Petition — Palumbo v. United States
Supreme Court brief1978
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In THE MICHAEL RODAK, JR., CLERK
Supreme Court of the United States
Octoser Term, 1977
No. -€¢7 1321
—<=>—_
NicHoLas Patumso, Frank Cuiopa and Evcene Save,
Petitioners,
—against—
Unrrep States or AMERICA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Stantey M. Meyer
Attorney for Petitioners
66 Court Street
Brooklyn, New York 11201
Meyer, Licut & Lonpon
Of Counsel
es
TABLE OF CONTENTS
Jurisdiction @eeeoeeeceaeeeao eee ee eeeeeeeoeoeee eee
Questions Presented e@eeeeeeeceveeeeeeeeeee eee
Statutes Involved Ceeeeeeeeeeeeeeeeeeeeesee
Facts eeeeeeeeeeee ee een eeceeeeeeeeeeeeneeeeee
POINT I: THERE WAS NO PROOF BELOW TO
INDICATE THAT PETITIONERS
DEALT WITH A SCHEDULE II
NARCOTIC. PERCODAN IS NOT
A SCHEDULE II NARCOTIC AND
THE INDICTMENT ON ITS FACE
MUST BE DISMISSED. TO
CLASSIFY IT UNDER SCHEDULE
II VIOLATES DUE PROCESS ...
POINT II: NO PROOF WAS PRESENTED TO
S4OW THAT THE PETITIONERS
KNEW THAT THE SUBSTANCE
THEY DEALT WITH, PERCODAN,
WAS A SCHEDULE II CONTROLLED
SUBSTANCE. TO CONVICT THEM
WITHOUT ANY PROOF AT ALL
YVIOLATES DUE PROCESS ......
POINT IIT: THERE IS NO PROOF THAT THE
PETITIONERS ADOPTED, JOINED
OR EVEN KNEW ABOUT THE
CONSPIRACY CHARGED IN THE
INDICTMENT. THERE WAS ALSO
NQ INDEPENDENT EVIDENCE
LINKING PETITIONERS WITH
THIS CONSPIRACY OTHER THAN
THE STATEMENT OF A CO-
CONSPIRATOR ..csccccceeeces
26-38
38-43
43-52
TABLE OF CONTENTS (Continued):
POINT IV:
POINT V:
POINT VI:
Page
THE POST-ARREST CONVERSA-
TION IN WHICH PETITIONER,
CHIODA, PARTICIPATED COULD
NOT BE USED AGAINST THE
OTHER PETITIONERS. TO DO
SO VIOLATED BRUTON AND
PETITIONERS’ RIGHTS OF
CROSS EXAMINATION ......e0e++ 52-56
THE CUMULATIVE EFFECT OF THE
ERRORS COMMITTED BY THE
COURT AND ITS ATTITUDE TOWARD
THE PETITIONERS DEPRIVED
THEM OF A FAIR TRIAL ........- 56-63
THE ATTORNEYS BELOW HAD NO
POWER TO WAIVE PETITIONERS'
RIGHTS TO A TRIAL BY JURY ON
THE ISSUE OF WHETHER PERCODAN
WAS A SCHEDULE II or III SUB-
STANCE .ccccccccccccccccsccces 63°65
Conclusion eeeneev+veaeeeeoeeeeoceeeeeeeeeeeeeeeaeee 65
Order of Affirmance eeereereeeocoeeeeeeeeeeeeeee 66-68
TABLE OF AUTHORITIES
Bentley, K.W. "The Chemistry of
Morphine Alkaloids, Oxford 1954
Chap. 10 eeeeeveeeeveaeee ee eeeeeeeeeeeeeeeeee
Bruton v. United States, 391 “>4-
123 (1968) eeeeveeeaeeee ee eee eeeeeeeeeeeeeee
Calloway v. United States, 399
F.2d 1006, cert. den. 393 U.S.
987 (D.C. Cir. 1968) eeeeoeoceeeeeeeeeeeeene
Cinequergrano v. United States,
379 U.S. 960 (1964) Lecaaeedbede Seed 66666
Direct Sales Company v. United
States, 319 U.S. 708 (1943) eeeeeeeeeeeee
Evola v. United States, 362, U.S.
974 (1960) eeeoeoceeeeeeoeeeeweeeeoeveeoeeeoceeeeoeeee
Glasser v. United States, 315
U.S. 60 (1942) eeeeoeeeeeeeeoceocoeeeoeeeoceoeeoe
Glover v. United States, 306
F.2d 594 (10th Cir. 1962) eeeeeeeeeeeeeeene
Jackson v. Denno, 378 U.S.
(1964) .ccccccccccccccccccccccccccccescocs
Johnson v. Zerbst, 304 U.S.
458 e@eeoeovoeeeeeoeeeeeeeeceoeeeeoeeeeoeeeeoe een
a
Leary v. United States, 395
U.S. 6 (1969) e@ecocec4eeceeoceeoceeeceeeeeeoeeeeee0F
Montford v. United States, 200
F.2d 759 (5th Cir. 1953) eeeeeoeeeeeveaeeea eae
Page
33,34
42,53,54
55
44
44,49
44
45
46
54
63
40
47
TABLE OF AUTHORITIES (Continued):
National Dairy Products Corp.
v. United States, 350 F.2d
321 (8th Cir. 1965) eeeeee eee eee eeeeeeeeeee
Nelson v. O'Neil, 402 U.S.
622 (1971) e*eneeee eeeeeeeeeeeeeeeeeeeeeeeee
Park v. Huff, 394 F.2d
923, reh. 506 F.2d 849
(5th Cir. 1974) eeececoeocenweseeeesoeeeeeene eecoeesd
Physician's Desk
Reference 30 Edition 1976 ......... esoees
Rivas v. United States,
368 F.2d (9th Cir. 1966) Coeeeecesecceseos
Schneble v. Florida, 405
U.S. 427 (1972) eceoeeeeaeceaeeeeoce@eeceeeoeeoeceeeeed
Takki, S. and Tammisto, T.,
"A Comparison of Pethidine,
Piritramide and Oxycodone in
Patients With Pain Following
Cholecystecotomy", "The
Anaesthesist", Vol.22, Issue 4,
1973 Pages 162-166 ...ccccccccccccccccees
Taylor v. United States, 260
F.2d 736 (D.C. Cir. 1959) eoeeeeeeaeeeeeeee
Turner v. United States,
306 U.S. 20B CVO? eseccocens PrrrrrT,
United States v. Addonizio,
451 F.2d 49, cert. den. 405
U.S. 936, reh. den. 405 U.S.
1908 (Sréd Cir. ISIE) cccccccccescoceseses
United States v. Baxter,
492 F.2d, 150,177 (9th Cir.
1973) cert. den. 415 U.S. 940 eeeeeeeeeee
Page
47
54
55
32,33
37
54
32
46
40
55
55
TABLE OF AUTHORITIES (Continued):
United States v. Denoia,
451 F.2d 979 (2nd Cir. 1971) .ccecececececes
United States v. Falcone,
107, F.2d 579 (2nd Cir.)
aff. 311 U.S. 205 (1940) eeeereeeeeeeeeeeeeee
United States v. Goldman, 450
F.2d 873 (Ist cir. 1971) eeeeeeeeeoceaoeeeeeeeeoe
United States v. Herrera,
407 F.Supp. 766,773 (U.S.
D.C.N.D. Ill. 1975) eeeeeoeoceaeeeeeeeeeeeeee eos
United States v. Joly, 493
F.2d 672 (2nd Cir. 1972) eeeeoeoeeeeeeeeeeeeeae
United States v. Jones,
486 F.2d 476 (8th Cir. 1973) ..ccccceccceces
United States v. McGowan,
ES ee
United States v. Morado,
454 F.2d 167 (5th Cir.) cert.
den. 405 U.S. 917 (1972) eeeeeeeeeeeeeeeeeee
United States v. Moser, 509
F.2d 1089 (7th Cir. 1975) eeeeeaeoeaeeeeeeeeeee
United States v. Oviedo, 525
F.2d 881 (Ist Cir. 1976) eoceeeeeeeeeoeaeeeoeeee
United States v. Peoni, 100
F.2d 401 (2nd Cir. 1938) eeeeoeoeeeeoeeeeeoeeeoee
United States v. Rodriques,
49] F.2d 663 (3rd Cir. Seeeédscocooccesece
United States v. Santore,
390 F.2d 51 (2nd Cir.) cert.
SEN tee OOD AGIA Ya obeltee
Page
44
44,47,48
39
46
40
40
47
44,47
TABLE OF AUTHORITIES (Continued):
United States v. Santos,
385 F.2d 43 (7th Cir. I9G7) ccccccccccceces
United States v. Snow, 521
F.2d 730, cert. den. 423 U.S.
1090 (9th Cir. 1975) eeeeeeeeeeeeeeeeeeeeee
United States v. Squires,
440 F.2d 859 (2nd Cir. 1971) ..ccccccccceces
United States v. Stromberg,
358 F.2d (2nd Cir.), cert. den.
sub. nom Lessa v. United States,
SVU GBs Ge GOD edededetncsddessddonces
United States v. Trowery, 542
F.2d 623 (3rd Cir. 1976) eeeeeeeeuvueeeeeeee
United States v. Wolk, 398
F.Supp. 405 (U.S.D.C.E.D.Pa. 1975) .......
United States v. Yates, 524
Pr, f§ ° 4 £4_eaeerrrr
Webster, Third New Inter-
national Dictionary, 1967 .......... ovccce
Williams v. United States,
By £§ £. f- | Pee
Page
47
55
40
47
45,46
46
55
35
46
In The
SUPREME COURT OF THE UNITED STATES
October Term 1977
NICHOLAS PALUMBO, FRANK CHIODA and EUGENE SHINE,
Petitioners,
-against-
UNITED STATES OF AMERICA,
Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Petitioners, NICHOLAS PALUMBO, FRANK CHIODA and
EUGENE SHINE, respectfully pray that this Court issue
a writ of certiorari to review the Judgment and Order
of the United States Court of Appeals for the Third
Circuit, rendered on January 9, 1978, which affirmed
petitioners’ conviction for conspiracy to distribute
a narcotic, percodan, in violation of 21 United States
ee
Code, Sections 841, 846, 1308.12 and 1308.13.
