Petition — Barone v. United States

OCT 24 ISTE

i

MICHAEL ROBAX, JR_CLERK |

Supreme Court of the United States

October Term, 1978

No. WR-094

JOHN JOSEPH BARONE, JR.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

|

JOHN CZARNECKI

HAYWARD, CooPEer, StrAuB & CRAMER

Suite 300

900 Adams Street

Toledo, Ohio 43624

(419) 241-1200

Counsel for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO—TEL., (218) 621-5447

TABLE OF CONTENTS

-o ) & Be MP livy) 6 (iy 5) ~. Se orrnnnnrnnnn III

Cassada cahivuescatignansilababvenas i

Nee nF sccsscensaunnnianhiirsusnshopeseneint 2

QUESTIONS. PRESENTED ...................0.0....c.coscssssecnsseveness 2

A.l. Whether, in Federal Prosecutions, the Ruling

in Franks v. Delaware, ....... 6 Saas (decided

June 26, 1978) Should Be Extended to Pro-

vide for Quashing Warrants Obtained Pur-

suant to Intentionally Misleading Affidavits.

2. Whether Technically Inculpatory Statements

Made by an Informant Are Invariably Suffi-

cient to Establish His Reliability and Credi-

bility Under United States v. Harris, 403 USS.

573 (1971).

B.1. Whether Costello v. United States, 350 U.S.

359 (1956), Can Be Read to Permit Absolutely

No Investigation Into the Quality of Evidence

or the Method of Presentation to a Grand

Jury.

2. Whether in Order to Provide Some Potential

Check on Presentations to Grand Juries, This

Court Will Exercise Its Supervisory Power to

Require Recordation of Grand Jury Proceed-

ings in the Federal District Courts.

CONSTITUTIONAL PROVISIONS AND STATUTES

oo ca vctn sis varqacsbess>soennis

A. The Search and Seizure Issue ....

B. The Motion to Dismiss the Indictment .......

Je Se Wh

Il

REASONS FOR GRANTING THE WRIT ...............0........ 9

i ec sleeens 9

1. This case presents an opportunity for the

Court to further define the ruling of Franks

v. Delaware, ........ 5 See (decided June 26,

1978) and to apply the rationale thereof to

the federal courts in the exercise of its super-

I IN Saitthidie teacsicisaiitreacsnasnsesionenpscabasaabananinnies 9

2. There exists an almost universal misconcep-

tion as to the holding in United States v.

Harris, 403 U.S. 573 (1971), which is gen-

erally cited for a proposition supported by

only a minority of the Supreme Court in

that case ............ PRIOR 9S Men PR nr ll

B. The Grand Jury Proceedings ~............2........s.seee0e0+ 12

1. This case presents a fact-pattern within

which the Court may define minimum stan-

dards for the presentation of evidence to

grand juries and the preservation of the rec-

ord of testimony taken therein —.........00.0.000000.0.. 12

ERED an nk AOL PIER 16

APPENDICES:

A. Opinion of Court of Appeals 22.0.0... ee

B. Judgment of Court of Appeals ..0.0000...0...ccecccce. A21

C. Order Denying Petition for Rehearing ................ A22

III

TABLE OF AUTHORITIES

Cases

Aguilar v. Texas, 378 U.S. 108 (1964) ............. si aac Beaeats 9

Branzburg v. Hayes, 408 U.S. 665 (1972) -....00.000...... 13, 15

Costello v. United States, 350 U.S. 359 (1956) ........ 2,13, 14

Bear Free TR, TBE TET. FCAT) i vineacece cessive ccccseesctsenss css 13

Franks v. Delaware, ........ OM, ‘causes , 46 U.S.L.W. 4869

“3 & _ ) Rae ereeene Ye eT

People v. Cook, ........ P26 ...... , 24 Cr.L.Rptr. 2004

(Cal.Sup.Ct. decided 9/8/78) ............ Deep vestate ascats 10, 11

Spinelli v. United States, 393 U.S. 410 (1969) ................ 9

State v. La Martiniere, ........ So.2¢ ........ , 24 Cr.L.Rptr.

2027 (La.Sup.Ct., decided 9/5/78) ..............ccccccesseeees: il

United States v. Calandra, 414 U.S. 338 (1974) ............ 13, 14

United States v. Dionisio, 410 U.S. 1 (1973) 00... 13

United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972)

Gabcdnnieh veieahahdenoiias Geadabaieiiadadaddlva tatiana ested ial ties abc tinied ogi Me

United States v. Harris, 403 U.S. 573 (1971) ........ 2, 7, 11, 12

United States v. Luna, 525 F.2d 3 (6th Cir. 1975), cert.

denied 424 U.S. 965 (1976) ......0.......... Se a ay Sa Se

Constitutional Provisions and Statutes

RN 5 Ui AAT RE SE RE OE cE 1,3

a AIRE CaS Ss SSO 1,3

Ba at at SA Se 2

United States Constitution:

Amendment [IV ooo... he PELr SO Een He —

I a Se eran eee 7 4

IV

Other

American Bar Association—Model Code of Pre-Ar- ;

raignment Procedure (Tent. Draft No. 5, 1972) .... 15 Sup come Court of the United States

S. 3274, 94th Congress, 2d Session (1976) ............20ccce. 15

H.R. 1160, 94th Congress, 2d Session (1976) .........0000002... 15 October Term, 1978

H.R. 94, 95th Congress, 2d Session (1977) 20.000... 15

S. 1449, 95th Congress, 2d Session (1977) 2.0.0.0... 15 No. _______.

Excerpt from Speech—Prof. Charles Ruff before 1975

Judicial Conference of the District of Columbia ........ 14

Government's Petition for a Writ of Certiorari, United — seeenaiis ae

States v. Harris, 403 U.S. 573 (1971) cccccecccseeeoee 12 Petitioner,

Brief of United States, United States v. Harris, 403 U.S. VS.

STS (AGTD) eccnceccccccenssoscnnumennne einen ianen ann 12 UNITED STATES OF AMERICA,

J. Kramon, The Grand Jury: An Overview, THE Jour- Respondent.

NAL OF THE SECTION OF LITIGATION, ABA v.4, n.4,

Br. B (NDFB) nnnvccececcecsccsssssnnnce ce 15

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

The petitioner, defendant-appellant below, prays that

a Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Sixth Circuit en-

tered on August 1, 1978, affirming his conviction under

a two count indictment for violations of 21 U.S.C. $846

and 21 U.S.C. §841(a) (1).

OPINION BELOW

The opinion of the Court of Appeals (App. A, infra,

pp. Al-A20) is not yet reported.

2

JURISDICTION

The Judgment of the Court of Appeals (App. B, infra,

p. A21) was entered on August 1, 1978. A petition for

rehearing and for rehearing in banc was filed on August

16, 1978. The petition for rehearing was considered on

the merits and denied on September 26, 1978 (App. C,

infra, p. A22).

The jurisdiction of this Court is invoked under 28

U.S.C. $1254(1).

A.1.

B.1.

~)

QUESTIONS PRESENTED

Whether, in Federal Prosecutions, the Ruling in

Franks v. Delaware, ........ or Saaaenee (decided June 26,

1978) Should Be Extended to Provide for Quashing

Warrants Obtained Pursuant to Intentionally Mis-

leading Affidavits.

