Opposition — Archer v. New York

IN THE

October Term, 1979

No. 79-1990

NORMAN ARCHER,

Petitioner,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

October Term, 1980

No. 80-5026

LEON WASSERBERGER,

Petitioner,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petitions for Writs of Certiorari to the

Court of Appeals of the State of New York

RESPONDENT’S BRIEF IN OPPOSITION

—————————————————————_—_——————eee————————————

Roperick C. LanKLer

Deputy Attorney General

Special State Prosecutor

Attorney For Respondent

2 World Trade Center

New York, New York 10047

(212) 466-1250

Marx M., Baker

Special Assistant Attorney General

Of Counsel

JUL 21 1980

Supreme Court of the United Bewtymoo%, jew

TABLE OF CONTENTS

Preliminary Statement

Statement of the Case GAGE Fons AilGnisieadittstial cen

Reasons for Denying the Writs

I—The doctrine of ‘‘Dual Sovereignty’? remains

unfettered and clearly supports the constitu-

tional propriety of petitioners’ subsequent

et cr

II—The actions of the government agents, having

been found by the courts of New York, sub-

sequent to a hearing, to have been lawful

and proper, in no way approached the level of

‘‘outrageousness’’ which would prompt this

Court to invoke the ‘‘due process’? defense

expressly reserved in United States v. Russell

(411 U.S. 423) and Hampton v. United States

(425 U.S. 484) .

Il{I—Petitioners’ state indictment was not unnec-

essarily delayed .......0.00..0........ ish acbhectatann

Conclusion

11

19

23

aa

TABLE OF AUTHORITIES

PAGE

Cases:

Abbate v. United States, 359 U.S. 157 (1965) 8

Ashe v. Swenson, 397 U.S. 436 (1970) , 8

Bartkus v. Illinois, 359 U.S. 121 (1965) 8, 10

Benton v. Maryland, 395 U.S. 784 (1969) 8

Burks v. United States, 437 U.S. 1 (1978) 10

Crist v. Bretz, 437 U.S. 28 (1978) 21

Hampton v. United States, 425 U.S. 484 (1976) |. 11, 12, 13,

14, 15, 16

Hutul v. United States, 582 F.2d 1155 (7th Cir.

1978) cert denied, 99 S.Ct. 1222 aoe 9

Kinsella v. United States ex rel. Singleton, 361 U.S.

234 (1960) | caetan 13

Martin v. Rose, 481 F.2d 658 (6th Cir. 1973), cert

denied, 414 U. S. 876 | : 9

Matter of Klein v. Murtagh, 44 A.D.2d 465, 355 N. YS S

2d 622 (2nd Dept. 1974), aff’d 34 N.Y.S.2d 988,

318 N.E.2d 606, 360 N.Y.S.2d 416 (1974) 9

People v. Abbamonte, 43 N.Y.2d 74, 371 N.E.2d 485,

400 N.Y.S.2d 766 (1977) 9

People v. Archer, 68 A.D.2d 441, 417 N.Y.S.2d 507

(2nd Dept. 1979), aff’d 49 N.Y.2d 978, —— N.B.2d

, N.Y.S.2d (1980) i 7, 15

People v. Isaacson, 44 N.Y. 2d 511, 378 N.E.2d 78, 406

N.Y.S.2d 714 (1978) . 14

Rochin v. California, 342 U.S. 165 (1952) 12, 15

Turley v. Wyrick, 554 F.2d 840 (5th Cir. 1977),

cert denied, 434 U.S. 1033 (1978) ............ PR te 9

PAGE

United States v. Aleman, 609 F.2d 298 (8th Cir.

1978) .... Reto. he, Are aan 9

United States v. Archer, 486 F.2d 670 (2nd Cir.

1973) | SRE Stevi 3, 4, 9, 10, 11, 12, 13, 15

United States v. Ball, 163 U.S. 662 (1896) .00...... 10

United States v. Burkley, 591 F.2d 903 (D.C. Cir.

1978), cert denied, 440 U.S. 966 oe 13

United States v. Campa, 474 F. Supp. 507 (S D. Fla.

cosa Neo ae 14

United States v. Corcione, 592 F.2d 111 (2nd Cir.

1979), cert denied, 99 S.Ct. 1545, 99 S. Ct. 1801... 18

United States v. Garcia, 562 F.2d 411 (7th Cir. 1977) 14

United States v. Gonzalez, 539 F.2d 1359 (9th Cir.

oes cacicsssyasnacavosesovssevonscessesseee 14

United States v. Gonzalez-Benitez, 537 F.2d 1051

(9th Cir. 1976), cert denied, 429 U.S. 92: ee

United States v. Graves, 556 F.2d 1319 (5th Cir.

1977), cert denied, 425 U.S. 928 ......... ae 14

United States v. Haye: es, 589 F.2d 811 (5th Cir, 1979),

cert denied, 100 S. Ct. 93 ....... 9

United States v. Johnson, 565 F.2d 179 (1st Cir, 1977),

cert. denied, 434 U.S. 1075 : a |

United States v. Jones, 527 P20 817 (D.C. Cir. 1975) 9

United States v. Leja, 563 F.2d 244 (6th Cir. 1977),

cert dented, 434 U.S. 1074 oo... cece Dy 15

United States v. Lovasco, 431 U.S. 783 (1977) 20, 21, 22

United States v. Marion, 404 U.S. 307 (1971) ....... 20, 21, 22

United States v. Perrin, 580 F.2d 730 (5th Cir. 1978),

cert denied, 100 S. Ct. 520 | 13

United States v. Prairie, 572 F.2d 1316 (9th Cir,

1978) . | St 2.2

United States v. Quinn, 543 h.2d 640 (Sth Cir.

