Petition — DiPalermo v. United States

[MISHAP pOsAY. JR., CLERK

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IN THE

Supreme Cowt of the United States

OCTOBER TERM, 1979

No. 9-815

JOSEPH DiPALERMO,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Saxe, Bacon & Botan, P.C.

Attorneys for Petitioner

Joseph DiPalermo

39 East 68th Street

New York, New York 10021

(212) 472-1400

Roy M. Coun

MicHaEL Rosen

Of Counsel

et erecta e iden

TABLE OF CONTENTS

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Reasons for Granting the Writ ................05. 6

ARGUMENT:

Point I—The Pre-Trial Photographie Identifica-

tion Procedure Leading to the Eyewitness

Identification of Petitioner at Trial Was So Im-

permissibly Suggestive as to Give Rise to a Very

Substantial Likelihood of Irreparable Misidenti-

eee ca iain wk ca dbveh sere oss 8

Pornt I]—Petitioner’s Conviction Was Based on

the Tainted Eyewitness Identification at Trial .. 16

Point I1J—The Decision Below, Sanctioning Sen-

tencing Proceedings in Which Petitioner Was

Not Allowed to Cross-Examine Anonymuus In-

formants and Was Denied Access to “Jencks

3500” Materials, Constitutes a Denial of Peti-

tioner’s Due Process Rights ................6. 18

DL ye enddaees 18

li

TABLE OF CrraTIONS

PAGE

Jackson v. Fogg, 589 F.2d 108 (2nd Cir. 1978) ..... 16

Manson v. Brathwaite, 432 U.S. 98 SNOWED ccawkat cs 12

Neil v. Biggers, 409 U.S. 188 ts) Seer 12, 13, 15, 16

Simmons v. United States, 390 U.S. 377 (2006) 55... 11

United States v. Wade, 388 U.S. 218 LEER alse ek nics 13

United States v. DeFillipo, 590 F.2d 1288 (2nd Cir.

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Statutes Cited

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WF ON NI es oe ke i eyka s Sov Calehav eeu 2

Miscellaneous

P. Wall, Eye-Witness Identification in Criminal Cases 21

Appendix

Appenpix “A”—Decision ........................ la

Aprenpix “B”—Order ............0..0.0000000... lla

Appenpix “C”—Photographic NE icky vant, 13a

pee we i ne AES fee ent ti. APL na.

IN THE

Supreme Court of the United States

October Term, 1979

No.

a

bi

JOSEPH D1PALERMO,

Petitioner,

Vs.

Unitep States oF AMERICA,

Respondent.

a

v

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner, Joseph DiPalermo, respectfully prays that a

Writ of Certiorari issue to review the judgment of the

United States Court of Appeals for the Second Circuit

entered in this proceeding on August 21, 1979.

Opinion Below

The opinion of the Court of Appeals has not yet been

reported. The opinion appears in Appendix “A”, infra,

p. la.

Jurisdiction

The judgment of the Court of Appeals was entered on

August 21, 1979. A timely petition for rehearing en banc was

denied on October 25, 1979. (Appendix “B”, infra, p. ila.)

This petition was timely filed on or before November 24,

1979. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

Questions Presented

1. Has petitioner been deprived of liberty without due

process of law by reason of the fact that the pre-trial pro-

cedure leading to the eyewitness identification of ere

at trial was so impermissibly suggestive as to give rise to

a very substanti ikeli . ous .

ie y stantial likelihood of irreparable misidentifica-

2. Was petitioner’s conviction based upon the tainted

eyewitness identification at trial;

3. Does the decision below, sanctioning sentencin

ceedings in which iti : Pit

ng ich petitioner was not allowed to cross-

examine anonymous informants and was denied access to

“Jencks 3500” materials, consti :

, constitute a denial of ’

due process rights. petitioner’s

Statutory Provisions Involved

Title 28, United States Code, section 846 provides:

“Any person who attem i

pts or conspires to commit

any offense defined in this subchapter is punishable

by imprisonment or fine or both which may not ex-

ceed the maximum punishment prescribed for the

offense the @ommission of which j

was the ob

the attempt or conspiracy.” ailces

‘Title 28, United States Code, section 841 provides:

“(a) except as authorized by this subchapter, it

shall be unlawful for any per " . ;

tentionally ... y person knowingly or in-

(1) to manufacture, distri i

man’ , ibute or dispense, or

possess with intent to manufacture, distribute or

dispense, a controlled substance . . .”

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> se nel Cin tins RE ln A

Statement of Facts

Petitioner, Joseph DiPalermo, was charged, along with

Salvatore Lombardi, George Gillette, William Romano and

Alan Kassebaum, with a conspiracy, during the period

May 5, 1977 through December 8, 1977, to knowingly and

intentionally manufacture, distribute and possess, with in-

tent to distribute, quantities of methaqualone (“Quaa-

ludes”), a Schedule II, non-narcotic, controlled substance.

1. The Facts Adduced at Trial

At trial, the government’s chief witness was Vincent

Marchese, a paid informant for the Drug Enforcement Ad-

ministration (“DEA”). Marchese testified that Gillette, a

former business associate, approached him in April, 1977

for help in purchasing chemicals for a friend named Her-

man* who needed them to manufacture Quaaludes.

Soon thereafter Marchese (with the help of the DEA)

and Gillette procured the needed chemicals, and transported

them to a warehouse in Elizabeth, New Jersey.

On October 18, 1977, DEA agents observed DiPalermo

meet Gillette at Catherine and Monroe Streets in lower

Manhattan. DiPalermo lives on Monroe Street. One of the

DEA agents, in a “walk-by,” overheard DiPalermo say to

Gillette, “It’s a lot of money,” to which Gillette replied,

“T know it’s a lot of money, that’s why you’ve got to

straighten it out.” The agent did not know what was being

discussed. The agent followed DiPalermo to the downtown

Diamond Exchange after the conversation.

