Petition — Cruz v. United States
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upreme Court, U. &,~
FILED
} QCT 22 1979
ee ; Hiegae M BIDAK, JR, CLERR
In THE
Supreme Court of the Anited States
Ocroser Term, 1979
No. 79-650
HERMINIO CRUZ,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
ALLAN A. ACKERMAN, ESQ.
100 North LaSalle Street
Suite 611
Chicago, Illinois 60602
(312) 332-2863
Attorney for Petitioner,
Herminio Cruz.
Midwest Law Printing Co., Chicago 60601, Financial 6-3988
TABLE OF CONTENTS
PAGE
OPINION BELOW i
JURISDICTION 2
QUESTIONS PRESENTED 2
CONSTITUTIONAL PROVISIONS AND STAT-
UTES INVOLVED 4
STATEMENT OF THE CASE 13
(A) Overview 13
(B) Proceedings Below 14
INTRODUCTION TO ARGUMENT 22
REASONS FOR GRANTING THE WRIT 28
CONCLUSION | 44
GROUP APPENDIX A la
APPENDIX B 7a
GROUP APPENDIX C 8a
GROUP APPENDIX D 13a
APPENDIX E.... l4a
LIST OF AUTHORITIES
Cases
Alderman v. U.S., 394 U.S. 257 (1960) 27, 43
Brewer v. Williams, 480 U.S. 387 (1977) 32, 33
Brown v. U.S., 411 U.S. 223 (1973) aa ae
Fare v. Michael, ...... US. ......, 99 S.Ct. 2560 (1979) ........
| 2, 29, 30
Franks v. Delaware, 438 U.S. ......, 98 S.Ct. 2674 (1978)
24, 25, 38, 39
Government of Canal Zone v. Gomez, 566 F.2d 1289
(C.A. 5, 1978) 28
Jones v. U.S., 362 U.S. 257 (1960) 27, 40
Lego v. Twomey, 404 U.S. 477 (1972) 36
Massachusetts v. White, 436 U.S. ....., 99 C.St. 712
(1978) 26, 40
Michigan v. Mosley, 423 U.S. 96 (1975) 30
Nash v. Estelle, 597 F.2d 513 (C.A. 5, 1979) .......... 22, 23, 24
North Carolina v. Butler, ...... US. ......, 99 S.Ct. 1755
(1979) 2, 28, 29
Rakas v. Illinois, ...... US. ......, 99 S.Ct. 421 (1978) .... 27, 43
Schneble v. Florida, 405 U.S. 27 (1972) ..... 34
Simmons v. U.S., 390 U.S. 377 (1968) oe eee eens 27
Thompson v. Wainwright, 601 F.2d 768 (C.A. 5, 1979)
23, 24
US. v. Barry, 518 F.2d 342 (C.A. 2, 1975), ............-....2.20--- 37
U.S. v. Carmichael, 489 F.2d 983 (C.A. 7, 1973) (en
banc) 39
US. v. Christian, 571 F.2d 64 (C.A. 1, 1978) ................ 31, 32
USS. v. Cruz, 568 F.2d 781 (C.A. 1, 1978) 13
US. v. Cruz, 594 F.2d 268 (C.A. 1, 1978) 2.0.02... .eeeeee 13
US. v. Esparza, 546 F.2d 841 (C.A. 9, 1976) ................ 38, 39
U.S. v. Genser, 582 F.2d 292 (C.A. 8, 1978) .............--00--- 27
U.S. v. Hernandez, 574 F.2d 1362 (C.A. 5, 1978) ........ 30, 31
U.S. v. Holbert, 578 F.2d 128 (C.A. 5, 1978) ..................-- 35
US. v. Mazzelli, 595 F.2d 1157 (C.A. 9, 1979) ................ 43
US. v. Priest, 409 F.2d 491 (C.A. 5, 1969) 2, 28
U.S. v. Rasor, 599 F.2d 1330 (C.A. 5, 1979) 40
US. v. Salvucci, 599 F.2d 1094 (C.A. 1, 1979) ................--
26, 27, 41, 42, 43
Other Authorities
Constitution of the United States:
IIE, Gitta eclahcte snes ttipctehineentinscnsvniimmnictnnnini 4
Amendment V a <i
Amendment VI 4
18 U.S.C. § 2510 5, 40, 41
18 U.S.C. § 3501 ............... 7, 33, 37
21 U.S.C. § 841(a) (1) Se Rees er 13
21 U.S.C. § 846 13
28 U.S.C. § 2106 44
Devitt and Blackmar (Third Ed., 1977) § 15.06 .............. 36
Fed.R.Crim.Proe., Rule 41 9, 40, 41
ee Te eS nr nae
In Tue
Supreme Court of the Anited States
Ooroser Term, 1979
No.
HERMINIO CRUZ,
Petitioner,
ve.
UNITED STATES OF AMERICA,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Herminio Cruz, petitions for a Writ of Certiorari to
review the Judgment of the United States Court of
Appeals for the Seventh Circuit.
OPINION BELOW
The Opinion of the Court of Appeals (Group Appendix
A, infra, pp. la-6a) is not yet reported.
wailed
JURISDICTION
The Opinion of the Court of Appeals for the Seventh
Circuit was entered on August 17, 1979. A timely
Petition for Rehearing was filed [after an extension
allowed by the Court] on September 10, 1979. The
Petition for Rehearing was denied on October 2, 1979.
This petition is filed within thirty (30) days of that date.
This Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
QUESTIONS PRESENTED
1. Whether petitioner’s Fifth Amendment [self-incrim-
ination] and Sixth Amendment [right to counsel] rights
were violated where the trial court allowed a post-arrest
oral admission into evidence where the evidence re-
vealed that the petitioner was already in custody and
had requested counsel .. . prior to the [controverted]
oral admission?
1A. Whether a custodial request for counsel precludes
the admission of the post-arrest statement in accordance
with both Fare v. Michael, ..... USS. ...... 99 S.Ct. 2560
(1979) and North Carolina v. Butler, ..... ik Se
S.Ct. 1755 (1979)? [In Butler the Court noted that at no
time did the respondent request counsel . . . 99 S.Ct. at
1756].
1B. Whether the Fifth Circuit Miranda interpretation
in U.S. v. Priest, 409 F.2d 491 (C.A. 5, 1969), is correct
[compelling suppression of post-arrest. admission after
request for counsel] and, if it is, does it so seriously
conflict with the decision at bar that certiorari should be
=
granted to resolve the conflict of opinions within the
circuits as to the proper application of Miranda?
2. Whether certiorari is appropriate to resolve the
question as to whether the trial court must, consistent
with 18 U.S.C. § 3501(a), instruct the trial jury on who
has the burden of proof and what is the burden of proof
where the government offers a controverted oral ad-
mission as evidence of guilt?
2A. Whether an instruction to the trial jury regarding
a contested oral admission [post-arrest and without
counsel] is complete and adequate under federal stan-
dards where the trial court declines to charge the
proponent of the oral admission with any burden of
proof whatsoever?
3. Whether an affidavit for a search warrant which
contains serious material factual errors can survive
review since Franks v. Delaware, 438 U.S. ....., 98 S.Ct.
2674 (1978)?
3A. Whether petitioner was improperly denied “stand-
ing” to attack an affidavit for a search warrant where
the affidavit contained information from a confidential
informer . . . the confidential informer being an alleged
court authorized wiretap . . . and where the United
States Courts reported that the same wiretap was never
installed?
3B. Whether the Court of Appeals committed error in
declining to grant petitioner standing to attack an
affidavit for a search warrant where the affidavit
contained “electronic eavesdropping representations”
under the theory that petitioner was not an “aggrieved
person” as per 18 U.S.C. § 2510(11) but failed to
challenge petitioner’s standing to attack the same
affidavit as a “person aggrieved” under Rule 41(e),
Fed.R.Crim.Proc.?
_ ae
CONSTITUTIONAL PROVISIONS AND
STATUTES INVOLVED
Constitution of the United States
AMENDMENT [IV.]
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, sup-
ported by Oath or affirmation, and particularly de-
scribing the place to be searched, and the persons or
things to be seized.
AMENDMENT [V.]
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any
person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any
criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public
use, without just compensation.
AMENDMENT [VI.]
In ail criminal prosecutions, the accused shail enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
selldicn
18 U.S.C. § 2510. Definitions
As used in this chapter—
(1) “wire communication” means any communi-
cation made in whole or in part through the use of
facilities for the transmission of communications by
the aid of wire, cable, or other like connection
between the point of origin and the point of
reception furnished or operated by any person
engaged as a common carrier in providing or
operating such facilities for the transmission of
interstate or foreign communications;
(2) “oral communication” means any oral com-
munication uttered by a person exhibiting an
expectation that such communication is not subject
to interception under circumstances justifying such
expectation;
(3) “State” means any State of the United States,
the District of Columbia, the Commonwealth of
Puerto Rico, and any territory or possession of the
United States;
(4) “intercept” means the aural acquisition of the
contents of any wire or oral communication through
the use of any electronic, mechanical, or other
device.
(5) “electronic, mechanical, or other device”
means any device or apparatus which can be used
to intercept a wire or oral communication other
than—
(a) any telephone or telegraph instrument,
equipment or facility, or any component there-
of, (i) furnished to the subscriber or user by a
communications common carrier in the or-
dinary course of its business and being used by
the subscriber or user in the ordinary course of
its business; or (ii) being used by a communi-
cations common carrier in the ordinary course
of its business, or by an investigative or law
enforcement officer in the ordinary course of
his duties;
niles
(b) a hearing aid or similar device being
used to correct subnormal hearing to not better
than normal;
(6) “person” means any employee, or agent of the
United States or any State or political subdivision
thereof, and any individual, partnership, associa-
tion, joint stock company, trust, or corporation;
(7) “Investigative or law enforcement officer”
means any officer of the United States or of a State
or political subdivision thereof, who is empowered
by law to conduct investigations of or to make
arrests for offenses enumerated in this chapter, and
any attorney authorized by law to prosecute or
participate in the prosecution of such offenses;
(8) “contents”, when used with respect to any
wire or oral communication, includes any informa-
tion concerning the identity of the parties to such
communication or the existence, substance, purport,
or meaning of that communication;
(9) “Judge of competent jurisdiction” means—
(a) a judge of a United States district court
or a United States court of appeals; and
_ (b)_ a judge of any court of general criminal
jurisdiction of a State who is authorized by a
statute of that State to enter orders authorizing
interceptions of wire or oral communications;
(10) “communication common carrier” shall have
the same meaning which is given the term “com-
mon carrier” by section 153(h) of title 47 of the
United States Code; and
(11) “aggrieved person” means a person who was
a party to any intercepted wire or oral communica-
tion or a person against whom the interception was
directed.
Added Pub.L. 90-351, Title ITI, § 802, June 19, 1968, 82
Stat. 212.
<A TL ET
= =
18 U.S.C. § 3501. Admissibility of confessions
(a) In any criminal prosecution brought by the
United States cr by the District of Columbia, a
confession, as defined in subsection (e) hereof, shall be
admissible in evidence if it is voluntarily given. Before
such confession is received in evidence, the trial judge
shall, out of the presence of the jury, determine any
issue as to voluntariness. If the trial judge determines
that the confession was voluntarily made it shall be
admitted in evidence and the trial judge shall permit
the jury to hear relevant evidence on the issue of
voluntariness and shall instruct the jury to give such
weight to the confession as the jury feels it deserves
under all the circumstances.
