Petition — Aiken v. United States

cea nea

Supie ve Court, U. S.

, FILED

80-1096 aa a

No.: | [MICHAEL RoDAK, JR. CLER

IN THE

Supreme Court of the United States

October Term, 1980

LEONARD AIKEN,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

JAY GOLDBERG, P.C.

30 Rockefeller Plaza

New York, New York 10020

(212) 586-1433

EDWARD GASTHALTER

477 Madison Avenue

New York, New York 10022

(212) 688-7788

Attorneys for the Petitioner

Leonard Atken

i

Questions Presented for Review

1. Was Petitioner’s Sixth Amendment Right to

the Assistance of Counsel Violated by the Failure

of the District Court to Suppress Petitioner’s Post-

Arrest Statements?

2. Was Petitioner’s Fifth Amendment Right to

Due Process of Law Violated by the Failure of the

District Court to Grant Petitioner’s Motion for a Pre

Trial Hearing Concerning the Government’s Voice

Identification Procedures?

» |

il

Table of Contents

Questions Presented for Review ..........-..+..

Opinion Below ............::eee eee e cette eens

Ce ED PPT er rr Tre ere? Cr tes.

Constitutional Provisions Invoked..............

Statement of the Case :..........ccccccccesecoes

RRP POP erT reer ere TiCi eee

2. The Prosecution’s Case..............+++.

ey th Ug Le Seeererr re rere rs

4. The Prosecution’s Rebuttal Case.........

Reasons for Granting the Writ .................

POINT I -- Petitioner's Sixth Amendment Right

to the Assistance of Counsel Was Violated

by the Failure of the District Court to Sup-

press Petitioner’s Post-Arrest Statements ...

POINT II -- Petitioner’s Fifth Amendment Right

to Due Process of Law Was Violated by the

Failure of the District Court to Grant Peti-

tioner’s Motion for a Pre-Trial Hearing

Concerning the Government’s Voice Identi-

Fication PYOCOGUTES..... 006s csccccccvccsvees

PTE OPC OES eee Terre e errr ey ty

13

19

21

iii

Table of Authorities

Cases:

Brewer v. Williams, 430 U.S. 387 (1977).........

Carvey v. LeFevre, 611 F.2d 19 (2d Cir., 1979),

cert. denied, 100 Sup. Ct. 1858 (1980)........

Forman v. Smith, 482 F.Supp. 941 (W.D.N.Y.

RBS PR TTR ory Gey panels hae

Johnson v. Zerbst, 304 U.S. 458 (1938)..........

Massiah v. United States, 377 U.S. 201 (1964)...

Miranda v. Arizona, 384 U.S. 436 (1966) ........

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

People v. Singleton, 83 M.2d 112 (1975) .........

United States v. Albergo, 539 F.2d 860 (2d Cir.

1976), cert. denied, 429 U.S. 1000 (1976).....

United States v. Armedo-Sarmiento, 545 F.2d

785 (2d Cir. 1976), cert. denied, 430 U:S.

ES tie oi the ae

ie aah ede oA Leder wee nthe se aeecs

United States v. Callabass, 458 F.Supp. 964

CS ri a i vb wv Und boty vhs 22% kk

I eae sete Uk, ANS ete de se kos,

United States v. Lord, 565 F.2d 831 (2d Cir. 1977)

United States v. Miller, 432 F.Supp. 382 (E.D.N.Y.

DSc at Vint hy page ee ner et dt

Mok is poco a i bee cute LOO etn ie

United States v. Moore, 571 F.2d 76 (2d Cir. 1978)

United States v. Pheaster, 544 F.2d 353 (9th Cir.

1976), cert. denied, 429 U.S. 1099 (1977).....

17

17

17

12

17

13

19

20

21

21

20

18

20

17

18

18

21

20, 21

iv

Cases (continued):

United States v. Satterfield, 558 F.2d 655 (2d Cir.

re, ou agate ci ton with eek Wie Rails « 13, 17

United States v. Williams, 583 F.2d 1194 (2d Cir.

lg yao Ee a ne area ae ae g

United States Constitution:

a re 2 12 13. i7

Sisth Amendment ........sc0crceces: L.2i2 wine

Statutes:

SE os ig a whe ccd a cGhawepacave decease 13

EE END oc nt avn a dcaebetsavnenstsues 2

Other Authorities:

American Bar Association, Code of Professional

Responsibility, DR 7-104(A)(2).............. 18, 19

Federal Rules of Criminal Procedure

ce oss pakke ce sabes bas wks 13, 19

OS) Barer ree are renner eee 8

Federal Rules of Evidence

NN SIE Rnie eat een eae Raa eR aamee er ire ome g

IN THE

Supreme Court of the United States

October Term, 1980

LEONARD AIKEN,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

-

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Leonard Aiken prays that a Writ of Certiorari

issue to review the judgment of the United States

Court of Appeals for the Second Circuit affirming

the judgment of conviction against the Petitioner by

the United States District Court for the Southern

District of New York.

3

Opinion Below

Following the entry of the judgment in the District

Court, Petitioner appealed to the Court of Appeals

for the Second Circuit. The unreported opinion of the

Court of Appeals may be found in the appendix annexed

to this petition at la to 6a.! Petitioner did not seek

rehearing or suggest rehearing en banc.

Jurisdiction

The date of the judgment of the United States

Court of Appeals for the Second Circuit was Novem-

ber 10, 1980, which also was the date of entry. This

Court’s jurisdiction is invoked under 28 U.S.C. Section

1254 (1).

Constitutional Provisions Invoked

1. The Fifth Amendment to the Constitution of

the United States.

2 The Sixth Amendment to the Constitution of

the United States.

These constitutional provisions are set forth in

Petitioner’s appendix at 7a.

