Petition — Santana v. United States

Supreme Court, U.

{ FILED.

FER 6 1978

IN THE

SUPREME COURT OF THE UNITED (SPARES o00x, sx. cucrk

October Term, 1977

No @@"1155

UNITED STATES OF AMERICA

v.

DoMINGA SANTANA, Petitioner

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

Gerald A. Stein

NEEDLEMAN, NEEDLEMAN, TABB

& EISMAN, LTp.

Attorneys for Petitioner

600 One East Penn Square Bldg.

Philadelphia, Pa. 19107

THE LEGAL INTELLIGENCER, 66 NORTH JUNIPER Si REET, PHILA, PA. 19107 (215) 561-4050

TABLE OF CONTENTS

Page

TY 6 cn bcc py bnwakeeelad nen cds catensens 1

ED G4 nhAn 6 oak 65 64b605oenebesnnesodeanas 1

I io ncs cee ceddndcedentdeesenea 2

Constitutional Provision Involved ................. 2

Statutory Provisions Involved ..................0- 3

Or is coi cteudesceeebcndcncevecs 4

Peeneeme Gor Gomis Wee 2... cc cccccccccccccccces 7

EL svt bot heeteehudds beebhecekeneewnne ees 19

Appendix

Meabewamt Theceet Mmtstes .. 2. ccc ccsccccccceses A-1

EY hd 4.55.9: 04005 06a n06 bse tin kaneene A-4

TABLE OF CITATIONS

Federal Cases:

Barnes v. United States, 365 F.2d 509 (D.C. Cir.

SE 4406 bbesntsdeanee seek enwend bones ey 17, 18

Bird v. United States, 187 U.S. 118, 23 S.Ct. 42, 47

- fe errr rrr ry terry Tro 19

Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620,

20 L.Ed. 2d 476 (1968) ..........-es eee eees 12, 13

California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26

ee EE ig éevidesenansnacaauwanes 12

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

* f ff, Fe eerrrrerrrrererr ree 14,15 .

Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229,

ee Ce ee 66 o.54.0csccacunevancexs 14

TABLE OF CITATIONS—(Continued)

Federal Cases: Page

Freeman v. United States, 322 F.2d 426 (D.C. Cir.

DE san dd0 cecnwddeewdeekeeaseveeeds sen 17

Gray v. United States, 407 F.2d 830 (5th Cir. 1969).. 13

Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726,

F* & | fe | errr TT Tree 14

Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213,

ee Es ED 64 6 ok betnyeuscess sass 16, 17

Mogavero v. United States. 85 S.Ct. 647, 379 U.S. 960,

i ad 14

Nelson v. O’Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.

Re, Pe Torre reer ee Tree 12

Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065,

7 % lo 4: rere errr rrr. 13

Robinson v. United States, 366 F.2d 575 (10th Cir.

1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 717,

Pe eh Se ee CED 006 kun ndcecncsonesdaes 9

United States v. Borelli, 336 F.2d 376 (2nd Cir. 1964),

cert. denied, Cinquegrano v. United States, 855

S.Ct. 647, 379 U.S. 960, 13 L.Ed. 2d 555 ........ 14

United States v. Brown, 451 F.2d 1231 (5th Cir.

PE + scdueduduendeataenscdesteukedususee 17, 18

MEE «nice devin dvauuuasunadscaens tend: 9

United States v. Clark, 475 F.2d 240 (2d Cir. 1973).. 18

United States v. Cunningham, 529 F.2d 884 (6th Cir.

NN os ohsGuuudadaedeadiuteedsaeecnuened 9, 10

United States v. Fox, 473 F.2d 131 (D.C. Cir. 1972).. 16

ii

TABLE OF CITATIONS—(Continued)

Federal Cases: Page

United States v. Goodwin, 492 F.2d 1141 (5th Cir.

| Pe rerrrerTT TeTerrrrrTiriyy Tier 8, 9

United States v. Holt, 483 F.2d 77 (5th Cir. 1973)... 13

United States v. Johnstown, 426 F.2d 112 (7th Cir.

iPS a ir ee 10

United States v. Lewis, 423 F.2d 457 (8th Cir. 1970) .9, 12

United States v. McClain, 531 F.2d 431 (5th Cir.

ARAL ALE I TE TED ROTM: 9, 11

United States v. Miranda, 505 F.2d 697 (9th Cir.

ae ee eu uke Seo Wines 10

United States v. Ortiz, 507 F.2d 1224 (6th Cir. 1974). 16

United States v. Pennix, 313 F.2d 524 (4th Cir. 1963). 16

United States v. Perez, 493 F.2d 1339 (10th Cir.

EE S 6 eu¥asdbedarddesvespecpesnpvecetee 10, 13

United States v. Santana, — U.S. —, 96 S.Ct. 2406

(EPP reTrr ree rerrerrriri tte. 4

United States v. Sidman, 470 F.2d 1158 (9th Cir.

PRESS PP OTT TTT TT TUT T IST IT TTT TTL, 12

United States v. Walton, 411 F.2d 283 (9th Cir. 1969). 11

United States v. Wright, 489 F.2d 1181 (D.C. Cir.

es Lk cade 16

Whiting v. United States, 296 F.2d 512 (1st Cir. 1961). 10

Federal Rules and Statutes:

Tile 16 UBL. GERBER SE) 2. cc cccccccscvescccces 4

DE kd cede ee ehenesosesees 3

TABLE OF CITATIONS—(Continued)

Federal Rules and Statutes: Page

Federal Rule of Evidence 602 .................- 3 13

TED coccvcccvcesesesseeusesesssel 3, 4, 14

FEB ccavcvvccscectacess eu eenees enn 14

GRR in cccecvccscesevcevesssuseue eee 11

Miscellaneous Reference:

2 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE, CRIM-

faa GEOG at BED . wn cccccccususbecesseueeneun 8

McCorMIcK ON EVIDENCE, at 21 (1972) ............ 14

iv

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No.