(b) The trial judge in determining the issue of
voluntariness shall take into consideration all the
circumstances surrounding the giving of the confession,
including (1) the time elapsing between arrest and
arraignment of the defendant making the confession, if
it was made after arrest and before arraignment. (2)
whether such defendant knew the nature of the offense
with which he was charged or of which he was
suspected at the time of making the confession, (3)
whether or not such defendant was advised or knew that
he was not required to make any statement and that any
such statement could be used against him, (4) whether
or not such defendant had been advised prior to
questioning of his right to the assistance of counsel; and
(5) whether or not such defendant was without the
assistance of counsel when questioned and when giving
such confession.
The presence or absence of any of the above-mentioned
factors to be taken into consideration by the judge need
not be conclusive on the issue of voluntariness of the
confession.
(c) In any criminal prosecution by the United States
or by the District of Columbia, a confession made or
given by a person who is a defendant therein, while
such person was under arrest or other detention in the
a
custody of any law-enforcement officer or law-enforce-
ment agency, shall not be inadmissible solely because of
delay in bringing such person before a magistrate or
other officer empowered to commit persons charged
with offenses against the laws of the United States or of
the District of Columbia if such confession is found by
the trial judge to have been made voluntarily and if the
weight to be given the confession is left to the jury and
if such confession was made or given by such person
within six hours immediately following his arrest or
other detention: Provided, That the time limitation
contained in this subsection shall not apply in any case
in which the delay in bringing such person before such
magistrate or other officer beyond such six-hour period
is found by the trial judge to be reasonable considering
the means of transportation and the distance to be
traveled to the nearest available such magistrate or
other officer.
(d) Nothing contained in this section shall bar the
admission in evidence of any confession made or given
voluntarily by any person to any other person without
interrogation by anyone, or at any time at which the
person who made or gave such confession was not under
arrest or other detention.
(e) As used in this section, the term “confession”
means any confession of guilt of any criminal offense or
any self-incriminating statement made or given orally or
in writing.
Added Pub.L. 90-351, Title II, § 701(a), June 19, 82 Stat.
210, and amended Pub.L. 90-578, Title III, § 301(a) (3),
Oct. 17, 1968, 82 Stat. 1115.
_
Rule 41, Fed.R.Crim.Proc., in part, states:
Rule 41.
SEARCH AND SEIZURE
(a) Authority to Issue Warrant. A search warrant
authorized by this rule may be issued by a federal
magistrate or a judge of a state court of record within
the district wherein the property is located, upon
request of a federal law enforcement officer or an
attorney for the government.
(b) Property Which May Be Seized With a
Warrant. A warrant may be issued under this rule to
search for and seize any (1) property that constitutes
evidence of the commission of a criminal offense; or (2)
contraband, the fruits of crime, or things otherwise
criminally possessed; or (3) property designed or in-
tended for use or which is or has been used as the means
of committing a criminal offense.
(c) Issuance and Contents.
(1) Warrant upon Affidavit. A warrant other than
a warrant upon oral testimony under paragraph (2) of
this subdivision shall issue only on an affidavit or
affidavits sworn to before the federal magistrate or state
judge and establishing the grounds for issuing the
warrant. If the federal magistrate or state judge is
satisfied that grounds for the application exist or that
there is probable cause to believe that they exist, he
shall issue a warrant identifying the property and
naming or describing the person or place to be searched.
The finding of probable cause may be based upon
hearsay evidence in whole or in part. Before ruling on a
request for a warrant the federal magistrate or state
judge may require the affiant to appear personally and
may examine under oath the affiant and any witnesses
he may produce, provided that such proceeding shall be
taken down by a court reporter or recording equipment
and made part of the affidavit. The warrant shall be
directed to a civil officer of the United States authorized
to enforce or assist in enforcing any law thereof or to a
person so authorized by the President of the United
=o
States. It shall command the officer to search, within a
specified period of time not to exceed 10 days, the
person or place named for the property specified. The
warrant shall be served in the daytime, unless the
issuing authority, by appropriate provision in the
warrant, and for reasonable cause shown, authorizes its
execution at times other than daytime. It shall designate
a federal magistrate to whom it shall be returned.
(2) Warrant upon oral testimony—
(A) General Rule.—If the circumstances make
it reasonable to dispense with a written affidavit, a
Federal magistrate may issue a warrant based
upon sworn oral testimony communicated by tele-
phone or other appropriate means.
(B) Application.—The person who is requesting
the warrant shall prepare a document to be known
as a duplicate original warrant and shall read such
duplicate original warrant, verbatim, to the Fed-
eral magistrate. The Federal magistrate shall enter,
verbatim, what is so read to such a magistrate on a
document to be known as the original warrant. The
Federal magistrate may direct that the warrant be
modified.
(C) Issuance.—If the Federal magistrate is
satisfied that the circumstances are such as to make
it reasonable to dispense with a written affidavit
and that grounds for the application exist or that
there is probable cause to believe that they exist,
the Federal magistrate shall order the issuance of a
warrant by directing the person requesting the
warrant to sign the Federal magistrate’s name on
the duplicate original warrant. The Federal magis-
trate shall immediately sign the original warrant
and enter on the face of the original warrant the
exact time when the warrant was ordered to be
issued. The finding of probable cause for a warrant
upon oral testimony may be based on the same kind
of evidence as is sufficient for a warrant upon
affidavit.
(D) Recording and certification of testimony.—
When a caller informs the Federal magistrate that
the purpose of the call is to request a warrant, the
Federal magistrate shall immediately place under
oath each person whose testimony forms a basis of
the application and each person applying for that
warrant. If a voice recording device is available, the
Federal magistrate shall record by means of such
device all of the call after the caller informs the
Federal magistrate that the purpose of the call is to
request a warrant. Otherwise a stenographic or
longhand verbatim record shall be made. If a voice
recording device is used or a stenographic record
made, the Federal magistrate shall have the record
transcribed, shall certify the accuracy of the
transcription, and shall file a copy of the original
record and the transcription with the court. If a
longhand verbatim record is made, the Federal
magistrate shall file a signed copy with the court.
(E) Contents.—The contents of a warrant upon
oral testimony shall be the same as the contents of a
warrant upon affidavit.
(F) Additional rule for execution.—The person
who executes the warrant shall enter the exact time
of execution on the face of the duplicate original
warrant.
(G) Motion to suppress precluded.—Absent a
finding of bad faith, evidence obtained pursuant to
a warrant issued under this paragraph is not
subject to a motion to suppress on the ground that
the circumstances were not such as to make it
reasonable to dispense with a written affidavit.
(d) Execution and Return with Inventory. The
officer taking property under the warrant shall give to
the person from whom or from whose premises the
property was taken a copy of the warrant and a receipt
for the property taken or shall leave the copy and
receipt at the place from which the property was taken.
The return shall be made promptly and shall be accom-
panied by a written inventory of any property taken.
The Inventory shall be made in the presence of the
applicant for the warrant and the person from whose
possession or premises the property was taken, if they
are present, or in the presence of at least one credible
person other than the applicant for the warrant or the
person from whose possession or premises the property
was taken, and shall be verified by the officer. The
federal magistrate shall upon request deliver a copy of
the inventory to the person from whom or from whose
premises the property was taken and to the applicant
for the warrant.
(e) Motion for Return of Property. A person
aggrieved by an unlawful search and seizure may move
the district court for the district in which the property
was seized for the return of the property on the ground
that he is entitled to lawful possession of the property
which was illegally seized. The judge shall receive
evidence on any issue of fact necessary to the decision of
the motion. If the motion is granted the property shall
be restored and it shall not be admissible in evidence at
any hearing or trial. If a motion for return of property
is made or comes on for hearing in the district of trial
after an indictment or information is filed, it shall be
treated also as a motion to suppress under Rule 12.
(f) Motion to Suppress. A motion to suppress
evidence may be made in the court of the district of trial
as provided in Rule 12.
-— oe
STATEMENT OF THE CASE
(A)
Overview |
Herminio Cruz (hereinafter Petitioner), was indicted
for federal drug violations both in Chicago and Boston,
Massachusetts, in 1977. Petitioner stood trial in
December, 1977, in the Federal District Court in
Chicago, Illinois, and from that conviction and sentence!
[and the affirmation of same in the Court of Appeals for
the Seventh Circuit] cometh this petition. In January,
1978, after the Chicago trial petitioner was set to trial in
the Federal District Court in Massachusetts for an
offense [conspiracy under 21 U.S.C. § 846] that
petitioner claimed was .. . part and parcel... . of **e
Chicago trial. Petitioner’s pretrial motion to dismiss on
double jeopardy grounds was denied and the Court of
Appeals for the First Circuit affirmed the trial court
order, U.S. v. Cruz, 568 F.2d 781 (C.A. 1, 1978). In
March, 1978, petitioner had a “stipulated bench trial”
before the Honorable Judge Freedman in Boston and
petitioner was convicted and sentenced.? Petitioner
again sought review in the Court of Appeals for the
First Circuit and that Court affirmed petitioner’s con-
viction, U.S. v. Cruz, 594 F.2d 268 (C.A. 1, 1979). A sub-
stantial review of this case has been submitted to this
1 Petitioner, indicted in Chicago under 21 U.S.C. § 841(a)(1),
in a single count indictment [76 CR 1285] was charged wit
possessing, with intent to deliver heroin on December 16,
1976. His sentence, on conviction, was fifteen (15) vears in
custody and a $25,000 committed fine. The indictment is
reproduced in the original record at O.R. 3.
2 Fifteen (15) years in custody concurrent with the earlier
fifteen (15) year sentence imposed after the Chicago trial.
=
Court in Cruz v. U.S., cert. petition, 78-1504.° Out of
respect for brevity we shall not unnecessarily repeat
that which has been proffered the Court under cer-
tiorari petition 78-1504.
(B)
Proceedings Below
The proceedings below, insofar as they relate to the
issues and arguments raised in this petition, came forth
during a series of pretrial hearings held before the trial
judge from December 19-22, 1977. Those hearings yield-
ed the following:
(1) On December 15, 1976, DEA agents in the
Massachusetts area learned from a confidential infor-
mant that heroin was available in the Chicago area for
$28,000 per kilogram. An Eastern DEA agent learned
from the same confidential informant that a lady named
Daisy Gonzales was coming to Chicago on December 16,
1976, on a T.W.A. flight;
(2) Based upon the information from the confidential
informant Daisy Gonzales was placed under surveillance
when she arrived in Chicago during the morning hours
of December 16, 1976;
(3) The events of December, 1976, are in large part
traced directly to the affidavit for the search warrant
which is reproduced as Group Appendix C, infra.
The confidential informant whose information is par-
ticularly reproduced in paragraphs 2 and 3 of the af-
fidavit was not at all a confidential informant. . . but,
’ Petitioner sought bail pending certiorari and the motion
was conditionally denied by Justice Brennan on the repre-
sentation by the government that they would not seek
petitioner’s remandment to custody pending that petition for
certiorari.
=
rather, was an alleged operative court authorized
wiretap out of Boston, Massachusetts.‘
The pretrial hearings demonstrated that the petitioner
was arrested on private premises in Chicago at about
9:45 p.m. on December 16, 1976. The premises described
in the warrant [2514 West Haddon Street, Chicago]
were the premises searched. That is where the petitioner
was arrested. The hearings showed that upon the execu-
tion of the warrant a quantity of heroin was recovered
hidden in the basement area of the private home (O.™r.