Whether Technically Inculpatory Statements Made

by an Informant Are Invariably Sufficient to Estab-

lish His Reliability and Credibility Under United

States v. Harris, 403 U.S. 573 (1971).

and

Whether Costello v. United States, 350 U.S. 359

(1956), Can Be Read to Permi! Absolutely No Investi-

gation Into the Quality of Evidence or the Method

of Presentation to a Grand Jury.

Whether in Order to Provide Some Potential Check

on Presentations to Grand Juries, This Court Will

Exercise Its Supervisory Power to Require Recorda-

tion of Grand Jury Proceedings in the Federal Dis-

trict Courts.

CONSTITUTIONAL PROVISIONS AND STATUTES

Petitioner was convicted of violations of 21 U.S.C.

$841(a)(1) and 28 U.S.C, $846. The relevent provisions

of those statutes are as follows:

$841. Prohibited acts A—Unlawful acts

(a) Except as authorized by this subchapter, it

shall be unlawful for any person knowingly or inten-

tionally—

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

possess with intent to manufacture, distribute, or

dispense, a controlled substance;

“ * * * *

$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.

Pub.L. 91-513, Title II, $406, Oct. 27, 1970, 84 Stat.

1265.

He raises constitutional arguments based on the Fourth

and Fifth Amendments to the Constitution of the United

States. The applicable texts of those provisions are:

AMENDMENT IV {1791}

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons

or things to be seized.

AMENDMENT V | 1791]

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger;

nor shall any person be subject for the same offence

to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compen-

sation.

STATEMENT

A. The Searck and Seizure Issue

Petitioner raised on appeal the denial, by the trial

court, of his Motion to Suppress Evidence discovered at

his home after his arrest. The search was conducted pur-

suant to a warrant. The Affidavit in support of the Ap-

plication for Warrant was made by an agent of the Cin-

cinnati D.E.A., Augustine Ginetz. Agent Ginetz repre-

sented to the magistrate that his information was secured

from a reliable, albeit unnamed, informant. His Affidavit

reads as follows:

This affiant received information from an informant,

who has provided me with information which has

been reliable and on which arrest have (sic) been

based and a considerable quanity (sic) of narcotics

have (sic) been conficated (sic) on July 6th and 7th

of 1975. The informant further states on this date,

July 7th 1975, that on June 30th 1975, he was at

the residence at 2575 Indian Creek Rd and personally

observed a large quanity (sic) of marijuana, cocaine,

amphetamines and barbituates which belong to John

Joseph Barone, Jr., who is a resident at this address.

The informant further states that on June 30th 1975

that John Joseph Barone, Jr, did give him $10,000.00

to go to Columbia (sic) South America to use to pur-

chase cocaine, which he did. John Joseph Barone,

Jr. was arrested by Federal Agents on July 7th 1975

when taking possession of the above purchase of co-

caine. The informant further states that there is (sic)

still large quanites (sic) of drugs at the residence

at 2575 Indian Creek Rd, which he observed on June

30th 1975.

At trial, the government revealed that the unnamed

informant was one Norman Richard Depp. Depp and

Ginetz met for the first time on the night that the affi-

davit was executed. On the preceding day, Depp had

been arrested, with an accomplice, coming into the Miami

International Airport carrying a large quantity of cocaine.

Some two (2) hours after his arrest and after the drugs

had been seized Depp claimed that one of his friends,

the petitioner John Joseph Barone, Jr., was involved in

the plan to import the cocaine. Depp was told to call

Barone and ask to be picked up at the Cincinnati Airport

(both he and Barone lived nearby), and to make an allu-

sion to the drugs. He called, asked to be picked up,

but said nothing during the monitored conversation about

narcotics. Upon his arrival accompanied by two (2) agents

of the D.E.A. from Miami, Depp was met by Barone who

carried some of Depp’s luggage from the concourse to

his (Barone’s) waiting automobile. Absolutely no evidence

beyond Depp’s accusation provided an independent basis

for Barone’s arrest. He has asserted his innocence from

the moment he was arrested.

Agent Ginetz’s first and only involvement in the inves-

tigation of the case occurred at the Cincinnati Airport.

He watched Depp meet Barone; he viewed the actual ar-

rest; he spoke to Depp for the first time only after the

arrest. Ginetz then sought his warrant, representing to

the magistrate that:

This affiant received information from an informant,

who has provided me with information which has

been reliable and on which arrest have (sic) been

based and a considerable quanity (sic) of narcotics

have (sic) been conficated (sic) on July 6th and 7th

of 1975. (emphasis added)

In fact, the relevant events of July 6 were the arrest

of Depp and his accomplice and the seizure of the cocaine,

both of which occurred before Depp spoke to Ginetz or

any other agent. Similarly, the only arrest on the 7th

was Barone’s and that rested on nothing more than Depp’s

accusation. Nor was this accusation independently cor-

roborated, since Barone’s actions were entirely consistent

with innocence: he was called and asked to pick up a

friend at the airport; he did, helped him carry luggage,

and was promptly arrested. Further, Ginetz’s representa-

tions to the magistrate were not only inaccurate but, being

within his own knowledge, were unquestionably intentional!

or reckless as well.

Notwithstanding the above, the trial court overruled

a Motion to Suppress, holding from the bench that any

discrepancies contained in the Affidavit had their genesis

in Depp’s statements to the agent and that, further, Depp’s

credibility and reliability were established by his own

inculpatory statements, citing United States v. Harris, 403

U.S. 573 (1971).

The Cotitt of Appeals upheld the trial court, holding

that although “the facts recited in the Affidavit could

more accurately and fully have reflected the source of

the affiant’s information and the basis for probable cause

* * * * Any inaccuracies in the Affidavit statement

concerning the arrests and seizures were minor.” A dissent

was filed, by Judge Keith, holding that the admitted inac-

curacies were not minor and, involving facts particularly

within the personal knowledge of the affiant, were at

least a reckless misstatement falling within the proscrip-

tion of Franks v. Delaware, ........ 2) See , 4 US.L.W.

4869, 4872 (June 26, 1978). Judge Keith further felt that

the federal court should exercise its supervisory power

to quash avarrants which were the product of intentionally

misleading affidavits.

B. The Motion to Dismiss the Indictment

The petitioner filed a Motion to Dismiss the indict-

ment. The motion was denied by the trial court. The

Court of Appeals affirmed.

Following Barone’s arrest, the matter was presented

to a grand jury sitting in the Southern District of Ohio.

In December of 1975, and again in March of 1976, evidence

was presented to the grand jury. Although approximately

15-20 witnesses testified and Barone’s personal and business

records were subpoenaed, this grand jury refused to indict.

rhe transcript of the proceedings was never released to

Mr. Barone.

Following the action of ihe federal grand jury in Ohio,

and seventeen (17) months after the arrest, one of the

D.E.A. agents who participated in the arrest in Cincinnati

took the investigative file to an Assistant United States

Attorney in the Eastern District of Kentucky. Another

grand jury was empaneled there and only the single agent

testified. Although the failure of the Eastern District to

preserve testimony before grand juries prevents the defen-

dant (or the government) from reconstructing the proceed-

ings, it was admitted, at trial, that no new evidence was

secured after the original presentation in the Southern

District of Ohio. Further, since the agent who testified

was involved only in the actual arrest, virtually everything

about which he testified must have been hearsay. Not

only does the Eastern District of Kentucky fail to record

grand jury testimony, but at trial, the District Court re-

fused to allow the agent to recount his own grand jury

testimony. Rather than acknowledging that the right to

maintain the secrecy of his testimony was one belonging

to the witness, the Court barred inquiry upon the prose-

cutor’s objection irrespective of the witness’s wishes.