Petitioners were convicted after a jury trial in
the United States District Court for the District of
New Jersey, at Trenton, New Jersey. They were acquitted
of four counts of possession and distribution of
narcotics.
On July 5, 1977, Hon. Clarkson F. Fisher sentenced
NICHOLAS PALUMBO to fifteen years in prison, FRANK CHIODA
to twelve years and EUGENE SHINE to nine years. Except
for SHINE, the petitioners had almost no criminal
record. All three men were remanded after the jury
finding and they remained incarcerated except for SHINE,
who was released on bail pending appeal by the Court of
Appeals.
JURISDICTION
The jurisdiction of the Court is invoked under
Title 28 U.S.C., Section 1251. No opinion was
written by the Court of Appeals.
QUESTIONS PRESENTED
1. Whether the classification of percodan
as a Schedule II narcotic, and petitioners’ conviction
thereunder, constituted an erroneous and unreasonable
classification so as to deprive them of due process and
dite
equal protection of the law.
2. Whether the absence of any proof whatso-
ever that petitioners knew percodan was a Schedule II
narcotic, even assuming that it was, operated to
deprive them of due process of law,
3. Whether independent evidence linking a
defendant to a conspiracy other than the statement of
a co-conspirator should be required as an essential
element of the fair trial process.
4. Whether the post-arrest conversation in
which one petitioner engaged could be used against the
other petitioners, and whether it violated Bruton vy.
United States.
’ 5. Whether the cumulative errors of the Court,
including denigrating comments directed at counsel,
deprived petitioners of a fair trial.
6. Whether the attorneys had the power to
waive petitioners’ right to a trial by jury on one of
the elements to be proven by the government.
STATUTES
21 U.S.C. Section 841 Prohibited acts A-
Unlawful acts
(a) Except as authorized by this subchapter,
it shall be unlawful for any person knowingly or
intentionally --
(1) to manufacture, distribute, or dispense, or
ole
possess with intent to manufacture, distribute, or
dispense, a controlled substance . . .
Penalties
(b) Except as otherwise provided in Section 845
of this title, any person who violates subsection (a)
of this section shall be sentenced as follows:
(1)(A) In the case of a controlled substance in
Schedule I or II which is a narcotic drug, such fal
shall be sentenced to a term of imprisonment of not
more than 15 years, a fine of not more than $25,000.,
or both. If any person commits such a violation after
one or more prior convictions of him for an offense
punishable under this paragraph, or for a felony under
any other provision of this subchapter or subchapter II
of this chapter or other law of the United States
relating to narcotic drugs, marihuana or depressant
or stimulant substances, have become final, such person
shall be sentenced to a term of imprisonment of not
more than 30 years, a fine of not more than $50,000.,
or both. Any sentence imposing a term of imprisonment
under this paragraph shall, in the absence of such
prior conviction, impose a special parole term of at
least 3 years in addition to such term of imprisonment
and shall, if there was such a prior conviction, impose
a special parole term of at least 6 years in addition
to such term of imprisonment.
21 U.S.C. Section 846 Attempt and conspiracy
Any person who attempts or conspires to commit
any offense defined in this subchapter is punishable
by Imprisonment or fine or both which may not exceed
the maximum punishment prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy.
21 U.S.C. Section 1308.12 Schedule II
(a) Schedule II shall consist of the druas and
other substances, by whatever official name, common or
usual name, chemical name, or brand name designated,
listed in this section. Each drug or substance has
been assigned the Controlled Substances Code Number
ce
set forth opposite it.
(b) Substances, vegetable original or chemical
synthesis. Unless specifically excepted or unless
listed in another schedule, any of the following sub-
stances whether produced directly or indirectly by
extraction from substances of vegetable origin, or
independently by means of chemical synthesis, or by a
combination of extraction and chemical synthesis:
(1) Opium and opiate, and any salt, compound,
derivative, or preparation of opium or opiate, exclud-
ing naloxone and its salts, and excluding naltrexone
and its salts, but including the following:
Raw OPIUM cccccccccccccccccccccccss 9000
Opium extractS ...ccececccccecceees 9610
Opium fluid extracts ....seeeeeeees 9620
Powdered OPiUM ..secseceeeceeceeeees 9639
Granulated OPiUM ....ececceceeecees 9640
Tincture Of OPIUM ...ccececceeccees 9630
Apomorphine ..ccccccccceeeeceeceees 9030
CaGetee ccdcocéccceoceesosocescsose SOOO
9. Ethylmorphine ...scccceeccccecceees 9190
10. Etorphine hydrochloride .....++++++ 9059
11. Hydrocodone ...cssccseccceceeeceess 9193
12. Hydromorphone ..seceececececccececs 9150
13. METtOPON ..cccccceccccccescccscesces 9260
14, MOrphine ...ccccccccccccccccccecces 9300
15. Oxycodone eeeeeeeeeeeeeeraeeeeeeeeee 9143
16. OxyMOrphone ..cceeeccccceececevcses 9652
17. TRODOINE cecceccccccccccccecccccscse GIG0
ON DOP wn
.
(2) Any salt, compound, derivative, or prepara~-
tion thereof which is chemically equivalent or identical
with any of the substances referred to in paragraph
(b)(1) of this section, except that these substances
shall not include the isoquinoline alkaloids of opium ...
21 U.S.C. Section 1308.13 Schedule III
...(e) Narcotic drugs. Unless specifically
excepted or unless listed in another schedule, any
material, compound, mixture, or preparation contain-
ing limited quantities of any of the following narcotic
drugs, or any salts thereof:
ie
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Not more than 1.8 grams of codeine
per 100 milliliters or not more than
90 milligrams per dosage unit, with
an equal or creater quantity of an
isoquinoline alkaloid of opium .... 9803
Not more than 1.8 grams of codeine
per 100 milliliters or not more than
90 milligrams per dosage unit, with
one or more active, non-narcotic
ingredients in recognized therapeutic
AMOUNTS wcccccccccccccccccccccccscs IOU4
Not more than 300 milligrams of
dihydrocodeinone per 100 milliliters
or not more than 15 milligrams per
dosage unit, with a fourfold or
greater quantity of an isoquinoline
alkaloid Of OPiuM ....cccccecccceee 9805
Not more than 300 milligrams of
dihydrocodeinone per 100 milliliters
or not more than 15 milligrams per
dosage unit, with one or more active
non-narcotic ingredients in recognized
therapeutic amounts ....ccecceceeee 9806
Not more than 1.8 grams of dihydrocodeine
per 100 milliliters per dosage unit,
with one or more active non-narcotic
ingredients in recognized therapeutic
GMOUNES ccccccccccscccccccccccccces SOUl
Not more than 300 milligrams of ethyl-
morphine per 100 milliliters or not
more than 15 milligrams per dosage
unit, with one or more active, non-
narcotic ingredients in recognized
therapeutic amounts ..ccecceccccce 9808
Not more than 500 milligrams of
opium per 100 milliliters or per 100
grams or not more than 25 milligrams
per dosage unit, with one or more
active, non-narcotic ingredients in
recognized therapeutic amounts ... 9809
afin
(1) Not more than 50 milligrams of
morphine per 100 milliliters or per
100 grams, with one or more active,
non-narcotic ingredients in recognized
therapeutic amountS ...cceccccceceseeces 9810
FACTS
This indictment charged the three petitioners
with one count of conspiracy and four counts of
distribution of a Schedule II narcctic drug controlled
substance, to wit: percodan. Percodan is not named
as such in either Schedule II or III, but the govern-
ment contended that the oxycodone designation within
Schedule II was synonymous with percodan. This was
one of th> main issues on this appeal which the Court
below in part decided based on petitioners’ counsel's
failure to move to dismiss prior to trial. However,
it should be stated that it was the position of the
petitioners that percodan and oxycodone were not
similar things, and for the other reasons set forth
hereinafter, the indictment was defective. It is also
contended that the government didnot prove that
percodan was a Schedule II narcotic and that, in
truth, if it is controlled at all, it comes within
Schedule III. Hence, as the government conceded at
the trial, this indictment would be defective on its
ais
fact. The Court of Appeals, in oral argument,
commented that petitioners’ attorneys had consented
to the Court's deciding that issue rather than the
jury, so that the petitioners had little left to argue.
Of course, that raises the question of whether counsel
waived their clients’ right to a jury trial on that
issue and, if so, whether it could be effective with-
out their clients' consent.
The petitioners owned a corporation known as
Eastern Chemical Co., Inc., located in the State of
New Jersey, which basically dealt in industrial and
other chemicals in general.
The first witness was a man from Endo Laboratories,
a security officer, who was introduced for the purpose
of showing that the pills in question originally came
from a shipment made by Endo Laboratories. These pills
were the subject of a theft, but the government's
position was that it was not in any way contended that
the petitioners had anything to do with that wrongful
taking.
One of the main witnesses in this case was
RICHARD CICCONE, an eighteen year old who purchased the
percodan pills from one, ROBERT CRITELLI, and there-
after sold them to undercover police. Sianificant’y,
-8-
CICCONE did not know any of the petitioners (21A)*,
and his testimony basically related to how he obtained
the percodan from his brother, TONY, after scratching
out the lot numbers so it could not be traced (22A).
Thereafter, on October 28, 1976, he met a friend of
KENNY's who was introduced to him as DOMINICK, but who
in reality was the undercover police officer who
ultimately made the percodan buys. DOMINICK also did
not know the petitioners and had no dealings with them.
At any rate, CICCONE detailed meeting DOMINICK
in the presence of his brother and selling him twenty
bottles of seventnn for approximately $1,100.00
(1.76-78)**, There was a subsequent meeting on
November 1, 1976, in Edison, New Jersey, when the pur-
chase of two hundred bottles was discussed (1.80), and
the witness described the various transactions and
discussions regarding the purchase of percodan that he
had with the undercover police officer. None of this
testimony in any way involved any of the petitioners.
ROBERT CRITELLI, who was his brother's partner, was
apparently the source of the percodan and he relied
*"A" references are to pages of the appendix.
