Petition — Paris v. United States

Supreme Court, U. %'¢

| FILED

G7" 1779 |} JUN 16 1978

eae I PETG

In THE

Supreme Court of the united States

OCTOBER TERM, 1977

No. A-957

AUGUSTINE PARIS, JR.,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

LESTER ROSEN

Attorney for Petitioner

140 Nassau Street

New York, N.Y. 10038

(212) 227-1357

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

Tel.: (212) 447-5358

TABLE OF CONTENTS

Page

Opinion Below ........-.-eeeeeeeeeeeceseeeeceee 1

Jurisdiction ........--.eeceeeeeeeeeeeceeeeeeees 2

Questions Involved ........+++eeeeeeeeeeeeeeeee: 2

The Constitutional and Statutory Provisions

Involved ..... ccc cece cccceennccceeeeecess 2

Statement of the Case .......--seeeeeeeeeerceees 4

Reasons for Granting the Writ.........-+++++++++° 5

ConclusiOn. ......ccccccccccccccccecccccsescers 11

Appendix A—Opinion of the Court of Appeals. .... ila

Appendix B—Judgment Commitment Order......- 5a

CASES CITED

Cinquetrano v. U.S., 379 U.S. 960 (1965) .....--++- 5

Hyde v. U.S., 225 U.S. 347... +s eeeeeeeeeeceeees 7

U.S. v. Borelli, 336 F.2d 376 (2d Cir., 1964), cert.

denied sub NOM .......-eeeceeeeeeeeeeceseereees 5

U.S. v. U.S. Gypsum Company, $50 F.2d 115 (3rd

Po LL) POE

STATUTES CITED

BOUL A. Fie Tes Cer Ge eek ccccccccccnes

Ss, Ms oacuksevesumnnd ees obo 6edtee%

ip UD Te ucctny 09-0 s¥ncees Ceeesactege bases

Rule 22(2) of the Rules of the Sup. Ct. of the U.S. ...

Noe we

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1977

NO. A-9573

AUGUSTINE PARIS, JR.,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioner Augustine Paris, Jr., prays that a writ of

certiorari issue to review a judgment of the United States

Court of Appeals for the Second Circuit, decided and

entered April 18, 1978 affirming the judgment of convic-

tion rendered against petitioner in the United States

District Court for the Southern District of New York on

December 16, 1977 convicting petitioner of conspiracy to

violate Title 21 U.S.C. 173, 174, 846 and 963 (illegal im-

portation and distribution of narcotics) and violation of

Title 28 U.S.C. 7201, two counts (income tax evasion).

OPINION BELOW

On April 18, 1978 the Court of Appeals for the Se-

cond Circuit affirmed the judgment of conviction in the

attached summary opinion (see Appendix A).

JURISDICTION

of the United States. the Supreme Court

QUESTIONS INVOLVED

A. Should the archaic and emi

cept of withdrawal of t aan

be retired? tate

B. Did the inordinate 52

and the joining of narcotics

fair trial with two counts of income tax evasion?

THE CONSTITUTIONAL

AND

PROVISIONS INVOLVED, oe

- +. hor be deprived : .

due process of law . i oo nD Property without

Rule 14. Relief From Prejudicial Joinder. If it appears

that a defendant is preiudi

- + « IS prejudiced by a joj

- +» the court may order . . : separate trials of on .

racy through Publication

month Pre-indictment delay

conspiracy charges foreclose a

Title 21 USC

§173. Importation of narcotic drugs prohibited; excep-

tions; crude opium for manufacture of heroin; forfeitures

It is unlawful to import or bring any narcotic drug in-

to the United States or any territory under its control or

jurisdiction; .. .

Title 21 USC

§174. Same; penalty; evidence

Whoever fraudulently or knowingly imports or brings

any narcotic drug into the United States or any territory

under its control or jurisdiction, contrary to law, or

receives, conceals, buys, sells, in any manner facilitates the

transportation, concealment, or sale of any such narcotic

drug after being imported or brought in, knowing the

same to have been imported or brought into the United

States contrary to law, or conspires to commit any of such

acts in violation of the laws of the United States, shall be

imprisoned not less than five or more than twenty years

and, in addition, may be fined not more than $20,000.