17-27). Petitioner, under arrest, was driven to DEA
Headquarters in Chicago. This was at approximately
11:00 p.m. on December 16, 1976. The pretrial hearings
contain the testimony of several DEA agents on the
issue of petitioner’s “right to counsel”. DEA Agent
Chavez, during these pretrial hearings, testified that at
about 11:45 p.m., while Cruz was in custody and at the
DEA Headquarters the following occurred (O.Tr. 397-
401). Chavez testified as follows:
“Q. Now, is that the form which you read to the
defendant Herminio Cruz in the Spanish language
on the 16th day of December of 1976, sir?
A. It appears to be the form, yes.
Q. Now, Agent Chavez, you testified that you
then gave the form to the defendant. What if
anything did you observe him do with that form?
A. He appeared to read it.
Q. Did he say anything after doing so?
A. Yes, sir. He stated that he would not sign any
documents unless his lawyer was present.” (Tr. 401)
* * *
‘ Both the search warrant and the affidavit are found at
O.R. 9 in record 78-1257. A second record 78-2178 includes
post-verdict matters raised on direct appeal . . . but not
sie in this petition. All references to the record are 78-
only.
—! ae
“Q. In any event, did you have anything to do
with the preparation of that report?
A. I signed off on it as a group—as an acting
group supervisor.
Q. Do you find anything in the first two
paragraphs which indicates that he refused to sign
the waiver of rights form because he wanted an at-
torney?
A. No, sir. I don’t.
Q. Now, at what point in time did he refuse to
sign because he wanted an attorney, do you recall?
A. After he was advised of his rights, he was
allowed to read the statement of rights sheet.
Q. Subsequent to his refusal to execute it
because of the lack of a lawyer, Agent Jimenez then
spoke to him again?
A. That is correct.
Q. Thereafter, after Agent Jimenez spoke to him
again, some statement which the government in-
tends to introduce was actually made, is that cor-
rect!
A. That is correct.
Q. It was thereafter?
A. Yes, sir.” (Tr. 407, 408)
Ultimately, pretrial, the court declined to suppress the
oral admissions, post-arrest and while in custody. At
trial the DEA agents told the trial jury about
petitioner’s alleged post-arrest statements (O.Tr. 330-
5 The government report on the post-arrest statement is
reproduced as an Exhibit to R. 7. There is no reference to this
report to any request for counsel by Cruz.
Special Agent Peckos swore to a magistrate’s complaint
which contained the original charge against Cruz in this case
[e.g., possessing with intent to distribute a quantity of heroin
on December 16, 1976 in violation of 21 S.C. ad any.
THIS MAGISTRATE’S COMPLAINT, FILED ON -
CEMBER 17, 1976, MADE NO REFERENCE TO ANY
POST-ARREST ADMISSION OR STATEMENT BY CRUZ,
Tr. 464-465; R. 2 in original record.
==
332). The trial judge, over objection, charged the jury
as follows:
“There has been testimony to the effect that the
defendant made certain statements to the Drug En-
forcement Agents on the evening of December 16
after his arrest. The defendant denies having made
those statements. It is for you to determine whether
he made those statements and if so, whether he
made them voluntarily and understandingly. Unless
you find that the defendant did make the
statements and that he made them voluntarily and
understandingly, you should not consider the alleg-
$9) statements as evidence against him” (Tr. 388,
7
* * *
Pretrial, petitioner sought, inter alia, “standing” to
contest the eavesdropping portions of the affidavit for
the search warrant [in the affidavit the confidential in-
former is described as S B-26-0029]. The trial judge,
pretrial, declined to grant petitioner standing but
stated:
“I regard this as a substantial question and certain-
ly not one which has been raised frivolously by the
defense. It is one that is not without difficulty”. (Tr.
77)8
Likewise, the trial court, while declining to grant
petitioner “access” to the Title III materials, stated:
6 Transcript of December 30, 1977.
7 Petitioner, both pretrial and while testifying on his own
prog a making any oral confession (O.Tr. 430-35; 440-
8 December 19, 1977.
_— wen
“I am the first to say that I could well be wrong,
and I know that I will not be the final word on this
matter.” (Tr. 80)9
* * *
Pretrial, petitioner sought to impress the court with
the fact that the affiant for the warrant committed the
gross sin of offering material misrepresentations within
the affidavit for the search warrant [alternatively,
petitioner attempted to show that the affiant submitted
knowing and reckless misrepresentations to the mag-
istrate who issued the warrant during the evening
hours of December 16, 1976]. For the purposes of our
“Statement of the Case” we represent that the affidavit
for the search warrant had material flaws as follows:
(a) That on December 16, 1976 in Chicago, Illinois,
the affiant for the warrant, D.E.A. Agent Peckos, swore
to a federal magistrate in Chicago that a defendant
named Rafael Rivera went from 3561 West Belden,
Chicago to 2514 West Haddon, Chicago, and back, dur-
ing the afternoon hours of December 16, 1976;
(b) That the events just described were watched not
only by Peckos but, by several of his fellow D.E.A.
agents;!!
(c) That the entire “saga” seemingly began on the
morning of December 16, 1976 when Chicago D.E.A.
was contacted by an eastern wing of D.E.A. and advised
° December 19, 1977. Petitioner did not have the report
(App. D, infra) until during the appellate process. We surmise
that had the trial judge been advised that the government
report showed that the confidential informant “was never
installed” a different result might have flowed.
10 Peckos testimony .. . Tr. 87-106; 112-99; 282-297; 304-308.
11 Agent Scheuler . . . Tr. 247-81; 308-336; Agent Hahner...
Tr. 341-355.
=
that Rafael Rivera and Daisy Gonzales would be in
Chicago on December 16 to purchase a kilo of heroin for
$28,000.00 and that there would be six (6) kilos of heroin
available;!2
(d) That Agent Anderson of the D.E.A. in Hartford,
Conn., had learned that Daisy and Rafael were coming
to Chicago on December 16 to purchase the kilo from a
reliable informant and as it eventually turned out that
reliable informant was a wiretap on the telephone of
Rivera; |
(e) That a Chicago D.E.A. Agent (Scheuler) was
working with the affiant (Peckos) on December 16, 1976
and he had seen (during narcotic investigations) JOSE
DeLEON and he so testified on July 27, 1977 before a
federal magistrate in Chicago during a removal pro-
ceeding against Jose DeLeon;!8
(f) That within the body of the affidavit for the
warrant it is stated that Rivera went from Belden Street
to Haddon Street and back to Belden Street (carrying a
bag each time) and that thereafter Rivera left Chicago
on the same afternoon bound for an airport in the Hart-
ford area;
(g) In reality it was JOSE DeLEON who went from
Belden to Haddon and back to Belden on the afternoon
of December 16, 1976 and, further, affiant Peckos and
fellow-agent Scheuler both watched Rivera, DeLeon and
Gonzales standing together before Rivera and Gonzales
took a cab to the airport (during the afternoon of
December 16, 1976);
12 Compare paras. #2 and #3 of Group App. C, infra. Agent
Anderson is telling affiant-Peckos what he learned from the
confidential informer . . . really the wiretap!
13 An Attorney, Michael Cody, testified that PRIOR TO
DECEMBER 16, 1976, SCHEULER KNEW AND COULD
RECOGNIZE DeLEON (O.Tr. 199-209; SCHEULER
AGREES, O.Tr. 308-315).
—20—
(h) That Agent Peckos reviewed the various events
with Agent Scheuler and others before getting a
warrant and he (Peckos) was “in no hurry” because
there was plenty of time;
(i) That even after the D.E.A. agents discovered that
they had misidentified Rivera in the affidavit for the
search warrant they did nothing to call this to the atten-
tion of any court or magistrate and, in fact, only verbal-
ly reported their “error” to the U.S. Attorney. Even
further in a D.E.A. Report apparently authored on
December 28, 1976 the D.E.A. declined to identify Jose
DeLeon by name ... rather, the D.E.A. referred to
DeLeon as John Doe #1.
In addition to several agents being on surveillance all
day on December 16, 1976 they were also armed with
phoio-equipment and they took approximately thirty (30)
(or more) photos of the different persons acting out their
roles (such as they were) on December 16, 1976 in
Chicago.4 The ONLY TIME THAT PHOTOGRAPHS
WERE NOT TAKEN WAS FOR THE SHORT
PERIOD OF TIME WHEN THE MALE SUBJECT
MISIDENTIFIED AS RIVERA WENT FROM
BELDEN STREET TO HADDON STREET AND
BACK TO BELDEN STREET, EACH TIME CARRY-
ING A PAPER BAG.
At no time did the government contest the falsity of
the affidavit. Rather, the government simply opted to
explain that it was a natural mistake and that the agent
who was the affiant had nothing to gain by misinform-
ing the magistrate as to the identity of the person
entering and leaving the Haddon Street premises during
4 R. 35, 36, 39. R. 39 reflects the defense memorandum
supporting suppression; R. 35 reflects the government’s
position urging nonsuppression.
—21—
the afternoon hours of December 16, 1976. The
transcripts demonstrate that the affiant for the warrant
[Agent Peckos] and his fellow agents were well-versed in
search and seizure law (O.Tr. 260-263) and they had
been trained in surveillance and identification (O.Tr.
187-192; 308-314; 324-331; 260-263). In addition this was
not a “hurry” situation where the agents were running
about trying to get a warrant. Agent Peckos testified
that he had an Assistant U.S. Attorney helping to
prepare the warrant (O.Tr. 193) and, further, that there
was “no hurry” (O.Tr. 288). It was and is the view of the
petitioner that the DEA agents intentionally made
Rafael Rivera the person entering and leaving the Had-
don Street premises in order that they would have no
problem with the federal magistrate insofar as the
probable cause for the search warrant.
—22—
INTRODUCTION TO ARGUMENT
In Nash v. Estelle, 597 F.2d 513 (C.A. 5, 1979), (en
banc), the Court declined to grant habeas relief to a state
inmate where the sole question revolved around the
right to counsel in a post-arrest-custody setting. In part,
that decision, as may be applicable to this petition,
states:
It is clear that any attempt by an interrogator to
persuade the suspect to retract a previously voiced
request for counsel would require exclusion of the
evidence. See U.S. v. Massey, 550 F.2d 300, 308
(CA5, 1978) (“Once the privilege has been asserted
..., an interrogator must not be permitted to seek
its retraction, total or otherwise.”), quoting U.S. v.
Crisp, 485 F.2d 354, 357 (CA 7, 1970); U.S. v.
Clark, 499 F.2d 802, 807 (CA4, 1974). Attempts by
interrogators to persuade the suspect that he does
not need an attorney present are nothing more than
attempts to get the suspect to accept the untruth
that the interrogators are “acting solely in [the
suspect’s] best interest.” Miranda, 384 U.S. at 470,
86 S.Ct. 1625, 16 L.Ed.2d at 721. Such efforts were
condemned in Miranda and clearly would render
any purported waiver invalid. (597 F.2d at 524,
ft.nt. omitted)
The touchstone of our position is that this Court must
make consistent the post-arrest-custody-statement syn-
drome. In Nash v. Estelle, ante, the Court pointed out
the confusion. The Court stated:
There is some dispute over the exact content of
the government’s heavy burden. Some have argued
that the government’s burden is less stringent in
Fifth Amendment self-incrimination cases than in
Sixth Amendment right to counsel cases, such as
=
Brewer v. Williams, 480 U.S. 387, 97 S.Ct. 1232, 51
L.Ed.2d 424 (1977). See, eg., North Carolina v.
Butler, ..... USS. ....., ....., 99 S.Ct. 1755, 60 L.Ed.2d
286 (1979) (Blackmun, J., concurring); U.S. v.
