Petition — Forster v. United States

Supreme Court, U. . ~}

FILED }

[28s |

In the Supreme Cortstticrse reo. sn. cxenn

OF THE

United States

Ocroser Term, 1978

No 78-882

Hueco Frrperic Forster,

Petitioner,

vs.

Untrep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

Epxuraim MarcoLin

NicHouas C, ARGUIMBAU

445 Sutter Street, Suite 501

San Francisco, California 94108

Telephone: (415) 421-4347

ELFRIgEDE SoBILOFF

1095 Market Street

San Francisco, California 94103

Telephone: (415) 863-8520

Attorneys for Petitioner,

Huge Frederic Forster.

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © 5&S.F..CAS4!II! © (415) 981-7882

eg

SUBJECT INDEX

1 Page

Grounds on which the jurisdiction of this court is invoked... 2

Il.

Questions presented for review ............ 22.2... 2... oe. 3

Il.

Statutory and constitutional provisions which this case involves 4

IV.

ES ee

7.

IE nc cil Sire EONS (es a 19

A. Petitioner's Fourth Amendment rights were denied 19

B. The District Court erred in denying petitioner's motion

to dismiss for speedy trial violations __.

C. The District Court erred in denying er motion

to dismiss for grand jury abuses ......

ee SPO ee. aT, Boy ki uke 0% Re

BS 8

ii

TABLE OF AUTHORITIES CITED

Cases Page

rit Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182

Costello v. United States, 350 U.S. 359, 100 L.Ed. 397, 76 S.Ct.

EES i a in earn ata 27

Dillingham v. United States, 423 U.S. 64, 46 L.Ed.2d 205,

a ashe eRe walang des Chis 0 Mila hae etnies ux

Elkins v. United States, 266 F.2d 588 (1959) ........ 1, 22

Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L. Edad

PEE S54 a 4b ol AN cades bbc sey ates Pele en 3, 18, 19, 20

Gambino v. United States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed.

eda We yaw 4 a dieon b'ninis4-8 Seid 2 depos 21

Huffman v. Pursue, Ltd., 420 U.S. 592, 431 L.Ed.2d 482, 95

S.Ct. 1200 (1975) | eh ape Rien fad Semele

Kors ‘ Helfant, 421 U.S. 117, 44 L.Ed.2d 15, 95 S.Ct. 1524

Silverthorne Lumber Company v. United States, 251 U.S. 385,

40 S.Ct. 182, O05 US STA, BO La. Ae re '3, 21

| erecta eS ee 2

United States v. Cabral, 475 F.2d 715 (1st Cir., 1973) ....... 24

United States v. Calandra, 414 US. 338, 38 L.Ed.2d 561, 94

eh es ag vin dixev ec ve cu 3s 27, 28

United States v. Chanen, 549 F.2d 1306 (1977) ............. 27

United States v. Cordova, 537 F.2d 1073 (1976) ............

United States v. DeTienne, 468 F.2d 151 (7th Cir., 1972), cert.

ec elds b caer denscvesse-ecys 23, 26

United States v. Diggs, 497 F.2d 391 (2d Cir., 1974) .........

United States v. Dionisio, 410 U.S. 1, 35 L.Ed.2d 67, 93 S.Ct.

IE ONG

United States v. Estepa, 471 F.2d 1132 (1972) .............. 27

—_ States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d

lea in ig bined die baeaeses

United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d

ee el gee a dk Neik a's aad 00 4.9 090

United States v. Janis, 428 US. 433, 49 L.Ed.2d 1046, 96 S.Ct.

eevee licivadsasercsscies

United States v. Mandujano, 425 U.S. 564, 48 L.Ed.2d 212,

MM cece ccc csecciacseccccss

United States v. Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct.

ee bala rn eb isaac sass 2A, 25

United States v. Payton, 363 F.2d 996 (2d Cir. 1966) ...... 28

iii

TABLE or AuTuonritTies Crrep

CASES

Page

Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.

ae WG eas OO es eee eee 3, 20, 21

Younger v. Harris, 401 U.S. 37, 27 L.Ed.2d 669, 91 S.Ct. 746

SOE haiti axa cegdd sags Mn ates tegen dsc baked ore > v3

Constitutions

United States Constitution:

Pourth Amendment 0.00.06 66 c ci cccereenes 3, 4, * 19, 28

ES. TENE DME NOTE PEON Ee 4, 24, 25

ee ne ey ee eee eee ee 3, 5, 17, 18, Gace

Fourteenth Amendment, Section 1 . oe 5

Rules

Rules of Appellate Procedure, Rule 40(a) ..........-...555, 2

Rules of the Supreme Court of the United States:

INTE cco c asc nc thas eve tetresetacs dees secon ;

ee |} ) ne ete gs heh ee PRCT

Statutes

California Penal Code:

Fe ST CRh es Ricki vs vone ari bk +a eae aba 6 ou. 6

tT ane Cee Ae tas hang wp yn we Lae VS :

ct Nokes Ree ROE 8 Rew Res 0 aley OR a 1

18 U.S.C.:

EES EE ee Ae ee er eee eee Tee ee ey ° :

Re EGO a a hiah se aie as seas ste ree ees .

AT Ae Pen ee eG ee eee Eee tie oe

Oe TOC, Bertie BIGG ek ce i e eae eee ween 2

Other Authorities

American Bar Association, Rule 2-2(a) ..........66 cee eeeee: 26

In the Supreme Court

OF THE

United States

Ocroser Term, 1978

No.

Hueco Freperic Forster,

Petitioner,

vs.

Unirep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Ninth Circuit

_ Petitioner, Hugo Frederic Forster, hereby petitions this

Court for a writ of certiorari to review the decisions of the

Ninth Cireuit in the appeal entitled “United States of

America, Plaintiff-Appellee v. Hugo Frederic Forster, De-

fendant-A ppellant” (No. 77-2969, filed August 16, 1978) and

on petition for rehearing and suggestion for rehearing in

bane (denied November 3, 1978). The decisions and orders

of the Ninth Cireuit Court of Appeals affirming the judg-

ment of the United States District Court for the Northern

District of California, denying a rehearing, and rejecting

petitioner’s suggestion for a rehearing in bane are ap-

pended hereto in accordance with Rule 23(1)(i) of the

Supreme Court Rules.

2

I.

GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED.

The Ninth Cireuit Court of Appeals filed its decision af-

firming the judgment of the United States District Court

for the Northern District of California on August 16, 1978,

Senior Cireuit Judge Charles Merrill dissenting. Pursuant

to Rule 40(a) of the Rules of Appellate Procedure, peti-

tioner timely filed a petition for rehearing and suggestion

for rehearing in banc. Said petition and suggestion were

denied on November 3, 1978, with Judge Merrill recom-

mending rehearing and rehearing in banc.

The legal effect of a timely petition for rehearing is to

stay the time for petitioning for certiorari until thirty days

from the date of the order denying a rehearing, Supreme

Court Rule 22(2), United States v. Healy, 376 U.S. 75, 78,

84 8.Ct. 553, 11 L.Ed.2d 527, 531 (1964). Consequently, this

petition is timely filed. Moreover the time limitation is not

jurisdictional. Taglianetti v. U.S., 394 U.S. 316, 89 S.Ct.

1099, 22 L.Ed.2d 302 (1969).

The jurisdiction of this Court is invoked in accordance

with 28 U.S.C. See. 1254, which provides in relevant part,

“Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the petition

of any party to any civil or criminal case, before or

after rendition of judgment or decree. .. .”

3

Il.

QUESTIONS PRESENTED FOR REVIEW.

1. Whether it was proper to deny petitioner’s motion

to suppress on facts identical to the facts of Elkins v.

United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669

(1960).

2. Whether the principle, established in Elkins, supra,

Silverthorne Lumber Company v. United States, 251 U.S.

385, 40 S.Ct. 182, 64 L.Ed. 647 (1920) and Wong Sun v.

United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441

(1963) permits use in a federal prosecution of evidence

seized from a state prosecution under a federal warrant

when neither the federal warrant nor a prior state warrant

provides probable cause for their seizure and the prior

state warrant has on that basis been adjudged unconstitu-

tionally overbroad.

3. Whether the Fourth Amendment or principles of

comity prohibit the use in a federal prosecution of evi-

dence seized under a federal warrant from a state prosecu-

tor who is under state court orders to return the evidence

illegally seized and who requests that federal law enforce-

ment officials obtain a warrant against him for the sole and

express purpose of shielding him from contempt of court.

4, Whether, when following a joint state-federal investi-

gation, a state arrest, state indictment, and dismissal of

the state indictment on constitutional grounds, there is

instituted a federal prosecution for the same criminal acts,

the defendant has become “accused” for the purposes of the

speedy trial requirements of the Sixth Amendment at the

4

time of the state arrest or indictment. This is a question

as to which there is a division among the circuits.