\“A”’ refers to the appendix annexed hereto which contains the

judgment of the United States Court of Appeals for the Second Circuit

and the relevant constitutional provisions involved herein. “T”’ is a

reference to the two-volume appendix heretofore submitted to the

United States Court of Appeals for the Second Circuit. These volumes,

which contain inter alia pre-trial and trial testimony, pleadings,

and exhibits, will be certified to this Court.

3

Statement of the Case

1. Introduction

On February 7, 1980, the government filed indict-

ment No. 80 CR 70 which charged that from November

1978 through February 1980 Petitioner and one

Benjamin Starckey? conspired with each other to

distribute and possess with intent to distribute heroin

and cocaine.

2. The Prosecution’s Case

Joyce Finch, who, during the period of March and

April 1979 was employed as a barmaid at the 400 Club

located at 148th Street and St. Nicholas Avenue within

the City of New York, testified that she believed that

Benjamin Starckey owned the Club (T. 375). She recalled

that in March and April of 1979, David Reeves came

to the Club and so did the Petitioner “once or twice

a week” (T. 379-380). She recalled that on “several

occasions” she saw Reeves, Petitioner, and Starckey

conversing in the Club (T. 380). On cross-examination,

she conceded that she could not recall precisely when

Petitioner had spoken with Reeves; that she had not

actually overheard any of the conversations; and

that she had no independent recollection of the con-

versations. Indeed, she testified that she had indicated

to the prosecution that the conversations had taken

place in March and April simply because the prose-

cution had suggested March and April (T. 389-390).3

*Starckey was named with Petitioner as a defendant in the

one-count indictment. Starckey, a/k/a “Skippy” (hereinafter

“Starckey”’), received a sentence of six and one-half years. Petitioner,

on parole at the time of his conviction, was sentenced to a term of

imprisonment of 20 years and is presently incarcerated.

‘Finch’s time-frame testimony was particularly crucial in

this case since the lynchpin of the Government’s case against

Petitioner concededly consisted of two tapes allegedly made at

the 400 Club on April 12 and April 18, 1979, which conversations

(footnote continued on following page)

4

Before the Grand Jury, Finch had been asked,

“You remember in April, roughly on or about April 18,

but in April, somebody came in and gave a summons

to the 400 Club for not having -- because their license

had expired?” Finch had responded, “I got it” (T. 642).

At trial, on re-direct examination, the prosecutor

attempted to establish that Finch’s recollection of

when the conversations had taken place in the Club

was predicated not upon the suggestion of the prose-

cution, as the defense had established on its cross-

examination of Finch, but rather upon her recollection

of the conversations having taken place at or about

the time she had received a summons for selling liquor

without a license (T. 391-392). It was only after Finch

and two additional prosecution witnesses had testified

that the defense discovered that the critical summons

had actually been issued on March 14, 1979 -- not in

April -- as the prosecution had asserted both before

the Grand Jury and at trial during the testimony of

Finch -- and that the prosecution knew or should have

known of this crucial fact (T. 640-686).

John DeRosa of the Drug Enforcement Task Force

next testified for the Government.

the Government attributed to Reeves, Starckey, and Petitioner.

Reeves, a Government informant in this case and unrelated matters

who allegedly taped the incriminating narcotics conversations,

died prior to trial and was, therefore, unable to testify for the Govern-

ment as to the conversations (T. 603-604). At trial, no Government

surveillance witness was able to testify that he had ever seen Peti-

tioner enter the Club where the alleged conversations took place

on April 12 and April 18, although a rebuttal witness for the Govern-

ment testified that he observed Petitioner exit the Club on April 18,

and no prosecution witness other than Finch had ever observed

Reeves speaking with Petitioner. Petitioner hotly disputed that

he was, in fact, the speaker in the conversations and as will be

shown more fully below, his defense at trial was predicated upon

creating a reasonable doubt that it was his voice on the tapes.

5

In January, 1979, DeRosa arrested Reeves who

thereafter became an informant (T. 403-405). Until

the arrest of Petitioner and Starckey, DeRosa con-

ducted surveillance, near the 400 Club.* On April 12,

Officer DeRosa, together with another officer, met

Reeves in Queens, where they outfitted him with a

Nagra recorder and a Kel Transmitter, gave him

$500 and directed him to return to the Club.> Later,

DeRosa observed Petitioner’s car parked in the vicinity

of the Club and at about 5:30 p.m. saw a male “who

resembled” Petitioner enter the Club. About 15 minutes

later, he noticed that Petitioner’s car was gone and

that shortly thereafter, Reeves was back in his own

car (T. 401-416). DeRosa then removed the Nagra and

its tape from Reeves, which tape was received in evi-

dence (GX-2, T. 418).

On April 18, DeRosa and other police officers met

Reeves under the West Side Highway in New York

City. Again, a Nagra recorder as well as a Kel Trans-

mitter was placed on Reeves and he was given $6,200

in Government funds. At about 5:00 p.m. Reeves, at

the direction of the police, arrived at the Club. Though

DeRosa did not personally make any observations,

at about 6:45 he met Reeves who gave him the Nagra

and its tape, the Kel, and $5,000 of the $6,200 (T. 419).®

‘The Government asserted that the critically probative events

and conversations occurred at the 400 Club located at 400 West

148th Street. Much of the surveillance testimony, however, concerned

Petitioner ailegedly entering another establishment at 405 West

148th Street, which did not figure in the indictment (A. 657).

‘The Kel malfunctioned, allegedly because of a defective battery,

and the Government withdrew its offer of Reeves’ transmission

(A. 418).

*The Government asserted that the tapes revealed that the

payments by Reeves were for prior narcotics transactions (T. 24).

6

At 7:30 that same evening, DeRosa again met

Reeves, outfitted him with a Nagra, and gave him

$5,000. As previously, DeRosa did not personally

make any observations. At about 8:45 he met Reeves,

removed from Reeves the Nagra and its tape, and

received from Reeves the $5,000. The tape of the two

April 18, 1979 conversations was received in evidence

together with transcripts of each of the conversations

(GX-2, 2A, 3, 3A, 3B, 4; T. 425, 463-464).