Title 21 USC

§846. Attempt and conspiracy

Any person who attempts or conspires to commit any

offense defined in this title 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.

Title 21 USC

§963. Attempt and conspiracy

Any person who attempts or conspires to commit any

offense defined in this title 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.

Title 26 USC

Section 7201 Attempt to Evade or Defeat Tax.

Any person who willfully attempts in any manner to

evade or defeat any tax imposed by this title or the pay-

ment thereof shall, in addition to other penalties provided

by law, be guilty of a felony and, upon conviction thereof,

shall be fined not more than $10,000, or imprisoned not

more than 5 years, or both, together with the costs of pro-

secution.

STATEMENT OF THE CASE

Petitioner was indicted on April 11, 1977 on charges

of narcotics conspiracy and income tax evasion. A trial on

these charges commenced. October 19, 1977. Petitioner’s

claimed involvement in the events upon which the nar-

cotics conspiracy charge was based were confined to the

period May 1970 to April 1971. According to a prosecu-

tion witness named Hamman, petitioner was the recipient

in New York of narcotics shipped from Hong Kong via

Vancouver, British Columbia and Seattle. A first ship-

ment was made to New York in May 1970 by Hamman’s

partner, Richard Busby. The second and third trips by

Merle Mielde, testifying for the prosecution that he made

delivery to ‘‘Jack.’” On Mielde’s initial trip, a mere

telephone call was sufficient to arrange delivery. A more

elaborate procedure was employed the second

time—before delivery could be made on this last shipment

of narcotics to New York a procedure of matching halves

of a dollar bill was necessary although delivery of this last

shipment was to the same person, ‘‘Jack’’ who was iden-

tified only as tall, thin, a light skinned negro or a dark

skinned Caucasian, graying hair; a description not incom-

patable with that of petitioner.

With cancellation of a contemplated delivery to New

York in April 1971 (Mijelde ready with his half of a one

dollar bill) all importing operations ceased. Hamman and

Busby met each other only occasionally and the importer,

Wilson, made no more shipments. In June of 1972 Busby

requested Hamman inquire of Wilson whether he could

import narcotics. No mention is made in the testimony of

the intended recipient or the destination of the narcotics.

It was this June 1972 importation resulting in the arrest of

Wilson, Busby, Hamman that is the only transaction

within the five (5) year period of limitation. Testimony of

a claimed similar act a sale of narcotics between petitioner

and Lorenzo Cancio in August of 1971 was likewise

beyond the period of limitation.

It is claimed that Cancio’s testimony provided the ad-

ditional information needed to prepare a viable narcotics

prosecution against petitioner. That testimony was

available to the prosecution in 1974. However, the pro-

secution was delayed until April of 1977 in order to allow

an income tax evasion case being prepared by the Internal

Revenue Service to wend its way through the bureaucracy.

Thus on April 11, 1977, six years after the acts claimed to

constitute narcotics conspiracy occurred, petitioner was

brought to account. A trial was not to commence until Oc-

tober 19, 1977; six months later.

REASONS FOR GRANTING THE WRIT

I

It is the duty of this the highest Court in the land, to

undo the perversion of logic which has created a con-

spiracy in perpetuity only to be terminated upon a public

airing. See U.S. v. Borelli, 336 F.2d 376 (2d Cir., 1964),

cert. denied sub nom; Cinquetrano v. U.S., 379 U.S. 960

(1965); U.S. v. Panebianco, 543 F. 2d 447 (2d Cir., 1976).