On October 26, 1977, the same DEA agent, again at

Catherine and Monroe Streets, overheard DiPalermo say

to Gillette, “This is what you do.”

* The government contended that “Herman” was an alias for

Salvatore Lombardi.

On October 31, 1977, Marchese and Gillette moved the

chemicals from Elizabeth, New J ersey, to Staten Island.

On November 14, 1977, after arresting Kassebaum near-

by, DEA agents entered a house located at 135 Ellis Street,

Staten Island, and discovered the chemicals and a laboratory.

At trial, Ryland Luttrell, a 68 year old watchman for the

subject 13 acre site on Ellis Street, Staten Island, bordering

the Arthur Kill waterway, identified, over objection and

after denial of a motion to suppress the identification,

DiPalermo as being one of three men who arrived by car at

the Ellis Street property on or about September 14, 1977.

Luttrell described the premises, known as 135 Ellis

Street, as a “sort of a ship yard” that contained a 600 foot

dock with slips for boats.

Luttrell testified that DiPalermo emerged from the back

seat of the car and remained at the foot of the dock. Two

younger men emerged from the front of the car, walked

down the dock with Luttrell and discussed the possibility

of bringing a boat into one of the slips on the dock. The

two younger men walked back to DiPalermo and talked to

him; however, Luttrell could not hear the conversation.

Luttrell could not describe the two younger men with whom

he talked and had no conversation with DiPalermo.

Luttrell’s pre-trial identification of DiPalermo from a

photographie array transpired as follows. On March ti,

1978, DiPalermo was arrested by DEA agents on a warrant

pursuant to the indictment herein. He was processed and

photographed.

On March 27, 1978, DEA Agent N argi prepared a photo-

graphic array consisting of DiPalermo’s mug-shot and four

other photographs, which he then showed to Luttrell for

purposes of making a pre-trial identification of the man

Luttrell saw at the Ellis Street site on or about September

14, 1977.*

Although Luttrell had previously described the older

gentleman who arrived at Ellis Street by car on or about

September 14, 1977 as six foot, with salty grey hair, he

picked out DiPalermo’s mug-shot from the array as the

man he saw that day.

Joseph DiPalermo is five foot three and one-half (3%2”)

inches tall, virtually bald, and his remaining hair is not

grey.

Agent Nargi testified that he knew the day before Lut-

trell was to appear at his office that he was going to show

Luttrell DiPalermo’s mug-shot in a photospread. He con-

ceded that the DiPalermo mug-shot was the newest photo-

graph depicting the thinnest, oldest man in the group. sare

made no effort to cover the “Drug Enforcement Agency

sign that DiPalermo held in front of him (see Appendix

“C”, infra, p. 13a).

Nargi also conceded that perhaps he should have selected

photographs that were closer in description to DiPalermo

and it was “very likely” he could have found somebody

else who looked a little more like DiPalermo.

2. The Verdict | )

On August 18, 1978, the jury returned a verdict of guilty

against DiPalermo and the remaining co-defendants.

3. The Sentencing Hearing

The Probation Department’s presentence report stated

that DiPalermo was a member of organized crime. Di-

Palermo objected to that allegation. On November 3, 1978

the Court conducted a sentencing proceeding at which FBI

agents were permitted to testify as to what their unnamed

and undisclosed informers had told them about DiPalermo.

* A copy of said photographic array may be found in Appendix “C”

infra, p. 13a.

Prior to the imposition of the sentence, Judge Neaher

stated:

“Now, I think in order to give you the full benefit of

any questions you may expect to raise on appeal

with respect to the sentencing procedure here, I’m

changing my mind, and I’m going to declare that I

have been to some extent influenced by what I have

heard here in court concerning [DiPalermo’s] al-

leged connections with organized crime and other

matters” (S105-106).*

DiPalermo was sentenced to five years imprisonment on

the instant conviction plus two years imprisonment as a

second offender to be served consecutively. In addition, he

was fined $10,000 and placed on special parole for the re-

mainder of his natural life.

Reasons for Granting the Writ

Petitioner respectfully submits that this petition should

be granted for three reasons:

(a) The Second Cireuit has decided a crucial federal and

constitutional due process question regarding pre-trial

photographie procedures leading to an eyewitness identifi-

cation at trial in a manner in conflict with applicable de-

cisions of this Court;

(b) The Second Circuit has decided a crucial federal and

constitutional due process question regarding pre-trial

identification procedures leading to an eyewitness identi-

fication at trial in a manner that so far departs from the

accepted and usual course of judicial proceedings as to

cali for an exercise of this Court’s power of supervision;

and

*“S” references are to the November 3, 1978 sentencing pro-

ceeding.

ean MR meted ao 9S.

(c) The Second Circuit has decided a crucial federal and

constitutional question regarding the due process safe-

guards and protection which must be accorded a criminal

defendant at a sentencing hearing in a manner in conflict

with applicable decisions of this Court, in conflict with a

decision of another Court of Appeals, and in a manner

that so far departs from the accepted and usual course

of judicial proceedings as to call for an exercise of this

Court’s power of supervision.