Subsequently on January 7, 1980, a complaint

against Petitioner was filed and a warrant for his

arrest issued. DeRosa testified that on February 5,

1980, at 8:00 a.m., Petitioner surrendered at the office

of the Drug Enforcement Administration as per agree-

ment between DeRosa and Petitioner’s attorney.

Petitioner was then advised of his constitutional

rights and after being booked was taken to the office

of Assistant United States Attorney Denton, where

he was again interviewed in the presence of DeRosa

and another police officer after again being advised

of his rights by Denton. After being shown a copy of

the complaint against him and being informed that

the Government had him “good...on two or three

tapes talking dope deals,” Petitioner stated, “I know

I am in trouble” (T. 435).

Prior to February 5, when Petitioner surrendered,

DeRosa had never met Petitioner. On February 5,

DeRosa spent about four hours with him and testified

that he had had an opportunity to listen to Petitioner’s

voice for 45 minutes to an hour (T. 435). On this basis,

he attributed the voices of the speakers on the tapes

to be those of Reeves, Petitioner, and Starckey and

stated to the jury that he had no doubt whatsoever

as to the correctness of his attributions (T. 467-471).

70On April 19, the scenario was repeated by DeRosa and Reeves,

who this time did not enter the 400 Club. The April 19 tape was

received in evidence as GX-4 (T. 425).

7

On _ cross-examination, DeRosa conceded that

notwithstanding the Government’s assertion that

Petitioner was at the 400 Club on April 12 speaking

about narcotics, he, DeRosa, had been captured on

a Kel transmission to Reeves stating that he, DeRosa,

“did not see Leonard Aiken, the Petitioner, go into the

400 Club at about 6:00 that night”; that in point of

fact he had, himself, never seen Petitioner enter the

400 Club; and that he had never seen Petitioner speak

with Reeves (T. 476, 487, 505). Moreover, he conceded

that although Reeves repeatedly referred to “Leon” --

Leonard Aiken -- on the tapes, there was, in fact, no

evidence independent of Reeves’ assertions to establish

that Reeves had actually been conversing with Peti-

tioner (T. 526-528).

Alphonse Ripandelli, also assigned to the Drug

Enforcernent Administration, testified for the Govern-

ment.

He stated that on February 5, 1980, he had occasior

to take Petitioner from Assistant United States

Attorney Denton’s office to the office of the pre-trial

services. As they were walking through a tunnel beneath

the courthouse, Ripandelli told Petitioner that it was

a point in his favor that he had seen fit to surrender.

Ripandelli recalled that Petitioner then responded

that “if he was any younger, he would still be running”

(T. 634-635). Ripandelli further testified that he believed

it was the voice of Petitioner on the April 12th tape

(T. 635-639).

Paul Ginsberg, an engineer whose specialty is

clarification and enhancement of the intelligibility

of audio tape evidence, was the Government’s next

witness. Ginsberg stated that he had listened to the

tapes recorded by Reeves and that in his opinion, these

‘Wher confronted on cross-examination with his own Kel

transmission, DeRosa, incredibly, told the jury that he was “lying”

to Reeves when he told Reeves that he had not seen Petitioner enter

the Club on April 12 (T. 492, 508-510, 518-520, 606-613).

8

were “normal” Nagra recordings which had not been

manipulated (T. 706-707). Ginsberg conceded, however,

that he had made no independent analysis to determine

if the voice on the tapes attributed by the Government

to Petitioner was, in fact, Petitioner’s voice (T. 710-712).

Following Ginsberg’s testimony, the Government

rested and counsel for the defense moved inter alia

for a directed judgment of acquittal pursuant to Rule

29 (a) of the F.R.Cr.P. (T. 718-719). Although the District

Judge initially reserved decision on Aiken’s motion

to dismiss, the motion was ultimately denied (T. 719-

720, 1122-1123).

3. The Defense’s Case

Arnold Weiss, an attorney, was the first witness

called by Petitioner. Weiss stated that he was requested

by Petitioner’s counsel to transcribe the tapes fur-

nished by the Government to the defense, as required

by the rules on discovery (T. 792). He listened to the

tapes eight or ten times and prepared transcripts of

the conversations allegedly recorded by Reeves on

April 12 and 18, which transcripts, like those prepared

by th» Government, were received in evidence to aid

the jury (DX-F, DX-G; T. 801, 807).

Weiss further testified that at the request of Peti-

tioner’s counsel he had, on five or six occasions, spoken

with Petitioner for periods ranging from 10 to 30 minutes

(T. 797). In his estimation, the voice ascribed to Petitioner

by the Government on the tapes allegedly made by

Reeves was undoubtedly not the voice of Petitioner

(T. 797-807, 814-815).

John L. Pollok, an attorney specializing in criminal

law with considerable experience in cases in this and

other Circuits involving tape recordings, transcripts,

and problems of voice identification, also testified

for Petitioner (T. 1031-1034).

9

In March, 1980, Pollok was asked by Petitioner’s

counsel to retain the services of a voice identification

expert. In that connection, Pollok contacted Dr. Oscar

Tosi at Michigan State University and inquired of

Tosi whether he would be able to assist the defense.

Acting on Tosi’s instructions, Pollok prepared an

exemplar of the known voice of Petitioner. More par-

ticularly, Pollok directed Petitioner to come to his

office. There, he directed Petitioner to read those portions

attributed to Petitioner on the Government transcripts,

which had been furnished pre-trial to the defense,

into a tape recorder. When that was done, Pollok sent

the exemplar along with the tapes of April 12 and 18,

provided pre-trial by the Government to the defense,

to Tosi for scientific analysis with the understanding

that “we would have to take our chances by sending

this to him and if he had negative findings as to our

client, so be it” (T. 1039-1042).