1976) ......... sis Yoagh s, senses nsnisiceseveniant 14

United States v. Reifsteck, 535 F.2d 1030 (8th Cir.

as cavssivetsocsonsnanssesssasessee, 14

BY

PAGE

United States v. Russell, 411 U.S. 423 (1973)....11, 12, 18, 16

United States v. Smith, 588 F.2d 1359 (9th Cir.

1976) 14, 15

United States v. Steinberg, 351 F.2d 510 (2nd Cir.

1977) 14

United States v. Szycher, 585 F.2d 443 (10th Cir.

1978) 13

United States v. Taylor, 503 F.2d 732 (8th Cir.

1979), cert denied, 100 S. Ct. 487 9

United States v. Twigg, 588 F.2d 373 (8rd Cir.

1978) 13, 15, 16

United States v. Wheeler, 435 U.S. 313 (1978) 9

Wager v. Pro, 608 F.2d 1005 (D.C. Cir. 1979) 18

Waller v. Florida, 397 U.S. 387 (1970) 9

United States Constitution:

Amendment V 8

Amendment XTV 8

Statutes:

18 U.S.C. §1952 3, 10

New York Criminal Procedure Law §40.20 (MeKin-

ney, 1971) 4, 8, 10, 21

New York Penal Law former §200.10 (McKinney,

1967) 7,10

New York Penal Law former §200.25 (McKinney,

1967) 7

Miscellaneous:

Rules of the Supreme Court of the United States,

Rule 17.1(¢) , | 19

IN THE

Supreme Court of the United States

October Term, 1979

No. 79-1990

oe

NORMAN ARCHER,

Petitioner,

against

Tue PEeopLE oF THE STATE OF NEW YORK,

Respondent.

October Term, 1980

No. 80-5026

LEON WASSERBERGER,

Petitioner,

against

Tue PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petitions for Writs of Certiorari to the

Court of Appeals of the State of New York

——ee ee

RESPONDENT’S BRIEF IN OPPOSITION

Preliminary Statement

The respondent, the People of the State of New York,

respectfully requests that this Court deny the petitions for

writs of certiorari seeking review of the judgments of the

Court of Appeals of the State of New York in these cases,

dated April 24, 1980.

Statement of the Case

In pursuit of his investigation into corruption in the

New York City criminal justice system—an investigation

undertaken at the behest of the Knapp Commission* prior

to the creation of the office of the Special State Prosecutor

—the United States Attorney for the Southern District of

New York devised a plan which was intended to ferret out

any existent wrongdoing. Specifically, it was decided after

careful consideration of viable alternatives, that a scenario

would be created whereby an undercover agent, after acting

out the precise elements constituting a weapons possession

offense, would be arrested for such crime in Queens County

by a New York City police officer assigned by the Police

Commissioner and acting in cooperation with the federal

investigation. The agent’s ‘‘case’’ would then be processed

in the criminal justice system as would that of any other

arrestee in Queens County. The plan was carried out.

After his ‘‘arrest’’, the undercover agent was intro-

duced by a federal informant to petitioner Leon Wasser-

berger, a Manhattan bailbondsman, and through Wasser-

berger, to Frank Klein, an experienced criminal attorney

practicing in Queens County. Based upon Klein’s subse-

quent representations that an Assistant District Attorney

with whom he had consulted had decided that the ease would

have to be fixed in the grand jury, the undercover agent,

with Klein’s preparation, and with the carefully considered

concurrence of the agent’s supervisors, appeared before a

Queens County grand jury and was questioned by the pe-

* The Knapp Commission was a Mayoral Commission appointed

in the early 1970’s and charged with examining allegations of wide-

spread corruption in the New York City Police Department.

3

titioner Norman Archer, then chief of the Indictment bu-

reau of the Queens County District Attorney’s office. The

agent, as ordered by the U.S. Attorney, only testified to the

precise story created by Klein, and the grand jury, subse-

quent to Archer’s instructions, returned no true bill.

In a federal indictment filed in July, 1972, Archer, Klein

and Wasserberger were accused by a grand jury sitting in

the Southern District of New York of violating 18 U.S.C.

§1952, the Travel Act. The indictment specified that the

defendants used interstate telephone facilities in order to

effectuate a conspiracy to commit, and did commit, the state

crime of bribery, a bribery involving the exchange of a sub-

stantial sum of money for an assurance that the Queens

County grand jury would not vote to indict the undercover

agent for the possession of weapons—the ‘‘case’’ which had

been ‘‘created’’ by the federal investigators. On January

29, 1973, the defendants were convicted after a jury trial

in the United States District Court for the Southern Dis-

trict of New York and were sentenced to terms of im-

prisonment on March 14, 1973.

On appeal, the United States Court of Appeals for the

the Second Circuit reversed the convictions with instruc-

tions to dismiss the indictment in view of its conclusion that

a federal crime had not been established (486 F.2d 670

[2nd Cir. 1973]). In so holding, the court took occasion to

question the tactics of the federal authorities in arranging

the ‘‘crime’’ which later became the subject of the ‘‘fix’’.