The pre-trial identification procedures sanctioned by the

Second Circuit in this case were so impermissibly suggestive,

within the meaning of those words as defined by this Court,

that petitioner was identified at trial as a co-conspirator by

the subject eyewitness despite the following facts:

(a) the eyewitness originally described the subject co-

conspirator he had seen at the scene of the crime on or

about September 14, 1977, as “sia foot, with salty gray

hair”;

(b) subsequently, on March 27, 1978, the eyewitness, pre-

sented with an impermissibly suggestive photographic ar-

ray, identified the “mug-shot” of petitioner as the man he

saw on or about September 14, 1977;

(c) subsequently, at trial, influenced by the tainted

photographic identification, the eyewitness identified peti-

tioner as the man he had seen; and

(d) the eyewitness did so:

1. despite the fact that he originally described the man

he saw at the scene as “six foot, with salty gray hair”; and

2. despite the fact that petitioner is five foot three and

one half inches tall, is virtually bald, and his remaining

hair is not “salty gray”.

It is submitted that the stark and irreconcilable contrast

between the appearance of the man the eyewitness origin-

ally identified as the man he saw at the scene of the crime

(prior to the tainted photographic identification) and the

man he identified (petitioner) after the tainted photo-

graphic array as the man he had seen, establishes beyond

doubt a blatant violation of petitioner’s due process rights

herein.*

As is established infra, this due process violation was

caused by the failure of the Second Circuit to adhere to

the prevailing standards and guidelines established by this

Court in connection with pre-trial photographic identifica-

tion procedures.**

POINT I

The Pre-Trial Photographic Identification Procedure

Leading to the Eyewitness Identification of Petitioner

at Trial Was So Impermissibly Suggestive as to Give

Rise to a Very Substantial Likelihood of Irreparable

Misidentification.

A. The Pre-Trial Suppression Hearing

At the pre-trial suppression hearing, Luttrell (the sub-

ject eyewitness) testified that approximately two weeks

after Labor Day 1977 (about September 14, 1977), three

men arrived by car at the Ellis Street yard where the illegal

laboratory was set-up. When they arrived Luttrell “hap-

pened to be down by the water ... and met them at the

dock. The two younger men exited first, then the third

man, who was identified as DiPalermo.

Luttrell and the two younger men went on the dock***

where they had a conversation regarding the depth of the

* The photograph of DiPalermo in the photographic array sticks out

like a sore thumb (see Appendix “C”, infra, p. 13a).

** Indeed, there was no justification whatever for a pre-trial photo-

graphic array in this case (see p. 13, infra).

*** The length of the dock was 600 feet.

oh adi

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water and width of the dock. The younger men then walked

back to the third man and engaged him in conversation.

Luttrell could not hear what was being discussed because

“T wasn’t close enough”. When asked whether the third

man stayed in the background, Luttrell said, “Well, he was

_ at the foot of the dock”. Luttrell did not speak with the

third man.

Luttrell said he looked at the third man because he

thought he was crippled—but actually he was not.

Although Kassebaum was supposedly in charge of the

laboratory at Ellis Street and was in the courtroom, Lut-

trell could not identify him. —

On cross-examination, Luttrell testified that the U.S.

Attorney’s office told him to come to court where he was

going to identify the individual whose picture he had pre-

viously selected. He then said he was to identify the man

in the yard.

When Luttrell went to Nargi’s office at the DEA, in order

to make his photographic identification, he knew N argi was

a drug agent. He met Nargi when the November 14 raid oc-

curred. Prior to selecting pictures, Luttrell knew the agents

thought there were drugs in the house at Ellis Street.

Luttrell, prior to picking out DiPalermo’s picture, had

described him to Agent Nargi as six ,eet tall with salty

grey hair. He did not describe any facial features.

The photographic array shown to Luttrell by Agent

Nargi is reproduced in Appendix “C” infra, p. 13a.

Nargi conceded that (1) DiPalermo’s picture contained

three “shots” of him while the others were single or dual

shots; (2) DiPalermo’s picture was newer than the others;

and; (3) DiPalermo’s picture depicted an obviously thinner,

more frail looking man than the others. Nargi did not

10

deny that DiPalermo’s picture stuck out like a “sore

thumb”. Finally, Nargi stated that if he had to do

it all over again, he “possibly would have looked until

I could find somebody else that looked more like [ Di-

Palermo] ”. Nargi knew DiPalermo was 71 years of age.

He made no attempt to cover the “Drug Enforcement Ad-

ministration” sign that appears on DiPalermo’s mug-shot.

Although Luttrell swore that he had seen DiPalermo’s

picture only once, Nargi testified that DiPalermo’s picture,

in the array, was again shown to Luttrell in front of Mr.

Appleby later that day.

The trial judge denied the motion to suppress.

B. The In-Court Identification

At trial, Luttrell identified DiPalermo as one of the three

men who visited Ellis Street, on or about September 14,

1977.

Luttrell testified that he had watched DiPalermo “close”

because he was looking to see if he was crippled. Luttrell

could not describe the two younger men with whom he spoke.

Further, he stated that people came to Ellis Street every

day.

DiPalermo’s counsel then placed the photographic array

into evidence. DiPalermo’s mug-shot became Defendant’s

Exhibit H.

At page 608 of the trial transcript, the following occurred

on cross examination of Luttrell:

“Q. Did you notice that the man that you picked

out [DiPalermo} was skinnier than all of the rest (of

the persons in the photo array) ?

A. He was a little taller than the rest of them, too.”

(emphasis added)

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11

C. The Relevant Law and It’s

Application to the Facts

One of the leading decisions of this Court regarding

pre-trial photographic identification procedures is Simmons

v. United States, 390 U.S. 377 (1968). In Simmons, the

Court stated:

“eonvictions based upon eyewitness identification by

photograph will be set aside on that ground only if

the photographic identification procedure was so

impermissibly suggestive as to give rise to the very

substantial likelihood of irreparable misidentifica-

tion.” (at 384).

The Simmons Court recognized that a witness who is

shown an improper array “thereafter is apt to retain in his

memory the image of the photograph rather than of the

person actually seen, reducing the trustworthiness of sub-

sequent lineup or courtroom identification” (390 U.S. at

383-84).

