Petition — Abrams v. Singleton

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Supreme Court, U. &. |

FILED

IN THE

MICHAEL RODAK, JR..CLERK

e7 IST

Supreme Court of the United States

OCTOBER TERM, 1978 aaattts

No. WR- 1048

Tse Honorasrte Louis J. Lerxowrrz, New York State

Attorney General,

Petitioner,

against

Atonzo SINGLETON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Louis J. LEFKowITz

Attorney General of the State

of New York

Attorney Pro Se

Office and P.O. Address

Two World Trade Center

New York, New York 10047

Tel. No. (212) 488-6044

Samvue. A. HrrsHow1tTz

First Assistant Attorney General

Lituian ZEISEL COHEN

Assistant Attorney General

Of Counsel

Saas

TABLE OF CONTENTS

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B. State Court Proceedings ..................

C. The Opinion of the District Court ..........

D. The Opinions in the Second Circuit ........

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REASON FOR GRANTING THE PETITION FOR CERTIORARI—

The Court of Appeals’ decision that the State

violated respondent’s Sixth Amendment rights

was reached without the benefit of a hearing or

allegations of fact peculiarly within respondent’s

knowledge and constitutes an unwarranted and

improper exercise of judicial power by the

federal courts over a question of state |aw.... 11

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ii TABLE OF CasEs

PAGE

Dearinger v. United States, 468 F. 2d 1032 (9th Cir.

SE da ade WG Wik «doh saver eae ee che ieee « 12

Henderson v. Kibbe, 431 U.S. 145 (1977) ........... 12

Lisenba v. California, 314 U.S. 219 (1941) .......... 11

People v. Singleton, 41 N.Y. 2d 402 (1977) ......... 3, 6

People v. Singleton, 50 A.D. 2d 939 (2d Dept. 1975) .. 3

Preiser v. Rodriquez, 411 U.S. 475 (1973) .......... 17

Procumer v. Atchley, 400 U.S, 446 (LOTL) 0. ceeeees 11

Stone v. Powell, 428 U.S. 465 (1976) ............24. 3

Townsend v. Sain, 372 U.S. 293 (1963) ............. 17

Ungar v. Sarafite, 376 U.S. 575 (1964) ............. 12,17

United States v. Ballesteros-Acuna, 527 F. 2d 928

i ME: sinc hinsccbsdneeseabeeeeetchaws 15

United States v. Haldeman, 559 F. 2d 31 (D.C. Cir.

MENTS a atsccbih sate Ha Ab wks at Wie de obo aie eae 12, 14

United States v. Taylor, 562 F. 2d 1345 (2d Cir.

Late ee Se ce eS ae bas weep ake 11,14

United States v. Wyler, 482 F. 2d 170 (2d Cir. 1973).. 12

United States ex rel. Cummings v. McMann, 429 F. 2d

ee re ee ras ad us g 11

United States ex rel. Holes v. Mancusi, 423 F. 2d 1137

ES nner aces 11

United States ex rel. Hunter v. Patterson, 374 F.

Supp. 608 (S.D.N.Y. Ga ask o's ces x ce ooala 3 tog 11

United States ex rel, Rosen v. Follette, 409 F. 2d 1042

Ee UE aha ots wesw keene ced case cucue aes 11

Wainwright v. Sykes, 433 U.S. 72 (1977) ........ 13, 14, 17

Washington v. Texas, 388 U.S. 14 (1967) ........ 11, 12,13

Wilson v. Fogg, 571 F. 2d 91 (2d Cir. 1978) ......... 17

Sratute Crrep

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No.

Tue Honorasite Louis J. Lerxowrrz, New York State

Attorney General,

Petitioner,

against

Atonzo SINGLETON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Louis J. Lefkowitz, Attorney General of the

State of New York, prays for a writ of certiorari to review

a judgment of the United States Court of Appeals for the

Second Circuit, dated September 12, 1978, which granted

respondent Singleton’s habeas corpus application to the

extent of directing that he be retried by the New York

State courts or released. This decision reversed the judg-

ment of the United States District Court for the Southern

District of New York, dated November 18, 1977, which de-

nied the application.

Opinions Below

The opinion of the Court of Appeals is reported at 583

F. 2d 618 and is reproduced herein as Appendix “A”. The

orders of the Court of Appeals which denied petitioner’s

motion for rehearing with suggestion for rehearing en banc

are reproduced herein as Appendices ‘‘B’’ and ‘‘C’’, The

opinion of the District Court is unreported and is repro-

duced herein as Appendix ‘‘D’’. The Order of the Court

of Appeals recalling its mandate and granting a stay pend-

ing the filing of this petition is reproduced herein as

Appendix ‘‘E’’,

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1). The judgment of the Court of Appeals

was entered on September 12, 1978. A timely petition for

rehearing or rehearing en banc was denied on November 1,

1978.

Question Presented

Was the Court of Appeals warranted in substituting its

judgment for that of the state courts and voiding a state

court conviction on the basis of an alleged violation of the

Sixth Amendment right to compulsory process when the

petitioner for this relief never alleged either in state or

federal court what favorable testimony the witness would

give and nothing in the record excused his failure to make

such allegations?

Statement of the Case

A. Introduction

Respondent was convicted of the crime of criminal pos-

session of a dangerous drug in the fourth degree after a

jury trial in Supreme Court, New York County, Central

Narcotics Part (Korn, J.). He was sentenced on October

16, 1973 to an indeterminate term of three years.

On appeal the judgment of conviction was unanimously

affirmed by the Appellate Division, Second Department

(People v. Singleton, 50 A D 2d 939 [2d Dept. 1975]) and

by the New York Court of Appeals, with one dissent (Peo-

ple v. Singleton, 41 N Y 2d 402 [1977]).

B. State Court Proceedings

Respondent and two other men, Joseph Powell and

David Lester Knowles, were arrested on the evening of

September 24, 1971 after heroin was discovered in the car

in which they had been riding.* After being arraigned fol-

lowing his arrest, respondent was released, although it is

not clear whether he was released on his own recognizance

or bailed. When he failed to appear on October 1, 1971, a

bench warrant was issued by the Criminal Court.

On January 6, 1972, respondent, Powell and Knowles

were indicted by a Queens County Grand Jury for acting

in concert for the crime of criminal possession of a danger-

ous drug in the fourth degree and, on January 18, 1972, a

bench warrant was issued by Supreme Court, New York

County, since respondent still had not appeared.

On March 9, 1972, Powell was acquitted after trial.

Knowles entered a guilty plea on October 10, 1972 to erimi-

nal possession of a dangerous drug in the sixth degree and,

_on October 25, 1972, he was sentenced to time served.

Respondent finally appeared on his bench warrant on

February 23, 1973. Kassner & Detsky, the firm which ulti-

mately represented him at trial, was assigned on July 17,

1973.

* The circumstances of the arrest were the subject of a motion

to suppress and were challenged by respondent on his direct ap-

peal. In each instance, respondent's Fourth Amendment claim was

rejected. Therefore, review of this issue by way of federal habeas

corpus is precluded by this Court’s decision in Stone v. Powell,

428 U.S. 465 (1976). However, the facts relating to the arrest are

a relevant part of the People’s case against respondent.

On August 9, 1973, a hearing was held in Supreme Court,

Special Narcotics Term, on respondent’s motion to sup-

press. After hearing the testimony of one of the arresting

officers, the motion was denied (Fry, J.). Respondent did

not testify at the hearing.

Respondent’s trial began on August 22, 1973. Before the

first witness was called and in response to a request by the

prosecutor, defense counsel agreed not to refer to the dis-

positions in the cases against Knowles and Powell. Defense

counsel apprised the court of what the dispositions were

and stated,

“And in [Knowles’] plea of guilty, he had told the

court that the drugs belonged to Joseph Powell and he

knew that because he saw Joseph Powell buy the drugs

and there was no implication at all of Mr. Singleton.

Now I have subpoenaed both of those defendants,

Your Honor.’’ (18-19)*

The witnesses for the prosecution were the two arresting

officers and a laboratory expert. The officers testified that

they stopped the car in which respondent was riding as it ap-

proached the Triborough Bridge in Manhattan. The oc-

cupants of the car were Joseph Powell, the driver, David

Lester Knowles, who was seated in the rear seat and re-

spondent who was seated in the front passenger seat.

Because the officers were using an unmarked car the occu-

pants of the stopped car apparently did not realize that it

was the police who had stopped them (65).

Powell got out of the car as the officers approached it

(97). After one officer asked Powell for his license and

registration, respondent and Knowles also left the car (98).

A search of the car took place after Knowles attempted to

* Unless otherwise indicated, numbers in parentheses refer to

pages of the transcript of respondent’s trial.

reach into it (101.) Drugs were found in two envelopes, an

open one on the console between the passenger’s and

driver’s seats, and a closed one lodged between the console

and the driver’s seat (108). The laboratory expert con-

firmed that both envelopes contained heroin.

After the prosecution rested, respondent’s attorney

asked the Court for a continuance on the ground that al-

though subpoenas had been served on both co-defendants

two days earlier, neither had appeared in response. The

request was granted, (208).

The following day, when the Court reconvened, defense

counsel requested a further continuance after explaining

that respondent could not take the stand because he had a

prior drug conviction and that he had made real efforts to

obtain the presence of the co-defendants, albeit,

“| . not knowing at the present what they would

testify to. They could come here and testify and make

the District Attorney’s case for him. I don’t know,

your Honor.” (214).

Counsel also advised the Court that respondent’s wife and

brother-in-law had found Knowles and told him that it was

important for him to appear, although they, too, did not

‘know “what he was going to testify to” (216).

Counsel then submitted two applications for material

witness orders after acknowledging that he had never

spoken to either co-defendant and did not “have the fog-

giest idea whether their testimony will help or hurt the

defendant” (217).* The Court signed the orders and

granted a 24 hour continuance, but stated that after that the

* The affidavit in support of the applications alleged :

“That both Powell and Knowles possess information mate-

rial to the determination of such action, in that they were

direct witnesses to the alleged crime, and are the only ones

who can establish the guilt or innocence of Alonzo Singleton.”

trial would have to proceed since the term was due to end

that week (218).

At 10:00 a.m. on August 29, 1973, defense counsel advised

the Court that Powell could not be located. However,

Knowles had been found by respondent’s wife and the po-

lice “at his home, same place where he was served with

process, same place where the [respondent’s] wife visited

him yesterday” (221). Knowles had been arrested as a ma-

terial witness but then released. The release was based

upon the erroneous advice of an Assistant District Attor-

ney of Kings County that the warrant was ‘schnically

defective (221-222). The Court thereupon adjourned the

case until 2:00 p.m. on the same day to give the defense an

opportunity to locate Knowles. When the trial was recon-

vened that afternoon, the defense announced that it rested.

The summations followed and the trial proceeded to its

conclusion.