UNITED STATES OF AMERICA

v.

DOMINGA SANTANA, Petitioner

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Dominga Santana, petitioner, by her attorneys, Gerald

A. Stein, Esquire, and Needleman, Needleman, Tabb &

Eisman, Ltd., petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the

Third Circuit in this case.

OPINION BELOW

The judgment order of the Third Circuit Court of Ap-

peals (App. A, infra) is not reported.

JURISDICTION

The Third Circuit Court of Appeals filed a judgment

order on January 6, 1978 (App. A, infra). The jurisdiction

of this Court is invoked pursuant to 28 U.S.C. §1254(1).

1

2

QUESTIONS PRESENTED

I. Whether the trial court erred in denying a defense

motion for mistrial and overruling defense objections

where a government witness testified to an alleged nar-

cotics transaction of which he had no personal knowledge

and with which the petitioner was not charged?

II. Whether the trial court erred in denying petitioner’s

motion for mistrial and overruling defense objections to

testimony of a government witness, a police officer, which

raised an inference that petitioner had been arrested on

numerous prior occasions?

III. Whether the trial court erred in overruling a de-

fense objection to the point for charge on the element of

“intent to deliver”, where the court’s charge failed to in-

struct the jury that in weighing the evidence on petitioner's

drug use, it could consider the police failure to examine

the petitioner's body anywhere except her arms?

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides :

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to have the assistance of counsel for his defense.

3

STATUTORY PROVISIONS INVOLVED

I. Section 841(A) of Title 21, U.S.C. provides as fol-

lows:

§841. Prohibited acts A—Unlawful acts

(a) Except as authorized by this sub-chapter, it shall

be unlawful for any person knowingly or intention-

ally—

(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispense, a

controlled substance; or

(2) to create, distribute, or dispense, or possess with

intent to distribute or dispense, a counterfeit substance.

II. Rule 602 -. the Federal Rules of Evidence provides

as follows:

Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless evidence

is introduced sufficient to support a finding that he

has personal knowledge of the matter. Evidence to

prove personal knowledge may, but need not, consist

of the testimony of the witness himself. This rule is

subject to the provisions of rule 703, relating to opinion

testimony by expert witnesses.

Pub. L. 93-595, §1, Jan. 2, 1975, 88 Stat. 1934.

III. Rule 703 of the Federal Rules of Evidence provides

as follows:

Rule 703. Bases of Opinion Testimony by Experts

The facts or data in the particular case upon which

an expert bases an opinion or inference may be those

perceived by or made known to him at or before the

hearing. If of a type reasonably relied upon by experts

in the particular field in forming opinions or infer-

4

ences upon the subject, the facts or data need not be

admissible in evidence.

Pub. L. 93-595, §1, Jan. 2, 1975, 88 Stat. 1937.

STATEMENT OF THE CASE

The petitioner, Dominga Santana, was arrested in her

home on August 16, 1974, by officers of the Philadelphia

Police Department and subsequently charged with Posses-

sion with Intent to Distribute a Controlled Substance in

violation of Title 21 U.S.C. §841. Petitioner’s motion to

suppress physical evidence was granted by the United

States District Court for the Eastern District of Pennsyi-

vania on November 12, 1974. On March 21, 1975, the judg-

ment of the district court suppressing physical evidence

seized from petitioner, was affirmed by the United States

Court of Appeals for the Third Circuit.

This Court granted the Government's petition for writ

of certiorari, 423 U.S. 890, 46 L.Ed. 2d 121 (10/14/75),

reversed the judgment of the United States Court of Appeals

for the Third Circuit on June 24, 1976, United States v.

Santana, — U.S. —, 96 S.Ct. 2406 (1976), and remanded

the case to this Court for further proceedings in conformity

with its opinion. The petitioner was tried by jury commenc-

ing April 26, 1977. On April 28, 1977, a verdict of guilty was

returned on the charge of Possession with Intent to Dis-

tribute a Narcotic Controlled Substances in violation of

21 U.S.C. §841. Petitioner's Motion for a New Trial and/or

Judgment of Acquittal was denied by the district court on

June 13, 1977. Pursuant to Title 18 U.S.C. §4205(b)(2),

petitioner was sentenced on June 20, 1977, by the Honor-

able Louis C. Bechtle, Judge of the United States District

Court for the Eactern District of Pennsylvania to three

years of special parole following completion of the term of

custody. An appeal was taken to the United States Court

of Appeals for the Third Circuit, which affirmed the judg-

5

ment of the trial court in a judgment order dated January 6,

1978, at No. 77-1904.

The testimony of petitioner’s trial reveals that the

arrest of petitioner followed the completion of an under-

cover narcotics purchase arranged by Philadelphia Police

Officer Michael Gilletti with Patricia McCafferty, allegedly

serving as an unwitting intermediary (N.T. 2-16). Officer

Gilletti testified that he and Sergeant Pruitt marked $110 in

United States currency, money which was subsequently

used to purchase heroin through McCafferty (N.T. 2-17 to

2-19). Gilletti gave the marked currency to McCafferty who

left his automobile and returned shortly thereafter. McCaf-

ferty showed Gilletti a tin foil packet inside his automobile

whereupon Gilletti arrested her (N.T. 2-19 to 2-21). Gilletti

did not see McCafferty with petitioner Santana, hand

money to or receive the tin foil packet from her (N.T. 2-34).