REASONS FOR GRANTING THE WRIT

A. Search and Seizure

1. This case presents an opportunity for the Court

to further define the ruling of Franks v. Dela-

ware, ....... U.S. ..... (decided June 26, 1978)

and to apply the rationale thereof to the fed-

eral courts in the exercise of its supervisory

power.

This Court, on June 26, 1978, considered for the first

time the question of a defendant’s right to pierce the

previously almost-irrebuttable presumption of regularity

surrounding affidavits for search warrants. Franks v. Del-

aware......... eee Sas , 46 U.S.L.W. 4869 (decided June 26,

1978). The facts in Franks centered about a state’s near-

absolute policy precluding the introduction of evidence

which would tend to impeach the veracity of an affidavit

for search warrant.

In this case, the warrant was obtained by an agent

of the federal government, from a State judge, pursuant

to Rule 41, F.R.Cr.P. The agent, apparently in an attempt

to satisfy the requirements of Spinelli v. United States,

393 U.S. 410 (1969), and Aguilar v. Texas, 378 U.S. 108

(1964), represented to the Magistrate that the informant

who supplied the information contained in the Affidavit

was credible and that he had supplied the agent with

verified information in the past. At best that representa-

tion was a liberal exaggeration; at worst, an outright decep-

tion. Although two of the members of the panel character-

ized the misstatements as “minor inaccuracies” the dis-

senting judge agreed with this petitioner, holding that:

10

I fail to see how the majority can characterize the

[inaccuracies and ambiguities] as minor. The state-

ments appeared to have been falsely made and a delib-

erate obfuscation of the truth in order to show the

credibility and reliability of the informant * * *

Prior to Franks, and the case at bar, the Court of

Appeals for the Sixth Circuit had applied a prophylactic

standard to affidavits containing intentional misstatements.

Regardless of the materiality of the information, suppres-

sion was ordered if the misstatements were intentionally

made. United States v. Luna, 525 F.2d 3 (6th Cir. 1975),

cert. denied, 424 U.S. 965 (1976). Such a standard was

imposed in order to “deter police misconduct and safeguard

the integrity of the judicial process.” United States v.

Luna, supra at 8-9. It was undoubtedly felt that such

a stringent standard was required since a mere excision

of the false statement and a reexamination of the affidavit

would provide no control at all over the unscrupulous

agent. He could include false statements in close cases

with impunity, knowing that even if discovered, he (or

the affidavit) would be in no worse position than if an

honest presentation had been made to the magistrate in

the first instance. The Supreme Court of California re-

cently supported such reasoning in People v. Cook, ........

P.2d ......., 24 Cr.L.Rptr. 2004 (decided 9/8/78). Now,

following this Court’s decision in Franks, the Sixth Circuit

appears ready, at least in dicta, to abandon the standard of

Luna, appearing to view the holding of Franks as imposing

an outer limit of sanction beyond which the lower courts

may not go.

Virtually all the other Circuits have addressed this

issue in federal prosecutions and have arrived at a multi-

plicity of approaches. See Franks, supra, ........ U.S. at

.., 46 U.S.L.W. at 4880 n.4. It is reasonable to assume

11

that, unless this Court speaks to the issue, the lower courts

will continue to be confused and divergent in their attempts

to apply the standards of Franks to federal prosecutions.

The recent ruling of the Supreme Court of California

vividly points out that confusion and diversity among the

various jurisdictions is inevitable. See People v. Cook,

supra. See also, St@e v. La Martiniere, ........So.2d ........, 24

Cr.L.Rptr. 2427 (La.Sup.Ct., decided 9/5/78).

This case presents a vehicle wherein the Court may

set a national standard, under its supervisory power, for

federal cases involving the intentional misstatements of

federal agents in drafting affidavits in support of applica-

tions for search warrants.

2. There exists an alimost universal misconcep-

tion as to the holding in United States v. Harris,

403 U.S. 573 (1971), which is generally cited for

a proposition supported by only a minority of

the Supreme Court in that case.

The district court grounded its denial of the motion

to suppress, and the Court of Appeals affirmed, at least

in part, on the rationale of United States v. Harris, 403

U.S. 573 (1971). Both courts held, without analysis, that

the informant (Depp) was rendered credible by virtue

of allegedly inculpatory statements he made to the investi-

gating officer.

Factually, the statements made by Depp were made

after his arrest and were revealed as exculpatory. He

simply attempted to share the blame for an act to which

he had already confessed and for which he had already

been arrested. He admitted that he accused the petitioner

because he was told that unless he was able to lead the

agents to someone else he could expect a sentence of eight

years. The failure of this Court to clarify the holding

12

in Harris has led to the incongruous result that an attempt

to shed blame, to simply point the finger at another in

return for sentencing consideration, somehow vests the

informant with credibility. Even the less stringent stan-

dards applied to credit hearsay generally would not serve

to legitimize these statements.

Further, petitioner respectfully submits that, while

Harris is widely cited for the proposition that inculpatory

statements can provide grounds for crediting an infor-

mant’s statements, a majority of this Court has never

joined in such a holding. In Harris, only four justices

concurred in Part III of the opinion which credited the

informer’s statements by his declaration against penal in-

terest. Harris, 403 U.S. at 585, 586-94. It should also

be noted that neither the petitioner nor the United States

specifically raised or briefed that issue in that case. See

generally, Government’s Petition for a Writ of Certiorari,

United States v. Harris; See also, Brief of United States,

United States v. Harris, 403 U.S. 573 (1971).

An opportunity to clarify the holding in Harris should

by itself provide a reason for this Court to grant the

Writ of Certiorari in the instant case.

B. The Grand Jury Proceedings

1. This case presents a fact-pattern within which

the Court may define minimum standards for

the presentation of evidence to grand juries

and the preservation of the record of testimony

taken therein.

Over the past twenty (20) years, this Court has on

repeated occasions addressed, in a peripheral fashion the

role and function of the grand jury in our constitutional

structure of criminal justice. The cases have taken two

13

separate paths. One line of decisions has focused on the

grand jury’s investigative function and has emphasized

that proceedings before grand juries are non-adversarial

in character and cannot, therefore, be bound by the strict

rules of evidence and procedure appropriate in a federal

judicial proceeding. By contrast, the second line of cases

has focused on the institution’s protective function and

has reaffirmed the fundamental constitutional principle

that the grand jury stands between the populace and the

danger of oppressions by the Executive Branch.

In Costello v. United States, 350 U.S. 359 (1956), this

Court approved the use of expert, hearsay, evidence in

a case involving a highly complex matter of tax evasion.

In United States v. Dionisio, 410 U.S. 1 (1973), it was

held that the grand jury has broad investigative powers

to determine whether a crime has been committed and

who has committed it and that jurors may therefore act

on tips, rumors or evidence offered by the prosecutor

as well ds on their own personal knowledge. Even evi-

dence concededly obtained in an illegal manner may sup-

port an indictment. United States v. Calandra, 414 U.S.

338 (1974).