After trial, respondent’s attorney made a motion to set

aside the verdict and for a new trial on the ground that

under the circumstances of the case it was an abuse of dis-

cretion and a violation of respondent’s fundamental right

to present witnesses in his defense to deny an application

for a further adjournment of the case. In support of the

motion, defense counsel contended that Knowles had stated

at the time of his guilty plea that the drugs found in the

ear had been purchased by Powell, the driver. The motion

was denied on October 16, 1973 and sentence was imposed.

In affirming respondent’s conviction, a majority of the

New York Court of Appeals concluded that respondent

“should not be allowed to manipulate the Sixth Amendment

to avoid due process of law” where, by absconding, he was

“instrumental in bringing about the unavailability” of the

witness at his trial and, in any event, based upon defense

counsel’s statements at trial, it was doubtful whether the

witnesses’ testimony would have been helpful to the de-

fense. People v. Singleton, 41 NY 2d 402, 406 (1977).

C. The Opinion of the District Court

In his petition for a writ of habeas corpus respondent al-

leged that the refusal to grant a continuance violated his

Sixth Amendment right to compulsory process. The Dis-

trict Court, after reviewing the record of respondent’s con-

viction, held that there was no merit to this claim.

In rejecting respondent’s contentions, the District Court

emphasized that respondent had not demonstrated that the

testimony of Powell or Knowles “would be favorable to his

defense’’ (32a). The mere fact that Knowles had identified

Powell as the purchaser

“is not by itself enough to rebut the presumption of

knowing possession established by the statute under

which Singleton was charged and convicted. While it

may be assumed that Knowles’ testimony might have

proven Singleton’s lack of involvement in the purchase

of the drug, [respondent] has made no claim that

Knowles or Powell could have testified that Singleton

had no knowledge of the presence of the drugs in the

automobile.” (32a)

The erroneous release of Knowles did not violate respond-

ent’s constitutional rights since the “Sixth Amendment does

‘not obligate the government to locate defense witnesses

after they have been served with subpoenas’’ (33a).

The District Court also rejected respondent’s claim that

the denial of an additional continuance deprived him of a

fair trial. The Court pointed out that defense counsel had

a month before trial “in which to locate and interview” the

witnesses. Moreover, to the extent that respondent had ab-

seconded, “he was partly responsible for the difficulty in

locating his witnesses’? (33a). Finally, the Court held

that in view of respondent’s failure to show that the

testimony of the witnesses would have been “favorable” to

the defense, he had not made the “particularized showing

of prejudice” which was necessary to make out a violation

of due process (34a).

D. The Opinions in the Second Circuit

On appeal, the Second Circuit reversed, one Judge dis-

senting. The majority held that “there was a sufficient

showing that Knowles would have provided favorable evi-

dence” on the basis of his statements at the time he pleaded

guilty. In the majority’s view, these statements indicated

that “Knowles’ testimony probably would have revealed his

presence when Powell bought the drugs and [respondent’s]

lack of involvement in the transaction’’* (10a).

Citing cases in which a Sixth Amendment violation was

found because the Government deported aliens before the

*The following is the relevant portion of the minutes of

Knowles’ plea:

“The Court: What happened?

The Defendant: The police car flagged us down and asked

for the registration of the car and Joe showed him the regis-

tration, you know; and he asked for the sticker of the car, and

he couldn’t find the sticker so he took out his flashlight and

flashed it on the car and accidentally flashed it on the seat

and he saw a brown envelope on the seat, and in it he checked

the envelope out and it contained drugs.

The Court: When you say Joe, who are you referring to?

The Defendant: One of the defendants, Joe Powell.

The Court: Who else was in the car?

The Defendant: A boy named Singleton.

The Court: Alonzo Singleton?

The Defendant: Yes.

The Court: Whose narcotic drug was it?

The Defendant: It was Joe’s.

The Court: How do you know?

The Defendant: Because he bought it.

pm Court: How do you know he bought it; were you

The Defendant: Yes; I was there at the time.

i Court: So that you did know there was drugs in the

car

The Defendant: Yes.”

—

defense could interview them, the majority noted that

‘‘where the Government has contributed to the unavail-

ability of the witness, the showing of favorable testimony

that is required of the defendant is relaxed” (10a-lla).

Although the first allegation by petitioner that he could not

interview Knowles was made in the Second Circuit, the

majority analogized the instant case to the alien cases on

the theory that Knowles’ reluctance to come to court ‘‘sug-

gest[ed] the futility of any attempt at an interview” (lla).

Notwithstanding the fact that defense counsel had ac-

knowledged repeatedly that he did not know what Knowles

would testify to, the majority concluded that the trial court

erred in not continuing the trial until Knowles could be

found. The majority reasoned that since the State’s negli-

gent release of Knowles necessitated such a continuance,

‘‘[i]t is inappropriate to put the burden on the defendant

to obtain the continuance by additional proof that Knowles’

testimony would have been favorable” (13a).

According to the majority, Knowles’ release also had the

effect of wiping the slate clean as regards any effect which

petitioner’s absconding may have had on his claim. Based

upon its assumption that Knowles would actually have

been called to testify, the majority determined that the

‘<«‘failure of Knowles to testify thereafter was attributable

entirely to the negligence of the prosecutor for which [re-

spondent] was certainly not accountable” (15a). In any

event, even if respondent’s own absence did contribute to

Knowles’ unavailability, he should not be sanctigxed by

being deprived of “testimony ... vital to the detepel™ (16a).

The majority remanded the case to the District Court

with directions to issue the writ unless respondent is re-

tried within 60 days. Although there had been no allega-

tions as to Knowles’ present availability, the majority con-

cluded that it was appropriate to order a new trial rather

than to dismiss the indictment ‘‘because it is likely that

Knowles can be found” (13a).

Circuit Judge Mansfield dissented on the ground that

respondent had ‘‘failed to show that Knowles’ testimony

would have been relevant, material and favorable’’ to his

defense (18a). Absent such a showing either (a) by alleging

what Knowles would have said or (b) by showing a reason-

able basis for believing that Knowles would testify favor-

ably plus unsuccessful good faith efforts to interview

Knowles, there was no violation of respondent’s Sixth

Amendment rights and no error in not granting a con-

tinuance so that Knowles might be found.

Judge Mansfield found that respondent had failed to

satisfy the first alternative because he ‘‘has consistently

failed to give the substance of what Knowles would testify

to” (23a). In addition, Judge Mansfield rejected Knowles’

allocution statements as a sufficient basis for finding that

his testimony would have been favorable by demonstrating

that they were just as consistent with respondent’s guilt

as with his innocence and, thus, improperly required “rank

speculation of the flimsiest sort” by the Court as a substi-

tute for a showing on the part of respondent (24a).

Nor did Judge Mansfield view this as a case where ‘‘the

witness’ unavailability or uncooperativeness may excuse a

defendant’s failure to make a specific offer of proof” (21a).

Judge Mansfield pointed to the fact that even though

Knowles’ whereabouts were known during the relevant

period, there was ‘‘no indication in the record that [re-

spondent] or his counsel ever attempted to interview

Knowles, much less that Knowles ever refused to talk with

[respondent’s] counsel” (23a).

Judge Mansfield also emphasized that where, as here, the

respondent was seeking habeas corpus relief ‘‘years after

his conviction,’’ he should be required to submit an affidavit

setting forth his post-conviction attempts to obtain a state-

ment from his proposed witness and the substance of any

statement so obtained (22a). In the instant case, respond-

ent had four years after trial and before filing his federal

application in which to do this but, apparently, had under-

taken no such effort.

In these circumstances, Judge Mansfield concluded that

there was no basis for finding a Sixth Amendment violation.

REASON FOR GRANTING THE PETITION

FOR CERTIORARI

The Court of Appeals’ decision that the

State violated respondent’s Sixth

Amendment rights was reached without

the benefit of a hearing or allegations of

fact peculiarly within respondent’s

knowledge and constitutes an unwar-

ranted and improper exercise of judi-

cial power by the federal courts over a

question of state law.

It is fundamental that a state prisoner seeking to set

aside a presumptively valid state judgment of conviction

has the burden of a'leging sufficient facts to make out his

claim. Procunier v. Atchley, 400 U.S. 446, 451 (1971);

D/nited States ex rel. Holes v. Mancusi, 423 F. 2d 1137 (2d

Cir. 1970); United States ex rel. Cummings v. McMann,

' 429 F, 2d 1295 (2d Cir. 1970); United States ex rel. Rosen

v. Follette, 409 F. 2d 1042, 1044-45 (2d Cir. 1969). He must

show not only that there was error in the state court pro-

ceedings, but that it was error of constitutional dimension

and it deprived him of a fair trial. Lisenba v. California,

314 U.S. 219, 236 (1941).

Where, as here, he claims a violation of his Sixth Amend-

ment right to compulsory process, his burden, like that of

his federal counterpart, is to show that the witness’ testi-

mony would have been relevant, material and favorable to

his defense. Washington v. Texas, 388 U.S. 14 (1967);

United States ex rel. Hunter v. Patterson, 374 F. Supp.

608, 611 (S.D.N.Y. 1974) ; United States v. Taylor, 562 F. 2d

1345, 1362 (2d Cir. 1977); United States v. Haldeman,

059 F. 2d 31, 84 (D.C. Cir., 1976) ; United States v. Wyler,

482 F. 2d 170 (2d Cir. 1973); Dearinger v. United States,

468 F. 2d 1032, 1034-35 (9th Cir. 1972).

The decision of the majority below pays lip service to

these rules. However, as a practical matter, the majority

adopts the hindsight wisdom and unsubstantiated assump-

tions relied upon by respondent’s attorney as a substitute

for any allegations by the respondent himself. In so doing,

the majority improperly substituted its judgment for that

of the state courts on a question of state law, i.e., did the

trial court properly exercise its discretion in refusing a

further continuance to permit the defense to locate

Knowles? See Ungar v. Sarafite, 376 U.S. 575, 589, 591

(1964). Cf. Henderson v. Kibbe, 431 U.S. 145 (1977). At

the same time, the decision represents a substantial retreat

from the rule that a state petitioner must show fundamental

unfairness to prevail in a federal habeas corpus proceeding.

The Sixth Amendment right upon which respondent relies

was described by this Court in Washington v. Texas, 388

U.S. 14 (1967), as follows:

‘‘The right to offer the testimony of witnesses, and

to compel their attendance, if necessary, is in plain

terms the right to present a defense, the right to pre-

sent the defendant’s version of the facts as well as the

prosecution’s to the jury so it may decide where the

truth lies. Just as an accused has the right to confront

the prosecution’s witnesses for the purpose of chal-

lenging their testimony, he has the right to present his

own witnesses to establish a defense.’’ 388 U.S. at 19

(emphasis supplied).

It is clear from the Washington decision that the right

defined by the Court does not exist in the abstract. On the

contrary, the right has meaning only if the defendant can

show that the testimony of the witnesses he seeks ‘‘would

have been relevant and material to the defense.’’ 388 U.S.

at 23. Such a showing was made in Washington where the

defendant denied that he had shot the victim and wished to

call his co-defendant who, the

‘‘record indicates . . . would have testified that [de-

fendant] pulled at him and tried to persuade him to

leave, and that [defendant] ran before [he, the co-

defendant] fired the fatal shot.’’ 388 U.S. at 16.