Logic forecloses a finding that petitioner is accountable

for conspiritorial activity in June of 1972. All the evidence

in this case showed that petitioner ceased membership in

any purported conspiracy in April of 1971. It was then

that a scheduled trip to New York was abruptly cancelled

with all narcotics importations ceasing until June 1972. As

to that transaction petitioner was not shown to have had

any part in it. Only one interpretation of this evidence of

cessation of activity in 1971 is possible. That the parties

viewed their mutual dealings as having terminated. All

their actions showed that the parties considered their

mutual dealings at an end. The June 1972 transaction

commenced an entirely new and separate undertaking

which in no way involved petitioner. By no stretch or con-

tortion of the evidence could testimony of petitioner’s par-

ticipation in the earlier transaction be extended to an

agreement ad infinitum.

However, according to the trial court’s charge to the

jury as set forth below, the sole method of withdrawal

from a conspiracy is by a public airing shown to have been

received by each co-conspirator and understood by each to

marking an end to the retiring members participation:

“A conspiracy, once formed is presumed to have con-

tinued until its objectives are accomplished or there is an

affirmative act of termination by its members.

“*So, too, once a person is found to be a member of a

conspiracy, he is presumed to continue his membership un-

til its termination, unless there is affirmative proof of

withdrawal or disassociation.

“*You don’t get out of the conspiracy simply by not do-

ing anything for a while. The defendant contends that even

if you find beyond a reasonable doubt that a conspiracy

existed in February of 1970 to June of 1972 that he may

have affirmatively withdrawn from the conspiracy prior to

April 11, 1972. Unless the defendant produces affirmative

evidence of this withdrawal from the conspiracy, the con-

spiracy is presumed to continue until the last overt act by

any of the conspirators—such as making a clean breast of

his involvement with the charges, or an indication of aban-

donment to the other conspirators, reasonably calculated

to reach their knowledge, and the burden of proving this

withdrawal from the conspiracy is on the defendant, once

they have proved that he is in the conspiracy—a matter for

you to decide.”’

This charge a model for the Court of Appeals for the

Second Circuit follows closely this Court’s ruling in Hyde

vy, U.S., 225 U.S. 347, decided in 1912 before an avalanche

of conspiracy cases inundated the federal courts and bury-

ing defendants in criminal cases in its wake.

This charge placed upon petitioner the burden on

demonstrating affirmatively his withdrawal from the

claimed conspiracy; an unnecessary onorous burden all

but impossible to achieve. Making a clean breast of his

conspiracy would unquestionably result in petitioner’s in-

carceration. An indication of withdrawal to co-

conspirators is likely to incur a worse fate.

An eminently more logical alternative to the require-

ment of publication for withdrawal of a conspiracy has

been put forth by Judge Hunter of the Third Circuit in

U.S. v. U.S. Gypsum Company, 550 F. 2d 115 (3rd Cir.,

1977).

““Conduct inconsistent with the theory of continued

adherence to the conspiracy.”’

Such a charge would permit a jury to find withdrawal

from the circumstances and inferences in the case; in-

ferences that a jury is permitted in finding an accused to be

a member of a conspiracy.

A delay of 52 months—36 months devoted to amass-

ing evidence of income tax evasion, where because of the

delay petitioner is prevented from presenting testimony

and documentary proof of innocence, is a deprivation of

due process that this court should not tolerate. This

Court’s opinion U.S. vy. Lovasco, 431 U.S. 783 (1977) did

not grant the government a license to proceed with a

reckless disregard of an accused’s rights. It is in-

conceivable that this Court would permit the prosecutor to

inordinately delay and strengthen its own case at the ex-

pense of a defendant by joining incompatible charges of

income tax evasion with narcotics conspiracy and then

argue that the delay was necessary to try all charges at one

trial.

Only a most flagrant insensitivity to a defendant’s

right to a fair trial would encourage the Government to

Strengthen its own case, and relegate petitioner lost

testimony of business associates who might have been able

to testify the petitioner wore a beard on the occasion he

was Claimed to have been a clean shaven “‘Jack”’ but due

to the passage of time cannot now remember if the beard

was on or off due to a skin disease that afflicted petitioner

about this time to the scrap heap ‘“‘of possibility of pre-

judice.”” It is this persieved unlimited discretion that

enabled the prosecutor to cleverly turn Mijelde’s inability

to identify ‘‘Jack’’ to an advantage by arguing that the

identification was impossible due to the passage of time.