In juxtaposition to the above are decisions like Branz-

burg v. Hayes, 408 U.S. 665 (1972), which continue to

reiterate the dual character of the grand jury’s basic consti-

tutional responsibilities: “determination whether there is

probable cause to believe a crime has been committed

and the protection of citizens against unfounded criminal

prosecutions.” Id. at 588-87 [emphasis added]. Protec-

tion of the citizenry from an overzealous prosecutor has

been an announced purpose of grand juries since the draft-

ing of the Fifth Amendment. See, e.g., Ex parte Bain, 12]

US. 1, 11 (1887).

14

Unfortunately, this Court has not had an opportunity

to draw a balance between those often competing policies.

As a result, some prosecutors have seized upon the more

direct language of the Costello-Calandra line of cases as

authority to infringe upon the autonomy of the grand

jury, reducing it to a sword of the prosecution.

Given the dichotomy reflected above, no real direction

exists for the conduct of grand juries. As Prof. Charles

Ruff, former Watergate Prosecutor, has said:

* * * most of what happens inside the grand jury

room is not governed by statute or case law. It is

the prosecutor who fills this legal vacuum, and _ his

discretion is exercised within parameters that are only

vaguely defined.

* * + * ~

I suggest that virtually the only restraints imposed

on the prosecutor’s use of the grand jury are those

which he imposes on himself as a matter of his per-

sonal and professional morality or which are imposed

on him as a matter of policy by his superiors. On

occasion, it is clear, such restraints are ineffective,

and decisions are made and actions taken that, what-

ever their legality, transgress the limits of prosecu-

torial discretion. (Professor Charles Ruff, speech at

the 1975 Judicial Conference of the District of Colum-

bia).

The grand jury had become such a tool of the prose-

cutors in the Southern District of New York that indict-

ments were virtually insured by the presentation of what

amounted to professional witnesses, recounting pure hear-

say. The practice became so egregious that the Court

of Appeals for the Second Circuit was forced to intercede.

See United States v. Estepa, 471 F.2d 1132 (2d Cir. 1972).

15

The Sixth Circuit has expressly declined to follow the

Estepa rule in the instant case. See Opinion, App. Al4.

In apparent recognition of the existing confusion, the

American Bar Association has approached the matter at

length in its Model Code of Pre-Arraignment Procedure.

See §§330.4(4), 340.5 (Tent. Draft No. 5, 1972).

Both Houses of Congress have considered legislation

to address what nas become a national concern about the

operation of grand juries. See S. 3274, 94th Cong., 2d Sess.

(1976): H.R. 1160, 94th Cong., 2d Sess. (1976). See also,

H.R. 94, 95th Cong., Ist Sess. (1977); S. 1449, 95th Cong.,

Ist Sess. (1977).

There are even those who perceive the abuses as hav-

ing subsumed the body of the grand jury itself and seek

its excision from the Fifth Amendment. See, e.g., J. Kra-

mon, The Grand Jury: An Overview, THE JOURNAL OF THE

Section or LiticaTion, ABA v.4, n.4, p. 8 (1978). Such

a trend, once begun, could well result in the first alteration

in our Bill of Rights in almost two hundred years. This

petitioner urges the Court to exercise its supervisory pow-

ers to clarify the function of the grand jury and to move

it back to its constitutional place as a protector rather

than an inquisitor. As this Court has said, the grand

jury is an arm of the judiciary, “subject to the supervision

of a judge.” See, Branzburg v. Hayes, 408 U.S. 665, 688

(1972). In this case the petitioner seeks an exercise of

that supervisory power at the ultimate level of authority,

the Supreme Court of the United States, to clarify a split

in the positions of the Circuit Courts of Appeal as well

as to silence the uncertainty among courts and commenta-

tors geuerally on the operation and conduct of the grand

jury in our system of criminal justice.

16

CONCLUSION

It is respectfully submitted that a Writ of Certioran

should be granted.

Respectfully submitted,

JOHN CZARNECKI

Counsel for Petitioner

Al

APPENDIX A

Opinion of the Court of Appeals for the Sixth Circuit

(Filed August 1, 1978)

No. 77-5238

UNITED STATES COURT OF APPEALS

For THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

JOHN JOSEPH BARONE, JR.,

Defendant-Appellant.

Appea. from the United States District Court for the East-

ern District of Kentucky.

Before: CELEBREZZE, ENGEL, and KEITH, Circuit Judges.

ENGEL, Circuit Judge, delivered the opinion of the

Court, in which CELEBREZZE, Circuit Judge, joined, KEITH,

Circuit Judge, (pp. 16-18) filed a separate dissenting opin-

ion.

ENGEL. Circuit Judge. John J. Barone, Jr. was con-

victed of possessing cocaine with intent to distribute it

and of conspiring to distribute that drug, in violation of

91 U.S.C. $$ 841(a)(1) and 846. In his direct appeal

he raises three issues. He challenges the validity of a

search warrant for his residence, claiming that the underly-

ing affidavit contained material misrepresentations of fact

made by its affiant and that it was insufficient to establish

Az

probable cause for the search. He claims that the grand

jury system was abused by the government because the

indictment was issued solely upon the hearsay testimony

of an investigating officer, and because a grand jury con-

vened earlier in another district had refused to indict

after hearing numerous eyewitnesses. Finally, he claims

that the district court erred in denying his motion for

a new trial based upon a claim that newly-discovered

evidence, withheld by the government, would have tended

to exculpate him. We affirm.

THE SEARCH WARRANT

The warrant for the search of Barone’s residence was

issued by an Ohio state judge upon the affidavit of a

special agent of the Drug Enforcement Administration

(DEA). The physical evidence seized in the search, a

microscope, a triple-beam balance, and a vial of lactose,

was not introduced into evidence. Nevertheless, the gov-

ernment made full use of testimony that the triple-beam

balance and vial of lactose were discovered in the search

and were materials commonly used by persons in the busi-

ness of distributing drugs.

The government’s theory was that Barone and one

Norman Richard Depp were partners in cocaine smuggling

operations and that in furtherance of this conspiracy,

Barone had given Depp $10,000 in cash to travel to Colom-

bia, South America to purchase cocaine. The scheme was

discovered when, on July 6, 1975, Depp and one Roma Sly

disembarked from a flight at the Miami International Air-

port, having returned together from a trip to Colombia.

Depp and Sly proceeded through customs checkpoints

at separate locations. However, customs officials became

suspicious when they observed Sly carrying a hair dryer.

Disassembling it, they discovered approximately 3.3 pounds

A3

of cocaine. Depp was also arrested while leaving the

concourse and both were interrogated by DEA agents.

The interrogation produced a confession by Depp and his

identification of Barone as his partner. Having apprised

the agents of their plans, Depp agreed to cooperate in

an effort to make a “controlled” delivery to Barone of

the cocaine found in the hair dryer. At the agent’s urging,

Depp called Barone and suggested that they meet at the

airport serving Cincinnati, Ohio, which is actually located

within Kentucky. The bulk of the cocaine was removed

from the hair dryer and replaced by a flour-like substance.

Depp then flew with the two agents to the Cincinnati

area. Disembarking at the Cincinnati airport, Depp met

Barone in the concourse from which they went to the

baggage area. Depp carried the hair dryer with him and

apparently handed it to Barone before purportedly going

to check on the location of his luggage. Barone went

to the parking lot and was arrested as he placed the

hair dryer in the trunk of his car.

