Petition — Gohel v. United States

Supreme Court brief1980

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mS RG WL, UO

FILED

FEB 11 1980

MICHAEL RODAK, JR., CL

In THE

Supreme Court of the United States

OctToBER TERM, 1979

wo. 79 -130F

EARL JEROME GOREL,

Petitioner,

Unttrep States or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

Newton B. Scuwarrtz, P. C.

Newton B. Scowartz

Suite 700 — 609 Fannin

Houston, Texas 77002

713/224-4161

H. A. Erwine

2710 Little York Road

Houston, Texas 77093

713/691-5283

’ Attorneys for Petitioner

———— a

TABLE OF CONTENTS

PAGE

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i I aaaiceaeiedtaicienicnkecsintecciinenictinecvascncesescocccsesesscecees 1

as chrasavlsdnapenacbensecsncsescnccessece 2

Questions Presented For Review ...............ccsscccsessesceeeeenees 2, 3,4

Constitutional and Statutory Provisions Involved ................ 4,5

I cs cn tcastensiianseonecenccssecens 5

RE a, ee a eee 5

BE Te SR BT Be CIRRUS vnc sc csseccsccccccecccsscssccseee 6

Reasons For Allowance of the Writ. ..............ccccccsssccsssssssees 6

I. The Fifth Cireuit Erred In Holding That The Arrest

Warrant For Petitioner Was Issued Upon Probable

Cause Because The Issuing Magistrate’s Failure To

Disqualify Himself Prior To His Probable Cause

Determination Violates Petitioner’s Constitutional

Rights Under The Fourth Amendment To The

United States Constitution And His Rights Under

aii citinirdasesasnysonenoncncyesceeseccees 6

Il. The Fifth Cireuit Erred In Holding That The

Warrant For Petitioner Was Validly Issued Because

The Magistrate’s Own Actions Demonstrate That He

Was Not A “Neutral and Detached” Magistrate .... 7

III. The Fifth Cireuit Erred In Holding That The Arrest

Warrant Was Issued Upon Probable Cause Because

The Magistrate’s Delay Of Self-Disqualification Until

Immediately After The Probable Cause Determination

Violates Petitioner’s Guarantee Of Due Process Of

Law Under The Federal Constitution ............cccee 7

IV. The Fifth Cireuit Erred In Its Finding That The

Magistrate Disqualified Himself “Because He Was

Related To Gorel’s Wife,” Because The Magistrate’s

Own Testimony Fails To Identify That Specific

Reason And Permits Wide-Range Speculation As To

The Reasons For Self-Disqualification .................0008 7

PAGE

V. The Fifth Cireuit Erred In Its Factual Determination

That Petitioner Was Taken Before A Magistrate On

The Evening Of His Arrest Because The Record

Shows Conclusively The Contrary, i.e. That He Was

Not Taken Before A Magistrate At That Time Nor

Until The Late Morning Of The Day Following His

SRD svi sheachassatisemnnttsbikstecssiatenbtbiniam tienen Sapiinlbglaipennisee 7

VI. The Fifth Circuit Erred In Its Factual Determination

And Implied Finding That The Magistrate Disquali-

fied Himself When Petitioner Was Taken Before Him

On The Evening Of Petitioner’s Arrest, Because The

Record Shows Conclusively That The Magistrate’s

Self-Disqualification Occurred Immediately After His

Probable Cause Determination And Prior To Petition-

er’s Arrest, By Announcing His Disqualification To

The FBI Agent Who Presented The Affidavit For The

II FE IE ccnectapen cst sinctinennten cibsemnriptatidantananstnnss 7

VII. The Fifth Circuit Erred In Holding That The Arrest

Warrant Issued Upon Probable Cause ............cc00 18

VIII. The Fifth Cireuit Erred In Holding That The Infor-

mant In The Affidavit For The Arrest Warrant Was

Reliable Because The Informant Was A Confessed

Participant In The Conspiracy as per United States

¥. Baprae, GOS Oe, CFG CEGUR) siseveesvserinsaicsisincssescseces 18

i csi caciscsiotaeicescchecnscekcenbaiaeecn epee hihinsiehhaalssttiaeaneeiinetpucoianveaio 37

BTR D. aiicincsenscescvsssiestiscscccescnnsesvete» ossqansesscrsssescsncseunashsstuasetones A-1

BORAGE BS vsccvissssesqeascnewsasctseinsuiasscneessdbcheccorassyesassiasneeseneveayatvens ogee B-1

TABLE OF AUTHORITIES

Cases

Aguilar v. Texas, 378 U.S. 108, 84 8.Ct. 1509, 12 L.Ed.2d

FEE AD Sin steo pn dicididankcieic mane geting iaaiaapsahoppigiaatnnintensnlgge 26

Curry v. Secretary of Army, 595 F.2d 873 (U.S. App. D.C.

DGD, stnabivasheninseccietialigpdantacad igen soak asin inbig vein mnnapaanaa iter 17

Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.

RS ERR PICS RRR Tee Sana 1 ne ee ne e aoe 26

Fredonia Broadcasting Corporation, Inc. v. RCA Corpora-

hae, GT Be SR COE I RTO) nccpdecscentiicnctnccsscsestsacesscgne 14

Henry v. United States, 361 U.S. 98, 100-101, 80 S.Ct. 168,

ill

PAGE

Johnson v. United States, 1948 333 U.S. 10, 14, 68 S.Ct. 367,

ee HUG UE sllbiitisstdenesinscdicbisintacddosacevcnimladunbatonatanrs 11

Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d

IPS: CRED Aciavsseiciasiosdssnasdinanidscheapersnsaundadobenidiaataniinnibienents 27, 32, 33

McDonald v. United States, 335 U.S. 451, 456 (1948) ........ 9, 10,11

Middendorf v. Henry, 425 U.S. 25, 43, 96 S.Ct. 1281, 1291,

5 A I CMPD sisiicts:Cecnpedccventrsinhbiingyabvtoisniiicnacvasiabeheien 17

Rideau v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417

IED sakanbailcieds slhobbealaAcchisishdakieeelnsniiessibeaaidiie initiate nasibatnlabcidiici 15

Rodgers v. United States, 442 F.2d 902 (5 Cir. 1971) ........ 27

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21

Si Re CRIED scatchah ences kevin atiiasbsntcs nate tctalctoosoiesav cnc 27

Thompson v. White, 406 F.2d 1176 (5 Cir. 1969) wo. 27

United States v. Ashley, 569 F.2d 975 (1978) vcs. 25, 26

United States v. Chavez, 482 F.2d 1268 (5th Cir. 1978) ...... 12, 25

United States v. Harris, 403 U.S. 573 (1971) ......... 3, 6, 18, 23, 35

Umted States v. Lefkowitz, 1931, 285 U.S. 452, 464, 52 S.Ct.

GD, Se, TS Ue BOG, B77, Ge RI TIO insisssvisicedevinsevtnvsadcccedsssnvere 11

Umited States v. Lovasco, 97 S.Ct. 2044 (1977) cocccccsseceeee 17

United States v. Parish, 468 F.2d 1129 (U.S.App.D.©. 1972)

cert. denied, 93 S.Ct. 1430, 410 U.S. 957, 35 L.Ed.2d 690 15

United States v. Squella-Avendano, 447 F.2d 575 (5th Cir.

1971) cert. denied 404 U.S. 985, 92 S.Ct. 450, 30 L.Ed.2d

ED tsk einicetnichaninie cepa tata dite indiaatataat niacin 12, 13, 26, 28

United States v. Toscanino, 500 F.2d 267 (2nd. Cr. 1974) .... 16

United States v. United States District Court for the Eastern

District of Michigan, 407 U.S. 297, 32 L.Ed.2d 752, 925

ili UO cling ia lic 13

Whiteley v. Warden, Wyoming Penintentiary, 401 U.S. 560,

91 S.Ct. 1031, 28 L.Bd.2d 306 (1971) wun cescesceceseees 28, 32

Wooten v. United States, 380 F.2d 230 (5th Cir. 1967) .... 25

Statutes and Constitutional Provisions

Fourth Amendment to the Constitution of the United States 4

Fifth Amendment to the Constitution of the United States .. 4

OR TS Ree a ene Ree BON Manan am 4,5,6,14

ee Ee ED Sight one pe a es ae ak 2

Other Authorities In THE

PAGE -

Rule 19(1) (b) of the Rules of the Supreme Court of the . Pupreme Court of the United Ptates

CO © TOR scssici caiseiscciseisdincd bounseceescisonnilblakadsinnacaaicamenaiesni nanan 2 OcToBER Term, 1979

Sheldon R. Shapiro, Requirement, Under Federal Constitu-

tion, That Person Issuing Warrant For Arrest or Search

Be Neutral and Detached Magistrate 32 L.Ed.2d 970 ...... 14 No.

Marcia G. Robeson, Constitution and Application of 28

U.S.C.A. § 455(a) Providing for Disqualification of

Justice, Judge, Magistrate, or Referee In Bankruptey in Ear. Jerome Go

any Proceeding in which his Impartially Might Reason- P viru sncclbiceaee, me

ably be Questioned 40 ALR Fed. 954 w...cccccccccccssesccseseseseeesees 15 Petitioner,

Terri J. Lacy, Disqualification of Federal Judges: Statutory

Right To Recusal And The 1974 Amendments to Title 28; Unirep States or AMERICA,

Waal COT UR BOTS casiccecsicegcmnciscaetneiiees 15 Respondent.

Ellen M. Martin, Disqualification of Federal Judges for Bias 5. abaicbenc sas

Under 28 U.S.C. Section 455;45 Forhlam L. Rev. 139, PETITION FOR WRIT OF CERTIORARI

TNE | diccennssccsscntwsuytinniectichascniqualabsadiabiaaaiadnasaimeaamaimammaliei: 15

ER NEE SEMEL SS TO THE UNITED STATES COURT

Note: Disqualification of Justices and Judges in the Feder

Courts, 86 Harvard L. Rev. 736, 1972-73 scscccsscssceesecsne 15 OF APPEALS FOR THE FIFTH CIRCUIT

Petitioner, Karl Jerome Gorel, respectfully prays that

this Court issue a writ of certiorari to review and reverse

the judgement of the United States Court of Appeals for

the Fifth Circuit entered in cause number 78-5592 on Sep-

tember 17, 1979, affirming the judgement of the United

States District Court for the Southern District of Texas

at Houston, (Hereafter District Court).

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit has not been officially reported. The United

States Court of Appeals for the Fifth Circuit affirmed

Petitioner’s conviction of conspiracy to kidnap on Septem-

ber 17, 1979. He was convicted in the United States District

Court for the Southern District of Texas at Houston. The

United States Court of Appeals for the Fifth Circuit denied

petition for rehearing on January 11, 1980. The opinions

of September 17, 1979 and January 11, 1980 are attached

hereto.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28

U.S.C. See. 1254 (1) and Rule 19 (1) (b.) of the Rules of

this Court, to appeal a decision of the United States Court

of Appeals for the Fifth Circuit (hereafter Fifth Circuit),

which has decided a federal question in conflict with an ap-

plicable statute and with applicable decisions of this Court;

or which has decided an important question of federal law

which has not been, but should be, settled by this Court;

and which has rendered a decision in conflict with the deci-

sion of another Court of Appeals and with decisions of the

same Court of Appeals on the same matter, and to call for

the exercise of this Court’s supervisory powers over in-

ferior Federal Courts.