Brown, 569 F.2d 236, 239 (CA5, 1978) (en banc)
(Hill, J., concurring); U.S. v. Satterfield, 558 F.2d
655 (CA2, 1976). Whether the government’s “heavy
burden” is heavier in Sixth Amendment cases than
in Fifth Amendment cases is an issue that need not
be addressed on this appeal since under any burden
of proof, even a preponderance of the evidence stan-
dard, the government is unlikely to prevail. (597
F.2d 530 at n.19)
The uncertainty of what is to happen when an accused
requests counsel [as the petitioner at bar clearly did] is
demonstrated by a later decision from the Fifth Circuit,
Thompson v. Wainwright, 601 F.2d 768 (C.A.5, 1979). In
Thompson, the Court decided that where Thompson,
while in custody requested counsel at some point during
interrogation [post-arrest-custody] . . . the later, post-
arrest confession, could not have been used as evidence
during his state homicide trial. Thus, the Court reversed
the denial of habeas relief and a majority of the Court
voted to grant the writ. The Court pointed out the confu-
sion in evaluating a “per se” interrogation rule as
follows:
In Miranda, the Supreme Court laid down what
Justice White was later to call a “per se” rule in
Michigan v. Mosley, 423 U.S. 96, 109, 96 S.Ct. 321,
46 L.Ed.2d 313 (1975) (White, J., concurring):
If the individual [being interrogated] states
that he wants an attorney, the interrogation
must cease until an attorney is present. At that
time, the individual must have an opportunity
to confer with the attorney and to have him
present during any subsequent questioning. If
the individual cannot obtain an attorney and he
indicates that he wants one before speaking to
police, they must respect his decision to remain
silent.
334 U.S. at 474, 86 S.Ct. at 1628. Nor can we ignore
the Court’s very recent decision in Fare v. Michael
Sra phand USS. ...... 99 S.Ct. 2560, 60 L.Ed.2d .....
(1979). There, in the course of deciding that a re-
quest for the presence of a probation officer rather
than a lawyer did not trigger Miranda’s rule, the
Court quoted the above passage from its decision in
that case and re-emphasized repeatedly the “rigid”
and “per se” nature of the rule. Such references dot
the opinion like raisins in a fruitcake. (601 F.2d
771, n.5)
The confusion within the Circuits is marked in Nash
v. Estelle, ante, where the Court (597 F.2d at 527) cites
no less than thirty-five (35) authorities showing conflict-
ing decisions on whether or not there is a “per se” rule
when an accused, while in custody, requests counsel.
What happens after the request should be the subject of
the “per se” rule . . . but as the conflicting decisions
demonstrate there is no such consistency in this sacred
“right to counsel” syndrome. This petition provides an
appropriate vehicle for the evaluation and perfection of
the “per se” rule . . . if the Court is to be true to the
Miranda decision.
* * * * *
The petitioner urges that the search warrant [more
properly the affidavit] is constitutionally defective in
that there are material misstatements within the af-
fidavit. To that end the petitioner urges an expansion of
the doctrine announced by the Court in Franks v.
Delaware, ..... USS. ....., 98 S.Ct. 2674 (1978). In Franks,
the Court ruled that:
; . where the defendant makes a substantial
preliminary showing that a false statement
—25—
knowingly and intentionally, [or with reckless dis-
regard for the truth,] was included by the affiant in
the warrant affidavit, and if the allegedly false
statement is necessary to the finding of probable
cause, the Fourth Amendment requires that a hear-
ing be held at the defendant’s request. In the event
that at that hearing the allegation of perjury or
[reckless disregard] is established by the defendant
by a preponderance of the evidence, and, [with the
affidavit’s false material set to one side] the af-
fidavit’s remaining content is insufficient to es-
tablish probable cause, the search warrant must be
voided and the fruits of the search excluded to the
same extent as if probable cause was lacking on the
face of the affidavit. (98 S.Ct. at 2677)
Petitioner, in this case, has clearly shown that there
were contained in the affidavit “false material” (com-
pare Franks at 2677). Petitioner urged below that the
“false material” if set to one side... would make the af-
fidavit fall beneath the probable cause requirements for
Fourth Amendment purposes. Both the trial court and
the Court of Appeals disagree. However, neither court
properly analyzed the entirety of the scenario. Trained
DEA agents felt that the private premises in Chicago on
December 16, 1976, had drugs within that house. They
had absolutely no real information placing drugs within
the house.!* Even more startling is the refusal to allow
petitioner to attack portions of the affidavit (particularly
6 At approximately 2:00 p.m. Jose DeLeon and not Rafael
Rivera entered those premises and left those premises within
ten (10) minutes. DeLeon was carrying a bag. Some six (6)
hours later Daisy Gonzales, while debarking a flight from
Chicago to Boston, was arrested and a search revealed a
similar bag — heroin. There was absolutely no
showing of any kind to demonstrate that there were any more
drugs in the private premises searched by DEA at about 9:45
p.m. on December 16, 1976. Compare the affidavit for the
search warrant reproduced at App. C, infra.
-_
pars. #2 and #3) based upon the fact that the court
below found that petitioner was without “standing” to
say that the confidential informant . . . who, in reality,
was an alleged court authorized wiretap was either
unreliable or non-existent. Reality, being what it is,
we have appended to this petition the Report of the
Administrative Office of THE UNITED STATES
COURTS. That Report shows that the confidential inform-
ant could not have been one . . . because it was never
installed (App. D, infra). In Massachusetts v. White, 436
USS. ....., 99 S.Ct. 712 (1978), this Court affirmed the
decision of the Massachusetts Supreme Court holding
that probable cause for the issuance of the search
warrant may not be established by using statements
which were taken in violation of Miranda (compare 371
N.E.2d 777 (1977).'* In juxtaposition petitioner shows
this Court an affidavit for a search warrant with con-
tains not only material misstatements but which relies
on information from a confidential informer [a court
authorized wiretap] where petitioner demonstrates that
the confidential informer doesn’t exist [U.S. Court
Report, App. D, infra]. What realistic impediment can
there be to estop the law from giving the petitioner the
right to contest the falsity of the underlying affidavit
which was used to seize the evidence in this case.
Petitioner claims that there is no such impediment. In
U.S. v. Salvucci, 599 F.2d 1094 (C.A. 1, 1979), the Court
affirmed the suppression of items seized pursuant to the
service and execution of a search warrant. The items
seized were not within either the possession or control of
the defendants. On the question of standing the court
found for the defendants but stated:
6 The decision of the Massachusetts Supreme Court re-
yoreing ne conviction was affirmed by this Court, 99 S.Ct. at
= =
Until the Supreme Court rules on this question,
we are not prepared to hold that the automatic
standing rule of Jones has been implicitly overruled
by Simmons. That is an issue which the Supreme
Court must resolve. (599 F.2d at 1098)!”
The decision in Salvucci also points up the split in cir-
cuits on the “automatic standing doctrine”. The court
points out that the First and Second Circuits along with
the Ninth Circuit seem to hold that the “automatic stand-
ing doctrine” survives while the Sixth Circuit holds to
the contrary. The Third Circuit in U.S. v. Genser, 582
F.2d 292 (C.A.3, 1978), extended the “standing doctrine”
to allow a convicted taxpayer to contest, post-conviction,
the right of the IRS to summon and seize the taxpayer’s
bank records from third persons, but see Genser v. U.S.,
Cert. Petition #79-249. Resolution of the standing ques-
tion is essential to the proper administration of criminal
justice in the federal courts.
17 In Salvucci that court questioned this court’s “standing
doctrine” citing Alderman v. U.S., 394 U.S. 165 (1969), Brown
v. U.S., 411 U.S. 223 (1973), Jones v. U.S., 362 U.S. Pod (1960),
Simmons v. U.S. 390 U. 377 (1968), Rakas v. Illinois, .....
U. re , 99 S.Ct. 421 (1978), Salvucci, 599 Ba at 1097-98
—28—
REASONS FOR GRANTING THE WRIT
Questions 1, 1A and 1B Consolidated
1. The proceedings below make clear that the petitioner
sought counsel post-arrest, and while in custody (O.Tr.
401, 407-8). It is equally clear that without counsel he was
interrogated (O.Tr. 415).
In U.S. v. Priest, 409 F.2d 491 (C.A.5, 1969), the Court
set aside an auto theft conviction [18 U.S.C. § 641] where
the question on appeal ran to the admission of an oral
post-arrest statement to an FBI agent after Priest did
not want to sign a waiver form until he consulted with
an attorney (id. at 492). The request being ignored, the
interrogation proceeded and the confession was obtained
. . . almost exactly as in the instant case. While revers-
ing the court stated:
Where there is a request for an attorney prior to
any questioning, as in this case, a finding of knowing
and intelligent waiver of the right to an attorney is
impossible. (409 F.2d at 493)
In Government of Canal Zone v. Gomez, 566 F.2d 1289
(C.A.5, 1978) the court affirmed the suppression of a
confession after the defendant, at some point during the
Miranda warnings, requested counsel (1290). The court,
while affirming, set out:
“If the [accused] states that he wants an attorney,
the interrogation must cease until an attorney is
present”, Miranda at 384 U.S. 436, 474, 86 S.Ct.
1602 at 1628 (1966).
In North Carolina v. Butler, ..... USS. ....., 99 S.Ct. 1755
(1979), this Court determined that the Supreme Court of
North Carolina erred in granting relief for Miranda
—20...
violations where that respondent did not affirmatively
request counsel. In Butler the majority stated:
“At no time did the respondent request counsel or
attempt to terminate the agent’s questioning”. (99
S.Ct. at 1756)
The situation with our petitioner is the opposite of
Butler.8 The government agents testifying during the
pretrial suppression hearings clearly articulated peti-
tioner’s request for counsel.!® Further, in Butler, the
majority pointed out that Butler offered no evidence at
the suppression hearing tending to controvert the
government agent’s statements regarding “right to the
assistance of counsel” (99 S.Ct. at 1756).
During the same term the court decided Fare v.
Michael, ..... USS. ....., 99 S.Ct. 2560 (1979). In Fare, the
Court re-emphasized the Miranda rule. The court
pointed out:
. . . If the individual states that he wants an at-
torney, the interrogation must cease until an at-
torney is present. At that time, the individual
must have an opportunity to confer with the at-
torney and to have him present during any subse-
quent questioning. If the individual cannot obtain
an attorney and he indicates that he wants one
before speaking to police, they must respect his
decision to remain silent.” Jd., at 473-474, 86 S.Ct.,
at 1627, 1628 (footnote omitted). (99 S.Ct. at 2568)
While this court in Fare cast the question in Fifth
Amendment terms (99 S.Ct. at 2569) and ultimately
18 Justices Stevens and Marshall joined Justice Brennan
dissenting, 99 S.Ct. 1759-1760.
19 Of course, the agent spoke of the request for counsel in
terms of refusing to execute the “waiver form” (O.Tr. 401-08).
Petitioner testified, both pretrial and at trial, and denied even
making the oral admissions (O.Tr. 424-443; 212-214). Thus,
petitioner’s case clearly departs from Butler.
