (T1263, T1293). In ad-

dition. the chief witness, KILGORE, was cooperating with

the gevernment soon after his 1972 arrest for possession of

heroin. Nevertheless, the indictment against JEROLD

MASSLER was not handed down until October 10, 1975.

At trial. the government's case was chiefly predicated on

the testimony of WILLIAM RAND KILGORE. He alleged

that there existed a conspiracy among the defendants to

import marijuana from Columbia. South America into the

United States and then to distribute the marijuana in the

United States. KILGORE testified that he “‘jomed”’ the

conspiracy on or about January 1972 when defendant

ALVAREZ employed him to act as a distributor and guard

at a so-called “stash house” located in the Tampa Bay area

(T149-150). Most of his contacts were with defendant

ALVAREZ in Florida, under whose supervision he worked.

At ALVAREZ’ request. KILGORE also worked with

defendants WELLS and RICE and allegedly flew with

them to Columbia, South America to purchase marijuana.

KILGORE also claimed to have met JEROLD

MASSLER on a few occasions. He claimed that MASSLER

gave him money in exchange for marijuana in New York in

March of 1972; that in April of 1972. he allegedly went to

New York to meet with MR. MASSLER to pick up money.

which in fact he never did (T554), and that later he saw

a MASSLER give money to defendant ALVAREZ

( ).

This testimony by KILGORE was really the only

evidence against JEROLD MASSLER. As the testimony

was unsubstantiated by any other source KILGORE’S

credibility was the key issue in the case.

It was brought out that KILGORE had been a user and

smuggler of both heroin and cocaine. Defense counsel then

elicited some other facts very pertinent to the credibility

issue but was denied the opportunity to develop them,

either because of Court rulings or the impossibility of doing

so as a result of the long delay. Thus, although KILGORE

testified that he had stopped using heroin in 1972 (T941-

950) defense counsel was denied the opportunity to develop

the facts surrounding his arrest for heroin possession in

April of 1972 (T941-950). Although KILGORE was given

“informal immunity” and had been in protective custody

and supported by the government from October 1975 until

the commencement of the trial, the defendants were

prohibited from going into the circumstances of

KILGORE'S five month protective custody. (T1037). More

importantly, KILGORE had testified that he had made

various flights for defendant ALVAREZ with defendants

WELLS and RICE to pick up marijuana. Yet it was

brought out that records of airline charters for the year

1972 had been routinely destroyed. (T1986 and T1921).

These records might have successfully impeached

KILGORE’S credibility with regard to the purpose or

actuality of the ALVAREZ charters to South America.

Defense counsel’s constrained effort to show the

unreliability of the witness was unsuccessful. On March 12,

1976 the jury returned a verdict of guilty against JEROLD

MASSLER.

REASONS FOR GRANTING A HEARING

POINT I

PETITIONER’S RIGHT TO DUE PROCESS OF

LAW WAS VIOLATED WHEN THE COURT

DENIED PETITIONER’S MOTION FOR A

HEARING TO DETERMINE WHETHER :

PRE-INDICTMENT DELAY OF THRE

YEARS AND SIX MONTHS WAS FOR THE

PURPOSE OF GAINING A TACTICAL AD-

VANTAGE OVER HIM.

This case presents certain issues that are being presented

to this Court for the first time.

In United States v. Marion, 404 U.S. 307 (1971), on

Supreme Court set forth the test that the defendant mn

meet in order to prevail upon a claim that sa ey

delay violated his right to due process. A complainan ome

show that the delay was caused by the peregones Lod conte

to gain a deliberate tactical advantage over the _

and (or)* that the delay in fact resulted in actual — 2

to the defendant, Id. 324. The Court, however, cw ewe

elaborate upon the kind of showing that the oo

must make to cause a dismissal of the prosecution on

rocess grounds.

‘ Actual prejudice to the defendant of a criminal

case may result from the shortest and most

necessary delay; and no one suggests that every

delay caused detriment to a defendant s case

should abort a criminal prosecution. To ac-

commodate the sound administration of justice —

the rights of the defendant to a fair trial

necessarily involve a delicate judgment based on

the circumstances in each case.

* See Point III, pg. 19.

(emphasis added) Marion v. United States 404 U.S. at 324.

In so stating the Supreme Court has left to the lower courts

the task of engaging in this delicate balancing judgment

based upon the facts existing in individual cases. In the

instant case Jerold Massler was denied due process of law

when, after a pre-indictment delay of three years and six

months, his motion to review whether or not there was

deliberate tactical delay by the government was summarily

denied and no evidentiary hearing was held.

Jerold Massler. in order to prevail upon his motion that

due process of law was denied him, must show that the

delay was an intentional device to gain a tactical advantage

over him. To show this, Mr. Massler is obliged to articulate

specific facts and circumstances that give rise to the

reasonabie inference of deliberate prosecutorial

misbehavior. Without recourse to a hearing, this

requirement places upon the defendant an almost super-

human burden.

The practical realities of this situation dictate that even

when, as here, there seems to be deliberate prosecutorial

misconduct, the defendant has absolutely no way of

proving it. The Court cannot accept the image created by

television and movies of defense investigators sifting

through tantalizing clues, that are ultimately assimilated

by the defense attorney into an irrebutable explanation of

what actually transpired. This image is pure illusion. Even ©

neutral facts relating to the underlying charge are

frequently undiscoverable by the defendant for a multitude

of reasons. Certainly, information which is under the

exclusive control of the prosecution, information which the

prosecution would frequently be desirous of covering up,

will never be examined by a defendant unless the

prosecution happens to voluntarily turn it over, or the court

compells the prosecution to do so.

As a rule, defendants are not as capable of documenting

» prosecutorial delay as Mr. Lovasco of United States .¥.

Lovasco, U.S. _ 45 U.S.L.W. 4627 (June 9,

1977). There the defendant was able to present a postal

inspector's report on his investigation that was prepared

one month after the crimes were allegedly committed, as

well as a stipulation the United States Attorney entered

indicating that little information concerning the crime was

uncovered in the seventeen months following the

preparation of the postal inspectors report. Id. at 4628.

Even though such a situation may occasionally arise, its

infrequency dictates that it should not constitute the basis

for the Court’s formulation of rules governing pre-

indictment delay. The fact of the matter is that the

predominant situation is to the contrary, that is, in the

majority of cases defendants are functionally foreclosed

from proving deliberate tactical delay solely because they

are being denied the information which would enable them

to prove such claims Justice Marshall's concluding

remarks in Lovasco are enlightening as to this point:

“Indeed in the intervening years so few defendants have

established that they were prejudiced by delay, that neither

this court nor any lower court has had a Sustained op-

portunity to consider the constitutional significance of

various reasons for delay.’’ Id. at 4631. This statement

substantiates not that defendants have not been prejudiced

by deliberate tactical delay, but that there has been

unavailable to defendants sufficient means to substantiate

their claims. Unless defendant Massler and other

defendants like him are provided with the opportunity to

elicit pertinent facts from the government which will either

subssantiate or rebut their claims, the Due Process rights

of defendants asserting tactical delay will continue to

eviscerate until they reach the point of nonexistence.

In demanding such a hearing defendant Massler is

mindful of the fact that there are those who envision such a

procedure as too much of an administrative burden for the

prosecutors as well as the courts. However, it is not in every

situation where the court should hold a preliminary

hearing. It is only in those cases where, even though the

indictment was within the relevant statue of limitations, the

time that has elapsed between the commission of the of-

fense and the indictment is so long as to raise the question

of ‘‘what took so long’’? While defendant Massler cannot

say that in each and every case any specific time period

within the statute of limitations is enough to mandate such

a hearing, here, where a delay of three years and six

months occurred, the delay, in and of itself (coupled with

the defendant’s claim of due process denial) should

necessitate the holding of an evidentiary hearing.

Nor should this Court be concerned that too much of a

burden will be placed upon prosecutors. Good prosecutors

already catalogue in their files the various stages of an

investigation as they develop. Petitioner Massler is not

asserting that the constitution requires that prosecutors do

anything more than what good office practice dictates. The

fact that it is easier not to keep records than it is to keep

records is hardly a valid reason to indorse the slothful

procedure. This Court cannot condone such a procedure

especially in light of the fact that it leads to an abridgment

of the defendant's due process rights. Nor will the keeping

of such records add considerably to the work-load of the

courts. If such records are kept properly, the courts

examination of such records can be efficiently managed.