Officer Gilletti testified that subsequent to the arrest, he

informed Sergeant Pruitt that “Mom Santana had the $110”

(N.T. 2-21 to 2-23), a reference to the $110 in marked cur-

rency used to purchase the narcotics from Mrs. McCafferty.

Testimony of government witness, Harold Pruitt, in-

dicates that as a result of his conversation with Officer

Gilletti, Officer Pruitt proceeded to 2311 North Fifth Street

(N.T. 2-28). After observing petitioner Santana standing

in the doorway at that location, Officer Pruitt, accompanied

by Officers Strohm, Davis and Taggert, arrested her and

seized packets of heroin from a bag which was dropped by

her (N.T. 2-28 - 2-30). Officer Pruitt further testified that

$70 of the currency marked by him and Officer Gilletti were

recovered from Mrs. Santana’s person (N.T. 2-30, 2-31).

The questions raised in the instant appeal relate to

testimony to which timely objections were raised by defense

counsel. One objection was .nade as a result of the state-

ment by Officer Gilletti on direct examination that he in-

formed Sergeant Pruitt that “Mom Santana has the $110”

(N.T. 2-21 to 2-22). Objections to this statement by counsel

for Santana on the grounds that the testimony was hearsay

6

and not based on the personal knowledge of the witness,

were overruled by the Court (N.T. 2-22). Objection and

motion for mistrial were also made by the defense counsel

in response to testimony on redirect examination of govern-

ment witness, Police Officer Richard Strohm. In response

to questions posited by the Government, Officer Strohm

testified that he had seen Mrs. Santana face-to-face on

approximately seven occasions prior to her arrest on

August 16, 1974 (N.T. 2-62). Finally, defense counsel ob-

jected to that portion of the court’s charge which referred

to the evidence relating to the charge of Possession with

Intent to Deliver. The substance of the objection was that

the charge failed to advise the jury that although Officer

Strohm testified that he conducted an examination of

petitioner's arms (N.T. 2-49 to 2-50), there was no evidence

that he conducted an examination of the other parts of the

body which are also commonly used for injection of nar-

cotic substances (N.T. 3-2, 3-30).

7

REASONS FOR GRANTING WRIT

I. The District Court Erred in Denying a Defense Motion

for Mistrial and Overruling Defense Objections Where

a Government Witness Testified to an Alleged Nar-

cotics Transaction of Which He Had No Personal

Knowledge and with Which the Petitioner Was Not

Charged.

In the direct examination of prosecution witness, Of-

ficer Michael Gilletti, he testified that he arranged a nar-

cotics purchase from Patricia McCafferty and that he

subsequently arrested her (N.T. 2-11). He testified that he

gave Mrs. McCafferty $110 in marked currency and that

Mrs. McCafferty went to a house, met a man on the door-

step, entered the house, returned to him and showed him

a tin foil packet containing glassine bags (N.T. 2-16 to 2-22).

Upon placing Mrs. McCafferty under arrest, she is alleged

to have stated: “Mom Santana has the $110”. Gilletti had

no personal knowledge at that time of who had the money

in question (N.T. 2-24 to 2-25). Officer Gilletti testified that

after he had placed Patricia McCafferty under arrest for

the sale of the narcotics, he informed Sergeant Harold

Pruitt, one of petitioner’s arresting officers that, “Mom

Santana had the $110” (N.T. 2-21 to 2-22). Objections to

this testimony by Gilletti, that “Mom Santana had the

$110”, and motion for mistrial were made by defense

counsel on the ground that this indirect evidence of an

alleged purchase by McCafferty of narcotics from Mrs.

Santana was highly prejudicial as she was not charged

with the sale or possession of the narcotics sold by

McCafferty to Officer Gilletti (N.T. 2-12). The objection

was also grounded on the fact that even if the statement

that “Mom Santana had the $110” was true, there exists

a reasonable inference that Mrs. Santana received the

money from McCafferty by reason of an obligation unre-

lated to a narcotics relationship (N.T. 2-15). The court

8

recognized the validity of this inference (N.T. 2-14, 2-15)

but overruled the objection with the understanding that

all permissible inferences arising from the statement

would be noted in the court’s instructions to the jury

(N.T. 2-15, 2-16). Finally, the statement that “Mom San-

tana had the $110”, engendered an objection by defense

counsel on the ground that the testimony was hearsay

originating from information given by McCafferty subse-

quent to her arrest and that Officer Gilletti lacked first-

hand knowledge of the information contained in the state-

ment (N.T. 2-22). On cross-examination, Officer Gilletti

admitted that the statement that “Mom Santana had the

$110”, was a repetition of an earlier assertion by McCafferty

subsequent to her arrest (N.T. 2-24 to 2-25). The court

overruled all defense objections to the statement and per-

mitted its admission into evidence as evidence of the in-

tent of Mrs. Santana with respect to the narcotics seized

from her person at the moment of her arrest (N.T. 2-14).

The federal courts have established a “universal rule”

that “evidence of the commission of an independent crime”

is not admissible as a part of the case against a defendant.

United States v. Goodwin, 492 F.2d 1141, 1148 (5th Cir.