Based upon the foregoing facts and upon interrogation

of Depp, one of the agents, Augustine Ginetz, filed an

affidavit with the state judge which contained the follow-

ing statement:

This affiant received information from an informant,

who has provided me with information which has

been reliable and on which arrest have (sic) been

based and a considerable quanity (sic) of narcotics

have (sic) been conficated (sic) on July 6th and 7th

of 1975. The informant further states on this date,

July 7th 1975, that on June 30th 1975, he was at

the residence at 2575 Indian Creek Rd and personally

observed a large quanity (sic) of marijuana, cocaine,

amphetamines and barbituates which belong to John

Joseph Barone, Jr. who is a resident at this address.

A4

The informant further states that on June 30th 1975

that John Joseph Barone, Jr, did give him $10,000.00

to go to Columbia (sic), South America to use to

purchase cocaine, which he did. John Joseph Barone,

Jr. was arrested by Federal Agents on July 7th 1975

when taking possession of the above purchase of co-

caine. The informant further states that there is (sic)

still large quanites (sic) of drugs at the residence

at 2575 Indian Creek Rd, which he observed on June

30th 1975.

At a suppression hearing before the district court,

counsel for Barone urged that certain statements concern-

ing the reliability of the “informant” were false. Counsel

also claimed that the allegation in the affidavit regarding

the informant’s observation of certain drugs at Barone’s

house was false. The government admitted that the un-

identified informant was in fact Depp. After hearing the

evidence, the district judge denied the motion to suppress,

holding that the informant was reliable and that, whatever

the truth might have been concerning whether the infor-

mant actually observed a large quantity of drugs in

Barone’s residence on June 30, 1975, he had in fact made

that statement to the officer.

On appeal Barone makes two claims with respect to

the validity of the search warrant. While he admits that

the affidavit was facially sufficient to meet the two-prong

test of Aguilar v. Texas, 378 U.S. 108 (1964), he claims

that Agent Ginetz intentionally misrepresented facts in the

affidavit. He also claims that, in looking behind the face

of the affidavit, the true facts as shown at the hearing

of the motion to suppress were not sufficient to support

probable cause.

In United States v. Luna, 525 F.2d 4 (6th Cir. 1975),

cert. denied. 424 U.S. 965 (1976), our court dealt with

AS

the problem of whether a search warrant may be invali-

dated where it is claimed that the statements in the affi-

davit, which appear sufficient to establish probable cause

on their face, are in fact not true:

[I]t must be recognized that law enforcement

agents presenting evidence to magistrates could make

a mockery of the magistrate’s role if, in the necessarily

ex parte proceeding, they could freely employ false

allegations in order to secure the warrant. The same

could likewise be true if the agents could, with im-

punity, draft affidavits with utter recklessness as to

truth or falsity. In either instance there would be

a lack of good faith in the performance of the agent’s

duty to the judicial officer.

There are two circumstances which we believe

authorize the impeachment of an affidavit which on

its face is sufficient probable cause for issuance of

the warrant. The first of these consists of knowing

use of a false statement by the affiant with the intent

to deceive the court. This is true even if the state-

ment can be said to be immaterial to the issue of

probable cause. In our judgment such perjury must

lead to suppression of the evidence in order to prevent

fraud upon the judicial process.

The second circumstance arises when a law en-

forcement agent recklessly asserts a statement essen-

tial to establishment of probable cause and the charge

is subsequently made that the statement is both false

and recklessly made. In alleging recklessness, the

movant must offer affidavits 1) that the statement

sought to be attacked was false when made, and 2)

that when made the affiant did not have reasonable

grounds for believing it. At a hearing on such a

charge, it will be important for the District Judge

A6

to determine whether means had been available to

the agent to establish the truth or falsity of the state-

ment without such delay as would defeat a legitimate

law enforcement purpose.

On the other hand, we do not believe that good

faith error in a carefully prepared search warrant

affidavit should be held to require suppression of evi-

dence even where the erroneous allegation was essen-

tial to establishment of probable cause. As we see

the matter, the suppression rule can hardly be ex-

pected to prevent human error. It should be employed

to strike down perjury and to promote careful police

work.

525 F.2d at 8-9."

The Supreme Court has also recently addressed the

issue of when a defendant may attack the veracity of

a warrant affidavit after the warrant has been issued

and executed. In Franks v. Delaware, 46 U.S.L.W. 4869

(U.S. June 26, 1978), the Court summarized its ruling:

(W]e hold that, where the defendant makes a sub-

stantial preliminary showing that a false statement

knowingly and intentionally, or with reckless disre-

gard for the truth, was included by the affiant in

the warrant affidavit, and if the allegedly false state-

ment is necessary to the finding of probable cause,

1. Our circuit has on at least two other occasions had an

opportunity to apply the rule in Luna. In United States v. Rosen-

barger, 536 F. 2d 715, 720 (6th Cir. 1976), cert. denied, 431 U.S.

965 (1977), we held that there was no basis for suppression where

the affiant was not aware of an inaccuracy in his statement and

there was no evidence that the false information was recklessly

asserted. And, in United States v. Roberts, 548 F. 2d 665 (6th

Cir.), cert. denied, 431 U.S. 920, 931, 433 U.S. 913 (1977), Judge

Lively, speaking for the court, held that certain inaccuracies in

the affidavit were not material to the issue of probable cause and

resulted from a good-faith error.

A

AZ

the Fourth Amendment requires that a hearing be

held at the defendant’s request. In the event that

at that hearing the allegation of perjury or reckless

disregard is established by the defendant by a pre-

ponderance of the evidence, and, with the affidavit’s

false material set to one side, the affidavit’s remaining

content is insufficient to establish probable cause, the

search warrant must be voided and the fruits of the

search excluded to the same extent as if probable

cause was lacking on the face of the affidavit.

46 U.S.L.W. at 4870.

In striking a balance between competing considerations

the Court adopted a similar standard, but one that is

more limited than Luna, in regard to when exclusion of

the seized evidence is mandated. In Luna we decided

that a knowing and intentional use of a false statement

by the affiant will invalidate the warrant, even if the

representation is immaterial to the probable cause determi-

nation. «However, it is clear that Franks v, Delaware re-

quires that, even in such an instance of perjury, the war-

rant will be voided only if the false statement is neces-

sary to establish probable cause. The defendant must

prove “by a preponderance of the evidence” that the “af-

fidavit’s remaining content is insufficient to establish prob-

able cause.” Thus a defendant must now look to Franks

»v. Delaware for the correct standard when seeking to

attack a search warrant on this basis.”

9. The dissent suggests that our court shouid exercise its

supervisory powers to retain the stricter standards of Luna for

application to federal prosecutions. Since our opinion here finds

the search and seizure lawful under either standard, we need

not definitively address this issue. At the same time, it is worth

observing that dual standards in this field of law pose particular

difficulties for law enforcement officers since with great fre-

quency federal prosecutions must rely upon evidence gathered

by state and local law enforcement officials. Here, of course, the

affiant was a federal officer, but the warrant was issued by a

state judicial officer.