**Numerical references are to pages of Stenographer's
Minutes.
an
a
upon CRITELLI for essentially all of the decisions
that had to be made with respect to the sale of this
substance (1.85-90). They were negotiating to sel]
another two thousand bottles to the police officer,
and on November 16th, when the transaction was
supposed to finally be made,he was arrested (1.96).
The next witness, WILLIAM T. FRANK, an employee
of Bell Telephone in New Jersey, identified various tol]
records kept by the company and they were received in
evidence (2.193-201). These records related to tele-
phone calls made from telephones of Eastern Chemical
and other locations wherein conversations, according
to ROBERT CRITELLI, were had pertaining to the sale
of percodan.
ANTHONY CICCONE, JR., the older brother of
RICHARD CICCONE, was the next government witness.
He knew CRITELLI because they were partners in an
automobile body business which broke up in March,
1976. They were both in debt, and on October 19,
1976, CRITELLI called to say that he had something
to show him (2.203). CRITELLI brouaht a bottle of
percodan with him and asked him whether he could
sell it. That began the transactions between the
two men with respect to the sale of various bottles
-10-
of percodan (2.214). CICCONE really did not know what
the pills were, but CRITELLI described them as “downers”
similar to tuinal (2.215). CICCONE said that he had no
knowledge where CRITELLI got the percodan, except that
CRITELLI said he could get a lot of it (25A). On
October 23, 1976, he was with CRITELLI at Eastern
Chemical. CRITELLI called him and told him to take a
ride with him, that they were going to pick up two
cases of percodan. The witness described the physical
lay-out of Eastern Chemical and testified that both
PALUMBO and CHIODA were both in the office that day
(27A). He said that CRITELLI spoke to CHIODA while
PALUMBO was sitting saying nothing (28A-29A). CHIODA
was arguing with CRITELLI because CRITELLI only had
$640.00 for one case and he didn't want to give any of
the cases on consignment. CRITELLI was trying to con-
vince CHIODA otherwise and assured him that payment
would be made (29A). CHIODA wasn't happy, but he
finally agreed, and then PALUMBO went over to the
entrance to the garage, entered, and came out with two
cases of percodan which were placed in CRITELLI's car
(30A). The $640.00 was given to CHIODA and the two men
left. The witness then described attempts to sell the
percodan. His testimony was similar to that of his
-l1-
brother, in which he told of discussions for the sale
of two thousand bottles of percodan. On the occasion
when the deal was supposed to close, the arrests were
made. He again reiterated that during the conversation
between CRITELLI and CHIODA, PALUMBO did not participate
at all (31A-36A). The witness also said that during
the time he was at Eastern Chemical he never saw EUGENE
SHINE (38A).
The main witness in this case, and the only one
to implicate the petitioners, was ROBERT L. CRITELLI
(4.26), no stranger to dealing in drugs or a life of
crime in general. He was thirty-four years old, divorced
and had known CHIODA for about eighteen years and PALUMBO
for about ten years (4.27-28). He identified the tele-
phone toll exhibits and basically used these sheets as
a guide to refer to when he testified. In fact, later
on, on cross examination, when the sheets were taken
away from him, he could not recall anything of any sub-
stance and couldn't even recall the telephone conversa-
tion that he had previously testified to, or other con-
versations or calls that were reflected on the sheets.
The significant telephone calls were circled in pencil
and the distinct possibility that these conversations
were based on testimony of a totally rehearsed witness
-12-
must be considered.
He said that PALUMBO and CHIODA were partners in
Eastern Chemical, a company that dealt in and sold
industrial chemicals. He made a telephone call to
Eastern on October 4, 1976 at 3:39 in the afternoon,
and he stated that FRANK CHIODA asked him to stop over
to see him about something important (39A). He des-
cribed the physical lay-out of the premises and saw
both petitioners, PALUMBO and CHIODA (40A-42A). After
they exchanged greetings, CHIODA apparently removed a
small bottle from the top drawer of his desk and threw
it to CRITELLI. CRITELLI asked what it was and CHIODA
told him that it was a bottle of percodan pills. The
witness professed not to know what percodan was and
CHIODA told him it was a depressant, and asked the
witness whether he could sell it. CRITELLI told him
that he didn't know, but would try. CHIODA told him
that they had about fifteen or sixteen cartons and
that the price was still undecided. CRITELLI said
he would speak to someone and he left. The witness
said that PALUMBO was just sitting there during the
conversation and did not participate in it at all
(43A-44A).
-13-
CRITELLI then talked about his efforts to sell
the pills and the related conversations that he said
took place, wherein he repeatedly reported to PALUMBO
or CHIODA his progress in trying to dispose of the
percodan. He said that on October 8, 1976, he again
met with both petitioners at Eastern Chemical and
CHIODA asked if he was making any progress in selling
the percodan. He also said that on both occasions he
saw SHINE there but SHINE wasn't doing anything in
particular (48A). However, during the conversation
regarding percodan, CHIODA passed a remark to the
effect, "You mean, MONK finally did something right?"
and PALUMBO answered, "Yes, finally." (49A). SHINE
was also known as MONK, but he apparently was not
present when this statement was made. On October 19,
1976, CRITELLI called CHIODA to tell him the two
cartons were sold and he was going to turn the money
over (50A). CRITELLI went again to Eastern Chemical
and saw PALUMBO and CHIODA in their office (50A).
CRITELLI allegedly told them about his deals with the
CICCONE's and again PALUMBO did not participate in
the conversation (51A). CRITELLI handed over the
$1,240.00 which CHIODA counted on the desk in front
of him (52A). This, too, is uncorroborated testimony.
ott.
On October 23rd, he said that he spoke to PALUMBO
and ordered a case of pills for CICCONE. PALUMBO told
him to come over, so he pkcked up CICCONE, obtained
$640.00, and they drove to Jersey City to meet PALUMBO.
They also saw CHIODA there, and during the conversation,
he introduced TONY CICCONE to the appellants (54A).
CRITELLT allegedly said that TONY ordered two cases of
pills, one of which he paid for and one for which he
owed. After that was agreed to, PALUMBO got the two
cases and gave them to CICCONE. CICCONE did all the
talking and the only thing PALUMBO said was that
CRITELLI should keep them informed (55A). (This
contradicted CICCONE's testimony, who said that PALUMBO
did not say anything.) CRITELLI spoke to CHIODA about
buying more pills on October 25th, and he went over to
Eastern after work to pick up some more cartons (56A-57A).
He met with both petitioners, and they told him to go
outside, that MONK, meaning SHINE, would put them in
his car (57A). He went outside, backed his car up to
the premises and opened the trunk. SHINE put a large
package wrapped in a heavy gauge trash can liner in the
trunk of the car and the witness then left (58A). There
is no evidence that SHINE knew what was in the packaae,
and that apparently is SHINE‘'s total role in this
st.
alleged conspiracy.
Thereafter, the witness said he called PALUMBO
and CHIODA to inquire as to where to meet to pay for
more pills that he was going to get to consummate the
transaction he said he had already completed (4.94).
He spoke to CHIODA, and a meeting was set up for
10:00 P.M. at a particular bar on Route 1 in Edison.
CRITELLI was at the bar when ANTHONY CICCONE arrived
and told him everything was okay, but the buyers only
wanted one hundred bottles rather than six cases (4.98).
CICCONE also at this time paid CRITELLI $2,150.00 for
one hundred bottles he had already sold (4.99). CRITELLI
said that at this particular time he told ANTHONY CICCONE
the identity of the people who were supplying him with
the pills (4.99-100). However, the testimony of |
ANTHONY CICCONE and his brother did not support that
statement, since they said that they had never been told
who the suppliers were (23A-24A). He related another
conversation with CHIODA, wherein CHIODA told him there
were between six and one-half and seven cartons left
for sale (59A). CRITELLI wanted to pick them up that
evening, but CHIODA said he wouldn't be there, he
should call back and talk to NICK PALUMBO (59A). The
witness did that, and they agreed to meet at a bar near
-16-
the place of business. It was agreed that SHINE would
meet CRITELLI at 6:45 P.M. (60A). He went to the bar
but SHINE wasn't there. He went to Eastern Chemical,
but it was closed, so he called PALUMBO at home to find
out what happened (61A). PALUMBO said that SHINE was
at the bar and CRITELLI was instructed to go back and
wait (62A). SHINE supposedly took CRITELLI's car and
returned it two minutes later with the additional pills
in the trunk (62A). The witness then went to the
Raritan Center in Edison, put the pills in the woods
and called ANTHONY CICCONE at his mother's house.
Later, CICCONE met him and they retrieved the pills
from his mother's house in order to deliver them to the
undercover police officer (5.22-23). About half an hour
later, at the Ramada Inn, everyone was arrested (5.24).
He decided to cooperate immediately in order to obtain
the release of his girlfriend who had also been arrested,
and no promises were made to him at this time (5.25).
On December 10th, in response to a call from
CHIODA, he went to Eastern Chemical in the company of
Detective WAINEN, where he met CHIODA. PALUMBO was not
present (65A-69A). CRITELLI said he didn't know what to
do, he had a choice whether to plead guilty to conspiracy
or fight the case, but he didn't have money for lawyers
atte
(69A). CHIODA told him that the choice was his, but
he should have plenty of money within the next week or
so, and then they discussed what ANTHONY was going to
do about defending his case, and CRITELLI made a state-
ment to the effect that CHIODA should not forget that
ANTHONY was there once to pick up a case of pills.
CHIODA's response was, “Yes, I remember him being
here." (71A).
The witness admitted that he had a 1967 conviction
for foraging a signature on a bill of sale to a truck
and that he had two pending cases involving uttering a
forged instrument, possession of stolen property and
possession of burglary toolS (5.82-83). However, he
reiterated that he had not been given any specific
promise with regard to his plea.
On cross examination, he admitted that on the
telephone records certain circles appeared around
various telephone numbers. The circles were made by
the agents (5.97-98). When the attorney picked out
random telephone calls from the various telephone
record sheets, the witness was unable to remember
anything (5.97-105). It was clearly demonstrated that
without these sheets in front of him and without the
circled telephone numbers to guide him, the witness
-18-
could really remember very little (72A-73A).