This danger is graphically illustrated in the case at bar.

Luttrell testified at trial that the man he picked out in the

photograph array (DiPalermo) “was a little taller than the

rest of them, too” (emphasis added). First, there was no

way Luttrell could form that opinion from the array. Di-

Palermo’s mug-shot was the only photograph in the array

that depicted a person “full body”. The rest were shots

from the chest or shoulders up.* It is clear that Luttrell

retained his erroneous perception of DiPalermo’s photo-

graph when he gave that testimony. Coupled with his prior

description of DiPalermo as six foot tall with salty grey

hair,** DiPalermo could not possibly be the man he saw at

Ellis Street.

* Two other photographs in the array depict persons taller than

DiPalermo. — 1 ae

+ letely opposite description of DiPalermo who stands

five Bag srg: oaphait (3%4”) inches and is virtually bald with

no grey hair.

12

Where the pre-trial identification procedure is deemed

suggestive, inquiry extends to the reliability of the in-court

identification, viewed within the “totality of the circum-

stances.” Manson v. Braithwaite, 432 U.S. 98 (1977); Neil

v. Biggers, 409 U.S. 188 (1972).

In the case at bar the Second Circuit did find the photo-

graphic identification procedure “subject to criticism” (Ap-

pendix “A”, infra, p. Ta-8a).

. In Nei! V. Biggers, supra, this Court, in evaluating a rape

victim’s identification of her attacker, enumerated the

factors which must be considered in evaluating the likeli-

hood of misidentification :

1, the opportunity of the witness to view the criminal at

the time of the crime;

2. the witness’ degree of attention;

3. the accuracy of the witness’ prior description of the

criminal ;

4. the level of certainty demonstrated by the witness at

the confrontation; and

or

the length of time between the crime and the confronta-

tion. (409 U.S. at pp. 199-200)

In Biggers, in view of the above guidelines, this Court,

in holding that it was proper to allow the identification

evidence to go to the jury, found that the victim spent a

considerable period of time with her assailant, up to half

an hour. She faced him directly and intimately and was no

casual observer. Her description as to age, height, weight,

complexion, skin texture, build and voice was more than

ordinarily thorough. The Court did note, however, that a

lapse of seven months between the rape and confrontation

“would be a seriously negative factor in most cases” (409

U.S. at p. 201).

13

It is respectfully submitted that the Second Circuit failed

to properly apply the Biggers guidelines in the instant case:

(a) the identification process was impermissibly sugges-

tive.

Agent Nargi arranged a photographic array wherein

DiPalermo’s picture virtually stood out by itself. The

persons depicted in the other four photographs have no

reasonable resemblance to DiPalermo. Luttrell knew that

Nargi was an agent of the Drug Enforcement Administra-

tion and that the agents suspected drugs in the house at

Ellis Street. DiPalermo’s picture bore the DEA legend on

its face. The picture was clearly a mug-shot, dated two

weeks prior. The photograph depicted three views of Di-

Palermo; the others were either a single or dual photograph.

DiPalermo’s photograph was the newest of the group and

obviously depicted the thinnest, oldest man.

Nargi knew the day before that he was going to show

Luttrell DiPalermo’s mug-shot. He made no effort to find

photographs in the possession of the DEA—other than

those he had immediately available to him—that bore a

closer resemblance to DiPalermo. The entire process was

again repeated for Mr. Appleby that day, obviously rein-

forcing the photograph’s image in Luttrell’s mind.

Furthermore, there was no necessity for the photographic

array. DiPalermo and the other defendants had already

been indicted and arrested for the Quaalude conspiracy

charged here. A corporeal lineup would have been the

better way to display the defendants to Luttrell.” See,

* If there was a post-indictment lineup with DiPalermo, his counsel

would have had a right to be present. United States v. Wade, 388

U.S. 218 (1967). We respectfully submit that there should be no

different rule or standard for a post-indictment confrontation via

photographic array.

14

P. Wall, Eye-Witness Identification in Criminal Cases, n. 1

at 70.

(b) The likelihood of misidentification by Luttrell was

sufficiently great to make the use of his trial identification

of DiPalermo a denial of due process under the Biggers

guidelines.

1. There was no testimony of the length of time

Luttrell viewed the third man at the yard

Luttrell was certainly not looking at third man’s face

when he exited the car since Luttrell obviously was pre-

occupied with the notion that the man was a cripple.

Thereafter, Luttrell and the two other men walked on the

dock having a discussion about a boat, leaving the third man

at the foot of the dock. When the two younger men returned

to talk to the third man, Luttrell was not close enough to

hear the conversation.

2. Luttrell had little motivation to study the

face of the third man

No crime was being committed; Luttrell was not a victim

—he was at best a casual observer. If anything, he was

focused on the third man’s body which he thought was

crippled. Luttrell had no discussion with the third man.

3. Luttrell’s prior description of the criminal bore

no resemblance to DiPalermo

Before selecting the photograph from the suggestive ar-

ray, Luttrell described the third man as six foot tall with

salty grey hair—clearly not a description of DiPalermo,

who is 5’ 3” and almost bald. He gave no other descriptions

such as age, height, facial features, complexion, ete.

At trial, he testified that DiPalermo was a “little taller”

than the rest of those in the array. This description was

15

impossible to make since none of the other photographs in

the array even suggest this.

Luttrell’s reliability of identification and recollection is

open to still further scrutiny. He did not identify Kasse-

baum at the pre-trial hearing although he was in court and

was the man in the lab. Luttrell was “positive” that he was

never shown a single, isolated photograph of Gillette. Nargi

testified, however, that Luttrell was shown only a single

shot of Gillette. Lack of specificity as to dates, times, and

places runs throughout his testimony.