=_
decided that for the purposes of both Miranda and the
Fifth Amendment the request for a probation officer
was not the same as for counsel (99 S.Ct. at 2569-2570)
this court did explain the role of counsel:
We thus believe it clear that the probation officer
is not in a position to offer the type of legal
assistance necessary to protect the Fifth Amend-
ment rights of an accused undergoing custodial in-
terrogation that a lawyer can offer. The Court in
Miranda recognized that “the attorney plays a vital
role in the administration of criminal justice under
our Constitution.” 384 U.S., at 481, 86 S.Ct., at
1631. It is this pivotal role of legal counsel that
justifies the per se rule established in Miranda, and
that distinguishes the request for counsel from the
request for a probation officer, a clergyman, or a
close friend. A probation officer simply is not
necessary, in the way an attorney is, for the protec-
tion of the legal rights of the accused, juvenile or
adult. (99 S.Ct. at 2570)?°
It is clear that the petitioner sought an attorney...
not a probation officer. The decision below is not only in-
correct but it conflicts with similar decisions from other
circuits. In U.S. v. Hernandez, 574 F.2d 1862 (C.A. 5,
1978), the court set aside a series of federal drug convic-
tions solely on the issue of the admission of the defen-
dant’s custodial-post-arrest statements. A pretrial hear-
ing, resulting in conflicting testimony showed that Her-
nandez, post-arrest, sought counsel prior to the making
of any statements (574 F.2d at 1366-67). The trial court
ruled the admissions admissible and Hernandez was con-
victed. On appeal, the court reversed the conviction on
* Michigan v. Mosley, 423 U.S. 96 (1975), addressed the
question of custodial statements vs. the right to remain silent,
423 U.S. at 103. Justices Brennan and Stevens joined Justice
Marshall ss in Fare. Justice Powell separately
dissented in Fare (99 S.Ct. at 2575-2577).
=
both Fifth and Sixth Amendment grounds. In pertinent
part, the Hernandez court stated:
Finally, we are confronted with the District
Court’s failure to expressly resolve the conflicting
evidence and make a clear ruling on Hernandez’s
assertion that he had simultaneously requested
counsel each time he exerted his right to remain
silent. In view of the District Court’s implicit find-
ing that Hernandez did not request counsel, a find-
ing which the evidence reasonably supports, we
do not consider appellant’s Fifth Amendment right
to counsel claim. We emphasize, however, that if it
had been determined that Hernandez indeed re-
quested counsel simultaneously with the invocation
of his right to remain silent, we would be faced
with an even more egregious situation. Denial by
authorities of an express desire for counsel is a
serious matter which affects fundamental con-
stitutional rights of the accused, and such a denial
most certainly cannot make continued interrogation
more honorable or less suspect. In any case, the
facts as found by the District Court unequivocally
demonstrate that Hernandez’s Miranda right to cut
off questioning was not scrupulously honored. (574
F.2d at 1370; ft.nt. omitted)
Within the parameters of this case footnote commen-
tary becomes important. In Hernandez, while addressing
the right to counsel, the court uttered the following:
“Although this Circuit generally has set high stan-
dards in waiver cases, it is unclear whether a
suspect may waive his once invoked right to
counsel” (574 F.2d 1370, n.16).
In U.S. v. Christian, 571 F.2d 64 (C.A. 1, 1978), the
court reversed an interstate theft conviction finding that
where Christian told the FBI agent he would talk to
him “however, I would like to talk to an attorney first”
the Fifth Amendment privilege against self-incrim-
ination under Miranda clearly precluded the oral ad-
=
missions that came after the defendant’s “request for
counsel.” The Christian court reasoned:
On the circumstances of this case, we cannot find
that there was a voluntary, knowing, intelligent
waiver. Rather, we find quite the opposite, an ex-
press refusal to waive. Appellant specifically refus-
ed to sign the waiver on the form presented to him
by the FBI. Placing his signature above the waiver
was a clear indication that he understood his rights
and was choosing to stand on them rather than
waive them. At that moment the interrogation
should have stopped. No more questions about the
case should have been asked until an express
waiver was secured. Therefore appellant’s state-
ment should not have been admitted at trial. (571
F.2d at 69; ft.nt. omitted)
In Brewer v. Williams, 430 U.S. 387 (1977), the Court
affirmed the Court of Appeals decision which had af-
firmed the granting of habeas relief on the question
of right to counsel during post-arrest custody-inter-
rogation. This Court, while affirming the granting
of habeas relief, noted . . . that Williams [the respon-
dent] was not denied Fifth Amendment protections but,
rather:
“Williams was deprived of a different constitutional
right—the right to the assistance of counsel” (430
U.S. at 398).
The Brewer decision quoted from the Court’s decision
in Michigan v. Mosley, [regarding the right to counsel]
as follows:
[T]he reasons to keep the lines of communication
between the authorities and the accused open when
the accused has chosen to make his own decisions
are not present when he indicates instead that he
wishes legal advice with respect thereto. The
authorities may then communicate with him
through an attorney. More to the point, the accused
having expressed his own view that he is not com-
iin
petent to deal with the authorities without legal ad-
vice, a later decision at the authorities’ insistence to
make a statement without counsel’s presence may
properly be viewed with skepticism.” (Brewer, 97
S.Ct. at 1243, N. 10, quoting from Mosley, 423 U.S.
at 110, N. 2).
Justice Marshall, concurring, in Brewer put the Sixth
Amendment claim as follows:
“It will be because Detective Leaming, knowing full
well that he risked reversal of Williams’ conviction,
intentionally denied Williams the right of every
American under the Sixth Amendment to have the
protective shield of a lawyer between himself and the
awesome power of the State” (430 U.S. at 408-9;
emphasis ours)
In light of the exceptional importance of the right to
counsel question it is respectfully urged that certiorari
be granted to resolve whether or not there is a “per se”
rule under Miranda as interpreted by the Court of
Appeals for the First Circuit in Christian, ante, and the
Court of Appeals for the Fifth Circuit in Priest, ante, as
opposed to the “waiver” rule announced by the Seventh
Circuit in petitioner’s case.
* * * *
2. This Court has not passed on the question of what in-
struction, if any, is appropriate under the pronouncement
of 18 U.S.C. § 3501.
The various factors which may guide a trial judge on
the admission or exclusion of a post-arrest statement are
enumerated in § 3501. The statute is silent as to what
instruction, if any, the court is obligated to give to a
trial jury in evaluating the alleged oral post-arrest
statement.
Petitioner offered a standard Devitt and Blackmar in-
struction which the court refused (O.Tr. 247-248). That
~
instruction was #11.16.2) In the petition at bar the im-
portance of a proper instruction is beyond question. The
DEA agents, searching the private premises on
December 16, 1976, found hidden in the basement a
quantity of heroin. There were nc witnesses to anything
that petitioner allegedly did with this heroin. No scien-
tific evidence [e.g., fingerprints, et seq.] tied petitioner
to this heroin. Other adults were present when the
premises were searched and the premises were owned,
in joint tenancy, as between petitioner and his estranged
spouse, Maria.”? The government produced no “indepen-
dent” evidence of petitioner’s possession of the drugs. . .
save for the controverted post-arrest oral statement. Un-
der such circumstances the Court’s decision in Schneble
v. Florida, 405 U.S. 27 (1972), provides some guidance.
Justice Rehnquist summarized the framework for
confession-harmless error by stating:
“The jurors could on no rational hypothesis have
found Schneble guilty without reliance on his con-
fession” (405 U.S. at 431-2).
So it is in the case at bar. The instruction [over objec-
tion] as given the trial jury was as follows:
“There has been testimony to the effect that the
defendant made certain statements to the Drug En-
forcement Agents on the evening of December 16
after his arrest. The defendant denies having made
those statements. It is for you to determine whether
he made those statements and if so, whether he
made them voluntarily and understandingly. Unless
you find that the defendant did make the
statements and that he made them voluntarily and
understandingly, you should not consider the alleg-
21 ~R. 53, Original record reproduced as Appendix E, infra.
2 Both petitioner and his estranged spouse were trial
witnesses. They testified that petitioner had not lived in the
nome for several months preceding the search (O.Tr. 204-6;
~~~
ed statements as evidence against him” (Tr. 388-
89).
That instruction was woefully inadequate. The in-
struction, as given, offered the jury no guidance as to
which party had the burden of proving, and by what
quantum of evidence [by what standard] that the post-
arrest oral admissions were in fact made, and if they
were, were they made knowingly, intelligently and
voluntarily. Petitioner denied both pretrial and before
the jury that he made the admissions at all (O.Tr. 212-214,
424-443) The Circuits are hardly in accord.” In U.S. v.
Holbert, 578 F.2d 128 (C.A. 5, 1978), the Court affirmed
an interstate theft conviction where the issue presented
on appeal was the nature and extent of a jury confession
instruction. While affirming the Court approved an in-
struction:
Accordingly, he instructed them that such
statements should be considered with caution and
weighed with great care and disregarded entirely
unless the evidence establishes beyond a reasonable
doubt that the statement was knowingly made. (578
F.2d at 129; emphasis ours)
It is abundantly clear that the trial judge in the case
at bar gave the jury no guidance as to whether the
proponent of the oral admission had to prove, by any
quantum of evidence, that:
23 Jury to disregard entirely unless convinced beyond a
reasonable doubt that statements or acts were voluntarily and
intentionally made: Coyote v. United States, 380 F.2d 305, 309
10th Cir. 1967, cert. denied 389 U.S. 992, 88 S.Ct. 489, 19
.Ed.2d 484; Clifton v. United States, 125 U.S.App.D.C. 257,
371 F.2d 354 (1966), cert. denied 386 U.S. 995, 87 S.Ct. 1312,
18 L.Ed.2d 341 (1967); United States v. Inman, 352 F.2d 954,
956 (4th Cir. 1965). But cf. United States v. Moriarty, 375 F.2d
901, 905 (5th Cir. 1967), cert. denied 388 U.S. 911, 87 S.Ct.
2116, 18 L.Ed.2d 1350. Contra, United States v. Doyle, 373
F.2d 875, 879-880 (2d Cir. 1967).
(a) That the admission [controverted] was knowingly
and voluntarily made;
(b) By either beyond a reasonable doubt or by a
preponderance of the evidence;
(c) And, further, there is no cautionary language
alerting the jury to be skeptical about such oral ad-
missions when they are post-arrest while the petitioner
is in custody and after a request for counsel.
The later edition of Devitt and Blackmar (Third Ed.,
1977) preface the jury instruction [approved] as follows:
§ 15.06
Evidence relating to any statement, or act or
omission, claimed to have been made or done by a
defendant outside of court, and after a crime has
been committed, should always be considered with
caution and weighed with great care; and all such
evidence should be disregarded entirely, unless the
evidence in the case convinces the jury beyond a
reasonable doubt that the statement or act or omis-
sion was knowingly made or done.
In the instant case the Court of Appeals incorrectly
summarized petitioner’s argument as follows:
At trial Cruz denied being informed of his rights at
any time, and denied admitting ownership of the
heroin. Faced with two totally conflicting versions
of the events surrounding the alleged confessiun, the
court resolved the issues of fact concerning the
voluntariness of the confession against appellant,
and found that appellant was not denied access to
an attorney. The district court correctly denied
*4 In Lego v. Twomey, 404 U.S. 477 (1972), the court found
that at least a preponderance of evidence was pocmeety prior
to —— the confession i U.S. at 484-87). Justices
Douglas and Marshall joined Justice Brennan dissenting (404
U.S. at 491-95). The thrust of the dissent was that proof
beyond a reasonable doubt was necessary for the admission of
the post-arrest statement. Neither Justice Powell nor Justice
Rehnquist considered the decision in Lego (404 U.S. at 490).
— =
appellant’s motion to suppress, and properly sub-
mitted the issue of the voluntariness of the state-
ment to the jury. (Slip Op. 4)
This Court has provided no particular guidance as to
the proper and appropriate jury instruction(s). As we
point out (N.23) the several courts considering the ques-
tion have split on whether the jury should be charged
that the government must prove beyond a reasonable
doubt, that the post-arrest statement was actually made.