The purpose of the hearing is simply to answer the

question of whether the long delay was reasonable under

the circumstances. However, just as Petitioner Massler’s

‘laim of purposeful delay is insufficient to require a

asmissal of the indictment, similarly the prosecutors’ bald

assert’ that there was no tactical delay should be in-

sufficien* to terminate the inquiry. As the Supreme Court

has said when talking of the Fourth Amendment Warrant

requirement:

10

“It's protection consists in requiring that those

inferences be drawn by a neutral and detached

magistrate instead of just being judged by tiie

officer engaged in the often competitive enterprise

of feretting out crime.”’

Johnson v. United States, 333 U.S. 10, (1948) Defendants

such as Jerold Massler can only be protected when they

claim deliberate pre-indictment delay, if the issue of

tactical delay is decided by a neutral and detached

magistrate instead of being judged by the prosecutor

himself, engaged in the often competitive enterprise of

getting convictions. It is the judge and not the prosecutor

who should decide, must decide, whether the prosecutor

did anything wrong.

Of course, this is not to say that the “‘due process clause

permits courts to abort criminal prosecutions simply

because they disagree with a prosecutor’s judgment as to

when to seek an indictment.”’ United States v. Lovasco. Id.

at 4628. It is to say that due process mandates that courts

meaningfully determine whether there was tactical delay

which violates those “fundamental conceptions of justice

which lay at the base of our civil and political institutions”.

Mooney v. Holohan, 294 U.S. 103, 112 (1935) and which

define “‘the communities sense of fair play and decency,”’

Rochin v. California, 342 U.S. 165, 173 (1952).

Petitioner Massler asks for a “fair” hearing. He does

not contend that such a hearing must conform to the full

blown procedures of a criminal trial. He does not contend

that he is entitled to see the government's case in its en-

tirety. Due process is flexible enough to allow for different

procedures in order to accommodate the different interests

that are being protected. Gagnon v. Scarpelli. 411 U.S. 778

(1973).

However, at the very least, the prosecutor should be

required to allow petitioner Massler and the court to

11

examine those papers that are relevant to the evolution of

the investigation. If such papers contain information that

the petitioner. has no right to see, the papers should be

redacted so only the relevant portion is turned over. If

redaction is impossible under the circumstances, an in

camera inspection by the court becomes the only ac-

ceptable alternative.

The prosecutor can put forth many reasons which would

justify the delay. These reasons would be sufficient to deny

the defendant's claim if the judge determines that these

reasons in fact exist on the basis of the evidence before him.

Professor Amsterdam has catalogued some of the reasons

for delay which would probably justify the delay:

“Proof of the offense may depend upon the

testimony of an undercover informer who main-

tains his ‘‘cover” for a period of time before

surfacing to file charges against one or more

persons with whom he has dealt while

disguised . . . If there is more than one possible

charge against a suspect, some of them may be

held back pending the disposition of others in

order to avoid the burden upon the prosecutor's

office of handling charges that may turn out to be

unnecessary to obtain the degree of punishment

that the prosecutor seeks . . . Offenses may not be

immediately reported; investigation may not

immediately identify the offender; an identified

offender may not be immediately ap-

prehendable . . . An indictment may be delayed

for weeks or even months until the impaneling of

the next grant jury.”’

U.S. . 45 U.S.L.W. 4627, 4631 fn. 19.

These and other reasons might constitute valid

justifications. However, the abstract existence of in-

numerable possible justifications does not establish that in

12

any particular case any one of these possible reasons was in

fact the determining one. The theoretical existence of these

possible justifications does not exclude the fact that the

government was motivated by a more sinister and

illegitimate motive in postponing the indictment of Jerold

Massler.

Even if this Court should find that the three and one half

vear delay in and of itself did not entitle Jerold Massler toa

pre-trial hearing on the issue of deliberate tactical delay,

certainly such a hearing was mandated after the revelation

of significant facts at trial. In Marion the Court stated that

“events at trial may demonstrate actual prejudice but at

the present time appellees’ due process claims are

speculative and premature.’’ 404 U.S. 307, 326 (1971). In

the instant case sufficient facts were revealed at trial to

warrant a post-trial inquiry on the issue of delay even if

petitioner Massler’s claim was speculative and premature

prior to trial.

The evidence at trial showed that the prosecution against

Jerold Massler was initiated by the State of Florida in 1972

(T1263). It revea'ed that the investigation was carried out

by law enforcement officers Jahnke and Williams for the

State of Florida (T1293). Furthermore, evidence showed

that Kilgore was cooperating with the government after his

1972 arrest (T28). A three and one half year delay sup-

plemented by evidence that the government had com-

menced its investigation almost three and one half years

prior to the indictment and that its chief witness was

already working for the government at that time raises a

sufficient inference that the delay was to gain a tactical

advantage. We implore this Court to order an evidentiary

hearing to explore this issue. ;

13

POINT II

PETITIONER’S RIGHT TO DUE PROCESS OF

LAW WAS VIOLATED. WHEN THE COURT

DENIED PETITIONER’S MOTION TO

DISMISS THE INDICTMENT, ALTHOUGH A

PRE-INDICTMENT DELAY OF THREE

YEARS AND SIX MONTHS WITHOUT ANY

INDICATION WHATEVER THAT HE WAS

EVEN BEING INVESTIGATED, RESULTED IN

SUBSTANTIAL PREJUDICE TO PETITIONER

AS HE WAS NO LONGER ABLE TO

RECOLLECT EVENTS SURROUNDING

UNSPECIFIED DAYS SOME THREE AND

ONE HALF YEARS BEFORE.

In United States v. Marion, 404 U.S. 307 (1971), the

Supreme Court held that the speedy trial clause of the Sixth

Amendment is inapplicable to the issue of pre-indictment

delay as it is ‘“‘a formal indictment or information or else

the actual restraints imposed by arrest and holding to

answer a criminal charge . . . that engage the particular

protections that the Sixth Amendment was designed to

protect."’ Id. at 320. The Court went on to say that

although the primary safeguard against the bringing of

overly stale criminal charges is the legislatively enacted

statute of limitations, this does not end the inquiry. Even if

an action falls within the applicable statute of limitations,

there is only a rebuttable presumption that the cause is

timely. The presumption is rebutted by a showing that the

pre-indictment delay violated the defendant’s Fifth

Amendment right to due process of law. JEROLD

MASSLER was denied due process of law when, as a result

of prosecutorial delay, he was deprived of the ability to

recollect facts and thereby adequately defend himself

against the charge that was leveled against him.

JEROLD MASSLER along with a number of other

14

defendants was indicted in the Middle District of Florida,

Tampa Division on October 10, 1975. He was charged in a

one count indictment with conspiracy to violate 21 USC

1052 (A) and 841(A)(1) by importing marijuana from

Colombia, South America into the United States with

intent to possess and distribute the marijuana, in violation

of section 963 and 846, of title 21 of the United States

Code. Only two overt acts were charged against JEROLD

MASSLER. The first alleged that on or about March, 1972

PEDRO ALVAREZ traveled to New York and met with

JEROLD MASSLER. The second alleged that JEROLD

MASSLER paid approximately one hundred thousand

dollars to PEDRO ALVAREZ on or about April, 1972 in

Tampa, Florida.

When the indictment was handed down in October of

1975 JEROLD MASSLER was unable to recollect his

whereabouts, his activities, his possible companions on

unspecified days some three and one half years earlier.

There was no documentary evidence that would in any way

cast light upon the events of those days. Moreover, the

government indicated that there were no wiretaps or

consensual recordings. MR. MASSLER contacted all of

the people he knew who might be able to remember, or

assit him in remembering. Unfortunately, JEROLD

MASSLER’S efforts to pin point his whereabouts, ac-

tivities, and associates on the days of the alleged pvert acts

proved unavailing. Nor could his attorney assist him in

remembering as the attorney had no personal, first hand

knowledge of the facts alleged. MR. MASSLER’S defense

attorney attempted to tap the only possible source of in-

formation—the witness KILGORE who claimed to have

been in the company of JEROLD MASSLER three and one

half years before. A motion was filed by the defense at-

torney on February 26, 1976 to make KILGORE available

to the defense for an interview. The motion was granted

and the witness was interviewed by the defense counsel, but

15

the witness refused to answer any questions concerning the

matters about which he was to testify in the case. The

witness stated “I don’t have anything to say to you” (T669).