The final witness for the Petitioner’s defense

was Dr. Oscar Tosi, the recipient of a Government grant

to develop a system of voice identification or elimin-

ation, who had previously testified as an expert on

behalf of the United States Attorney for the Southern

District of New York in the seminal case of United

States v. Williams? and who had testified as an expert

in more than 100 cases in the United States, Canada,

and Europe (T. 831-837).!° In the case at bar, the Govern-

ment did not, however, seek to retain Tosi (T. 962).

9583 F.2d 1194 (2d Cir. 1978).

‘Pursuant to his understanding of this Court’s ruling in

Williams, supra, at the urging of the Government, the Distrct Judge

ordered that a voir dire be held to determine whether there was

“sufficient reliability” to submit Tosi’s scientific findings to the

jury (T. 742). After evaluating Tosi’s testimony, upon objection

of the Government, the District Judge concluded that Tosi’s testi-

mony and demonstrative evidence must be limited to solely his

aural analysis and no other scientific methods he had utilized upon

the ground that results of Tosi’s spectrographic and computer

methods were too speculative within the context of Rule 702 of the

Federal Rules of Evidence (T. 784-788, 853).

10

Adhering to the District Judge’s voir dire ruling,

Tosi testified that typically, as was done in the instant

case by Pollok, the party wishing to retain him, whether

it be the prosecution or the defense, prepares an exemplar

of the known voice and forwards it to him together

with copies of the tapes to be actually utilized at trial

(T. 837, 985-986). Tosi then copies all the tapes sent

to him on his own sophisticated equipment and after

filtering and amplifying them prepares a series of

loops -- .i.e., “very short sentences” -- of all the voices

involved. Ultimately, he aurally compares the known

controlled voice of the speaker on the exemplar with

the voice on the tapes to be offered at trial and proceeds

on the basis of his expertise to reach a conclusion as

to whether the voice on the tapes to be offered at trial

is, in fact, the voice of the person to whom the spoken

words have been attributed (T. 837-852). In reaching

his conclusions, Tosi testified that he utilizes a scale

of 10, with positive identifications ranging from zero

to plus 10 and negative eliminations from zero to

minus 10 (T. 852-853, 901-903)."!

In the instant case, Tosi concluded that the unknown

voice had absolutely no positive characteristics of

Petitioner’s voice. On the negative side -- i.e., elim-

ination -- he ascribed to the unknown voice a minus two

which he stated, signified a “low percentage of elim-

ination” (T. 853-855). Tosi further testified that in

his expert opinion, it would be utterly impossible for

anyone to make a reliable voice identification under

the circumstances described by Government witnesses

DeRosa and Ripandeili (T. 845-847).

'1On Tosi’s scale, if he were absolutely certain of the identifi-

cation of the unknown voice, he would use a positive “10” and if

he were absolutely certain of the elimination of the unknown voice

he would use a minus “10.” In point of fact, Tosi testified that “10”

is merely a “theoretical” number, and he never utilizes it (T. 852-853).

11

4. The Prosecution’s Rebuttal Case

George Williams, a Drug Enforcement Agent,

testified that he had worked undercover with the

informant, Reeves (T. 1050). On April 18, 1979, he was

in and around the 400 Club. At about 4:30 he saw

Reeves arrive at the Club, stand in the doorway, and

then enter the Club at about 5:50 (T. 1051-1053). Williams

further testified that after Reeves went into the Club,

he was forced to move his car. Upon returning to his

position, he observed Reeves come out of the Club

at about 6:10 and thereafter, saw Petitioner exit the

Club (T. 1054-1055). He, however, did not see Petitioner

enter the Club and did not see Reeves speaking to

Petitioner, nor did he, Williams, ever meet with or

speak to the Petitioner (T. 1086-1087).

Williams further testified that on March 29, 1979,

he had occasion to go to the Club with Reeves in an

undercover capacity to engage Petitioner in conver-

sation (T. 1099). Petitioner was, however, not there.

At the Club Reeves introduced him to Starckey as

“George” and told Starckey that Williams was “a new

guy” - a courier for Reeves. Reeves asked Starckey

if “Leon” was around and Starckey responded, “No.”

Reeves then told Starckey that they had come to pick

up a “dope package” and Starckey responded that

Petitioner would have the package around 11:30 that

evening and he would bring it to Reeves (T. 1059-

1060).

After all sides had rested, the defense moved for

a directed verdict of acquittal. That motion was denied

(T. 1123-1132).

12

Reasons for Granting the Writ

The effective assistance of counsel to defendants

charged, as here, with serious crimes is guaranteed

by the Sixth Amendment to the Constitution of the

United States. Inherent in this fundamental safeguard

is the notion that once the right to counsel has “at-

tached,” it must perforce remain untrammeled and

unimpaired by the conduct of Government agents.

Indeed, if the cherished constitutional right to the

‘assistance of counsel” is to have any value whatsoever,

it cannot be construed to mean anything less than

that.

Moreover, as this Court long ago aptly observed

in the seminal case of Johnson v. Zerbst, 304 U.S.

458 (1938), “waiver” is an “intentional relinquishment

or abandonment of a known right or privilege.” Thus,

“courts indulge every reasonable presumption against

waiver of fundamental constitutional rights and we

do not presume acquiescence in the loss of fundamental

rights” (304 U.S. 458, 464 (1938) ).

In the instant case, the District Judge concluded

that Petitioner’s “right to counsel” had, in fact, “at-

tached” but that he had nevertheless “waived” such

right.

This petition, therefore, raises the decisive issue of

whether under the circumstances of this case -- where

there has been an unequivocal finding by the District

Judge that the right to counsel has, in fact, attached -

there was, in fact, a valid “waiver” of such fundamental

right.