This petition is timely in that it is filed within thirty (30)

days of the denial for rehearing.

QUESTIONS PRESENTED FOR REVIEW

Petitioner presents the following questions for review by

this Court:

1. Whether the Fifth Cireuit erred in holding that the

arrest warrant for Petitioner was issued upon prob-

able cause because the issuing magistrate’s failure to

disqualify himself prior to his probable cause determi-

nation violates Petitioner’s constitutional rights under

the Fourth Amendment to the United States Constitu-

tion and rights under 28USC§455 (a).

. Whether the Fifth Circuit erred in holding that the

arrest warrant for Petitioner was validly issued be- _

cause the magistrate’s own actions show that he was

not a “neutral and detached” magistrate.

. Whether the Fifth Cireuit erred in holding that the

rest warrant was issued upon probable cause be-

cuase the magistrate’s delay of self disqualification

until immediately after the probable cause determi-

nation violates Petitioner’s guarantee of due process

of law under the Federal Constitution.

. Whether the Fifth Cireuit erred in holding that the

arrest warrant issued upon probable cause.

. Whether the Fifth Cireuit erred in its holding that

the information in the affidavit for the arrest of Peti-

tioner was reliable because the informant was a con-

fessed participant in the conspiracy as per United

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

. Whether the Fifth Circuit erred in its finding that the

magistrate disqualified himself “because he was re-

lated to Gorel’s wife”, when the magistrate’s own

testimony fails to identify that specific reason and

permits wide-range speculation as to the reasons for

self-disqualification.

. Whether the Fifth Circuit erred in its factual deter-

mination that Petitioner was taken before a magi-

strate on the evening of his arrest when the record

shows conclusively the contrary,i.e. that he was not

taken before a magistrate at that time nor until the

late morning of the day following his arrest.

. Whether the Fifth Cireuit erred in its factual deter-

mination and implied finding that the magistrate dis-

qualified himself when Petitioner was taken before

him on the evening of Petitioner’s arrest, when the

record shows conclusively that the magistrate’s self-

disqualification occurred immediately after his prob-

able cause determination and prior to Petitioner’s

arrest, by announcing his disqualification to the FBI

agent who presented the affidavit for the arrest war-

rant.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The constitutional and statutory provisions relied upon

are the Fourth and Fifth Amendments to the Constitution

of the United States and 28USC§455(a). The Fourth

Amendment to the Constitution of the United States pro-

vides as follows:

“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 be issued, but upon probable cause,

supported by Oath or affirmation, and particularly

describing the place to be searched; and the persons

or things to be seized.” U.S.C.A. Amend. 1 to 4

The Fifth Amendment to the Constitution of the United

States provides as follows:

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless a presentment or

indictment of a Grand Jury, except in cases arising

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

actual service in time of War or public danger; nor

shall any person be subject for the same offence to

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

compelled in any criminal case to be a witness against

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

without due process of law; nor shall private property

be taken for public use, without just compensation”,

U.S.C{A. Amend. 5

28USC§454(a) provides as follows:

“Any justice, judge, magistrate, or referee in bank-

ruptey of the United States shall disqualify himself in

any proceeding in which his imparticality might reason-

ably be questioned”. As amended December 5, 1974,

Pub. L. 93-512, § 1, 88 Stat. 1609.

The amendment effective October 1, 1979 omits any ref-

erence to referee in bankruptcy. However, the office of

magistrate is included in both the 1974 and 1979 amend-

ments. «=

STATEMENT OF THE CASE

The Case in the District Court

This petition arises from an opinion issued on September

17, 1979 by the Fifth Circuit affirming Petitioner’s convic-

tion of conspiracy to kidnap. On January 11, 1980 the Fifth

Circuit denied petition for rehearing.

Petitioner, Earl J. Gorel, was charged in a three-count

indictment together with Raymond Puscedu and Armando

Luna and unindicted co-conspirators Richard Rodriguez

and Lizandro Tijerina-Gutierrez with conspiracy to kidnap

Douglas Schnitzer in violation of Title 18, United States

Code, Section 1201; and with conspiracy to send a ransom

note through the United States Mail for the release of

Douglas Schnitzer, in violation of Title 18, United States

Code, Section 371. The jury convicted Petitioner of con-

spiracy to kidnap and acquitted him of conspiracy to use

the United States Mail to send a ransom note.

II.

The Case in the Fifth Circuit

On September 17, 1979, the Fifth Circuit issued its deci-

sion affirming Petitioner’s conviction of conspiracy to kid-

nap by holding with regard to the probable cause attack

on the arrest warrant:

_ “The district court could properly determine that the

information in the affidavit was reliable because the

informant was a confessed participant in the con-

spiracy. See United States vs. Harris, 403 U.S. 573,

583, 918.Ct. 2075, 29L.ED. 2d723(1971)”.

The only reference to the magistrate problem consists of

several factual observations, all disputed here, regarding

the time and reason for disqualification :

“Gorel was arrested at 5:42 p.m. and arrainged at

about 10:30 a.m. the next day. When Gorel was taken

before a magistrate on the evening of his arrest, the

magistrate disqualified himself from the proceedings

because he was related to Gorel’s wife.”

REASONS FOR ALLOWANCE OF THE WRIT

The Fifth Cireuit Erred In Holding That The Arrest

Warrant For Petitioner Was Issued Upon Probable Cause

Because The Issuing Magistrate’s Failure To Disqualify

Himself Prior To His Probable Cause Determination Vio-

lates Petitioner’s Constitutional Rights Under The Fourth

Amendment To The United States Constitution And His

Rights Under 28USC§455(a).

IT.

The Fifth Cireuit Erred In Holding That The Arrest

Warrant For Petitioner Was Validly Issued Because The

Magistrate’s Own Actions Demonstrate That He Was Not

A “Neutral and Detached” Magistrate.

ITT.

The Fifth Cireuit Erred In Holding That The Arrest

Warrant Was Issued Upon Probable Cause Because The

Magistrate’s Delay Of Self-Disqualification Until Immedi-

ately After The Probable Cause Determination Violates

Petitioner’s Guarantee Of Due Process Of Law Under The

Federal Constitution,

IV.

The Fifth Cireuit Erred In Its Finding That The Magi-

strate Disqualified Himself “Because He Was Related To

“orel’s Wife,” Because The Magistrate’s Own Testimony

"ails To Identify That Specific Reason And Permits Wide-

Range Speculation As To The Reasons For Self-Disquali-

fication.

The Fifth Circuit Erred In Its Factual Determination

That Petitioner Was Taken Before A Magistrate On The

Evening Of His Arrest Because The Record Shows Con-

clusively The Contrary, ie. That He Was Not Taken

Before A Magistrate At That Time Nor Until The Late

Morning Of The Day Following His Arrest.

VI.

The Fifth Cireuit Erred In Its Factual Determination

And Implied Finding That The Magistrate Disqualified

Himself When Petitioner Was Taken Before Him Qn The

Evening Of Petitioner’s Arrest, Because The Record Shows

Conclusively That The Magistrate’s Self-Disqualification

Occurred Immediately After His Probable Cause Deter-

mination And Prior To Petitioner’s Arrest, By Announcing

His Disqualification To The FBI Agent Who Presented

The Affidavit For The Arrest Warrant.

Reasons for allowance of the Writ I thru VI have been

grouped together because they all relate to the issue of the

magistrate.

STATEMENT OF THE CASE MATERIAL

TO THE MAGISTRATE ISSUE

Appellant contends that the arrest warrant in this case

was issued by a magistrate who was not neutral. The

arrest warrant was signed by the Honorable Norman Black

on February 14, 1978, (Motion to Suppress, p.22) and then

the Honorable Norman Black decided he would have no

further participation in the case dealing with the Defend-

ant-Appellant. (Motion to Suppress, p.20). The magistrate

answered in the affirmative to the following question:

“Did you, because of your knowledge of the defendant,

Gorel, excuse yourself from further participation in

this case thereafter or advise the agent to go to one

of the other magistrates?” — (Motion to Suppress,

p.20).

The point is that the magistrate should have disqualified

himself from the very beginning. He obviously felt that

he should disqualify himself. (Motion to Suppress, p.16).

But to issue the warrant, a threshold action of great

significance, and then to conclude that disqualification was

proper, is tantamount to violating the very principle the

Fourth Amendment is designed to protect, i.e., to interpose

a neutral magistrate between the citizen and the police thus

requiring than an objective mind “pass on the desires of

the police”. McDonald v. United States, 335 U.S. 451, 456

(1948).

Further analysis shows the spectre of police pressure

that appeared to have been exerted on the magistrate. For

example, the magistrate testified to signing the warrant,

“after 5:30” P.M. on February 14, 1978 (Motion to Sup-

press, p. ). FBI Agent Russ testified that Defendant-

Appellant was arresied at 5:42 P.M. on that day (Motion

to Suppress, p.35). Russ further stated that he had been

at Defendant-Appellant’s home at 3:00 o’clock on I‘ebruary

14, 1978, to arrest him but that he was not at home. (Motion

to Suppress, p.48); and that if Defendant-Appellant had

been home, he would have arrested him and taken him to

a magistrate that afternoon (Motion to Suppress, p.48). In

other words, the FBI was planning at first to arrest Defen-

dant-Appellant without a warrant, presumably under the

authority of 18 U.S.C.A., §3052.

The magistrate testified that during the month of Febru-

ary, 1978, he was primarily responsible for “duty”? — such

as issuing warrants and handling initial appearances (Mo-

tion to Suppress, p. 14) ; that the affidavit for the arrest war-

rant of Defendant-Appellant contained substantially the

same information as prior affidavits the judge had seen in

connection with issuing warrants for the other defendants

(Motion to Suppress, p. 17) ; but that the affidavit containing

the name of Defendant-Appellant was not seen by him until

about a half hour prior to the issuance of the warrant

(Motion to Suppress, p. 17,18). In short, the Judge’s ac-

quaintance with prior affidavits in this case dealing with

other suspects and the hurried attitude of the FBI to arrest

the Defendant-Appellant without or with a warrant were

two key circumstances prevailing at the time Judge Black

issued the arrest warrant for Gorel; however, fully well-

knowing at the time of issuing the warrant that he should

disqualify himself because of the magistrate’s prior knowl-

edge of Gorel or his wife—or his relationship to them

(Motion to Suppress, p.16).

Obviously, in retrospect, Judge Black should have re-

ferred the affidavit for Gorel’s warrant to another judge.

Under the circumstances prevailing, — hurry and rush by

the FBI to get the warrant issued, the judge’s familiarity

with prior affidavits, and the appearance of a name causing

the judge to disqualify himself, all combined here to make

the judge a mere rubberstamp for the FBI — to the extent

at least that he refused to put them off with an initial dis-

qualification. This does not comply with the mandatory

Constitutional standard imposed by the Fourth Amendment.

ARGUMENT AND AUTHORITIES

MATERIAL TO THE MAGISTRATE ISSUE

Defendant-Appellant contends that his constitutional

right to due process of law and his rights under the

Fourth Amendment to the United States Constitution were

critically violated by the magistrate’s failure to disqualify

himself from the case ab initio.