The record in the instant case is in sharp contrast to that

in Washington. Although respondent maintains that the

testimony of Knowles was important because he was pres-

ent at the time of the arrest, he has never alleged either in

state court or in federal vourt what it is that Knowles could

have testified to that was material to his defense, ie., his

“version of the facts,” despite the fact that he had at least

four opportunities to do so before the trial court, two op-

portunities to do so on direct appeal and the opportunity to

do so both in his sworn petition in the District Court and in

the Court below.* Instead, respondent’s trial attorney, who,

theoretically, was in the next best position after respondent

to know, acknowledged repeatedly that he did not have “the

foggiest idea whether [Knowles’] testimony will help or

_ hurt the [respondent] (217).**

Respondent’s reluctance to come forward, coupled with

his trial attorney’s apparent lack of knowledge and inertia,

* Respondent’s attorney made three requests at trial that the

case be adjourned and also submitted a lengthy affidavit in sup-

port of a motion to set aside the verdict.

** Query whether this means that respondent never even gave

his version of the facts to his attorney. If not, the State may

hardly be held responsible. On the other hand, if the attorney

knew respondent’s version and it was favorable, he had an obliga-

tion to explain why he needed the witness—if not to the trial court,

then at least in support of respondent’s federal application. Thus

his silence may mean that respondent’s version was not helpful to

the defense and that counsel was simply making a record for

appeal in an otherwise cut and dried case. See Wainwright v.

Sykes, 433 U.S. 72, 89 (1977).

should have led the court below to reject his claim. Wain-

wright v. Sykes, 433 U.S. 72 (1977). Plainly, respondent

had not made a “showing either at the time of [trial] or

subsequently as to what favorable evidence the [absent wit-

ness] would have provided’’ (United States v. Taylor, 562

F, 2d 1345, 1362 (2d Cir. 1977) ), let alone that the evidence

would have been ‘‘significant’’. United States v. Halde-

man, 559 F. 2d 31, 83 (D.C. Cir. 1976). On this record

there was not even a basis for finding a violation of state

law.

Nevertheless, the majority below concluded that Knowles

was a ‘‘vital’’ witness and that the refusal to grant a fur-

ther continuance was an error of constitutional magnitude.

The majority accomplished this remarkable leap by means

of Knowles’ enigmatic statements at the time of his plea.

However, as the dissent aptly demonstrates, Knowles’ plea

statements, which made no relevant reference to respond-

ent, were just as consistent with respondent’s guilt as with

his innocence. Therefore, the majority could reach the

conclusion it did only by indulging in the type of specula-

tion which would not suffice were this a direct appeal and,

a fortiori is uncalled for in a habeas corpus proceeding. In

effect, the majority decided that its interpretation of the

silences in the record was preferable to that of the state

courts.

As a justification for ‘‘relaxing’’ the affirmative showing

of favorable testimony which must be made, the majority

relied upon the State’s negligent release of Knowles fol-

lowing his arrest pursuant to the material witness order.

In facet, there is no basis in the record for using the release

of Knowles as a substitute for the necessary allegations

which respondent, inexplicably, is so reluctant to make. On

the contrary, Knowles’ release is the proverbial red her-

ring because it does not, as the majority mistakenly as-

sumes, excuse the need to determine what would have been

the nature of his testimony. If Knowles would not have

testified favorably to the defense, then relying upon his

release to set aside a proper state court conviction effec-

tively imposes a penalty upon the State for a constitu-

tionally irrelevant act. That is not the function of the

habeas corpus remedy.

Nor is this a case, like those cited by the majority, where

a less specific offer of proof has been required because the

government has deprived the defendant of an opportunity

to interview the absent witness. See, e.g., United States v.

Ballesteros-Acuna, 527 F. 2d 928, 930 (9th Cir. 1975). In-

stead, this aspect of the case illustrates the way in which

respondent’s claim was bootstrapped along because he was

not required to come forward with the factual allegations

peculiarly within his knowledge.

Up to and including the filing of his petition in the Dis-

trict Court, no suggestion was ever made on behalf of re-

spondent that his trial attorney was unable to interview the

co-defendants. In fact, respondent contended in the District

Court that “Counsel had the right to call Knowles as a wit-

ness and discover at trial what this witness would say.’’

(Respondent’s Memorandum in the District Court, p. 14)

(Emphasis Supplied). Apparently, it was his view at the

time that counsel had no obligation to attempt to interview

- Knowles prior to trial.

However, undoubtedly prompted by the District Court’s

specific finding that counsel had a month before trial to in-

terview witnesses, respondent argued for the first time in

the Court below that defense counsel could not be more

specific about what the witnesses would have said because

he was unable to interview them. Respondent’s Brief in the

Second Circuit, p. 13. The majority below accepted this

afterthought, not because it was supported by the record,

but based upon its assumption that because Knowles was

reiuctant to come to court, it would have been difficult to

interview him.* Accordingly, the majority concluded that

this was a proper case in which to relax the showing of

favorable testimony by the respondent. The way in which

the Court, together with respondent’s attorney, filled the

gap in respondent’s claim could not be more apparent.

There was only one question before the Court in this

case: Would the co-defendant Knowles have testified fa-

vorably to the defense? Respondent has always had the

answer to this question. The refusal of the majority below

to require him to provide that answer as a predicate to

voiding his conviction makes a mockery of the principle of

comity which has shaped the habeas corpus procedure.

Significantly, in its anxiety not to overburden respond-

ent, the majority below imposed a serious practical burden

upon the State by directing that respondent be released

unless he is retried within a specific period. This relief

is based upon the majority’s assumption that Knowles is

presently (Mgavailable. In fact, neither petitioner nor re-

spondent tendered any information as to Knowles’ avail-

ability five years after respondent’s trial. Therefore,

rather than affording the State the opportunity to correct

a defect in the proceedings leading to respondent’s convic-

tion, the decision below effectively requires the State to

resurrect its case against respondent and prove it a second

time before another jury. The decision thus has an impact

upon the State which is entirely inconsistent with the spirit

and purpose of the habeas corpus remedy and which re-

flects a misunderstanding of the role of the Federal Courts

on collateral attack and the nature of respondent’s burden

in this proceeding.

*It is evident from what counsel said to the Court, that

Knowles’ address was known, that respondent’s wife found him

and spoke to him at one point after the first continuance, and

that by the following evening he was found by respondent’s wife

and a police officer and arrested as a material witness. As coun-

sel stated to the Court in discussing the arrest, Knowles was found

“at his home, same place where he was served with process, same

Pen) where the [respondent’s] wife visited him yesterday”

(221).

The requirement that an applicant for habeas corpus re-

lief show fundamental unfairness is a rule intended to

minimize friction within the federal system. In this respect

it is like the exhaustion requirement (Preiser v. Rodriquez,

411 U.S. 475, 490-491 [1973]; Wilson v. Fogg, 571 F. 2d 91,

93 [2d Cir. 1978]) and the deference shown to state court

findings of fact (Townsend yv. Sain, 372 U.S. 293, 318

[1963]), to state procedural requirements (Wainwright v.

Sykes, 433 U.S. 72 [1977]) and ‘‘necessarily due to a state

trial judge in regard to the denial or granting of continu-

ances’? (Ungar v. Sarafite, 376 U.S. 575, 591 [1964]).

Instead of using this rule to determine whether there was a

miscarriage of justice in this case, the majority subverted

it by adopting an approach which places a premium on the

failare to come forward and invites collusion among co-

defendants. If let stand, it will encourage other spurious

attacks upon presumptively valid state court convictions

and may, as in this case, compel the State to prove its case

twice.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Dated: New York, New York

December 27, 1978

Respectfully submitted,

Lovis J. LerKow!Tz

Attorney General of the State

of New York

Attorney Pro Se

Samuz. A, HirsHowI!Tz

First Assistant Attorney General

Lituian Ze1seL CoHEN

Assistant Attorney General

Of Counsel

APPENDIX A

Opinion

Alonzo Stneueron, Appellant,

Vv.

The Honorable Louis J. Lerxowrrz,

New York State Attorney

General, Appellee.

No. 769, Docket 78-2008.

United States Court of Appeals,

Second Circuit.

Argued March 28, 1978.

Decided Sept. 12, 1978.

Petitioner appealed from an order of the United States

District Court for the Southern District of New York,

Charles E, Stewart, J., denying habeas corpus relief. The

Court of Appeals, Oakes, Circuit Judge, held that the peti-

tioner was deprived of his Sixth Amendment right to com-

pulsory process when the state trial court refused to grant

- a short adjournment to secure the presence of an important

defense witness who was unavailable due to the state’s

error.

Reversed and remanded.

Mansfield, Circuit Judge, filed a dissenting opinion.

Philip L. Weinstein, New York City (William Heller-

stein, New York City, of counsel, for appellant.

Lillian Z. Cohen, Asst. Atty. Gen. (Samuel Hirshowitz,

First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., of

the State of New York, New York City, of counsel), for

appellee.

Before Frrnperc, Mansrrevp and Oakes, Circuit Judges.

Oakes, Circuit Judge:

This appeal is from an order of the United States Dis-

trict Court for the Southern District of New York, Charles

E. Stewart, Jr., Judge, denying a petition for a writ of

habeas corpus. Appellant was convicted of criminal posses-

sion of a dangerous drug in the fourth degree’ after a jury

trial before Justice Hyman Korn in the Supreme Court,

New York County, Central Narcotics Part. He was given

an indeterminate sentence with a three-year maximum. The

conviction was affirmed by the Appellate Division, People

v. Singleton, 50 A.D.2d 939, 377 N.Y.S.2d 197 (2d Dep’t

1975) (memorandum opinion), and by the New York Court

of Appeals, one judge dissenting. People v. Singleton, 41

N.Y.2d 402, 393 N.Y.S.2d 353, 361 N.E.2d 1003, (1977).

Appellant contends on appeal, as he has throughout the

state and federal proceedings below,’ that he was deprived

of his Sixth Amendment right to compulsory process and

his Fourteenth Amendment right to due process by the

state trial court’s refusal to grant him a short adjournment.

The adjournment was necessary to secure the presence of

a vital witness who was unavailable because the State had

ee Law § 220.15, repealed in 1973, read in pertinent

part:

A person is guilty of criminal possession of a dangerous drug

in the fourth degree when he knowingly and unlawfully pos-

sesses a narcotic drug:

1. With intent to sell the same; or

2. Consisting of . . . (b) one or more preparations, com-

pounds, mixtures or substances of an aggregate weight of (i)

one-eighth ounce or more, containing any of the respective

alkaloids or salts of heroin, morphine or cocaine. .. .

Criminal possession ef a dangerous drug in the fourth de-

gree is a class D felony.