Additionally, this petition concerns the recurring

issue of the necessity for a preliminary Wade-Stovall

type hearing where it is asserted that the methods

utilized by the Government to identify Petitioner’s voice

on the tapes had been so unnecessarily suggestive, and

hence, unreliable, as to violate his right to due process

of law as guaranteed by the Fifth Amendment to the

Constitution. As will be shown more fully below, in con-

fronting this recurrent issue the federal courts are in

conflict.

13

Argument

Point I

Petitioner’s Sixth Amendment Right to the

Assistance of Counsel Was Violated by the Failure

of the District Court to Suppress Petitioner’s

Post-Arrest Statements.

Prior to trial Petitioner moved pursuant to F.R.Cr.P.

12(b)(3) and 18 U.S.C. § 3501 to suppress any post-

arrest statements allegedly made by him upon the

grounds that such statements were secured in violation

of his Fifth Amendment rights under Miranda uv.

Arizona, 384 U.S. 436 (1966) and in violation of his

Sixth Amendment rights under United States v. Satter-

field, 558 F.2d 655 (2d Cir. 1976). The motion was predi-

cated upon Petitioner’s own affidavit and that of his

trial counsel (T. 95-96, 100). The Government responded

with affidavits from Assistant United States Attorneys

Denton, Cote, and Levites (T. 97-99, 101). On the basis

of the motion, the District Judge held a suppression

hearing and found the operable facts to be as follows:

“In January, 1980, federal authorities swore

out a complaint against Petitioner charging

him with a violation of drug laws and, based

on this complaint, obtained an arrest warrant

for Aiken. In early February, 1980, Aiken retained

Jay Goldberg, Esq. in connection with this

unexecuted warrant. Petitioner provided Goldberg

with the names of the federal prosecutor handling

the case, Assistant United States Attorney Cote,

and Detective John DeRosa, a detective who

works for a New York State-Drug Enforcement

Administration Joint Task Force. Goldberg

called DeRosa and arranged for Aiken to sur-

render himself on February 5, 1980. Goldberg

testified at the suppression hearing that he told

DeRosa that Aiken should be questioned only

as to pedigree, and that the authorities should

avoid questioning Aiken concerning the charges

14

against him until arraignment on the complaint.

Goldberg testified that he decided not to accom-

pany Aiken during pre-arraignment procedures

based on DeRosa’s representation that the

questioning of Aiken would be so restricted.

Goldberg admitted that he spoke with Assistant

United States Attorney Denton on February 4,

and again with Denton on the morning of Febru-

ary 5, and that he made no similar request

that Aiken not be questionec concerning the

facts underlying the complaint. Goldberg denied

knowing that the United States Attorney’s office

in this district has a practice of interviewing

arrestees prior to arraignment concerning the

charges against them, but admitted seeing an

interview form used by the Office containing

such questions.

“Detective DeRosa denied that Goldberg made

any request on February 4, that questioning of

Aiken be limited to pedigree, and denied either

agreeing to such a request or transmitting such

a request to Assistant United States Attorney

Denton. Assistant United States Attorney

Denton denied that he had ever received notice

of any such request, either from DeRosa or from

Goldberg.

“On February 5, 1980, Aiken surrendered himself

to DeRosa at approximately 8:00 A.M. Police

Officer Parker of the Joint Task Force read

Aiken his Miranda rights. Aiken was processed

according to standard procedures, and some

bottles of medication were taken from him.

DeRosa testified that he asked Aiken no questions

concerning the charges against him because he

expected the United States Attorney to question

Aiken on that subject.

“Aiken remained in the custody of Joint Task

Force officers until approximately 10:00 A.M.

At that time DeRosa and Officers Ripandelli

15

and Parker escorted Aiken to Assistant United

States Attorney Denton’s office. Denton read

Aiken his Miranda rights from the form custom-

arily used in the United States Attorney’s Office.

Denton then asked Aiken standard questions

concerning his background. Denton recorded

Aiken’s answers to his questions on the form.

Denton then told Aiken that he had spoken with

Goldberg, Aiken’s attorney. He asked Aiken

if he ‘would like to answer some questions,’

but reminded Aiken that he was under no obili-

gation to answer any questions and could pick and

choose which ones to answer. Aiken replied

that he would answer questions. Aiken did not

ask to call Goldberg and spoke without reserva-

tion. Both Denton and DeRosa, who was present

throughout the interview, testified that Aiken

appeared very calm and completely relaxed.

Aiken did not ask for medication and told Denton

that the State officers had treated him like a

gentleman. Denton asked Aiken some questions

concerning his background, family, and arrest

record. Aiken volunteered the fact that he still

owed twelve or thirteen years of parole on a

prior conviction.

“Denton showed Aiken the complaint against

him and Aiken read it carefully. Although Denton

knew little about the case, he informed Aiken

that the Government had ‘several’ tapes of Aiken

discussing dope deals and that the Government’s

case was strong. He told Aiken that the Govern-

ment was interested in obtaining Aiken’s coop-

eration because Aiken had ‘been around’ and

had useful contacts. Denton reminded Aiken

of the twelve or thirteen years outstanding on

the parole and asked him whether his parole was

state or federal. When Denton learned that the

parole was federal, he said something to the

effect that ‘we can talk about that.’ Aiken respond-

ed that he was thinking about cooperation but

16

wanted to think it over. He stated that he knew

he was in trouble due to the twelve or thirteen

years of parole remaining on his prior conviction.

The interview ended at 10:20 A.M.

“Officer Ripandelli escorted Aiken to the Pre-

Trial Services office and then to the Magistrate’s

courtroom. Ripandelli testified that DeRosa

never informed him that he was not to discuss

the complaint with Aiken outside of Goldberg’s

presence but admitted that he knew Goldberg

would be waiting in the Magistrate’s courtroom.

Ripandelli told Aiken that because he had sur-

rendered, his bail situation would be better.

