Petition — Bono v. United States

Supreme Court brief1980

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8 0 vi 3 1 2 Soren Gent

AUG 91980

MICHAEL RODANK, JR, CLERK

No.

Jn the Supreme Gourt of the United States -

JANE BONO, PETITIONER

v,.

UNITED STATES OF AMERICA

PETITION FOR WRIT OF CFRTIORARI TO THE THIRD CIRCUIT

COURT OF APPEALS

~ PETITION FOR WRIT OF CERTIORARI

Counsel for Pentivner :

ROBERT F. SIMONE, [Counsel of Record]

JAMES T. VERNILE,

150 Robinson Building

Philadelphia. PA 19102

(215) 563-2758

STATEMENT OF THE QUESTIONS

PRESENTED FOR REVIEW

DID THE PROSECUTION PRESENT INDE-

PENDENT, CREDIBLE EVIDENCE THAT THE

PETITIONER WAS PART OF A COCAINE

CONSPIRACY, THE MEMBERS OF WHICH

INCLUDED HEARSAY DECLARANTS, SUCH

AS TO RENDER ADMISSIBLE THE STATE-

MENTS OF SAID DECLARANTS MADE

DURING AND IN FURTHERANCE OF THE

OBJECTIVES OF THE CONSPIRACY?

(Answered affirmatively in the

Courts below.)

WAS IT ERROR TO PERMIT THE PROSECU-

TOR TO CROSS-EXAMINE THE PETITIONER

ABOUT HER RELATIONSHIP WITH HER.

BOYFRIEND, A NEW JERSEY PUBLIC

OFFICIAL?

(Answered negatively in the

Courts below.)

WAS IT ERROR TO PERMIT THE

PROSECUTOR TO CHARACTERIZE AS

"FLAG WAVING" THE DEFENSE COUNSEL'S

COMMENTS REGARDING REASONABLE DOUBT

AND THE RESPONSIBILITY OF THE JURY

IN PRESERVING THE AMERICAN SYSTEM

OF JURISPRUDENCE?

(Answered negatively in the Courts

below. )

TABLE OF CONTENTS

STATEMENT OF QUESTIONS

PRESENTED

TABLE OF CITATIONS

DISCUSSION OF LOWER COURT

OPINIONS

JURISDICTIONAL STATEMENT

SUMMARY OF FEDERAL CONSTI-

TUTIONAL AND STATUTORY

PROVISIONS IN ISSUE

STATEMENT OF CASE

ARGUMENT

I. THE PROSECUTION PRESENTED

NO INDEPENDENT, CREDIBLE

EVIDENCE THAT THE PETI-

TIONER DISTRIBUTED COCAINE.

II. IT WAS ERROR TO PERMIT THE

PROSECUTOR TO CROSS-

EXAMINE THE PETITIONER

aks

ABOUT HER RELATIONSHIP WITH

HER BOYFRIEND, A NEW JERSEY

PUBLIC OFFICIAL.

IT WAS ERROR TO PERMIT THE

PROSECUTOR TO CHARACTERIZE

AS "FLAG WAVING" DEFENSE

COUNSEL'S COMMENTS REGARDING

REASONABLE DOUBT AND THE

RESPONSIBILITY OF THE JURY

IN PRESERVING THE AMERICAN

SYSTEM OF JUSTICE.

Lii

Page

ORDER AND OPINION PER DISTRICT

COURT JUDGE BRODERICK FILED

APRIL 19, 1979, DENYING

POST TRIAL MOTIONS Appendix p.1l

JUDGMENT ORDER AFFIRMING

CONVICTION PER THIRD

CIRCUIT JUDGES GIBBONS,

WEIS, AND SLOVITER FILED

JUNE 11, 1980 Appendix p.10

CERTIFICATE OF SERVICE Appendix p.12

TABLE OF CITATIONS

United States v. Benson,

487 F.2d 978, 982

Pe AD vce oO 4 ko saree owes 33

United States v. Coleman,

340 F.Supp. 451, 454 (E.D.Pa.)

att’ és. 878 F264. 2337 656 Cie:

1972), cert.denied, 411 U.S.

939, cert.denied, 414 U.S.

Bae CROSSE sé oe OPK sc 4 Sak as wat 33

United States v. Cornfield,

563 F.2d 967, 971.-¢€9th Cir.

1977), cert. denied, 435 U.S.