Obscured by the prosecutor’s ingenious passage of

time argument was the harm to petitioner’s case

due to his inability to destroy the credibility of a pro-

secution witness presented to testify to a similar act (nar-

cotics sale) in late August or early September. Petitioner

was in Portugal until August 22, 1971. His

passport—turned over to the government at the pro-

tor’s request at the onset of the trial—showed peti-

sates pwn. into the United States on August 22, 1971. A

trial three years before, shortly after the witness Cancio

identified petitioner, a more exac. approximation might

have been forthcoming. At the very least, petitioner would

have had a viable argument that the reason for the inexact

date was that Cancio suffered from a common ailment af- ;

flicting government informers—the desire to aid

themselves at the expense of others without regard for the

truth. Instead, the prosecutor prevailed with his ingenuous

arguments that the weaknesses in the government's case

was due to a lapse of memories caused by the passage of

time (a delay created by the government—merging the in-

come tax investigation to the narcotics conspiracy). .

It was this merger that brought the prosecutor his

greatest advantage; arguing to the jury that petitioner was

‘‘making a great deal of money in a very lucrative side

business—the narcotics business.’ This argument invited

the jury to speculate that the unreported monies a

products of a narcotics operation and the reason

monies were not reported was petitioner's fear of ex-

posure. Instead of usual benefits of a joint trial, having all

charges litigated in one trial, as contemplated in U.S. v.

Lovasco, petitioner was harnessed to the two charges

whose incompatibility could only resutt in a boot strap

ast re weak income tax evasion case (claimed

tax deficiency in 1970 for $8,000, 1971 $27,000; assuMil.g

a narcotics operation tax deficiency $11,794.35 in 1970

and $76,330.38 in 1971) and an extremely weak conspiracy

case (involvement based on hearsay and whether petitioner

was ‘‘Jack’’) resulted in a conviction on all counts.

Takine full advantage of the joinder the prosecutor

browbeat a ‘“‘lead’’ witness, petitioner's cousin Dr.

Hewlett (a dentist) who had lent petitioner $5,000.

Without a scintilla of proof the prosecutor sought to

10

damage petitioner’s case by arguing to the jury that the

$5,000 loan testified to by Dr. Hewlett ‘‘may very well

have been for an interest in the heroin which was delivered

in May 1970 from Seattle, the very first delivery.’’

Separate trials of these antagonistic counts would have

foreclosed the prosecutor questioning Dr. Hewlett concern-

ing his purported involvement in the narcotics conspiracy

as ‘‘Doc,”’ a dentist with chemistry training referred to in

Hamman’s testimony. And in a narcotics conspiracy trial,

the prosecution would not have been allowed such bad

faith questioning. Only joinder conferred legitimacy on

these wholly improper questions.

Joinder of these incompatable counts also

necessitated an all or nothing choice; whether petitioner

would testify or remain silent. Petitioner chose to testify.

Cross examination was concerned mostly with the tax eva-

sion charge; which, petitioner being confronted by a nar-

cotics conspiracy charge, might wisely have relied on the

prosecution’s burden at trial.

It was the combining of the income tax case with the

narcotics conspiracy count to the boot strap prosecution

that allowed the jury to convict for income tax evasion

because petitioner was not reporting income made in the

narcotics business and to convict on the narcotics con-

spiracy because petitioner appeared to have more money

available than he reported to the Internal Revenue Service.

Petitioner’s conviction on all counts was the result of

an unsupervised prosecutorial discretion to delay the nar-

cotics conspiracy prosecution until petitioner could be sad-

died with the additional burden of explaining a claim of

unreported income in a joint income tax evasion narcotic

conspiracy trial. A defense of the indictment was not

merely rendered more difficult by the combining of

charges and the delay to allow the income tax evasion

charges to wend its way through the IRS; it was rendered

impossible.