Aiken then told Ripandelli, ‘If I weren’t so old,

I’d still be running.’ Ripandelli never informed

Aiken of his Miranda rights.

“After the arraignment before the Magistrate,

Denton told Aiken, in Goldberg’s presence to

‘think about the possibility of cooperation. You

can help yourself.’ Goldberg was not aware of

the prior interview with Denton” (T. 283-287).

From these facts, the District Judge concluded, as

a matter of law, that

“Although Aiken’s Sixth Amendment right to

counsel attached at the time of providing the

statements, I find that he waived these rights”

(A. 291).”!2

Similarly, the Court of Appeals stated:

“we agree with Judge Sweet’s conclusion that

Aiken’s action would have constituted a waiver

had the right to counsel attached. Aiken had

been fully advised of his rights; was not under

pressure or severe emotional strain; understood

the significance of his situation, as suggested

'2On the basis of the Judge’s ruling, DeRosa testified as to the

statement Aiken allegedly made to Denton, “I know I am in trouble”

(T. 435) and Ripandelli testified as to the comment Aiken allegedly

made to him - “if he was any younger, he would still be running”

(T. 635). On summation, the prosecutor contended these statements

by Petitioner constituted consciousness of guilt (T. 868-869).

17

by his three prior convictions on narcotics

counts; and, notably, was not being subjected

to interrogation ‘for the very purpose of eliciting

damaging admissions,’ or to other forms of

psychological coercion. Thus, we find no error

in the admission of the statements.” (Citations

omitted (3a) ).

For the reasons set forth below, we submit that

the District Court and Court of Appeals erred by their

refusal to suppress Petitioner’s alleged post-arrest

statements. Moreover, given the paucity of evidence

adduced against the Petitioner, admission into evidence

of these post-arrest statements could not, we submit,

be deemed merely “harmless” error.

Inasmuch as the District Judge concluded that

Petitioner’s right to counsel had attached, the central

issue to be resolved is whether Petitioner had waived

his rights under the Sixth Amendment and not merely

under the Fifth. Brewer v. Williams, 430 U.S. 387,

397-398 (1977); Massiah v. United States, 377 U.S.

201, 204-206 (1964). Several Courts of Appellate Juris-

diction have repeatedly cautioned that the distinction

is crucial since waivers of Sixth Amendment rights

are to be measured by a “higher standard” than are

waivers of Fifth Amendment rights. United States v.

Satterfield, supra; United States v. Lord, 565 F.2d 831

(2d Cir. 1977); Carvey v. LeFevre, 611 F.2d 19 (2d Cir.

1979), cert. denied, 100 Sup. Ct. 1858 (1980). Indeed,

several District Courts have decided that in light of

Satterfield and its progeny, in order to obtain a valid

waiver of Sixth Amendment rights once the right to

counsel has attached, the Government must not only

inform the defendant of the charges against him but

must additionally advise the defendant of the manifest

dangers of proceeding alone in the absence of counsel --

a procedure which, the District Judge concluded, was

concededly not followed in the instant case. See for

example, Forman v. Smith, 482 F.Supp. 941, 949 (W.D.

N.Y. 1979); United States v. Callabass, 458 F.Supp. 964,

18

967 (S.D.N.Y. 1978); United States v. Miller, 432 F.Supp.

382, 388 (E.D.N.Y. 1977).

Most recently, in United States v. Mohabir, 624 F.2d

1140 (2d Cir. 1980), the United States Court of Appeals

for the Second Circuit reversed a criminal conviction

upon the grounds that the Sixth Amendment rights

of the defendant had been violated. In Mohabir, the

Court took special pains to condemn the typical Govern-

ment practice of conducting interviews once the right

to counsel had attached -- as in the case at bar -- since

“interviews of this type seem designed to elicit pre-

cisely the type of uncounseled confessions that appellant

gave here” (624 F.2d 1150).

In the instant case, as in Mohabir, we submit

that since the right to counsel had attached, there

was likewise, no proper “waiver” of Sixth Amendment

rights. Inasmuch as the Government concededly was

aware that Aiken had retained counsel -- at the very

least it had an absolute obligation to obtain the approval

of his counsel prior to interrogating the Petitioner

for what proved to be the precise purpose of obtaining

uncounseled incriminatory statements. Absent such

prior approval by counsel, as here, there could not,

we submit, be a valid “waiver.”

Most significantly, as the Court of Appeals for

the Second Circuit, itself, noted in Mohabir, this is

precisely what DR 7-104(A)(2) of the American Bar

Association, Code of Professional Responsibility,

mandates as an ethical consideration once a litigant

has become represented by counsel, as here:

“During the course of his representation of a

client a lawyer shall not:

(1) Communicate or cause another to communi-

cate on the subject of the representation with

a party he knows to be represented by a lawyer

in that matter unless he has the prior consent

of the lawyer representing such other party

or is authorized by law to do so.

19

(2) Give advice to a person who is not repre-

sented by a lawyer, other than the advice to

secure counsel, if the interests of such person

are or have a reasonable possibility of being

in conflict with the interests of his client” (foot-

notes omitted, emphasis supplied).!3

Point II

Petitioner’s Fifth Amendment Right to Due

Process of Law Was Violated by the Failure of

the District Court to Grant Petitioner’s Motion

for a Pre-Trial Hearing Concerning the Govern-

ment’s Voice Identification Procedures.

Prior to trial, Petitioner had asserted that the

method utilized by the Government to identify his

voice on the tapes - i.e, DeRosa and Ripandelli --

had been so unnecessarily suggestive, and hence,

unreliable, as to violate his right to due process of

law. Neil v. Biggers, 409 U.S. 188 (1972). He had, there-

fore, sought, pursuant to the F.R.Cr.P. 12(b)(3), a hearing

to suppress both his in-court and out-of-court identifi-

cation as it related to the tapes of April 12 and 18.