Such criticism was later muted, however, upon the Govern-

ment’s motion for re-argument where for the first time, the

facts underlying the investigation were articulated (see 486

F.2d at 683).

4

Subsequently, under a state indictment filed in Queens

County, Archer, Wasserberger and Klein were charged by

an Extraordinary Term Grand Jury with the crimes of

conspiracy, bribery, and receiving reward for official mis-

conduct—offenses arising out of the same acts underlying

the federal prosecution. Thereafter, a proceeding which

had been brought in the Appellate Division, in the nature

of prohibition, was dismissed on the merits, the court hold-

ing that the pending state prosecution would neither place

the defendants in double jeopardy nor violate the statutory

provisions of New York Criminal Procedure Lay®<40.20 (2)

(McKinney 1971). In a concurring opinion, it was further

indicated that as far as the issue of the investigative tech-

nique was concerned, such a proceeding was not an appro-

priate vehicle for review, and that the matter should best

be attended to at the trial level where a record could be

made ‘‘containing all the essential facts showing the man-

ner in which the events leading to the prosecution of the

petitioners were planned and carried out’’ (48a).* The

New York Court of Appeals later affirmed that deter-

mination.

Acting pursuant to what he understood to be the Ap-

pellate Division’s direction, the trial court thereafter con-

ducted a hearing which was concerned with the propriety

of the federal investigatory tactics. At the hearing, exten-

sive testimony on the question was taken from the former

United States Attorney, the former deputy counsel to the

Knapp Commission who had later become a Special As-

sistant United States Attorney charged with directing the

federal effort, and the former Police Commissioner.

* Numerical References are to petitioner Archer’s Appendix.

3D

Briefly stated, the witnesses told of the findings of large

scale incidents of corruption in the New York City criminal

justice system which had been brought to the attention of

the United States Attorney’s office by the Knapp Commis-

sion, whereupon federal investigative assistance was so-

licited. It was disclosed to the federal prosecutor at the

time that the cooperation of one Detective Robert Leuci,

whose credibility had been substantiated by the strength of

his revelations, had indicated the need for such a federal

undertaking.

Subsequently, after carefully considering all alternative

investigative approaches which in the past had been suc-

cessful, the federal authorities decided to utilize the ser-

vices of an undercover agent who would be ‘‘arrested’’ for

a weapons possession offense” in Queens County—an area

upon which compelling allegations of official improprieties

had focused. The plan, which called for the case to proceed

in the Queens County criminal justice system, was im-

plemented with the approval of the Police Commissioner

and the knowledge of the then Chief Judge of the State

of New York.

The tactics called for the undercover operatives to spe-

cifically act out the ‘‘crime’’ and the ‘‘arrest’’ so that, in

effect, all subsequent representations by the police officer

involved would be based on actual observations. Although

it was the investigators’ intention to ascertain whether any

‘*fix’’? might thereafter be effectuated, it remained their

* A possession offense was decided upon since it involved a min-

imal amount of persons thereby avoiding the possibility of entrap-

ment, and the fact of weapons avoided the danger inherent in the

handling of narcotics.

6

hope that such opportunities for corruption might not be

present. No specific target, certainly not the petitioners,

was contemplated.

When the time came where it became apparent that the

undercover ‘‘defendant’’, at the behest of the co-conspir-

ators, would need to relate a false story to the grand jury—

a scenario not initially contemplated by the investigators

—the authorities were placed in the position of deciding

whether to proceed. In view of his promise to the Police

Commissioner, however, of not restricting the investigation

to police officers, and the responsibility to the publie of de-

termining whether or not allegations on the part of the

chief of the Indictment bureau of the Queens County Dis-

trict Attorney’s office were valid, the decision was made by

the United States Attorney to go forward, albeit with cer-

tain constraints. It was thus directed that only the story

created by the then targets be imparted to the grand jurors

and that no recording or transmitting take place in the

grand jury room.

The witnesses indicated that this was a federal investi-

gation undertaken with the cooperation of city agencies and

that since the Queens County District Attorney’s office was

itself under suspicion, it could not have been notified of the

procedures under employment.

The court thereafter denied the motion to dismiss the

charges on due process grounds. It was the court’s obser-

vation, however, that with proper judicial safeguards, such

as an investigative technique as that employed herein

‘*... under appropriately compelling circumstances comes

close to being indispensable in the investigation of corrup-

7

tion at levels that touch intimately the basic integrity of the

criminal justice system.’’

Petitioner Archer thereafter went to trial* wherein the

evidence showed, inter alia, that he instructed the grand

jury during his presentation of the ‘‘case’’ that the seizure

of the weapon had been improper, despite his having earlier

told the arresting officer that the gun would be admissible ;

that he told the grand jury that the ‘‘aceused’s”? gun permit

had been verified in conformity with the story created by

his co-conspirators; and that a subsequent search of peti-

tioner’s home gave rise to the discovery of part of the

$15,000 which the undercover ‘‘defendant’’ had paid peti-

tioner’s co-conspirators for the ‘‘Fix’’,

Petitioner Archer was thereafter convicted of bribe re-

ceiving and receiving reward for official misconduet (New

York Penal Law, former §§200.10 and 200.25 | McKinney,

1967]), and sentenced to three years’ imprisonment,** ex-

ecution of which sentence has been stayed pending the ap-

pellate process.