Further, the courts dispute whether any instruction at
all must be given in accordance with the mandate of 18
U.S.C. § 3501. A striking example of the confusion
within the circuits is illuminated by U.S. v. Barry, 518
F.2d 342 (C.A. 2, 1975). In Barry, the Court reversed a
similar federal drug conviction where the trial court
gave only the following instruction in a case involving
post-arrest admissions:
Of course, it is not only your task and your duty,
but it is your exclusive province to determine what
the facts in the case are and, in making that deter-
mination, to consider and weigh the evidence. (518
F.2d at 347)
Barry traces the history of 18 U.S.C. § 3501 (518 F.2d
345-47) but declined to set out an appropriate instruc-
tion . . . even though reversing on the failure to give
some instruction as mandated by 18 U.S.C. § 3501(a).
Thus, we point out, respectfully, that the exceptional im-
portance of this issue makes the question appropriate for
' this court’s review. The government will concede that in
petitioner’s case absent the controverted statements(s)
. . » petitioner’s trial would have been so close so that a
judgment of acquittal at the close of the government’s
case would not have been an unlikely result.
* * *
_—
Questions 3, 3A and 3B Consolidated
3. Whether the misstatements in the affidavit for the
search warrant were of sufficient moment to compel sup-
pression.
In Franks v. Delaware, 438 U.S. ....., 98 S.Ct. 2674
(1978), this Court directed that suppression be the
answer if .. . setting aside the challenged paragraphs of
the affidavit . . . the remaining content is insufficient to
establish probable cause (98 S.Ct. at 2677). Petitioner
has demonstrated that paras #2 and #8 in this case
(Group Appendix C, infra) are seemingly false in that
the confidential informer therein described was ac-
cording to official government reports . . . not a con-
fidential informant at all ... but a non-installed elec-
tronic eavesdropping telephone tap (App. D, infra).
Further, paras #8 and #9 of the same affidavit are, by
concession, false in that the individual entering and
leaving the Haddon Street premises was not Rafael
Rivera but, rather, was Jose DeLeon. Even further the
trained DEA agents saw Rivera and DeLeon standing
together, in the daylight, during the afternoon of
December 16, 1976. Still further the agents were in no
“hurry” to prepare the affidavit for the warrant and
they had the assistance of a United States Attorney in
preparing same.” At worst the affidavit contained per-
jury. At best, the affiant’s statements to the federal
magistrate on December 16, 1976, were reckless half-
truths. We urge the Court to invoke Franks in this
federal case. In U.S. v. Esparza, 546 F.2d 841 (C.A. 9,
1976), the Court reversed a federal drug conviction find-
ing an affidavit for a search warrant insufficient.
Speaking to the constitutional question, that Court
stated:
> Our Statement of the Case, ante, delineates transcriptual
and record references as to the above representations.
wllariaa
=
“Nevertheless, an affidavit must present to the
magistrate sufficient facts to allow him _ in-
dependently to determine whether probable cause
to arrest exists. The protection of the Fourth
Amendment lies in requiring that this inquiry be
made “by a neutral and detached magistrate in-
stead of ... by the officer engaged in the often
competitive enterprise of ferreting out crime.”
Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct.
367, 369, 92 L.Ed. 436 (1948). Thus, the affidavit
must inform the magistrate of all the essential facts
with sufficient clarity to enable him to exercise his
independent judgment. United States v. Anderson,
453 F.2d 174 (9th Cir., 1971). Half-truths and mis-
representations as well as conclusory allegations can
reduce the function of a magistrate to that of a
rubber stamp upon the law enforcement officer’s
personal determination of probable cause. Cf.,
Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584,
21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S.
108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964);
Giordenello v. United States, 357 U.S. 480, 78 S.Ct.
1245, 2 L.Ed.2d 1503 (1958).” (546 F.2d at 8438, 844)
In U.S. v. Carmichael, 489 F.2d 983 (C.A. 7, 1973) (en
banc), the Court variously mandated suppression when:
“However, we conclude that if deliberate govern-
ment perjury should ever be shown, the Court need
not inquire as to the materiality of the perjury. The
fullest deterrent sanctions of the exclusionary rule
should be applied to such serious and deliberate
government wrongdoing” (489 F.2d at 989).*
Petitioner suggests that excising paragraphs 2-3 and
8-9 of the instant affidavit ... in accordance with
Franks leaves an _ insufficient Fourth Amendment
“probable cause” basis for the warrant.?’
26 Carmichael was cited with approval in Franks v. Dela-
ware, 98 S.Ct. at 2678, n. 4.
27 If a challenged affidavit is insufficient because it in-
corporated a flawed confession . .. then how can an affidavit
(Footnote continued on following page)
—40—
We further suggest that taking the affidavit as it
stands there is still insufficient probable cause. In U.S.
v. Rasor, 599 F.2d 1830 (C.A. 5, 1979), the Court set
aside a federal drug conviction where the affidavit was
in part based on an informer’s tip but where...
“the information must raise more than a reasonable
suspicion in the magistrate’s mind” (599 F.2d at
1332).
There is not a shred of independent evidence or infor-
mation which could lead to the “probable cause” that
there were drugs in the private premises searched. No
one said there was “more drugs” in that home after Jose
DeLeon [and not Rafael Rivera] left that home during
the afternoon hours of December 16, 1976. Under such
circumstances we ask this court to be alert to the type of
abuses that are visited on the “affidavit-system” by over-
zealous agents. This is such a case.
2A. The court below found that petitioner was not an
“aggrieved person”.
Thus “standing” was denied under 18 U.S.C. § 2510
(11) (Slip Op. 3, n.1). However, under Rule 41(e) of the
Fed.R.Crim.Proc., . . . petitioner was and is a “person
aggrieved” by virtue of the definitions contained in Rule
41(e).28 It borders on metaphysical to believe that consti-
tutional law can proscribe “standing” to an aggrieved
person but GRANT STANDING TO A PERSON
AGGRIEVED. A distinction absent a difference. Peti-
tioner is a citizen subjected to the vice of an arguably
improper search under both the Fourth Amendment
27 continued
survive this court’s scrutiny where the “confidential in-
formant” is_a non-installed ne . . . Massachusetts v.
White, ..... US. ....., 99 S.Ct. 712 (1978).
28 As announced by this Court in Jones v. U.S., 362 U.S. 257,
at 261-62 (1960).
oe
and Rule 41(e), Fed.R.Crim.Proc. Neither the trial court
nor the Court of Appeals challenged petitioner’s “stand-
ing” to contest the legality of the affidavit on Fourth
Amendment grounds. Yet, in a totally inconsistent
manner, both courts said that petitioner was not an
“aggrieved person”. The trial court recognizing the
dilemma ... on the question of standing stated:
“T regard this as a substantial question and certain-
ly not one which has been raised frivolously by the
defense. It is one that is not without difficulty”. (Tr.
77)
The trial court, while denying petitioner “access” to
the “Title III materials” [after denying petitioner stand-
ing to attack paras #2 and #8 of the affidavit sensitive-
ly stated:
“I am the first to say that I could well be wrong,
and I know that I will not be the final word on this
matter.” (Tr. 80)
Presumptively where the statute denies standing
unless the attacking party is “an aggrieved person” but
the rule grants standing to a “person aggrieved”. . .
then the rule and not the statute applies.”
In U.S. v. Salvucci, 599 F.2d 1094 (C.A. 1, 1979), the
Court affirmed the suppression of Articles seized pur-
suant to the execution of a search warrant. The Court
held that the affidavit failed to state sufficient probable
cause for the issuance of the warrant. However, the
- Court went further and declared that both defendants in
that case had “standing” to seek suppression even
though the articles seized were in an apartment where
at least one of the defendants had no nexus. In Salvucci,
the Court granted both defendants standing to object as
follows:
In Jones, the Supreme Court held that a defendant
has automatic standing to challenge the legality of a
29 Rule 41 v. 18 U.S.C. § 2510(11).
ad
—
search or seizure if charged with a crime that in-
cludes, as an essential element of the offense charg-
ed, possession of the seized evidence at the time of
the contested search and seizure. The Court offered
a twofold rationale in support of this rule: (1) the
unfairness of requiring the defendant to assert a
proprietary or possessory interest in the premises
searched or the items seized when his statements
could later be used at trial to prove a crime of
possession; and (2) the vice of prosecutorial self-
contradiction, that is, allowing the Government to
allege possession as part of the crime charged, and
yet deny that there was possession sufficient for
standing purposes. Jd. at 261-65, 80 S.Ct. 725;
Brown v. United States, supra 411 U.S. at 229, 93
S.Ct. 1565. (599 F.2d at 1097) )
The Salvucci Court attempted to delineate the “stand-
ing dilemma” but declined to offer total resolution.
Rather, the Court while recognizing both the dilemma
and the split of authority left the questions of standing
to the further resolution of this court as follows:
The Supreme Court itself has questioned, but unfor-
tunately not decided, whether the second prong of
the Jones rationale, prosecutorial self-contradiction,
alone justifies the continued vitality of the doctrine
of automatic standing. See Rakas v. Illinois, supra
ain USS. at ....., n.4, 99 S.Ct. 421; Brown v. United
States, supra, 411 U.S. at 228, 229, 93 S.Ct. 1565.
Since the Supreme Court first questioned the vitali-
ty of this doctrine in Brown, there has been a split
of authority as to whether the doctrine survives.
Compare United States v. Riquelmy, 572 F.2d 947,
950-51 (2d Cir. 1978), and United States v. Boston,
510 F.2d 35, 37-38 (9th Cir. 1974), cert. denied, 421
U.S. 990, 95 S.Ct. 1994, 44 L.Ed.2d 480 (1975) (doc-
trine survives) with United States v. Delguyd, 542
F.2d 346, 350 (6th Cir. 1976) (doctrine does not sur-
vive). Until the Supreme Court rules on this ques-
tion, we are not prepared to hold that the automatic
standing rule of Jones has been implicitly overruled
oe
i ~
a a TEN a te
=
by Simmons. That is an issue which the Supreme
Court must resolve. (599 F.2d at 1097-98, emphasis
ours)
In U.S. v. Mazzelli, 595 F.2d 1157 (C.A. 9, 1979), the
Court affirmed suppression of drugs found in a suitcase
where the singular question presented related to the
standing of the non-possessory defendant to seek sup-
pression of the drugs found in that suitcase. The majori-
ty of the Mazzelli Court held that the non-possessory
defendant had standing and affirmed the suppression
stating:
The Supreme Court’s latest discussion of standing
to suppress the fruits of an unlawful search and
seizure is found in Rakas v. Illinois, ..... SINS iscise OO
S.Ct. 421, 58 L.Ed.2d 387 (1978). That case reex-
amined the second portion of Jones dealing with
standing based on an interest in the premises
searched and the standards that should apply in
such cases. However, in substance it reaffirmed the
proposition recognized in Jones that a possessory in-
terest in that which was seized confers standing.
The court first emphasizes the failure of the
petitioner to assert a claim of ownership over the
items seized ..... USS. at ....., n.1, 99 S.Ct. 421. To us
this implicitly recognizes that a possessory interest
in the evidence seized confers standing to challenge
the seizure. This implicit recognition is later ex-
plicitly noted. After suggesting that a “casual
visito:” should not be able to contest the lawfulness
of a search, the Court states: “This is not to say that
such visitors could not contest the lawfulness of the
seizure of evidence or the search if their own
property were seized during the search.” 7d. at .....,
99 S.Ct. at 430. (595 F.2d at 1160)%
30 Judge Bonsal, dissenting in Mazzelli, urged that, in
combination, Alderman v. U.S., 394 U.S. 165 (1969) and
Rakas v. Illinois, ante, must be interpreted to deny standing
to the non-possessory defendant.