Bee: RATER Ce os cede EOC be ec ee ao

United States v. Davis,

$37.7 .20 L230, 1296 -<8th Cir.)

cert.denied, 434 U.S. 971,

EE Sot) SEBRING LALA RE. Renate ian SO 5 ar 35

United States v. Dinitz,

C.A.FLA. 1974, 492 Fed.2d 53,

oe a Gee EL 0 6b ate a a eae ew % Aes 35

United States v. Green, 373 F.Supp.

Lae; ta (Bees: Fa), OFo' a.

$O3° F.2d 731 (36 Cir: ) cert.

denied, 420 U.S. 978 (1974)...... 33

United States v. Gross,

375 F.Supp. 971, 978 (D.N.J.,

1974), aff'd. 511 F.2d 910,

Ce tT OS 6 oaks Sere coach bla 6 Ale Oh 36

United States v. Newman,

490 F.2d 139, 147 (3d Cir.1974).. 36

United States v. Somers,

496 F.2d 723, 741 (3d Cir.),

cert.denied, 419 U.S. 832

CE ee a Be cg Okeke 36

United States v. Stirone,

168 F.Supp. 490, 499-500

(a.0. Fa. Bor), Ber’ d.,. 262

P.2a 571 (3d Cir. 1958) rev'd.

on other grounds, 361 U.S. 212

CR ee cl 5s .b 6 sos ota bse eee 33

United States v. Webb,

533 F.2d 391, 395-396 (8th

ue) PANU eg aire 38

OTHER STATUTES CITED:

Federal Rules of Evidence 611(b)

ME aaa ee is Sa a i iS 12,332

Federal Rules of Evidence 801(d)

RS Ce ASU aaah hs 0.0% caw wave 10-11, 29

DISCUSSION OF OPINIONS

IN THE LOWER COURTS

Petitioner herewith seeks review of

the Judgment Order Without Opinion that

was filed by Circuit Judges Gibbons,

Weis, and Sloviter, on June 11, 1980, in

the Court of Appeals for the Third Circuit

(see Appendix, pages 11 and 12, infra.).

That Judgment Order which has yet to be

officially reported, contained a recita-

tion of the three assignments of error

relied upon by Petition in her appeal at

the Third Circuit level:

1. That there is no independent

credible evidence that she

distributed cocaine;

2. That cross examination concern-

ing her relationship with a

politician was improper and

plain error;

3. That the government's rebuttal

argument was improper.

Following this list of issues, the Court

concluded with the statement: "We find

no merit in any of these contentions."

The appeal in the Third Circuit sought

to secure the reversal of Judgment of Con-

viction and Sentence that was entered of

record in the United States District Court

for the Eastern District of Pennsylvania

on April 26, 1979. Petitioner was sen-

tenced on that date by District Judge

Raymond J. Broderick on a four count in-

dictment charging in various counts the

crimes of conspiring for the purpose of,

aiding and abetting, and actual distribu-

tion of controlled substances in violation

of Sections 846, 84l1(a)(1) and (2) of

Title 18 of the Criminal Code. Sentence

on the first count was for a period cf two

years imprisonment followed by a ten year

term of special parole and the identical

sentence was pronounced for the remaining

three counts with the proviso that the

four penalties run concurrent. The sent-

encing of Petitioner was proceeded approxi-

mately one week by the Order and Opinion

of Judge Broderick in which he considered

and rejected essentially the same three

assignments of error which were raised

later in the Court of Appeals (Opinion

and Order of April 19, 1979, appears at

Appendix, pages 1 through 7, infra).

Judge Broderick finds that viewed in

the light most favorable to the prosecu-

tion, the evidence at trial was sufficient

to meet the standard for proof aliunde of

BONO's membership in the alleged drug con-

spiracy in order to support the admission

into evidence of hearsay accounts inculpa-

tory as to the Petitioner related at trial

through testimony of Drug Enforcement

Agent Hopson who, in turn, testified re-

garding the statements of the hearsay

declarants who were allegedly co-conspira-

tors with the Petitioner. In essence,

the Opinion found that Agent Hopson's

contention that he and Petitioner had

discussed and planned the intricacies of

of anticipated drug sales during most of

the dozen or so occasions upon which they

met or conversed by phone was sufficient

to prove Petitioner's membership in the

conspiracy regardless of the well estab-

lished fact at trial that the Petitioner |

had never actually distributed cocaine

to Hopson during the time period of the

indictment or otherwise.