First of all, it is well established that. the “purpose of

the warrant requirement is to slow down the police by

requiring them to write down their reasons for a neutral

magistrate to pass on before they intrude on the privacy

or property right of the citizen.” McDonald v. United

States, 335 U.S. 451, 455, 69 S.Ct. 191, 93 L.Ed 153 (1948).

In McDonald, the United States Supreme Court interpreted

the term “neutral magistrate” with the following expo-

sition:

“Absent some grave emergency, the Fourth Amend-

ment had interposed a magistrate between the citizen

and the police. This was done not to shield criminals

nor make the home a safe haven for illegal activities.

It was done so that an objective mind might weigh the

need to invade that privacy in order to enforce the

law.” 335 U.S. 455 (emphasis added)

McDonald further stresses that “Power is a heady thing;

and history shows that the police acting on their own

cannot be trusted” at p. 456. The concept of the magistrate’s

function which the Constitution mandates is well illus-

trated in many cases. For a representative sampling, two

eases are cited for the Court’s convenience. Both the

Johnson ana Lefkowitz cases are most frequently cited and

quoted in the jurisprudence on this point. Johnson v. United

States, (1948) 333 U.S. 10, 14, 68 S.Ct. 367, 369, 2 L.Ed. 436,

440 states:

“The point of the Fourth Amendment, which often is

not grasped by zealous officers, is not that it denies

law enforcement the support of the usual inferences

which reasonable men draw from evidence. Its pro-

tection consists in requiring that those inferences be

drawn by a neutral and detached magistrate instead of

being judged by the officer engaged in the often com-

petitive enterprise of ferreting out crime.” (emphasis

added )

In United States v. Lefkowitz, (1931) 285 U.S. 452, 464. 52

S.Ct. 420, 423, 76 L.Ed. 877, 82 ALR 775, the U.S. Supreme

Court said:

“cc

. . . the informed and deliberate determinations of

magistrates empowered to issue warrants as to what

searches and seizures are permissible under the Con-

stitution are to be preferred over the hurried action

of officers and others who may happen to make arrests.”

(emphasis added)

Specifically, the Fifth Cireuit has also had occasion to

write on the constitutional function of the magistrate such

as in the Chavez case.

In United States v. Chavez, 482 F.2d 1268 (5th Cireuit,

1973), the Court, in expounding on the “two-pronged test”

of Aguilar, makes the following far-reaching observation:

“The theory underlying these twin requirements is

that they are dictated by the long-standing principle

that determinations of probable cause are to be made

by ‘neutral and detached magistrates’, rather than by

‘officers engaged in the often competitive enterprise of

ferreting out crime’. Johnson v. United States, 1948,

333 U.S. 10, 14, 68 S.Ct. 367, 369, 2L.Ed. 436, 440” at

p. 1270.

The Fifth Cireuit went on to amplify the crucial position

and posture of the magistrate in determinations of probable

cause as follows:

“If a magistrate accepted an affidavit which did not

meet the first prong of the test, the theory went, he

would abandon to the officer his Constitutional function

of making an independent determination; for his deter-

mination would then be entirely dependent upon the

officer’s judgment of the informant’s credibility. Simi-

larly, if he accepted an affidavit not meeting the second

prong, he would abandon his function to the informant;

then his determination would depend entirely upon the

informant’s judgment about the facts of the ease. (Cit-

ing Aguilar v. Texas and United States v. Harris)” at

1270. (emphasis added)

And in United States v. Squella-Avendano, 447 F.2d 575

(5th Cir., 1971), cert. denied 404 U.S. 985, 92 S.Ct. 450, 30

L.Ed. 2d 369, this Honorable Court compares the court’s

scrutiny in determining probable cause between a warrant-

less arrest and an arrest with warrant

“based on the sound judgment of an impartial mag-

istrate.” at p. 579. (emphasis added)

It was specifically in this comparison of the probable

cause determination process that the Fifth Circuit recog-

nized by implication the consequences of the constitutional

mandate of a neutral and impartial magistrate when the

Fifth Cireuit said in Squella-Avendano:

“Of course, a warrantless arrest requires closer seru-

tiny by the courts in determining whether probable

cause exists than would an arrest based on the sound

judgment of an impartial magistrate.” at p. 579 (em-

phasis added)

The consequence is that courts simply feel they need

not look as closely at the probable cause facts where an

arrest warrant has been issued than when considering an

arrest without a warrant. However, when a magistrate’s

neutrality and impartiality are impugned and negated by

his own self-disqualification as here, the defect cannot be

cured by simply taking a little closer look at the probable

cause facts. The issuance of a warrant as here, by itself

constitutes a violation of Appellant’s due process rights

under the Federal Constitution. That stems from the fact

that the magistrate knew when he issued the warrant that

he should disqualify himself and he so did to the very agent

who presented the affidavit for the warrant immediately

after issuing the same. This constitutes a violation of Ap-

pellant’s rights under the Fifth Amendment to the United

States Constitution.

This Honorable Supreme Court passed squarely on the

Fourth Amendment problem presented here in United

States v. United States District Court For The Eastern

District of Michigan, 407 U.S. 297, 32 LEd 2d 752, 92 S.Ct.

2125 (1972). There this Court stated with respect to the

Fourth Amendment:

“Inherent in the concept of a warrant is its issuance

by a ‘neutral and detached magistrate’. Coolidge v. New

Hampshire, supra, at 453, 29 L.Ed2d at 575; KATZ

v. United States, supra, at 356, 19L.Eid.2d at 585”.

This Honorable Supreme Court has frequently stated, as

a matter of federal constitutional law, that the person who

issues an arrest warrant or a search warrant must be “a

neutral and detached magistrate”. This Court’s cases on

this matter are collected in the excellent annotation by

Sheldon R. Shapiro, Requirement, Under Federal Consti-

tution, That Person Issuing Warrant For Arrest or Search

Be Neutral and Detached Magistrate 32L.Ed2d970.

Of similar gravity is the problem as it relates to 28 U.S.C.

§ 455(a). It is obvious that the term “proceeding” includes

the pretrial stage of litigation. This statute deals with dis-

qualification of the judge on his own initiative. The Fifth

Circuit position here is clearly in conflict with its pronounce-

ments in Fredonia Broadcasting Corporation, Inc. v. RCA

Corporation, 569 F2d(5 Cir. 1978). There the Fifth Cireuit

wrote on 28 U.S.C. § 455 (a) and in the course thereof made

the following observation:

“... we are concerned with the ‘purity of the judicial

process and its institutions’ KINNEAR-WEED Corp.

v. HUMBLE OIL & REFINING CO., 403 F.2d 437,

439-40 (5th Cir. 1968), cert. denied, 404 U.S. 941, 92

S.Ct. 285, 30 L.Ed.2d 255 (1971).” at 256

And further, in quoting this Honorable Supreme Court,

Stated:

“The Supreme Court has repeatedly stated that ‘justice

must satisfy the appearance of justice’. (citing Supreme

Court Cases) at 256.

It is rather obvious that the judicial system must be pro-

tected from the appearance of inpropriety in the eyes of

both the parties and the general public. The conduct of the

magistrate here clearly violates 28 U.S.C. § 455 (a) as inter-

preted by the Fifth Circuit and such conduct should clearly

not be condoned by this Court. MARCIA G. ROBESON,

Construction and Application of 28 USCA §455(a) Provid-

ing for Disqualification of Justice, Judge, Magistrate, or

Referee In Bankruptcy In Any Proceeding In Which His

Impartiality Might Reasonably Be Questioned, 40 ALR Fed

954; Terri J. Lacey, Disqualification of Federal Judges:

Statutory Right to Recusal And The 1974 Amendments to

Title 28, 31 SWLJ 887 Fall 1977; Martin, Disqualification

of Federal Judges for Bias under 28 USC Section 144 and

Revised Section 455, 45 Fordham L Rev 139, 1976-77; Note,

Disqualification of judges and justices in the Federal Courts,

86 Harvard L Rev 736, 1972-73.

THE FIFTH AMENDMENT

United States v. Parish, 468 F.2d 1129 (U.S.App.D.C.

1972) cert. denied, 93 S.Ct. 1430, 410 U.S. 957, 35 L.Ed.2d

690, states the dimension and content of Appellant’s rights:

“The Fifth Amendment ... . insures among other

things that ‘no person shall be . . . . deprived of life,

liberty, or property, without due process of law. Es-

sential fairness is a fundamental due process require-

ment in criminal prosecutions’... .”

The guarantee of due process of the Fifth Amendment

has evolved over the years from the basic minimal rights

of right to counsel, right to plead not guilty and the right

to be tried in a courtroom presided over by a judge, Rideau

v. State of Louisiana, 373 U.S. 723, 83 S.Ct. 1417 (1963) to

encompass the pre-trial stage of criminal proceedings. The

requirement of due process in obtaining a conviction is

greater now than the due process standard which once was

met “when one present in court is convicted of crime after

being fairly apprised of the charges against him and after

a fair trial in accordance with constitutional procedural

safeguards.” In analyzing the evolution of the due process

concept, United States v. Toscanino, 500 F.2d 267 (2nd

Cir, 1974), notes that the requirement of due process ex-

tends to the pretrial conduct of law enforcement authorities

and concludes with a definitive statement on the present

scope of due process:

“.... the Supreme Court’s expansion of the concept

of due process, ... now protects the accused against

pre-trial illegality by denying to the government the

fruits of its exploitation of any deliberate and un-

necessary lawlessness on its part.”

Thus, when the magistrate issued the warrant, then dis-

qualified himself to the agent and failed to send the agent

to another magistrate, the agent knew that the warrant was

not issued by a neutral and impartial magistrate. The

agent’s failure to seek out another magistrate, but rather,

to proceed to execute the warrant that was issued, con-

stitutes pre-trial illegality prohibited by the Fifth Amend-

ment to the Federal Constitution. As the record quite

clearly reflects, the magistrate’s basis for self-disqualifica-

tion was not “because he was related to Gorel’s wife” as the

Fifth Cireuit claims. From the record a wide range of

speculation for the reason or reasons for disqualification

is justified (Motion to Suppress, p. 16, 20). Consequently,

what happened here is that the magistrate’s violation of

Appellant’s rights under the Fourth and Fifth Amendments

to the Federal Constitution became the violation of Appel-

lant’s rights by the FBI agent. The result quite obviously

is actual prejudice in that the combined action here resulted

in the issuance and execution of an arrest warrant violating

Appellant’s rights. This Court is respectfully advised that

a showing of actual prejudice is not necessary here. In

Curry v. Secretary of Army, 595 F.2d 873 (U.S. APP. D.C.

1979) it was held that

“....a showing of actual prejudice is not a prerequisite

to finding © conviction constitutionally invalid on due

process grounds. If a procedure ‘involves such a prob-

ability that prejudice may result’, it will be struck

down and the conviction reversed.” at p. 876

What process is due, of course, depends upon “an analysis

of the interest of the individual and those of the regime

to which he is subject”. Middendorf v. Henry, 425 U.S. 25,

43, 96 S.Ct.1281, 1291, 47 L.Ed.2d 556 (1976). The United

States Supreme Court, in reviewing 2 due process complaint

as a result of preindictment delay, stated as follows:

“Judges are not free, in defining ‘due process’, to

impose on law enforcement officials our ‘personal and

private notions’ of fairness and to ‘“lisregard the limits

that bind judges in their judicial function’.” United

States v. Lovasco 97 S.Ct. 2044 (1977)

The Fifth Cireuit in Chavez, supra, reiterated the in-

trinsic connection between the two-prong test of Aguilar

and the constitutional mandate of a neutral and impartial

magistrate by showing that the key formulation of the

Aguilar test is based on that constitutional mandate:

“The theory underlying these twin requirements is

that they are dictated by the long-standing principle

that determinations of probable cause are to be made

by ‘neutral and detached magistrates’, rather than by

officers engaged in the often competitive enterprise of

ferreting out crime’.”