The Appellate Division subsequently affirmed the judg-

ments amidst petitioners’ due process and double jeopardy

contentions (People v. Archer, 68 A.D, 2d 441, 417 N.Y.S.2d

07 [2nd Dept. 1979]), and the Court of Appeals then af-

firmed on the opinion of the intermediate court (see 49

N.Y.2d 978, —— N.H.2d ——, —— N.Y.S.2d —— [1980]).

* Petitioner Wasserberger pleaded guilty to the charges, and

co-defendant Klein, for health reasons, was never tried.

** Petitioner Wasserberger was earlier sentenced to six months’

imprisonment,

8

REASONS FOR DENYING THE WRITS

I

The doctrine of “Dual Sovereignty” remains un-

fettered and clearly supports the constitutional propri-

ety of petitioners’ subsequent state prosecution.

The mainstay of petitioners’ initial attack upon the vi-

ability of their second proseeution—the first by the State of

New York—is that the doctrine of ‘dual sovereignty’’ has

been eroded by recent decisions of this court, and hence,

that their rights against twice being placed in jeopardy

have been abridged. Since petitioners’ premise is totally

devoid of judicial support, and since the New York courts

have repeatedly stated that the state prosecution came

within one of the enumerated exceptions to the state stat-

utory ‘‘some transaction’’ rule (See New York Criminal

Procedure Law, §40.20[2][f][MecKinney 1971]; see also

Ashe v. Swenson, 397 U.S. 436, 448-460 | 1970], Brennan, J.,

concurring), the instant petitions raise no cognizable double

jeopardy claim which needs to be reviewed by this court.

Indisputably, in Bartkus vy. Illinois, 359 U.S. 121 (1965)

and Abbate v. United States, 359 U.S. 187 (1965), this court,

applying the doctrine of dual sovereignty, concluded that

successive federal/state or state/federal prosecutions for

respective offenses arising out of similar facts are not pro-

scribed by the double jeopardy clause of the Fifth Amend-

ment which was later held applicable to the states by virtue

of the Fourteenth Amendment (Benton vy. Maryland, 395

U.S. 784, [1969]). Moreover, the subsequently decided

Benton case in no way detracted from the import of the

Bartkus/Abbate rulings, in that the court merely concluded

in the later decision that successive state/state prosecutions

are likewise constitutionally prohibited.

9

Indeed, only recently, this court has had oceasion to

breathe renewed life into the dual sovereignty principle

(see United States v. Wheeler, 435 U.S, 313, 317-318 [1978] )

save for those instances where the ¢‘separate’’ sovereigns

involved actually possessed inter-dependent or inter-re-

lated characteristics (see e.g., Waller v. Florida, 397 U.S.

387 [1970]). This viewpoint has received universal adher-

ence on the part of other courts which have addressed the

precise question (see e.g., United States v. Aleman, 609 F.2d

298, 309 [8th Cir. 1979]; United States v. Taylor, 603 F. 2d

732, 734 [Sth Cir. 1979], cert. denied, 100 S.Ct. 487; United

States v. Hayes, 589 F. 2d 811, 817-818 [5th Cir. 1979], cert.

denied, 100 S.Ct. 93; Hutul v. United States, 582 F. 2d 1155,

1157 [7th Cir. 1978], cert. denied, 99 S.Ct. 1222; Turley v.

Wyrick, 554 F, 2d 840, 840-841 [5th Cir. 1977], cert. denied,

434 U.S. 1033 [1978]; United States v. Jones, 527 F. 2d 817,

822 [D.C. Cir. 1975]; Martin v. Rose, 481 F.2d 658 [6th Cir.

1973], cert. denied, 414 U.S. 876 [1973]; People v. Abba-

monte, 43 N.Y. 2d 74, 871 N.H.2d 485, 400 N.Y.S. 2d 766

[1977]).

It follows that when subsequent to the reversal of peti-

tioners’ federal convictions by the United States Court of

Appeals for the Second Cireuit (486 F. 2d 670 [2nd Cir.

1973]), the newly created office of the Special State Pros-

ecutor sought an indictment under appropriate New York

Penal Law provisions, petitioners were being prosecuted

for the first time by an independent sovereign. As a conse-

quence, aside from the lack of state statutory defenses to

the fact of such a second prosecution (Matter of Klein v.

Murtagh, 44 A.D, 2d 465, 355 N.Y.S.2d 622 [2nd Dept. 1974],

aff’d, 34 N.Y. 2d 988, 318 N.E.2d 606, 360 N.Y.S.2d 416

[1974] ; New York Criminal Procedure Law $40.20 [2] [f]

10

[McKinney 1971]), petitioners were also without recourse

to the Fifth and Fourteenth Amendments of the United

States Constitution (Bartkus v. Illinois, supra)."

Moreover, to the extent that petitioners question the

constitutionality of subparagraph (f) of New York Criminal

Procedure Law §40.20 (2), they merely raise anew the

same unmeritorious point (see Petition at pp. 35-37)—

i.e., that successive prosecutions are not constitutionally

sanctioned. Again, however, in light of Bartkus, as well

as the rulings of the New York courts that notwithstand-

ing the statutory rejection of dual sovereignty principles

in that State, the Legislature was still free to, and in fact

did, provide for instances when successive federal/state

prosecutions would be allowed, the question is strictly one

of state law involving non-constitutional considera-

tions.** It is therefore not within the office of a petition

for a writ of certiorari.