Judge Broderick approved of the cross

examination of the defendant by Assistant

U. S. Attorney Rivera-Soto in regard to

her romantic and sexual relationship

(significantly without any indication of

drug overtones) with the Treasurer of

Mercer County, the situs of New Jersey's

capital city, Trenton), a political figure

of great stature within the state.

Broderick reasoned that the line of ques-

tioning was designed to impeach Petitioner's

contention that she had never sought the

aid of political figures in the conduct of

her drug enterprise, despite the fact

that there was no attempt to elicit

through such questioning the specifics of

any drug related conduct nor any other

activity beyond the sexual intimacy which

Petitioner conceded to have existed.

Finally, Broderick found no error in

comments by the Assistant U. S. Attorney

during his closing argument wherein he

sought to malign certain statements made

by defense counsel in closing argument

regarding the zeal with which the jury

should apply the standard of beyond rea-

sonable doubt as well as other principles

and individual safeguards which comprise

our system of criminal justice. The Judge

found that the prosecution's comments dur-

ing rebuttal (p. 230a of Volume III in

the Appendix to the Brief at the Third Cir-

Cuit Court o: Appeals) were not, per se,

abuse of due process, although a perusal

of the passage in question reveals the pro-

secution's argument in most strident

language that the standard of proof

beyond reasonable doubt and the presump-

tion of innocence are contrivances which

only the guilty may be expected to resort

to as a cloak to protect the wrongdoing.

The Opinion by Judge Broderick reproduced

infra at pages 1 to 7 is not reported

officially according to the best informa-

tion available to the Petitioner at this

time.

JURISDICTIONAL STATEMENT

The Petitioner seeks review by this

Court of the Judgment Order of the Third

Circuit Court of Appeals dated June l1i,

1980, (reproduced infra, at Appendix,

p. 11) affirming the Judgment of Convic-

tion and Sentence imposed on the defendant

in the United States District Court for

the Eastern District of Pennsylvania on

April 26, 1979. The initial Judgment of

Conviction arose from a four count indict-

ment, Criminal No. 79-1, in the Eastern

District of Pennsylvania, charging the

defendant with violation of the Federal

Criminal Statute proscribing conspiring to

distribute, distributing, and aiding and

abetting the distribution of a controlled

substance (in violation of 18 U.S.C.A. 846,

18 U.S.C.A. 841(a)(1), and 18 U.S.C.A. 2

respectively).

After denial of post trial motions by

the trial Court with opinion filed 4/26/79

(Appendix, p.l), timely appeal was

docketed in the Third Circuit Court of

Appeals at 79-1639.

Petitioner has appended hereto,

(Appendix - p.8, infra.) copies of the

Third Circuit docket entries. A copy of

the Appendix to the Brief of the Appellant

filed in the Third Circuit Court of Appeals

is submitted for filing with the forty

copies of this Petition for Certiorari in

order to supply the District Court plead-

ings for this Court's perusal. The Supreme

Court's appellate jurisdiction in this

Matter rests upon 28 U.S.C.A. §1254 which

reads in pertinent part:

§1254. Courts of Appeals;

certiorari; appeal; certified

questions

Cases in the Courts of Appeals

may be reviewed by the Supreme

Court by the following methods:

(1) By Writ of Certiorari

granted upon the Petition of

any party to any civil or cri-

minal case, before or after

rendition of judgment or

decree...

SUMMARY OF FEDERAL CONSTITUTIONAL

AND STATUTORY PROVISIONS AT ISSUE

With regard to the question of

whether there existed sufficient evi-

dence of Petitioner's membership in a

drug conspiracy to support the admis-

sibility of hearsay statements by

alleged co-conspirator declarants, the

provisions in Rule 801 of the Federal

Rules of Evidence are pertinent along

with the guarantees of confrontation

appearing at the Sixth Amendment to the

United States Constitution and the text

of that Rule of Evidence is as follows:

Rule 801. Definitions

The following definitions apply under this article:

(a) Statement. A “statement” is (1) an oral or

written assertion or (2) nonverbal conduct of a

person, if it is intended by him as an assertion.

(b) Declarant A “deciarant” is a person who

makes a statement.

than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the

truth of the matter asserted.