4. Luttrell’s level of certainty

Although Luttrell picked DiPalermo’s picture without

hesitation, this is not surprising in light of the unfair array.

It must be noted that Luttrell could not even offer a descrip-

tion of the two younger men at the yard with whom he spoke.

It is equally not surprising that he identified DiPalermo in

court without any difficulty. He was, we maintain. identify-

ing the man in the picture, not the man he described as being

in the yard.

5. The length of time between the crime and

the confrontation

More than six months had elapsed between the event at

the yard (two weeks after Labor Day, 1977) and the con-

frontation via photographic array (March 27, 1978). The

event at the yard could not have been memorable to Luttrell

since he did not even mention it to Nargi until just prior

to the photographic array.* The time gap was significant

and was just shy of the seven months in Neil v. Biggers that

caused the Court to say it “would be a seriously negative

factor...” (409 U.S. at p. 201).

* No mention of the event at the yard was made. by Luttrell in the

Grand Jury.

16

6. Conclusion

In sum, it is submitted that the Second Circuit has failed

to properly apply the Biggers guidelines in this case,

In Jackson v. Fogg, 589 F.2d 108 (2nd Cir. 1978), the

Second Circuit stated:

“Centuries of experience in the administration of

criminal justice have shown that convictions based

solely on testimony that identifies a defendant previ-

ously unknown to the witness is highly suspect. Of

all the various kinds of evidence it is the least reli-

able, especially where unsupported by corroborating

evidence...

The dangers of convicting on identification testimony

alone are well known to those whose duty it is to

prosecute crime.”

We respectfully submit that there was no other credible

evidence which would have warranted the conviction.* Lut-

trell’s identification is what convicted DiPalermo.

POINT II

Petitioner’s Conviction Was Based on the Tainted

Eyewitness Identification at Trial.

The evidence in this case offered against DiPalermo con-

sisted of Luttrell’s identification, two meetings on the

street with Gillette and the hearsay utterance of Marchese

to the effect that Gillette told him that Joseph DiPalermo

was “his friend in New York”.

1. The October 18 Meeting With Gillette

There was nothing in the conversation that was over-

heard that was even arguably referable to the charged

* Point II, infra.

POR Sethe cbr’ ead

17

conspiracy to manufacture and possess Quaaludes. After

Gillette said, “I know its a lot of money, that’s why you’ve

(DiPalermo) got to straighten it out”, DiPalermo left for

the downtown Diamond Exchange.

Absent any nexus with the activities of the conspiracy,

the October 18 meeting is insufficient to serve as a stepping

stone to a conviction.

2. The October 26 Meeting With Gillette

On this date, DiPalermo said to Gillette, “This is what

you do.” Again, there is nothing referable to the con-

spiracy charged.

3. The “friend in New York”

Marchese testified that in March or April, 1977 he had

a conversation with Gillette wherein Gillette told him that

his “friend in New York” was really Joseph DiPalermo.

This occurred prior to the time frame in the indictment

with reference to the conspiracy and, in any event, could

not have been said in furtherance thereof. It was pure

hearsay and its admission, in light of the absence of other

direct evidence of guilt, is impermissible.

The law of conspiracy is settled that when the govern-

ment seeks to introduce an out of court statement of a

declarant against a defendant in order to link that defendant

to a conspiracy, there must be independent proof of the de-

fendant’s participation in the conspiracy which establishes

“by a fair preponderance of the evidence independent of the

hearsay utterances” the defendant’s participation in the

conspiracy. United States v. DeFillipo, 590 F.2d 1288 (2nd

Cir. 1979).

4. Conclusion

In sum, the only probative evidence against DiPalermo

was Luttrell’s identification of him as the “third man” who

was at the illegal laboratory premises in September, 1977.

18

POINT III

The Decision Below, Sanctioning Sentencing Pro-

ceedings in Which Petitioner Was Not Allowed to

Cross-Examine Anonymous Informants and Was De-

nied Access to “Jencks 3500” Materials, Constitutes

a Denial of Petitioner’s Due Process Rights.

The argument that a convicted criminal defendant is en-

titled, at his sentencing hearing, to confront and cross-

examine his accusers and to procure “Jencks 3500” ma-

terial is set forth at length in the Petition to this Court

of Daniel Fatico for a Writ of Certiorari to the United

States Court of Appeals for the Second Circuit, filed in

this Court November 20, 1979.

We respectfully refer this Court to the Petition of Daniel

Fatico which contains a full elaboration of said argument

which is equally applicable herein.

CONCLUSION

For the reasons stated above, a Writ of Certiorari should

issue to review the judgment and opinion of the United

States Court of Appeals for the Second Circuit.

Respectfully submitted,

Saxe, Bacon & Botan, P.C.

Attorneys for Petitioner

Joseph DiPalermo

39 East 68th Street

New York, New York 10021 .

(212) 472-1400

Roy M. Coun

MicuarEu Rosen

Howarp F. Husum

Of Counsel

APPENDIX “A”

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

Nos. 962, 963

064, 987 August Term, 1978

(Argued May 2, 1979 Decided August 21, 1979)

Docket Nos. 78-1408, 78-1413,

79-1032, 79-1046

FILED

AUG 21 1979

A. Daniet Fusaro, CLERK

r

v

Unirep States or AMERICA,

Appellee,

Vv.

”

Josepu DiPatermo, a/k/a “Joe Beck”,

”

SatvaTorE LomBarpl, a/k/a “Herman”,

Grorce GILLETTE and ALAN KassEBAUM,

Appellants.

a

v

Before: a)

Gurrem and Meski11, Circuit Judges, and

Wvyzansk1", District Judge.