* Interestingly, since the Second Circuit never held that the evi-

dence was insufficient to support that part of 18 USC $1952 which

embodied the state offense of bribe receiving (New York Penal Law

former §200.10 [McKinney 1967]), petitioners were never found to

have been insufficiently proven guilty of the essential charge sub

judice (compare to Burks v. United States, 437 U.S. 1 [1978] ). The

appeal and reversal in United States v. Archer, vis a vis the subse-

quent state prosecution, therefore, is akin to that situation when a

defendant appeals a conviction with the judgment being later reversed

because of compelling trial errors unrelated to the issue of eviden-

tiary sufficiency, and where a new trial is then ordered. Such a case

has never been held to run afoul of the Constitution (see United

States v. Ball, 163 U.S. 662, 672 [1896] ).

** Petitioners’ equal protection argument with respect to sub-para-

graph (f) is likewise unavailing. The New York Legislature un-

doubtedly rationalized that a defendant convicted in federal court but

later vindicated on appeal by virtue of a statutory element not in-

digenous to the parallel state penal provision, should be liable for

a separate prosecution under the state statute. On the other hand,

a defendant earlier acquitted in federal court is in a different footing

since there is no way to perceive the precise reason for the jury’s

verdict—a reason which might be totally unrelated to the fact of the

additional federal statutory element.

II

The actions of the government agents, having been

found by the courts of New York, subsequent to a

hearing, to have been lawful and proper, in no way

approached the level of “outrageousness” which would

prompt this Court to invoke the “due process” defense

expressly reserved in United States v. Russell (411 U.S.

423) and Hampton v. United States (425 U.S. 484).

The pre-eminent issue in this case, which has accorded

it a degree of notoriety ever since the original determina-

tion" of the Second Cireuit in United States v. Archer, 486

I’.2d 670 (2nd Cir. 1973), is whether the conduet of the fed-

eral investigtors, in creating a ‘‘erime’’ which petitioner

Archer was twice convicted of ‘‘fixing’’ in his capacity of

Assistant District Attorney in charge of the Indictment

Bureau of the Queens County, New York, District Attor-

ney’s office, was so offensive to the standards of due process

as to mandate dismissal of the underlying charges. Al-

though, concededly, a majority of this court has articulated

* The Second Circuit's decision criticizing the acts of the govern-

ment was clearly muted upon the United States’ petition for rear-

gument when the facts of the investigation were elucidated for the

first time (see 486 F.2d at 683, 683 n. 1; see also p. Za of Petitioner’s

appendix). Petitioner Archer, however, has elected to omit from his

appendix the Circuit Court’s further reminations in this regard where

in such appendix that court's original opinion alone is reproduced, In

his argument, he has likewise totally disregarded not only the fact of

his offense but the decision of the Appellate Division which was issued

upon his appeal from the judgment of conviction herein. In its

opinion, that court, addressing itself to the exhaustive facts adduced

at the “investigative technique” hearing held prior to trial- facts not

at any time advanced before the Second Circuit upon appeal from the

federal judgment of conviction, concluded that, as now fully devel-

oped, the record clearly supports the view that the federal investi-

gators proceeded in good faith and with careful regard for all judicial

institutions,

12

the view that such a defense might be available under

uniquely ‘‘outrageous’’ circumstances (see United States

v. Russell, 411 U.S. 428, 431-4382 [1973]; Hampton v. United

States, 425 U.S. 484, 495, n. 7 [1976] [Powell, J., conecur-

ring]), it will be clear from even a cursory understanding

of what would be involved in such an instance that the

Archer case does not fall within its purview.

A.

In United States v. Russell, supra, which was concerned

with the alleged entrapment of that defendant by the fed-

eral agents involved, this court, while holding that such

defense is unavailable where the accused’s predisposition

has been established, asserted that,

[w]hile we may some day be presented with a situation

in which the conduct of law enforcement agents is so

outrageous that due process principles would abso-

lutely bar the government from invoking judicial proe-

ess, cf. Rochin v. California, 342 U.S. 165 (1952), the

instant case is distinetly not of that breed (411 U.S. at

431-432).

Thereafter, in Zampton v. United States, supra, at least

five Justices of the court reasserted that view as articulated

by Justice Powell in his concurring opinion. Said Justice

Powell:

I am unwilling to conelude that an analysis other than

one limited to predisposition would never be appro-

priate under due process principles (425 U.S. at 493).*

* Justice Powell’s reference to United States v. Archer in this

regard, as an example of a non-contraband offense situation which

the court has not yet considered in the face of such a due proces

argument, should be quickly placed in its proper perspective. As

ia

(footnote continued on next page)

13

Indeed, such a ‘‘fundamental fairness’? defense (see

United States vy. Russell, supra, 411 U.S. at 432, quoting

Kinsella v. United States ex rel. Singleton, 361 U.S. 234

[1960]) has been recognized in a multitude of cases consid-

ered in light of Russell and Hampton by the various Cireuit

Courts of Appeals, as involving a pure question of law,

which, when appropriately raised, is to be addressed to the

judge presiding. See Wager v. Pro, 603 F.2d 1005 (D.C.