(d) Statements which are not hearsay. A state-

ment is not hearsay if—

(1) Prior statement by witness. The deciarant

testifies at the trial or hearing and is subject to

cross-€xamination concerning the statement, and

the statement is (A) inconsistent with his testimo-

ny, and was given under oath subject to the

penalty of perjury at a@ trial, hearing, or other

proceeding, or in a deposition, or (B) consistent

with his testimony and is offered to rebut an

express or implied charge against him of recent

fabrication or improper influence or motive, or

perceiving him: or

(2) Admission by , arty-opponent. The state

ment is offered against a party and is (A) his own

statement, in either his individual or a represent-

ative capacity or (B) a statement of which he has

manifested his adoption or belief in its truth. or

make a statement concerning the subject, or (D) a

statement by his agent or servant concerning a -

matter within the scope of his agency or employ-

ment, made during the existence of the relation-

snip, or (E) 4 statement by a coconspirator of a

party during the course and in furtherance of the

conspiracy.

e eeiaicgan Pub.L. 94-113, § 1, Oct 16, 1975, 89 Stat

—

The text of Rule 611(b) of the

Federal Rules of Evidence is of relev-

ance to the question of whether the

cross examination of Petitioner by the

United States Attorney after she was

called as a defense witness exceeded

the bounds of propriety. Section

611(b) defines the scope of cross

examination and reads in pertinent part

as follows:

Rule 611. Mode and Order of Interrogation

and Presentation

(a) Control by court. The court shall exercise

reasonabie controi over the mode and order of inter-

rogating witnesses and presenting evidence so as to

(1) make the interrogation and presentation effec-

tive for the ascertainment of the truth, (2) avoid

needless consumption of time, and (3) protect wit-

nesses from harassment or undue embarrassment.

(b) Scope of cross-examination. Cross-examina-

tion should be limited to the subject matter of the

direct examination and matters affecting the credi-

bility of the witness. The court may, in the exer-

cise of discretion, permit inquiry into additional

matters as if on direct examination.

STATEMENT OF THE CASE - FACTUAL

The circumstances which led to the

ultimate arrest and indictment of this

Petitioner took place in August and

September of 1978. The chain of events

resulting in the trial of the Petitioner

started on August 24, 1978, when Special

Agent Stephen Hopson of the Drug Enforce-

ment Administration (DEA) met with the

confidential informant who introduced him

to the Appellant's co-defendant, Mr. John

Yurosko. The agent, in his undercover

capacity, was seeking to arrange substan-

tial purchases of cocaine from acquaint-

ances of Yurosko generally and particularly

from Thomas Zidzik, a young man who ulti-

mately became the second of the Petitioner's

co-defendants at trial. Hopson continued

to discuss the purchase of cocaine with

Zidzik after the introduction of the two

men by their mutual acquaintance, John

Yurosko. On August 28, 1978, Hopson and

Special Agent James Bradley of the DEA

met Zidzik at the Bristol Flea Market.

Their purpose at the time was to convince

the Petitioner, purportedly through her

associate Zidzik, of their sincerity in

wishing to purchase substantial amounts

of cocaine. In furtherance of that ambi-

tion, the undercover agents displayed a

briefcase containing $28,000 in cash and

assured Zidzik that the entire sum was

available and earmarked for cocaine pur-

chases should the Petitioner be able to

supply sufficient quantities of the drug.

According to the prosecution, Zidzik

had distributed cocaine on behalf of an

organization of:individuals with overall

capacity to wholesale fifty to one hundred

pounds of cocaine per week.

Following the meeting at the Bristol

Flea Market, the very next day, August 29,

1979, Agent Hopson again contacted Zidzik,

who put the Petitioner, JANE BONO, on the

phone to speak to the agent at that time.

It should be noted that at no time during

the entire prosecution and trial was the

identity of the confidential informant who

initially vouched for the DEA agent to

potential drug sources, revealed by the

government.

Nonetheless, the person serving as

confidential informant also appears to

have been a material eyewitness and "ear-

witness" to significant overt acts purport-

ing to constitute the elements of crimes

charged (e.e., there was secured a series

of lengthy and detailed telephone conversa-

tions consensually tape recorded from the

telephone of the confidential informant).

The informant permitted Agent Hopson to

make consensual interceptions of all the

defendants and there were several such

conversations to which the Government

alleged that Petitioner JANE BONO was a

party.