After the pre-trial attempt at an interview, the defense

counsel made a motion to instruct the witness to confer

with counsel. This request was denied. During the trial

defense counsel again requested and was given the op-

portunity out of the presence of the jury to question

KILGORE. Again the witness refused and the defense

counsel requested that the court instruct the witness to

discuss the matter. The judge refused to order the witness

to confer with counsel (P302-305).

As a result of these unsuccessful efforts to trigger

petitioner MASSLER’S recollection, JEROLD MASSLER

was completely in the dark in the months prior to the trial

about the charge that the government had brought against

him. MR. MASSLER’S only hope was that something in

the government’s case would trigger his recollection at the

time of trial. Events at trial did not trigger his recollection.

Yet according to JEROLD MASSLER, the testimony

given by the witness KILGORE was a fabrication.

It is clear that the still unjustified delay of three and one

half years placed petitioner MASSLER in an impossible

position impairing the fact finding process at trial.

It is monstrous to put a man on trial after such a

lapse of time. How can he account for his conduct

so far back? If you accuse a man of a crime the

next day, he may be able to bring forward his

servants and family to say where he was and what

he was about at that time; but if the charge not be

preferred for a year or more, how can he clear

himself? No man’s life would be safe if such a

prosecution were permitted. It would be very

unjust to put him on his trial.

(emphasis added) Queen v. Robbin, 1 Cox Crim Cas 114,

16

116 (SOMERSET WINTER ASSIZES 1844).

Moreover, the prejudice experienced by JEROLD

MASSLER was exacerbated by the fact that during the

intervening years between the alleged commission of the

offense and the indictment, absolutely no notice what-

soever, either constructive or actual, was given to the

petitioner as to the charge against him. Yet during this

period of time the government was actively preparing its

case. As stated by Judge Wright in his concurring opinion

in Nickens v. United States, 323 F.2d. 808, 813 (D.C. Cir.

1963):

Indeed, a suspect may be at a special disadvantage

when complaint or indictment, or arrest, is pur-

posefully delayed. With no knowledge that

criminal charges are to be brought against him, an

innocent man has no reason to fix in his memory

the happenings on the day of the alleged crime.

Memory grows dim with the passage of time. With

each day, the accused becomes less able to make

out his defense. If, during the delay, the Govern-

ment’s case is already in its hands, the balance of

advantage shifts more in favor of the Government

the more the Government lags. Under our con-

stitutional system such a tactic is not available to

police and prosecutors.

Id. at 813.

The fact that no notice at all was give to JEROLD

MASSLER in the pre-indictment y ~7s “*i+>-ts his case

clearly distinguishable from Unite . states . *“arion, 404

U.S. 307 (1971). While in Marion there was a three year

delay between the commission of the offense and the date

of the indictment, the defendants had knowledge of the

ongoing investigation prior to the handing down of the

indictment. A summary of the relevant chronology in that

case is illuminating. Between March 15, 1965 and

17

February 6, 1967 the defendants operated a business of

Allied Enterprise, Inc. On February 6, 1967, the Federal

Trade Commission entered a cease and desist order against

them. In September and October, 1967, the Washington

Post cartied. a series of articles which mentioned that the

defendants were under investigation by the United States

Attorney. Between the summer of 1968 and January, 1969,

the defendant-appellants delivered their business records

to the United States Attorney. Finally, on April 21, 1970

the indictment was returned.

It is all too obvious that the defendants in the Marion

case were very much aware of the pending investigation.

They were put on actual notice from a variety of sources

that there was a substantial likelihood that they would be

obiiged to explain their business conduct as Allied En-

terprise. Moreover, the subject matter of the case involved

documentary evidence that could meaningfully trigger their

recollections. Such notice to the defendants in 1967 ren-

dered tenuous their claim of forgetfulness in 1970.

JEROLD MASSLER was not the subject of a cease and

desist order, nor of any newspaper articles. He did not

participate in any pre-indictment investigation. There was

unavailable to him any documentary evidence that could

refresh his memory. Rather than be given three years to

remember, as in Marion, JEROLD MASSLER was given

three years to forget.

It is predictable that JEROLD MASSLER would be

incapacitated in 1976 from remembering with any par-

ticularity ‘‘unspecified’’ days in a conspiracy indictment

that pertains to three years before. Moreover,

. . . inavery real sense, the extent to which he was

prejudiced by the government’s delay is evidenced

by the difficulty he encounters in establishing with

particularity the elements of that prejudice.

United States v. Ross, 349 F.2d 210, 215 (D.C. 1965). In a

18

situation such as this one, the inherent common sense

likelihood of a memory lapse after such a delay must serve

as sufficient substantiation for JEROLD MASSLER’S

claim. To demand that he show specifically what he cannot

remember would be to demand the impossible, as the

detendant’s failure of memory, this inability to

reconstruct what he did not remember, virtually

precludes his showing in what respects his defense

might have been more successful if the delay had

been shortened.

Id. at 215.

Finally, it must be pointed out that the petitioner does

not assert that due process demands dismissal of the in-

dictment each time a defendant cannot remember because

of delay. In that here, the touchstone of the due progess

inquiry is the safeguarding of the fact finding process at

trial, the test must consider the nature of the trial itself.

Where a defendant is unable to remember, but six wit-

nesses have confirmed his criminal conduct, the fact

finding process has adequate reliability to uphold the

conviction. However, where petitioner MASSLER was

disabled from remembering as a result of government delay

and the only testimony against him was that of a heroin

user and smuggler who had been given “informal im-

munity.” the reliability of the fact finding process is un-

dermined. and the indictment must be dismissed.

19

POINT Ill

THE CQURT ERRED IN DENYING THE

PETITIONER’S MOTION FOR A HEARING

TO DETERMINE WHETHER THE GOVERN-

MENT’S DELAY WAS A DELIBERATE

TACTICAL. MANEUVER, BECAUSE THE

COURT ERRONEOUSLY ASSUMED THAT A

SHOWING OF SUBSTANTIAL PREJUDICE

AND DELIBERATE TACTICAL DELAY WAS A

PREREQUISITE FOR A DUE PROCESS

VIOLATION WHEN IN FACT DELIBERATE

TACTICAL DELAY ALONE CAN BE SUF-

FICIENT.

Even if this Court should find that MR. MASSLER was

not entitled to a dismissal of the action on the basis of his

inability to remember events that occurred so long ago, the

trial judge should, nevertheless, have ordered a hearing on-

the issue of whether there was deliberate prosecutorial

delay for the purpose of gaining a tactical advantage over

him. It is petitioner’s contention that the Marion test is a

disjunctive test; that in order for a defendant to prevail on a

due process pre-indictment delay claim, he can prove either

substantial prejudice or deliberate government delay in

order to gain a tactical advantage.

Confusion exists as to how the Marion test is to be in-

terpreted.

Some question still remains whether the Supreme

Court’s comment in Marion was intended to

establish a two part conjunctive test for due process

relief from pre-indictment delay or simply a

disjunctive list of alternative theories: (1) govern-

mental misconduct in the form of tactical delay; or

(2) substantial prejudice resulting from the lapse of

time denying the defendant's right to a fair trial.

20

United States v. Barket. 530 F.2d 189 (8th Cir. 1976).

Some courts have intimated that both elements must be

satisfied for a defendant to prevail. United States v.

Reitscher. 467 F.2d 269. 272 (10th Cir. 1972); United

States v. Washington. 150 U.S. App. D.C. 68, 463 F.2d

904, 905 (D.C. Cir. 1975); United States v. Daley, 454 F.2d

505, 508 (ist Cir. 1972). Ordinarily courts recite the two

elements without committing themselves on the issue. It

has been unnecessary to decide the issue as the cases either

involve no prejudice and no tactical delay. or prejudice and

unreasonable delay. United States v. Barket, S30 F.2d 189,

195 (8th Cir. 1976).

Thus

“there remains substantial doubt whether, in a

case in which actual pre-accusation prejudice was

overwhelming. the governments purposeful delay

would have to be shown: or, alternatively, where

the governments misconduct was blatant, whether

the defendant would still bear the burden of

showing actual prejudice.”

United States v. Avalas, 541 F.2d 1100 fn. 9 (Sth Cir.

1976).

The Supreme Court has never specifically endorsed the

notion that the satisfaction of both of these requirements is

a necessary prerequisite to a finding of a due process

violation. In Marion the Court merely stated that the

government conceded that if the defendants were able to

satisfy both elements, then the defendants would have met

their burdens. In Lovasco, the Government renewed that

concession and expanded upon it by stating that:

A due process violation might also be made out

upon a showing of prosecutorial delay incurred in

reckless disregard of circumstances, known to the

prosecutor, suggesting that there existed an ap-

preciable risk that delay would impair the ability to

mount an effective defense.