Cir. 1979) ; United States v. Corcione,* 592 F.2d 111 (2nd

Cir. 1979), cert denied, 99 S. Ct. 1545, 99 S. Ct. 1801; United

States v. Burkley, 591 F.2d 903, 911 (D.C. Cir. 1978), cert

denied, 440 U.S. 966; United States v. Twigg,** 588 F.2d

373 (8rd Cir. 1978) ; United States v. Szycher, 585 F.2d 448

(10th Cir. 1978) ; United States v. Perrin, 580 F.2d 730, 737

(Sth Cir. 1978), cert. denied, 100 S. Ct. 520; United States v.

Prairie, 572 F.2d 1316 (9th Cir. 1978); United States v.

noted earlier, ana as realized by the New York courts, the Second

Circuit in Archer did not have the benefit of the more elaborate facts

later revealed in the “technique” hearing conducted during the course

of the subsequent state proceedings. Accordingly, the Archer opinion,

as originally written by Judge Friendly, provides only a limited pic-

ture—if accurate at all—of the governmental constraints that were

exercised herein and which are now sub judice for the first time.

Justice Powell’s reference therefore should be realized for what it is:

a citation to a case which, unbeknownst to the court deciding it, was

depictive of a much more elaborate scenario and hence, a depiction

not amounting to a complete picture of the relevant events.

* Judge Mansfield’s discussion of United States v. Archer in

Corcione (see 592 F.2d at 115-116), appears to ignore the Second

Circuit's own reassessment of that case upon reargument (see 486

F.2d at 683), and was written six months before the Appellate Divi-

sion, in People v. Archer (68 A.D. 2d 441, 417 N.Y.S. 2d 507 ),

elucidated the further facts that were adduced at the “technique”

hearing upon the state prosecution.

** The Twigg case appears to be the only post-Hampton decision

which actually reversed a judgment of conviction upon pure due

process grounds. There, the court predicated its disposition on the

fact that the government agents had actually created and nurtured

the crimes of which the defendant was convicted.

14

Johnson, 565 F.2d 179 (1st Cir. 1977), cert denied, 434 U.S.

1075 ;United States v. Leja, 563 F.2d 244 (6th Cir. 1977),

cert denied, 434 U.S. 1074; United States v. Garcia, 562 F.2d

411, 415 (7th Cir. 1977) ; United States v. Graves, 556 F.2d

1319 (5th Cir. 1977), cert denied, 435 U.S. 923; United

States v. Steinberg, 551 F.2d 510 (2nd Cir, 1977); United

States v. Quinn, 543 F.2d 640, 648 (Sth Cir. 1976); United

States v. Gonzalez, 539 F.2d 1238 (9th Cir. 1976); United

States v. Smith, 588 F.2d 1359 (9th Cir. 1976); United

States v. Gonzalez-Benitez, 587 F.2d 1051, 1055 (9th Cir.

1976), cert denied, 429 U.S. 923; United States v. Reifsteck,

535 F.2d 1030, 1034-1035 (8th Cir. 1976) ; and United States

v. Campa, 474 F., Supp. 507 (S.D. Fla. 1979). Cf. People v.

Isaacson, 44 N.Y.2d 511, 378 N.B.2d 78, 406 N.Y.S.2d 714

(1978), which accepted a similar defense, upon appropri-

ately delineated guidelines, under the New York State

Constitution.

In assessing the viability of such a due process claim,

this court in Hampton effectively outlined the focus of at-

tention. As stated by Justice Rhenquist,

[t]he limitations of the Due Process clause of the Ffth

Amendment come into play only when the Government

activity in question violates some protected right of the

defendant (411 U.S. at 490; emphasis in original).

See also United States v. Graves, supra, at 1325; United

States v. Campa, supra, at 509.

Further, the applicability of such a drastic remedy as

dismissal of all charges, even by Justice Powell’s analvsis

? ’

is confined to that ‘‘rare’’ situation when police involve-

ment in crime reaches a ‘‘demonstrable level of outrageous-

ness’’ (see 425 U.S. at 495, n. 7, Powell, J., concurring; cf,

Rochin v. California, supra). And the defense has been

accepted as cognizable only in that situation, aside from

where the authorities participate in the precise crime of

which the accused is guilty, where the defendant was not

the one who conceived of and fostered the criminality, but

where in fact the investigators have done so on their own

initiative (compare United States v. Twigg, supra to United

States v. Leja, supra and United States v. Smith, supra;

cf. Hampton v. United States, supra, 429 U.S. at 482, n. 2,

Powell, J., concurring).

By no view, could the ‘‘rare’”’ “level of outrageousness’’

contemplated by Justice Powell be realized under the now

fully developed facts in this ease (compare People vy.

Archer, 68 A.D. 2d 441, 417 N.Y.S. 2d 507 [2nd Dept. 1979]

to United States v. Archer, 486 F.2d 670 [2nd Cir. 1973]).

First of all, even petitioner Archer does not accuse the

federal authorities of having perpetrated the same crime

which he has now twice been convicted of committing (and

a crime which he completely ignored throughout the state

appellate process and in his petition). Hence, although

petitioner has charged the investigators with having com-

mitted inter alia, perjury and offering false instruments for

filing—which, of course, is belied by the evidence adduced at

the ‘‘technique’’ hearing herein (4a-6a)—he certainly has

not claimed that they committed bribe recewig.