A8

Barone claims that the only information possessed by

Ginetz at the time he made out the affidavit was that

obtained from the surveillance, search, and interview of

Depp in Miami and the arrest of Barone at the Cincinnati

airport. At trial Ginetz admitted that he met “informant”

Depp for the first time on July 7, 1975, shortly after

Barone had been arrested and that prior to the time of

his arrest Depp had never furnished the government with

any information. For these reasons alone defendant in-

sisted in the district court that the warrant affidavit was

false insofar as it stated that Depp had “provided me

with information which has been reliable.” On appeal

Barone suggests for the first time additional reasons for

finding inaccuracies in the affidavit concerning the in-

formant’s reliability. He argues that it was false to state

that the informant’s information led to arrests and seizures

of narcotics on July 6th and 7th. The only relevant arrests

on July 6th were those of Depp and Sly, and Depp's

information could not have contributed in any manner,

Barone contends, to his own arrest and his companion’s.

Similarly, the seizure of cocaine on July 6th occurred

before Depp had even been arrested. Finally defendant

claims that it was inaccurate to state that a drug seizure

occurred on July 7th, because at most the DEA agents

recovered the very cocaine they had placed in Barone’s

hands.

We can agree that the facts recited in the affidavit

could more accurately and fully have reflected the scurce

of the affiant’s information and the basis for probable

cause. At the same time, we take into account the admoni-

tion of the Supreme Court in United States v. Ventresca,

380 U.S. 102, 109 (1965), that:

[W]hen a magistrate has found probable cause, the

courts should not invalidate the warrant by interpret-

A9

ing the affidavit in a hypertechnical, rather than a

common sense manner,

Applying the test of either Franks v. Delaware or Luna,

we conclude that the district judge did not err in refus-

ing to suppress the evidence. Any inaccuracies in the af-

fidavit statement concerning the arrests and seizures were

minor. The statement itself contains some ambiguity as to

its meaning, and we think it was the product of inartful

drafting, rather than any intent to deceive the state judge.

In addition, the facts in the affidavit adequately show

the informer’s reliability. That some of the statements

necessarily were against the penal interest of the informant

weighs heavily in support of his reliability and is, we have

held, a “significant, and sometimes conclusive, reason for

crediting the statements of an informant.” Armour v. Salis-

bury, 492 F. 2d 1032, 1035 (6th Cir. 1974). The specific de-

tails recited by the informant concerning his relationship

with Barone, corroborated by the agent’s own personal

contact with the informant, adds substantial weight to

his reliability. Counsel’s assertion that the informant did

not visit Barone’s home on June 30, 1975 finds support only

in the testimony of Barone, not in the testimony of Depp.

Whether Depp in fact entered the home on that date and

observed the contraband, the testimony was undisputed

that Depp stated to Ginetz that he had observed drugs in

Barone’s residence on that occasion. The trial judge held

3. For the purposes of this appeal we assume that the issue

of the search warrant’s validity is properly before us. However,

we note that Rule 12, Fed. R. Cr. P., requires that a motion to

suppress be made prior to trial and states that the failure timely

to raise such an objection shall constitute a waiver. Upon a

showing of “‘cause’”’ though, the Rule allows the court to consider

an untimely motion. Here, the suppression motion was not

made until midway through the trial, and while the record does

not suggest an explanation for the delay, the trial judge’s ruling

indicates that he may have implicitly found reasons to waive

the requirement.

Al0

a full and fair evidentiary hearing. His findings, made

after personally hearing the witnesses, are not clearly

erroneous.

GRAND JURY INDICTMENT PROCEDURE

Barone was arrested on July 7, 1975. Thereafter a

complaint was filed against him in the United States Dis-

trict Court for the Southern District of Ohio. After a pre-

liminary hearing on July 22, 1975, the case was presented

to the grand jury for the Southern District of Ohio, which

heard testimony in September and December of 1979, and

apparently again in March, 1976. While at least ten per-

sons appeared before the grand jury, a “no bill” was re-

turned on April 1, 1976. Thereafter, the matter was pre-

sented to a second grand jury, which was empaneled by

the United States District Court for the Eastern District

of Kentucky. At this proceeding only one witness, DEA

Agent Thomas Powell, testified. The instant indictment

was then returned against Barone charging both conspiracy

and the substantive offense of possession with intent to

distribute the cocaine.

Defendant filed two pretrial motions seeking to have

the indictment dismissed or quashed. Allegations of a

violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq,

which were embodied in the first motion, are not raised on

this appeal. The second motion, orally denied by the dis-

trict court, sought dismissal on the grounds that the prose-

cutor had failed to apprise the Kentucky grand jury of

the fact that the matter had earlier been presented to a

grand jury in Ohio, that a large number of witnesses had

been presented to that grand jury, and that a no bill

had been returned.

We do not, of course, know precisely why the grand

jury failed to return a true bill in Ohio nor why the gov-

All

ernment sought first to present the facts in the Southern

District of Ohio instead of in the Eastern District of Ken-

tucky where the substantive offense and the arrest oc-

curred. Since overt acts of the conspiracy occurred in both

districts, it was proper to have presented the evidence to

a grand jury in either district, although probably more

logical to have done so in Eastern Kentucky. See United

States v. Prueitt, 540 F. 2d 995, 1006 (9th Cir. 1976), cert.

denied, 429 U.S. 1063 (1977).

Both the defendant and the government agree that

federal law does not forbid the resubmission of evidence

to a grand jury after one or more previous grand juries

have refused to indict. United States v. Thompson, 251

U.S. 407 (1920). Likewise, the defense basically recog-

nizes the general rule that a criminal indictment is valid

even though it may have been based solely upon hearsay

evidence. For an understanding of the historical back-

ground of grand jury proceedings, Costello v. United States,

350 U.S. 359 (1956), is instructive:

The grand jury is an English institution, brought

to this country by the early colonists and incorpurated

in the Constitution by the Founders. There is every

reason to believe that our constitutional grand jury

was intended to operate substantially like its English

progenitor. The basic purpose of the English grand

jury was to provide a fair method for instituting crim-

inal proceedings against persons believed to have com-

mitted crimes. Grand jurors were selected from the

body of the people and their work was not hampered

by rigid procedural or evidential rules. In fact, grand

jurors could act on their own knowledge and were

free to make their presentments or indictments on

such information as they deemed satisfactory. Despite

its broad power to institute criminal proceedings the

Al2

grand jury grew in popular favor with the years.

It acquired an independence in England free from

control by the Crown or judges. Its adoption in our

Constitution as the sole method for preferring charges

in serious criminal cases shows the high place it held

as an instrument of justice. And in this country as

in England of old the grand jury has convened as

a body of laymen, free from technical rules, acting

in secret, pledged to indict no one because of prejudice

and to free no one because of special favor. As late

c* 1927 an English historian could say that English

grand juries were still free to act on their own knowl-

edge if they pleased to do so. And in 1852 Mr, Justice

Nelson on circuit could say “No case has been cited,

nor have we been able to find any, furnishing an

authority for looking into and revising the judgment

of the grand jury upon the evidence, for the purpose

of determining whether or not the finding was founded

upon sufficient proof... .” United States v. Reed,

27 Fed. Cas. 727, 738.

In Holt v. United States, 218 U.S. 245, this Court

had to decide whether an indictment should be quashed

because supported in part by incompetent evidence.