The undercover police officer, known as DOMINICK,
but whose real identity was ROBERT WAINEN, was the next
witness. He testified as to all of the narcotic deal-
ings he had with the CICCONE's and CRITELLI. He basically
reiterated their testimony which had nothing to do with
the petitioners. In fact, on cross examination, he
said that he had never met PALUMBO until he was
arrested (89A). He had no personal knowledge that
CHIODA distributed any percodan (90A), and none of
the names of any of the three petitioners were ever
mentioned to him until after the arrests (91A,92A-94A).
The witness indicated that CRITELLI was no babe
in the woods when it came to dealing in stolen property
(95A), and, in fact, the sellers were very concerned
about removing the serial numbers from the percodan
bottles so that the pills could not be traced. It is
interesting that the petitioners, who were supposedly
experts in the chemical business, had not removed these
serial numbers. It would seem that they either did not
know what the cases contained or they had no knowledge
that selling percodan could be claimed to be in viola-
tion of the law.
WAINEN also related the incident on December 10,
-19-
1976, long after the arrests had been made, when he went
to the premises of Eastern Chemical with CRITELLI. His
testimony was essentially the same as CRITELLI's. He
met CHIODA. PALUMBO was not there, and he related the
conversation that ensued (79A-88A). No percodan was ever
found on the premises of Eastern Chemical (97A). When
he went there that day, CHIODA had no objection to him
coming into the office and listening to the conversation
(98A). One wonders whether this behavior of CHIODA was
the act of a man who knowingly had committed a crime or
tried to cover his tracks.
JEFFREY WEBER, was a forensic chemist employed
by the D.E.A. (7.119). He testified that he analyzes
substances suspected of being narcotics, had been
employed there for seven years and had degrees in
chemistry from City College and Brooklyn College (7.119).
He testified that he had analyzed drugs on thousands of
occasions and had been an expert in Court many times
(7.120). However, if one understands a little bit
about the background of percodan, there can be no doubt
that this chemist had absolutely no knowledge with reaard
to the nature and characteristics of that substance and
that his testimony should have been ruled incompetent
as a matter of law. It is suggested that a half hour's
-20-
research would make one more of an expert on percodan
than Mr. WEBER. It was incumbent upon the government,
a fact recognized by everyone, to prove that percodan
was a Schedule II narcotic and this witness’ testimony
was the only testimony regarding that issue. The whole
thing was so contradictory and so confusing that it
could not reasonably be argued that he proved anything.
Mr. WEBER described the tests he made and concluded
that the government's exhibits in this case, the pills,
were a preparation made by Endo Laboratories known as
percodan which contained oxycodone (99A-101A).
Over objection, which will be discussed in the
argument portion of this petition, the Court took
jusicial notice that oxycodone was a Schedule II sub-
stance, and the witness testified that to the best of
his knowledge, oxycodone was controlled under Schedule
II (T01A-102A). That concluded the witness’ direct
examination, and on cross examination, WEBER testified
that the oxycodone component in percodan was 4.50
milligrams of 14-hydroxydihydrocodeinone, that sub-
stantially differed from oxycodone in that it had
hydrochloride attached to the molecule which resulted
in that compound (105A). He was then asked what the
difference was between that substance and dihydro-
-21-
codeinone, but the witness didn't know, sayina he
would have to look at his Merck Index. He thought,
however, that they were identical (107A). The chemist
then looked at Schedule III,which included components
containing not more than 300 milligrams of hydro-
codeinone per 100 milliliters or not more than 15
milligrams per dosage unit (108A). Obviously, if the
hydrocodeinone is the same as a substance found in
percodan, then it fits in with the Schedule III classifi-
cation and cannot be considered a Schedule II narcotic,
since by the very terms of Schedule II, if the substance
is dealt with elsewhere, it is excluded from classifi-
cation under Schedule II. The witness had no knowledge
as to whether oxycodone and dihydrocodeinone are the
same, but he thought that they were (109A). The
chemist also acknowledge that the oxycodone component
in percodan only amounted to 4.5 milligrams, which
means that the milligrams in the usual dosage of a
percodan pill was Seen ‘than the 15 milligram per dosaage
unit described in Schedule III (110A). The attorneys
argued that this is a Schedule III narcotic, but the
Court would not allow anything further, and held that
a percodan tablet, no matter what was in it, came
under Schedule II. The witness constantly reiterated
-22-
the fact that he really did not know the difference
between these various chemicals, and the chemist said
that he could not even say with certainty that the
substance in this case was really a Schedule II nar-
cotic. The witness also referred to the literature
put out by Endo which showed that the oxycodone
compound was 14-hydroxydihydrocodeinone. It was
shown that percodan is made up of other materials
as well.
The next day the government put Mr. WEBER back
on the witness stand. The prosecution conceded that
the question of whether percodan was a Schedule II
narcotic was an essential element of the indictment
and must be proven by the government beyond a reason-
able doubt (119A). Argument was also made that the
question of whether the material was a controlled
substance was a question of law and not one of fact,
an argument which the Court agreed with, so that the
issue of whether percodan was oxycodone was never
submitted to the jury, but decided bythe Court (121A).
The petitioners’ attorneys consented to the issue
being decided by the Court. In effect, petitioners '
right to a jury trial on the issue was waived. The
question arises as to whether counsel could take this
-23-
action without the actue. consent of the petitioners.
The government also admitted that if the substance was
really a Schedule III drug, then the indictment would
have to be dismissed (122A). ‘WEBER testified that he
looked at his Merck Index, and after reading from
page 774 of that volume he concluded that oxycodone
and dihydrocodeinone, the substance described in
Schedule III, are different (123A-124A). He claimed
that oxycodone, as mentioned in Schedule II was differ-
ent than dihydorcodeinone, as discussed in Schedule
III. It is also interesting to note that regardless
of what the outcome of that argument may be, the
question of whether the petitioners would have had to
know that it was a Schedule II rather than a Schedule
III narcotic arises, and there was absolutely no proof
in this case that petitioners had that knowledge.
Oxycodone is the same as 14-hydroxydihydrocodeinone
but is different from dihydrocodeinone. The differ-
ence is the 14-hydroxydihydrocodeinone, which means
that on the 14th carbon there is a difference in the
OH group, which is oxygen (130A-131A). It is also
interesting to note whether the addition of oxygen
can change the basic nature of the narcotic. There is
also no evidence on this ussue. The chemist constantly
-24-
maintained that the only difference was this oxygen
difference on the 14th member of the rina (132A), but
he concludes that percodan only contains 4.50 milli-
grams of oxycodone (133A-134A).
During the prosecution's summation, when defense
counsel objected, the Court lost its temper and told
the attorneys to, "Shut up and sit down". Of course,
motions for mistrial were denied I138A), but the Court
apologized to the jury for losing its temper and told
the jury that the attorneys had a perfect right to
object. The jury was also told not to make any infer-
ence against the defense because of that incident.
The Court then advised that the reason it lost its
temper was because it demanded docorum in its court-
room (138A-139A). The attorneys argued that even
the explanation was damaginy because it implied to
the jury that defense counsel had not been affording
the Court decorum during the trial (141A). The Court
then said it would take the two mistrial motions under
advisement, but it was never decided (141A). CHIODA's
attorney arqued that when the Court cut him off, it
also stopped him from making further objections to what
he considered improper rebuttal on the part of the
prosecutor (142A).
-25-
The Court charged the jury as a matter of law
that percodan was a trade name for a Schedule II
narcotic controlled substance, and that as a matter
of law it came within that statute (143A-147A).
The jury came back and asked for the testimony
of Detective WAINEN with regard to the December 10,
1976 meeting at Eastern Chemical long after the
arrests had been made. The conversations were read
back to the jury (148A-153A). Specifically the
portion when CHIODA said that he remembered CICCONE
being there once was related (150A-153A).
All of the petitioners were found not guilty
as to every substantive count in this indictment, but
they were convicted of the conspiracy count alone.
POINT I
THERE WAS NO PROOF BELOW TO INDICATE
L H H
TT NARCOTIC. PERCODAN IS NOT A SCHEDULE
TT NARCOTIC AND THE INDICTMENT ON ITS
FACE MUST BE DISMISSED. TO CLASSIFY IT
UNDER SCHEDULE IT VYOLATES DUE PROCESS.
The indictment below charged petitioners with
conspiring to deal in and with dealing in a Schedule II
Controlled narcotic,to wit: percodan. The jury acquitted
al] three men of the substantive counts, but convicted
them of conspiracy. It was the government's contention
-26-
that percodan is synonymous with oxycodone, inasmuch
as oxycodone is mentioned in Schedule II but percodan
is not.
During the trial everyone agreed that the burden
of proof of the government included proving that
percodan was a Schedule II narcotic as an essential
element of the indictment, a fact which required proof
beyond a reasonable doubt (119A). If in fact the sub-
stance did not come within Schedule II or it was not
synonumous with oxycodone, which is the designation
in Schedule II, then all agreed that the indictment
would have to be dismissed (119A-131A). The Court
found as a matter of law that percodan was a Schedule
II narcotic, and that issue was never submitted to the
jury (121A,143A-147A). Although counsel apparently
consented to that procedure, the question of whether
counsel could so waive a jury trial on the issue
is discussed in Point VI herein.
When one examines the schedule of controlled
substances enumerated in Title 21 U.S.C. Section 1308,
etc., one must conclude not only that percodan is not
synonymous with oxycodone, but that the oxycodone
possession in this case cannot come within Schedule II
of that body of law. The schedules were set up and
x, os
the Drug Control Act was passed based upon certain
criteria which divide prohibited substances according
to the degree of potential for abuse, the currently
accepted medical use of such substances, and absuses
which may lead to psychological and physical depend-
ency. In other words, the more dangerous a drug the
lower its classification. In order to convict some-
one of conspiracy to deal or dealing in that drug or
substance,it is necessary to show that the person
dealt with a narcotic within the particular schedule
charged and also that he knowingly conspired to deal in
it or dealt with it knowing that the particular narcotic
same within the particular schedule. This is discussed
in greater detail elsewhere in this brief, but the point
is that if a person is convicted of conspiring to deal
in oxycodone, a Schedule II drug, that person must know
that oxycodone is listed in Schedule II.