Within the parameters of this question (consolidated
Question 3) we have hopefully demonstrated the excep-
tional importance of this argument. It is inconsistent, if
not impossible, to believe that this court has ever intend-
ed that a person charged with a possessory offense can-
not be an “aggrieved person” for the purpose of allowing
that defendant to attack a search warrant/affidavit
which has not only material misrepresentations but,
also, reference to a confidential informant ... that
happens to be an electronic eavesdropping device(s)
which the report from the United States Court Commis-
sion finds was never installed.
CONCLUSION
In light of the exceptional importance of each of the
questions presented within this petition it is respectfully
prayed that this petition for writ of certiorari be
granted and that this court reverse the conviction and
sentence and remand this case for a new trial or, indict-
ment dismissal under this Court’s supervisory powers,
28 U.S.C. § 2106.
Respectfully submitted,
ALLAN A. ACKERMAN, ESQ.
100 North LaSalle Street
Suite 611
Chicago, Illinois 60602
(312) 332-2863
Attorney for Petitioner,
Herminio Cruz.
APPENDICES :
a
GROUP APPENDIX A—Decision below, U.S. ». Cruz,
poids F.2d ..... (C.A. 7, 1979).
APPENDIX B—Order denying rehearing dated Octo-
ber 2, 1979. x
GROUP APPENDIX C—Search warrant and affidavit
used by the D.E.A. to search private premises in
Chicago at about 9:45 p.m. on Decerhber 16, 1976.
GROUP APPENDIX D—REPORT OF THE DIREC-
TOR OF THE ADMINISTRATIVE OFFICE OF
THE UNITED STATES COURTS on Applications
for Orders Authorizing or Approving the Inter-
ception of Wire or Oral Communications. This
report shows that the wiretap was “NI” meaning
“never installed”,
APPENDIX E—R. 53 original record.
—la—
GROUP APPENDIX A
in the
United States Court of Appeals
For the Seventh Cirrnit
Nos. 78-1257, 78-2178
UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
HERMINIO CRUZ,
Defendant-A ppellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 76-CR 1285-1—John F. Grady, Judge.
ARGUED APRIL 5, 1979—DECIDED AUGUST 17, 1979
Before PELL and BAUER, Circuit Judges, and HOFF-
MAN,* Senior District Judge.
PER CURIAM. Appellant Herminio Cruz was charged
in a single-count indictment with possession with intent
to distribute approximately nine pounds of a mixture
containing heroin, in violation of Title 21, United States
Code, § 841(a)(1). The jury returned a verdict of guilty.
Cruz was fined $25,000 and sentenced to fifteen years in
custody of the Attorney General of the United
tates.
* The Honorable Walter E. Hoffman, Senior United States
District Judge, Eastern District of Virginia, sitting by
designation.
—2a—
The seizure of the heroin resulted from the execution
of a warrant directing the search of a residence owned
by Cruz. Evidence introduced at trial indicated that
Cruz’s estranged wife and their children lived in the
building, and that Cruz occupied a first floor bedroom
in which he kept clothing and other personal effects.
During the search a brown paper bag containing
$29,000 in cash was found on the bed in the first floor
bedroom. A small scale and a coffee grinder which
contained traces of heroin were found in the kitchen.
The heroin was discovered hidden in the hollow portions
of a cinder block wall in the basement. Cruz was present
at the time of the search. After being arrested and
transported to the headquarters of the Drug Enforce-
ment Agency, Cruz allegedly admitted that the heroin
found in the basement was his, and further stated that
he had obtained the heroin from a Mexican male known
variously as “Chencho” and “E] Colorado”. At trial Cruz
denied admitting that the heroin was his and contended
that he was not informed of his rights after his arrest.
DEA agents testified that Cruz was informed of his
rights during his transportation to headquarters, and
also during the processing of his arrest prior to
questioning by the agents.
Following his conviction Cruz filed several post-trial
motions, alleging that the deputy marshal in charge of
the jury during its deliberations had made improper
comments to the jurors concerning the jury instructions,
and alleging that the heroin introduced into evidence at
trial was taken into the jury room in violation of the
court’s order. Three jurors selected at random and the
deputy marshal were deposed concerning these allega-
cig ey court subsequently denied appellant’s motions
or relief.
Appellant raises five areas in which it is alleged that
error occurred during trial: (1) the denial of appellant’s
motion to quash the search warrant; (2) the admission of
appellant’s alleged confession into evidence; (3) the
nature of the reasonable doubt instruction to the jury;
(4) the nature of the prosecutor’s closing argument; and
(5) the denial of the post-trial motions. We find
—3sa—
appellant’s contentions to be without merit, and accord-
ingly affirm the conviction.
The search warrant executed on appellant’s residence
was issued in reliance on the affidavit of one of the
agents invoived in the investigation. The affidavit
thoroughly detailed the progress of the overall con-
spiracy investigation, which began on the east coast,
moved to Chicago, and culminated in an arrest in the
Hartford, Connecticut airport and the recovery of a
kilogram of heroin. That portion of the affidavit
material to establishing probable cause to search the
Cruz residence misidentified the individual who drove to
the residence to pick up the heroin which was later
recovered in Hartford. That mistake in identity was
understandable under the circumstances and was not
material to the determination of probable cause. The
facts do not support the appellant’s contention that the
misstatement in the affidavit was reckless or inten-
tionally untruthful. The district court properly denied
appellant’s motion to quash the search warrant.!
At the time appellant was processed following his
arrest he refused to sign a printed form waiving his
right to remain silent and his right to counsel. In effect
he argues that this renders any communication made by
him at that time an involuntary communication. Most
recently the Supreme Court has held that, while an
express written or oral statement of waiver is usually
strong proof of the validity of that waiver, it is not
inevitably either necessary or sufficient to establish
waiver. North Carolina v. Butler, ..... US. ....., 47 L.W.
4454, 4455 (April 24, 1979). Thus, a refusal to sign a
waiver form is a relevant factor in determining whether
an individual knowingly and intelligently waived his
privilege, but it is not a controlling one. United States v.
Gardner, 516 F.2d 334, 341 (7th Cir. 1975). Prior to
questioning Cruz a government agent purportedly in-
' A wiretap involved in the investigation on the east coast
was totally immaterial to the search of Cruz’s residence
Furthermore, Cruz was not a party to an _ intercepted
conversation or a person against whom the interception was
directed, as defined in Title 18 U.S.C. § 2510(11).
—4da—
formed him of his rights in Spanish, asked him if he
understood his rights, and handed him the waiver form.
Cruz refused to sign the waiver unless his lawyer was
present. Thereupon the agents advised him that they
would like to ask him some questions, that he was
entitled to have his lawyer present, that he did not have
to answer any questions unless his lawyer was present,
and that he could stop the questioning at any time for
the purpose of consulting with an attorney.? At that time
Cruz was asked about the heroin found in his home, and,
according to the agents’ testimony, admitted it was his.
At trial Cruz denied being informed of his rights at any
time, and denied admitting ownership of the heroin.
Faced with two totally conflicting versions of the events
surrounding the alleged confession, the court resolved
the issues of fact concerning the voluntariness of the
confession against appellant, and found that appellant
was not denied access to an attorney. The district court
correctly denied appellant’s motion to suppress, and
properly submitted the issue of the voluntariness of the
statement to the jury.
This circuit has described the giving of a reasonable
doubt instruction as “playing with fire,” and has
expressed strong reservations about whether such in-
struction should be given at all in light of the difficulty
in defining reasonable doubt. United States v. Shaffner,
524 F.2d 1021, 1023 (7th Cir. 1975). Be that as it may,
the instruction given by the court in the case at bar was
without error. The instruction essentially defined rea-
sonable doubt as “a doubt founded on reason,” a doubt
that is not “purely speculative.” The court properly
refused to add a “two hypotheses” instruction, since such
an instruction is usually reserved for a case bottomed on
purely circumstantial evidence. United States v. Shaff-
ner, supra.
2 In North Carolina v. Butler, supra, the respondent, who
ssessed an eleventh grade education, was handed an
‘Advice of Rights” form which he read and refused to sign.
He was told that he need neither speak nor sign the form, but
that the agents would like him to talk to them. The
respondent replied that he would talk but would not sign any
form. He then proceeded to make inculpatory statements.
a ttn tS Stee 1 DE Bas
—ja—
Appellant contends that the government offered a
series of facts not in evidence in that part of its closing
argument which focused on appellant’s alleged con-
struction and control of the cache where the heroin was
discovered. There were at least some facts in evidence
which would provide a basis for the government’s
argument. The appellant made no objection to these
statements either during or after the argument. The
statements do not provide grounds for reversal.
Finally, it is urged that the court erred when it denied
appellant’s motions for a new trial. It is alleged that the
deputy marshal delivered the instructions to the jury,
pointed to the instruction which listed the elements of
the crime charged, and stated words to the effect that
“here is the main thing an are to consider that the
judge = read to you.” The only evidence to support
this allegation is a statement purportedly made by the
foreman of the jury in a telephone conversation with the
United States attorney, a statement which the foreman
could not remember making when he was deposed two
months later. After reviewing the evidence the district
court held that it was highly unlikely that the deputy
marshal made the alleged statement to the jury. The
appellant also alleged that the heroin introduced into
evidence at trial was improperly taken into the jury
room when the jury retired to deliberate. The only
evidence to support this allegation was testimony of the
deputy marshal and one of the jurors. The DEA agent in
charge of the heroin exhibit testified categorically that
the heroin was in his custody at all times and that it was
not taken into the jury room.‘ Assuming arguendo that
the heroin was taken into the jury room, the court held
that there could have been no possible prejudice to the
appellant. The fact that a given quantity of heroin was
8 Two other jurors who were deposed had no recollection of
the deputy marshal making this statement, and the deputy
marshal denied making the statement.
4 The foreman of the jury and the other juror who was
deposed had no recollection of the heroin being in the jury
room. The court made a finding of fact that the heroin exhibit
was never taken into the jury room.
—6ba—
seized from appellant’s residence was never in issue in
this case, and there were no prejudicial markings on the
exhibits themselves. We find that the district court
properly denied appellant’s post-trial! motions.
The conviction of the appellant is affirmed.
AFFIRMED
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
5 We were told in argument that Cruz was also tried in the
District of Massachusetts on a conspiracy to distribute heroin
in violation of 21 U.S.C. § 846. In ap roceedings in
Massachusetts, Cruz raised the double jeopardy question by
reason of his being convicted “in another district” [Northern
District of Illinois] of possession of heroin with intent to
distribute in violation of 21 U.S.C. § 841(a)(1) on the basis of
the same conduct underlying the indictment in Massachusetts.
In United States of America v. Herminio Cruz, 586 F.2d 781
(1 Cir. 1978), the court affirmed the action of the District
Court in denying the motion to dismiss on double jeopardy
ounds. Cruz was represented in the United States Court of
ing for the First Circuit by the same counsel appearing
ve ore us. We agree with the conclusions reached by the First
ircuit.
+ hiked Denia ancl”
—fa—
APPENDIX B
UNITED STATES COUR' OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
October 2, 1979.
Before
Hon. Wilbur F. Pell, Circuit Judge
Hon. William J. Bauer, Circuit Judge
Hon. Walter E. Hoffman, Senior District Judge*
United States Of America,
Plaintiff-Appellee,
Nos. 78-1257, 78-2178 vs.