At such hearing, the Government would be required

to first meet the threshold issue of the admissibility

of DeRosa’s and Ripandelli’s identification procedures. !4

'3Inexplicably, in the instant case, the court below failed to

even address the precepts of DR 7-104 in its opinion.

'*Aiken’s counsel relied upon an additional ground for the

pre-trial admissibility hearing, which we continue to urge upon

this Court:

“Another ground for suppression of the identification is

that it was conducted post initiation of a judicial proceeding,

Brewer v. Williams, 430 U.S. 387; Kirby v. Illinois, 406 U.S.

at 689, i.e. a complaint had been filed January 7, 1980 and

the arrest took place February 5, 1980. Any such identification

was required to be in the presence of counsel. United States

v. Wade, 388 U.S. 218” (A. 104).

20

Only then, he contended, could the triers of the facts

be properly asked to pass upon the accuracy of his

identification by DeRosa and Ripandelli (T. 60, 64,

103-104).

The Government opposed Petitioner’s motion

upon the grounds that “(w)hatsoever the law may

be elsewhere, it is clear in this Circuit that Aiken is

simply not entitled to a Wade-Stovall type hearing...”

(T. 89-92). The District Judge thereafter denied Aiken’s

motion (T. 106-113), and the court below affirmed,

relying upon “the settled law of this Circuit” (4a).

These rulings, we submit, constituted reversible error.

In United States v. Pheaster, 544 F.2d 353 (9th

Cir. 1976), cert. denied, 429 U.S. 1099 (1977), on facts

not unlike those at bar, the Court found the pre-trial

identification procedures utilized by the Government

to identify the defendant in a tape-recorded conver-

sation to be so unduly suggestive as to require a pre

liminary determination as to admissibility. The Court

thus stated:

“The pre-trial identification procedure challenged

on the appeal is unusual, involving an auditory

rather than a visual identification of the defendant

. . .Because the possibility of ‘irreparable mis-

identification’ is as great when the identification

is from a tape recording as when it is from a

photograph or a line-up, we hold that the same

due process protection should apply to either

method.” (544 F.2d 368-369).

See also United States v. Basey, 613 F.2d 198 (9th

Cir. 1979); United States v. Kim, 577 F.2d 473, 481-482

(9th Cir. 1978); People v. Singleton, 83 M.2d 112 (1975).

21

Notwithstanding the fact that the Second Circuit

has heretofore declined to accept the Pheaster Rule,!5

we submit that inasmuch as in the instant case DeRosa

and Ripandelli had so inevitably focused upon Peti-

tioner prior to his surrender on February 5, 1980 -

at which time they allegedly made the identification

of his voice -- a pre-trial hearing should have been held

as to the threshold issue of the admissibility of the

agents’ identification testimony as mandated by the

consistent rulings of the Ninth Circuit.

As exemplified by the conflict between Circuits,

the federal courts are wholly lacking in authoritative

guidance from this Court in dealing with this recurring

issue. This case, we submit, presents the perfect vehicle

for this Court to provide such guidance.

Conclusion

For the foregoing reasons, it is hereby submitted

that a Writ of Certiorari issue to review the judgment

of the United States Court of Appeals for the Second

Circuit.

Respectfully submitted,

JAY GOLDBERG, P.C.

30 Rockefeller Plaza

New York, New York 10020

(212) 586-1433

EDWARD GASTHALTER

477 Madison Avenue

New York, New York 10022

(212) 688-7788

Attorneys for Petitioner Leonard Aiken

‘See for example, United States v. Armedo-Sarmiento, 545

F.2d 785, 792 (2d Cir. 1976), cert. denied, 430 U.S. 917 (1977); United

States v. Albergo, 539 F.2d 860 (2d Cir. 1976), cert. denied, 429 U.S.

1000 (1976). But see United States v. Moore, 571 F.2d 76 (2d Cir.

1978), where this Court applied due process standards to a voice

identification.

APPENDICES

la

Appendix A

Opinion of United States Court of Appeals

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Stated Term of the United States Court of Appeais,

in and for the Second Circuit, the United States Court

House, in the City of New York, on the 10th day of

November, one thousand nine hundred and eighty.

Nos. 80-1302, 80-1310

HONORABLE WILFRED FEINBERG,

Chief Judge

HONORABLE THOMAS J. MESKILL,

Circuit Judge

HONORABLE LAWRENCE W. PIERCE,

District Judge

UNITED STATES OF AMERICA,

Appellee,

-against-

LEONARD AIKEN, a/k/a “Leon” and BENJAMIN

STARCKEY, a/k/a “Skippy,”

Defendants-Appellants.

N.B. Since this statement does not constitute a formal opinion of

this court and is not uniformly available to all parties, it shall not

be reported, cited or otherwise used in unrelated cases before this

or any other court.

ee

2a

Appendix A

Opinion of United States Court of Appeals

Appeal from the United States District Court for

the Southern District of New York.

This cause came on to be heard on the transcript

of record from the United States District Court for the

Southern District of New York, and was argued by

counsel for appellant Aiken and submitted by counsel

for appellant Starckey and argued by counsel for

appellee.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged and decreed that the judgment

of said District Court be and it hereby is AFFIRMED.

Leonard Aiken and Benjamin Starckey appeal

from their convictions, after a jury trial before Judge

Robert W. Sweet in the United States District Court

for the Southern District of New York, on an indictment

charging them with conspiracy to distribute and possess

with intent to distribute heroin and cocaine, in violation

of 21 U.S.C. § 846. Following their convictions, Aiken

was sentenced to 20 years imprisonment, a term he is

presently serving. Starckey, sentenced to six and one-

half years, is currently free on bail.

