# Petition — Massler v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 954

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2063%3A1. Public record. Not legal advice.