The subject matter of the dialogues

allegedly between BONO and the DEA agent

dealt with words such as "fabric" and

"yards" the meaning of which is claimed

by the Govertaient to be translated in a

"code" under the terms of which cocaine

is referred to as "fabric" and its quan-

tities are measured in "yards".

} Subsequent to the initial telephone

introduction of the Petitioner and DEA

Agent Hopson, there occurred allegedly a

meeting between Zidzik and Hopson at the

7-11 Store located in Falls Township,

Bucks County, on Trenton Road. That meet-

ing took place on August 30, 1978, and

contained several highly incriminating

remarks made by Zidzik to the agent out-

side the hearing of the Petitioner JANE

BONO, who was not present at the time.

Zidzik claimed that he was part of an

organization with capacity for distribut-

ing two hundred pounds of cocaine per

week and that his superior in the chain

of distribution was the Petitioner.

Hopson, therefore, requested that

defendant Zidzik supply a sample of the

cocaine typical of that available from the

BONO "organization". At the August 30,

1978, 7-11 rendezvous, Zidzik proceeded to

call from the pay telephone outside the

store a female whom he identified to Agent

Hopson as MISS BONO, the Petitioner. Hopson

was permitted then to get on the phone and

he in turn proposed the drug purchases to

the female on the phone. According to the

prosecution's evidence, Agent Hopson con-

vinced this woman of his being a domiciliary

of the state of Maine so that she suggested

he could receive a sample of the drug by

purchasing a post office box in his home

town when he returned to Maine shortly

thereafter. The DEA office in Portland,

Maine, had provided a Post Office box

immediately upon the Agent's request for

such a mail receptacle. And, on Septem-

ber 7, 1978, a package containing a doll

was received in the box, the doll was

ultimately opened, and its contents tested

to reveal forty-one per cent of pure cocaine.

There followed on September 12, 1978,

a meeting between Agents Hopson and Bradley

along with Zidzik and BONO initially at the

Villa Sorrento Restaurant in Bucks County

and, after an altercation arose between

Defendant Zidzik and the bartender of that

establishment, subsequently the group con-

tinued the meeting in Ray Agabiti's Restau-

rant where allegedly they discussed the

conspiracy's objective over luncheon.

According to tape recordings pur-

portedly of the Petitioner, she was apolo-

getic about the poor quality of the cocaine

which the doll contained and promised that

her typical quality of narcotic was easily

twice the potency of that which she had

forwarded to the Portand, Maine, Post Office

box. It should be remembered that the

prosecution's averments as to the details

of the discussions that were tape recorded

and particularly as to the subject matter

of those conversations relating to cocaine

all rests upon the DEA Agent's contention

that the apparently innocuous subject

matter of the dialogues was consistently

the product of a "code" which substituted

legal terms of a non-criminal nature for

the various words contained in the lexicon

of the drug trade.

Through September 22, 1978, DEA Agent

Hopson persisted relentlessly in his

efforts to elicit an illegal sale of nar-

cotics by the Petitioner. On the twenty-

second, he telephoned her at least seven

times in succession and recorded each con-

versation in which he urged her to supply

him with a large quantity of cocaine, hope-

fully the same day as their dialogue had

occurred. The Petitioner purportedly

stated, apparently in order to dissuade

the agent from seeking to purchase drugs

from her, that she was unable to consum-

mate a large transaction because the

Pennsyivania Crime Commission had airested

the individual from whom she purchased her

cocaine.

There occurred other conversations on

other dates that purportedly relate to a

conspiracy to distribute cocaine. For

instance, on September te 1978, the con-

versation of the female identified as Peti-

tioner with DEA Agent Hopson (again con-

sensually eavesdropping upon the dialogue

and tape recording the results from the

unidentified informant's phone) consisted

of comments that the prosecutors interpret

to convey through code an additional apo-

logy for the poor quality of the original

cocaine doll sample sent to Maine, along

with further statements supposedly by the

Petitioner and conceded by the Government

to consist of disclaimers by her of any

intention to sell cocaine to the DEA agent.

Nevertheless, by translating the "code"

which the agents interpreted for the fact-

finder, the prosecution contended that

the conversation on September 18, 1978, ~

concluded with a promise by the Petitioner

to extend on consignment a substantial

shipment of cocaine to Zidzik for the

express purpose of his distributing it to

undercover agent Hopson.