The reason is simple. It cannot be disputed, were Arch-

er to have been willing to address the substantive facts

of his crime, that he and his confederates conceived of the

plan to fix the ‘‘case’’ on their own. To be sure, the evi-

16

dence adduced at the hearing and the trial conclusively

demonstrates that the federal undercover agent only sug-

gested that it would be worth his while were ‘‘his ease’’ not

to proceed. Tius, only the opportunity was created by the

investigators. The fact of a bribe, the amount of the bribe,

the grand jury as a vehicle for improperly terminating the

case as well as the story to be related to that forum, were

all suggested by petitioner Archer and his co-conspirators

in furtherance of the conspiracy. Hence, as the Appellate

Division found, the government did not manufacture a

crime that otherwise would not likely have occurred (9a).

Not unlike in Russell, therefore, and aside from any

issue of predisposition,*

[nlor does it seem particularly desirable for the law to

grant complete immunity from prosecution to one who

himself planned to commit a crime, and then com-

mitted it, simply because government undercover

agents subjected him to inducements which might have

seduced a hypothetical individual who was not so pre-

disposed. (411 U.S. at 434).

Cf. United States v. Twigg, supra.

Secondly, neither petitioner has pointed to any cogniz-

able right which he possessed that was violated by the fed-

eral authorities. For the defense to be invokable in the first

instance, that is clearly a pre-requisite (see Hampton v.

Umted States, supra, 425 U.S. at 490).

To the contrary, here, in the face of far reaching allega-

tions of corruption directly implicating the Queens County

* Both sides agree that no defense of entrapment is cognizable on

this record.

District Attorney’s office—hence the then* unavailability

of any appropriate state prosecutorial ageney—and in view

of the fact that the Knapp Commission’s pre-eminent in-

formant would only work with federal prosecutors, the

Commission members had no choice but to request a federal

investigation. In this regard, the record of the ‘tech-

nique’’ hearing clearly demonstrates the depth of the al-

legations which required prosecutorial attention and with

which the United States Attorney was confronted.

In pursuing their mandate, the investigators proceeded

with great cireumspection and with high regard not only

for the rights of potential targets but for the very institu-

tions which they were charged with cleansing. The follow-

ing, therefore, even for the limited purpose of this petition,

must be realized:

1. Left undiscussed by the Cireuit Court in Archer,

was the fact that before the plan was even contem-

plated, there was conscientious consideration given to

other alternatives including the use of an existing de-

fendant or a government informant. For purposes of

ensuring subsequent credibility and sufficiently re-

liable corroboration, however, both options had to be

eschewed.

2. Also unknown to Judge Friendly in Archer was

that the authorities had given very careful considera-

tion to the manner in which the ‘‘offense’’? was to be

carried out, i.e., the need for a simple weapons posses-

sion offense which would involve a minimum of person-

nel and misrepresentations as well as the avoidance of

narcotics substances, and the need to have the “‘erime”’

actually acted out so that the ‘‘arresting’’ officer in

swearing out a felony complaint would in fact be re-

* The office of the Special Prosecutor was not created until later.

18

‘lling that which literally occurred. The ‘‘falsity”’ of

the ‘‘charge’’ alluded to in Archer therefore was thus

meticulously avoided,

3. As in fact abserved upon reconsideration of the

Archer appeal, the Police Commissioner of the City of

New York was completely included in the mechanics of

the plan to the point of providing the ‘‘arresting”’ offi-

cer. The ‘‘lying’’ to the police which was referred to in

the original Archer opinion therefore simply did not

occur,

4. Specificially unrealized by the Archer court was

that the only misrepresentation made at the govern-

ment’s inititative to a member of the Judiciary—who,

obviously, along with the District Attorney, could not

have been informed of the plan, since all were under

possible suspicion—was the false pedigree of the ‘‘ar-

restee’’ who, without taking any oath, gave information

relevant to his identity as ‘‘Salvatore Barone.’’ Also,

cash bail was posted in order to further minimize re-

sort to falsification. The identity of the agent who

posted the bail was likewise not related under oath.

d. Not at all emphasized by the Archer court, and

as noted earlier, was that Archer and his cohorts

themselves suggested the type of fix and the precise

amount of the required money—the agent merely havy-

ing said that it was worth it to him not to go to court.

6. Unlike the Archer court’s observations which

implied that the government ‘‘concocted’’ the story for

the grand jury, it is clear that Archer’s co-conspirators

upon his behind the scenes request for a testimonial

explanation for the ‘‘offense,’’ manufactured the

scenario to be related to the grand jury.

7. The reality of the pending grand jury presenta-

tion, neither foreseen nor contemplated by the investi-

gators and not appreciated or realized by the Second

Circuit, had given rise to a serious deliberative process

-

19

which the United States Attorney, in view of his respect

for the sanctity of that body, felt obliged to undertake.

It was only after deciding that he had a public duty to

ascertain the truth of the allegations concerning the

chief of the Queens County District Attorney’s Indict-

ment bureau that he opted to proceed.

8. Likewise not pointed out by Judge Friendly was

the fact that the federal agent (as ‘*Barone’’) was

carefully instructed by his superiors that the only story

to be given to the grand jurors was that created by the

defendants themselves, and that under no circumstances

was a recording or transmitting device to be utilized

during the presentation.

9. As was only later observed by the Archer court,

and although neither his approval nor disapproval was

solicited, the U.S. Attorney had seen fit to personally

inform former Chief Judge Stanley Fuld as to the

fact of the plan—clearly not indicative of a cavalier

attitude to the sensitivity of the undertaking.