Herminio Cruz,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Kastern Division.
No. 76-CR-1285-7—John F. Grady, Judge.
On consideration of the petition for rehearing and sug-
gestion for rehearing en banc filed in the above-entitled
cause by Herminio Cruz, defendant-appellant, no judge in
active service has requested a vote thereon, and all of the
judges on the original panel have voted to deny a rehear-
ing. Accordingly,
It Is Ordered that the aforesaid petition for rehearing
be, and the same is hereby, Denied.
— 8a—
GROUP APPENDIX C
UNITED STATES DISTRICT COURT
For The
Northern District of Illinois, Eastern Division
Magistrate’s Docket No. ....................
Case No. 76M247
United States of America
VS.
Single family dwelling, 2514 West Haddon
Avenue, Chicago, Illinois
(see below for description).
AFFIDAVIT F‘or SEARCH WARRANT
Before James T. Balog, 219 South Dearborn Street, Chi-
cago, Illinois.
The undersigned being duly sworn deposes and says:
That he (has reason to believe) that (on the premises
known as) the two story residence with basement, the sev-
enth building west of Campbell Avenue, on the north side
of Haddon Avenue, facing in a southerly direction, which
building is covered with brown and yellow simulated brick
siding, having three red awnings with blue trim on the front
thereof, said building having concrete stairs curving and
rising to aluminum and wooden doors entering the front
of said building, having a peaked, green shingle roof, com-
monly known as 2514 West Haddon, Chicago, in the North-
ern District of Illinois, Eastern Division, there is now be-
ing concealed certain property, namely heroin and other
controlled substances, United States Currency, weighing
scales, packaging materials, books, papers and documents
a IES te SANs ig BE AERO Nien te 4 Chk eel.
Cet at ae Oi ate lla Bind Bia RA Yi a a
—9Jaq—
relating to narcotics distribution, which are contraband,
fruits, instrumentalities and evidence relating to the crime
of possession with intent to distribute and distribution of
controlled substances; in violation of Title 21, United States
Code, Section 84-1(a) (1).
And that the facts tending to establish the foregoing
grounds for issuance of a Search Warrant are as follows:
(See attached affidavit)
Additional affidavit suppressed.
/s/ Joseph P. Peckos
Special Agent,
Drug Enforcement Administration
Sworn to before me and subscribed in my presence, De-
cember 16, 1976.
/s/ James T. Balog
United States Magistrate
76M247
December 1(5, 1976
State of Illinois
County of Cook—ss:
AFFIDAVIT
Joseph P. Peckos, Special Agent, Drug Enforcement Ad-
ministration, being duly sworn on oath, deposes and states:
1. Affiant has been an agent of the Drug Enforcement
Administration for five (5) years during which time he
has engaged in numerous investigations relating to vio-
lations of federal drug laws, including but not limited to
those proscribing possession with intent to distribute and
distribution of controlled substances.
2. On this date December 16, 1976, affiant was informed
by Drug Enforcement Administration (DEA) Special
Agent Harold Anderson that a Confidential Informant of
—10a—
the Hartford, Connecticut Office of DEA assigned num-
ber 5826-0029 informed Agent Anderson that on December
15, 1976 Rafael Kercado-Rivera was informed that six
(6) kilograms of heroin were available in Chicago, Illi-
nois at $28,000 per kilogram.
3 Agent Anderson further informed affiant that the con-
fidential informant learned that Daisy Gonzales made
reservations to fly to Chicago, Illinois on December 16,
1976 on Trans World Airlines, flight number 175 arriving
at Chicago O’Hare International Airport at 11:00 a.m.
C.S.T.
4. Affiant has been further informed that DEA agents
observed Daisy Gonzales leave her home in Holyoke, Mas-
sachusetts during the morning hours of December 16, 1976
and travel to Bradley Field, Hartford, Connecticut where
she was observed boarding flight number 175 of Trans
World Airlines carrying a tan leather Escort suitcase and
wearing black slacks, black turtleneck sweater, black cap
and a white coat.
5. Affiant has been informed by Special Agent Robert
Scheuler that he observed Daisy Gonzales arrive at Chi-
cago O’Hare International Airport on Trans World Air-
lines flight number 175 at 11:00 a.m. C.S.T. Daisy Gonzales
was observed to take a taxi to the Taco Loco Restaurant,
1601 North Western Avenue, Chicago, which she entered
carrying the tan leather Escort suitcase.
6 Agent Scheuler further informed affiant that at approxi-
mately 12:15 p.m., an individual identified as Rafael Ker-
ecado-Rivera met with Daisy Gonzales at the Taco Loco
Restaurant. Agent Harold Anderson further informed af-
fiant that United Airlines manifests reflected that pas-
senger ‘‘R. Rivera’’ travelled on flight 123 from Bradley
International Airport, Hartford, Connecticut arriving at
Chicago O’Hare International Airport at 7:45 a.m. C.S.T.
7. At approximately 12:45 p.m. DEA agents observed
Rafael Kercado-Rivera and Daisy Gonzales leave the Taco
ee a ee RA ee ae Pe Oe he ors ae
eee
—lla—
Loco Restaurant carrying the tan leather Escort suitcase,
enter an automobile and drive to 3561 West Belden, Chi-
cago where they entered at approximately 1:00 p.m. Rafael
Kercado-Rivera was observed carrying the tan leather suit-
case into the residence at the aforementioned address by
Agent Scheuler.
8. At 1:30 pm. DEA agents observed Rafael Kercado-
Rivera leave 3561 West Belden carrying a brown paper bag,
enter an automobile and drive to the two story brown and
yellow residence at 2514 West Haddon, Chicago which resi-
dence Rafael Kercado-Rivera entered through the front
door carrying the aforementioned brown paper bag.
9. At approximately 2:05 p.m. Agent Scheuler observed
Rafael Kercado-Rivera leave the residence at 2514 West
Haddon, Chicago carrying a white paper bag which he
placed on the floor of the back seat of the vehicle he en-
tered. Kercado-Rivera was then followed to the rear of
3561 West Belden where he was observed to park the auto-
mobile in the garage.
10. At approximately 2:25 p.m. Agent Scheuler observed
Daisy Gonzales, Rafael Kercado-Riverr end an unknown
male drive from the alley behind 3561 West Belden to the
intersection of Leavitt and Milwaukee Avenue, Chicago
where Daisy Gonzales and Rafael Kercado-Rivera left their
vehicle and entered a taxicab. Rafael Kercado-Rivera was
observed carrying the tan leather suitcase.
11. The taxi was followed to O’Hare International Airport
where affiant observed Daisy Gonzales purchase a ticket to
Hartford, Connecticut on Trans World Airlines flight 82.
Daisy Gonzales checked the tan Escort leather suitcase to
which was affixed baggage Claim number 229767 and
boarded flight 82. Rafael Kercado-Rivera was also ob-
served boarding flight 82. Daisy Gonzales was wearing a
tan leather coat, a white cap and black slacks and had
long blond hair.
—13a—
GROUP APPENDIX D
—12a—
4
12. Affiant was informed at 7:45 p.m. that DEA Group | 3 q :
Supervisor Edward Noon arrested Daisy Gonzales in pos- i 3 ii] ' aps
session of a tan leather Escort suitcase at Hartford, Con- | F H
necticut. A search of said suitcase revealed a white paper : Ss ah cae ae ATV NES: Ps oe ae
bag containing approximately one kilogram of a brown l] ak over na es eee are ae t
powdery substance. Special Agent Sloboda conducted a field j 33 : =}
test on said substance and observed a positive reaction for 3 ifs 7? 8 .e 8 #20 38 RE 3 |
an opiate. The white bag bore the address 1443 N. Wells, | h . . ie i
Old Town, Chicago. t Je ef : . ; ; § i ‘ a ap e : iif
13. Affiant has personally observed the premises described ‘ i { | ttt ae, ses 2 8 ze 8% §° li
above and commonly known as 2514 West Haddon Avenue, ) 3 8 ls . ” 98:
Chicago, Illinois. sf i i 53 3 8 oe § Si 0 £8 4% 91 i
/s/ Joseph P. Peckos H . : , . = : ; - ‘i
Special Agent, vs . | i ht $2 g & 2 3 s° 3 8 S28 & iit
Drug Enforcement Administration ; < i fi es se * g2 28 “ae @ 82 £8 3g “I
] 9 7 = a s3 3
Subscribed and sworn to before me | § F be it Dade Pasi vile 7s S99 ii ]
, | RS day of December 1976. | EF [ TH Tey &< ser eae tae eee
Gos at aes : hi} 22 8 get e282 & 22 2 RR RR B }
' | 2 ££ 83 ee eR SS a a 2 or es {
A Pope TLR] Gbiadl Git tbe btape
FFIDAVIT ao . 3 "|
: $< a ° <0 « can 2s ee a
Joseph P. Peckos, DEA Special Agent being first duly | ; : : ; go fh oj :
sworn on oath, deposes and states as follows: | 1 he ee & sey ff 28 ergrgirgrer r cf
Hartford, Connecticut DEA confidential informant number : j H i fF fF H
SB 26-0029 is a court authorized wire tap which is still in i 3] | i F | H : i nt { ; i oe |
operation on this date. 2 90 3 . 3° oe > gehe tet
p | il rai iil iid Waiid i ade}
/s/ Joseph P. Peckos . GHG TH Gaba da a di bilig
Special Agent, i;
Drug Enforcement Administration | i} i | }
Subscribed and sworn to before me ‘ 353 zs | iy 3 | eis. !
ee day of December 1976. i H |
V2 TCE Ped di iit
a AiG AH idd aoofe ddd da be
i i dee ead a: 3 #2 8 88 $s 3 ERS
|
3 -6-
—l4a—
APPENDIX E
$11.16 Extra Judicial Statements or Conduct—
Generally
Evidence relating to any statement, or act or omission,
claimed to have been made or done by a defendant outside
of court, or after a crime has been committed, should al-
ways be considered with caution and weighed with great
care; and all such evidence should be disregarded entirely,
unless the evidence in the case convinces the jury beyond a
reasonable doubt that the statement or act or omission was
knowingly made or done.
A statement or act or omission is ‘‘knowingly’’ made
or done, if done voluntarily and intentionally, and not be-
cause of mistake or accident or other innocent reason.
In determining whether any statement or act or omis-
sion claimed to have been made by a defendant outside of
court, and after a crime has been committed, was knowingly
made or done, the jury should consider the age, sex, train-
ing, education, occupation, and physical and mental condi-
tion of the defendant, and his treatment while in custody
or under interrogation, as shown by the evidence in the
case; and also all other circumstances in evidence surround-
ing the making of the statement or act or omission, in-
cluding whether, before the statement or act or omission
was made or done, the defendant knew or had been told
and understood that he was not obligated or required to
make or do the statement or act or omission claimed to
have been made or done by him; that any statement or act
or omission which he might make or do could be used
against him in court; that he was entitled to the assistance
of counsel before making any statement, either oral or in
writing, or before doing any act or omission; and that if
he was without money or means to retain counsel of his
ba ee en wey ee
—15a—
own choice, an attorney would be appointed to advise and
represent him free of cost or obligation.
If the evidence in the case does not convince beyond a
reasonable doubt that a confession was made voluntarily
and intentionally you should disregard it entirely. On the
other hand, if the evidence in the case does show beyond
a reasonable doubt that a confession was in fact voluntarily
and intentionally made by a defendant, you may consider
it as evidence in the case against the defendant who volun-
tarily and intentionally made the confession.
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.