11

CONCLUSION

This Court should grant petitioner’s request for a writ

of certiorari and entertain briefs and arguments on the

merits.

Respectfully submitted,

LESTER ROSEN

Member of the Bar of the

United States Supreme Court

la

APPENDIX A—OPINION OF THE COURT OF AP-

PEALS

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

At a stated Term of the United States Court of Ap-

peals for the Second Circuit, held at the United States —

Courthouse in the City of New York, on the eighteenth

day of April one thousand nine hundred and seventy-

eight.

Present: HONORABLE IRVING R. KAUFMAN,

Chief Judge.

HONORABLE J. JOSEPH SMITH

HONORABLE ROBERT P. ANDERSON,

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee,

Vv.

AUGUSTINE PARIS, JR.,

Defendant-Appellant.

78-1017

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that the judgment

\

2a

of said District Court be and it hereby is affirmed.

1. As the district court determined, the delay in return-

ing the indictment was not improper, but rather resulted

from the government’s determination that insufficient

evidence existed to justify a prosecution. See United States

v. Lovasco, 431 U.S. 783, 791 (1977). Moreover, appellant

has failed to establish any actual prejudice, see id. at

789-90, resulting from the delay.

2. The statute of limitations does not begin to run un-

til there has been a complete withdrawal from the con-

spiracy. United States v. Boreili, 336 F.2d 376, 388 (2d

Cir. 1964), cert. denied sub nom. Cinquegrano v. United

States, 379 U.S. 960 (1965). Accordingly, evidence of the

June 1972 narcotics transaction could properly

demonstrate appellant’s involvement within the five-year

period of limitations. Moreover, the charge to the jury on

withdrawal was fully in compliance with the law of this

Circuit. See id; United States v. Panebianco, 543 F.2d 447,

453 (2d Cir. 1976).

3. Having failed to object to the joinder of the tax

evasion and narcotics counts in the court below, appellant

has waived his right to object to that joinder. United

States v. Green, 561 F.2d 541, 543 (2d Cir. 1977).

We find no merit in any of the other claims raised by

the appellant, and accordingly affirm.

s/ Irving R. Kaufman

Irving R. Kaufman, Chief

Judge.

s/ J. Joseph Smith

J. Joseph Smith

s/ Robert P. Anderson

Robert P. Anderson,

Circuit Judges.

3a

ENDORSEMENT

UNITED STATES OF AMERICA vy. AUGUSTINE

PARIS, JR., 77 Cr. 262 (GLG)

The motion for judgment of acquittal and dismissal of a

portion of the indictment because of a violation of the .

defendant’s due process rights is denied.

The motion is based upon pre-indictment delay with

respect to the third count charging defendant with dealings

in heroin. It is true that the narcotics conspiracy ended on

or about June 12, 1972 with the arrest of the other co-

conspirators in Seattle, Washington. At that time, the

Government had a prima facie case against the defendant,

but it was a rather weak one which probably would not

have resulted in a conviction. The defendant contends that

the prosecution put this case aside and set out to build a

tax case against the defendant to support its claim of nar-

cotic dealings. The affidavits filed on behalf of the

Government belie this charge. It would appear that the

narcotics case against Paris was not immediately pursued.