Therefore, when the masitrate, as here, applies his per-

sonal and private notions of fairness as to what ne can do

prior to his self-disqualification, he is disregarding the

limits that bind judges in their judicial function — and that

limit is his constitutional function of making an indepen-

dent probable cause determination—if he is neutral,

impartial and detached. Since that is a constitutional re-

quirement, the due process violation here does not need

to meet the test of whether ‘fundamental conceptions of

justice which lie at the base of our civil and political insti-

tutions’ are violated. The magistrate’s constitutional func-

tion and position is part of our fundamental conceptions

of justice. The violation occurring here is a violation of

due process and of the Fourth Amendment. Further, the

magistrate imposed on the FBI agent his personal and

private notions of fairness which resulted in the FBI’s

executing a warrant they knew was issued by a magistrate

who was not neutral, That is a violation of Appellant’s

due process guarantee under the Fifth Amendment.

REASONS FOR ALLOWANCE

OF THE WRIT

VII.

The Fifth Circuit Erred In Holding That The Arrest

Warrant Issued Upon Probable Cause.

VIII.

The Fifth Circuit Erred In Holding That The Informant

In The Affidavit For The Arrest Warrant Was Reliable

Because The Informant Was A Confessed Participant In

The Conspiracy as per United Siates v. Harris, 403 U.S. 573

(1971)

STATEMENT OF THE CASE MATERIAL

TO THE PROBABLE CAUSE ISSUE

THE AFFIDAVIT

The affidavit supposedly providing the “probable cause”

is structured in thirty five (35) separate paragraphs. Out

of these, only five (5) contain any references to a “Mr.

Green” and Gorel. For the sake of clarity, the following

breakdown is made:

Paragraph 1 of Affidavit:

“In a private meeting Puscedu told Rodriquez he

had a friend from New York, code name Mr. Green,

who had been involved in a business deal with Kenneth

Schnitzer, a wealthy Houstonian. Mr, Green wanted to

get some money and enlisted the aid of Puscedo to

kidnap one of Schnitzer’s sons and hold him for ran-

som.”

Paragraph 6 of Affidavit:

“Puscedu paid all expenses for the trip with a large

roll of $100 bills which he said he received from Mr.

Green.”

Paragraph 8 of Affidavit:

“Puscedo told him Mr. Green had gone to New York

to raise additional financing for the plot.”

Paragraph 34 of Affidavit:

“On or about February 9, 1978, FBI agents observed

Puscedo meet an individual known to FBI agents as

Earl Gorel at the Village Inn near Greenbriar and

Old Spanish Trail in Houston, Texas.”

Paragraph 35 of Affidavit:

“On February 14, 1978, after being advised of his

constitutional rights, and waiving his constitutional

rights, Raymond Puscedu advised Special Agent Brian

A. Marshall he has known Earl Gorel for approxi-

mately twenty years. During 1975, he resided with

Gorel at his residence on Willowbend in Houston,

Texas, As a result of his staying at this residence, he

was aware Kenneth Schnitzer, Jr., dated a daughter

of Gorel.

“Prior to September, 1977, Puscedu stated he went

to Gorel with the knowledge that his daughter could

obtain information concerning the activities and where-

abouts of members of the Schnitzer family. During the

Fall of 1977, Puscedu told Gorel he intended to kidnap

one of the Schnitzers and he enlisted the aid of Gorel

to obtain background information concerning the

Schnitzers to help carry out the proposed plot. In this

and subsequent conversations, Gorel provided him with

background information. Specifically, on or about Feb-

ruary 9, 1978, at a meeting at the Village Inn near Old

Spanish Trail and Greenbriar, Gorel provided him

with the current apartment number and address of

Douglas Schnitzer in Tucson, Arizona.

“On February 14, 1978, Kenneth Schnitzer, Jr., ad-

vised a Special Agent of the FBI that he knows Marla

Gorel, has dated her for some time prior to approxi-

mately one year to a year and a half ago. He stated

Marla Gorel was living with her parents on Willowbend

in Houston at that time but has since moved from

her parents’ home. He stated Marla told him in about

November, 1976, that he was going to Tucson, Arizona,

and while there would contact his brother, Douglas

Schnitzer.”

None of the paragraphs of the affidavit could possibly

furnish probable cause for the arrest of Defendant-Appel-

lant. For example, in paragraph six is a reference to

Puscedu paying expenses with a roll of $100 bills allegedly

received from Mr. Green; then in paragraph eight there is

a reference io Mr. Green going to New York to raise addi-

tional financing for the plot; BUT, paragraph ten refers

to a meeting between Rodriquez and Puscedu in which

Puscedu told Rodriquez that the plot would have to be

postponed until after he could raise more money; para-

graph ten clearly shows that the “he” is Puscedu and no one

else; in order to raise more money for the plot, Puscedu

was going to sign on the crew of a ship for thirty or forty

days. In fact, Puscedu departed Houston, Texas, aboard

the “Gulf Shipper” as determined by FBI agents, according

to paragraph seventeen of the affidavit.

Consequently, the affidavit shows a clear cut cause and

effect relationship between raising money and the progress

of the conspiracy to kidnap. And it shows clearly that if

Puscedu is reliable, then he is the one raising the money

and the conspiracy to kidnap must wait until Puscedu’s

efforts to raise money are successful. If, on the other hand,

it is “Mr. Green” who is financing the conspiracy to kid-

nap, then, paragraph ten of the affidavit shows that Puscedu

is lying to Rodriquez about needing to raise money for the

plot by having to sign on the crew of a ship. The point is:

for the probable cause analysis, this Honorable Court cannot

have it both ways—that is, Puscedu as reliable because

he confessed to a crime and yet believe that “Mr. Green”

is financing the plot. As a matter of fact, the affidavit’s

paragraphs dealing with the financing of the plot would

lead a neutral magistrate to believe that if Mr. Green was

involved, he had withdrawn from the conspiracy at least

at the point when, according to Rodriquez, Puscedu claims

he has to raise money and therefore the plot would have

to be postponed.

Further, Puscedu was observed departing the vessel “Gulf

Ship..<:r” by FBI agents on February 6, 1978, according to

paragi. ~h 20 of the affidavit. In short, Puscedu was gone

from November 29, 1977, to February 6, 1978. According

to paragraph 27 of the affidavit, FBI agents monitored a

conversation between Rodriquez and Puscedu, who was to

receive $2,000.00 from an unknown source on February 13,

1978, with which to help finance the plot. That indeed is

significant in the probable cause analysis. Here, where the

FBI is monitoring the conversation between Rodriquez and

Puscedu, there is no reference to a Mr. Green when they

talk about money. However, paragraphs 6 and 8 of the

affidavit, where there is no FBI monitoring, Puscedu is

allegedly making references to a Mr. Green, and to Mr.

Green’s financing of the plot, according to Rodriquez. It is

rather curious that if Mr. Green was financing the plot,

his name would not have come up in the monitored conver-

sation between Rodriquez and Puscedu referred to in para-

graph 27 of the affidavit! After all, according to Rodriquez,

Puscedu has mentioned Mr. Green’s financing on several

occasions to him.

Clearly, according to the affidavit, Puscedu was under

surveillance on February 9, 1978. On that same day, Puscedu

is observed meeting with Defendant-Appellant at the Vil-

lage Inn near Greenbriar and Old Spanish Trail in Houston,

Texas. Again, it would not be unreasonable to assume from

the affidavit that the FBI kept Defendant-Appellant under

surveillance from that point forward. But whether they

did or did not keep Defendant under surveillance, there is

no mention of any evidence that Defendant-Appellant was

furnishing any funds or knew of or participated in any of

the arrangements for the kidnapping trip. As a matter of

fact, according to the affidavit, one kidnapping attempt had

already failed on or about October 29, 1977. Clearly, no

probable cause is established as against Defendant-Appel-

lant in the first thirty-four paragraphs of the affidavit.

PARAGRAPH 35 OF AFFIDAVIT

A careful analysis of this paragraph in the affidavit

cannot disclose anything but the sheer lack of probable

cause. This paragraph will be analyzed in depth with ap-

plicable case authority in the next sections of this Brief.

ARGUMENT AND AUTHORITIES MATERIAL

TO THE PROBABLE CAUSE ISSUE

THE AFFIDAVIT

The Fifth Circuit’s treatment of the “no probable cause”

argument of Petitioner is rather unique. The argument

was disposed of in a short two-step maneuver. First, the

Court succinctly restated Aguilar’s two-prong test. Then

the Court noted that “the district court could properly

determine that the information in the affidavit was re-

liable because the informant was a confessed participant

in the conspiracy”, citing United States v. Harris, 403 U.S.

973, 583, 915 8.Ct. 2075, 29 L.Ed. 2nd 723 (1971). The Fifth

Cireuit fails to reveal its reasoning and totally fails to

discuss how the affidavit meets the Aguilar and Harris

holdings. Other cases from that Court, to be discussed

herein, have shorter and far less complex affidavits than

this case, and yet this Court has always gone to great pains

in turning away or accepting a “no probable cause” attack

by demonstrating why the particular affidavit meets or

fails to meet the factual and legal requirements of the

probable cause determination. The Court’s absolute refusal

here to employ the same technique almost leads one to

believe that the Fifth Circuit does not want to expose its

reasoning. This smug, almost “no comment” attitude of the

Court on such a vital argument is not a commendable tech-

nique for appellate decision-writing and raises under the

circumstances here, serious questions on why the Court

handled the argument of Appellant in the short-shrift

fashion reflected in the opinion.

It is respectfully submitted that the Fifth Circuit is

changing or attempting to change the application of A guilar

and subsequent cases thereunder and that the holding here

is in clear conflict with Aguilar and its progeny. This is

accomplished in part by Fifth Circuit’s misinterpretation

of the significance of an admission against penal interest

by an informant in determining his credibility, or the re-

liability of his information. In addition, in upholding the

probable cause determination here, the Fifth Circuit has

simply failed to take account of other legal principles firmly

embedded in the probable cause jurisprudence.

A, After Gorel, what does United States v. Harris mean

im the Fifth Circuit?

From the brief handling of the probable cause problem

here and the citing of Harris, it appears that according to

the Gorel decision, United States v. Harris stands for the

clearcut proposition that an informant’s information in an

affidavit for an-arrest is deemed reliable if the informant

is a confessed participant in a crime with which the affidavit

deals. That is not the holding of United States v. Harris

and this Honorable Court’s attention is invited to the fine

exposition of Harris in United States v. Chavez, 482 F.2d

1268 (5 Cir. 1973). In analyzing Harris in Chavez which

came two years later, the Fifth Circuit observed that in

Harris “the difficulty was whether the first prong, the re-

quirement of details supporting a conclusion that the in-

formant was credible was met.” Chavez, at p. 1271. The

Fifth Circuit, in referring to the Harris Court then stated:

“The Court found that it was, on the basis of a cumula-

tion of four different circumstances. These were: (1)

the allegation of the affiant that he regarded the in-

formant as ‘prudent’! (2) the detail provided in the

tip; (3) the fact that the accused had a reputation for

being a trafficker in non-tax paid liquor; and (4) the

fact that the information given, with the allegations

of the informant’s purchases, was a declaration against

the informant’s penal interest.” at p. 1271.