Schedule II contains the narcotic called
oxycodone as the fifteenth item listed in subdivision
(b)(1) of Section 1308.12, Schedule II. It does not and
never has listed percodan as a controlled substance in
any of the schedules listed in Title 21. The govern-
ment, however, contended that possession of percodan
was the same as possession of oxycodone because
-28-
percodan is merely a trade name for oxycodone. Nothing
could be more inaccurate. The only evidence in this
case came from the mouth of Mr. WEBER,the government
chemist, and a reading of his testimony showed that
he had no idea of the nature of oxycodone, percodan or
any of the similar chemicals contained in Schedules II
or III. However, one thing that was made clear was
that percodan is a tablet produced by Endo Laboratories,
Inc., which contains oxycodone in the form of 14-hydro-
xydihydrocodeinone. Each tablet contains a total of
4.88 mgs. of oxycodone component, but it also contains
224 mgs. of aspirin, 150 mgs. of phenacetin and 32 mgs.
of caffeine. Thus, the total oxycodone compound
represents 4.88 mgs. of a total of 420.88 mgs. The
total percentage of oxycodone in the percodan tablet
comes to approximately one percent. The literature
published by Endo describing percodan as containing
the above ingredients was discussed by the chemist
at the trial and read into evidence. That literature
alone, by its definition shows that percodan cannot
be the same of oxycodone, since oxycodone is only a
small component of the tablet percodan. There is
no law or schedule which makes percodan, by name,
illegal to possess. Nothing indicates that percodan
-29-
should be synonymous with oxycodone and certainly
nothing in the statute takes that position. For the
government to contend that percodan is the same as
oxycodone, although percodan is not included in the
statute, and then to contend that the defendants should
have had knowledge of the fact, is straining reason.
To come to that conclusion, two assumptions are
necessary. It would be required to assume that the
petitioners knew that percodan was the same as oxycodone
and also that they should have or had known that oxycodone
was included within Schedule II. These are both issues
which were not proven or litigated at the trial, so that
the conviction must fall based upon the failure to
adduce any evidence of these issues. Furthermore, the
indictment should be dismissed because it charges
petitioners with dealing in percodan in violation of
Schedule II rather than oxycodone.
One need only compare the different schedules to
see that percodan or the possession of oxycodone within
a percodan tablet is not prohibited under Schedule II.
Schedule II talks about prohibiting, "...any of the
following substances ..." Section 1308.12 Schedule II
(b). It then lists seventeen items, all of which are
basic substances found in their natural state. For
-30-
example, the Schedule lists opium, opium extracts,
codeine, morphine and certain extracts. Oxycodone is
also listed under number 15 as a basic chemical, and
the only extract listed is Item 16, which is oxymor-
phone. If this Court examines Schedules III and IV,
these schedules prohibit the possession of or dealing
in "...any material, compound, mixture or preparation
which contains any quantity of the following sub-
stances ..." Section 1308.13(b), Schedule III and
Section 1308.14(b), Schedule IV. Schedule III also
goes on to prohibit certain materials which contain
more than a certain percentage of codeine or dihydro-
codeinone, to which oxycodone is related. In other
words, Schedules III and IV prohibit the possession
of compounds in which certain percentages of prohibited
narcotics are present. Schedule II prohibits possession
of these narcotics in their pure form, because it is
the only schedule that makes no mention of materials
containing the prohibited narcotic or the percentage
of the narcotic which falls within the schedule. Such
is the case with Schedule I which is more like Schedule
II, in that it deals with pure substances. It is clear
by a simple comparison of the schedules that it was the
intent of Congress, in Schedule II, to prohibit the
aie
possession of oxycodone in its pure form and not to
prohibit compounds containing a small percentage of
of oxycodone, or Congress would have specified the
same.
Oxycodone is a chemical produced by the reduction
of hydroxycodeinone, and is not synonymous with percodan.
In Europe, oxycodone is sometimes prescribed in its
pure form, whereas in the United States it is usually
only administered as it is contained in the percodan
tablet. Thus, in an article written by S. Takki and T.
Tammisto in "The Anaesthesist", Vol. 22, Issue 4,
1973, Pages 162-166, entitled, "A Comparison of
Pethidine, Piritramide and Oxycodone in Patients
with Pain Following Cholecystectomy", it can be seen
that in a hospital in Finland tests were made concern-
ing the relative effectiveness of the three different
substances after certain surgery. Noteworthy in the
article is the fact that oxycodone was administered,
not in the percodan form, but in its original condi-
tion. That study conclusively shows that oxycodone has
a significant medical value, and percodan to a lesser
extent is used for other situations. In other words,
the two are not the same, In the Physicians Desk
Reference, 30th Edition, 1976, percodan is shown to
=32-
contain oxycodone, and the difference clearly shows
that it is only one component in the tablet. The
Reference says the “oxycodone component is 14-hydro-
xydihydrocodeinone, a white odorless crystalline pow-
der which is derived from opium alkaloid, thebaine.
In other works, such as K.W. Bentley, “The Chemistry
of Morphine Alkaloids", Oxford 1954, Chapter 10, show
the complicated relationships between oxycodone,
hydroxycodeinone, dihydrocodeinone and codeine, and
it shows how one is produced from the reduction of
the other by virtue of a catalyst of a metallic nature,
so that one substance is the salt of another.
In addition,another reason exists why percodan
is not a Schedule II narcotic. Iy should be mentioned
at this point that the classfications in subdivision
(3) of Schedule III, specifically (4) in that sub-
division, make it very clear that percodan is really a
Schedule III narcotic. For example, in Item (4) it
makes possession of more than 300 milligrams of
dihydrocodeinone per 100 milliliters or more than
15 milligrams per dosage unit ofthat amount to be
illegal, yet the dosage unit of percodan is only 4.88
milligrams. Thus, the prohibited combination in that
Section is three and one-half times more powerful than
x.
percodan, essentially the same chemical, yet it is
classified as a less serious narcotic. This is true
of all of the classifications under subdivision (e)
in Schedule III.
Also, under Schedule II, subdivision (b)(2), any
salt of any of the prohibited chemicals, such as opium,
is also prohibited if it is chemically equivalent or
identical to that substance. By virtue of that defini-
tion, any salt which is a derivative or salt, but is
not chemically equivalent must be less dangerous and
would come within the prohibitions of Schedule III
rather than Schedule II. Schedule II initially lists
prohibited substances, "Unless listed in another
schedule ..." 1307.12 Schedule II(b). Therefore, if
the oxycodone component in percodan is a salt of
oxycodone, then it would fall within Schedule III.
According to the Endo literature, the oxycodone com-
ponent is 14-hydroxydihydrocodeinone. That substance,
by definition, is a salt of oxycodone. It is listed
as a salt under the definitions, under Title U.S.C.,
Food and Drugs, Section 329.1 and in the Bently book,
"The Chemistry of Morphine Alkaloids", it is clearly
described as a salt from being produced by the reduction
-34-
of dihydrocodeinone by the use of a metallic catalyst.
Bentley, “The Chemistry of Morphine Alkaloids", supra,
pages 168-176. The key to the true nature of the sub-
stance found in percodan is the word, "Hydroxy", which
is defined in Webster's Third New International Diction-
ary as “containing hydroxy] esp. in place of hydrogen
in the names of chemical compounds or radicals". Hydroxy]
is “the univalent group or radical OH consisting of one
atom of hydrogen and one atom of oxygen that is
characteristic esp. of hydroxides, oxygen acids, alcohols,
glycols, penos and hemiacetals. Also salts are
derived from acids by replacement of part or all of the
acid hydrogen by a metal or radical acting like a metal
that may be formed by the reaction of acids with bases
either with or without elimination of water with
metallic oxide, or with metals and also in other
ways." Webster's Third New International Dictionary,
1967, page 2005. A reading of the Merck Index, the Bentley
book and the other medical data shows that while
codeine is the original substance and related chemicals
are created by reduction using a metallic catalyst which
makes that chemical the salt of the chemical it is.
reduced from. In other words, 14-hydroxydihydrocodeinone
is a salt of oxycodone. It is not identical to it and it
-35-
|
:
|
is really a Schedule III substance, similar to
dihydrocodeinone described in that Schedule.
Of great significance is the fact that these
matters were not even inquired into in the Court below.
No evidence was presented to show what the nature of
percodan was or its relationship to oxycodone or how
it was created and its specific nature and character-
istics. |The chemist who testified was particularly
incompetent and had no knowledge of any of the issues
involved. He was so confusing that he contradicted
himself continuously and at one point he testified
that all of the different chemicals were synonymous,
and then he testified that they were different. He
concluded that the oxycodone component was only 4.50
mg. which would make it less than the prohibited amount
described in Schedule III(3)(1)-8. It should also be
pointed out that in Item 8 in subdivision (e) of
Schedule III, the substance, morphine, in its pure
form, is discussed where the possession is 500 milli-
grams per 100 milliliters.Here,too, that substance is
more dangerous and powerful than the percodan in the
instant case. The witness continuously said that he
did not know what the difference between the various
substances was, but he did acknowledge that the perco-
-36-
dan component substantially differed from oxycodone
in its pure form (105A). He continuously said that he
was not sure about anything and then, when he came back
the second day, he still relied upon the Merck Index,
but again exhibited no comprehensive knowledge regard-
ing anything of substance to do with the substances in
the case. The Court generally accepted his conclusions
without thought and completely foreclosed that issue from
the litigation or from consideration by the jury. If
the factors we have just described were explored and
explained, the jury could have very well found, as a
matter of fact, that percodan is not synonymous with
oxycodone, and that it is not a Schedule II narcotic.
The jury was charged as a matter of law that percodan
was a Schedule II narcotic, and this essential element
was taken out of the case. Certainly,the government's
failure to sustain its burden in this regard in this
case must be reviewed; In the only reported case in-
volving percodan, Rivas v. United States, 368 F.2d 703
(9th Cir. 1966), the question involved was whether
percodan tablets were a narcotic drug. The statute
at the time of that prosecution made no differential
between percentages of a compound containing narcotics,
but the only issue was whether percodan contained
-37-
codeine and whether, because of that, it was a narcotic.