In January of the following year (1973), he was found to

be in possession of $36,000 cash which he had failed to

report when returning to the United States after a trip to

Portugal. Thereafter, and independent of the west coast

prosecution, the tax investigation was commenced. In

1975, the Drug Enforcement Administration obtained in-

formation from an informant (one Lorenzo Cancio) who

testified in this trial, indicating that the defendant was a

major supplier of narcotics. Thereafter, the two separate

agencies coordinated their investigations. There were the

usual delays in the tax indictment as the defendant ex-

hausted the many administrative remedies available to

him. The only delay of any consequence was the period of

about a year from the receipt of the case by the United

4a

States Attorney’s Office until indictment. The Court will

take judicial notice of the fact that the Speedy Criminal

Trial Act has placed an inordinate burden upon the pro-

secutors and the courts. The Assistant U.S. Attorney to

whom this case was originally assigned prosecuted a cou-

ple of matters before me during the period that the indict-

ment in this case was pending. In any event, this delay was

not inordinate. The reasons for the delay did not violate

‘* ‘fundamental conceptions of justice which lie at the

base of our civil and political institutions’ ’’ or offend

‘* “the community sense of fair play and decency.’ ”’

Moreover, there has been a complete failure on the part of

the defendant to establish any prejudice from the delay.

While he speculates on the possibilities of producing other

evidence had the case been tried several years ago, these

are no more than speculations. The weakest part of the

prosecution’s case was the inability of the go-between,

Merle Mielde, to be able to identify the defendant. The

defendant’s appearance has changed greatly in the last five

years. He now wears a beard regularly and has greying

hair. The possibility of an identification five years ago

would have been substantially greater, although there were

indications that, even at that time, because of the condi-

tions under which the witness had seen the defendant, he

could not make an unequivocal identification. In any

event, the defendant has established no prejudice.

The motion is in all respects denied.

SO ORDERED:

s/ Gerard L. Goettel

Dated: New York, N.Y.,

December 20, 1977.

5a

APPENDIX B—JUDGMENT COMMITMENT ORDER

AUGUSTINE PARIS, JR.

December 16, 1977

WITH COUNSEL Lester Rosen, Esq.

PLEA—GUILTY, and the court being satisfied that there

is a factual basis for the plea,

There being a verdict of GUILTY to Counts 1, 2 and 3.

Defendant has been convicted as charged of the offenses

of Income Tax Evasion. (Title 26, United States Code,

Section 7201). Conspiracy to violate Federal Narcotics

Laws. (Title 21, United States Code, Sections 173, 174,

846 and 963).

The court asked whether defendant had anything to a

why judgment should not be pronounced. Because no suf-

ficient cause to the contrary was shown, or appeared to the

court, the court adjudged the defendant guilty as charged

and convicted and ordered that: The defendant is hereby

committed to the custody of the Attorney General or his

authorized representative for imprisonment for a period

of TWO AND HALF (2-1/2) YEARS on each of Counts |

and 2. TEN (10) YEARS on Count 3. Sentences to run

concurrently with each other.

Defendant is FINED $5,000.00 on Count 1; $5,000.00 on

Count 2, and $15,000.00 on Count 3, plus costs of pro-

secution on all counts. TOTAL FINES: $25,000.00 are to

be paid or defendant to stand committed until fines are

paid or he is otherwise discharged according to law.

6a

Pursuant to the provisions of Section 841 of Title 21,

United States Code, the defendant is placed on SPECIAL

PAROLE for a term of TEN (10) YEARS to commence

upon expiration of confinement.

Bail is increased to include a $50,000.00 Personal

Recognizance Bond co-signed by his wife, along with the

surety bond already posted. (This bond will supercede the

existing $22,000.00 Personal Recognizance Bond only,

when posted). (Bail to be posted within one week).

In addition to the special conditions of probation imposed

above, it is hereby ordered that the general conditions of

probation set out on the reverse side of this judgment be

imposed. The Court may change the conditions of proba-

tion, reduce or extend the period of probation, and at any

time during the probation period or within a maximum

probation period of five years permitted by law, may issue

a warrant and revoke probation for a violation occurring

during the probation period.

The court orders commitment to the custody of the At-

torney General and recommends,

It is ordered that the Clerk deliver a certified copy of this

judgment and commitment to the U.S. Marshal or other

qualified officer.

s/ Gerard L. Goettel

GERARD L. GOETTEL, U.S.D.J. Date 12/16/77

U.S. DISTRICT COURT FILED DEC 16 1977 S.D.N.Y.