21

4S U.S.L.W. 4627, fn. 19 June 9, 1977). In Lovasco, as in

Marion, the Court did not squarely hold on the issue.

However, Justice Marshall’s statement in Lovasco,

implies that either alone could be sufficient. Justice

Marshall states in the majority opinion:

Thus Marion makes clear that proof of prejudice is

generally a necessary but not sufficient element of

a due process claim, and that the due process

inquiry must consider the reasons for the delay as

well as the prejudice to the accused.

(emphasis added) Id. at 4629. Had the Court endorsed the

conjunctive reading of the Marion standard the statement

would have read as follows: Thus Marion makes clear that

proof of prejudice is always a necessary but generally not

sufficient element of due process, and that the due process

inquiry must consider whether there was deliberate delay to

gain a tactical advantage as well as prejudice. Justice

Marshall’s choice of words reveals the implicit en-

dorsement of the disjunctive reading. This case provides

the Court with an opportunity to make that endorsement

explicit, an opportunity that the Court should utilize:

We may some day be presented with a situation in

which the conduct of law enforcement agents is so

outrageous that due process principles would

absolutely bar the government from invoking

judicial processes to obtain a conviction.

United States v. Russell, 411 U.S. 423, 432 (1973). When

the government deliberately delays in order to gain a

tactical advantage, when the government attempts to

ensnare the defendant and impede his ability to defend

himself, due process must bar the government from in-

voking the judicial process without requiring the defendant

to prove that the trap worked.

On the basis of the three and one half years pre-

indictment delay, coupled with the facts elicited at trial

that support the real possibility of tactical maneuvering,

the Court should remand JEROLD MASSLER’S case for

an evidentiary hearing.

CONCLUSION

For the foregoing reason, the writ should issue.

Dated: June 20, 1977

Respectfully submitted,

SIEGEL & GRABER, ESQS.

Attorneys for. Petitioner

Jerold Massler

By

HERMAN I. GRABER, ESQ.

la

Appendix A—Judgment of the Fifth Circuit

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 76-2477

D.C. Docket No. 75-181-Cr-T-H

UNITED STATES OF AMERICA,

Plaintiff-A ppellee.

versus

PAUL RICE, PEDRO ALVAREZ, JOHN LESLIE

WELLS, JR., and JEROLD MARTIN MASSLER,

Defendants-Appellants.

Appeals from the United States District Court

for the Middle District of Florida

Before JONES, COLEMAN and TJOFLAT, Circuit

Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Middle

District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed.

April 20, 1977

Issued as Mandate:

2a

Appendix B—Opinion of the Fifth Circuit

UNITED STATES of America,

Plaintiff-Appellee,

Vv.

Paul RICE, Pedro Alvarez, John Leslie

Wells, Jr., and Jerold Massler,

Defendants-Appellants.

No. 76-2477.

United States Court of Appeals,

Fifth Circuit.

April 20, 1977.

Defendants were convicted in the District Court for the

Middle District of Florida, Wm. Terrell Hodges, J., of

conspiracy to import, possess, and distribute marijuana

and they appealed. The Court of Appeals, Coleman,

Circuit Judge, held that defendants had not been denied

due process by virtue of three and one-half-year delay

between close of the alleged activities and the return of the

indictment; that defendants’ allegations as to what each of

their codefendants would testify to if defendants were given

separate trials were insufficient to entitle defendants to

severances; that defendants were properly precluded from

cross-examining Government’s main witness, who was in

protective custody, as to where he lived and worked; that

statement written by witness prior to trial concerning

events as to which he testified but omitting the name of one

of the four defendants was properly admitted at the behest

of the defendant who was not named therein; and that trial

court did not err in refusing jury’s request for transmittal to

them of over 2,000 pages of transcript.

Affirmed.

3a

1. Constitutional Law §265

One seeking to establish impermissible preindictment

delay under the due process clause must show substantial

actual prejudice resulting from the delay or that the delay

was an intentional measure designed to gain a tactical

advantage for the prosecution. U.S.C.A. Const. Amend.

14.

2. Criminal Law §573

Sixth Amendment right to speedy trial arises only when a

defendant becomes an accused, either through arrest,

indictment, or information. U.S.C.A. Const. Amend. 6.

3. Indictment and Information §7

Speculative assertions, such as allegations of lost wit-

nesses, ensuing indigency, failure of memory, and general

inability to defend oneself due to the delay fall short of

showing impermissible preindictment delay.

U.S.C.A.Const. Amend. 14.

4. Indictment and Information §7

Allegations that three and one-half-year delay between

close of alleged criminal activities and return of indictment

resulted in possible witnesses being either unremembered

or unavailable and that the delay was intended to give the

Government a tactical advantage over the defendants by

enabling the Government to procure evidence of sub-

sequent criminal acts of some defendants to bolster the

prosecution of all were insufficient to show un-

constitutional preindictment delay especially where no such

later acquired evidence was offered against any defendant.

U.S.C.A.Const. Amend.’ 14.

5. Criminal Law §622(3)

In order to obtain severance because of desire to call a

codefendant as a witness on behalf of the defendant, the

defendant must show bona fide need for the testimony, the

4a

substance of the DeSired testimony, its exculpatory nature

and effect, and that the designated codefendant will in fact

testify at a separate trial.

6. Criminal Law §622(3)

When presented with motion for severance due to desire

of defendant to call a codefendant at a separate trial, trial

court must examine the significance of the alleged ex-

culpatory testimony in relation to defendant’s theory of

defense, assess the extent to which the defendant might be

prejudiced by the absence of the testimony, pay close at-

tention to judicial administration and economy, and give

weight to the timeliness of the motion.

7. Criminal Law §622(3)

Motion in which defendant asserted that, if severance

were granted, codefendant would testify on defendant’s

behalf if called at a separate trial where he would not need

to exercise a Fifth Amendment privilege and that

codefendant would give evidence which would completely

exonerate defendant did not state what the codefendant

would testify to and was insufficient to entitle defendant to

severance. Fed.Rules Crim.Proc. rule 14, 18 U.S.C.A.;

U.S.C.A.Const. Amend. 5.

8. Criminal Law §622(2)

Defendant who asserted that he planned to call

codefendant as his first witness if he were granted a

severance, that he would prove that the codefendant was in

jail at a particular time, which would contradict testimony

of the prosecution’s main witness, and that the codefen-

dant would be willing to testify if he could no longer be

prosecuted for the events alleged in the indictment was not

entitled to severance as there was only a showing that the

codefendant would testify on his own terms and there was

no showing of unavailability of jail records to show that the

codefendant had been in jail as alleged by defendant.

9. Criminal Law §622(2)

Defendant who stated that he wished to call codefendant

as a witness and that the codefendant would testify that he

was not acquainted with defendant any time during the

conspiracy was not entitled to severance where the

Government never claizned that the two codefendants had

any contact.

10. Criminal Law §622(2)

Defendant who asserted that he desired to call

codefendant to testify as to factual setting of two

photographs which showed defendant and codefendant in

an airplane and to testify that the pictures were taken at the

time of a legitimate charter flight and not, as the

prosecution contended, at the time of a flight bringing

marijuana into the country was not entitled to severance.

11. Witnesses §268(1)

Although, generally, there is a right to inquire into a

witness’ background and environment in order to place the

witness in his proper setting, there are limitations on that

right.

12. Witnesses §268(1)

Trial court did not abuse its discretion in precluding

defendants from cross-examining government witness, who

was being held in protective custody, as to where the

witness was working or living.

13. Criminal Law §369.2(1), 374

In order for evidence of other crimes to be admitted, the

proof of the prior similar offense must be plain, clear and

convincing, the offenses must not be too remote in time to

the alleged crime, the element of the prior crime for which

there is a recognized exception to the general rule, such as

intent, must be a material issue in the case, and there must

be substantial need for the probative value of the evidence.

Federal Rules of Evidence, rule 404(b), 28 U.S.C.A.

14. Criminal Law §369. 1

It was improper to admit testimony by Government's

main witness that he had first become acquainted with one

defendant at a time prior to the events giving rise to the

indictment and that he had become acquainted with the

defendant because they had both been involved in trading

guns and dope as any need for evidence to establish the

manner in which the witness and defendant had met could

have been accomplished without mentioning the other

crimes. Federal Rules of Evidence, rule 404(b), 28

U.S.C.A.