Thus, it is quite obvious that in Harris, the significance

of an admission against penal interest by an informant is

not either the sole or primary factor in satisfying the first

prong of the two-prong Aguilar test. It is only one factor

which was weighed by the Court in Harris.

Again, in adjudicating a contention that an arrest was

not supported by probable cause in United States v. Ashley,

569 F.2d 975 (1978), the Fifth Cireuit properly held that

an admission against penal interest is one of many cumu-

lating factors to be considered. The Court stated:

“Although an admission against penal interest with-

out more, is not enough to justify a finding of probable

cause, see United States v. Harris, 403 U.S. 573, 91

S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v.

Chavez, 482 F.2d 1268, 1271 (5 Cir. 1973), it is apparent

that such an admission is one of many cumulating fac-

tors to be considered.” (emphasis added)

In Ashley, the Fifth Circuit properly interpreted Harris

and Chavez in that an admission against penal interest

without more is not enough to justify a finding of probable

cause but that such an admission is one of many cumulating

factors to be considered. Surely, the Court’s explicit holding

in the present case conflicts with these decisions. It does

not appear that the Fifth Circuit even attempted a cumu-

lative factor-weighing process which Petitioner contends

is mandated by the Constitution and case precedent. Thus

in Ashley, for example, great significance was attached

to independent verification by the FBI of information fur-

nished by the informant. Even in Wooten v. United States,

3380 F.2d 230 (5 Cir., 1967) a pre-Harris case involving a

challenge of an arrest without a warrant, the Fifth Circuit

felt compelled to weigh additional factors along with an

informant’s inculpatory admissions. In Wooten, it was

held:

“Information, however, which comes from a known

perpetrator of a federal felony, concerning another

who is involved with him, is entitled to greater weight

than mere hearsay information concerning an alleged

offense. Bowers’ inculpatory admissions to Agent Vial,

together with the other evidence of Bower’s guilt, gave

credence to his positive identification of Wooten as the

man who supplied him with the counterfeit money which

he had uttered on the previous day.” at p. 232

B. What is the proper legal test for probable cause in

this case?

First, the beginning point is Aguilar v. Texas, 378 U.S.

108, 84 S.Ct. 1509, 12 L.Hd.2d 723 (1964). Aguilar provides

the two-pronged test by which we measure the effect of an

informant’s reliability on an officer’s determination of

probable cause. To rely on an informant’s report to es-

tablish probable cause, it must affirmatively appear that

the agents were informed of 1) some of the underlying

circumstances from which the informant concluded that his

information was accurate, and 2) some of the underlying

circumstances from which the officer concluded that the

informant was “credible” or his information “reliable”.

Thus, under this two-prong test, there must be an indication

that the informant gathered his information in a reliable

manner and the informant must be a credible person or his

information must be reliable. United States v. Ashley, 569

F.2d 975 (5 Cir., 1978) ; United States v. Squella-Avendano,

447 F.2d 575 (5 Cir., 1971) cert. denied, 404 U.S. 985, 92

S.Ct. 450, 30 L.Ed.2d 369 (1971). However, in applying this

basic test in the determination of probable cause for specific

situations, certain rules have been developed as a guide.

Even though it may not be accurate to use the term “rule”

in its technical connotation, nevertheless, guidelines in

evaluating an informer’s report are established.

1, GUIDELINES FOR TESTING WHETHER AGUILAR

REQUIREMENTS HAVE BEEN MET.

If the information provided is in such “detail” and

“minute particularity” that a magistrate, when confronted

with such detail, could reasonably infer that the informant

had gained his information in a reliable way, then the

report, if sufficiently incriminating, may, without more, be

grounds for finding probable cause. Spinelli v. United

States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) ;

Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3

L.Ed.2d 327 (1958).

Less detailed information from a reliable source may be

used as grounds for a finding of probable cause if indepen-

dent investigation by law enforcement agencies yields

sufficient verification or corroboration of the informant’s

report to make it

“apparent that the informant had not been fabricating

his report out of whole cloth. Corroboration must

render the report ‘of the sort which in common experi-

ence may be recognized as having been obtained in a

reliable way’.” SPINELLI, supra; DRAPER, supra;

Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4

L.Ed.2d 697 (1960) ; Rodgers v. United States, 442 F.2d

902 (5 Cir. 1971); Thompson v. White, 406 F.2d 1176

(5 Cir. 1969).

If an informant’s report does not under the above two

guidelines establish probable cause, such report may count

in the magistrate’s determination of probable cause, but

only as one of a number of other factors of “further sup-

port” tending to show probable cause. Examples of satis-

factory “further support” given in Spinelli involved law

enforcement agencies’ knowledge of independent facts which

suggest criminal conduct or of facts which take on an aura

of suspicion in light of the informant’s tip.

Whiteley v. Warden, Wyoming Penitentiary, 401 U.S.

060, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) furnishes an addi-

tional rule that the belief of the arresting officer, or the

informant, or both, that a suspect is involved in activity

that is criminal in nature must be directly supported by

information that is reliable within the meaning of Aguilar

and Spinelli. This means that where the initial impetus

for an arrest is an informer’s tip, information gathered by

the arresting officers can be used to sustain a finding of

probable cause for an arrest that could not adequately

be supported by the tip alone — but the additional infor-

mation acquired by the arresting officers must in some

sense be corroborative of the informer’s tip that the arres-

tees committed the felony or, as in Draper itself, were in

the process of committing the felony.

2. UNITED STATES v. HARRIS

For purposes of the application of guidelines by this

Honorable Court in this Case, Appellant respectfully points

out the Fifth Circuit’s reception of the Harris case.

In Squella-Avendano, supra, the Fifth Circuit observed

that Harris indicates the showing which is constitutionally

required in order to credit information of a police-inform-

er’s personal knowledge of criminal activity. The Squella-

Avendano decision precedes the Fifth Circuit’s analysis

of Harris in Chavez by two years. In Squella-Avendano,

the Fifth Cireuit further observed that Harris declined to

apply Spinelli to the extent that it prohibits a magistrate

from relying on a law enforcement officer’s knowledge of a

suspect’s reputation. In other words, in Chavez the Fifth

Circuit read Harris in regard to the first prong of Aguilar

that one of the factors the magistrate could consider was

“the fact that the affidavit also alleged that the accused had

a reputation for being a trafficker in non-tax paid liquor.”

This is of crucial importance in this case as will be outlined

in the subsequent discussion of why the Fifth Circuit is

upholding probable cause based on Harris.

C. Application of Foregoing Guidelines to Affidavit in

this case

1. DOES THE AFFIDAVIT DISCLOSE THAT THE

AGENTS WERE INFORMED OF SOME OF THE

UNDERLYING CIRCUMSTANCES FROM WHICH

THE INFORMANT CONCLUDED THAT HIS IN.

FORMATION WAS ACCURATE?

The Affidavit in this ease relies on three informants,

namely, Rodriquez, Gutierrez and Puscedu. In addition, the

Affidavit contains allegations of FBI efforts to verify cer-

tain information. As to GOREL, the Affidavit contains no

allegations by the affiant, FBI Agent Jack N. Sheridan,

that he regards Rodriquez, Gutierrez or Puscedu “credible”,

“reliable” or as in Harris, “prudent”. As to GOREL, the

Affidavit contains no allegations regarding Gorel’s reputa-

tion, such as in Harris. The Affidavit does contain allega-

tions of participation by Rodriquez, Gutierrez and Puscedu

in a kidnapping conspiracy — all clearly being declarations

against their respective penal interests. Finally, what about

the detail provided by the self-declared kidnap conspirators

to create probable cause against Gorel?

The first ten paragraphs of the Affidavit, information

furnished by Rodriquez to a Special Agent of the FBI, not

the affiant, contain three references to a Mr. Green (para-

graphs 1, 6 and 8). And all three references to Mr. Green

related by Rodriquez, involve what Pusceau, another con-

spirator, allegedly said to Rodriquez about Mr. Green.

Therefore, the references to Mr. Green in the first ten para-

graphs about Mr. Green are related by Puscedu to Rodri-

quez who disclosed this information on November 15, 1977,

to an agent of the FBI who is not the affiant. Even if

Rodriquez truthfully related what Puscedu told him about

a Mr. Green, there is no indication at all that Puscedu’s

references were not sheer fantasy. Why? Because the Affi-

davit contains no underlying circumstances from which the

affiant could conclude that Rodriquez concluded that his

information about Mr. Green was accurate. In fact, the

Affidavit tends to show that Rodriquez could more easily

than not conclude his information was not accurate and so

the affiant should have concluded. This stems from the Affi-

davit’s discrepancies about Mr. Green’s supposed financing

of the plot. Starting with paragraph 11 of the Affidavit, Rod-

riquez becomes an active participant-informer for the FBI

who use him to monitor developments of the kidnap conspir-

acy. Peculiarly, from that point forward, namely paragraph

11 through and including paragraph 33, the FBI acquires no

more information or any verification of any information

regarding a Mr. Green. As a matter of fact, according to

the Affidavit, FBI agents monitor a conversation between

Rodriquez and Puscedu (paragraph 27) on February 9,

1978, at which time finances are discussed between the two.

There is no reference by Puscedu to a Mr. Green, only a

reference to an “unknown source”. Surely, since Rodriquez

claims to have related to the FBI on November 15, 1977,

that Puscedu told him about a Mr. Green and his alleged

involvement, it appears rather strange that now, on Feb-

ruary 9, 1978, when Rodriquez is a participating informant

and knows that the FBI is monitoring his conversations

with other conspirators, he would not at least bait Puscedu

about Mr. Green in any manner whatsoever! Perhaps his

failure to do so was motivated by his concern that his

credibility would be impugned — surely a logical inference

to be drawn by a neutral magistrate. Another point of grave

consequences to Rodriquez’ reliability of information he

claims was relayed to him by Puscedu about Mr. Green’s

involvement in, by financing, the plot: On November 15,

1977, Rodriquez claims that he met with Puscedu who told

him that the plot would have to be postponed until he,

Puscedu, could raise more money (paragraph 10). Puseedu

was going to raise this money by signing on the crew of a

ship. A logical inference as to Mr. Green would clearly

be that Mr. Green is not financing the plot. That would

certainly be corroborated by the February 9, 1978-FBI

monitored conversation between Rodriquez and Puscedu!

Additionally, Puscedu’s activity was verified by FBI sur-

veillance (paragraphs 17 and 20) upon his departure on

November 29, 1977, and his return on February 6, 1978.

As to the first 33 paragraphs of the Affidavit, Appellant

strenuously urges the following factual contentions:

1. That the afiant, FBI Agent Jack M. Sheridan, was

not informed of any underlying circumstances from

which the informant Rodriquez concluded that his,

Rodriquez’s, information about Mr. Green was accu-

rate.