1974); see 2 C. Wright, FEDERAL PRACTICE AND PROCEDURE,

Criminal §410 at 123. The rationale behind the rule is that

an accused’s guilt or innocence, as to a particular crime,

should be determined solely on the basis of evidence re-

lating to that crime and that a jury should not be per-

mitted to convict a defendant as the result of a belief that

since a defendant committed another similar crime, he

must also have committed the crime for which he is on

trial. Nevertheless, federal courts have fashioned excep-

tions to this general rule admitting evidence of other

crimes to prove some elements of the crime for which the

defendant is being tried. United States v. Goodwin, supra

at 1148, 1149. Thus, evidence of another crime similar in

nature to the crime charged, may be received to establish

intent or motive to commit the crime charged. United States

9

v. Buckhanon, 505 F.2d 1079 (8th Cir. 1974); United

States v. Goodwin, 492 F.2d 1141 (5th Cir. 1974); United

States v. Lewis, 423 F.2d 457 (8th Cir. 1970); Robinson v.

United States, 366 F.2d 575 (10th Cir. 1966). cert. denied,

385 U.S. 1009, 87 S.Ct. 717, 17 L.Ed.2d 547 (1967). How-

ever, because of the prejudice inherent in the introduction

of such evidence, evidence of the other crime must be clear

and convincing in order for it to be admissible on the

issue of intent. United States v. Goodwin, supra at 1150.

Furthermore, courts engage in a balancing test; balancing

“the actual need for that evidence in view of the contested

issues and the other evidence available to the prosecution,

and the strength of the evidence in proving the issue,

against the danger that the jury will be inflamed by the

evidence to decide that because the accused was the per-

petrator of the other crimes, he probably committed the

crime for which he is on trial as well.” Id. at 1150.

Because of the great danger that other crime evidence

will prejudice the rights of an accused to a fair trial, com-

mon sense dictates that hearsay evidence must not be

admissible as evidence of a prior crime. Recognition of

the danger of prejudice led the Court in Goodwin to require

that evidence of other crimes must be clear and convincing

in order to justify its admission into evidence on the issue

of intent. Thus, a myriad of cases have held as inad-

missible, hearsay evidence of narcotics involvement on the

part of defendants. For example, in United States v.

McClain, 531 F.2d 431 (5th Cir. 1976), the Court held that

hearsay testimony that the defendant was a good outlet

for cocaine was inadmissible to show predisposition to

commit to offense (in response to an entrapment defense

where evidence proving a defendant’s predisposition to

commit an offense is admissible). Likewise, where de-

fendants in a prosecution for possession and distribution

of marijuana raised a defense of entrapment, the United

States Court of Appeals for the Sixth Circuit held in United

10

States v. Cunningham, 529 F.2d 884 (6th Cir. 1976) that

cross-examination of defendants to establish their predis-

position to commit the crime charged resulted in preju-

dicial error where the cross-examination was based upon

reports founded upon hearsay information. The Court’s

objection to the evidence was grounded on the fact that

the contents of the reports constituted merely the suspi-

cions of law enforcement officials. The Court also noted

that the incidents related in the reports did not lead to

any arrest, indictment, or conviction. At 887.

In Whiting v. United States, 296 F.2d 512 (lst Cir.

1961), the evidence found to be inadmissible was testi-

mony of a police officer that he received anonymous phone

calls to the effect that defendant was involved in narcotics

traffic. The Court found the evidence to be inadmissible

because it was highly unreliable and because defendant

had no fair opportunity to rebut it. Similarly, in United

States v. Perez, 493 F.2d 1339 (10th Cir. 1974), hearsay

testimony of a narcotics agent as to what he had been told

by an informer as to the informer’s relationship with de-

fendants was inadmissible as admission of such testimony

violated the defendants’ confrontation rights where the

informer did not confront them in court. Likewise, in a

prosecution for importing and conspiring to import heroin,

admission, over objection, of hearsay testimony that the

commander in charge of the narcotics section had told

the witness that the commander had received informa-

tion that the accused was one of eight persons selling

heroin, was held to be prejudicial error in United States v.

Miranda, 505 F.2d 697 (9th Cir. 1974). Finally, in United

States v. Johnstown, 426 F.2d 112 (7th Cir. 1970), the

Court held that prejudicial error had been committed when,

in a prosecution for the sale and possession of narcotics,

an officer was permitted to testify that a deceased inform-

ant said he had exchanged stolen goods with the de —

fendant in return for morphine.

11

In the instant case, the testimony of Officer Gilletti

that he informed Sergeant Pruitt that “Mom Santana had

the $110”, admittedly contained a repetition of the state-

ment made by Patricia McCafferty to the officer subse-

quent to her arrest (N.T. 2-24 to 2-25), and as such,

included inadmissible hearsay statements. That the testi-

mony contained hearsay information is clearly determined

by the fact that the statement can rationally be accepted

as a basis for an inference that Mrs. Santana was involved

in the distribution of narcotics only if the hearsay state-

ment is true. Furthermore, it has been held that hearsay

is not admissible to show the good faith of government

agents through the introduction of evidence showing that

the agent had reasonable cause to believe that a suspect

was engaged in criminal activities. See United States v.

McClain, supra at 435; United States v. Walton, 411 F.2d

283 (9th Cir. 1969). Thus, as the statement is not admissi-

ble to show the good faith of Officer Pruitt in his arrest of

Mrs. Santana or for any other relevant non-hearsay pur-

pose, and as the statement was clearly admitted as evi-

dence of the truth of the matter asserted therein, it is

hearsay testimony within the meaning of Federal Rule of

Evidence 801. As the statement was admitted by the trial

court as other crime evidence relevant to the issue of Mrs.