It follows that no question is raised by the petitions

which prior decisions of this court have not adequately

treated in a manner consistent with the courts of New York

in this case. As a consequence, the applications are un-

meritorious, the case not being in need of further review.

See Rules of the Supreme Court of the United States, Rule

17.1[ce].

III

Petitioners’ state indictment was not unnecessarily

delayed.

It is petitioners’ final suggestion that the original in-

vestigation was a joint federal/state undertaking and that

the state indictment was first filed almost a year after their

convictions and about six and a half months after the

20

United States Court of Appeals threw out their case. They

argue therefore that their defense suffered from the denial

of a speedy trial, or alternatively from extensive pre-in-

dictment delay, citing in his latter regard, among other

cases, United States v. Marion, 404 U.S. 307 (1971) and

United States v. Lovasco, 431 U.S. 783 (1977). Petitioners

are wrong, both as to the nature of the investigation herein

and their computation of time with regard to any pre-in-

dictment delay before the state grand jury returned a true

bill. As such they raise no claim meriting review.

Indisputably, it was the finding of the trial court, which

gave careful consideration to petitioner Archer’s argu-

ments, that this was not a joint federal/state undertaking

but simply a federal investigation conducted at the behest

of the Knapp Commission, albeit with local cooperation in

the form of the Police Commissioner and his subordinate.

The arrest herein was thus simply a federal matter with

the state proceedings not having been even contemplated at

the time.

The focal point of discussion, therefore, should be that

period leading up to November of 1973, the time when the

state indictment was first filed.*

Concerning this single issue of pre-indictment delay, a

concept essentially predicated on the dictates of due process,

this court has, for the most part, addressed itself to the

* Importantly, at the time of the federal indictment, there was no

state prosecutor with jurisdiction over Queens County who could

even have handled a prosecution, the Special Prosecutor's office not

yet having been created and the Queens County District Attorney,

aside from being in a conflict situation, himself having been under in-

vestigation. Petitioners moreover have never made any showing of

facts that would have countered the trial court’s assessment as to the

federal nature of the investigation.

21

question of the extent of the appropriate statute of limita-

tions and whether any prejndice has inured to the ability

of the defendant toe properly answer the charges (see

Marion, supra; Lovasco, supra). Even so, however, a de-

termination made in good faith to defer commencement of

the prosecution for further investigation or for other suffi-

cient reasons, will not deprive the defendant of due process

of law even though the delay may cause some prejudice to

the defense (United States v. Lovasco, supra).

In the matter at hand, any delay cognizable is clearly

attributable to such a good faith motivation.

As seen, the federal indictment was filed in or about J uly

of 1972. At that time no state agency with jurisdiction over

the substantive offenses in Queens County was capable of

prosecuting petitioners. Thereafter, petitioners went to

trial in federal court and were convicted in or about Janu-

ary of 1973. Importantly, from that point when jeopardy

attached in the federal trial, i.e., after the swearing of the

jury (Crist v. Bretz, 437 U.S. 28 [1978]), no state prosecu-

torial agency, even were any available and so disposed,

could have properly prosecuted the matter in view of the

‘‘same transaction’’ rule which prevails in New York

(New York Criminal Procedure Law §40.20[2] [McKinney,

1971]). This was absolutely the case until that time when

the United States Court of Appeals determined that the

convictions had to be aside for the single reason of “‘.. .

insufficiency of evidence to establish some element of [the

federal offense] which is not an element ...’’ of the state

offense with which petitioners were ultimately charged

(New York Criminal Procedure Law §40.20[2][f] [Me-

Kinney, 1971]). That did not occur until July 12, 1973.

22

Furthermore, from that point there was not a six and a

half month hiatus until the subsequent state indictment as

petitioners suggest—as innocuous as that itself would have

been—but only a two-month lapse of time. This is because

subsequent to the Cireuit Court’s original decision, a motion

for re-argument was interposed by the United States Attor-

ney. The Court did not decide that application until Sep-

tember 26. It follows that the only period of time of any

consequence is that space from September 26 until the filing

of the state charges in November, 1973.

Surely, no prejudice inured to petitioners during this

two-month interval (Marion, supra; Lovasco, suprag. In-

deed, as observed by the trial court, petitioner Archer had

that offered at the fed-

eral trial—and thus could not have been hampered in

already prepared for a defense

mapping plans for a second.

Petitioner Archer’s complaint that he was “lulled into a

false sense of security by the fact that he was never indicted

by the state authorities until after his dismissal in the

United States Court of Appeals .. .’’ (Petition at P. 53),

is thus simply belied by the controlling considerations

enumerated above. Even if so, however—which we would

dispute— it is inconsequential for purposes of due process.

No real prejudice having resulted in a two-month delay—

which itself is undoubtedly self-explanatory since the state

was certainly entitled to prepare its grand jury presenta-

tion—petitioners’ rights were in way compromised.

Accordingly, here again, no cognizable issue is presented

that warrants the granting of certiorari.

23

Conclusion

The petitions for writs of certiorari should be

denied.

Respectfully submitted,

Roperick C. LANKLER

Deputy Attorney General

Special State Prosecutor

Attorney For Respondent

2 World Trade Center

New York, New York 10047

(212) 466-1250

Mark M. Baker

Special Assistant Attorney General

Of Counsel