1969 N.Y.Laws, ch. 788, § 3.

* Singleton also unsuccessfully raised a Fourth Amendment

claim in the state proceedings. It is not in issue on this appeal.

improperly released him from custody after his arrest pur-

suant to a material witness order. The district court re-

jected these constitutional claims and accordingly denied

habeas corpus relief. United States ex rel. Singleton v. Lef-

kowitz, No. 77 Civ. 1264 (S.D.N.Y., dated Nov. 18, 1977).

We reverse.

I. Facts

Appellant was the front seat passenger and David

Knowles was the back seat passenger of an automobile op-

erated by Joseph Powell. When they were stopped by two

New York City police officers for a license and registration

check on September 24, 1971, the three occupants got out.

While Officer Braga was checking the vehicle identification

number on the hinge of the driver’s front door, Officer San-

tiago observed Knowles, the back seat passenger, attempt

to reach over Officer Braga’s shoulder toward the interior

of the car. At that point Officer Santiago grabbed Knowles

away from the vehicle and aimed his flashlight inside the

ear. He observed an open manilla envelope on top of the

console between the front seats. The envelope contained

visible white powder, believed to be cocaine. The officer

confiscated the envelope and arrested all three occupants.

At subsequent search revealed a closed envelope containing

‘ white powder located between the driver’s seat and the con-

sole. The envelopes actually held in aggregate three-eighths

of an ounce of heroin. Appellant was released after ar-

raignment but failed to appear as scheduled on October 1,

1971, when a bench warrant was issued by the criminal

court.

On January 6, 1972, appellant, Powell, and Knowles were

indicted by a Queens County grand jury for criminal pos-

session of a dangerous drug in the fourth degree. Another

bench warrant was issued by the Supreme Court, New York

County, since appellant still had not appeared. On March

9, 1972, Powell was acquitted after a trial. On October 10,

1972, Knowles pleaded guilty to criminal possession of a

dangerous drug in the sixth degree, then a misdemeanor,’

and on October 25 he was sentenced to time served.

Appellant appeared pursuant to his bench warrant on

February 23, 1973. Prior to the introduction of evidence,

his attorney, Mr. Fabricant, revealed to the court that

Knowles had stated at the time of his guilty plea ‘‘that the

drugs belonged to Joseph Powell and [Knowles] knew that

because he saw Joseph Powell buy the drugs and there was

no implication at all of Mr. Singleton.’’ Defense counsel

further indicated that he had subpoenaed both Powell and

Knowles, and if Knowles could not be located counsel

would move to introduce Knowles’ plea statement as a

declaration against penal interest.

Trial began on August 22, 1973, after a suppression

hearing in early August. The prosecution rested on August

27, 1973, at which time Mr. Fabricant requested a con-

tinuance because neither codefendant had appeared in re-

sponse to the subpoenas. An overnight continuance was

granted, and that afternoon, according to Fabricant, Single-

ton’s wife and brother went to see Knowles in Brooklyn.

After they stressed the importance of his testimony, he

promised to be present the following day at two o’clock in

the afternoon.‘

When Knowles still did not appear, counsel was granted

a second overnight continuance. In addition, the trial

judge, who obviously recognized the importance of

*N.Y.Penal Law § 220.05, prior to its repeal in 1973, provided:

A person is guilty of criminal possession of a dangerous

drug in the sixth degree when he knowingly and unlawfully

possesses a dangerous drug.

Criminal possession of a dangerous drug in the sixth de-

gree is a class A misdemeanor. 1969 N.Y.Laws, ch, 788, § 1.

* Counsel, Singleton’s wife and brother had previously spoken

to Powell's sister on many occasions, emphasizing the importance

of her brother’s coming to testify. Powell, however, was appar-

ently never located.

Knowles’ testimony,’ granted a material witness order

authorizing Knowles’ arrest. The court warned the de-

fense, however, that the trial would proceed the following

day with or without the codefendants because the judge’s

term at the Special Narcotics Court was to end and he also

had a doctor’s appointment on Friday of that week, The

order was signed on Tuesday, August 28, in the early

afternoon and on the same evening Knowles was arrested

at his home, the address listed in the arrest authorization,

by a patrolman of the 79th Precinct in Brooklyn. A police

officer who then telephoned an assistant district attorney

of Kings County was told by him that the material witness

order was defective. Thereupon Knowles was released

from custody. When this was brought to Justice Korn’s

attention on Wednesday morning, August 29, the judge

spoke to the Assistant District Attorney who admitted the

error. The judge granted an adjournment until 2:00 p.m.

to enable Fabricant and the district attorney to locate

Knowles. When they returned to court unsuccessful, Jus-

tice Korn refused to grant a further adjournment. De-

fense counsel rested without producing any evidence, appel-

lant was convicted, a motion to set aside the verdict was

denied, and sentence was imposed.°

5 Other than Singleton’s presence as a passenger in the car

where the heroin was found, there was no evidence linking him to

the drugs. Consequently, the prosecutor was forced to rely solely

on the presumption provided by N.Y.Penal Law § 220.25(1) (sub-

stantially unchanged under current law, see N.Y.Penal Law

§ 200.25(1) (McKinney Supp. 1977) ), which stated in part:

The presence of a dangerous drug in an automobile, other

than a public omnibus, is presumptive evidence of knowing

possession thereof by each and every person in the automobile

at the time such drug was found. ...

Appellant’s defense therefore necessitated that he negate the pre-

sumption. However, his attorney counseled against his testimony

because of a prior narcotics conviction.

® Appellant was released from prison on $2,500 bail on March 1,

1974, pending his appeals and continues to remain at liberty.

The New York Court of Appeals held that the trial court

did not abuse its discretion or abridge appellant’s right

to compulsory process in refusing to grant appellant a

fourth adjournment. People v. Singleton, supra, 41 N.Y.

2d at 405-06, 393 NVY.S.2d at 356-57, 361 N.E.2d at 1005-

06. The court first distinguished People v. Foy, 32 N.Y.

2d 473, 346 N.Y.S.2d 245, 299 N.E.2d 664 (1973), which

held it reversible error to deny a short adjournment for

the purpose of obtaining material alibi witnesses where

they had been identified to the court, could be found within

the jurisdiction and the movant had demonstrated dili-

gence and good faith. The Court of Appeals believed that

Justice Korn had been “most co-operative and accommo-

dating,” unlike the trial judge in Foy who “refused, for

[his] own convenience, to grant even the briefest of ad-

journments.’’ People v. Singleton, swpra, 41 N.Y.2d at

406, 393 N.Y.S.2d at 356, 361 N.E.2d at 1003. “[I]t was

hardly an abuse of discretion,” concluded the Court of

Appeals, ‘‘for the court to direct counsel to try the case

and not the court’s patience.” Jd. Moreover, said the

Court of Appeals majority, unlike the case in Foy, Single-

ton, “by absconding from the jurisdiction of the court,

brought about his difficulties in not being able to locate

the witnesses at the time of the delayed trial.’’ Jd., 393

N.Y.S.2d at 357, 361 N.E.2d at 1006. Finally, the Court

of Appeals noted that there was doubt as to the “need-

fulness” of the testimony since the defendant’s attorney

had informed the court that he did not have the ‘‘foggiest

idea” whether the testimony would help or hurt appellant.’

It concluded that “under these circumstances, the de-

fendant should not be allowed to manipulate the Sixth

Amendment to avoid due process of law.” Id.

"It is true that at the time defense counsel sought continuances,

he did not know what the codefendants would testify to for the

obvious reason that they would not cooperate with him. However,

he as well as the trial court were well aware of Knowles’ plea state-

ments. See ante at 4.

Dissenting, Judge Fuchsberg urged that the three cri-

teria set forth in Foy as requiring an adjournment—that

the witness be material, that the moving party not be

guilty of neglect, and that the witness will appear at the

deferred trial—were met here. Jd. at 412-13, 393 N.Y.S.

2d at 360-61, 301 N.E.2d at 1009-10. He pointed out that

“every reasonable expectation was that Knowles’ testi-

mony would assist the defense,’’ id. at 412, 393 N.Y.S.2d

at 360, 361 N.E.2d at 1010, as indicated by defense coun-

sel’s reference to Knowles’ statement when he pleaded

guilty. And he noted that the trial court had implicitly

if not explicitly made a finding of materiality when it

issued the material witness order. Judge Fuchsberg found

“incomprehensible”? how Singleton’s absence months be-

fore had any bearing on the matter, because Knowles

would have been available to testify but for his improper

release from custody by the police. The dissent also rea-

soned that Knowles could and would have been produced

had a reasonable adjournment been granted, for he was

found by the police at his home even after he had twice

ignored the subpoenas.

In agreeing with the New York Court of Appeals, the

federal district court ruled that Singleton had not shown

_ that the testimony of either coconspirator would be favor-

able to his defense.’ This conclusion was partially based

on defense counsel’s lack of knowledge as to what the wit-

ness would testify to, see note 7 & accompanying text

supra. Additionally, Judge Stewart held that Knowles’

statement during his plea proceedings would not aid ap-

pellant because the fact that Powell purchased the drugs

8 We came to a similar conclusion in United States v. Taylor,

562 F.2d 1345, 1361-62 (2d Cir.), cert. denied, 434 U.S. 853, 98

S.Ct. 170, 54 L.Ed.2d 124 (1977). But in that ease not only was

there no showing of what the witness was expected to say in court,

there was not even an indication of what he had said in the past.

Here, by contrast, counsel apprised the court of Knowles’ previous

plea statement.

was not alone sufficient to rebut the presumption of know-

ing possession established by the statute. See note 5

supra.” The district court reasoned: ‘‘While it may be

assumed that Knowles’ testimony might have proven

Singleton’s lack of involvement in the purchase of the

drugs, petitioner has made no claim that Knowles or Powell

could have testified that Singleton had no knowledge of the

presence of the drugs in the automobile.’"° United States

*° While the statute has been upheld in the New York state

courts, People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.

2d 546 (1975), and by a federal district court, Leyva v. Super-

intendent, Green Haven Correctional Facility, 428 F.Supp. 1

(E.D.N.Y. 1977), vacated and remanded, 573 F.2d 1292 (2d Cir.

1978), a similar New York statute creating a presumption of pos-

session of firearms was declared unconstitutional in Allen v.

County Court, 568 F.2d 998 (2d Cir. 1977), petition for cert. filed,

46 U.S.L.W. 3694 (U.S. May 9, 1978) (No. 77-1554). Since appel-

lant has not raised the issue, we decline to address the presump-

tion’s constitutionality at this time.

This reasoning misconceives the purpose and effect of the

— presumption as construed by the New York Court of

ppeals:

[T)he presumption is evidentiary and rebuttable, whether by

defendant's own testimony or by any other evidence in the

ease, including the inherent or developed incredibility of the

prosecution’s own witnesses. A jury is not to be told that it

must find defendants guilty if the prosecution proves that

they and drugs were present in a car together; it is only to be

told that it may so find.