Appeals from judgments of conviction entered in the

United States District Court for the Eastern District of

New York, Edward R. Neaher, Judge, after a three-week

jury trial.

i i District

* Hon. Charles E. Wyzanski, Jr., of the United States

Court for the District of Massachusetts, sitting by designation.

2a

Appendia ‘‘A’’

Affirmed.

MicnarEL Rosen, New York, New York (Roy M. Cohn,

Saxe, Bacon & Bolan, P.C., of counsel),

for Appellant DiPalermo

Rocer Benner Apter, New York, New York (Gustave

H. Newman, New York, New York, of counsel),

for Appellant Lombardi

Raymonp B. Grunewatp, New York, New York,

for Appellant Gillette

Harvey L. Greenserc, Brooklyn, New York (Frank T.

Geoly, Brooklyn, New York, of counsel),

for Appellant Kassebaum

Ricuarp AppLesy, Assistant United States Attorney,

Eastern District of New York (Edward R. Korman,

United States Attorney, Harvey M. Stone, Assistant

United States Attorney, Vivian Shevitz, Assistant

United States Attorney, Eastern District of New

York, of counsel),

for the United States of America

Per Curiam:

Joseph DiPalermo, Salvatore Lombardi, George Gillette

and Alan Kassebaum appeal from judgments of convic-

tion entered in the United States District Court for the

Kastern District of New York, Edward R. Neaher, Judge,

after a three-week jury trial. All of the appellants were

convicted of conspiring to manufacture and possess with

intent to distribute methaqualone, commonly known as

‘‘quaaludes,’’ in violation of 21 U.S.C. § 846. Kassebaum

was also convicted of possession of methaqualone with in-

tent to distribute, 21 U.S.C. § 841(a)(1). Finding no re-

versible error, we affirm the judgments of conviction.

nal Fan

SA) i dn oR ce A a re iad r

3a

Appendia ‘‘A’’

Viewing the evidence in the light most favorable to the

government, Glasser v. United States, 315 U.S. 60, 80

(1942), the government showed that the following series

of events took place. Beginning in April of 1977, one

Vincent Marchese, a paid informant for the Drug Enforce-

ment Administration, insinuated himself into a conspiracy

to manufacture quaaludes. On April 15, Marchese met with

appellant Gillette at Marchese’s home in Staten Island.

Gillette told Marchese that he had a friend named “Her-

man” who had manufactured quaaludes in the past but

who needed a new supply of chemicals in order to stay in

the business. “Herman” was apparently able to come up

with the money, but had thus far been unable to come up

with a connection leading to the necessary supplies—ap-

proximately 490 pounds of various chemicals. Marchese

agreed to locate the needed source and immediately called

the DEA, which in turn contacted the Berg Chemical Com-

pany. Marchese then informed Gillette that he had been

successful in his search, and that the price of the chemicals

would be $10,000—a price to which “Herman” agreed.

Marchese and Gillette picked up the chemicals on June 23,

1977, and took them to a previously secured warehouse in

New Jersey. The chemicals having been purchased, the

next step was to create a manufacturing laboratory—a

task to which “Herman” was assigned.

Much to Marchese’s and Gillette’s consternation, how-

ever, “Herman,” who by this time had been identified by

the DEA as appellant Lombardi, was unable to locate the

needed facility. Almost four months elapsed before the

laboratory began to take shape. In the middle of Septem-

ber, Ryland Luttrell, caretaker and watchman at 135 Ellis

Street in Staten Island, was visited by three men, one of

whom Luttrell subsequently identified as. appellant Di-

Palermo. The visitors took a look around the premises—

4a

Appendia ‘‘A’’

no doubt taking note of the fact that 135 Ellis Street is

in a remote area of Staten Island, that the property occu-

pies about 13 acres of land, and that situated thereon was

a rather run-down old house, as well as a dock. Luttrell

observed DiPalermo get out of the car, but he was ap-

proached only by DiPalermo’s two companions. These two

men asked Luttrell certain questions about the condition

of the dock and the depth of the water, reported back to

DiPalermo, returned to ask a few more questions, again

returned to the car, and drove off.

Approximately a month later, Gillette was observed by

the DEA at the Ellis Street location. When he left the

premises, DEA agents followed him into lower Manhattan,

observed him make a series of telephone calls from a public

booth and, fifteen minutes after making the calls, being

joined by DiPalermo. One of the agents strolled by Gil-

lette and DiPalermo and overheard the following conversa-

tion:

DiPalermo: It is a lot of money.

Gillette: I know it is a lot of money. That’s why

you've got to straighten it out.

After about fifteen minutes, DiPalermo left. A week later,

Gillette was again observed at the Ellis Street site. Upon

leaving, he was again followed to the same street corner

in lower Manhattan where he again met with DiPalermo.

Again a DEA agent walked by them, this time overhearing

DiPalermo saying to Gillette: “This is what you do.”

Five days later, on October 31, the chemicals were moved

from the New Jersey warehouse to 135 Ellis Street, the

entire day’s activities being monitored by the DEA. Gil-

lette and Marchese began the day by removing the chemi-

cals from the New Jersey warehouse and depositing them

into a Ryder rental truck. Gillette then drove the truck

to Lombardi’s Staten Island address, with Marchese follow-

da

Appendia ‘‘A’’

ing in Gillette’s car. Gillette explained to Marchese that

the truck was being left there so that “Herman” could keep

an eye on it. Shortly after that, DEA agents observed

Lombardi driving the truck on a route leading directly to

135 Ellis Street. At a certain point in its travels, however,

the truck began to vary its speeds considerably and take

what are commonly referred to as “evasive maneuvers.”