There were no schedules set up at the time and no find-
ing regarding the true nature of percodan was made, ex-
cept that it was found that percodan was a derivative
of a narcotic drug only because it contained 1% of di-
hydrocodeine. It is submitted that had the prohibition
in the statute been against oxycodone, rather than
merely finding percodan to be a narcotic, that that
prosecution also would have had to fall.
No one in this case seemed to really know any-
thing about the true nature of percodan. The prosecutor
admitted that he did not do his homework (119A), and
the Court just went along with the prosecutor's
contentions without any kind of inquiry. The chemist,
of course, was totally confused, and it seems that this
case should not have been allowed to conclude without
proper inquiries into the whole narcotic question.
POINT II
NO PROOF WAS PRESENTED TO SHOW THAT THE
DEALT WITH, PERCODAN,WAS A SCHEDULE I
CONTROLLED SUBSTANCE. TO CONVICT THEM
E
PROCESS.
Petitioners contended that the percodan tablets
that they dealt with were not a Schedule II substance,
-38-
and so the indictment must be dismissed as a matter
of law. However, regardless of whether it is a
Schedule II or Schedule III narcotic, the law is clear
that in order for a prosecution like this to be sus-
tained, there must be proof that the petitioners knew
what they were dealing with and knew that the specific
substance was specifically prohibited in the correct
schedule. In United States v. Goldman, 450 F.2d 873,
(1971 Ist Circuit),the jury was told that even if salt
of morphine was a narcotic drug, as a matter of law,
the prosecution would have to prove that the defendant
knew he was selling,a narcotic drug. In other words,
if he knew that the subject of the sale was morphine,
but didn't know that morphine was a narcotic, the
prosecution would fall. There is, of course, no evidence
in the instant case that even if the petitioners knew
they were dealing in percodan that they knew percodan
we; a narcotic or that it was a Schedule II substance.
It is true that studied ignorance of a fact may
constitute an awareness of so high a probability of :
the fact that an inference of knowledge would be justi-
fied, still in the absence of such an extraordinary
situation, knowledge must be actually proven. For
example, in a cocaine smuggling case where the cocaine
-39-
was contained in a man's belt and he took furtive
actions when he came into the airport, circumstances
made it plain that he had knowledge. Still, true
ignorance in a case with less suspicious circumstances
would be an actual defense. United States v. Joly,
493 F.2d 672 (1972 2nd Cir.); United States v. Jones,
486 F.2d 476 (1973 8th Cir.); Leary v. United States,
395 U.S. 6 (1969); Turner v. United States, 396
U.S. 398 (1970); United States v. Moser, 509 F.2d
1089 (1975 7th Cir.). Where a person selling a sub-
stance which he thought to be heroin but which was
really an uncontrolled substance, the sale did not
constitute a criminal act. The actual knowledge of
the true nature of the substance and the manner in
which it is prohibited is essential. United States v.
Oviedo, 525 F.2d 881 (1976 Ist Cir.). Ignorance may
be no excuse, but where an uncontrived lack of knowledge
deprives someone of the specific intent necessary to
commit the crime, it is a complete defense. United
States v. Squires, 440 F.2d 859 (1971 2nd Cir.).
In the case at bar there is absolutely not one
scintilla of evidence to show that the petitioners
knew that the percodan they were dealing with was a
Schedule II prohibited substance. In fact, there was
-40-
not even any evidence of any value to show that they
even knew they were dealing with percodan or knew that
it was prohibited generally. PALUMBO and CHIODA had
a substantial industrial chemical business, and it seems
outlandish for them to have risked everything in
exchange for the relatively small amount of money that
they would have made from the sale of percodan. In
addition, these were men who were experienced with
chemicals, yet they made no attempt to remove the mark-
ings or labels from the bottles of percodan. CRITELLI,
the real infamous character in this whole scenario,
was extremely concerned with taking the labels off
when he sold them to the undercover police officer.
Here was a man who was experienced in these matters
and who knew full well that he could be arrested in
the event these pills were ever seized. He certainly
had the knowledge that what he was dealing with was
illegal, but the very fact that petitioners did not
seek to protect themselves against this eventuality
shows that they were ignorant of the nature of
percodan. After all, nothing could have been easier
than for petitioners to remove the labels from the
bottles. ‘In addition, CRITELLI admitted that in all
of the telephone conversations he specifically had
-4]-
with the petitioners the word, percodan, was never
used in any of the telephone calls (72A, 76A). The
profit to petitioners was minimal and the real money
would have been made only by the people who were
reselling the pills (6.97,78A). Even after the case
ended and after the arrests were made, the conversa-
tion with CRITELLI in the presence of the undercover
police officer did not put additional knowledge in the
minds of the petitioners. SHINE and PALUMBO were not
present, so that a Bruton situation developed as to
them, However, the conversation itself in no way
indicated that CHIODA knew that percodan was involved in
the cartons that supposedly were previously delivered
or that percodan was a narcotic and prohibited under
Schedule II. CHIODA only assumed that something had
been picked up by ANTHONY (71A). The way the conversa-
tion came about, it was really a response to a question,
and depending upon the tone of the response, the state-
ment, which was ambiguous, could have meant just about
anything. The point is, the undercover police officer
never heard of the petitioners, and the CICCONE's had
nothing new to offer in the way of proof which would
indicate that they had dealt with percodan knowing
what it was. The evidence as to SHINE is even more
-42-
tenuous. The only testimony against SHINE was that he
put a wrapped carton in CRITELLI's car. SHINE was not
present at any of the meetings and the only reference
to SHINE made by one of the petitioners was that, "Monk
finally did something right", and is completely absurd
as evidence tending to give SHINE knowledge of what was
going on.
It is most respectfully suggested that no evidence
in this case exists whatsoever, even out of CRITELLI's
month, that indicates that the petitioners knew
percodan was a Schedule II narcotic. There is also
no evidence to indicate that the petitioners knew that
percodan was prohibited even in general. The absence
of any evidence at all on the issue deprived petitioners
of a fair trial within the concept of due process.
The result here, in effect, was a conviction without
any basis.
POINT III
THERE IS NO PROOF THAT THE PETITIONERS
The Courts have consistently and traditionally
held that for one to be acceptable as a conspirator,
-43-
h : :
e must associate himself with that conspiracy and , sais . : ‘ “
come from independent sources other than testimony
in some manner promote the venture of h
0:6 Se of a co-conspirator. It is only once a defendant's
in its outcome. Direct Sales Company v. United States,
invol is i dent] hed that th
319 U.S. 703 (1943); United States v. Ries. en involvement is independently establishe t the
acts and conversations of a co-conspirator can be
F.2d 579 (2nd Cir.), aff. 311 U.S
-)s ° -S. 205 (1940). It has
charged to a defendant. In United States v. Rodriques,
been a
ccepted that knowledge of the agreement to violate 491 F.24 663 (3rd Cir. 1974)
, ° r Pe even though the District
the law must be attributable to the defendant, and that .
k Court initially admitted the statement of a co-
nowledge must be based upon serious inference or proof ,
other than the declarations of a conspirator into evidence, there still had to be
co-conspirator.
Cinquegrano v. United States, 379 U.S. 960 (1964): independent evidence linking the declarant to the
Evola v. United States, 362 U.S. 974 (1960). defendant. Once the independent basis for the evi-
It has also been held, and the law is almost dence exists, it would be up to the jury to deter-
universal, that mere participation in a Single, isolated _ a much weight: it should merit, but unless
transaction is an insufficient basis ines tila he tee some independent proof of participation in a
an inference of a continued participation in a conspiracy CRIN SUS ah ee We HENRI SOHNE
even come into the trial. The Rodriques case was re-
or that a person adopted its purpose and ends. United
affirmed in United States v. Trowery, 542 F.2d 623
States v. Santore, 290 F.2d 51 (2nd Cir.), cert. den.
sub nom, D'Aria v. United States, 365 U.S. 834 (1966); (3rd Cir. 1976), and adhered to the rule that before
United States v. Denoia, 451 F.2d 979 (2nd Cir. 1971): co-conspirator evidence could be admitted at a trial,
the Court would have to determine that an independent
United States v. Morado, 454 F.2d 167 (5th Cir.)
cert. den. 406 U.S. 917 (1972). basis for involvement in the conspiracy existed. If
The Courts have also been almost unanimous in this were not true, then hearsay evidence of this
holding that in order to establish a defendant's sort would be lifted by its own boot straps to the
participation in a conspiracy, that the evidence must level of competent evidence. This theory is not new,
since this Court recognized it in Glasser v. United
-45-
-44.
States, 315 U.S. 60 (1942), and a description and
explanation of the particular, specific nature of
the rule is given by the Third Circuit in Trowery
at page 627. The Court said:
"Since the quantum and nature of evidence
required for the application of the co-
conspirator exception differ from that
required for conviction of the crime of
conspiracy, '(t)he trial judge's finding on
admissibility in no way restricts the
the jury's inquiry into guilt or innocence,'
when the crime of conspiracy is charged in
the indictment, Carbo v. United States, 314
F.2d at 737"
United States v. Trowery, supra, at 627.
The Third Circuit's holding in Rodriques was
also cited in United States v. Herrera, 407 F.Supp.
766, 773 (U.S.D.C.N.D. I11. 1975), wherein the
independent evidence rule was recognized, and it was
also followed in United States v. Wolk, 398 F.Supp.
405 (U.S.D.C.E.D. Pa. 1975).
Almost every other jurisdiction has adopted the
same rule requiring independent proof of a co-conspira-
tor's involvement in a conspiracy before the acts or
declarations of his so-called associate may be used
against him. Taylor v. United States, 260 F.2d 737
(D.C. Cir. 1959); Williams v. United States, 289 F.2d
598 (9th Cir. 1961); Glover v. United States, 306 F.2d
~46-
594 (10th Cir. 1962); Montford v. United States, 200
F.2d 759 (5th Cir. 1953); National Dairy Products Corp.
v. United States, 350 F.2d 321 (8th Cir. 1965); United
States v. Santos, 385 F.2d 43 (7th Cir. 1967); United
States v. McGowan, 423 F.2d 413 (4th Cir. 1970).