This affords added protection against the possibility that a

presumption might operate to direct a verdict... .

The purpose of the presumption was to prove the fact of

possession, inferential though such proof may be. As such, it

formed part of the support for the prosecution’s prima facie

ease. No less than with any other proof of facts offered by a

prosecution, contrary evidence from a defendant does not

negate the existence of a prima facie case; rather it presents

an alternate set of facts, or inferences from facts, to the jury.

The jury then has the right to choose between the two versions.

(footnote continued on following page)

ex rel. Singleton v. Lefkowitz, supra, No. 77 Civ. 1264, at 5.

Finally, the district court held that since Singleton had

deliberately absented himself from the court’s jurisdiction

at a time when the codefendants were ‘‘more easily lo-

eated’’ appellant was ‘‘partly responsible for the difficulty

in locating his witnesses.’’ Jd. at 6.

(footnote continued from preceding page)

None of the defendants here disputed the fact that they

were in the ear, nor did they argue that drugs were not found

in it. These were the two underlying facts which the statute

requires be proved before the presumption applies. Once the

prosecution had proved them, it was entitled to rely on the

presumption as a part of its prima facie case. Defendant

Low, by offering the jury additional facts not mentioned in

the statute, in effect, asked the jury to draw a different infer-

ence [negating possession], one more favorable to him than

the one the statute authorizes. So described, the fact inferred

under the presumption can be seen to be like any fact which

is sought to be proved by circumstantial evidence... .

People v. Leyva, supra, 38 N.Y.2d at 167-69. 379 N.Y.S.2d at

36-38, 341 N.E.2d at 550-52 (emphasis in original) (footnote

omitted).

To be sure, Knowles did not explicitly state that appellant was

unaware of the heroin. But it would not be unreasonable so to

infer from his plea statement. And, of course, had appellant been

permitted to locate Knowles, the testimony might have revealed

Singleton’s total lack of involvement with, knowledge of and con-

trol over the drugs. Even without clarifying testimony by

Knowles, it would have been the jury’s function to choose between

the two sets of inferences. The jury could have rejected the pre-

sumption of knowing possession because it is

“permissive in nature, permitting, but not requiring, the jury

to find the defendant guilty. In effect, the presumption oper-

ates as an instruction to the jury that an inference of know-

ing possession may be drawn from the fact of unexplained

presence in an automobile with illegal drugs. This permissible

inference may be rebutted by any evidence in the case... .”

Leyva v. Superintendent, Green Haven Correctional Facility,

supra, 428 F.Supp. at 5 (citation omitted). Had the jury dis-

carded the presumption, the State, in all likelihood, would have

been unable to prove possession (defined as exercise of dominion

or control, N.Y.Penal Law § 10.00(8) (MeKinney 1975) ), and

appellant, in all likelihood, would have been acquitted.

10a

II. Discussion

[1-3] A defendant has a right ‘‘to have compulsory

process for obtaining witnesses in his favor.’’ U.S.Const.

amend. VI. This right is violated when the State arbi-

trarily denies a defendant the opportunity to put on the

stand a witness whose testimony would be relevant and

material to his defense. Washington v. Texas, 388 U.S.

14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). The guar-

antee, of course, encompasses the right to compel the

attendance of witnesses favorable to one’s defense. See,

e. g., United States v. Taylor, 562 F.2d 1345, 1361-62 (2d

Cir.), cert. denied, 434 U.S. 853, 98 S.Ct. 170, 54 L.Ed.2d

124 (1977). The right is not without limitations. We have

held that in the absence of some showing of what favorable

evidence the witness would provide if compelled to testify,

it is not improper to deny a continuance. Id. See note 8

supra. The question here, simply stated, is whether there

was a sufficient showing that Knowles would have provided

favorable evidence which was neither cumulative nor ir-

relevant. We believe that an affirmative answer is com-

pelled. Based on his allocution statements, Knowles’

testimony probably would have revealed his presence when

Powell bought the drugs and Singleton’s lack of involve-

ment in the transaction. If believed by the jury, such evi-

dence could have rebutted the presumption of knowing

possession from Singleton’s presence in the automobile.

See note 10 swpra. Obviously it would not have been con-

clusive; for the jury might have disbelieved Knowles or

concluded that appellant was in knowing possession from

his location in the front seat of the automobile near the

envelopes. But in view of the presumption of innocence

and the State’s burden of proving Singleton guilty beyond

a reasonable doubt, we cannot say that Knowles’ antici-

pated testimony would not have tended to create doubt

about appellant’s knowing possession of the drugs.

[4] Moreover, it is important to note thet where the

Government has contributed to the unavailability of the

lla

witness, the showing of favorable testimony that is required

of the defendant is relaxed. See United States v. Alonzo-

Miranda, 427 F.Supp. 924, 925-26 (E.D.Cal.1977), citing

United States v. Mendez-Rodriquez, 450 F.2d 1 (9th Cir.

1971). In each of these cases, the Government deported

the aliens on wiose testimony the defendant relied. The

courts held that the Government violated the defendant’s

Sixth Amendment right to compulsory process and Fifth

Amendment right to a fair trial even though the defendant

had made no showing that the witnesses’ testimony would

be favorable to the defense. The courts attributed the lack

of evidence to the defendant’s inability to interview the

witnesses. In this case, the Government did not make

Knowles unavailable in the same way, and the dissent relies

in part on the defendant’s failure to interview Knowles.

But Knowles consistently refused to cooperate with the

defense, forcing it to take continually more stringent ac-

tion to secure his testimony. Knowles failed to appear in

court to testify even when he was under a subpoena to do

so, suggesting the futility of any attempt at an interview.

In any event, but for the State’s improper release of

Knowles, Singleton would not have had to make any show-

ing at all of the anticipated testimony. Prior to Knowles’

plea, an interview would not have been possible; after the

plea, the defendant relied on the plea statement as evidence

of Knowles’ testimony. The trial judge apparently found

that Knowles’ remarks at allocution were a sufficient indi-

cation that his testimony would be in Knowles’ favor be-

cause he issued the subpoena and the material witness

order even after defense counsel conceded that he was

unsure just what Knowles’ testimony would be. The plea

statement was a sufficient basis for obtaining Knowles’

arrest, and he would have been present to testify at Single-

ton’s trial had the police not improperly released him.

The State’s error should not put a heavier burden on

appellant.

12a

By analogy to the deportation cases, arguably the State

violated Singleton’s right to compulsory process when the

police released Knowles. This idea finds support in other

cases where the State has allegedly interfered with defense

witnesses. See, e.g., Webb v. Texas, 409 U.S. %, 93 S.Ct.

351, 34 L.Ed.2d 330 (1972) (intimidation and threats by

trial judge); United States v. Bell, 165 U.S.App.D.C. 146,

161, 506 F.2d 207, 222 (1974) (conditioning acceptance of

codefendants’ guilty pleas on their commitment not to tes-

tify on defendant’s behalf); United States v. Smith, 156

U.S.App.D.C. 66, 478 F.2d 976 (1973) (advising witness

that he might incriminate himself and be subject to prose-

cution if he testified); Bray v. Peyton, 429 F.2d 500 (4th

Cir. 1970) (witness arrested on charge that had previously

been dropped).

The State, of course, could have remedied the impair-

ment of Singleton’s defense by finding Knowles and pre-

senting him at trial. Thus it is the State, not appellant,

that should have borne the burden of searching for him

after his improper release from custody. Although the

Government generally has no obligation to look for a

defendant’s witnesses, this rule is conditioned on the “ab-

sence of a showing that such witnesses were made unavail-

able through the suggestion, procurement, or negligence”

of the Government. United States v. Ballesteros-Acuna,

527 F.2d 928, 930 (9th Cir. 1975); Ferrari v. United States,

244 F.2d 132, 141 (9th Cir.), cert. denied, Cherpakov v.

United States, 355 U.S. 873, 78 S.Ct. 125, 2 L.Ed.2d 78

(1957). Cf. Motes v. United States, 178 U.S. 458, 471-74,

20 S.Ct. 993, 44 L.Ed 1150 (1900) (error to admit written

statement of witness who disappeared because of Govern-

ment’s negligence) ; United States ex rel. Parson v. Ander-

son, 354 F.Supp. 1060, 1073-74 (D.Del.1972), aff'd, 481 F.2d

94 (3d Cir.), cert. denied, 414 U.S. 1072, 94 S.Ct. 586, 38

L.Ed.2d 479 (1973) (loss of evidence where the State is

13a

“blameless”)."" “The state is... responsible for the ab-

sence of witnesses [if] it... wrongfully causes them to

become unavailable. ... [1]f the state is to blame for the

absence of a witness, it must bear the consequences of the

loss.” Westen, Confrontation and Compulsory Process: A

Unified Theory of Evidence for Criminal Cases, 91 Harv.L.

Rev. 567, 596 (1978) (footnotes omitted).

Here, the defendant does not rely on the State’s improper

release of Knowles as the sole basis for his claim that the

State violated his Sixth Amendment right to compulsory

process. He argues that the trial judge should have con-

tinued the trial until Knowles could be found. Granting

the continuance was the least that the judge could have

done to remedy the error resulting from the State’s im-

proper interference with the defendant’s witness. It is

inappropriate to put the burden on the defendant to obtain

the continuance by additional proof that Knowles’ testi-

mony would have been favorable. For surely here the trial

judge abused his discretion by failing to grant what the

Government, the New York Court of Appeals, and the

dissent term a “fourth” continuance. The trial judge granted

the first two continuances in response to increasingly dili-

gent defense efforts to secure Knowles’ presence at trial,

and the total elapsed time was only a day and a half. These

continuances were clearly proper, and the defense would

have needed no further continuances if Knowles had re-

“Even the dissenting opinion in United States v. Mendez-

Rodriguez, 450 F.2d 1 (9th Cir. 1971), recognized that the court

could say that the defendant had been denied due process if there

were a “showing of negligence or misconduct on the part of the

government.” Jd. at 6 (Kilkenny, J., dissenting).

2In the deportation cases, where the Government's action

caused the witness to become permanently unavailable, the

remedy is often to dismiss the indictment. See United States v.

Tsutagawa, 500 F.2d 420 (9th Cir. 1974); United States v. Alonzo-

Miranda, 427 F.Supp. 924 (E.D.Cal. 1977). Here the lesser sane-

tion of a new trial is appropriate because it is likely that Knowles

ean be found.

l4a

mained in custody where he was following upon the second

continuance. The judge quite properly declared the third

continuance sua sponte in an attempt to remedy the blow

to the defense caused by Knowles’ release frvra custody.

He erred, however, by granting the continuance only until

the afternoon of that trial day instead of until such time as

Knowles could be produced in court. The State’s action ne-

cessitated a continuance, and Singleton is not properly

charged with obtaining it. Thus it is inaccurate to speak of

appellant’s having obtained a third continuance and his

seeking a fourth.