15. Criminal Law §1169.11

In view of overwhelming evidence of defendant’s guilt,

trial court’s error in permitting witness to testify that he

had first become acquainted with one defendant prior to

the time of the transactions which gave rise to the in-

dictment and that he had become acquainted with

defendant because they were both engaged in trading guns

and dope was harmless. Federal Rules of Evidence, rule

404(b), 28 U.S.C.A.

16. Witnesses §388(7)

Before handwritten summary prepared by witness

concerning the events about which he was to testify was

admissible, it was required to be shown that the statement

was a prior inconsistent’ statement of the witness, the

witness was required to be afforded an opportunity to

explain or deny the statement, and the prosecution was

required to be afforded an opportunity to interrogate the

witness concerning the statement. Federal Rules of

Evidence, rule 613(b), 28 U.S.C.A.

17. Witnesses §388(7)

Summary, handwritten by witness, of the events about

which he had testified at trial which omitted any mention of

one of four defendants was properly admitted at the behest

7a

of that defendant after both the Government and the

defendants were given the opportunity to confront the

witness with the statement and to interrogate him con-

cerning it. Federal Rules of Evidence, rule 613(b), 28

U.S.C.A.

18. Criminal Law §785(12)

Instruction which told the jury that the testimony of a

witness could be discredited by showing that he previously

made inconsistent statements and that evidence of earlier

contradictory statements was admissible only to impeach

the credibility of the witness and not to establish the truth

of those statements was a sufficient limiting instruction

with respect to introduction of a summary, written by

Government's main witness prior to trial, of the events with

respect to which he testified. Federal Rules of Evidence,

rule 613(b), 28 U.S.C.A.

19. Criminal Law §622(2)

Three codefenda.its were not entitled to severance when

the fourth defendant introduced at trial a summary,

written by prosecution’s main witness prior to trial, of the

events as to which he testified at trial, which summary

mentioned the three codefendants but not the defendant

who offered the statement. Federal Rules of Evidence, rule

613(b), 28 U.S.C.A.

20. Criminal Law §666-1/2

Trial court did not err in refusing to compel govern-

ment’s main witness to answer questions asked by defense

counsel during an interview where the Government had

made the witness available for an interview and had told

him that he could talk with defense counsel; defendants’

right to access to prospective witness exists coequally with

the witness’ right to refuse to say anything.

21. Criminal Law §858(3)

Discretion of the trial court in ruling on jury request for

transcripts of testimony is broad.

22. Criminal Law §858(3)

Trial court did not err in refusing jury’s request for

transmittal to them of over 2,000 pages of transcript.

Appeals from the United States District Court for the

Middle District of Florida.

Before, JONES, COLEMAN and TJOFLAT, Circuit

Judges.

COLEMAN, Circuit Judge.

Along with others, Alvarez, Wells, Rice and Massler

were charged in a one count indictment with conspiracy to

import, possess and distribute marijuana, 21 U.S.C.

§§841(a)(1), 952(a). A twelve day trial resulted in a guilty

verdict. Alvarez received a three year sentence, Weils one

year, while Rice and Massler were sentenced to two and

one-half years.

We affirm.

I. THE FACTS

The government’s case depended, in the main, on the

testimony of William Kilgore, an unindicted co-

conspirator, in protective custody, who appeared under a

grant of “informal” immunity.

Kilgore’s Testimony

Kilgore first met Alvarez in 1968 or 1969. In February,

1972, Alvarez hired Kilgore to guard a cache of marijuana

located at “Stash House No. 1” in Odessa, Florida. For

three weeks Kilgore was paid to guard the contraband, to

weigh it for customers, and collect for it. Alvarez told

Kilgore that the marijuana, stored in bales and burlap

sacks, came from Colombia, South America.

Later on in February Alvarez took Kilgore to Mike

Sarga’s ‘Stash House No. 2’’, in the same vicinity, where

he did similar work.

9a

In March, Kilgore and Alvarez flew to New York. After

arrival Kilgore went with Allen Jacobs to Woodstock to

guard a stash house located there. Sarga and Massler soon

drove up in a van with a boat on top. The boat contained

350 pounds of marijuana. The next day Alvarez directed

Kilgore to let Jacobs and Massler have 100 pounds each, on

consignment. Later, Alvarez directed Sarga and Kilgore to

transfer the remainder of the marijuana to Massler in

Manhattan. Kilgore stayed in New York about a week and

collected $120,000 from Jacobs and Massler, owed Alvarez

for the pot. Kilgore than returned to Tampa and turned the

money over to Alvarez.

Around the first of April, Alvarez contacted Kilgore

again and asked him if he would like to go to Columbia and

guard a return load of marijuana. Kilgore was also to pay

the Colombian connection, Pedro and Alberto Davilla. He

was to fly down on a DC-3, piloted by Wells and Rice and

was to be paid $5000 for his part in the trip. Alvarez drove

Kilgore to the Hawaiian Village Motel where Kilgore met

Rice and Wells. Rice there stated that Alvarez had paid

$10,000 to rent the plane for a prior trip and had then

bought the plane for $10,000. Rice and Wells related to

Kilgore an account of a prior similar trip to Colombia on

which Alvarez had accompanied them. Alvarez had also

told Kilgore of the prior .:ip, saying that the marijuana at

“Stash House No. 1” had been obtained at that time.

The next day Kilgore, Rice and Wells flew to a location

south of Bogata, Colombia. Once there, the defendants

gave the Colombians the money and certain other items

and loaded 3500 pounds of marijuana on the plane.

On return to the United States, they landed first at

Lakeland, then returned to Zephyrhills. Once they landed,

Alvarez and two others arrived in a Winnebago, into which

they loaded the marijuana. From there, the party went to a

house in Riverview and distributed part of the marijuana.

10a

Subsequently, Alvarez again contacted Kilgore and

asked him if he'd like to make a second trip to Colombia. A

couple of weeks later, Alvarez approached Kilgore about

making another trip to New York to collect money from

Massler. Kilgore made this trip around the end of April,

1972, but returned to Tampa without the money. Massler

followed a few days later and paid Alvarez in excess of

$100,000.

Kilgore’s testimony was supported by other items of

evidence adduced by the government. Much of the con-

spiratorial activities had been recorded on film. One of the

defendants had taken several hundred photos of the

operation. Negatives of these photographs were volun-

teered to the law enforcement officers by the manager of

the photography department at J.C. Penney’s, who

discovered the contents by chance.

The manager of the Hawaiian Village Motel

corroborated Kilgore’s account of the stay at that motel,

although his testimony did differ in some aspects.

Lastly, one Porter reluctantly testified that Rice

discussed with him the possibility of using one of Porter's

airplanes for importing marijuana, that Rice leased a

Douglas DC-3, and Wells had signed the agreement as a

witness. He stated that sometime in April, 1972, he sold the

craft to Rice and Wells. Porter once saw Rice and several

other individuals unloading several dark, big, square

parcels from the plane. He also saw a late night operation

in April or May of 1972, in which a DC-3 landed, a vehicle

approached the plane, there was activity around the plane,

and the vehicle left. Additionally, Porter testified that Rice

and Wells made inquiries of him as to how to arrange

additional fuel sources for the DC-3.

This array of evidence, accepted by the jury as being true

beyond a reasonable doubt, reduces the appellants to a

many sided attack on various aspects of the trial.

lla

ll. APPELLATE CONTENTIONS

A. Massler, Alvarez, Wells, and Rice

1. Pre-Indictment Delay

There was a three and one-half year delay between the

close of the alleged criminal activities and the return of the

indictment. It is argued that this unconstitutionally

prejudiced the defense and that by not holding an

evidentiary hearing to determine the cause for the delay the

District Court reversibly erred.

The defendants complained generally that due to the

delay. possible witnesses were either “unremembered or

unavailable’, that the delay severely prejudiced the

defense, and that it was intended to give the government a

tactical advantage over the defendants, that is, to enable

the government to procure evidence of subsequent criminal

acts of some codefendants to bolster the prosecution of all.

No such later acquired evidence was ever offered against

any of the defendants. No list of unavailable witnesses was

tendered, nor was there any recitation of any exculpatory

testimony thus put beyond the reach of the defense.

|1,2] The Supreme Court has held that the applicable

statute of limitations is the primary, but not the sole,

guarantee against the bringing of overly stale criminal

charges; that one seeking to establish impermissible in-

dictment delay under the Due Process Clause must show

substantial actual prejudice resulting from the delay or that

the delay was an intentional measure designed to gain a

tactical advantage for the prosecution. Absent such a

showing no Constitutional violation has been inflicted and

the indictment need not be dismissed. See United States v.

Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468

(1971). The Sixth Amendment right to speedy trial arises

only when a defendant becomes an accused, either

throught arrest, indictment, or information. See United

12a

States v. Marion, supra; United States v. Harrington, 5

Cir. 1976, 543 F.2d 1151; United States v. Davis, 5 Cir.

1973, 487 F.2d 112, 116, cert. den., 1974, 415 U.S. 981, 94

S.Ct. 1573, 39 L.Ed.2d 878; United States v. Broadway, 5

Cir. 1973, 477 F.2d 991, 996.

[3] Speculative assertions, such as allegations of lost

witnesses, ensuing indigency, failure of memory, and

general inability to defend oneself due to the delay, fall

short of the Marion standard, United States v. Butts, 5 Cir.

1975, 524 F.2d 975, 977; United States v. McGough, 5 Cir.

1975, 510 F.2d 598, 604; United States v. Broadway, 5 Cir.

1973, 477 F.2d 991.

[4] An evaluation of this appellate record in the light of

the foregoing considerations shrinks the complaint about

pre-indictment delay to nothing more than a complaint.

There was no showing of actual prejudice. The contention

fell so far short of Marion standards and our own decisions

on the subject that it was without substance. The denial of

an evidentiary hearing on the matter was not erroneous.

2. Severance

Various motions for severance were grounded on an

expressed desire to call one co-defendant or another as a

witness on behalf of the respective movants.

|S, 6] In our previous decisions we have clearly

delineated what must be shown to warrant granting a

motion to sever under the circumstances present here. The

movant must demonstrate:

(1) bona fide need for the testimony;

(2) the substance of the desired testimony;

(3) its exculpatory nature and effect; and

(4) that the designated co-defendant will in fact

testify at a separate trial.

United States v. Morrow, 5 Cir. 1976, 537 F.2d 120, 135;

United States v. Diez, 5 Cir. 1975, 515 F.2d 892, 903, cert.

—

13a

den. 423 U.S. 1052, 96 S.Ct. 780, 46 L.Ed.2d 641 (1976);

United States v. Burke, 5 Cir. 1974, 495 F.2d 1226, 1234;

United States v. Martinez, 5 Cir. 1973, 486 F.2d 15, 22;

Byrd v. Wainwright, 5 Cir. 1970, 428 F.2d 1017, 1019-

1022.

The trial court should

(1) examine the significance of the alleged ex-

culpatory testimony in relation to the defendants’

theory of defense;

(2) assess the extent to which the defendant might

be prejudiced by the absence of the testimony;

(3) pay close attention to judicial administration

and economy; and

(4) give weight to the timeliness of the motion.

Id.

|7| Massler moved pretrial for a severance predicated on

Rule 14, Fed.R. Crim.P.! He asserted that while co-

defendant Alvarez would not testify in his behalf at a joint

trial he would do so if there was a severance. The motion

stated:

In the instant case, Pedro Alvarez has stated,

and he will so depose if requested, that if called at

a separate trial where he will not need to exercise a

1. Rule 14 provides:

Relief from Prejudicial Joinder

If it appears that a defendant or the government is prejudiced by a

joinder of offenses or of defendants in an indictment or information or

by such joinder for trial together, the court may order an election or

separate trials of counts, grant a severance of defendants or provide

whatever other relief justice requires. In ruling on a motion by a

defendant for severance the court may order the attorney for the

government to deliver to the court for inspection in camera any

statements or confessions made by the defendants which the

government intends to introduce in evidence at trial.

14a

Fifth Amendment privilege, he will and can give

evidence that will exonerate Jerrold Massler

completely. If tried jointly, Mr. Alvarez will, of

course, not testify.

This motion did not state what Alvarez would, in fact,

testify to. Whatever the testimony, it was contingent upon

Alvarez not being required to testify to anything which

might tend to incriminate him.

The denial of the motion in this form was not error.

When trial day came Massler renewed his motion. Other

defendants decided that they would attempt to board the

same train. Alvarez indicated that he wanted to call

Massler as a witness. Wells said that he desired to call one

or more of the co-defendants as his witnesses.

|8] Alvarez told the Court that he planned to call Massler

as his first witness. He stated that he would prove by

Massler that Massler was in jail in the latter part of April,

1972, contradicting the testimony of Kilgore that he met

Massler in Tampa in late April. If Massler was in jail in

late April there should have been records to prove it

without the necessity of calling Massler to the stand.

Massler’s attorney stated that his client would be willing to

testify if ‘“‘he could no longer be prosecuted for the events

contained within this indictment’’, which amounted to

nothing more than a suggestion that Masster would testify

on his own terms, a grant of immunity from prosecution.

The denial of Alvarez’s motion was entirely in order.

Later in the trial, Massler’s attorney told the Court that

he wanted to call Alvarez as a witness. He stated that

Alvarez would testify that he never received $200,000 from

Massler as Kilgore testified, ‘“‘and that he would exculpate

my client in terms of this particular conspiracy”. It was

stated that Alvarez would not testify as a defendant but he

would testify in a separate proceeding where his guilt or

innocence was not on the line.

15a

|9] During the same conference, Rice’s attorney stated

that he wanted to call Massler as a witness. He stated that

Massler would testify that ‘he was not acquainted with my

client during the period of time alleged in the conspiracy’’.

Here it is to bc noted that the government never claimed

that Massler had any contact with Rice. Rice dealt with

Alvarez.

110] Wells’ attorney informed the Court that he desired

to call Alvarez to testify as to the factual setting for two

photographs depicting Wells and Alvarez in an airplane.

This testimony would have been that the picture depicted a

legitimate charter flight on which Alvarez hired Wells to fly

him to the Bahamas. Wells’ attorney stated that “that

would be all I would ask Mr. Alvarez concerning his

relationship with Mr. Wells. I think it is highly probative.”

It was stated that Alvarez would testify in a proceeding

where his guilt or innocence was not being determined.

Some of the motions were not made until the eleventh

day of a twelve day trial.

For lack of any reasonable certainty that the proposed

witnesses would, in fact, testify; for lack of relevance; for

lack of the requisite exculpatory showing; and for lack of

timeliness, we hold that the defendants were not prejudiced

by the denial of the severally requested severances. The

denials did not amount to reversible error.

3. Cross Examination

The appellants complain of being prohibited ‘from

cross-examining Kilgore about his protected custody over a

five month period and his activities during that time’. The

Court ruled:

|N]jo one shall seek to elicit from the witness that

he is in protective custody as a result of any specific

fear of harm at the hands of the defendant Alvarez

16a

|T}he Court will direct counsel not to make

inquiry as to the precise nature of the witness

present employment.

The Court specifically informed counsel, however, that

they could inquire as to the fact that Kilgore was in

protective custody, whether he was receiving payments

from the government, whether he was gainfully employed,

and what income he had. Counsel for Massler replied that

he had no desire to find out where Kilgore was working or

living.

|11] Although generally there is a right to inquire into a

witness’s background and environment in order to place

the witness in his proper setting, Alford v. United States,

282 U.S. 687, 692, 51 S.Ct. 218, 75 L.Ed. 624 (1931), there

are limitations. As Alford recognizes,

There is a duty to protect him from questions

which go beyond the bounds of proper cross-

examination merely to harass, annoy or humiliate

him.

Id. 282 U.S. at 694, 51 S.Ct. at 220.

In Smith v. Illinois, 390 U.S. 129, 133-134, 88 S.Ct. 748,

751, 19 L.Ed.2d 956 (1968), Mr. Justice White, con-

curring, stated that in addition to those exceptions noted in

Alford, he “would place in the same category those

inquiries which tend to endanger the personal safety of the

witness”. We have followed this exception. See United

States v. Alston, 5 Cir. 1972, 460 F.2d 48, and United

States v. McKinley, 5 Cir. 1974, 493 F.2d 547.

While maintaining a due regard for the constitutional

right of confrontation, “the scope and extent of cross-

examination is generally declared to be within the sound

discretion of the trial court” and will not be interfered with

absent an abuse of that discretion. United States v. Brown,

17a

S Cir. 1977, 546 F.2d 166, 169; Grant v. United States. 5

Cir. 1966, 368 F.2d 658, 661. Of course, when it is the

“star” witness who is being cross-examined, or when he

was “‘an accomplice or participant in the crime for which

the defendant is being prosecuted, the importance of cross-

examination is necessarily magnified”. United States v.