Eventually, the truck worked its way back to Lombardi’s

residence. Later that night the truck was observed at 135

Ellis Street, where the chemicals were unloaded and taken

into the house. Gillette later explained to Marchese that

“Herman” had successfully delivered the chemicals to the

soon to be operating laboratory. Gillette aiso explained to

Marchese that the DEA surveillance had been picked up

during the attempted delivery of the chemicals, that he was

troubled by this development, and that he would have to

talk to his “friend in New York” about the situation. His

“friend in New York” turned out to be named “Joe Beck,”

which is apparently a name used on occasion by appellant

DiPalermo.

Because none of the participants in the scheme had

sufficient knowledge of chemistry to go about manufactur-

ing marketable quaaludes, they next set about the task of

recruiting someone who did. Appellant Kassebaum, a h-

censed New York pharmacist, apparently fit the bill. Both

Luttrell and various DEA agents observed Kassebaum

at the 135 Ellis Street site on a number of occasions. Upon

leaving Ellis Street on one such occasion, he was followed

by DEA agents who subsequently overheard him state over

a telephone: “I finally got something good and nice for you.

Tt turned color.” ! DEA agents subsequently observed Kas-

sebaum purchasing paraphernalia that was eventually

seized at the laboratory.

1A DEA chemist testified at trial that color is an indication of the

degree of purity of methaqualone.

6a

Appendia ‘‘A’’

On November 14 the DEA closed in, arresting Kasse-

baum a short distance from the Ellis Street laboratory and

escorting him back to the premises so they could execute

a search warrant. Kassebaum broke free, however, ran

into the house and closed the door behind him. The agents,

locked out of the house, determined that Kassebaum had

fled to the bathroom and had begun flushing evidence down

the toilet. They forced their way in and found Kassebaum

shieiding himself behind his German Shepherd. The agents

prevailed, however, took Kassebaum into custody, and pro-

ceeded to search the laboratory. In the first floor bath-

room they discovered a brown powder which turned out to

be methaqualone; during their search of the rest of the

house they seized more methaqualone, various pieces of

laboratory equipment, and the chemicals that had been

purchased by Marchese and Gillette from the Berg Chem-

ical Company.

In our judgment, only two of the issues raised by the

appellants warrant discussion, those issues focusing on

Luttrell’s in-court identification of DiPalermo and the

nature and sufficiency of the evidence to support the con-

viction of Lombardi.

After all of the defendants has been arrested, the DEA

interviewed Luttrell regarding his recollection of the hap-

penings at 135 Ellis Street. He described an individual who

fit the description of Gillette and, when shown a photograph

of Gillette, identified him as one of the men to whom he

had spoken about renting the Ellis Street facility. At that

point, the DEA put together a spread of photographs, in-

cluding photographs of DiPalermo, and asked Luttrell if

he recognized any of the subjects. Luttrell picked out Di-

Palermo as someone who had been at the Ellis Street site,

and he related the details of DiPalermo’s visit. Luttrell

subsequently identified DiPalermo during the trial as one

of the individuals he had seen at the Ellis Street location.

Ta

Appendia ‘‘A’’

This Court has recently explained the law as it relates

to in-court identifications that have been preceded by pre-

trial photographic identifications in the following fashion:

A conviction “based on eyewitness identification

at trial following a pretrial identification by photo-

graph will be set aside on that ground only if the

photographic identification procedure was so imper-

missibly suggestive as to give rise to a very sub-

stantial likelihood of irreparable misidentification.”

... “[{RJeliability is the linchpin in determining the

admissibility of identification testimony,” ... and the

court must look to the “totality of the circumstances”

to determine whether the in-court identification is

reliable even if the pretrial identification procedure

was suggestive.

United States v. Sanchez, slip op. 3901, 3907-08 (2d Cir.

July 19, 1979), quoting Simmons v. United States, 390 U.S.

377, 384 (1968); Manson v. Brathwaite, 432 U.S. 98, 114

(1977) ; and Neil v. Biggers, 409 U.S. 188, 199 (1972). See

generally United States v. Williams, 596 F.2d 44, 48-49 (2d

Cir. 1979); Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir.

1978) ; United States v. Moskowitz, 581 F.2d 14, 19-20 (2d

Cir.), cert. denied, 99 S.Ct. 204 (1978). Included in the

“totality of the circumstances” are “the opportunity of the

witness to view the criminal at the time of the crime, the

witness’ degree of attention, the accuracy of the witness’

prior description of the criminal, the level of the certainty

demonstrated by the witness at the confrontation, and the

length of time between the crime and the confrontation.”

Neil v. Biggers, supra, 409 U.S. at 199-200.

Although DiPalermo’s counsel has pointed to certain

weaknesses in the government’s procedures and in Luttrell’s

identification, it is our judgment that, with a view toward

Appendix ‘‘A’’

the “totality of the circumstances,” the identification passes

muster. Although the photographic identification procedure

is subject to criticism because there were more photographs

of DiPalermo than of any of the others and because Di-

Palermo’s photograph had a DEA label, it is nevertheless

our conclusion that this did not “give rise to a very sub-

stantial likelihood of irreparable misidentification.” In

addition, it is our conclusion that Luttrell’s identification

of DiPalermo in the courtroom was a “reliable” one. Lut-

trell, after all, was responsible for scrutinizing visitors to

the Ellis Street location, and he had a good deal of time

during which to view DiPalermo, some of which was spent

at relatively close range.

As to appellant Lombardi, it is our judgment that there

was sufficient non-hearsay evidence to justify the admission

of statements made by his fellow conspirators and that,

with this evidence properly admitted, there was sufficient

evidence to support his conviction. On this issue as well, this

Court has on recent occasion set out the governing law.