2. That the affiant, FBI Agent Jack M. Sheridan, was

not informed of any underlying circumstances from

which the informant Puscedu concluded that his,

Puscedu’s information about Mr. Green, as related

by Rodriquez, was accurate because the verification of

Puscedu’s activities contained in these paragraphs

leads to no inference to the accuracy of what Rodri-

quez claims Puscedu said about Mr. Green.

3. That the affiant, could only properly conclude that

the conspiracy to kidnap back in October 28, 1977,

failed because Douglas Schnitzer could not be located

and that none of the conspirators, Rodriquez, Puscedu

and Gutierrez had received information regarding

Schnitzer’s address from anyone.

PARAGRAPH 34 OF THE AFFIDAVIT

Of what possible probable cause significance is the meet-

ing between Puscedu and Gorel observed by FBI agents

on February 9, 1978— (paragraph 34)? Beginning on

February 6,°1978, when Puscedu returned on the “Gulf

Shipper”, (paragraph 20) he was under FBI surveillance

and clearly for good reason! Paragraphs 20 through 34,

which covers the period of February 6, 1978, to February

13, 1978, the Affidavit details many of Puscedu’s activities

as a result of FBI surveillance. Clearly, there is nothing

incriminating or suspicious about the meeting. Needless

to say, the FBI was highly suspicious of Puscedu at this

point, but what evidence besides suspicion rendered the

meeting meaningful to the FBI. Here, there is nothing but

suspicion by association. Clearly, if the FBI interpreted

Rodriguez’s references to a Mr. Green as a tip that Gorel

was Mr. Green, an inference totally unjustified on the

allegations of the Affidavit, and assuming that Rodriquez,

as a self-confessed conspirator-turned FBI informer, is

accorded great credibility under Harris, we still face

Whately v. Warden, Wyoming Penitentiary, supra, which

this Honorable Court recognized as holding that:

“the belief of the arresting officer, or the informant,

or both, that the suspects are involved in activity that

is criminal in nature must be directly supported by

information that is reliable within the meaning of

Aguilar and Spinelli.” at p. 580-581.

This means, as the Court noted in Whitely, that where

the initial impetus for an arrest is an informer’s tip,

information gathered by the arresting officers can be used to

sustain a finding of probable cause that could not adequately

be supported by the tip alone, but the additional informa-

tion acquired by arresting officers must in some sense be

corroborative of the informer’s tip that the arrestees com-

6~srintdinss ee

mitted the felony. Thus, even if the affiant here and Rod-

riquez suspected that Mr. Green was Gorel, the meeting

between Puscedu and Gorel on February 9, 1978, certainly

does not constitute “additional information” that is cor-

roborative of Rodriquez’s tip that there is a Mr. Green

involved in the conspiracy. Further, even under Jones vy.

Umited States, 362 U.S. 257, 80 S.Ct. 725 4 L.Ed.2d 697

(1962), which this Court claims was given new life and

meaning by Harris as per Squella-Avendano, the hearsay

quality of Rodriquez’s tip has no substantial basis.

PUSCEDU TURNED INFORMER IN

PARAGRAPH 35 OF THE AFFIDAVIT

What particular facts here come into play to justify

a probable cause finding in an affidavit clearly so far lacking

in probable cause as to Gorel? The Fifth Cireuit has er-

roneously concluded that United States v. Harris applies

and solves the affidavit’s probable cause problem.

It is true that this paragraph furnishes very specific

information about Gorel’s family situation — namely that

Gore]’s daughter at one time dated Kenneth Schnitzer, Jr.,

the brother of Douglas. Puscedu knew this to be a fact and

said fact was independently corroborated by the FBI. The

underlying circumstance for crediting Puscedu’s informa-

tion is clearly his statement that he resided with Gorel at his

residence in 1975. So far, all this information is corrobora-

tive of the fact that Puscedu, the kidnapper, connected up

his awareness of Schnitzer by residing with Gorel and

becoming aware of Schnitzer through Gorel’s daughter.

But what specifically could link Puscedw’s “information”

to probable cause for the arrest of Gorel? It is Puscedu’s

allegations that he

1) Told Gorel he, Puscedu, was aware Gorel’s daughter

could get information about the Schnitzers ;

2) Told Gorel he intended to kidnap a Schnitzer family

member ;

3) Enlisted the aid of Gorel to obtain background in-

formation on the Schnitzers;

4) Obtained background information on the Schnitzers

; from Gorel;

2) Obtained from Gorel on February 9, 1978, a current

apartment number and address of Douglas Schnitzer,

These allegations cannot possibly meet any of the appli-

cable guidelines for probable cause determination.

The above five allegations of Puscedu do not come within

the “personal knowledge” requirements of Harris to meet

the second prong of the Aguilar test, because the allegations

reveal nothing about what Puscedu learned from Gorel;

rather the allegations reveal what Puscedu claims he told

Gorel about his plans and intentions. Further, the Affidavit,

particularly the first ten paragraphs showing the failure

to locate Schnitzer back on October 28 and 29, 1977 (para-

graphs 3-8), indicates that certainly no verifiable informa-

tion could have been furnished by Gorel, because the plot

was to be carried out then, and Puscedu couldn’t locate

Schnitzer. Consequently, none of the allegations made by

Puscedu, the informer, are verified by the FBI nor are they

verified by any parts of the Affidavit. Certainly these alle-

gations lack the “detail” and “minute particularity” dis-

cussed in Spinelli, supra. Further, these allegations, though

less detailed, have not and were not verified by independent

investigation by law enforcement agencies. As a matter of

fact, nowhere does Puscedu allege in the Affidavit that

Gorel had any involvement with financing the conspiracy,

an omission casting additional doubt on the information-

gathering reliability of Rodriquez.

Here there is no volume or quality of information clearly

describing the accused’s criminal activity in sufficient detail

such as in Squella-Avendano. There is nothing in Puscedu’s

accusations that would lend credibility that Gorel:- had been

furnishing information about the Schnitzers for any period

of time. Even in Harris, the Supreme Court noted:

“Concededly «admissions of crime do not always lend

credibility to contemporaneous or later accusations of

another.”

In short, Harris does not stand’fér the proposition that

an informer’s declaration against penal interest without

more justifies a finding of probable cause against another

who is implicated by the informer’s declaration against his

own penal interest. Surely, the only possible link might

remain, Puscedu’s allegation concerning the meeting with

Gorel. That meeting was not but could Lave been monitored

by the FBI. That would have lent or denied corroboration

to Puscedu’s allegation regarding the purpose of the meet-

ing. However, said allegation without more creates the

inference that if what Puscedu says is true about Gorel

furnishing information, it must have taken Gorel over a

a year and a half to get a good address on Douglas

Schnitzer. Harris held as to the allegations there that

“Common sense in the important daily affairs of life

would induce a prudent and disinterested observer to

credit these statements.” p. 2082.

Would common sense in the important daily affairs of

life induce a prudent and disinterested observer to credit

these statements because of that inference. Clearly not. If

Gorel is the man with the money who, according to para-

graph one of the Affidavit wanted to get some money,

surely he would do one thing and wouldn’t do another:

namely, he would get the address in 1977 and would not

spend a year or so “furnishing” unspecified information

to Puscedu and probably wouldn’t need to meet him face

to face in a restaurant. The point is that pyubable cause

against Gorel is not supported by Harris; rather Gorel

demonstrates what Harris allowed for and that is that

admissions of crime do not always lend credibility to con-

temporaneous or later accusations of another. Finally,

nowhere in the Affidavit is there an allegation by FBI

agents that the address Puscedu claimed he obtained from

Gorel on February 9,°1978, was in fact an address of

Douglas Schnitzer. Where such an accusation, of such

crucial nature could have been verified by law enforcement

officers and was not so contained in the Affidavit, then a

finding of probable cause such as here is in violation of

the Fourth Amendment which prohibits the substitution

of police action based upon suspicion, belief or mere con-

clusion for the independent determination, both impartial

and prudent, of a neutral and detached magistrate.

CONCLUSION

An illegal arrest constitutes a seizure of the person in

violation of the Fourth Amendment. Henry v. United

States, 361 U.S. 98, 100-101, 80 S.Ct. 168, 4 L.Ed.2d 134

(1959). The arrest in this case was illegal. All evidence

obtained as a result thereof should have been properly

excluded from Appellant’s trial. No case directly in point

has been found regarding the magistrate’s violation of

Appellant’s constitutional rights. This Honorable Court

should examine this matter and write on this point. Appel-

lant’s Fifth Amendment rights were violated by the FBI.

Further, the analysis and application of United States v.

Harris is seriously eroded by this Court’s treatment of the

significance of an informant’s declaration against his penal

interest in a probable cause analysis. Finally, the Fifth

Circuit’s holding on probable cause as to Appellant violates

Aguilar and the guidelines set out in outlined case prwce-

dent. For these reasons, a writ of certiorari should be

issued to review the judgment and order of the Fifth

Circuit.

. S&HwarrTz, P. C,

Suite 700 — 609 Fannin

Houston, Texas 77002

AG Sarg

“H. A. Erwine :

2710 Little York#Road

Houston, Texas 77093

Attorneys for Petitioner

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing peti-

tion for writ of certiorari to the United States Court of

Appeals for the Fifth Circuit were served upon Solicitor

General, Department of Justice Room 5614 Washington,

D.C. 20530 by depositing the same in the United States

Mail, certified mail return receipt requested with air mail

POPC OOOO TOTO EEE HOOT H EHO EE OOEOOEE Mee eeeeeseseseeeeereses

H,. A. Erwine

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APPENDIX A

UNITED STATES v. GOREL

Unirep States or AMERICA,

Plaintiff-A ppellee,

Haru J. Goren,

Defendant-A ppellant.

No. 78-5592

Unirep States Court or ApprAts,

Firta Crecuir

Sept. 17, 1979

Defendant was convicted before the United States Dis-

trict Court for the Southern District of Texas, at Houston,

John V. Singleton, Jr., J., of conspiracy to kidnap, and he

appealed. The Court of Appeals, Roney, Circuit Judge,

held, inter alia, that: (1) district court did not abuse its

discretion in denying defendant’s motion for change of

venue due to pretrial publicity, as defendant’s evidence

failed to show the degree of media-engendered “pervasive

community prejudice” which might warrant a presump-

tion of deprivation of due process; furthermore, defendant

failed to show that actual prejudice infected the opinions

of the jurors as a result of pretrial publicity; (2) de-

fendant’s motion for a bill of particulars was properly

denied, where no showing was made that the matters re-

quested were necessary to inform defendant of the charge

against him with sufficient precision to enable him to pre-

pare his defense or avoid surprise, nor were they shown to

be necessary for pleading his acquittal or conviction in

bar of further prosecution for the same offense; and (3)

the delay of 164% hours in bringing defendant before a

A-2

magistrate for arraignment was not unreasonable under the

facts of the case.

Affirmed.

1. Criminal Law — 121

District court did not abuse its diseretion in denying

defendant’s motion for change of venue due to pretrial

publicity, as defendant’s evidence failed to show the degree

of media-engendered “pervasive community prejudice”

which might warrant a presumption of deprivation of due

process ; furthermore, defendant failed to show that actual

prejudice infected the opinions of the jurors as a result

of pretrial publiciyt. U.S.C.A.Const. Amends. 5, 14.