5. Whether, when a grand jury has indicted exclusively

on the basis of hearsay testimony, the indictment must be

dismissed absent instructions to the Grand Jury as to the

inadmissibility of hearsay. This is a question as to which

there is a division among the circuits.

Il.

STATUTORY AND CONSTITUTIONAL PROVISIONS

WHICH THIS CASE INVOLVES.

The Fourth Amendment of the United States Constitu-

tion provides:

“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 describ-

ing the place to be searched, and the persons or things

to be seized.”

The Fifth Amendment of the United States Constitution

provides:

“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 offense 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 compensation.”

5

The Sixth Amendment of the United States Constitution

provides:

“Tn all criminal prosecutions, the accused shall enjoy

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

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory

process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defense.”

Section 1 of the Fourteenth Amendment of the United

States Constitution provides:

“All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.”

18 U.S.C. Section 371 provides:

“Conspiracy to commit offense or to defraud United

States

“If two or more persons conspire either to commit

any offense against the United States, or to defraud

the United States, or any agency thereof in any manner

or for any purpose, and one or more of such persons

do any act to effect the object of the conspiracy, each

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

not more than five years, or both.

6

“If, however, the offense, the commission of which

is the object of the conspiracy, is a misdemeanor only,

the punishment for such conspiracy shall not exceed the

maximum punishment provided for such misdemeanor.”

18 U.S.C. Section 2314 provides in relevant part:

“Transportation of stolen goods, securities, moneys,

fraudulent State tax stamps, or articles used in coun-

terfeiting |

“Whoever transports in interstate or foreign com-

merce any goods, wares, merchandise, securities or

money, of the value of $5,000 or more, knowing the

same to have been stolen, converted or taken by fraud;

“Shall be fined not more than $10,000 or imprisoned

not more than ten years, or both... .”

California Penal Code Section 182 provides in relevant

part:

“Criminal conspiracy: Acts constituting: Punishment:

Venue

“If two or more persons conspire:

“1. To commit any crime.

“They are punishable as follows:

“Tf the felony is conspiracy to commit two or more

felonies which have different punishments and the com-

mission of such felonies constitute but one offense of

conspiracy, the penalty shall be that prescribed for the

felony which has the greater maximum term... .”

7

California Penal Code Section 496 provides in relevant

part:

“Receiving property obtained by theft or extortion:

Penalty for concealment or withholding: Presumption

from buying or receiving: Burden to show inquiry

“1, Every person who buys or receives any property

which has been stolen or which has been obtained in

any manner constituting theft or extortion, knowing

the property to be so stolen or obtained, or who con-

ceals, sells, withholds or aids in concealing, selling, or

withholding any such property from the owner, know-

ing the property to be so stolen or obtained, is punish-

able by imprisonment in a state prison, or in a county

jail for not more than one year; provided, that where

the district attorney or the grand jury determines that

such action would be in the interests of justice, the

district attorney or the grand jury, as the case may be,

may, if the value of the property does not exceed two

hundred dollars ($200), specify in the accusatory plead-

ing that the offense shall be a misdemeanor, punishable

only by imprisonment in the county jail not exceeding

one year.

“9. Every person whose principal business is dealing

in or collecting used or secondhand merchandise or

personal property, and every agent, employee or rep-

resentative of such person, who buys or receives any

property which has been stolen or obtained in any

manner constituting theft or extortion, under such cir-

cumstances as should cause such person, agent, em-

ployee or representative to make reasonable inquiry to

ascertain that the person from whom such property

was bought or received had the legal right to sell or

deliver it, without making such reasonable inquiry,

shall be presumed to have bought or received such

8

property knowing it to have been so stolen or obtained.

This presumption may, however, be rebutted by proof.

“3. When in a prosecution under this section it shall

appear from the evidence that the defendant’s principal

business was as set forth in the preceding paragraph,

that the defendant bought, received, or otherwise ob-

tained, or concealed, withheld or aided in concealing

or withholding from the owner, any property which

had been stolen or obtained in any manner constituting

theft or extortion, and that the defendant bought, re-

ceived, obtained, concealed or withheld such property

under such circumstances as should have caused him

_ to make reasonable inquiry to ascertain that the person

from whom he bought, received, or obtained such prop-

erty had the legal right to sell or deliver it to him,

then the burden shall be upon the defendant to show

that before so buying, receiving, or otherwise obtaining

such property, he made such reasonable inquiry to

ascertain that the person so selling or delivering the

seme to him had the legal right to so sell or deliver

ic coun

IV.

STATEMENT OF THE CASE.

Petitioner HUGO F. FORSTER and MARGARITO O.

ROMERO were indicted on or about October 13, 1976 in

a ten-count federal indictment for nine counts of trans-

portation in interstate commerce of stolen gold, in viola-

tion of 18 U.S.C. Section 2314 and one count of conspiracy

to transport stolen gold in interstate commerce, in viola-

tion of 18 U.S.C. Section 371. (CT, 1-5) The first four

counts were based upon transactions involving defend-

ants alleged to have taken place between November, 1973

and May, 1974, at the R & F Metals Company, in San

9

Bruno, California. (See, e.g., stipulated testimony of Ana-

tole Yaroslav at CT 561-562). The fifth, sixth, eighth

and ninth counts were based upon transactions involving

Romero only between July, 1974 and March, 1975, while

the seventh count was based upon a transaction involving

Forster only in October, 1974. The first through sixth and

eighth counts involved purchases from one Raymond Hos-

man; the seventh, a purchase from one Joseph Tony

Lucero; and the ninth, a purchase from one Hugo RK.

Henriquez. (See, e.g., the reporter’s transcript of Grand

Jury proceedings, CT 234 et seq.) The nine overt acts

alleged in the conspiracy count of the indictment, as to

which evidence was presented for seven, involved pur-

chases from Hosman, Lucero, and one Lawrence Hodge.

(See, e.g., witness list, CT 525) Based upon a stipulated

statement of the testimony of witnesses and upon business

records of the R & F Metals Company (CT 522-690) the

appellants were adjudged guilty on all counts charged,

on August 8, 1977 (CT 703, 704).

The convictions were the end result of two and one

half years of state and federal investigation and litigation.

Involvement in the ease by Mifflin Singleton of the South

San Francisco Police Department began in February, 1975

(RT 74:6-8). Some time after February 7, 1975, Singleton

contacted the San Mateo office of the F.B.I. Agent Lee

Pointer of that office took part in a two-week surveillance

of appellant Romero’s business in late March, 1975 (RT

75:18-24) and was present during “95 percent of it.” (RT

77:1) (See also affidavit of F.B.I. Agent Freddie Capps,

at CT 203.) Federal agencies involved in the early investi-

gation included the Post Office (RT 79:21-25) and the

10

United States Secret Service (RT 81:20-82:14), and the

prosecutor herein indicated that federal agencies initiated

the investigation (RT 8:2-9).

On May 2, 1975, and June 17, 1975, respectively, Single-

ton obtained search warrants for the premises of Romero

and Forster, respectively, describing the items to be seized

as

business records, telephone records, checks and check

stubs, receipts for sale and purchase, and any other

stolen items, consisting of gold, silver and other pre-

cious metals

(CT 192-195) Pursuant to these warrants, the South San

Francisco Police seized all the business records of M. O.

Romero and Company, R & F Metals, and Hugo F. Forster

and Company, totaling over 50,000 documents in the case

of the search of Romero’s premises, and over 10,000 in

the case of the search of Forster’s premises (affidavit

of Paul Hupf, CT 185).

Prior to the execution of these warrants, neither the

South San Francisco Police (RT 83-85) nor the F.B.I.

(RT 155-157) had knowledge of any of the transactions

or witnesses relating to stolen gold in this case. More

specifically, Detective Singleton testified in the District

Court that the names of Lawrence Hodge, Henry Ceasar,

David Rose, Larry Price, Raymond Hosman, Ear! Costner

and Joseph Lucero, all key witnesses in both the state

and federal cases, were obtained as a result of these

searches. (Compare RT 83-85, CT 524. See also RT 124-

125.)

ll

Romero and Forster were arrested on May 5, 1975, and

June 18, 1975, respectively, on state charges. (Affidavit

of Ephraim Margolin, CT 310:10-15) The F.B.I. partici-

pated in Romero’s arrest. (See affidavit of Freddie Capps,

CT 206). The prosecution in this case stipulated that there

was cooperation between the F.B.I. and the San Francisco

Police Department throughout the state proceedings; this

stipulation was for the purpose of avoiding a discovery

request as to such cooperation with regard to the state

search, the preparation of the state search warrants, the

state arrests, and preparation of the state case. (RT 15-

17, CT 29-34) On the present record it may therefore be

concluded that there was cooperation as to all of these

matters. The District Court found that there was a “joint

state and federal investigation,” and that

State and federal authorities frequently exchanged

information within their possession, and otherwise

cooperated closely throughout the investigation of

defendants.