Aiken first challenges the admission of certain

statements made after his arrest but before his indict-

ment or arraignment. After a warrant was issued for

his arrest, Aiken arranged through his counsel for a

voluntary surrender. Upon his surrender, the arresting

agents gave Aiken his Miranda warnings, which were

subsequently repeated by an Assistant United States

Attorney; in addition, Aiken was given a copy of the

complaint on which the warrant was based. The Attor-

ney in charge then proposed that Aiken cooperate,

telling him that “we got you good; we got you on two

or three tapes talking dope deals.” Aiken said in re-

sponse, “I know I am in trouble.” Later, as Aiken was

being taken for arraignment, the officer accompanying

3a

Appendix A

Opinion of United States Court of Appeals

him commented that Aiken’s surrender was a point

in his favor. Aiken replied, according to the officer,

that if he had been “any younger he would still be

running.”

The district judge held that Aiken’s right to counsel

had attached at the time of these st itements, but con-

cluded that the government had borne its “heavy

burden” of showing waiver of the right. We note that

this holding goes beyond our decision in United States

uv. Mohabir, 624 F.2d 1140 (2d Cir. 1980); however, we

find it unnecessary to determine whether the district

court’s reasoning was correct and its holding warranted.

In United States v. Duvall, 537 F.2d 15, 22 (2d Cir.),

cert. denied, 426 U.S. 950 (1976), we saw “no reason

in principle why the filing of a complaint should be

deemed to give rise to a right to counsel immediately

upon arrest pursuant to warrant.” Duvall remains the

law in this Circuit. In any event, we agree with Judge

Sweet’s conclusion that Aiken’s actions would have

constituted a waiver had the right to counsel attached.

Aiken had been fully advised of his rights; was not

under pressure or severe emotional strain; understood

the significance of his situation, as suggested by his

three prior convictions on narcotics counts; and, notably,

was not being subjected to interrogation “for the very

purpose of eliciting damaging admissions,” see Duvall,

supra, 537 F.2d at 24, or to other forms of psychological

coercion. See United States v. Lord, 565 F.2d 831, 839-40

(2d Cir. 1977). Thus, we find no error in the admission

of the statements.

Aiken also asserts that the court erred in refusing

to permit testimony by his voice-identification expert

regarding two of the methods he used to determine

whether Aiken’s voice was actually on a tape recording

introduced by the government. We do not believe that

4a

Appendix A

Opinion of United States Court of Appeals

Judge Sweet abused his discretion, under Fed. R. Evid.

702, to exclude such testimony as too speculative and

potentially confusing to the jury. Our decision in

United States v. Williams, 583 F.2d 1194 (2d Cir.),

cert. denied, 439 U.S. 1117 (1979), does not preclude

such a determination by the trial court. Williams

found the technique of spectrographic analysis generally

of sufficient reliability to permit the admission of

evidence derived by the technique, but by no means

prohibited a finding in a particular case that such

evidence was inconclusive or unreliable. See id. at

1200 n. 12.

We also reject Aiken’s contention that he was

prejudiced by the government’s questioning of his

voice-identification expert during re-cross-examination,

which elicited testimony that the expert had performed

spectrographic and computer tests as well as the simple

aural testing to which his direct testimony was restricted.

This testimony did not open the door to full disclosure

of the results of those tests in spite of their inconclu-

siveness, and we are satisfied that Judge Sweet’s

warning to the jury on the limited effect to be given

the admitted testimony minimized any risk of mis-

understanding.

Finally with respect to the tapes, we see no error

in Judge Sweet’s determination that Aiken was not

entitled to a pre-trial hearing on whether the govern-

ment’s method of identification of the voices on the

tapes was “unnecessarily suggestive” and thus unreli-

able, in violation of his right to due process. Under

the settled law of this Circuit, the adequacy of the

identification of recorded voices bears on the weight,

rather than the admissibility, of evidence of this kind.

See, e.g., United States v. Armedo-Sarmiento, 545 F.2d

785, 792 (2d Cir. 1976), cert. denied, 430 U.S. 917 (1977).

Cf. United States v. Moore, 571 F.2d 76, 90-91 (2d Cir.

5a

Appendix A

Opinion of United States Court of Appeals

1976) (suggestive circumstances of identification may

bear on admissibility of testimony as to identity of

nonrecorded voice).

Aiken also maintains that the court erred in not

permitting the introduction of evidence of prior con-

victions of the government informer who had recorded >

the tapes, to support Aiken’s contention that the informer

had a “decided motive” to fabricate the incriminating

conversation or to tamper with the tapes. Again, we

disagree. The fact that the informer was cooperating

with the police following his own arrest for possession

of heroin was made known to the jury, and Aiken was

free to suggest that the informer’s desire to keep himself

out of prison gave him a motive to try to frame Aiken.

Under the circumstances, there was no abuse of dis-

cretion in excluding the essentially cumulative evidence

of the informer’s prior convictions.

We have reviewed Aiken’s claims with regard to

the court’s instructions concerning the voices on the

tapes and find them without merit.

Appellant Starckey makes two claims. The first,

that the circumstances under which his voice was

identified as one appearing on the tapes were imper-

missibly suggestive, must be rejected for the same

reasons already discussed in connection with Aiken’s

similar claim. Starckey’s second assertion, that the

testimony of one of the police agents “can only be

viewed as perjured,” is wholly without support.

Accordingly, we affirm the judgments of conviction.

6a

Appendix A

Opinion of United States Court of Appeals

/8/

WILFRED FEINBERG,

Chief Judge

/$/

THOMAS J. MESKILL,

Circuit Judge

/$/

LAWRENCE W. PIERCE,

District Judge

7a

Appendix B

Constitutional Provisions Involved in the Case

CONSTITUTION OF THE UNITED STATES

FIFTH AMENDMENT

No person shall be held *o answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

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

service in time of War or public danger; nor shall any

person be subject for the same 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.

SIXTH AMENDMENT

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; to

have compulsory process for obtaining witnesses

in his favor, and to have the Assistance of Counsel

for his defence.