Aside trom the incompetent evidence “there was very

little evidence against the accused.” The Court refused

to hold that such an indictment should be quashed,

pointing out that “The abuses of criminal practice

would be enhanced if indictments could be upset on

such a ground.” 218 U.S., at 248. The same thing

is true where as here all the evidence before the

grand jury was in the nature of “hearsay.” If indict-

ments were to be held open to challenge on the ground

that there was inadequate or incompetent evidence

before the grand jury, the resulting delay would be

great indeed. The result of such a rule would be

that before trial on the merits a defendant could al-

ways insist on a kind of preliminary trial to determine

the competency and adequacy of the evidence before

the grand jury. This is not required by the Fifth

Amendment. An indictment returned by a legally con-

stituted and unbiased grand jury, like an information

drawn by the prosecutor, if valid on its face, is enough

to call for trial of the charge on the merits. The

Fifth Amendment requires nothing more.

350 U.S. at 362-63 (footnotes omitted).

The continuing authority of Costello has been recently

reaffirmed, at least in dictum, in United States v. Calandra,

414 U.S. 338 (1974), which upheld an indictment in the

face of a charge that it was procured through illegally-

obtained evidence:

The grand jury’s sources of information are widely

drawn, and the validity of an indictment is not af-

fected by the character of the evidence considered.

Thus‘ an indictment valid on its face is not subject

to challenge on the ground that the grand jury acted

on the basis of inadequate or incompetent evidence. ...

414 U.S. at 344-45. The principle has also been recently

recognized in our own circuit in United States v. Solimine,

536 F.2d 703 (6th Cir.), vacated on other grounds, 429

U.S. 990 (1976), judgment modified, 551 F.2d 124 (6th

Cir. 1977).

Notwithstanding this formidable authority, appellant

urges upon us a divergent view followed by the Second

Circuit in United States v. Estepa, 471 F.2d 1132 (2d Cir.

1972). There the Second Circuit reversed the defendants’

convictions and remanded with instructions to dismiss an

indictment which had been procured by what was held

to be improper use of hearsay testimony. The record

Alt

indicated that the hearsay declarant did not, in his testi-

mony before the grand jury, make it clear that his testi-

mony was not from his own personal knowledge but was

rather based upon the observations of others. Noting the

court’s repeated dissatisfaction with the continued, exces-

sive use of hearsay in obtaining indictments in the circuit,

Judge Friendly observed:

The mauy opinions in which we have affirmed

convictions despite the Government’s needless reliance

on hearsay before the grand jury show how loathe

we have been to open up a new road for attacking

convictions on grounds unrelated to the merits. We

have been willing to allow ample, many doubtless

think too ample, latitude in the needless use of hear-

say, subject to only two provisos—that the prosecutor

does not deceive grand jurors as to “the shoddy mer-

chandise they are getting so they can seek something

better if they wish,’ United States v. Payton, supra,

363 F.2d at 1000 (dissenting opinion), or that the case

does not involve “a high probability that with eyewit-

ness rather than hearsay testimony the grand jury

would not have indicted.”

* * *

We had hoped that, with the clear warnings we

have given to prosecutors, . . . and the assurances

given by United States Attorneys, see United States

v. Arcuri, supra, 405 F.2d at 693 & n. 4, a reversal

for improper use of hearsay before the grand jury

would not be required.

471 F.2d at 1137 (citations omitted) *

4. The only case in our circuit discussing this Second Circuit

line of authority is United States v. yy We ewe , Nos.

76-1366. 76-1367 (6th Cir., filed Dec. 21, 1976), which did not

consider the wisdom of the Estepa rule as the facts therein did

not present such a claim.

Ald

Barone does not assert the violation of a specific con-

stitutional right. Instead he urges that we should exercise

our supervisory powers to reverse and direct the dismissal

of the indictment because the totality of circumstances

here were unfair. While he does not directly claim that

Agent Powell led the Kentucky grand jury into a mistaken

belief that his testimony was entirely firsthand, he com-

plains that the failure to record the grand jury minutes

and restrictions on his cross-examination of a government

witness, Agent Powell, effectively precluded him from ex-

posing any irregularities in the proceedings.® Finally, he

claims it was unfair to seek and obtain through the hear-

say evidence of one federal agent what could not be ob-

tained through the direct testimony of ten eyewitnesses.

While we are not disposed to follow the rule of the

Second Circuit in Estepa, we observe that the standards

set forth by Judge Friendly in that case were not violated

here in any event. There is not the slightest indication,

and Baroge has never contended, that Agent Powell de-

ceived the grand jury during his testimony. He was, in

fact, an eyewitness to many of the circumstances which

5. Near the end of the government’s case at trial, Agent

Powell testified, out of the jury’s presence, concerning his par-

ticipation in the second grand jury proceeding. He stated that

he had presented the investigatory file on Barone to the United

States Attorney’s office in Kentucky and informed one of the

Assistant United States Attorneys that a Cincinnati grand jury

had returned a no bill. He implicitly conceded that he had been

the sole witness to testify before the Kentucky grand jury.

Barone’s attorney asked Agent Powell what information he

had furnished to the second grand jury which the first grand

jury did not possess and which he acquired after the date of the

arrest. Apparently this inquiry was made in an effort to show

that the second grand jury did not receive additional incrim-

inating evidence and thus it would have likewise returned a no

bill if excessive hearsay testimony by Powell had not been pre-

sented. The government objected to this question. The court

sustained the objection regarding what Powell’s actual testimony

had been, but allowed him to state that basically he had no per-

sonal knowledge of additional inculpatory information that was

discovered after the first grand jury proceeding.

Al6

occurred, and he was one oi the agents who participated

in the arrest of Barone.

From an examination of the record, it also appears

that whatever the propriety of the trial court’s ruling

excluding testimony concerning Agent Powell’s testimony

at the first grand jury proceeding, the defense, by rephras-

ing the questions, was able to elicit fully the answers

it desired.* Finally, while we have expressed our obser-

vation that it would be a better practice to make and

preserve a record of grand jury testimony, this has never

been required, and there is nothing in the facts here which

disposes us to change this well-established rule of our

circuit. United States v. Solimine, supra, 536 F. 2d at

707; United States v. Allen, 522 F. 2d 1229 (6th Cir. 1975),

cert. denied, 423 U.S. 1072 (1976); United States v. Battist,

486 F. 2d 961, 963 (6th Cir. 1973).

In conclusion, while we do not foreclose the possibil-

ity of an abuse of the grand jury system so egregious

as to warrant intervention by the use of our supervisory

powers, such a circumstance clearly does not exist here,

and we are not inclined to adopt the position of the Sec-

ond Circuit in Estepa. The strong historical policy consid-

erations pointed out by the Supreme Court in Costello

persuade us that this is the correct result. We are es-

pecially reluctant to see the trial of criminal cases further

attenuated by preliminary trials concerning the adequacy

of the grand jury proceedings, a concern particularly noted

in Costello.

THE MOTION FOR A NEW TRIAL

Finally, defendant has appealed from the denial of

his motion for a new trial, claiming that a later investiga-

6. See footnote 5 supra.

tion showed that an answer given by the chief prosecution

witness, Depp, was in fact false and that the government’s

failure to deliver this information to the defense violated

the requirement of the Due Process Clause as enunciated

in Brady v. Maryland, 373 U.S. 83 (1963). The newly-

discovered evidence was that one Mary Shaberg, a female

who lived with Depp at the time he was arrested, gave

testimony during the first grand jury proceeding which

was inconsistent with that given by Depp, concerning who,

in fact, Depp had called by telephone when he arrived

in Miami from Colombia, but prior to his arrest. In a

carefully written opinion, the district judge, examining

the evidence in the light of the other proofs at trial, denied

the motion, holding that at best the testimony showed

a discrepancy which, while it may have had some bearing

upon Depp’s credibility, did “not create a reasonable doubt

of guilt that did not otherwise exist after the trial, and,

therefore, the omission does not amount to constitutional

error.” The district court was clearly correct in denying

the motion.