Santana’s intent to distribute narcotics, it must be evi-

dence which is “clear and convincing” in order to have

been properly admitted at her trial. It is evident that the

hearsay nature of the testimony, in itself, renders the evi-

dence unreliable and speculative as there was no oppor-

tunity for petitioner to rebut it. Furthermore, assuming

arguendo that the statement was true (i.e. that “Mom”

Santana had the money in question), the inference is

reasonable that Mrs. Santana’s possession of the money

was totally unrelated to her possession of heroin (N.T.

2-14, 2-15). Indeed, the fact that only $70 of the $110 in

marked currency was eventually found on petitioner (N.T.

2-15, 2-30, 2-31) supports this inference. In balancing “the

12

strength of the evidence in proving the issue” of intent

“against the danger that the jury will be inflamed by the

evidence”, see United States v. Goodwin, supra at 1150,

it is clear that the prejudice to the petitioner as a result

of the introduction of the statement outweighs the proba-

tive value of the evidence. The mere possibility of prejudice

is sufficient by itself to exclude the evidence, particularly

since the safeguard of full instructions, which the court

stated it would give (N.T. 2-14, 2-16), as to the limited

purpose of the evidence, is absent. In United States v.

Lewis, 423 F.2d 457 (8th Cir. 1970), the United States

Court of Appeals held that the trial court did not abuse

its discretion in a prosecution for narcotics laws viola-

tions by permitting an informer to testify that he had

frequently purchased drugs from the defendant where

the jury was limited to consider such evidence as bearing

on intent and the jury was instructed that the mere fact

that a person may have carried on conduct in the past,

is not proof of fact that a person is guilty of crime invoiv-

ing similar conduct in the future (at 459). In the instant

case, where the need for full instructions is especially

strong as the other crime evidence is uncertain and of a

hearsay nature, the jury was not cautioned to beware of

the inflammatory and prejudicial character of the evi-

dence when the court charged the jury regarding the state-

ment (N.T. 3-12).

The admission of McCafferty’s extrajudicial accusa-

tion via the testimony of Officer Gilletti also violated the

Confrontation Clause of the Sixth Amendment as McCaf-

ferty did not testify and was not available for cross-

examination. See Bruton v. United States, 391 U.S. 123,

88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Nelson v. O'Neil,

402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); Cali-

fornia v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d

489 (1970); United States v. Sidman, 470 F.2d 1158 (9th

Cir. 1972). Indeed, “the right of cross-examination is in-

cluded in the right of an accused in a criminal case to

13

confront the witnesses against him” as secured by the

Sixth Amendment. Pointer v. State of Texas, 380 U.S. 400,

404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1964). Thus,

in United States v. Holt, 483 F.2d 77 (5th Cir. 1973), the

Court of Appeals properly held that the Government’s use

of certain out-of-court admissions of a co-defendant, who

did not take the stand, amounted to violation of appellant's

Sixth Amendment right to confront the witnesses against

him, where the admissions tended to inculpate the appel-

lant. Similarly, in United States v. Perez, supra, the admis-

sion of extrajudicial statements by an informer who did

not confront the defendants in court and who was not

subject to cross-examination, or under oath, was held to

infringe upon defendant’s Sixth Amendment guarantee

of confrontation. In the instant case, the statement of

Officer Gilletti that “Mom Santana had the $110” was in

reality an indirect reproduction of the testimony of

Patricia McCafferty. Similarly to Bruton, the introduction

of the statement “added substantial . . . weight to the

Government's case in a form not subject to cross-examina-

tion, since [McCafferty] did not take the stand.” Bruton v.

United States, supra, 391 U.S. at 128, 88 S.Ct. at 1623,

20 L.Ed.2d at 480. Thus, the introduction of the statement

deprived appellant of his constitutional right to cross-

examination as secured by the Confrontation Clause of the

Sixth Amendment and as such, the appellant is entitled

to a judgment of reversal. See Gray v. United States, 407

F.2d 830 (5th Cir. 1969).

Finally, a violation of Federal Rule of Evidence 602

resulted from the admission into evidence of the testimony

of Officer Gilletti that he informed Officer Pruitt that

“Mom Santana had the $110”. Pursuant to Rule 602, a

witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that he has per-

sonal knowledge of the matter. Accordingly, if testimony

of a witness purports to be testimony of observed facts,

but the testimony is actually a repetition of the statements

14

of others, the witness lacks firsthand knowledge (See

McCorMickK ON EVIDENCE, at 21 (1972)), and the evi-

dence is inadmissible under Rule 602. Similarly, if a wit-

ness’s testimony proceeds from speculation or inference

rather than from personal knowledge, its admission into

evidence would be violative of Rule 602 (unless the wit-

ness is an expert; see Federal Rules of Evidence 703, 705).

For example, in United States v. Borelli, 336 F.2d 376 (2nd

Cir. 1964), cert. denied, Cinquegrano v. United States, 85

S.Ct. 647, 379 U.S. 960, 13 L.Ed.2d 555 and Mogavero v.

United States, 85 S.Ct. 647, 379 U.S. 960, 13 L.Ed.2d 555,

the court of appeals held that an objection should have

been sustained to a statement that the contents of a suit-

case “must have been narcotics” in the absence of a show-

ing that the witness was giving ““ an impression derived

from the exercise of his own senses, not from the reports

of others,’ or from speculation based on the high price

paid.” Id. at 392.