Brown, supra, 546 F.2d at 170; Beaudine v. United States.

S Cir. 1966, 368 F.2d 417, 424.

{12} At an in camera conference the government in-

formed the Court that any inquiry into the nature of

Kilgore’s work would readily reveal where he was working

and would endanger him. We have no transcript of what

occurred at the hearing but we have no difficulty in per-

ceiving, viewing the record as a whole, that there was a

reasonable necessity for not revealing where kilgore lived

and worked when the case came to trial. That he was in

protective custody was revealed.

The defendants also complain of being prohibited from

asking Kilgore the circumstances surrounding his

discharge from the military, certain aspects concerning an

arrest for possession of heroin in 1973, and questions

concerning trips by him to New York and to Miami.

We have looked carefully at the numerous evidentiary

exceptions raised by appellants but the totality of the

matter is that Kilgore was subjected for several days to

rigorous cross examination, which developed many facts

which might have discredited his testimony on direct. We

conclude that there was no transgression of Sixth

Amendment rights. See, in particular, Davis v. Alaska, 415

U.S. 308, 94S.Ct. 1105, 39 L.Ed.2d 347 (1974).

4. Rule 404(b)

Kilgore testified that he knew Alvarez and pointed him

out in court. He said he first met Alvarez in 1968 or 1969.

The government admitted that it knew what the answer

18a

was going to be when it thereafter asked Kilgore the

following question:

“Sir, what association, if any, did you have with

Mr. Alvarez once you all met?”

There was an objection that any relationship prior to the

inception of the conspiracy on January 1, 1972, was

irrelevant and immaterial. Defense counsel pointed out

that Kilgore “says he knows him”. The objection was

overruled on the ground that the jury would be instructed

as to the time period charged in the indictment and that the

relationship prior to that time ‘‘could be relevant with

respect to the state of mind, or behaviour of the subject in

explaining whatever he says explains subsequently of

himself of the defendant’’.

Kilgore then responded, ‘We used to trade guns for

dope and—”’.

The defense then moved for a mistrial.

There was a protracted conference in the absence of the

jury. The government said that the proof was offered to

show that this prior association was what prompted Alvarez

to trust Kilgore with guarding the marijuana and collecting

for it.

The prosecution further proffered that when Kilgore said

“dope”, he was refering to marijuana. The Judge asked

Kilgore what he meant and Kilgore replied “marijuana and

hashish’. After this lengthy discussion, the Court deter-

mined that the statement was admissible under 404(b) of

the Federal Rules of Evidence.

Once the jury returned, Kilgore testified what he meant

by the word “dope”. The Judge instructed the jury that

Kilgore’s statement should be considered only with respect

to Alvarez and the statement should “receive only such

weight as you may think it entitled to receive in relation to

all of the other testimony and evidence” adduced at trial.

19a

Rule 404(b) provides:

Other crimes, wrongs, or acts.

Evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in

order to show that he acted in conformity

therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge. identity, or

absence of mistake or accident.

[13] We have recently analyzed this rule in United States

v. Bloom, S Cir. 1976, 538 F.2d 704. Noting that it coin-

cides with existing case law in this Circuit, Jd. at 708, we

stated that, “evidence of acts extrinsic to the crime charged

is admissible under the itemized exceptions once the trial

court is satisfied that certain threshold prerequisites have

been met”. /d. at 708. These prerequisites are:

(1). Proof of the prior similar offenses must be

“plain, clear and convincing”;

(2). The offenses must not be too remote in time

to the alleged crime;

(3). The element of the prior crime for which

there is a recognized exception to the general rule,

such as intent, must be a material issue in the

instant case:

(4). There must be a substantial need for the

probative value of the evidence provided for by the

prior crimes.

Id. at 708 (emphasis in original).

[14] Without commenting on the first three criteria, we

feel it is clear that the disputed statement fails to pass

criterion number four. There was no need for the evidence

in the form rendered. Kilgore had stated that he had

known Alvarez since 1968 or 1969 and had pointed him out

in court. Any need for evidence to establish the manner in

20a

which Kilgore and Alvarez met could have been ac-

complished without mentioning ‘trading guns’. The

government’s deliberate interjection of this testimony

exhibits lack of the appropriate sensitivity to the defen-

dants’ substantive rights. We expressly disapprove it.

|15] Nevertheless, we are convinced that the error was

harmless beyond a reasonable doubt. The evidence of

defendants’ guilt was abundant; the trial lasted twelve

days; fourteen witnesses were heard. We are persuaded,

therefore, that this one statement in such a massive trial

could not have possibly influenced the jury to reach an

improper verdict.

In United States v. Resnick, 5 Cir. 1974, 488 F.2d 1165,

cert. den., 416 U.S. 991, 94 S.Ct. 2400, 40 L.Ed.2d 769,

the defendant was charged with selling firearms to

nonresidents and failing to keep appropriate firearms

transaction records. An A.T.F. agent testified to certain

unrelated criminal activity, namely that the defendant

dealt in stolen guns and participated in the unlawful

alteration of semi-automatic weapons to fully automatic

ones. Defense counsel moved for a mistrial, which was

denied. The trial court stated that it would instruct the jury

to disregard the tainted testimony. The District Court,

however, did not give the promised curative instructions.

Further, at the post-instruction conference, defendant’s

attorney stated that he had no objections to the charges

given.

In holding that the error was harmless, we said:

“If, when all is said and done, the conviction is

sure that the error did not influence the jury, or

had but very slight effect, the verdict and judgment

should stand... .”

Kotteakos v. United States, 1946, 328 U.S. 750, 764, 66

S.Ct. 1239, 1248, 90 L.Ed. 1557; F.R.Crim.P. 52(a). In the

2la

circumstances of this case, we are convinced that the

substantial rights of Resnick were not affected.

‘(W]e have carefully canvassed the entire record

and transcript, and are convinced that no

prejudice resulted in any wise affecting the verdict

of the jury. The evidence of defendant’s guilt is

strong, clear and convincing beyond question.”

Id. at 1168.

See also United States v. Beasley, 5 Cir. 1977, 545 F.2d

403; United States v. Bloom, supra; United States v.

Barnett, S Cir. 1974, 492 F.2d 790; United States v.

Harbolt, 5 Cir. 1974, 491 F.2d 78; United States v. Roland.

S Cir. 1971, 449 F.2d 1281.

As in Resnick, supra, the District Court herein

specifically asked counsel for Alvarez if he desired an

instruction relating to the disputed statement, stating that

it would be willing to give a limiting instruction if one was

requested. Counsel for Alvarez declined the offer.

In view of the instructions as to the other defendants

given at the time the statement was admitted, it was not

error to deny a mistrial as to them. United States v. Davis,

S Cir. 1977, 546 F.2d 617, 620.

Ill. ALVAREZ, WELLS, AND RICE

1. Massler’s Exhibit No. One

While Kilgore was being cross-examined, the govern-

ment turned over to the defendants a hand-written

statement, prepared by Kilgore at an undetermined date,

which was a summary of the events to which he had

testified. The statement related various aspects of the

conspiratorial operations, Massler’s name did not appear

in the account but the names of the other defendants were

included.

Alvarez had the exhibit marked for identfication and

cross-examined Kilgore about it, as did Massler’s attorney.

22a

Several days later, Massler informed the Court that he

intended to offer Kilgore’s written statement into evidence

as exculpating Massler by failure to mention his name. The

Court reserved its ruling. After several discussions about

the admissibility of the exhibit, the government withdrew

its objections and the statement was admitted, albeit over

the objections of the remaining defendants.

Three questions were raised by these defendants with

regard to the admission of this evidence:

(A) Whether. in fact, it was admissible;

(B) Whether the Court erred in not giving in-

structions to the jury as to its use, limitations, and

significance; and

(C) Whether the Court erred in denying Alvarez’s,

Wells’, and Rice’s motions for severance after the

document was admitted.

In admitting “‘Massler’s Exhibit No. One’, the Court

stated that it was allowing it in under 613(b) Fed.R.Evid.

because of its inconsistency with portions of Kilgore s

testimony, because Kilgore had been cross-examined at

length concerning the exhibit, and because the government

objections to its introductions had been withdrawn.

Rule 613(b) provides:

Extrinsic evidence of a prior inconsistent

statement by a witness is not admissible unless the

witness is afforded an opportunity to explain or

deny the same and the opposite party is afforded

an opportunity to interrogate him thereon, or the

interests of justice otherwise require. This

provision does not apply to admissions of a party-

opponent as defined in rule 801(d)(2).