2. Constitutional Law — 268(7)

Juror exposure to news accounts concerning the crime

with which defendant is charged does not create an auto-

matic presumption of deprivation of due process. U.S.C.A.

Const. Amends. 5, 14.

3. Criminal Law — 126(1)

Indicative of the absence of juror prejudice from pre-

trial publicity was the fact that of defendant’s ten peremp-

tory challenges, only six were used to strike potential

jurors from the case.

4. Criminal Law — 627.6(2)

Denial of defendant’s motion to discover and inspect

documents did not contravene the requirements of Brady,

as an examination of the record showed that the informa-

tion sought was neither exculpatory not related to the

statement of any witness.

A-3

5. Indictment and Information — 121.2(1)

Defendant’s motion for a bill of particulars was properly

denied, where no showing was made that the matters re-

quested were necessary to inform defendant of the charge

against him with sufficient precision to enable him to pre-

pare his defense or avoid surprise, nor were they shown to

be necessary for pleading his acquittal or conviction in

bar of further prosecution for the same offense.

6. Indictment and Information — 121.1(3)

Decision of whether or not to direct the filing of a bill

of particulars is committed to the discretion of the district

court.

7. Criminal Law — 211(3)

Although an affidavit supporting an arrest warrant may

be based on hearsay, the affidavit must disclose some of

the underlying circumstances on which the informant based

his story and some of the underlying circumstances from

which the affiant concluded that the informant was credible

or his information reliable.

8. Criminal Law — 211(3)

District court could properly determine that the informa-

tion in affidavit, supporting arrest warrant, was reliable

because the informant was a confessed participant in the

conspiracy.

9. Criminal Law — 264

Delay of 16% hours in bringing defendant before a

magistrate for arraignment was not unreasonbale under

the facts of the case.

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10. Criminal Law — 519(8)

Delay is simply a factor which must be considered along

with other factors in determining voluntariness, and such

delay must be “unnecessary” before it will render a con-

fession inadmissible. 18 U.S.C.A. § 3501.

11. Criminal Law — 1158(4)

Absent clear error, the Court of Appeals will not upset

a trial court’s determination that a confession was volun-

tarily given.

12. Criminal Law — 1158(4)

District court’s determination that defendant’s state-

ments were voluntarily and freely given was not clearly

erroneous,

13. Criminal Law — 1038.2

Although defendant objected to testimony regarding his

statements and proffered instructions on duress, he failed

to object to the court’s jury instructions which omitted a

change on duress, and no plain error was demonstrated by

the omission.

14. Indictment and Information — 125 (514)

Indictment which charged in separate counts conspiracy

to kidnap and conspiracy to use the United States mail

to send a ransom note was not duplicitous. 18 U.S.C.A.

§$ 876, 1201.

15. Criminal Law — 776(2)

District court’s jury charge on the weight given to

character evidence was not erroneous; it did not contain

objectionable language, and it correctly instructed the jury

A-5

to consider reputation evidence in the same manner it con-

sidered all other evidence.

16. Criminal Law — 338(1)

Determinations of admissibility of evidence rests largely

within the discretion of the trial court.

17 Criminal Law — 342

In prosecution for conspiracy to kidnap and conspiracy

to use the United States mail to send a ransom note, the

district court’s admission of evidence concerning defen-

dant’s unsuccessful investment of $41,000 of a coconspira-

tor’s money was not reversible error, since the concon-

spirator testified that the defendant made a gentlemen’s

agreement to repay the lost money and that defendant

later suggested the kidnapping plan as a possible way to

raise the money; thus, the aforesaid evidence of the un-

successful investment was admissible to show motive. 18

U.S.C.A. §§ 876, 1201.

18. Criminal Law — 438.1

Trial court has broad discretion in determining whether

to permit a recording to be played before the jury.

19. Criminal Law — 1158(4)

If there is independent evidence of the accuracy of tape

recordings admitted at trial, the Court of Appeals is re-

luctant to disturb the trial court’s decision to permit the

recordings to be played before the jury.

20. Criminal Law — 400(1)

Federal Rules of Evidence permit admission of sum-

maries of recordings when the original or copies of the

A-6

origina: are made available to the other party. Fed.Rules

Evid. rule 1006, 28 U.S.C.A.

21. Criminal Law — 438.1

Trial court’s decision to permit the use of transcripts

corresponding to tapes played before the jury was not

erroneous. Fed.Rules Evid. rule 1006, 28 U.S.C.A.

22. Criminal Law — 444

Tapes of conversations between defendant and cocon-

spirators were properly authenticated, where extensive

testimony was presented by FBI agents who wired the

coconspirators with the recording devices; the agents testi-

fied to their training and experience in the use of recording

devices, the type of equipment used, the procedures used

to wire the coconspirators, the chain of custody of the

tapes, the transcription of them, and other details con-

cerning the preparation of the tapes.

23. Searches and Seizures — 7(27)

Where one party consents to the government’s recording

of his conversation with another, there is no violation of

the Fourth Amendment. U.S.C.A. Const. Amend. 4.

24. Criminal Law — 753.2(8)

In passing on a motion for judgment of acquittal or, in

the alternative, for a new trial, the reviewing court must

view the evidence in light most favorable to the govern-

ment and the jury verdict is entitled to the benefit of all

reasonable inferences that might be drawn therefrom.

25. Conspiracy — 48.1(2)

Record demonstrated that there was a sufficient quantum

and quality of evidence for the jury to reasonably find

Slit ow

A-7

defendant guilty of conspiracy to kidnap. 18 U.S.C.A.

§ 1201.

Appeal from the United States District Court for the

Southern District of Texas.

Before WISDOM, AINSWORTH and RONEY, Circuit

Judges.

RONEY, Circuit Judge:

Defendant Earl J. Gorel was convicted by a jury of .

conspiracy to kidnap, 18 U.S.C.A. § 1201, but was acquitted

of conspiracy to use the United States mail to send a ran-

som note, 18 U.S.C.A. § 876. On appeal, defendant seeks

reversal because the district court denied his motions for

change of venue, discovery. and a bill of particulars; re-

fused to suppress his prearraignment statements; com

mitted alleged errors in certain evidentiary rulings; al-

legedly instructed the jury improperly; and denied his

motion for judgment of acquittal or in the alternative for

a new trial. Finding no reversible error in any of defen-

dant’s contentions, we affirm.

This conspiracy involved a plan to kidnap for ransom

the younger son of the owner of a Houston hockey team.

At trial the Government’s chief witness, Raymond Pus-

cedu, testified that he and defendant Gorel planned and

made arrangements to kidnap Doug Schnitzer who was

attending school in Arizona. According to Puscedu’s testi-

mony, Gorel instructed Puscedu to recruit others to assist

in the kidnapping scheme. Gorel and Puscedu’s plan was

to kidnap Schnitzer in Arizona, transport him to Houston,

and make Schnitzer write the ransom note. Gorel intended

to set the ransom at one million dollars.

Puscedu recruited two additional conspirators. The first

attempt to kidnap failed because they could not locate

A-8

Doug Schnitzer. Gorel then supplied Schnitzer’s exact ad-

dress. Without informing Puscedu, the recruits reported

the kidnap and ransom plan to the FBI and consented to

being wired for sound. Conversations with Puscedu regard-

ing the plan to kidnap Schnitzer were tape recorded. When

Puscedu and the two recruits approached Schnitzer’s apart-

ment in Arizona on their second kidnap attempt, FBI

agents arrested the trio. Following the arrest, Puscedu

confessed to the conspiracy. In addition to Puscedu and

other witnesses, one of the recruited coconspirators testi-

fied at trial.

Each of defendant’s numerous contentions on appeal is

addressed herein.

[1-3] The district court did not abuse its discretion

when it denied defendant’s motion for change of venue

due to pretrial publicity. Juror exposure to news accounts

concerning the crime with which the defendant is charged

does not create an automatic presumption of the defen-

dant’s deprivation of due process. Murphy v. Florida, 421

U.S. 794, 799, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) ; United

States v. Capo, 595 F.2d 1086, 1090 (5th Cir. 1979). See

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 565, 96 S.Ct.

2791, 49 L.Ed.2d 683 (1976). Defendant Gorel’s evidence

fails to show the degree of media-engendered “pervasive

community prejudice” which might warrant such a pre-

sumption. United States v. Capo, 595 F.2d at 1090-1091.

Furthermore defendant has failed to show that actual

prejudice infected the opinions of these jurors as a result

of pretrial publicity. See Irvin v. Dowd, 366 U.S. 717, 723,

81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Indicative of the ab-

sence of juror prejudice is the fact that of defendant’s

ten peremptory challenges, only six were used to strike

potential jurors from the case.

-_ “~~

A-9

[4] The district court’s denial of defendant’s motion

to discover and inspect documents did not contravene re-

quirements of Brady v. Maryland, 373 U.S. 83. 83 S.Ct.

1194, 10 L.Ed.2d 215 (1963). Examination of the record

shows the information sought was neither exculpatory nor

related to the statement of any witness.

(5, 6] The trial court properly rejected defendant’s

motion for a bill of particulars. The decision of whether

or not to direct the filing of a bill of particulars is com-

mitted to the discretion of the district court. United States

v. Cantu, 469 F.2d 679, 680 (5th Cir. 1972), cert. denied,

411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197 (1973). No

showing was made that the matters requested were neces-

sary to inform the defendant of the charge against him

with sufficient precision to enable him to prepare his defense

or avoid surprise. Neither were they shown to be necessary

for pleading his acquittal or conviction in bar of further

prosecution for the same offense. The indictment fairly

and adequately apprised defendant of the offenses with

which he was charged. United States vy. Markham, 537 F.2d

187, 191 (5th Cir. 1976), cert. denied, 429 U.S. 1041, 97

S.Ct. 739, 50 L.Ed.2d 752 (1977); United States v. Smith,

923 F.2d 771, 778 (Sth Cir. 1975), cert. denied, 429 U.S. 817,

97 S.Ct. 59, 50 L.Ed2d 76 (1976).

(7. 8] Citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct.

2254, 45 L.Ed.2d 416 (1975), and Aguilar v. Texas, 378 U.S.

108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), defendant argues

the arrest warrant was defective because it was based

solely on an FBI agent’s affidavit containing uncorroborated

hearsay of coconspirator Puscedu. Hence, he contends all

evidence flowing from the ‘‘tainted”’ arrest should have

been suppressed. Although a supporting affidavit may be

based on hearsay, the affidavit must disclose some of the

underlying circumstances on which the informant based

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A-10

his story and some of the underlying circumstances from

which the affiant concluded the informant was credible or

his information reliable. Aguilar v. Texas, 378 U.S. at 114,

84 S.Ct. 1509. The district court could properly determine

that the information in the affidavit was reliable because

the informant was a confessed participant in the con-

spiracy. See United States v. Harris, 403 U.S. 573, 583, 91.

S.Ct. 2075, 29 L.Ed.2d 723 (1971).