When one examines the evidence in the trial at
bar, the conclusion must be reached that not one single
iota of evidence existed other than the testimony of
one co-conspirator, CRITELLI, that petitioners partici-
pated in the conspiracy. Here, too, the conviction of
petitioners without any basis in fact at all deprives
them of due process.
There is no evidence other than CRITELLI's testi-
mony that the petitioners ever adopted the ends of the
conspiracy, participated in the conspiracy, or that
their involvement, if at all, was anything more than
an isolated sale of some cartons of percodan. This
case falls within the general rule that single acts
are insufficient and mere association with an alleged
co-conspirator without knowledge is insufficient to
establish participation in a conspiracy. United States
v. Stromberg, 358 F.2d 267 (2nd Cir.) cert. den. sub
nom Lessa v. United States, 361 U.S. 863 (1959); United
States v. Morado, supra; United States v. Falcone, supra.
-47-
In the Falcone case, a defendant sold material for
making beer to members of a distilling ring with
knowledge that the material would be used for an illeaal
purpose. Still, this Court held that a mere purchase
or sale did not establish knowledgeable entry into an
illegal venture, since the sale did not confirm the
defendant's essential stake in the outcome of the con-
spiracy. In addition, knowing that the material would
be used for an illegal purpose did not establish, in
and of itself, that the defendant knew of the conspiracy
or knowingly associated himself with it. The same
result was reached in United States v. Peoni, 100 F.2d
401 (2nd Cir. 1938), wherein Peoni sold counterfeit
bills to someone who,in turn, resold them to another
person, each knowing that the bills were counterfeit.
The Court said that the transactions were isolated pur-
chases and sales and, therefore, insufficient to link
the defendant to a common criminal activity. The same
is true where sales of drugs or narcotics are made
without specific involvement of the seller in the con-
spiracy to subsequently distribute.Although the Second
Circuit found that the evidence of knowledge is clear
in one case, it said although there:
"may be circumstances in which the evidence
-48-
of knowledge is clear, yet the further step
of finding the required intent cannot be
taken. Concedely, not every instance of
sale of restricted goods, harmful as are
opiates, in which seller knows the
buyer intends to use them unlawfully, will
support a charge of conspiracy.
Emphasis added. Direct Sales Company v. United States,
supra at 712.
This case is peculiar, The jury acquitted all
three petitioners of all of the possession and sale
charges involving the percodan. Had that not happened,
it could have been argued that the proof of the sale
alone does not necessarily mean that the petitioners
participated in an over-all conspiracy to distribute
percodan. The government's position in this case must
be considered to be weaker than in the normal case, be-
cause they cannot even argue that there was a sale in
this case, since the jury's conclusion must be binding
in that regard. The jury's conclusion must also under-
mine the credibility of CRITELLI, a co-conspirator, and
the only government witness who gave evidence that
petitioners were involved in a conspiracy. Obviously,
the jury did not believe CRITELLI, otherwise they would
convicted petitioners of a sale.
The other members of this alleged conspiracy, the
CICCONE brothers, never testified that petitioners knew
-49-
who they were or what they had intended to do with
the percodan, and the undercover agent to whom the
narcotics were resold, Officer WAINEN, never even
heard of petitioners until after the arrests were
made (91A, 92A-94A).
The only other evidence in this case that
involved petitioners and did not come from the mouth
of CRITELLI, was the incident that occurred at Eastern
Chemical more than a month after the arrests. It is
most respectfully suggested that that has no probative
value with respect to establishing petitioners’ partici-
pation in the conspiracy. There was no conversation of
value, and the undercover officer only heard petitioner,
CHIODA, acknowledge that CICCONE had picked up something
On one occasion. It is submitted that that testimony
was sO ambiguous that it established absolutely nothing.
The most that could be said about it, even if one
assumes that it was incriminating or relevant, is that
it established that CICCONE picked up something. Even
at that, the conversation did not describe what it was
that was picked up, and it really could have related to
anything. It also was obviously an attempt by CHIODA,
without thinking, to merely acknowledge or agree to
whatever was said at the time, which is something that
-50-
most people do quite often. We are very familiar with
situations where discussions are had, and rather than
prolong the conversation on a particular detail, a
person may make a statement such as, "Okay, you are
right". We are all familiar with similar statements
which are made in haste, but which really do not prove
anything. This statement allegedly made by CHIODA,
even if it was well thought out and not a hasty re-
sponse to a statement made to entrap him,would not
infer that the petitioners participated in any scheme
or conspiracy. In addition, neither PALUMBO or SHINE
were present, so that the statement could not be
attributed to them. In any event, it could also not
be used against PALUMBO or SHINE to establish partici-
pation in the conspiracy, because if that is the
independent evidence sought to show participation, to
use it against the two petitioners who were not present,
would be, in effect, using the declaration of a co-
conspirator. This would obviously beg the question,
and would have the effect of lifting the prohibited
hearsay by its own boot straps.
The sum total of evidence in this case consisted
basically of the testimony of CRITELLI, who was the
only one who implicated the petitioners of doing any-
-51-
thing. This testimony, it is contended, was insuffi-
cient to establish the participation of the petitioners
in the conspiracy, as a matter of law, and it was testi-
mony of the very worst sort. This is true because of
the type of individual CRITELLI was, his great motive
to lie, and the fact that the jury apparently thought
he lied, since they acquitted the petitioners of four
of the five counts. It is difficult to say how, by
any stretch of the imagination, the government could
show that this was sufficient evidence, not only to
convict but to establish the fact that the petitioners
joined the conspiracy and adopted its ends as their
Own.
It is also claimed that all of the evidence,
regardless of from where it came, was insufficient
as a matter of law to sustain this conviction. This
is particularly true of SHINE, who was never present
at any of the conversations when percodan was discussed.
POINT IV
THE POST-ARREST CONVERSATION IN WHICH
NOT BE USED AGAINST THE OTHER PETITIONERS
_
RO
We referred to a conversation which occurred
-52-
about a month after petitioners were arrested and
argued that it was not indicative of participation
in any conspiracy. In addition, we suggested that
the use of that conversation violated petitioners’
rights under the Sixth Amendmant, as decided in
Bruton v. United States, 39] U.S. 123 (1968). It
was clearly established in that case that a co-
defendant's out-of-court confession implicating
another defendant could not be admitted even though
clear instructions regarding its use were given to
the jury. Everyone is familiar with the Bruton case,
and probably every lawyer who practices criminal law
knows of the rule enunciated in that decision. How-
ever, sometimes the reason for the rule and the theory
of the dacteten are forgotten. The right that is in-
volved is the right of cross examination which is
included in the right of an accused in a criminal case
to confront the witnesses against him. The reason for
the decision had nothing to do with voluntariness or
coercion. This is important because it indicates the
basis given by the Court in this case for overruling
petitioners’ Bruton objection. After prolonged argu-
ment on the whole question of Bruton and the admissi-
bility of the December 10, 1976 conversation, the Court
-53-
held that it was admissible because Bruton was not
involved, since CHIODA had not been in custody (63A-64A).
Custody has nothing to do with a person's right to cross
examine and to confront witnesses. Custody has
traditionally only been relevant regarding the question
of voluntariness and coercion. In the leading case of
Jackson v. Denno, 378 U.S. 368,(1964), much was said
about coercion, police dominated atmosphere and other
factors which are to be considered on the question of
voluntariness. Many courts have since recognized that
coercion and voluntariness had a direct relationship
to truth, and so these matters became important. How-
ever, in the Bruton situation, voluntariness has nothing
to do with the situation. Along these lines, where a
person is in custody, since it is his right to cross
examine and confront witnesses that is involved in that
regard, whether a statement is taken or a confession
or admission is given, is similarly unimportant; since
it is the inability to cross examine a statement made
at a different time and a different place which is
involved. The inability to cross examine and the in-
ability to confront witnesses are reasons for Bruton
and all of the cases following it. Nelson v. O'Neil,
402 U.S. 622 (1971); Schneble v. Florida, 405 U.S. 427
-54-
(1972); United States v. Yates, 524 F.2d 1282 (D.C. Cir.
1975); Calloway y. United States, 399 F.2d 1006, cert.
den, 393 U.S. 987 (D.C. CIr. 1968); Park v. Huff, 493
F.2d 923, reh. 506 F.2d 849 (Sth Cir. 1974); United
States v. Addonizio, 451 F.2d 49, cert. den. 405 U.S.
936, reh. den. 405 U.S. 1948 (3rd Cir. 1971). :
Even if the admission or statement is admissible
under the co-conspirator exception to the hearsay rule,
that does not mean that the confrontation clause of the
Constitution fs complied with. United States v. Snow,
521 F.2d 730, cert. den. 423 U.S. 1090 (9th Cir. 1975).
The Snow case is interesting, because that involved a
situation where there was no custodial detention, but
an out-of-court statement was made to an undercover
officer, just like in the case at bar. That made no
difference because the right of confrontation and the
right to cross examine had nothing to do with whether
the person was in custody. The opinion cited in United
States v. Baxter, 492 F.2d 150, 177 (9th Cir. 1973),.
cert. den. 415 U.S. 940, and other cases wherein factors
relative to reliability were considered. It was held
that a court should determine whether the statement
was admissible based upon the examination of certain
things, such as the circumstances under which the
-55-
statement was made, whether the statement contained an
assertion of a past fact, whether the declarant had
personal knowledge of the identity and role of the
participants in the crime, and other circumstances
which would be significant.
It is most respectfully submitted that the deare'e
permitting the statement of CHIODA to come in to this
case was wrong, not only for the reasons set forth in
Point II herein, but also because it violated the right
of the other petitioners under the confrontation clause.
POINT V
THE CUMULATIVE EFFECT OF THE ERRORS
ATTITUDE TOWARD THE PETITIONERS
DEPRIVED THEM OF A FAIR TRIAL.
Petitioners recognize that an antagonistic
attitude toward a defendant at a criminal trial or
errors committed by a Court are, to a great extent,
Subjective. In other words, no hard and fast rule
can really be drawn with obvious exceptions as to
each particular error or each particular mode of con-
duct on the part of a Court necessitating the reversal
of a conviction. These decisions can best be made on
a case by case basis when one appreciates particular
errors complained of relative to the particular facts
-*®
in each proceeding. It is also recognized that where
there is more doubt as to the guilt of a defendant, the
effect of the errors, misconduct or the cumulative effect
of the repeated improprietites, have more of an impact.