In United States v. Lyles, 593 F.2d 182 (2d Cir.), cert.

denied, 47 U.S.L.W. 3636 (U.S. Mar. 26, 1979), we said:

When in a criminal case the government seeks,

under the co-conspirator rationale, to introduce as an

admission the out-of-court statement of a declarant

other than the defendant, the trial judge must make

a preliminary determination that there is sufficient

independent evidence to establish the following: (1)

that a conspiracy existed ... ; (2) that the con-

spiracy was still in existence at the time the state-

ment was made... ; (3) that the declarations were

made in furtherance of the conspiracy ... ; and (4)

that both the declarant and the defendant partici-

pated in the conspiracy .... While the practicalities

of proof may require that a particular statement be

Appendia ‘‘A’’

admitted subject to connection, that is, subject to

an adequate showing of the elements just summar-

ized, “if at the close of the Government’s case the

connection has not been proved, the court must, upon

motion, strike the insufficiently connected item and

direct the jury to disregard it.”

593 F.2d at 194 (citations and footnote omitted). And in

United States v. DeFillipo, 590 F.2d 1228 (2d Cir. 1979),

the Court reaffirmed the principle that participation by the

defendant in the alleged conspiracy must be “established

‘by a fair preponderance of the evidence independent of

the hearsay utterances.’” 590 F.2d at 1236, quoting United

States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert.

denied, 397 U.S. 1028 (1970). See also United States v.

Ziegler, 583 F.2d 77, 81 n.6 (2d Cir. 1978); United States

v. Stanchich, 550 F.2d 1294, 1297-99 & n.4 (2d Cir. 1977) ;

United States v. Glazer, 5382 F.2d 224, 228-29 (2d Cir.),

cert. denied, 429 U.S. 844 (1976); United States v. Wiley,

519 F.2d 1348, 1350-51 (2d Cir. 1975), cert. denied, 423 U.S.

1058 (1976). Compare United States v. James, 590 F.2d

575 (5th Cir.) (en bane), cert. denied, 47 U.S.L.W. 3786

(U.S. June 4, 1979).

Although we believe the case to be close in this regard,

it is our conclusion that this requirement was met. Lom-

bardi’s repeated associations with the other members of

the conspiracy, especially his involvement with the rental

truck that carried the needed chemicals to the Ellis Street

laboratory, provided strong ground for the conclusion that

Lombardi was involved in an unlawful conspiracy. Al-

though each of the bits of evidence produced by the govern-

ment to support the conclusion that Lombardi was a co-

conspirator would by itself be equally consistent with in-

nocence, such pieces of evidence are to be viewed “not in

isolation but in conjunction.” United States v. Geaney,

10a

Appendia ‘‘A’’

supra, 417 F.2d at 1121. See also United States v. Monica,

295 F.2d 400, 401 (2d Cir. 1961), cert. denied, 368 U.S. 953

(1962) (“each of the ... episodes gained color from each

of the others”). As explained by Judge Friendly in United

States v. Stanchich, supra, “[j]udges are not required to

exhibit a naiveté from which ordinary citizens are free.”

550 F.2d at 1300. In this light, the Geaney test was met,

and in that light, there was sufficient evidence to support

Lombardi’s conviction.

The other claims put forth by the appellants must also

be rejected. Our review of the record satisfies us that

there was sufficient evidence to support each of the convic-

tions. Although the comments during summation by the

Assistant United States Attorney in charge of the trial do

not merit our approval, neither do they warrant reversal

in this case. We do caution the government, however, that

“ijn conspiracy cases, where the liberal rules of evidence

and the wide latitude accorded the prosecution may, and

sometimes do, operate unfairly against an individual de-

fendant,” Glasser v. United States, supra, 315 U.S. at 76,

the content and tone of the summation should be kept

closely in check. There is no merit to the claim by Gillette

that his conviction should be reversed because he conferred

with DEA agents without the presence of his counsel. The

record shows that Gillette initiated the contact and that

he was in no way prejudiced by its having occurred. See

Weatherford v. Bursey, 429 U.S. 545 (1977). DiPalermo’s

sentencing hearing was conducted in accord with the gov-

erning law of this Cireuit. See United States v. Fatico,

slip op. (2d Cir. , 1979); United States v.

Fatico, 579 F.2d 707 (2d Cir. 1978). The remaining claims

do not merit discussion.

The judgments of conviction are affirmed.

APPENDIX “B”

UNITED STATES COURT OF APPEALS

Present:

Seconp Circuit

At a Stated Term of the United States

Court of Appeals, in and for the

Second Circuit, held at the United

States Court House, in the City of

New York, on the twenty-fifth day of

October, one thousand nine hundred and

seventy-nine.

Hon: Murray L. Gurrein,

Hon: Tuomas J. MESKILL,

Circuit Judges

Hon: Cuarves E. Wyzanskl,

District Judge.

lla

l2a

Appendix “B”

Docket Nos. 78-1408, 78-1413,

79-1032, 79-1046

FILED

OCT 25 1979

A. DanteL Fusaro, CLERK

Unitep States oF AMERICA,

Plaintiff-Appellee,

v.

JOSEPH DiPALERMoO,

SALVATORE LOMBARDY,

AuAaNn KassEBAuUM,

GEORGE GILLETTE,

Defendants-A ppellants.

>

A petition for a rehearing having been filed herein by

counsel for the appellant, Joseph DiPalermo.

Upon consideration thereof, it is

Ordered that said petition be and it hereby is Denied.

A. DanteL F'usaro,

Clerk.

.

;

s°.

as

-"

-*.

.

.

.?

~

¥.

bed A

APPENDIX “C”

Composite Photographs Ex. A

’

Petitioner DiIPALERMO