October 3, 1978, was the date of

another 7-11 Store meeting between Hopson

and Zidzik. Hopson entered Zidzik's car

and received a drug sample which the agent

contends Zidzik identified as having been

originally from the supply of JANE BONO,

the Petitioner. Analysis revealed vir-

tually pure cocaine which the prosecutors

ponderously proclaimed was a rare occur-

rence in street transactions. Subsequent

to the October 3, 1979, meeting, another

Hopson-Zidzik 7-11 tryst took place

wherein two ounces of cocaine, of but

thirty per cent purity, was sold to the

DEA Agent for $4,000. ‘Re prosecution

did not infer from the radical reduction

in purity of the drug the existence of a

new source, different from the ninety-nine

per cent pure substance which supposedly

the Petitioner was capable of supplying.

The conversation tape recorded by

Hopson on October 19, 1978, consisted of

a discussion with Zidzik of the poor qual-

ity of the drug which Zidzik professed to

get from Petitioner. Zidzik advised the

Agent that all complaints were consequently

referrable to Ms. BONO. All such discus-

sions were recorded consensually and with

the permission of the confidential inform-

ant who initially introduced the agent into

the purported drug conspiracy and whose

identity never did come to light in the

course of the entire proceeding in the

District Court.

.~ The female identified as JANE BONO,

the Petitioner, stated to DEA Agent Hopson

in a conversation on October 23, 1978,

that her cocaine supply was being diluted

by people who had access to the safety

deposit box where she stored the drug and

the female suggested a rather bizarre means

of discouraging further such dilution of

the drug. Specifically, in the October 23,

1978, phone interception, the female

averred her intention of lacing the cocaine

"stash" with strychnine in order to reveal

the identity of the thieves by means of the

sudden, painful and precipitous death that

surely would result from the consumption

of the cocaine removed from the Petitioner's

safe deposit box without authorization.

This female was supposed to have promised

the agent that the ninety-nine per cent

pure sample received from Zidzik was typical

and representative of the normal product

that she was wholesaling. Paradoxically,

she never offered nor did the agent ever

demand some explanation for the radical

departure from that benchmark which

appeared to have regularly occurred during

the course of the transactions contained

in the conspiracy allegations of this

indictment.

The facts that have been recounted in

the foregoing paragraphs led to an indict-

ment in January of 1979 and consequent

trial in March of the same year. At the

trial, the proseuctor relied for his inde-

pendent proof of the existence of conspir-

acy such as to support the substantive

conspiracy charge in the indictment as well

as to properly precede the admission into

evidence of hearsay declarations by the

Petitioner's co-conspirators upon the tele-

phone conversations that were recorded by

the DEA agent with the consent of the

caller, a confidential informant. Signifi-

cantly, the entire body of intercepted

communications purporting to be those of

the Petitioner rests upon a foundation of

admissibility no stronger than the anony-

mous permission of an unidentified, mystery

informant who is known only to the Govern-

ment, available only to the Government, and

never provided at ne trial for confirma-

tion of the supposed consent that was

critical as a prerequisite for the inter-

ception that comprised the entire weight of

the prosecution's case.

There arose at trial additional signi-

ficant assignments of error with respect

to the cross examination of the Petitioner

by Assistant U.S. Attorney Rivera-Soto.

The testimony by Agent Hopson contained

averments of the fact that the Petitioner

supposedly claimed to be intimate with

many politicians and able to wield much

political power in order to avoid prosecu-

tion. According to the Government, the

prosecution was entitled to impeach the

Petitioner's denial of having made such

statements with evidence of her sexual

intimacy and romantic involvement with

the Treasurer of Mercer County (Trenton),

New Jersey, a relationship of a spectacular

and infamous nature with potential for pre-

judice apparent at a mere glance. Such

cross examination was permitted over the

objections of the Petitioner's counsel,

strenuously urging the Court to balance

the prejudicial nature of such irrelevant

issues in the personal life of the Peti-

tioner against the negligible probative

force of such cross-examination relative

to the Petitioner's denial of claiming

to manipulate powerful politicians. It

is respectfully urged that there would

more properly have been grounds for

admission of some evidence to link the

Petitioner with politicians in the pursuit

of some specific illegal goal. However,

pure romantic rumor-mongering, which the

prosecution engaged in under the guise

of cross examination, should properly

have been assigned as error.