(Memorandum decision on pretrial motions, CT 498:17-

23)

In August, 1975, FBI Special Agent Freddie Capps

examined the records seized by the South San Francisco

Police Department. (RT 203:1-4, CT 453:3-7.) The only

independent FBI investigation of which Detective Single-

ton was aware was at least a week’s examination by Capps

of the records seized by the South San Francisco Police

(RT 109-111). All the records seized pursuant to the two

warrants were made available to Capps (RT 111:6-8).

These records were the indispensable core of the State

case against appellants and later, of the federal case.

12

Capps was later to become the affiant on the federal war-

rant (CT 207). He testified at the federal suppression

hearing that prior to his examination of the materials he

had no knowledge of the transactions underlying the fed-

eral indictment (RT 155-157, CT 149-154). Through his

contacts with Singleton, he was aware well in advance

of the state suppression motion. (RT 158) The prosecution

herein refused to divulge its reasons, if any, for failing

to commence a prosecution simultaneously with the state

prosecution (RT 164-165).

During the period in which FBI and South San Fran-

cisco Police Department officers were sifting through the

quantities of materials seized under the State warrants,

the case was proceeding through preliminary stages in

the San Mateo County Municipal Court. Despite admis-

sions by the prosecutor that quantities of totally irrelevant

materials had been seized, and despite court orders to

return the irrelevant materials, the District Attorney con-

tinued to withhold vast quantities of business records until

contempt proceedings were brought against him. Rather

than abiding by the rulings of the Municipal Court, the

District Attorney abandoned preliminary proceedings in

the Municipal Court and sought an indictment from the

San Mateo County Grand Jury (affidavit of Ephraim

Margolin, CT 3138-316). FBI agents were aware of all

these events (CT 316:12-15).

On October 22, 1975, the San Mateo County Grand Jury

issued an eleven-count indictment against Romero and

Forster, charging receipt of stolen property and con-

spiracy. With the exception of one count (No. IT) against

Romero in the State indictment and one count (No. 9)

13

against Romero in the subsequent federal indictment, all

transactions alleged in the San Mateo County indictment

were identical to those alleged in the indictment in the

present case. (For a detailed comparison, see the dis-

eussion in defendants’ “Memorandum in Support of Motion

to Dismiss for Speedy Trial Violations,” at CT 294-296,

and the supporting documents).

A motion to suppress all material seized under the State

warrants was filed pursuant to California Penal Code Sec-

tion 1538.5, and hearings were commenced on March 18,

1976, in the Superior Court, San Mateo County (affidavit

of Paul Hupf, CT 184, 185). The suppression motion was

made on the grounds that neither the items to be seized

nor the premises to be searched were described with consti-

tuuonally sufficient particularity, and that the affidavit in

support of the warrant was insufficient and false in mate-

rial respects (affidavit of Paul Hupf, CT 184:11-19), The

motion was granted in its entirety on March 30, 1976 on

the stated grounds that “The search warrants are on their

faee constitutionally overbroad as to the description of the

property to be seized.” (CT 196:24-25) The ruling is sup-

ported by the above-quoted language of the warrants them-

selves, was not appealed by the State prosecution, and was

conceded to be correct as a matter of federal constitutional

law by the United States Attorney in the present case. (See,

e.g., memorandum opinion of the District Court, Note 1,

CT 500.)

On Aprii 8, 1976, the District Attorney sought and was

granted dismissal of all counts of the state indictment ex-

cept the ninth (against Romero only), conceding that there

was no evidence against the appellants as to the other

14

counts except that which had been suppressed. (CT 186,

RT 62) The District Attorney stated to the Court that he

would prepare an order for return of the suppressed evi-

dence (RT 62), but did not do so. Defense counsel set the

matter for hearing before the presiding judge of the Supe-

rior Court criminal calendar on April 26, 1976. The pre-

siding judge did not rule on the matter but set it for hear-

ing on April 28, 1976 before the judge who had heard the

suppression motion (CT 187). On April 28, following dis-

cussions in chambers at which the United States Attorney,

the District Attorney, and Special Agent Capps were pres-

ent, the Superior Court ordered return of the seized docu-

ments, notwithstanding the existence of a federal warrant

for their seizure from the District Attorney, the existence

of which had not been previously known to the defense (CT

187, RT 64).

The federal warrant had been prepared at the request

of the District Attorney for the reason that he considered

that he would be held in contempt if he did not return the

seized materials, and “because I was an Officer of the Court

and was holding this evidence for the benefit of the Court.”

(RT 96:6-7) The federal warrant was prepared with the

assistance of Detective Singleton (RT 119:1-3), who dis-

eussed with Special Agent Capps the week prior to its is-

suance the fact of the suppression and told him what mate-

rial was present in the District Attorney’s office (RT 114-

115).

The federal warrant, directed to the office of the District

Attorney, specified the materials to be seized as

. certain property, namely business records that

consist of individual purchase and sales transactions

15

of metals by R & F Metals, Incorporated; Hugo F.

Forster and Company; and M. O. Romero and Com-

pany for the years 1971, 1972, 1973, 1974, and 1975;

specifically, checks, purchase orders and attached cor-

respondence, invoices, business diaries, and customer

contact cards that relate to purchases from the Simmons

Refining Company, Paul Norboe, Motherlode Wood

Company, Hewlett-Packard, G.T.E. Lenkurt, Hughes

Aircraft, and private individuals, or sales to any of the

above named companies or individuals, which are the

. instrumentalities of a crime in violation of Title 18,

U.S.C., Section 2314—Interstate Transportation of

Stolen Property.

(Emphasis added. CT 198, 200) On its face, the supporting

affidavit might be said to have supplied probable cause for

seizures of documents related to the named companies and

individuals; but the only justification for seizure of docu-

ments related to anyone else was contained in the last para-

graph of the affidavit, which alleged,

On April 23, 1876, Detective Singleton advised that all

records relating to the South San Francisco Police

Department and the San Mateo County District Attor-

ney’s Office case against Romero and Forster are now

being maintained in the office of Deputy District Attor-

ney Charles Pierpoint, III.

(Affidavit of Freddie Capps, CT 207). In particular, docu-

ments relating to transactions with Hodge, Ceasar, Rose,

Price, Hosman, Costner, and Lucero were not covered by

the federai warrant except for its general reference to “pri-

vate individuals,” were not covered by Capps’ aftidavit

1The Government conceded on appeal that the reference to

“private individuals” in the federal warrant was not a reference to

any of the individuals mentioned here. Note 5, brief of appellee,

at 6.

16

except insofar as it referred to the location of records from

the state case and would not have been in the possession of

the District Attorney (or at that late date, necessarily in

anyone’s possession) except for the unconstitutional over-

breadth of the original warrant. These documents became

critical evidence in the present case (RT 5:8-16, exhibits

la through 4d, CT 575-609: purchase orders and cancelled

checks seized under the federal warrant which refer to

transactions with Hodge, Ceasar, Hosman, and Lucero and

in no way refer to the companies named in the federal

warrant).

Appellants sought return of the matters seized pursuant

to the federal warrant in a separate proceeding in the Dis-

trict Court, which application was denied without reaching

the merits (CT 289, 290, and Memorandum in Support of

Suppression Motion, CT 169:1-14). Subsequently, a motion

to suppress was brought in the District Court, going to

the evidence seized under the state warrants and seized

again under the federal warrant and to the fruits thereof.

(See Suppression Motion, CT 157 et seq., oral argument,

RT 50:17-22, and Supplemental Memorandum CT 487 et

seq.).

In an extensive evidentiary hearing on the suppression

motion, Detective Singleton of the South San Francisco

Police Department and Special Agent Freddie Capps of the

FBI both testified that the only source of the names of

Hodge, Ceasar, Hosman, and Lucero was the material

seized under the State warrants, held by the District At-

torney and reseized under the federal warrant (RT 83-85,

RT 155-157), but both asserted that all the information

contained in the affidavit supporting the federal warrant

17

was known prior to execution of the State warrant (RT

118-123, RT 200-202).

Both appellants contested admission of business records

and the stipulated testimony of Hodge, Ceasar, Price, Hos-

man, Rose, and Morgan as fruits of an illegal search in

their trial memoranda (CT 512-513, 692-693) and pointed

out that the facts clearly established that the place to be

searched pursuant to the federal warrant, namely, the office

of the District Attorney, was learned as a result of the

State search. All pretrial issues were preserved at trial

(CT 696).

The District Court denied the suppression motion in toto.

It made a finding that the federal warrant was untainted

by the fruits of the State search but made no finding as to

whether, but for the state search, the FBI would have been

able to obtain the material seized.