In the case at hand, as the statement of Officer Gilletti

reflected not his personal knowledge but merely the words

of Patricia McCafferty (N.T. 2-24 to 2-25) and the specula-

tion engendered in the witness as a result of McCafferty’s

statement, its admission into evidence was in direct viola-

tion of Federal Rule of Evidence 602.

Before a federal constitutional error can be held

harmless, a reviewing court must be able to declare a

belief that it was harmless beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17

L.Ed.2d 705 (1967); Harrington v. California, 395 U.S.

250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). “The ques-

tion is whether there is a reasonable possibility that the

evidence complained of might have contributed to the

conviction.” Fahy v. State of Connecticut, 375 U.S. 85,

86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 176 (1963). Further-

more, the original common-law harmless-error rule has

been sustained in that constitutional error, in admitting

highly prejudicial evidence or comments, casts on some-

15

one other than the defendant prejudiced by it the burden

to show that it was harmless. Chapman v. State of Cali-

fornia, 386 U.S. at 23, 24, 87 S.Ct. at 828, 17 L.Ed.2d at

710. In the instant case, the erroneous admission of the

statement of Officer Gilletti created a “reasonable possi-

bility that the evidence complained of might have con-

tributed to . . . [petitioner’s] conviction”. Id.

Indeed, the testimony admitted by the court as evi-

dence on the issue of Mrs. Santana’s intent with respect

to the narcotics discovered in her possession (N.T. 2-14),

points to her as the perpetrator of an earlier narcotics

offense for which she was not tried. As was recognized in

Goodwin, the potential inflammatory effect on the jury

of such evidence and the danger that the jury's conviction

of Mrs. Santana resulted from the admission of the highly

prejudicial evidence is so great that the admission into

evidence of the statement cannot be said to have been

harmless error. Furthermore, the failure of the court's

charge to adequately warn the jury of the prejudicial na-

ture of the evidence clearly renders its consideration by

the jury fundamental constitutional error. For the above

reasons, it is respectfully submitted that the Government’s

burden of showing the error to be harmless beyond a

reasonable doubt cannot be met and that the judgment

of sentence of petitioner must be vacated, and a new trial

granted.

II. The District Court Erred in Denying Petitioner’s

Motion for Mistrial and Overruling Defense Objec-

tions to Testimony of a Government Witness, a Police

Officer, Which Raised an Inference that Petitioner

Had Been Arrested on Numerous Occasions.

In the course of redirect examination of government

witness, police officer Richard Strohm, he was asked wheth-

er or not he had seen petitioner prior to her arrest on August

16, 1974 (N.T. 2-62). In response to the government's in-

16

terrogation, Officer Strohm testifed that he had seen pe-

titioner face-to-face on approximately seven occasions prior

to August 16th (N.T. 2-62). Objection to the testimony by

defense counsel on the ground that the evidence was highly

prejudicial in that it irresistably led to the inference that

petitioner had been the subject of numerous prior arrests,

was overruled by the court (N.T. 2-62 to 2-63).

Unless and until an accused puts his character at issue

by adducing evidence of his good character or by taking the

stand and raising an issue as to his credibility, the prosecu-

tor is forbidden to introduce evidence of the accused’s char-

acter in order to prove that he is a person likely to engage

in criminal conduct. United States v. Wright, 489 F.2d 1331

(D.C. Cir. 1973). See Michelson v. United States, 335 US.

469, 475-476, 69 S.Ct. 213, 93 L.Ed.2d 168 (1948); United

States v. Fox, 473 F.2d 131, 134-135 (D.C. Cir. 1972). The

rationale behind this common law rule of evidence was

articulated in Michelson:

“The inquiry is not rejected because character is

irrelevent; on the contrary, it is said to weigh too much

with the jury and so to over-persuade them as to pre-

judge one with a bad general record and deny him a

fair opportunity to defend against 2 particular

charge.” Michelson v. United States, 335 U.S. at 475,

476.

Accordingly, it is fundamental evidentiary law that the

prosecution may not elicit testimony as to a defendant's

prior arrest or indictment for crime not resulting in con-

viction and that reference to such on the witness stand

constitutes prejudicial and reversible error. United States

v. Ortiz, 507 F.2d 1224 (6th Cir. 1974); United States v.

Pennix, 313 F.2d 524 (4th Cir. 1963). It is respectfully sub-

mitted that prejudice can result from any allusion to a

defendant’s prior acquaintance with the police where such

allusion infers prior criminal activity and is accompanied

17

by innuendo. Thus, in United States v. Brown, 451 F.2d

1231 (5th Cir. 1971), the Court held that prejudicial error

had been committed when the Government was permitted

to inquire of a government witness whether or not the de-

fendants’ names were included in a list of persons known

to the sheriff's department as persons involved with nar-

cotics. The failure of defendants to take the witness stand

has been a primary factor in several courts’ decisions that

prejudicial error had occurred when allusions to prior in-

volvement with the police were allowed at trial. In Barnes

v. United States 365 F.2d 509 (D.C. Cir. 1966), the admis-

sion in a larceny trial of a police photograph with tape

covering the words at the bottom of the photograph was

held to constitute prejudicial error where a substantial

probability existed that the fact of defendant’s prior in-

volvement with the police was impressed on the jury, and

where the defendant did not take the stand. Similarly, in

Freeman v. United States, 322 F.2d 426 (D.C. Cir 1963),

where defendant did not take the stand in his narcotics

prosecution, the admission of testimony that a policeman

had previously arrested the defendant for narcotics viola-

tions was held to be prejudicial error.