The final issue assigned as error

relates to closing arguments by the pro-

secution. There occurred during defense

counsel's closing argument references by

the attorney representing the Petitioner

to the American system of justice and the

integral part played in that procedure by

the standard of proof of guilt beyond a

reasonable doubt and the presumption of

innocence concommitant thereto. Defense

counsel argued that such legal principles,

far from being technicalities to be ignored

by a conscientious jury in pursuit of

enforcement of the laws, were part and par-

cel of the American system and the American

way of life such that the Constitutional

protection contained therein extended the

length and breadth of the United States

territorial interests on the globe. The

prosecutor depicted such reasoning as

"flag waving" and stated that only the

guilty resort to the protection of the

presumption of innocence to protect their

nefarious activities. Such argument, left

uncorrected, must surely lead the fact-

finder to the dangerous belief in its own

discretion to apply a standard of proof

of guilt other than that prescribed in the

classic beyond reasonable doubt test.

ARGUMENT °

I. THE PROSECUTION PRESENTED NO INDE-

PENDENT, CREDIBLE EVIDENCE THAT

THE PETITIONER DISTRIBUTED COCAINE.

The only independent proof of the

existence of a conspiracy in this case

rested upon hearsay declarations con-

tained in "consensually" intercepted wire

communications which should have been

ruled inadmissible ab initio since the

party purportedly giving consent was a

material eyewitness to the crimes alleged

yet was never identified by the govern-

ment.

The Advisory Committee on the Judiciary

commented with respect to Rule 801(d)(2)(E),

which contains the hearsay exception for

co-conspirator declarants that:

The agency theory of con-

spiracy is at best a fiction

and ought not to serve as a

basis for admissibility beyond

that already established.

It is respectfully submitted that the

observation contained in the Advisory

Committee's remarks goes to the heart of

the question of how reliable evidence in

the form of hearsay declarations may be

regarded as. The Committee's conclusion

that the agency theory of conspiracy isa

fiction logically compels the further con-

clusion that one individual's acts or

statements may not be attributed to

another person not actually present unless

there exists a genuine collaboration of

purpose and conduct between the declarant

and the individual for whom he purports

to be an agent. That relationship is

traditionally designated as proof aliunde

of the membership in the conspiracy by

the individual against whom statements of

the hearsay delcarant are offered as evi-

dence. The rejection by the Court of

appeals of the argument by this Petitioner

that no such relationship was proven satis-

factorily can only lead to a broadening of

the test applicable to the hearsay exception

for co-conspirators contrary to the

Advisory Committee's warning and with

dangerous potential results.

Where, as here, the sole proof of

the identity and membership of the unknown

female phone caller as being the Peti-

tioner rests upon identification made by

an unknown, un-named confidential informant,

there simply can be no proof of Petitioner's

membership in a conspiracy. The volume,

the criminality, and the existence of the

tape recorded phone conversations purportedly

constituting proof aliunde is of no conse-

quence when the foundation upon which they

rest is unstable. For this reason, it is

respectfully submitted that the Supreme

Court should review and strictly limit the

test for this hearsay exception such that

abuses like that in the instant case will

not become a regular practice.

II. IT WAS ERROR TO PERMIT THE PROSECUTOR

TO CROSS-EXAMINE THE PETITIONER ABOUT

HER RELATIONSHIP WITH HER BOYFRIEND,

A NEW JERSEY PUBLIC OFFICIAL.

Petitioner submits that the cross-

examination of the defendant regarding her

relationship with a politician in New /

Jersey was error merely because it per-

mitted the factfinder to infer guilt from

immoral but legal aspects of her personal

conduct. During the Government's case in

chief, Special Agent Stephen Hopson testi-

fied that, on September 12, 1978, he met

with BONO and she told him of her numerous

contacts with politicians and magistrates.

However, when Petitioner took the stand,

she denied making such statement and, fur-

ther, testified that she did not know any

significant politicians. On cross-

examination, BONO was then questioned re-

garding the veracity of her denial.

Petitioner recognizes that "(I)f, as

here, a defendant takes the stand to

testify in his own behalf, his credibility

is placed in issue and the Government is

entitled to attack it by cross-examination

and relevant impeaching evidence."

[Emphasis added] United States v. Webb,

533 F.2d 391, 395-396 (8th Cir. 1976).