Petitioner Forster moved to dismiss for violation of his

right to a speedy trial. This motion was based upon the

argument that when federal officials participate in a state

investigation and arrest, and state charges are from the

same criminal acts for which subsequent federal charges

are filed, a defendant should be deemed accused for Sixth

Amendment purposes from the date of the state arrest or

indictment return than from the date of the federal arrest

or indictment. (CT 28 et seq.). He provided evidence of the

type of prejudice usually considered in relation to post-

accusatorial delays but not of the type usually considered

in relation to pre-accusatorial delays. Forster filed a five-

page affidavit detailing the adverse effects of delays in the

federal prosecution on his defense and upon his personal

affairs, noting particularly that his finances had been deci-

18

mated, his ability to pay for his defense destroyed, his

access to witnesses hampered, and his access to his own

business records cut off (CT 476 et seq.). The District

Court deemed the date of the federal indictment to be con-

trolling, however, and denied the motion on that basis. (CT

507-508).

Petitioner Forster’s motion to dismiss for grand jury

abuses (CT 210 et seq.) was based upon the transcript of

the grand jury proceedings, which was totally devoid of

evidence with respect to some of the charges and was ex-

clusively hearsay, without the grand jury having been in-

structed on the nature of evidence which would be admis-

sible at trial. (See CT 23 et seq., the grand jury transcript).

The motion was denied.

Petitioner was adjudged guilty by the Court on all

counts, based upon stipulated testimony and documentary

evidence.

Petitioner appealed on the grounds that his Fourth

Amendment rights and Sixth Amendment speedy trial

rights had been denied and that the District Court had

erred in denying the grand jury motion. Judgment was af-

firmed on August 16, 1978, Senior Cireuit Judge Charles

Merrill dissenting on the grounds that this case is indistin-

guishable from Elkins v. U.S., 364 U.S. 206 (1960). Peti-

tioner sought a rehearing and rehearing in banc, denied

by order of November 3, 1978, Judge Merrill again dissent-

ing.

19

V.

ARGUMENT.

A. Petitioner's Fourth Amendment Rights Were Denied.

To reiterate the facts on which the suppression motion

in this case was based, there was in this case a federal war-

rant directed at the office of the San Mateo County District

Attorney, who held business records of the petitioner seized

pursuant to an overbroad state warrant. The materials in

the federal seizure included evidence essential to petitioner's

conviction, which federal officials had no independent prob-

able cause to seize and which would not have been in the

hands of the District Attorney but for the overbreadth of

the original warrant. While the District Court found that

there was an independent basis for the facts alleged in

the federal warrant for seizure of a narrow class of busi-

ness records, there was no independent basis for seizure of

the evidence which came into the District Attorney’s pos-

session as a result of the overbreadth of the original seiz-

ure. Finally of note is the conceded federal participation at

all stages of the state proceeding, the fact that the state

and federal charges were for the same criminal acts, and

the fact that the issuance of a federal warrant was admit-

ted by the District Attorney to have been at his request,

solely to protect him from a contempt citation in state

court.

When facts similar to the above came before this Court

in Elkins v. United States, 364 U.S. 206, 4 L.Ed.2d 1669,

80 S.Ct. 1437 (1960), this Court observed:

“The very essence of a healthy federalism depends

upon the avoidance of needless conflict between state

and federal courts. Yet when a federal court sitting in

20

an exclusionary state admits evidence lawlessly seized

by state agents, it not only frustrates state policy,

but frustrates that policy in a particularly inappropri-

ate and ironic way. For by admitting the unlawfully

seized evidence the federal court serves to defeat the

state’s effort to assure obedience to the Federal Con-

stitution.

* e .

“Free and open cooperation between state and fed-

eral law enforcement officers is to be commended and

encouraged. Yet that kind of cooperation is hardly pro-

moted by a rule that implicitly invites federal officers

to withdraw from such association and at least tacitly

to encourage state officers in the disregard of consti-

tutionally protected freedom. If, on the other hand,

it is understood that the fruit of an unlawful search

by state agents will be inadmissible in a federal trial,

there can be no inducement to subterfuge and evasion

with respect to federal-state cooperation in criminal

investigation. Instead, forthright cooperation under

constitutional standards will be promoted and fos-

tered.”

This observation applies with all the more force in the

present case. The facts in Elkins’ were essentially identical

to those in the present case, except for the following:

(1) There is no indication in the Elkins opinion that

federal officials had no independent, “untainted” basis for

obtaining the evidence. In the present case, but for the

illegal state seizure, the federal officials could not have

obtained the incriminating evidence seized, cf. Wong Sun

v. United States, 371 U.S. 471, 488, 9 L.Ed.2d 441, 83 S.Ct.

407 (1963).

set forth in note 1, 364 U.S. at 207.

21

(2) In Elkins the federal warrant was directed at a bank

vault; here it was directed at the District Attorney.

(3) In Elkins, as noted by the Ninth Circuit in its

opinion herein (note 7 of slip opinion), there was no state

court order to return the illegally seized evidence, Here,

the federal warrant was issued by a federal magistrate not

informed by federal law enforcement officials that its pur-

pose was to shield the District Attorney from a contempt

citation for failing to carry out a court order to return.

(4) In Elkins, as noted by the Ninth Circuit in its opinion

in that case, Elkins v. United States, 266 F.2d 588, 594

(1959), “[T]he motion did not say nor does the record

show, that any federal officer participated in the state search

and seizure.” Here, there was federal participation in every

phase of the state case, stipulated to by the U.S. Attorney.

Cf., Gambino v. United States, 275 U.S. 310, 314, 48 S.Ct.

137, 72 L.Ed. 293 (1928).

(5) In the present case, the federal affiant spent a week

sifting through the illegally seized materials before they

were seized again under the federal warrant prepared by

him.

In short, this case is indistinguishable from Elkins except

for reasons additional to those in Elkins for suppression

here. Here, suppression was mandated because federal pos-

session of the fruits of the state warrant’s overbreadth con-

stituted exploitation of the illegal search in violation of the

principles established in Silverthorne Lumber Company v.

United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 647

(1920) and Wong Sun v. United States, supra, and, addition-

ally, because of federal participation in the investigation

22

and arrests leading up to the illegal “state” search, in viola-

tion of the principle set forth in Gambino v. United States,

275 U.S. 310, 314, 48 S.Ct. 187, 72 L.Ed. 293 (1928) that

“Evidence obtained through wrongful search and seizure

by state officers who are cooperating with federal officials

must be excluded.”

The principle established in Elkins that the federal

courts are not to undercut state protection of federal

constitutional rights complements principles of comity

established in recent cases in this Court. The cooperation

of state and federal officials to use an ex parte federal

warrant proceeding to circumvent state court orders in

this case was in clear violation of these. principles. In

Huffman v. Pursue, Ltd., 420 U.S. 592, 609, 43 L.Ed.2d

482, 95 S.Ct. 1200 (1975), this Court outlawed “federal

post-trial intervention in a fashion designed to annul the

results of a state trial” when the “losing litigant has not

exhausted his state appellate remedies.’”* That is pre-

cisely what happened in the present case. To permit state

officials, after having lost a suppression motion on federal

constitutional grounds, to turn the fruits of the illegality

over to federal officials for a federal prosecution of the

same crimes, would permit the clearest violations of the

complementary principles of federalism which Elkins and

Younger were intended to protect.

*The existence of state-federal cooperation remains a factor to be

considered under recent decisions. See, e.g., United States v. Janis,

428 U.S. 433, 49 L.Ed.2d 1046, 96 S.Ct. 3021 (1976), note 31 and

surrounding text, 428 U.S. at 455.

‘See also, Younger v. Harris, 401 U.S. 37, 41, 27 L.Ed.2d 669, 91

S.Ct. 746 (1971) and Kugler v. Helfant, 421 U.S. 117, 44 L.Ed.2d

15, 95 S.Ct. 1524 (1975).

23

B. The District Court Erred In Denying Petitioner’s Mo-

tion To Dismiss For Speedy Trial Violations.

The federal prosecution. in this case was completely

parallel to the prior state prosecution. The federal prose-

cution involved shipments in interstate commerce of stolen

merchandise, and a conspiracy to make such shipments,

while the state prosecution involved receipt of the same

stolen merchandise and a conspiracy to make such receipts.

The same facts, same evidence, same criminal acts were

involved in each case, and there was federal-state coopera-

tion at every stage of both the state and the federal prose-

eution. Yet, the federal prosecution was not commenced

until the state prosecution had been dismissed, and the

U.S. attorney refused to explain the delay.

When a federal prosecution is preceded by a state prose-

cution for the same criminal acts, the circuits are divided

as to the date on which the defendant becomes “accused”

for the purposes of the Sixth Amendment.

In United States v. Diggs, 497 F.2d 391, 393 (2d Cir.,

1974), it was held that one had become accused for the

purposes of Sixth Amendment right to counsel at the time

of a state indictment, prior to federal indictment, when

“the state and federal charges were for the same crime

[and] the federal people knew it.”