Affirmed.

Kern, Circuit Judge, dissenting. I respectfully dis-

sent. Appellant claims that DEA Agent Ginetz intention-

ally misrepresented certain facts in his affidavit to support

the issuance of the search warrant to search appellant’s

residence. Appellant argued at the suppression hearing

that statements contained in the affidavit concerning the

reliability of the unidentified informant were false. Agent

Ginetz obtained the search warranted based upon the fol-

lowing affidavit:

%

This affiant received information from an informant,

who has provided me with information which has been

reliable and on which arrest have (sic) been based and

Als

a considerable quanity (sic) of narcotics have (sic)

been cinficated (sic) on July 6th and 7th of 1975. The

informant further states on this date, July 7th 1975,

that on June 30th 1975, he was at the residence at 2579

Indian Creek Rd and personally observed a large quan-

ity (sic) of marijuana, cocaine, amphetamines and bar-

bituates which belong to John Joseph Barone, Jr, who

is a resident at this address. The informant further

states that on June 30th 1975 that John Joseph Barone,

Jr, did give him $10,000.00 to go to Columbia (sic),

South America to use to purchase cocaine, which he

did. John Joseph Barone, Jr. was arrested by Federal

Agents on July 7th 1975 when taking possession of the

above purchase of cocaine. The informant further

states that there is (sic) still large quanites (sic) of

drugs at the residence at 2575 indiaii Creek Rd, which

he observed on June 30 1975. (Emphasis Added)

The government admitted that Depp was the informant —

referred to in the affidavit.

In United States v. Luna, 525 F.2d 4 (6th Cir. 1975),

cert. denied 424 U.S. 965 (1976), this Court set down a test

which sought to deter police misconduct and safeguard the

integrity of the judicial process. Mapp v. Ohio, 367 U.S.

643 (1961); United States v. Luna, supra at 8-9. We pointed

out that law enforcement agents, if unchecked, could make

a mockery out of a judicial officer’s duty to reach a decision

on the issuance of a search warrant in a neutral and de-

tached manner. Johnson v. United States, 338 U.S. 10

(1948), This would be so if law enforcement agents were

permitted to “employ false allegations in order to secure”

search warrants and “if the agents could, with impunity,

draft affidavits with utter recklessness as to truth or

’

falsity.” United States v. Luna, supra at 8.

Alg

Agent Ginetz admitted at trial that he met Depp, his

informant, for the first time shortly after appellant Barone

had been arrested and that Depp had never furnished the

government with information in the past. Nevertheless,

Agent Ginetz stated in his affidavit that Depp had provided

him with reliable information upon which arrests had been

made and narcotics confiscated on July 6 and 7, 1975. The

only arrests made on July 6 were those of Depp and Sly,

and Depp’s information could not have contributed to his

own arrest or that of his companion, Sly. The only arrest

made on July 7 was that of appellant Barone, which took

place prior to the time that Agent Ginetz met Depp. More-

over, the seizure of drugs at the Miami Airport was made

prior to Depp’s arrest. The arrests and confiscation of

drugs therefore were made in spite of, not because of,

Depp.

In my view, the inaccuracies and ambiguities contained

in Agent Ginetz’s affidavit were more than merely the

the product of inartful drafting, and I fail to see how the

majority can characterize them as minor. The statements

appear to have been falsely made and a deliberate obfusca-

tion of the truth in order to show the creditility and the

reliability of the informant and thus meet the second

prong of the test of an affidavit's sufficiency as announced

by the Supreme Court in Aguilar v. Texas, 378 U.S. 108

(1964). See also Spinelli v. United States, 393 U.S. 410

(1969).

The Luna test articulated two circumstances which

justify impeachment of an affidavit. The first circum-

stance goes to knowing use of false statements: the second

soes to reckless use of false statements. Under the first

application of Luna, this Circuit said:

A20

There are two circumstances which we believe autho-

rize the impeachment of an affidavit which on its

face is sufficient probable cause for issuance of the

warrant. The first of these consists of knowing use

of a false statement by the affiant with intent to de-

ceive the court. This is true even if the statement

can be said to be immaterial to the issue of probable

cause. In our judgment such perjury must lead to

suppression of the evidence in order to prevent fraud

upon the judicial process. (Emphasis added)

525 F.2d at 8. Here Agent Ginetz, the affiant, stated that

Depp had provided “me with information” (emphasis

added) which had been reliable and upon which arrests

had been made and narcotics confiscated. This statement

was within the personal knowledge of the affiant and goes

to the integrity of the affidavit. Franks v. Delaware, ........

ib eee (1978), 46 U.S.L.W. 4869, 4872 (June 27, 1978);

Rugendorf v. United States, 376 U.S. 528 (1964). The

Franks decision set a minimum constitutional standard

under which the Fourth Amendment mandates suppression

of seized evidence in state and federal prosecutions. In

my view Franks does not invalidate the concern expressed

in this Circuit’s decision in Luna that where a falsely

drawn affidavit perpetrates fraud upon and makes a mock-

ery of the judicial process, the affidavit may be impeached.'

In Luna this Circuit enunciated a stricter standard to ad-

dress this evil. In the exercise of this Court’s supervisory

powers, the Luna test should be applied in federal pros-

ecutions. The motion to suppress here should have been

granted and the conviction should be reversed.

1, United States v. Roberts, 548 F.2d 665 (6th Cir.), cert.

denied 431 U.S. 920 (1977), and United States v. Rosenbarger, 536

F.2d 715 (6th Cir. 1976), cert. denied 431 U.S. 935 (1977), do not

suggest a different result.

A2l

APPENDIX B

Judgment Entry of the Court of Appeals

for the Sixth Circuit

(Filed August 1, 1978)

No. 77-5238

UNITED STATES COURT OF APPEALS

FoR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

JOHN JOSEPH BARONE, JR.,

Defendant-Appellant.

JUDGMENT

Before: CELEBREZZE, ENGEL and Ke!Itu, Circuit Judges

Appeal from the United States District Court for the

Eastern District of Kentucky.

This cause came on to be heard on the record from

the United States District Court for the Eastern District

of Kentucky and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this court that the judgment of the said district

court in this cause be and the same is hereby affirmed.

No costs taxed.

ENTERED BY ORDER OF THE COURT

/s' Jonn A. HEHMAN

Clerk

99

APPENDIX C

Order of the Court of Appeals Denying Petition

for Rehearing

(Filed September 26, 1978 )

77-5238

UNITED STATES COURT OF APPEALS

For THE SrxTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

JOHN JOSEPH BARONE, JR.,

Defendant-Appellant.

ORDER :

Before: CELEBREZZE, ENGEL and Kertn, Circuit Judges

No judge in regular active service of the court having

requested a vote on the suggestion for a rehearing en

banc, the petition for rehearing filed herein by the defen-

dant-appellant has been referred to the panel which heard

the original appeal. Upon consideration of said petition,

the court concludes that it is without merit. Accordingly,

IT IS ORDERED that the petition for rehearing is

hereby denied.

ENTERED BY ORDER OF THE COURT

s Joun A. HEHMAN

Clerk