In the instant case, Officer Strohm’s testimony that he

had seen petitioner face-toface on numerous occasions

prior to the arrest of August 16, 1974, inevitably gives rise

to the inference of prior criminal activity and arrests on

the part of Mrs. Santana. As was recognized in Michelson,

this type of testimony “weigh[s] too much with the jury and

sO... . overpersuade[s] them as to. . . deny [the defendant]

. . . @ fair opportunity to defend against a particular

charge”. Michelson v. United States, 335 U.S. at 475, 476.

The possibility of prejudice to petitioner as a result of

Officer Strohm’s testimony, is increased due to the fact that

she did not take the stand and testify in her own behalf.

Through the testimony of Officer Strohm, the Government

successfully put before the jury facts relating to general

bad reputation or character. As petitioner had not put her

18

character or credibility in issue, it is respectfully submitted

that in accordance with Michelson, Barnes, Brown and

Freeman, the admission into evidence of Officer Strohm’s

statements impressed on the jury the fact of prior criminal

activity on the part of the petitioner and as such, deprived

her of her constitutional right to a fair and impartial trial.

III. The District Court Erred in Denying a Defense Ob-

jection to the Point for Charge on “Intent to Deliver”

Where the Court’s Charge Failed to Instruct the Jury

that in Weighing the Evidence on Petitioner’s Drug

Use, They Could Consider the Police Failure to Ex-

amine the Petitioner Anywhere but on Her Arms.

In its charge to the jury concerning the evidence with

respect to Mrs. Santana’s alleged ‘intent to distribute” the

narcotics discovered on her person, the court instructed the

jury that it could consider testimony by Officer Strohm that

an examination of petitioner’s arms revealed no evidence of

drug use (N.T. 3-16 to 3-17). However, the court failed to

mention to the jury the fact that according to all the testi-

mony, the police officers failed to examine any of the other

parts of her body which could also be used for injection of

drugs. In effect, the court’s cl_arge placed great emphasis on

an incriminating inference relating to the charge of intent

to distribute while disregarding negative evidence favorable

to petitioner with respect to the same issue.

“If justice is to be done in accordance with the rule of

law, it is of paramount importance that the court’s instruc-

tions be clear, accurate, complete and comprehensible,

particularly with respect to the essential elements of the

alleged crime that must be proved by the government be-

yond a reasonable doubt.” United States v. Clark, 475 F.2d

240 (2nd Cir. 1973). Accordingly, in order to present a fair

and clear view of all of the evidence to the jury, a trial

court may not single out and place undue emphasis upon

particular evidence and disregard other evidence upon the

19

same matter, even though the charge may state a correct

principle of law. See Bird v. United States, 187 U.S. 118, 23

S.Ct. 42, 47L.Ed. 100 (1902). Especially in criminal prose-

cutions, the instructions should refer not only to the evi-

dence favoring the prosecution’s case, but also to any favor-

able evidence comprising defensive matter in behalf of the

accused. Bird v. United States, supra.

In the instant case, by failing to charge the jury that in

weighing the evidence on petitioner’s drug use, they could

consider the police failure to examine her anywhere but on

her arms, the court presented an incomplete and unbal-

anced portrait of the evidence as to an essential element of

the alleged crime charged. Especially in light of the dearth

of direct evidence as to petitioner’s alleged “intent to dis-

tribute”, the court’s direct reference to the government’s

evidence (and inferences therefrom ) as to her drug use, in

the absence of a reference to the defensive matter relating

to the same issue, deprived petitioner of her right to a

“clear, accurate, complete and comprehensible” charge as

to “the essential elements of the alleged crime.” It is re-

spectfully submitted that this emphasis upon only the evi-

dence prejudicial to the petitioner so confused the jury and

left erroneous impressions in their minds as to deprive

petitioner of her constitutional right to a fair trial.

CONCLUSION

For the foregoing reasons, it is respectfully requested

that the petition for a writ of certiorari should be granted.

Gerald A. Stein

NEEDLEMAN, NEEDLEMAN,

TABB & EISMAN, LTD.

Attorneys for Petitioner

February 6, 1978

|

Relevant Docket Entries

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT

OF PENNSYLVANIA

: ; Crim. No. 74-502

United States of America Mietribution of and

v. Possession with Intent

to Distribute a Narcotic

Dominga Santana (Count #2)

Defendant Drug Controlled Substance

21 U.S.C. §841 (3 count)

1974

Aug. 27 True bill.

Aug. 27 Bail to be entered in the sum of $5,000.00 [10% Cash]

as to deft Santana.

Sept. 19 PLEA: NOT GUILTY to Count #2, as to deft Santana;

deft allowed 30 days to file motions.

Oct. 18 Deft Santana’s motion for relief from illegal search

and seizure, with memorandum of law in support

thereof, filed.

Oct. 25 Govt’s motion to dismiss deft Santana’s motion for

relief from. illegal search and seizure, filed.

9 Oct. 30 Deft Santana’s reply to Govt’s motion to dismiss deft’s

motion for relief from illegal search and seizure, filed.

Oct. 31 ORDER [dated 10-30-74] that the motion of deft San-

tana for relief from illegal search and seizure is DE-

NIED for the reason that it has not been filed in

accordance with the provisions of Local Rule 11; leave

is granted to file in accordance therewith, filed.