In United States v. DeTienne, 468 F.2d 151, 155 (7th

Cir., 1972), cert. denied, 93 S.Ct. 974, it was held that the

time for a speedy trial does not run from the date of

arrest on an unrelated charge but that

“Of course, if the crimes for which a defendant is

ultimately prosecuted really only gild the charge

24

underlying his initial arrest and the different accu-

satorial dates between them are not reasonably explic-

able, the initial arrest may well mark the speedy

trial provision’s applicability as to prosecution for

all the interrelated offenses.”

In United States v. Cabral, 475 F.2d 715 (1st Cir., 1973),

the defendant, arrested first by state police for possession

of stolen property (a firearm), was later charged with the

federal offense of possessing a firearm (the same one)

not identified by a serial number; the First Circuit deter-

mined that the speedy trial provisions should run from

the date of the state arrest. Cabral was cited in Dillingham

v. United States, 423 U.S. 64, 46 L.Ed.2d 205, 96 S.Ct.

303, for the proposition that “the policies that inform the

right to a speedy trial reach beyond the indictment stage.

”

.

In the Ninth Circuit, however, the present case and

United States v. Cordova, 587 F.2d 1073 (1976) have con-

cluded that whether or not the state charges are “for the

same illegal activity as that in the federal prosecution,”

Cordova, 537 F.2d at 1076 the defendant does not become

“accused” for federal purposes until federal charges are

filed. In the present case, it would appear particularly

justifiable to “start the clock running” from the state

arrests and indictment, since federal agents were cooper-

ating with state law enforcement from the beginning, even

to the extent of being physically present at co-defendant

Romero’s arrest.

When “pre-accusatorial” delays are involved, the issue

is whether the delays have denied the defendant a fair

trial under Fifth Amendment standards. United States v.

25

Marion, 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455 (1971).

Once one has become “accused,” however, prejudice is

measured by standards related to the purposes of the

speedy trial requirement. These were set forth in Smith

v. Hooey, 393 U.S. 374, 377-378, 89 S.Ct. 575 (1969) as

follows:

“(This constitutional guarantee has universally been

thought essential to protect at least three basic de-

. mands of criminal justice in the Anglo-American legal

system: ‘[1] to prevent undue and oppressive incar-

ceration prior to trial, [2] to minimize anxiety and

cuncern accompanying public accusation and [3] to

limit the possibilities that long delay will fend him-

self.’ United States v. Ewell, 383 U.S. 116, 120, 86

S.Ct. 773, 776, 15 L.Ed.2d 627.”

See also Barker v. Wingo, 407 U.S. 514, 532, 33 L.Ed.2d

101, 118, 92 S.Ct. 2182 (1972). In the present case, the

undisputed affidavit of petitioner established prejudice

relating to the second and third purposes: severe effects

on the petitioner’s reputation, family life, and business

affairs related to the accusations against him. It is con-

ceded, however, that the burden of proving a Fifth Amend-

ment violation was not met.

In United States v. Marion, 404 U.S. 307, 321, 30 L.Ed.2d

468, 92 S.Ct. 455 (1971), this Court stated:

“Invocation of the speedy trial provisions thus need

not await indictment, information, or other formal

charge. But we decline to extend the reach of the

amendment to the period prior to arrest. Until this

event occurs, a citizen suffers no restraints on his

liberty and is not the subject of public accusation:

his situation does not compare with that of a defend-

26

ant who has been arrested and held to answer.” (em-

phasis added.)

The language refers to “public accusation,” not “federal

accusation.” Moreover, the first sentence quoted is foot-

noted to the ABA standards relating to speedy trial, Rule

2-2(a), which start the time running for a speedy trial

from the date on which the defendant is held to answer

“for the same crime or a crime based on the same conduct

or arising from the same criminal episode.” Thus, the

time runs not from arrest or indictment for the particular

offense of which the individual is charged, but from arrest

or indictment for any offense arising from the same con-

duct, including a state offense. This is as it should be,

because the effects on the defendant are the same whether

the same jurisdiction files the original charges or not.°

Moreover, the existence of distinct jurisdictions should

be of no constitutional significance where, as here, there

has been continual state-federal cooperation; where, as

here, the federal charges only “gild” the state charges

DeTienne, supra; where, as here, “the state and federal

charges were for the same crime [and] the federal people

knew it”; and, where, as here, the U.S. attorney has refused

to explain the delay.

C. The District Court Erred In Denying Petitioner’s Mo-

tion To Dismiss For Grand Jury Abuses.

The present case raises an issue as to which the circuits

are divided. The indictment herein was based entirely upon

‘Congress, in adopting the Federal Speedy Trial Act, concurred

with the ABA’s “same criminal episode” language in dealing with

the problem of the ‘ne case; two successive prosecutions. See

18 USC Section 3161.

27

hearsay, none of which would have been admissible over

objection. A quick perusal of the grand jury transcript

reveals that, given the manner in which the case was pre-

sented, the jurors had no opportunity independently to

assess the strength or weakness of the Government’s case.

Petitioner does not contest the grand jury’s right to

consider hearsay or evidence subject to the exclusionary

rule. However, the Second Circuit has held that the U.S.

Attorney must inform the grand jury that the evidence

they are hearing would be inadmissible at trial. United

States v. Estepa, 471 F.2d 1132 (1972). The Ninth Circuit,

in the present case and in United States v. Chanen, 549

F.2d 1306 (1977) has disagreed with the Second Circuit

rule.

This Court has held that a grand jury may consider hear-

say, Costello v. United States, 350 U.S. 359, 362, 100 L.Ed.

397, 76 S.Ct. 406 (1956) and evidence subject to the exclu-

sionary rule at trial, United States v. Calandra, 414 U.S.

338, 38 L.Ed.2d 561, 94 S.Ct. 613 (1974). On the other hand,

this Court has also recognized the Grand Jury’s

“historic office .. . to provide a shield against arbi-

trary or oppressive action, by insuring that serious

criminal accusations will be brought only upon the con-

sidered judgment of a respresentative body of citizens

acting under oath and under judicial instruction and

guidance.” United States v. Mandujano, 425 U.S. 564,

571, 48 L.Ed.2d 212, 219, 96 S.Ct. 1768 (1976).

and the Grand Jury’s duty to act “as a protective bulwark

standing solidly between the ordinary citizen and an over-

zealous prosecutor.” United States v. Dionisio, 410 U.S. 1,

16-17, 35 L.Ed.2d 67, 81, 93 S.Ct. 764 (1973). These cases

28

can only be reconciled if the grand jury must be informed

of “the shoddy merchandise they are getting so they can

seek better if they wish.” Friendly, J., dissenting in United

States v. Payton, 363 F.2d 996, 1000 (2d Cir., 1966).

Moreover, the recognition in Calandra, supra, that the

grand jury has an obligation to determine the existence of

probable cause, 414 U.S. at 342, implies that there must be

some evidence as to each element of each charge before an

indictment can be made. Here, as to some charges, there

was not.

CONCLUSIONS

The present case represents a serious violation of the

Fourth Amendment principles set forth in Elkins v. United |

States, supra. Moreover, it presents a conflict among cir-

cuits as to the time at which a defendant becomes “accused”

for Sixth Amendment purposes when there are successive

state and federal prosecutions for the same criminal con-

duct. Finally, it presents a conflict among circuits as to

the prosecutor’s duty to inform the grand jury of the in-

admissibility of hearsay evidence presented to them. For

these reasons certiorari should be granted and the judg-

ment reversed.

Dated: November 27, 1978.

Epxraim Marcouin

NicHo.as C, ArGuIMBAU

ELrriepe SosiLorr

Attorneys for Petitioner,

Hugo Frederic Forster.

(Appendices Follow)

Appendices

A-1

APPENDIX A

United States Court of Appeals

| For the Ninth Circuit

|

United States of America, :

| Plaintiff-Appellee,

vs. No. 77-2964

Margarito O. Romero,

| Defendant-Appellant.

| United States of America, ;

| Plaintiff-Appellee,

= No. 77-2969

Hugo Frederic Forster,

Defendant-Appellant. ;

[Filed August 16, 1978]

Appeal from the United States District Court

For the Northern District of California

5 OPINION

Before: MERRILL, Senior Cireuit Judge; SNEED, Cir-

cuit Judge; and EAST,* Senior District Judge

EAST, Senior District Judge:

THE APPEALS:

Appellant Margarito O. Romero appeals her judgment of

conviction and sentence to custody on eight counts of vio-

lating 18 U.S.C. § 2314 (stolen gold transported in inter-

*Honorable William G. East, Senior United States District Judge

for the District of Oregon, sitting by designation.

A-2

state commerce) and one count of violating 18 U.S.C. § 371

(conspiracy).