[9] Under the facts of this case the sixteen and one-half

hour delay in bringing Gorel before a magistrate for

arraignment was not unreasonable, Suppression of state-

ments made by Gorel to FBI agents prior to arraignment

was properly refused. Gorel was arrested at 5:42 p.m,

and arraigned at about 10:30 a.m. the next day. When Gorel

was taken before a magistrate on the evening of his arrest,

the magistrate disqualified himself from the proceedings

because he was related to Gorels wife. Since no other

magistrate was readily available that evening, Gorel was

taken to a detention center to await arraignment the next

morning. During the drive to the center, nearly an hour

away, Gor adinitted to FBI agents that he had procured

Schnitzer’s address for Puscedu. Before departing for

the detention center, Gorel had ben given Miranda warnings,

[10] As this Court has previously held, delay is ‘‘simply

a factor which must be considered along with other factors

in determining voluntariness, and such delay must be

‘unnecessary’ before it will render a confession inadmissi-

ble.’’ United States v. Corral-Martinez, 592 F.2d 263, 267-

268 (5th Cir. 1979). The facts here demonstrate the delay

was not unnecessary, and the reasons for the delay were

not inconsistent with standards contained in 18 U.S.C.A.

§ 3501 relating to admissibility of confessions.

[11, 12] Arguing that an agent’s reference to the possible

involvement of defendant’s daughter in the conspiracy con-

A-11

stituted “thinly veiled threats” which prompted additional

admissions by the defendant, the defendant contends a jury

instruction on duress was required. Absent clear error,

however, this Court will not upset a trial court’s determina-

tion that a confession was voluntarily given. United States

v. Watson, 591 F.2d 1058, 1061 (5th Cir. 1979); United

States v. Vasquez, 534 F.2d 1142, 1146 (Sth Cir.), cert

denied, 429 U.S. 962, 97 S.Ct. 389, 50 L.Ed.2d 330 (1976).

The record reveals no clear error, and the district court’s

determination that defendant’s statements were voluntarily

and freely given was not clearly erroneous. United States

v. Maawell, 484 F.2d 1350, 1352-1353 (5th Cir. 1973).

[13] Although defendant objected to testimony regarding

his statements and proffered instructions on duress, he

failed to object to the trial court’s instructions to the jury

which omitted a charge on duress. No plain error has

been demonstrated by the omission. See United States v.

Pena, 527 F.2d 1356, 1365 (5th Cir.), cert. denied, 426 U.S.

949, 96 S.Ct. 3168, 49 L.Kd.2d 1185 (1976).

[14] Contrary to defendant’s assertions, an indictment

charging in separate counts conspiracy to kidnap and

conspiracy to use the United States mail to send a ransom

note is not duplicitous. There was no requirement that the

Government elect one or the other count since each required

different elements of proof from the other to sustain a

judgment of conviction. Defendant was acquitted of one

count, and no prejudice was shown to have resulted from

the indictment charging him in two separate counts. The

indictment was neither duplicitous or multiplicitous. See

United States v. Free, 574 F.2d 1221, (Sth Cir.), cert.

denied, 439 U.S. 873, 99 S.Ct. 209, 58 L.Ed.2d 187 (1978) ;

United States v. Hearod, 499 F.2d 1003, 1005 (Sth Cir.

1974); United States v. Goodman, 285 F.2d 378, 379-380

(oth Cir. 1960), cert. denied, 366 U.S. 930, 81 S.Ct. 1651,

6 L.Ed.2d 389 (1961).

OP SS FLT Ow

A-12

[15] The district court’s jury charge on the weight to

be given character evidence was not erroneous, Unlike

the charge in United States v. Leigh, 513 F.2d 784, 785 (Sth

Cir. 1975,) it did not contain objectionabie language, and

it correctly instructed the jury to consider reputation

evidence in the same manner it considered all other evidence.

United States v. Callahan, 588 F.2d 1078, 1084-1086 (5th

Cir. 1979).

[16, 17] Determinations of admissibility of evidence

rest largely within the discretion of the trial court. United

States v. Cohen, 544 F.2d 781, 786 (5th Cir.), cert. denied,

431 U.S. 914, 97 S.Ct. 2175, 53 L.Ed.2d 224 (1977) ; United

States v. Linetsky, 533 F.2d 192, 204 (5th Cir. 1976). The

district court’s admission of evidence concerning Gorel’s

unsuccessful investiment of $41,000 of Puscedu’s money was

not reversible error. Puscedu testified that Gorel made a

genilemen’s agreement to repay the lost money and that

Gorel later suggested the kidnapping plan as a possible

way to raise the money. The Government introduced this

evidence to show motive. Such evidence is ‘‘generally ad-

missible as bearing on the existence and purpose of the

conspiracy and the significance of later behavior.’’ United

States v. Crockett, 514 F.2d 64, 72 (5th Cir. 1075).

Defendant charges the tape recordings of conversations

involving Puscedu and the coconspirators Puscedu re-

cruited were erroneously admitted into evidence because

the tapes were not authenticated and contained numerous

deletions and illegible matters. In addition he argues error

was committed because Puscedu’s conversations were taped

without consent and because no proper instructions were

given to the jury regarding the tapes.

[18, 19] The tapes disclosed, for the most part, kid-

napping instructions given by Puscedu to his recruited

coconspirators. Because Puscedu and another coconspirator

testified at trial, there was independent evidence of the

>~<

er Ora EO oe oe ee oe eee

A-13

same kidnapping plans and arrangements discussed on

the tapes. In this Cireuit the trial court has broad

discretion in determining whether to permit a record-

ing to be played before the jury. United States v. Biggins,

001 F.2d 64, 66-67 (Sth Cir. 1977). If, as in this case, there

is independent evidence of the accuracy of the tape record-

ings admitted at trial, this Court is reluctant to disturb the

trial court’s decision. Id.

[20, 21] The record shows defense counsel was given

copies of the complete tapes and corresponding transcripts

two weeks in advance of trial. At trial approximately two

hours of the twenty hours of recorded conversations were

played before the jury. The Federal Rules of Evidence per-

mit admission of summaries of recordings when the original

or copies of the originals are made available to the other

party. Fed.R.Evid. 1006. See United States v. Clements,

988 F.2d 1030, 1039 (5th Cir.), cert. denied, ........ 1S. Seeaanee .

99 S.Ct. 1214, 59 L.Ed.2d 455 (1979); United States v.

Smyth, 556 F.2d 1179, 1184 (5th Cir.), cert. denied, 434

U.S. 862, 98 S.Ct. 190, 54 L.Ed.2d 135 (1977). Copies of

transcripts of the tapes were given to the jurors to follow

while the tapes were played, without objection by defendant.

Defendant also failed to point out specific items in the tapes

which were inaccurate. The trial court’s decision to permit

use of transcripts were not erroneous. See United “States

v. Onori, 535 F.2d 938, 948-949 (5th Cir. 1976).

[22] Extensive testimony was presented by FBI agents

who wired the coconspirators with the recording devices.

The agents testified to their training and experience in the

use of recording devices, the type of equipment used in

this case, the procedures used to wire the coconspirators,

the chain of custody of the tapes, the transcription of the

tapes and other retails concerning the preparation of the

tapes. The record reveals the tapes were properly authenti-

cated. See United States v. Clements, supra; United States

v. Denton, 556 F.2d 811, 815-816 (6th Cir.), cert. denied,

434 U.S. 892, 98 S.Ct. 269, 54 L.Ed.2d 178 (1977).

A-14

[23] In this ease the coconspirators voluntarily con-

sented to the Government’s recordirg of their conversa-

tions with Puscedu. Where one party consents to such

recordings, there is no violation of the Fourth Amendment.

See United States v. White, 401 U.S. 745, 91 S.Ct. 1122,

28 L.Ed.2d 453 (1971); Hoffa v. United States, 385 U.S.

293, S.Ct. 408, 17 L.Ed.2d 374 (1966); Hudson v. United

States, 429 F.2d 1311, 1312 (5th Cir. 1970), cert. denied, 402

U.S. 965, 91 S.Ct. 1632, 29 L.Ed.2d 130 (1971).

Finally, defendant raised no objection to the trial court’s

instructions to the jury. Since no plain error has been

demonstrated, his attack on the failure of the trial court to

give limiting instructions regarding the tapes must fail.

Fed.R.Crim.P. 30, 52(b); United States v. Pena, supra.

At oral argument defendant conceded that United States

v. James, 590 F.2d 575, 583 (Sth Cir. 1979) (en banc), has

prospective application only and therefore is not applicable

to this case. Defendant also conceded he was not eligible

for a probated sentence since the crime for which he was

convicted is punishable ‘by life imprisonment. 18 U.S.CLA.

§ 3651.

[24, 25] The district court’s denial of defendant’s motion

for judgment of acquittal or in the alternative for a new

trial was not erroneous. In passing on such motions, the

reviewing court must view the evidence in the light most

favorable to the Government and the jury verdict is entitled

to the benefit of all reasonable inferences that might be

drawn therefrom, United States v. Soto, 591 F.2d 1091,

1101 (5th Cir.), cert. denied, ........ Lie. eppieeters , 99 S.Ct. 2862,

61 L.Ed.2d 298 (1979); United States v. Downen, 496 ®.2d

314, 318 (10th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct.

177, 42 L.Eid.2d 142 (1974). This record demonstrates there

was a sufficient quantum and quality of evidence that the

jury could have reasonably found defendant guilty of con-

spiracy to kidnap.

AFFIRMED.

8 ne ne TS Sr ——_—_—_—

B-1

APPENDIX B

UNITED STATES v. GOREL

Unirep States or AMERICA,

Plaintiff-Appellee,

Karu J. Goren,

Defendant-A ppellant.

No. 78-5592

Unirep States Court or AppEALs,

Firtxe Circuit

Jan. 11, 1980

Appeal from the United States District Court for the

Southern District of Texas; John V. Singleton, Jr., Chief

Judge.

ON PETITION FOR REHEARING

Before WISDOM, AINSWORTH and RONEY, Circuit

Judges.

PER CURIAM:

On petition for rehearing, defendant Gorel points out

he exercised all ten of his peremptory jury challenges, not

six as stated in the opinion. Of the ten challenges, six were

used to strike persons who had read or seen reporting

about the kidnapping attempt. The sentence ‘‘Indicative

of the absence of juror prejudice is the fact that of

defendant’s ten peremptory challenges, only six were used

to strike potential jurors from the case’’ is therefore de-

leted from the opinion in this case, which will be published

as thus corrected.

Defendant indicates the typical response of a prospective

juror when asked about the case was

B-2

Well, I just —as I read it, I thought some injustice

going to be done to Mr. Schnitzer [referring either

to the actual alleged kidnapping victim or his father].

That was my opinion.

InMurphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031,

44 L.Ed.2d 589 (1975), quoting Irvin v. Dowd, 366 U.S. 717,

723, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), the Supreme Court

instructed

To hold that the mere existence of any preconceived

notion as to the guilt or innocence of an accused, with-

out more, is sufficient to rebut the presumption of a

prospective juror’s impartiality would be to establish

an impossible standard. It is sufficient if the juror

can lay aside his impression or opinion and render a

verdict based on the evidence presented in court.

Id. at 723, 81 S.Ct. at 1642.

That potential jurors were aware of the kidnapping at-

tempt from media reporting does not indicate, on this

record, the defendant was prejudiced automatically. Gorel

has not shown that knowledge by potential jurors of the

kidnapping attempt from media coverage precluded po-

tential jurors from making impartial decisions in con-

nection with the evidence presented at trial.

The petition for rehearing is DENIED.

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.