11-1-74 Entered & copies mailed.

Nov. 11 Govt’s answer to deft Santana’s motion for relief from

illegal search and seizure, with memorandum in sup-

port thereof, filed.

A-l

1974

Nov. 12

Nov. 12

10

10

18

P28

1975

May 16

Nov. 13

Nov. 19

1976

July 26

Sept. 14

A-2

Deft Santana’s re-filed motion for relief from illegal

search and seizure, with memorandum of law in sup-

port thereof, filed.

HEARING sUR motion of deft Alejandro re: suppression

of evidence and sur motion of deft Santana re: relief

from illegal search and seizure; witnesses sworn; ad-

journed until 11-13-74.

Govt’s notice of appeal, filed.

Copy of Clerk’s notice of appeal, filed.

Record transmitted to U.S.C.A.

Certified copy from USCA affirming judgment of this

Court, filed.

Original record and certified copy of docket entries

transmitted to U.S. Supreme Court.

Original record and certified copy of docket entries

received by U.S. Supreme Court on 11-14-75, filed.

Judgment of the Supreme Court certified that upon

consideration of the case of Dominga Santana and

William Alejandro on consideration whereof, it is or-

dered and adjudged by this Court that the judgment

of the said United States Court of Appeals in this

cause be, and the same is hereby, reversed to the United

States Court of Appeals for the Third Circuit for further

proceedings in conformity with the opinion of the

Court, filed.

Cert. copy of Judgment Order of U.S. Court of Appeals

issued in lieu of a formal mandate reversing judgment

of district court and proceedings remanded to district

court for further proceedings in conformity with opinion

of the U.S. Supreme Court, filed.

Minute Sheet re: CASE CALLED FOR TRIAL—D. San-

tana, defendant is in the hospital, filed.

Minute Sheet dated 4-25-77 re: CASE CALLED FOR

TRIAL deft. Santana present—warrant still outstand-

ing on Alejandro—case to commence on 4-26-77, filed.

ae

June

June

June

June

June

. 29

17

23

13

15

21

A-3

Minute Sheet dated 4-26-77 re: JURY TRIAL—jurors

called and sworn—defendant Alejandro is severed as

he is Santana a fugitive—interpreter sworn, filed.

Minute Sheet dated 4-27-77 re: trial resumes—motion

of defendant for mistrial DENIED—(Santana), filed.

Minute Sheet dated 4-28-77—trial resumes—Deft.’s

motion for judgment of acquittal—DENIED (San-

tana)—VvERDICT—Ct. 2 guilty. Government's motion to

a bail—bail increased to $10,000.00 good bail,

Motion of deft. Santana for new trial and/or judgment

of acquittal, filed.

Government's answer to defendant's motion for new

trial and/or judgment of acquittal, filed. (D. Santana)

Additional reasons in support of defendant’s motion

for new trial and/or judgment of acquittal, filed.

Memorandum in support of motion for new trial and

or judgment of acquittal, filed.

Government's memorandum of law in support of its

answer to defendant Santana’s motion for a new trial

and/or judgment of acquittal, filed.

Order that deft.’s (Dominga Santana) motion for new

trial and/or judgment of acquittal is pENIED—sent. is

ell for 6-20-77, filed. 6-14-77 entered and copies

mailed.

Letter to Judge Bechtle dated 6-10-77 from Thomas J.

McBride, U.S.A. re: Dominga Santana—re: Post-trial

motions on the Memorandum of law without oral argu-

ment, filed.

Minute Sheet re: sENTENCING—Ct. 2—Impr. 3 yrs. to

commence on 6-27-77 pursuant to 18/4205(b)(2) to be

followed by 3 yrs. special parole, filed. (D. Santana)

Judgment and Commitment Order, filed. 6-22-77 en-

Defendant's Notice of Appeal, filed. Dominga Santana

filed on 6-24-77 at 3:05P.M. copy to: Defendant, United

States Attorney on 6-27-77.

Record transmitted to Clerk, U.S. Court of Appeals.

A-4

IN THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 77-1904

United States of America

Uv.

Patricia McCafferty, Dominga Santana and

William Alejandro

Dominga Santana, Appellant

On Appeal from the United States District Court for the

Eastern District of Pennsylvania, Crim. No. 74-502.

Submitted Under Third Circuit Rule 12(6)

January 3, 1978

Before: ADAMS, GIBBONS and GARTH, Circuit Judges.

JUDGMENT ORDER

After consideration of all the contentions raised by

the appellant, namely, that (1) the district court erred in

denying a defense motion for a mistrial and overruling

defense objections where a government witness testified

A-5

to an alleged narcotics transaction of whigh he had no

personal knowledge and with which the appellant was not

charged; (2) the lower court erred in denying appellant’s

motion for mistrial and in overruling defense objections

to testimony of a government witness, a police officer,

which raised an inference that appellant had been ar-

rested on numerous occasions; and (3) the lower court

erred in denying a defense objection to the point for

charge on “intent to deliver” where the court’s charge

failed to instruct the jury that in weighing the evidence

regarding appellant’s drug use, they could consider the

police failure to examine the appellant anywhere but on

her arms, it is

ADJUDGED AND ORDERED, that the judgment of the dis-

trict court be and it is hereby affirmed.

BY THE COURT

ARLIN M. ADAMS

Circuit Judge

Attest:

/s/

Thomas F. Quinn, Clerk

Dated: Jan 6, 1978