This case was a close case. One need only point
again to the fact that the jury acquitted all of the
petitioners of four of the five counts of this indict-
ment and that the only remaining count was based
entirely on the testimony of a not very upstanding co-
conspirator to illustrate this point.
With this in mind, it is most respectfully
suggested that no one can ever say with assurance that
the Court's outburst did not effect the jury's delibera-
tions.
The United States Attorney was giving his rebuttal,
and when that rebuttal is read it can be appreciated that
the prosecutor really went far beyond the purpose of
rebuttal. When the defense properly objected that the
prosecutor was testifying as an expert (136A), the
Court lost its temper and admonished the defense
attorneys. The Court said that their time talk was
over, they should sit down and remain silent (136A).
When objections were then made during the point where
-57-
the prosecutor discussed the testimony of the
security guard for Endo Laboratores, an item which is
discussed hereafter, the Court became abusive. The
Court told counsel to, "Shut up and sit down". The
Court continued, "Yes, please sit down. I've had
enough over there" (137A). Motions for mistrial
were denied (138A), and then the Court apologized to
the jury for its actions. The Court told the jury that
it did something no Judge was supposed to do -- it
lost its temper. The Court also told the jury the
defense had a perfect right to object, and that if
the Court didn't agree with the objection, it could have
calmly overruled it. The Court continued that it was
wrong, and that the jury was to make no inferences against
the petitioners (138A-139A). If that had been the end
of the matter, it would have been bad enough, but the
Court continued by telling the jury that the reason for
it losing its temper was because, "...I demand decorum
in my courtroom, That is why I did it" (139A). Counsel
properly pointed out that the explanation did more
damage than the outburst because it implied to the jury
that decorum was not, "... being afforded the court from
this table” (140A-141A). In addition, counsel pointed
out that the particular objection that the Court responded
-58-
to was a proper objection. The Court again admitted
that it had been wrong, and the lawyers pointed out
for the second time that the explanation implied that
decorum was lacking, a fact which actually was not true
(141A). Another mistrial motion was made, and although
decision was reserved, apparently the Court never
rendered a decision (141A). Counsel for CHIODA also
added that after the Court lost its temper, he was
prevented from making further objections which he
considered proper, because he didn't want to antagonize
the Court further (142A). |
In a case this close, anything that a Court may
do which might indicate to the jury that the Court had
an opinion of the case could deprive a defendant of a
fair trial. When the Court said that it had enough of
defense counsel, the implication was clear that what
defense counsel had to say was unimportant and should
be disregarded. There can be no question that this may
have had a substantial effect on the deliberations of
the jury, and we can never be sure that it did not
constitute the last straw which caused the jury to
convict petitioners of one count while acquitting them
of the other four.
The attitude of the Court was apparent. Petitioners
-59-
had been at liberty on bail during the entire trial.
Petitioners, PALUMBO and CHIODA,were partners in a
substantial industrial chemical company, yet as soon as
the verdict was announced they were remanded without
their attorneys having an opportunity to say a word.
Obviously, there had been prior communication between
the Court and the United States Attorney or someone on
behalf of the prosecution. Obviously, the Court had
been told that during the December 10th conversation,
when the undercover police officer was present, that the
petitioners were planning to do harm to CRITELLI, the
main government witness. The Court simply said, "In
the meantime because of the severity of the offense,
the criminal records - past criminal records of the defen-
dants - and the atmosphere ofthe case in which one
witness, it was necessary to place him in the Marshal's
protective plan, defendants’ bail is vacated. Defendants
will re remanded in the custody of the United States
Marshal pending sentence" (154A-155A). The incident
happened so quickly that no one got a chance to say
anything, but it was explored further on sentence and
on motions regarding bail to the District Court and to
the Circuit Court. It was suggested that at the December
10th meeting, while the undercover officer, WAINEN,
-60-
was present, and at which time CHIODA made this
supposed damaging admission, a black customer of the
petitioners came to the premises looking for something
to stop up a plumbing drain. CRITELLI later complained
that the black man, JACOB PULLEN,looked at him so that
he felt threatened, although nothing was said. Based
upon this, which was somehow communicated to the Court,
petitioners were all remanded and bail was denied by
the Trial Court. That argument was also made by the
government in opposing bail in the Circuit Court. At
no time were the petitioners ever given a hearing or
was the witness, PULLEN, asked to give testimony, al-
though he submitted an affidavit to the Circuit Court
on the application so, in effect,the contentions of
the government were total nonsense.
The prosecutor said that he thought that the
petitioners were going to kill CRITELLI on December 10th
(156A)*, but nothing in the way of evidence or testi-
mony was ever submitted at any time to support this
contention. It is believed that this event, unproven,
was the sole basis for the severity of the sentences
imposed, which is discussed hereafter, but it also
serves to illustrate the Court's attitude in this case.
*Reference is to sentence minutes.
-61-
It is most respectfully submitted that the
cumulative effect of all of these occurrences plus
the obvious hostile attitude of the Court deprived the
petitioners of a fair trial.
The Court allowed testimony of a conversation
in which CHIODA apparently said that MONK, meaning
petitioner, SHINE, finally did something right (49A).
Since SHINE was not present, this was in violation of
the Bruton rule and should have been excluded. The
United States Attorney was permitted to voice his own
opinion, on summation, as to the credibility of his
witness (8.56) and his rebuttal went far beyond the
purposes of rebuttal. There were strong objections
constantly made to the prosecution going into new
matters not discussed in the defense summation. The
prosecutor's rebuttal was just like another summation,
all over again (8.124-138).
The Court, in keeping with its hostile attitude
towards the defense, overlooked the government's
violation of its own discovery order as well as other
principles of law which required the prosecution to turn
over statements and other information to the defense
(4.115-117, 125-126).
Testimony of the only major witness, CRITELLI,
-62-
was obviously carefully rehearsed due to his total
reliance on the telephone records and his inability
to recall any other telephone calls reflected in those
records that he had not rehearsed himself to relate.
It cannot be said after considering all of the errors
committed that peitioners received a fair trial.
POINT VI
THE ATTORNEYS BELOW HAD NO POWER TO
BY JURY ON THE ISSUE OF WHETHER
PERCOONN WAS A SCHEDULE TT OR TTT
During the argument of the case in the Court of
Appeals, it was pointed out that the review capabili-
ties of the Court were somewhat limited because all
of the attorneys had consented to the Trial Court
deciding the issue of what percodan was. When the
prosecution first suggested that it was the province
of the Court to decide the issue, a position that the
Court shared, counsel agreed and the procedure of
having the Court rule on the issue was acquiesced in.
The petitioners did not affirmatively waive their
right to have that issue decided by a jury.
This Court, of course, is well aware of its
decision in Johnson v. Zerbst, 304 U.S. 458, and all
«83~
of the decisions which came thereafter, establishing
the fact that waiver of a substantial or constitutional
right must be affirmatively made with intelligence and
after consultation with counsel. Much was made during
the argument in the Court of Appeals that petitioners’
attorneys had consented to allow the Court to decide the
issue of the schedule under which percodan should be
placed, rather than having it submitted to the jury.
We submit that the consent, in effect, operated to
waive petitioners’ right to a jury trial on that issue,
which was one of the essential elements to be proven
by the government. Such waiver was not effected after
consultation with petitioners, nor were petitioners
asked by the Court whether they concurred in the
conduct of their attorneys or whether they affirmatively
realized that they were waiving their right to have
an essential element go before the jury. Of course,
we argued that even if such waiver was operative, the
Court's decision was so wrong, as a matter of law, that
petitioners’ constitutional rights were violated. The
waiver would not mean that any decision by the Court
would be binding and not subject to review. It is
suggested that if the instant petition is granted, the
question that will be presented to this Court is
just how far an attorney can go in waiving his client's
right to have an essential element tried to the jury
without the affirmative consent of the client.
CONCLUSION
THE PETITION FOR CERTIORARI SHOULD BE GRANTED.
Respectfully submitted,
STANLEY M. MEYER
Attorney for Petitioners
66 Court Street
Brooklyn, New York 11201
MEYER, LIGHT & LONDON
Of Counsel
y *
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 77-1890, 77-1891, 77-1892
UNITED STATES OF AMERICA
vs.
PALUMBO, Nicholas,
pppeliant., No. 77-1890
( eve r m. No. 77-20-1)
UNITED STATES OF AMERICA
vs.
CHIODA, Frank,
Appellant, No. 77-1891
(hE Crim. No. 77-20-2)
UNITED STATES OF AMERICA
vs.
SHINE, Eugene,
appel ants No.77-1892
( ove r Mm. No. 77-20-6)
Appeal from the United States District
Court for the District of New Jersey
-66-
Argued
January 9, 1978
Before: ALDISERT and HUNTER, Circuit Judges, and
HUYETT, District Judge.*
*Honorable Daniel H. Huyett, 3rd, of the United States
District Court for the Eastern District of Pennsylvania,
sitting by designation
JUDGMENT ORDER
After considering the contentions raised by
appellants, to-wit, that (1) there is no proof below
to indicate that appellants dealt with a Schedule II
narcotic and that percodan is not a Schedule II nar-
cotic and that the indictment on its face must be dis-
missed; (2) no proof was presented to show that the
appellants knew the substance they dealt with, percodan,
was a Schedule II controlled substance; (3) there was
no proof that the appellants adopted,joined, or even
knew about the conspiracy charged in the indictment.
and there was no independent evidence linking appellants
with the conspiracy other than the statement of a co-
conspirator; (4) the post-arrest conversation in which
appellant, Chioda, participated could not be used
against the other appellants; and (5) the cumulative
effect of the errors committed by the court and its
attitude toward appellants deprived them of a fair
trial; and (6) the sentences imposed upon the
ja
appellants were excessive; it is
ADJUDGEND AND ORDERED that the judgment of the
district court be and is hereby affirmed.
BY THE COURT
R.J. Aldisert
Circuit Judge
Attest:
Thomas F. Quinn
Thomas F. Quinn, Clerk
DATED: January 9, 1978
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.