Appellant Hugo Frederic Forster appeals his judgment

of conviction and sentence to custody on five counts of vio-

lating § 2314 and one count of violating § 371.

The appeals were consolidated for hearing and dispo-

sition.

We note jurisdiction and affirm.

PROCEEDINGS IN THE DISTRICT COURT:

Romero and Forster were jointly indicted on October

13, 1976. The charges under §§ 2314 and 371 covered the

period of November, 1973 through March, 1975. The Dis-

trict Court denied the several motions of Romero and

Forster for the suppression of documentary evidence seized

under federal search warrants from the possession of state

law enforcement officers. The District Court also denied

appellants’ motions for dismissal on the grounds of speedy

trial violations and abuse of the grand jury process.

Romero and Forster were tried to the District Court with-

out a jury upon a stipulation of facts and the admission in

evidence of the various federally seized documents under

illegal seizure challenge. The judgments of conviction and

sentences to custody were duly entered. Romero and For-

ster are each at liberty pending appeals.

FACTS:

During 1973, the United States Secret Service uncovered

information that R & F Metals (R & F), Romero and

Forster’s metal processing business, was shipping gold, be-

lieved to have been stolen from a mine in Nevada, to Chi-

A-3

cago, Illinois. This information was subsequently provided

to the South San Francisco Police Department which had

been conducting its own investigation into R & F’s gold

business triggered by information from a local refinery.

In March, 1975, Detective Singleton of the South San

Francisco Police Department contacted the Federal Bureau

of Investigation (FBI), which then began its own investiga-

tion of R & F’s gold trafficking. The FBI investigation was

extensively pursued both on an independent basis and in

conjunction with state law enforcement authorities.

The South San Francisco Police Department executed

state search warrants upon the premises of Romero and

Forster on May 2 and June 17, 1975, respectively, and

seized all documents and records pertaining to the manner

in which they conducted their businesses. During August

and September, 1975, hearings were held in the state court

resulting in the prosecutor’s agreement to return all items

not deemed by him to be relevant to the prosecution. This

return was not fully accomplished until early 1976 after

contempt proceedings had been instituted by Romero and

Forster. Meanwhile, however, the police had segregated

the documents deemed to be relevant and moved them from

the police garage to Detective Singleton’s office. Later,

when approximately 70 to 80 percent of the documents had

been returned to Romero and Forster, most of those docu-

ments retained were transferred from the police depart-

ment to the prosecutor’s office for use in the state

prosecution.

A-4

In August, 1975 and before Romero and Forster had filed

their state court motions to suppress the evidence,’ the

records, at that time still in the police garage, were made

available to the FBI and were examined by federal agents

in connection with their independent investigation. Addi-

tionally, those documents found relevant by the police and

transferred to Singleton’s office were later re-examined.

On October 22, 1975, Romero and Forster were indicted

in the Superior Court for San Mateo County, California for

a variety of state offenses.

In late March of 1976, Judge Haverty of that Court

suppressed the state search warrants and seizure solely

on the ground that the warrants’ description of the items

to be searched for and seized was too broad.’ As a result

of this ruling, the majority of the case against Romero and

the entire case against Forster were dismissed.

On April 26, 1976, the FBI, under authorization of the

United States Attorney’s office, secured and executed three

federal search warrants for Romero’s home, Forster’s busi-

ness office, and the office of the state prosecutor.*

The federal warrants were supported by affidavits which

contained no significant information which was not avail-

2Romero and Forster imply that the FBI was aware that the

documents they examined in August of 1975 had been illegally

seized. This allegation is incorrect; it was not until late August

and September, 1975, that Romero and Forster requested the re-

turn of certain documents during preliminary state court motions.

?The Government conceded below that the state seizures were

unlawful under federal constitutional standards.

’The state prosecutor handling the case stated that if the federal

government wanted the documents in his possession, a search

warrant for his office would be required as the documents were

technically not in his possession in that he had been ordered by

the state court to return the records,

A-5

able to the FBI prior to the issuance and execution of the

state warrants. Detective Singleton aided in the prepara-

tion of the federal warrants and testified that he gave the

FBI only information known to him before the state sei-

zures.

Immediately prior to the execution of the federal war-

rants, the Assistant United States Attorney in charge of

the federal investigation met with Judge Haverty to in-

form him of the pending search warrants for the state pros-

ecutor’s office, Romero’s home, and Forster’s business.

Judge Haverty expressed no objection to the procedure to

be utilized by the federal government in order to obtain the

records and he did not indicate that he believed seizure

pursuant to the federal warrants would violate the spirit

of his order suppressing the evidence. On April 28, 1976,

Judge Haverty ordered the records returned to their right-

ful owners. 7

ISSUES ON REVIEW:

We deem the dispositive issues to be:

1. Did the District Court err in denying Romero’s and

Forster’s motions to suppress the evidence seized under

the federal warrants?

2. Were Romero and Forster denied the right to a

speedy trial in violation of the Sixth Amendment of the

United States Constitution or were they denied due process

by reason of prejudicial indictment delay in violation of the

Fifth Amendment of the United States Constitution?

3. Did the District Court err in failing to dismiss the

cause of grounds of abuse of the grand jury?

A-6

DISCUSSION:

I. Motion to Suppress the Fruits of the Federal Search

Warrant.

Romero and Forster contend that the evidence introduced

at trial is the direct “fruit” of the unlawful state seizure

and was discovered and utilized through a direct exploita-

tion of the illegal state seizure. As such, they contend, it

must be suppressed. Appellants also assert that even if the

federal warrant was not tainted by the illegal state seizure,

the evidence must nevertheless be suppressed in order to

effectuate the policy behind the exclusionary rule; 7.e., the

deterrence of official misconduct. See Stone v. Powell, 428

U.S. 465, 486 (1976) ; United States v. Janis, 428 U.S. 433,

458-59 n.35 (1976).

In addressing the problem of whether the evidence sought

to be suppressed was gathered through exploitation of an

illegal search, the District Court, in a scholarly and well

analyzed memorandum, applied the legal standard ex-

pressed in Wong Sun v. United States, 371 U.S. 471 (1963),

and Silverthorne Lumber Co. v. United States, 251 U.S. 385

(1920),* and coneluded:

“By now it is well established that evidence unlawfully

seized does not thereby become ‘immune’ from use by

law enforcement agencies. Rather, so long as the evi-

dence derives from a source independent of the prior

illegality, it may be admitted into evidence.”

‘Appellants’ complaints concerning the District Court’s asserted

reliance on the “inevitable discovery rule” are unfounded. In any

event, the District Court did not significantly rely upon this doctrine

as a basis for its opinion.

a5 ee eee

A-7

We agree with that premise. In United States v. Cecco-

VM, meee US. nny NO, 76-1151 (March 21, 1978) (Slip Op.

pp. 5 & 6), the Court stated:

“The constitutional question under the Fourth Amend-

ment was phrased in Wong Sun... as whether ‘the

connection between the lawless conduct of the police

and the discovery of the challenged evidence has be-

come “so attenuated as to dissipate the taint.”’ Jd. at

487, 491. The question was in turn derived from the

Court’s earlier decision in Nardone v. United States,

308 U.S. 338, 341 (1939), where Mr. Justice Frankfur-

ter stated for the Court:

“Here, as in the Silverthorne case, the facts improp-

erly obtained do not ‘become sacred and inaccessible.

If knowledge of them is gained from an independent

source they may be proved like any others, but the

knowledge gained by the Government’s own wrong

cannot be used by it’ simply because it is used deriva-

tively. 251 U.S. 385, 392.

“In practice this generalized statement may conceal

concrete complexities. Sophisticated argument may

prove a causal connection between information ob-

tained through illicit wire-tapping and the Govern-

ment’s proof. As a matter of good sense, however, such

connection may have become so « tenuated as to dissi-

pate the taint.’ ”

On the factual issue of the illegal action taken by the

state and any possible taint, the District Court found:

“An examination of the afidavit attached to the state

search warrant reveals that the facts permitting ade-

quate specificity in the federal warrant were known

prior to the state seizure. ...

A-8

“... Similarly, by essentially restating the facts recited

in the state affidavit, and thus known prior to the un-

lawful [state] seizure, the federal affidavit provided

adequate untainted basis upon which to derive the de-

seriptive terms employed by the federal warrant.”

(Emphasis in original).

The District Court concluded therefrom “that the evidence

unlawfully seized by the state was not utilized in the prep-

aration of the federal affidavit or warrant.”

Viewing the evidence in the light most favorable to the

Government, Glasser v. United States, 315 U.S. 60 (1942),

we agree with the District Court’s findings that the federal

warrant was based on information obtained prior to the

execution of the state warrant and was untainted by the

illegally seized evidence.