Alternatively, it may be argued that once the State im-

properly released Knowles, thereby negating the benefit to

Singleton of the two previous continuances, this so-called

fourth continuance was to be treated as though it were the

first continuance he sought. So viewed, the case is quite

similar to Johnson v. Johnson, 375 F.Supp. 872 (W.D.Mich.

1974), in which the court held that the denial of petitioners’

motion for a day’s continuance to enable them to secure

the presence of crucial alibi witnesses violated their right

of compulsory process. The witnesses there had been pres-

ent in Grand Rapids, Michigan, on the first day of the trial

but went home to Cleveland, Ohio, that night, apparently

because of a misunderstanding about whether they had been

released. The district court found that there was “no show-

ing that the petitioners in any way contributed to the ab-

sence of their witnesses.” Jd. at 876. The court noted that

because alibi was the only defense, the trial judge’s denial

of the motion for a day’s continuance “effectively denied

[the defendants] the right to present their defense.” Rely-

ing on the short delay requested and the trial court’s duty

to “direct[ ] the prosecutor to look into [the] possible con-

tempt of the court’s process, with a view to redressing its

disastrous effect by securing the witnesses’ presence if at

all possible,” the court held that the defendants were de-

prived of a fair trial. Jd. Singleton, too, had only one de-

15a

fense; because of a prior conviction, he could not testify on

his own behalf. His only defense was Knowles’ testimony,

the substance of which was intimated by Knowles’ plea

statement. The failure to continue the trial to enable Single-

ton to obtain Knowles’ presence at trial deprived Singleton

of a fair trial. It matters not that the trial judge’s special

narcotics term was about to end or that he had a doctor’s

appointment; fundamental rights do not depend on such

vagaries.

It remains to be determined whether Singleton’s Sixth

Amendment argument is rendered inapplicable by his fail-

ure to appear for trial from October, 1971, until February,

1973. Why that failure of defendant should be regarded as

affecting his right to compel Knowles’ testimony is not im-

mediately apparent. Knowles was taken into custody on

the same day that the trial judge ordered Knowles’ arrest

as a material witness. At that point, appellant’s prior fail-

ure to appear was rendered harmless, and the slate, in that

respect, was wiped clean. The failure of Knowles to testify

thereafter was attributable entirely to the negligence of the

prosecutor, for which appellant was certainly not account-

able.

However, even if this were not so, we agree with the dis-

senting opinion in the Court of Appeals. That is, assuming

a causal relation between appellant’s absence months before

the State’s disregard of the material witness order and

Knowles’ failure to testify, it would be an impermissible

and devastating sanction to deprive Singieton of the right to

secure the attendance of witnesses essential to his defense.

See People v. Singleton, supra, 41 N.Y.2d at 412-13, 393

N.Y.S.2d at 361, 361 N.E.2d at 1010. As the Supreme Court

emphasized in Faretta v. California, 422 U.S. 806, 818, 95

S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975), “the Amendment

constitutionalizes the right in an adversary criminal trial

to make a defense as we know it.” And “[t]he rights to no-

tive, confrontation, and compulsory process, . . . [are]

l6a

fundamental to the fair administration of American jus-

tice . . .” Id. We refuse to constrict the protection afforded

a criminal defendant by the Sixth Amendment where the

testimony is vital to the defense and but for the State’s

improper release of the potential witness there would have

been no need for a further continuance. Cf. Bray v. Peyton,

429 F.2d 500 (4th Cir. 1970) (new trial ordered on habeas

petition where conduct of government, even if not deliber-

ate, obstructed defendant’s offer of exculpatory proof).

[5] Although not urged by the State in any of the prior

proceedings or on this appeal, an argument can be made |

that defense counsel waived appellant’s right to compulsory

process by failing to offer Knowles’ plea statement* after

the trial court refused to grant an additional continuance.

It does not appear why counsel failed to proffer the declara-

tion. We cannot imagine any trial strategy that con-

ceivably would produce an intentional decision not to intro-

duce the statement. Perhaps Mr. Fabricant thought, not

without good reason, that New York’s hearsay rules pro-

hibit introduction of the declaration.* In any event, an

It will be recalled that prior to the commencement of trial,

Mr. Fabricant apprised the court of his intention to introduce the

plea statement as a declaration against penal interest if Knowles

could not be located. See ante at 4.

We note that under New York law, the admissibility of

Knowles’ statement as a declaration against penal interest is far

from clear. Perhaps counsel thought that the witness was not

“unavailable” within the meaning of the hearsay exception. Since

at least 1970, material hearsay statements against penal interest

made by third persons have been admissible in New York, but only

when the declarant is “dead, beyond the jurisdiction and thus not

available; or where he is in court and refuses to testify as to the

fact of the admission on the ground of self incrimination.” People

v. Brown, 26 N.Y.2d 88, 94, 308 N.Y.S.2d 825, 829, 257 N.E.2d 16,

19 (1970). None of these specific unavailability prerequisites

exists in the instant case. Moreover, whether Knowles was “un-

available” in any sense of the word is questionable ‘since in all

probability Knowles could have been found without much difficulty

(footnote continued on following page)

17a

inadvertent failure to offer alternative proof, the admissi-

bility of which was doubtful, see note 14, supra, will not

serve to preclude appellant from asserting his important

Sixth Amendment right to compel the live testimony of

Knowles. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497,

53 L.Ed.2d 594 (1977), Francis v. Henderson, 425 U.S. 536,

96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and Estelle v. Wil-

liams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976),

do not control this case. We are not confronted with a situ-

ation where the defendant seeks to raise in a federal col-

lateral attack an objection which was either not presented

at the state trial or was presented in an inappropriate man-

ner. Defense counsel repeatedly requested continuances,

and also urged the constitutional infirmity underlying the

trial court’s failure to grant the continuance in a motion to

set aside the verdict. The recent Supreme Court cases do

(footnote continued from preceding page)

or delay. See ante at 7; 5 Wigmore on Evidence § 1405, at 215-19

(Chadbourn ed. 1974).

Additionally, Knowles’ statement may have actually favored his

penal interest at the time it was made. While it did contain a fact

against his interest—his admission that he know the drugs were

present because he saw Joseph Powell buy them—see 5 Wigmore

on Evidence, supra, § 1462, at 337, the statement was made in the

course of implementing a plea bargain which would leave him

guilty of only a misdemeanor. See United States v. Seyfried, 435

F.2d 696, 697-98 (7th Cir. 1970) (confession exonerating possible

accomplices held not against declarant’s penal interest because it

“did not subject him to any additional charges or more severe pun-

ishment and in no way could be construed to adversely affect his

penal interest”), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.

2d 654 (1971). His possible motive to misrepresent cannot be

discounted in determining whether the allocution declaration was

against his intérest. See Bunge Corp. v. Manufacturers Hanover

Trust Co., 37 A.D.2d 409, 325 N.Y.S.2d 983 (1st Dep’t 1971) (ex-

cluding statement prepared for litigation that was not clearly

against declarant’s interest where there was a motive to falsify ),

aff'd on other grounds, 31 N.Y.2d 223, 335 N.Y.S.2d 412, 286 N.E.

2d 903 (1972); 5 Wigmore on Evidence, supra, §§ 1463-64, at

337-39.

18a

not extend so far as to preclude Singleton from raising ju-

dicial error of constitutional proportions simply because

the defense did not offer other evidence that might have

mitigated the harm engendered by not having Knowles’ live

testimony. Cf. Suggs v. LaVallee, 570 F.2d 1092, 1116-19

(2d Cir. 1978) (failure to assert at sentencing proceeding

defendant’s prior incompetency when he pleaded guilty does

not constitute a waiver, for purposes of federal habeas cor-

pus relief, of his attack on the constitutionality of the

sentencing proceeding). Moreover, to preclude appellant

from asserting his right to compulsory process seems most

inappropriate where the State’s own inadvertence caused

Knowles’ unavailability.

Judgment reversed; caused remanded with directions

to issue writ of habeas corpus unless the State furnishes

appellant a new trial within sixty days of the order of the

district court.

MANSFIELD, Circuit Judge (dissenting) :

I dissent because appellant has failed to show that

Knowles’ testimony would have been relevant, material,

and favorable to appellant. There was, therefore, no de-

nial of appellant’s Sixth Amendment right to compulsory

process, and no abuse of discretion on the part of the state

court trial judge in not granting a fourth continuance for

the purpose of locating Knowles and compelling his

attendance as a witness.’

* Although the majority opinion states that the trial judge

“refused” to grant a fourth continuance, the record shows that

defense counsel never asked for a continuance when he returned

to court on the afternoon of August 29, but instead rested without

objection. (Tr. 224). Nor did counsel! offer the transcript of

Knowles’ allocution statement, which was available, and which

counsel had earlier informed the court he would offer if Knowles

did not appear. No suggestion was made by counsel at that time

or at any other time during the trial that resumption of the pro-

(footnote continued on following page)

19a

The Sixth Amendment entitles an accused ‘‘to have com-

pulsory process for obtaining witnesses in his favor.’’

U.S.Const. Amend. VI (emphasis supplied). The Supreme

Court described the right to compulsory process in Wash-

ington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18

(footnote continued from preceding page)

ceedings without Knowles’ testimony would violate the appellant’s

constitutional rights.

The importance of these facts is two-fold. First, it shows that

this case is vastly different from Washington v. Texas, 388 U.S. 14,

87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), which involved a defend-

ant, charged with murder, who was not allowed to introduce excul-

patory testimony of a co-defendant solely because of two seemingly

irrational state statutes that disqualified an alleged or convicted

accomplice from testifying for a defendant, although it permitted

him to testify for the prosecution. The Supreme Court understand-

ably characterized this as an arbitrary denial of the defendant’s

right of compulsory process. 388 U.S. at 23, 87 S.Ct. 1920.

In this case, the state trial judge issued the subpoenas for

Powell and Knowles when they were requested. The judge later

inquired, at the opening of the trial, whether service had been

made and encouraged defense counsel to make every effort to locate

the witnesses. (Tr. 20). When the witnesses failed to respond to

the subpoenas, the judge continued the trial, and then issued the

material witness orders the next day when they still had not ap-

peared. When informed that the police had mistakenly released

Knowles from custody, the judge personally telephoned the Dis-

trict Attorney’s Office to determine what had occurred. He ad-

journed the trial for the third time, until the afternoon, and

ordered the assistant district attorney to help the defendant and

his counsel to locate Knowles again. (Tr. 222-23).

This solicitude for the defendant’s right to produce witnesses

in his favor cannot be equated properly with the arbitrary denial

of that right in Washington v. Texas, supra, particularly since

defense counsel did not make another request for a continuance,

made no objection to the resumption of the trial, and did not

suggest to the court that Knowles’ absence would constitute a

violation of appellant’s constitutional rights.

Secondly, counsel’s failure to follow through on his earlier ex

pressed intention to offer the transcript of Knowles’ allocution

statement suggests that the testimony was not considered as vital

by him then as it is thought to be now.

20a

L.Ed.2d 1019 (1967), as the right to testimony that would

be ‘‘relevant and material to the defense.’’