116, 17] This rule establishes three criteria which must be

met before the statement is admissible:

(1) It must be a prior inconsistent statement of the

witness:

23a

(2) The witness must be afforded an opportunity to

explain or deny the statement; 2-4

(3) The opposing party must be afforded an op-

portunity to interrogate the witness concerning the

statement.

All three elements are present here.

[18] Defendants complain that no limiting instruction

was given and, that under our previous decisions, this was

error. See United States v: Sisto, 5 Cir. 1976, 534 F.2d 616:

United States v. Garcia, 5 Cir. 1976, 530 F.2d 650; Slade v.

United States, 5 Cir. 1959, 267 F.2d 834.

The fact is that a limiting instruction was given. The

Court told the jury:

The testimony of a witness may be discredited or

impeached by showing that he previously made

statements which are inconsistent with his present

testimony. The earlier contradictory statements are

admissible only to impeach the credibility of the

witness and not to establish the truth of these

statements. (Emphasis added.)

The Court then instructed the jury on the effect of im-

peachment through such statements.

[19] Denying the severance requested by the other

defendants was not error. United States v. Maddox, § Cir.

1974, 492 F.2d 104, 108, cert. den. 419 U.S. 851, 95 S.Ct.

92, 42 L.E. 2d 82 (1974); United States v. Johnson, § Cir.

1973, 478 F.2d 1129, 1131, n.3; United States v. Harris, 5

Cir. 1972, 458 F.2d 670, 673, cert. den. 409 U.S. 888, 93

S.Ct. 195, 34 L.Ed.2d 145 (1972); United States v. Levrie.

~ Cir. 1971, 445 F.2d 429, 431: James v. United States, 5

Cir. 1969, 416 F.2d 467, 475.

2. Witness Interview

[20] The defendants urge that the District Court erred by

refusing to ccmpel.Kilgore to submit to an interview by

24a

defense counsel. As the result of a motion by the defen-

dants, the government made Kilgore available to the

defendants for an interview. Kilgore, however, refused to

answer any questions about the case. Both before and

during trial, the District Court interviewed Kilgore con-

cerning his refusal to talk with defense counsel. There is no

indication that the government was responsible for

Kilgore’s attitude. To the contrary, Kilgore told the Court

that the government had told him that he could talk to

defense counsel and that the matter was strictly up to him.

All that a defendant is entitled to is access to a prospective

witness. This right, however, exists co-equally with the

witnesses’ right to refuse to say anything. United States v.

Dryden, 5 Cir. 1970, 423 F.2d 1175, 1177, cert. den. 398

U.S. 950, 90 S.Ct. 1869, 26 L.Ed.2d 290 (1970). “A

government witness who does not wish to speak to or be

interviewed by the defense prior to trial may not be

required to do so.’’ United States v. Benson, 5 Cir. 1974,

495 F.2d 475, 479.

IV. MASSLER

Inquiry by Jury

After one hour of deliberation, the jury sent the Court a

written message requesting “all transcripts now available

in written form’. The Court discussed how it planned to

handle the request and there was no objection. The jurors

were called back and the Court advised them:

Now if you do have, or if you should have during

your deliberation some particular or narrow

question, so-to-speak with respect to an item, or

items of testimony you, of course, may request it in

a written message. . . and I will give consideration

to that. . . . But, in all events, a broad request

such as you have made here for all available

transcripts cannot be granted by me under

prevailing policy and rules, and I trust you will

understand that.

25a

No objections were made at this time either.

[21] The discretion of the trial judge in

requests of this nature is broad, oe pm ube

the Canal Zone v. Scott, 5 Cir. 1974, 502 F.2d 566: United

States v. Braxton, 5 Cir. 1969, 417 F.2d 878: Pinckney v

United States, 5 Cir. 1965, 352 F.2d 69. Pac

In United States v. Morrow, 5 Cir. 197

148, we held that the trial court did not paar a rt

in denying the jury’s request for over 300 pages of tran-

— We stated: “The possibility of undue emphasis by

the jury on a small part of the testimony given in the six

week trial of this case amply justified the district court's

denial of the jury request.’’ Jd. at 148.

[22] The jury’s request herein could conceivably have

meant the transmittal to them of over 2000 pages of

transcript. There was no abuse in denying that request.

V. OTHER ASSERTED ERRORS

In addition to the Points hereinabove discussed, the

appellants claim errors as to alleged Bruton rights ‘that

they were prosecuted for a multiple conspiracy, that they

were Improperly denied an opportunity to take the

deposition of two Colombian nationals in Colombia. that

they were erroneously denied an opportunity to attack the

reliability of certain photographic evidence, that the

evidence was insufficient to support Rice’s conviction, that

the trial judge displayed improper irritation with the

witness Porter, and that the jury was not fully instructed as

to the testimony of accomplices. They also complain of the

differences in the sentences i

wd imposed on the several

A searching evaluation of these contenti i

t tentions reveals thei

po of merit. We see no be:-.."t to be had by edianiiie

one long opinion with an extended discussion of

26a

CONCLUSION

The record in this appeal reveals that the appellants were

bereft of a defense on the facts. Accordingly, defense

counsel retreated to the only hope left—an able, ingenious.

persistent attack on trial procedures. They are to be

complimented for their efforts, but the convictions must

stand unreversed.

AFFIRMED.

27a

Appendix. C—Pre-Trial Decision U.S. District Court

Middle District of Florida

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION a

UNITED STATES OF AMERICA

v.

PEDRO ALVAREZ, et al.

No. 75-181-Cr-T-H

ORDER

Defendants Rice and Massler have moved to dismiss the

indictment on two grounds: (1) the delay of approximately

three and one-half years between the offense alleged and

the return of the indictment violates their Fifth Amend-

ment right to due process of law; and (2) the attorney who

presented evidence to the Grand Jury was not properly

empowered to conduct Grand Jury proceedings.

Where, as here, the delay occurs prior to the time that

the Defendant is indicted, the statute of limitations is the

primary guarantee against the prosecution of overly stale

criminal charges (United States v. Marion,-404 U.S. 307,

92 S.Ct. 455 (1971); United States v. Butts, 524 F.2d 975,

977 (Sth Cir. 1975)); and further protection of Defendant’s

rights comes from the Due Process clause of the Fifth

Amendment, not the Speedy Trial Guarantee of the Sixth

Amendment. (United States v. Marion, supra; United

States v. McGough, 510 F.2d 598, 604 (Sth Cir. 1975).

With respect to the showing required to bar a prosecution

on due process grounds because of delay, the test in this

Circuit is both stringent and clear: a defendant must show

(1) that he suffered ‘‘actual prejudice and not merely ‘the

real possibility of prejudice inherent in any extended

delay’ " (United States v. McGough, supra, at 604; see also

United States vy. Butts, supra, at.977), as well as (2) “that

the delay was an intentional measure to gain a tactical

advantage.’’ (United States v. Butts, supra, at 977).

Since the indictment was returned within the applicable

limitations period (see 18 U.S.C. §3282), Defendants are

reduced to the due process claim. In order to meet the first

requirement, Defendant Rice cites seizure of records by the

Government and that delay has ‘‘deprived him of his ability

to produce alibi witnesses or otherwise adequately defend

himself,’’ while Defendant Massler adds fading memory.

Defendant Rice’s first claim is covered by Brady v.

Maryland, 373 U.S. 83 (1963), and thus unavailing in this

context. With respect to the other claims, “a general

allegation of loss of witnesses and failure of memories is

insufficient to establish prejudice.”” (United States v.

McGough, 510 F.2d 598, 604 (Sth Cir. 1975), quoting

United States v. Zane, 489 F.2d 269, 270 (Sth Cir. 1973)).

Moreover, Defendants’ conclusion that the delay must have

been caused by a desire to gain a tactical advantage, drawn

from the fact of the delay (and certain events) is insufficient

to establish that “the delay was an intentional measure to

gain a tactical advantage.’ This case is controlled by

United States v. Marion, 404 U.S. 307, 92 S.Ct. 455,

wherein the Supreme Court found no due process violation

in a 38 month delay, and United States v. McGough, 510

F.2d 598 (Sth Cir. 1975), wherein the Fifth Circuit rejected

a due process claim founded upon a more concrete showing

of actual prejudice than is made here. Accordingly, the

motion is DENIED.