Romero and Forster assert that even if the evidence

seized under the federal warrant is found not to be the fruit

of the invalid state search, the evidence must nevertheless

be suppressed.® They contend that the federal warrant is

merely an attempt to cure a prior illegal search and that

policy considerations underlying the exclusionary rule de-

mand exclusion of the evidence to deter otherwise unre-

viewable police conduct.

In this vein, the District Court proceeded to evaluate

the potential for unlawful searches despite an independent

factual basis for the search:

“A certain class of eases, however, prove somewhat

anomalous under this approach. This is where the au-

‘Romero and Forster’s contention that the FBI should have pro-

ceeded by way of a subpoena duces tecum rather than a search

warrant is unfounded. Zurcher v. Stanford Daily, 46 U.S.L.W. 4546

(U.S. May 31, 1978).

A-9

thorities have sufficient information to secure a search

warrant, but prior to doing so they conduct an un-

lawful search either to confirm their suspicions, or for

some other purpose.

“United States v. Griffin, [502 F.2d 959 (6th Cir.

1974)], involved the unlawful search and seizure of a

dwelling by police, while other officers secured a search

warrant. Although a warrant based upon previously

obtained information was issued and executed, the evi-

dence was nevertheless suppressed. Rejecting the gov-

ernment’s contention that the evidence unlawfully

seized would have been ‘inevitably discovered’ pursu-

ant to the search warrant, the court concluded that

exclusion of the evidence was the only practical means

of deterring unlawful police conduct.

“Krauss v. Superior Court, [5 Cal. 3d 418 (1971)],

reached the opposite result. There, police had probable

cause to obtain a warrant but prior to doing so con-

ducted a warrantless search to confirm their sus-

picions. The court concluded that the evidence was

admissible as based upon sources independent of the

unlawful search. ‘To hold otherwise would go beyond

excluding evidence unlawfully obtained and in effect

grant petitioner immunity from prosecution because

of the officer’s collateral wrong.’ 5 Cal.3d at 423. Cf.

Wayne v. United States, 318 F.2d 205, 209 [ (D.C. Cir.),

cert. denied, 375 U.S. 860 (1963)]; United States v.

Bravo, 403 F. Supp. 297 (S.D. N.Y. 1975).

“In deriving the outer perimeters of the exclusionary

rule, courts have been guided largely by a reasoning

process which balances the deterrence value of exclud-

ing a particular class of evidence against the policies

in favor of admitting all evidence relevant to the fact-

finding process. Thus the exclusionary rule, even as

A-10

applied to the direct fruits of unlawful police activity,

has been circumscribed in a variety of contexts in

which the deterrence principle alone might logically

be deemed to apply.’ Analogously, the issue presented

by Griffin and Krauss is whether the rule ought to be

expanded under certain circumstances to encompass

even untainted evidence where necessary to deter egre-

gious police conduct.

“Krauss and Griffin involve circumstances inviting in-

tentional and extensive violation of Fourth Amend-

ment rights through police practices without independ-

ent justification. Even were we inclined to apply the

exclusionary rule in the context of these cases, we

would find the instant case to be distinguishable.

“Had the state’s seizure of defendants’ papers been

lawful, federal examination of that evidence while in

the possession of the state would not have constituted

an independent ‘search’ necessitating the execution of

a search warrant. See U.S. v. Gargoeto [sic.], 476 F.2d

1009 (6th Cir. 1973), cert. denied 421 U.S. 987 [1975];

U.S. v. DeBerry, 487 F.2d 448 (2d Cir. 1973); Gullett

v. U.S., 887 F.2d 307 (8th Cir. 1967), cert. denied 390

U.S. 1044 [1968]; U.S. v. Nugent, 389 F. Supp. 817

(W.D. Louisana [sic] 1975); but Cf. U.S. v. Birrell,

470 F.2d 113, 117 (2d Cir. 1972). This rule appears

largely designed to avoid complex procedural barriers

to cooperation between state and federal law enforce-

ment authorities. Its theoretical underpinning must be

that examination by another law enforcement agency

is not a sufficiently distinct intrusion into the defend-

ants’ privacy to trigger the requirements of the Fourth

Amendment.

“While federal examination of documents unlawfully

seized by the state is clearly an ‘exploitation’ of the

state’s unlawful seizure, the fruits of which are barred

A-11

from federal court, Elkins v. United States, 364 U.S.

206 (1960), whether such conduct prior to suppression

by the state court constitutes a federal ‘search,’ and

thus an independent violation of the Fourth Amend-

ment, is less than clear. The analogy to Krauss and

Griffin may fail for this reason alone. In any event, it

is evident that the potential for intrusive conduct by

police under the circumstances of the instant case is

vastly less than sanctioned by Krauss and rejected by

Griffin. See United States v. Bacall, 443 F.2d 1050, 1057

(9th Cir. 1971). Nor do we believe that this procedure

furnished a significant incentive for the initial unlaw-

ful search by state authorities.

“Moreover, collateral policy considerations militate

against application of the exclusionary rule in this con-

text. Before utilizing evidence seized by the state,

federal authorities under such a rule would be obligated

to conduct an independent inquiry and evaluation into

the lawfulness of a state seizure. Where doubt as to

legality persisted, federal authorities would either have

to suspend their investigation until the completion of

suppression proceedings, or seize or subpoena the evi-

dence while it was still the subject of proceedings be-

fore the state courts. We think that the effects of the

rule urged by defendants would be unduly burdensome

in either case, while only marginally protective of

rights secured by the Fourth Amendment.”

“8See e.g., United States v. Calandra, 414 U.S. 338

(1974); Harris v. New York, 401 U.S. 222 (1971);

Walder v. United States, 347 U.S. 62 (1954). The re-

quirement of ‘standing,’ Alderman v. United States,

394 U.S. 165 (1969), and the doctrine of harmless error,

Chapman v. California, 386 U.S. 18 (1967) also derive

in part from these considerations.”

A-12

Nor does that rationale run afoul of Elkins where the

“silver platter” doctrine received its death knell.’ Elkins

held that “evidence obtained by state officers during a search

which, if conducted by federal officers, would have violated

the defendant’s immunity from unreasonable searches and

seizures under the Fourth Amendment is inadmissible over

the defendant’s timely objection in a federal criminal trial.”

Id. at 223. A federal warrant was issued in Elkins; however,

it was directed to the bank where local officials had placed

the evidence for safekeeping. The affidavit in support of

the federal warrant was founded upon the advice and in-

formation received on a “silver platter” from state officers

after their illegal seizure. The Government never claimed

that the evidentiary use of the tape recordings in question

was justified under the force of the federal warrant, but

only that such use was justified by the “silver platter’™doe-

trine. The opinion in Elkins is silent as to the validity or

invalidity of the federal warrant and only holds that fed-

eral officers in such a situation fall into the shoes of the

errant state officers and are subjected to the exclusionary

rule. The issue of the purity and viability of an independent

federal investigation and gathering of a factual basis of

probable cause for the issuance of a warrant was not pre-

sented in Elkins as indeed there were none,

Here the Government makes no claim of lawful eviden-

tiary use of the evidence seized via the outdated “silver

‘The “silver platter” doctrine, a phrase conceived by Justice

Frankfurter in Lustig v. United States, 338 U.S. 74 (1949), re-

ferred to the procedure whereby evidence illegally seized by state

officers could S admitted in federal court so long as federal officers

did not participate in the illegal seizure. If the state officers il-

legally seized evidence and handed it over to the federal officers

on a “silver platter,” it was admissible.

A-13

platter” doctrine, but on the contrary, it claims lawful usage

of the evidence seized through the force of a valid federal

search warrant and seizure based on knowledge from un-

tainted evidence independently gathered and unrelated to

the illegal state warrant and seizure thereunder.’

The Government’s failure to inform the United States

Magistrate in its affidavit for the federal search warrant

that the evidence sought under the federal warrant had

been previously suppressed by the state court is not a

basis for invalidating the federal warrant.’ The state war-

rants were held unlawful because they were general war-

rants, “on their face constitutionally overbroad as to the

description of the property to be seized.” That infirmity

did not go to a lack of factual establishment of probable

cause so, here, a lack of advice about the overbroad state

warrants was not material to the Magistrate’s finding of

probable cause. See generally United States v. Hole, 564

F.2d 298 (9th Cir. 1977); United States v. Tare, 540 F.2d

961 (9th Cir. 1976), cert. denied, 429 U.S. 1040 (1977);

United States v. Damitz, 495 F.2d 50 (9th Cir. 1974).

"An examination of the record in Elkins at the District Court

level discloses that while the state officers held possession of the

evidence, consisting of reels of wiretap recordings, they invited the

federal officers to listen to them. The federal officers did sc. There-

after the state officers placed the tapes in a safe deposit box for

safekeeping. In Elkins, unlike here, the state court had not ordered

a return of the wiretap evidence to any person. In fact, neither

Elkins nor codefendant Clark made any claim to the reels of wire-

tap recordings.