Therefore, in determining whether to delay a trial be-

cause of a witness’ absence, the trial judge must consider

not only the defendant’s diligence in attempting to secure

the presence of the missing witness, and the likelihood that

the witness would be produced if a continuance were

granted, but also, of equal importance, the question of

whether the witness’ testimony would be relevant, mate-

rial, and favorable to the defense. The Constitution does

not guarantee an accused the right to introduce irrelevant

or immaterial evidence; nor does it entitle a defendant to

compel the production of witnesses against him. See

United States v. Taylor, 562 F.2d 1345, 1362 (2d Cir. 1977) ;

Umted States v. Haldeman, 181 U.S.App. D.C. 254, 307,

559 F.2d 31, 84 (1976); Dearinger v. United States, 468

F.2d 1032, 1034-35 (9th Cir. 1972). See generally, Westen,

Compulsory Process II, 74 Mich.L.Rev. 191 (1975).*

As Judge Oakes of this court stated in United States v.

Taylor, supra, at 1362:

‘*While ordinarily it would be of the greatest mo-

ment if a defendant were denied his right to compel

the attendance of witnesses in his defense, see /'aretta

v. California, 422 U.S. 806, 818, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975); Washington v. Texas, 388 U.S. 14,

18-19, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), particu-

larly when the defendant seeks a witness in Govern-

ment custody, here there was no showing either at the

time of the request or subsequently as to what favor-

able evidence Garner would have provided if he had

*In his comprehensive article on the right to compulsory proc-

ess, Professor Westen states, “[a] defendant is not entitled to a

continuance (nor, for that matter a subpoena) for sent witnesses

unless he can offer proof that their testimony will be competent,

relevant, material, and favorable to his defense.” 74 Mich.L.Rev.

at 241 (footnotes omitted).

2la

been called to testify and had waived his Fifth Amend-

ment privilege. It is not improper to deny a request

for a subpoena where the testimony of the witness

would be only cumulative, United States v. Rosa, 493

F.2d 1191, 1194 (2d Cir.), cert. denied, 419 U.S. 850,

95 S.Ct. 89, 42 L.Ed.2d 80 (1974), where the defendant

is vague as to the witness’s potential evidence and is

also aware that the witness might invoke the Fifth

Amendment, United States v. Wyler, 487 F.2d 170, 173-

74 (2d Cir. 1973), or where the witness would only

give irrelevant testimony not necessary to an adequate

defense, United States v. Romano, 482 F.2d 1183, 1195

(Sth Cir. 1973), cert. denied, 414 U.S. 1129, 94 S.Ct.

866, 38 L.Ed.2d 753 (1974). See also United States v.

Sellers, 520 F.2d 1281, 1285-86 (4th Cir. 1975), vacated

on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 47

L.Ed.2d 728 (1976). Cf. Fed.R.Evid. 403 (relevant evi-

dence may be excluded because of ‘considerations of

undue delay, waste of time, or needless presentation

of cumulative evidence’). Since there was never any

showing of what Garner’s testimony would be, it was

proper to deny the continuance.’’

The showing of relevance, materiality, and favorability

that must be made will, of course, vary according to the

circumstances confronted by a defendant seeking the evi-

dence. If the witness has not been available for, or amen-

able to, an interview by the defendant or his counsel, then

the witness’ unavailability or uncooperativeness may ex-

cuse a defendant’s failure to make a specific offer of proof

concerning the witness’ anticipated testimony. Even in

such a case, however, a defendant must still be able to

point to independent facts, as distinguished from specula-

tion or conjecture, indicating that if subpoenaed the wit-

ness would be forced to give relevant and favorable testi-

mony of material significance to the defense.

Such a showing should suffice to warrant a continuance.

But if the defense, despite ample opportunity, has failed to

22a

exercise due diligence in attempting to obtain from the

witness a statement (oral or written) of the substance of

his anticipated testimony, and, in addition, the court is

asked to speculate as to whether the witness will possibly

give relevant and material testimony favorable to the de-

fendant, a continuance is not mandated by the Constitution.

United States v. Taylor, supra, 562 F.2d at 1362; United

States v. Haldeman, supra, 559 F.2d at 84; Dearinger v.

United States, supra, 468 F.2d at 1034-35.

Moreover, when a defendant, years after his conviction,

seeks habeas relief based on a trial judge’s alleged abuse

e° discretion in not granting a continuance, the petitioner

should at the very least be obligated to furnish an affidavit

setting forth his efforts during the interim to obtain a

statement from the missing witness and, if an oral or writ-

ten statement was obtained, the substance of what the

missing witness would have testified to if a continuance had

been granted and he had been forced to testify. This should

be a basic condition precedent to habeas relief when the

allegation is a violation of the defendant’s right of

compulsory process.

Applying these principles here, on October 10, 1972,

Knowles, whom appellant later proposed to call as a wit-

ness, pleaded guilty to criminal possession of a dangerous

drug in the sixth degree, a Class A misdemeanor, N.Y.Penal

Law § 220.05, and on October 25, 1972, was sentenced to

time already served. On February 23, 1973, appellant, who

had absconded after he had been indicted on January 6,

1972, was arrested pursuant to a bench warrant and was

brought to trial on August 22, 1973. Thus appellant’s trial

took place approximately 10 months after Knowles had,

upon his guilty plea, made the statement now pointed to by

appellant as the basis for calling him as a witness.

During this 10-month period Knowles, having completed

his sentence, was at large. Moreover, his whereabouts

were apparently known to appellant and he was available

23a

to appellant or his counsel during the 6-month period be-

tween appellant’s arrest (Feb. 23) and his trial (Aug. 22).

Indeed, appellant’s wife and brother went to see Knowles

at his home during the trial and received his assurance that

he would appear and testify. The police had no difficulty

locating him at his home on August 28 and taking him into

custody.

We have no indication in the record that appellant or his

counsel ever attempted to interview Knowles, much less

that Knowles ever refused to talk with appellant’s counsel,

during this long period of apparent availability. Yet ap-

pellant, although his wife and brother “stressed the im-

portance of his [Knowles’] testimony” when they visited

him, has consistently failed to give the substance of what

Knowles would testify to other than to point to a portion of

his allocution statement of October 10, 1972, when he

pleaded guilty. (According to appellant’s trial counsel,

neither appellant’s wife nor his brother knew “what he

[Knowles] was going to testify to.” (Tr. 217).

I fail to find in Knowles’ October 10, 1972, statement, the

relevant portion of which is reproduced in the margin,’ a

’“The Court: What happened?

The Defendant: The police car flagged us down and asked

for the registration of the car and Joe showed him the regis-

tration, you know; and he asked for the sticker of the ear, and

he couldn’t find the sticker so he took out his flashlight and

flashed it on the car and accidentally flashed it on the seat and

he saw a brown envelope on the seat, and in it he checked the

envelope out and it contained drugs.

The Court: When you say Joe, who are you referring to?

The Defendant: One of the defendants, Joe Powell.

The Court: Who else was in the car?

The Defendant: A boy named Singleton.

The Court: Alonzo Singleton?

The Defendant: Yes.

The Court: Whose narcotic drug was it?

The Defendant: It was Joe’s.

The Court: How do you know?

(footnote continued on following page)

24a

sufficient indication that he would have given relevant and

material testimony that would have been genuinely favor-

able to appellant. Knowles merely stated, obviously in an

effort to minimize his own participation in the alleged crime

(he at first denied knowledge of the presence of drugs in

the car), that the heroin (described by Knowles as cocaine)

found in the envelopes on the front seat of the car next to

a seat occupied by appellant, belonged to Powell and that

Knowles was present when Powell had bought it.

Knowles did not say that appellant was not also present

when the purchase had been made, or that appellant had

not been informed about the heroin. Nor did Knowles indi-

cate in any way that appellant was unaware of the presence

of the heroin in the car or that he was not a co-owner or

joint possessor with Knowles and Powell. Moreover,

Knowles’ identification of Powell as the purchaser did not

lead Knowles himself to deny joint possession—indeed, he

pleaded guilty to knowing possession.

Since Knowles’ allocution statement is fully consistent

with appellant’s having likewise been present at the pur-

chase of the heroin, and having shared in knowing posses-

sion of the drug, the suggestion that he would have given

testimony exculpating appellant amounts to rank specula-

tion of the flimsiest sort. We could just as well infer that

he failed to appear at trial because he knew that his testi-

mony would incriminate appellant by implicating him in

the possession to which Knowles himself had pleaded guilty

even though Powell, according to Knowles’ statement, was

the owner of the drug. The very fact that we must engage

(footnote continued from preceding page)

The Defendant: Because he bought it.

The Court: How do you know he bought it; were you

there?

The Defendant: Yes; I was there at the time.

Court: So that you did know there was drugs in the

car

The Defendant: Yes.”

25a

in this speculation reveals that appellant has failed to make

the requisite showing, particularly with respect to whether

the evidence would be favorable to his defense.

Indeed, appellant’s counsel repeatedly stated that he did

not know what Knowles would testify, or whether his testi-

mony would be favorable to appellant. He informed the

state trial judge that he did not have “the foggiest idea

whether ... [Knowles’] testimony will help or hurt” appel-

lant, and that the testimony of Knowles and Powell might

in fact ‘‘make the District Attorney’s case for him.’’ (Tr.

217, 214). The Supreme Court’s decision in Washington v.

Texas, supra, 388 U.S. at 23, 87 S.Ct. 1920, heavily relied

upon by the majority, is clearly distinguishable, since the

record there showed the specific exculpatory testimony that

would have been given by the witness had he been allowed

to testify.

In addition to the 6month period prior to trial during

which Knowles or his counsel could have (but apparently

did not) interview Knowles, appellant has had nearly four

years from the date of his conviction (Aug. 30, 1973) to the

filing of his federal habeas petition (Mar. 16, 1977) within

which to take such action. However, no showing is made of

any effort to obtain from Knowles a statement of the sub-

stance of what he would have testified to if a continuance

had been granted and he had been brought to trial as a

material witness.

Absent a statement of what Knowles would testify or a

showing of unsuccessful good faith efforts to interview

Knowles, coupled with a reasonable basis for belief that he

would, if brought to trial by force, give testimony that was

relevant, material, and favorable to appellant, the cireum-

stances here do not provide any basis for a constitutional

claim under the Sixth or Fourteenth Amendments,

26a

APPENDIX B

Order.

UNITED STATES COURT OF APPEALS

Seconp Circuit

At a stated term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the first day of

November, one thousand nine hundred and seventy-eight.

Docket No. 78-2008

é..

Atonzo SINGLETON,

Petitioner-Appellant,

Tue Honoras.e Louis J. Lerxowirz, New York State

ATTORNEY GENERAL,

Respondent-Appellee.

A petition for rehearing containing a suggestion that

the action be reheard in banc having been filed herein by

counsel for the appellee, and no active judge or judge

who was a member of the panel having requested that a

vote be taken on said suggestion.

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Deniep.