‘Romero and Forster’s reliance on Younger v. Harris, 401 U.S.

37 (1971), and their contention that federal prosecution is barred

by collateral estoppel are meritless.

A-14

II. Speedy Trial Rights.

Forster next raises various contentions relating to delay

prior to his federal indictment. As explained in Arnold

v. McCarthy, 566 F.2d 1377, 1381-82 (9th Cir. 1978):

“(There are] two separate safeguards against delay

in the different stages of the investigation and prose-

cution of a crime. In the pre-indictment or pre-arrest

stage delay is tested by the general proscriptions of

due process. . .. Pre-indictment delay is permissible

unless it violates ‘fundamental conceptions of justice

which lie at the base of our civil and political institu-

tions.’ Rochin v. California, 342 U.S. 165, 173 .. .

(1952). [Citations omitted].

“But once a person becomes ‘accused’ the more strin-

gent requirements of the Sixth Amendment speedy

trial right apply. One becomes ‘accused’ when there

is ‘either a formal indictment or information or else

the actual restraints imposed by arrest and holding

to answer a criminal charge... .’ United States v.

Marion, 404 U.S. 307, 320... (1971). (Emphasis

added). At this stage, although standards are still

imprecise, the courts have been more willing to find

delay to be constitutionally impermissible.”

Forster contends that the date of his state arrest should

be deemed the initiation of federal prosecution because

“a federal prosecution could have taken place as early

as the state prosecution.” As we held in United States v.

Cordova, 537 F.2d 1073 (9th Cir.), cert. denied, 429 U.S.

960 (1976), the “speedy trial right under the Sixth Amend-

ment [is] not activated until the date of federal ‘accusa-

tion.’” (Emphasis added). Jd. at 1075.

A-15

In United States v. Marion, 404 U.S. 307 (1971), the

Supreme Court, in dealing with a period of three years

between the occurrence of the alleged criminal acts and

the filing of the indictment, held that the defendants be-

came “accused” and that the Sixth Amendment protection

attached upon the return of a federal indictment. But the

Court also ruled that “[i]nvocation of the speedy trial

provision ... need not await indictment, information, or

other formal charge.” Jd. at 321. Forster relies on, inter

alia, United States v. DeTienne, 468 F.2d 151 (7th Cir.

1972), cert. denied, 410 U.S. 911 (1973), where the Court

stated that “[o]f course, if the crimes for which a defend-

ant is ultimately prosecuted really only gild the charge

underlying his initial arrest and the different accusatorial

dates between them are not reasonably explicable, the

initial arrest may well mark the speedy trial provision’s

applicability as to prosecution for all the interrelated

offenses.” Jd. at 155. Such a situation was not present in

DeTienne nor is it to be found here. We agree with the

District Court’s conclusion that “the federal prosecution

of defendants was initiated only at the time defendants

were indicted on federal charges.”

Lastly, we see no evidence indicating that Forster was

prejudiced in his ability to conduct his defense. The Dis-

trict Court recognized the appellants had suffered finan-

cially during the state and federal proceedings, but found

that “there is no basis upon which to conclude that defend-

ants have been denied a fair trial.” We agree.

A-16

III. Grand Jury Proceedings.

Romero and Forster lastly argue that the grand jury

process was abused. They contend that the evidence sub-

mitted before the grand jury was insufficient to establish

probable cause. Addressing a similar contention in United

States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974), we

held that:

“Tt-is clear, however, that when a duly constituted

grand jury returns an indictment valid on its face,

no independent inquiry may be made to determine

the kind of evidence considered by the grand jury in

making its decision. Costello v. United States, 350

U.S. 359 . . . (1956). To do so would further invade

the independence of the grand jury.” See also United

States v. Fried, No. 77-3403 (9th Cir. May 12, 1978)

at 1546-47.

We agree with the District Court’s statement that

“Callthough a complete absence of evidence might serve

to invalidate an indictment, see Costello v. United States,

supra at 364 (Burton, J. coneurring) and United States v.

Tane, 329 F.2d 848, 853-54 (2d Cir. 1964), we do not find

a complete absence of competent evidence here.” Further,

it is well established that a grand jury may return an

indictment based solely upon hearsay evidence, Costello.

Secondly, Romero and Forster complain of the prosecu-

tion’s failure to provide the grand jury with a letter from

Forster’s counsel allegedly containing exculpatory evi-

dence. Contrary to the obligation imposed upon the prose-

cution at trial, the Government is not required to present

all evidence that might be exculpatory to a grand jury.

See Loraine v. United States, 396 F.2d 335, 339 (9th Cir.),

A-17

cert. denied, 393 U.S. 933 (1968) ; United States v. Chanen,

549 F.2d 1306 (9th Cir. 1977). Regarding the content of

the letter, the District Court ruled that “[t]he evidence

sought to be presented did not clearly negate guilt or

undermine the authority of the grand jury to act, see

United States v. Mandel, 415 F. Supp. 1033, 1041-42 (D.

Md. 1976).” We agree.

The separate judgments of conviction and sentences to

custody entered by the District Court on August 10, 1977

are each affirmed.

AFFIRMED.

MERRILL, Cireuit Judge, dissenting:

IT dissent from the judgment and from part I of the

opinion. I concur with parts IT and III. Even as to part I,

I agree with much of Judge East’s discussion. I have no

quarrel with the ruling that the federal search warrants

were founded on information obtained from sources inde-

pendent of any tainted examination of the materials im-

properly seized by the state. I do not question the federal

seizures from Romero’s home or Forster’s business office

of documents theretofore returned by the state. I do not

contend that the invalidity of the seizure conferred upon

the seized materials permanent immunity from seizure.

Once suppressed material is back in the hands of the de-

fendants in my view it is once more subject to seizure,

assuming that the warrant under which it is seized is free

from taint and that the basis for the earlier suppression

does not continue to exist. My trouble with part I relates

only to the search of the office of the state prosecutor and

the seizure of materials found there,

A-18

I review the facts briefly. State officers seized documents

from the defendant’s premises under a defective warrant.

The seized evidence was suppressed by court order. The

United States then secured a warrant (avoiding the state

defects) to search the quarters of the state prosecutor

where the suppressed evidence was to be found. The state

prosecutor refrained from returning the evidence until fed-

eral seizure had been accomplished. In my judgment the

order of suppression, carrying with it a duty on the part

of the state to return the seized documents, rendered those

documents immune from federal seizure so long as they

remained in the hands of the state officials.

To me this result is compelled by Elkins v. United States,

364 U.S. 206 (1960). I am unable to distinguish that case as

Judge East has done on the ground that the federal war-

rant there was not free from taint as were the warrants

here. The Supreme Court placed no reliance on that fact.

However, accepting arguendo that the rationale of Elkins

would permit a distinction on that ground, I still adhere

to my view that suppressed materials are immune from

federal seizure while they remain in the hands of the state.

I find it repugnant to principles of federalism to allow

the United States willy-nilly to search state offices and seize

from state officials materials held by them as evidence in

a state prosecution. Such sharing of evidence certainly

should be tolerated only when it comes with the state’s con-

sent and willing co-operation. When the state, under a

suppression order, is under a duty to return the evidence

it is in no position to consent to such a sharing. Permitting

seizure under these circumstances serves to frustrate the

state in carrying out its high purpose and the United States

A-19

should not be a party to such frustration. This was made

clear in Elkins, where the Court stated:

“[WJhen a federal court sitting in an exclusionary

state admits evidence lawlessly seized by state agents,

it not only frustrates state policy, but frustrates that

policy in a particularly inappropriate and ironic way.

For by admitting the unlawfully seized evidence the

federal court serves to defeat the state’s effort to

assure obedience to the Federal Constitution.”

364 U.S. at 221.

The fact that some state officers may be willing to co-

operate with federal officials in frustrating the state pur-

pose (as apparently was the case here) cannot affect the

result, Where suppression is ordered the state duty is clear

and a knowing disregard of that duty by state officers does

not serve to wipe it out or justify a federal disregard of it.

I would reverse.

B-1

APPENDIX B

In the United States Court of Appeals

For the Ninth Cireuit

No. 77-2969

United States of America,

Plaintiff-Appellee,

vs.

Hugo Frederic Forster,

Defendant-Appellant.

[Filed November 3, 1978]

ORDER

Before: Merritt and Sneep, Circuit Judges,

and Kast, District Judge

In the above case Judges Sneed and East have voted to

deny the petition for rehearing and have recommended re-

jection of the suggestion for a rehearing in bane. Judge

Merrill would grant rehearing and recommended rehearing

in bane.

The full court has been advised of the suggestion for an

in bance hearing and no judge of the court has requested a

vote on the suggestion for rehearing in banc. Fed.R.App.P.

35(b).

The petition for rehearing is denied and the suggestion

for a rehearing in banc is rejected.

The petition for stay of mandate is denied.