Irving R. KaurmMan

Irvine R. KaurMman,

Chief Judge

27a

APPENDIX C

Order

UNITED STATES COURT OF APPEALS

Seconp Circuit

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Court House, in the City of New York, on the first day of

November, one thousand nine hundred and seventy-eight.

Present:

Hon. Wiirrep FErnsere,

Hon. Water R. MAnsFIeLp,

Hon. James L, Oakzs,

Circuit Judges.

Docket No. 78-2008

Atonzo SINGLETON,

Petitioner-Appellant,

Tue Honorasie Louis J. Lerxowrrz, New York Strate

ATTORNEY GENERAL,

Respondent-Appellee.

7’

A petition for a rehearing having been filed herein by

counsel for the appellee,

28a

Upon consideration thereof, it is

Ordered that said petition be and hereby is denied.

A. Dantet Fvusaro

A. Danie, Fusaro

Clerk

by A. Heiter

Deputy Clerk

29a

APPENDIX D

Memorandum Decision

UNITED STATES DICTRICT COURT

SouTHERN Disrrict or New York

77 Civ. 1264

As.

Unrrep Srartes or America, ex rel. ALONZO SINGLETON,

Petitioner,

—against—

THe Honorasie Louis J. Lerxowrrz, New York State

Attorney General,

Respondent.

Srewart, District JuDGE:

Petitioner, Alonzo Singleton seeks a writ of habeas corpus

from this Court, under 28 U.S.C. & 2241 et seq., claiming his

Sixth and Fourteenth Amendment rights were denied him

during his state trial for criminal possession of a danger-

ous drug.’ Petitioner has exhausted his state remedies.

On September 24, 1971, New York City police arrested

Alonzo Singleton, Joseph Powell and David Lester Knowles,

‘Petitioner was convicted of violating section 220.25 of the

New York Penal Law. The relevant part of this section reads:

§ 220.25 Criminal possession of a controlled substance;

presumption,

1, The presence of a controlled substance in an automobile,

other than a public omnibus, is presumptive evidence of know-

ing possession thereof by each and every person in the auto-

mobile at the time such controlled substance was found;.. .

N.Y. Consol, Laws § 220.25 (MeKinney 1975).

30a

after discovering heroin in the car in which they were rid-

ing. Powell was acquitted of a charge of criminal posses-

sion of a dangerous drug on March 9, 1972. Knowles pled

guilty to possession of a dangerous drug in the sixth degree

on October 10, 1972. Petitioner Singleton, released after

his arraignment, failed to appear in court on October 1,

1971 and did not appear on the bench warrant issued for

him that day until February 23, 1973.

On July 17, 1973, petitioner was assigned the counsel

who represented him at trial. Petitioner’s trial began on

August 22, 1973 and was adjourned to August 27, 1973.

After the prosecution rested on that day, the defense coun-

sel requested a continuance, explaining that Powell and

Knowles, who had been served with subpoenas two days

earlier, had not appeared. The trial judge granted the con-

tinuance until the following day.

When the court reconvened the morning of August 28,

1973, defense counsel requested another continuance be-

cause the subpoenaed witnesses could not be located. He

also filed two applications for material witness orders.’ The

* Sections 620,20 and 620.30 of the New York Criminal Pro-

cedure Law require that an applicant for a material witness order

demonstrate reasonable cause to believe that the person he desires

to call as a witness in a pending criminal action:

(a) Possesses information material to the determination of

such action; and

(b) Will not be amenable or responsive to a subpoena at a

time when his attendance will be sought.

N.Y. Consol, Laws § 620.20(1) (McKinney 1971). Powell and

Knowles had already shown themselves to be unresponsive to

subpoenas, .

As to the first criterion, although counsel explained that he had

never spoken with either witness and did not “have the foggiest

idea whether their testimony [would] help or hurt the defendant,”

(T, 217), the affidavits supporting these material witness applica-

tions stated that Powell and Knowles “possess[ed] information

material to the determination of such action, in that they were

direct witnesses to the alleged crime, and are the only ones who

[could] establish the guilt or innocence of Alonzo Singleton.”

2 a nee eee

3la

Court signed the orders and granted a twenty-four hour

continuance.

The next day, August 29, 1973, counsel advised the trial

judge that Powell could still not be located and that

Knowles, although he had been picked up on the material

witness order, was released by the police who were mis-

takenly informed by an Assistant District Attorney that

the order was defective. The Court adjourned until 2:00

p-m.; that afternoon, the defense rested and summations

were given.

The jury found Singleton guilty of criminal possession

of a dangerous drug in the fourth degree. Petitioner

moved to set aside the verdict and moved for a new trial

on the grounds that it was an abuse cf discretion and a

denial of petitioner’s right to present witnesses in his de-

fense for the trial judge to have denied his application for

further adjournment of the trial. On October 16, 1973

these motions were denied and Singleton was sentenced to

an indeterminate term of three years. Having served thir-

teen months of his sentence, petitioner was released on bail

on March 1, 1974, pending his appeal in the New York

courts. His release was continued by order of this Court on

April 7, 1977 pending our determination of petitioner’s

application for a writ of habeas corpus.

The New York Court of Appeals found that petitioner’s

Sixth Amendment right to compulsory process had not

been denied him at trial and the judge had not abused his

discretion in violation of petitioner’s due process rights by

failing to grant another continuance on August 29, 1973.

We agree with that Court’s conclusions.

’The defense counsel did not specifically request another con-

tinuance when the trial resumed at 2:00 p.m. on August 29, 1973.

However, the record reflects that counsel felt precluded from

making such a request because of the trial judge’s statement that

prior day. The judge had said that despite the absence of Powell

or Knowles on August 29, the trial would have to proceed because

his term was due to end that Friday. (T. 218, 220.)

32a

Under the Sixth Amendment a defendant has a right “to

have compulsory process for obtaining witnesses in his

favor” U.S. Const. amend. VI. This right* is denied a

defendant when “the State arbitrarily denie[s] him the

right to put on the stand a witness ... whose testimony

would have been relevant and material to [his] defense.”

Washington v. Texas, 388 U.S. 14, 23 (1967). The right to

compulsory process is the right to compel the attendance

of witnesses favorable to one’s defense. United States v.

Taylor, No. 76-1210 (2d Cir. April 13, 1977).

In the instant case however, petitioner has not shown

that the testimony of either Powell or Knowles would be

favorable to his defense. On the contrary, his counsel

stated several times on the record that he did not know

what these witnesses would say (T. 214, 216, 217), and even

conceded that their testimony might “make the District

Attorney’s case for him” (T. 214).

Defense counsel states he told the trial judge that

Knowles indicated in the allocution accompanying his plea

that Powell bought the drugs. However, the fact that

Powell may have bought the drugs is not by itself enough

to rebut the presumption of knowing possession established

by the statute under which Singleton was charged and con-

victed.*’ While it may be assumed that Knowles’ testimony

might have proven Singleton’s lack of involvement in the

purchase of the drugs, petitioner has made no claim that

Knowles or Powell could have testified that Singleton

had no knowledge of the presence of the drugs in the

automobile.®

*A defendant’s Sixth Amendment right to compulsory process

of witnesses favorable to the defense is incorporated in the Due

Process Clause of the Fourteenth Amendment and thus is appli-

cable to State Court proceedings. Washington v. Texas, 388 U.S.

14, 17-18 (1967).

5 See footnote 1, supra.

®*One envelope of drugs was apparently found on the console

between the two front seats, another between the console and the

(footnote continued on following page)

33a

Furthermore the erroneous release of Knowles, after he

was picked up on the material witness order does not sup-

port petitioner’s claim that his constitutional rights were

denied him. The Sixth Amendment does not obligate the

government to locate defense witnesses after they have

been served with subpoenas. United States v. DiGregorio,

148 F.Supp. 527, 528 (S.D.N.Y. 1957) ; cf. United States vy.

Edwards, 366 F.2d 853, 870-871 (2d Cir. 1966), cert. denied

386 U.S. 919 (1967).

We find therefore that petitioner has not been denied his

Sixth Amendment right to compulsory process of witnesses

in his favor. United States v. Taylor, supra, No. 76-1210;

United States v. Wyler, 487 F.2d 170 (2d Cir. 1973).

Petitioner also claims that the trial judge’s denial of a

fourth continuance to the defense on August 29, 1973 was

an abuse of his discretion and a violation of petitioner’s

due process rights. Under the Fourteenth Amendment the

granting of a continuance is within the discretion of the

trial judge. Ungar v. Sarafite, 376 U.S. 575, 589 reh. de-

nied 377 U.S. 925 (1965); United States v. Rosenthal, 470

F.2d 837, 844 (2d Cir. 1972), cert. denied 412 U.S. 909

(1973).

Admittedly the continuances granted petitioner so that

he could locate his witnesses were relatively short. How-

ever, defense counsel had over a month between the time of

his appointment and the start of the trial in which to

locate and interview Powell and Knowles. Moreover, since

Singleton had deliberately absented himself from the

Court’s jurisdiction from September 1971 until February

1973, he was partly responsible for the difficulty in locat-

ing his witnesses. Powell was tried and acquitted in

(footnote continued from preceding page)

driver's seat. (Petitioner’s Memorandum at 4.) Petitioner was

riding in the front passenger seat. (Petitioner’s Memorandum

at 2.)

34a

March, 1972, and Knowles pled guilty in October, 1972.

Both were more easily located prior to the time of peti-

tioner’s delayed trial. Under the circumstances, we cannot

say that the trial judge abused his discretion in denying

petitioner a fourth continuance.

Furthermore, because petitioner has not shown that the

witnesses’ testimony would be favorable to him, he has not

demonstrated that he was prejudiced by the denial of an

additional continuance. In the absence of a particularized

showing of prejudice, we cannot find that the denial of a

continuance was an abuse of discretion and a violation of

petitioner’s due process right to a fair trial. United States

v. Rastelli, No. 76-1350 (2d Cir. March 18, 1977); United

States v. Frattini, 501 F.2d 1234, 1237-1238 (2d Cir. 1974) ;

United States ex rel. Hunter v. Patterson, 374 F.Supp. 608,

610-611 (S.D.N.Y. 1974).

Accordingly, we find that the petitioner was not denied

his Sixth or Fourteenth Amendment rights at trial.

His petition is denied.

So ORDERED.

Tnited States District Judge

Datep: New York, New Yuck

November 18, 1977.

25a

APPENDIX E

Order.

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

78 2008

Docket Number

Atonz0 SINGLETON,

Petitioner-Appellant,

—against—

Hon. Louis J. Lerxowirz,

Respondent-Appellee.

-™

—_

It Is HEREBY ORDERED that the motion to recall the man-

date and stay its reissuance pending application to the

Supreme Court to the United States for writ of certiorari

pursuant to Rule 41 (b) be and it hereby is granted.

WILFRED FEINBERG

Wa rer R. MANSFIELD

Nov. 28, 1978

Date

JaMEs L. OAKES

Circuit Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.