Petition — Kenney v. United States

80-1432 —

Office-Supreme Court, U.S.

kI LED

FEB 20 1981

ALEXANDER L. STEVAS,

CLERK

Supreme Court of the United States

No.

In The

October Term, 1980

ROBERT KENNEY,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Donald E. Nawi, Esq.

Attorney for Petitioner

Robert Kenney

76 Wendt Avenue

Larchmont, New York 10538

Tel.: (914) 834-2567

No.

In The

Supreme Court of the United States

October Term, 1980

ROBERT KENNEY,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED

STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certi-

orari issue to review the judgment of the

United States Court of Appeals for the

Second Circuit entered October 29, 1980.

QUESTION PRESENTED

The petition presents a single ques-

tion: Does a defendant's Sixth Amendment

right to counsel attach upon the filing of

a federal criminal complaint and issuance

of an arrest warrant thereon.

THE PARTIES

All the parties are reflected in the

caption to this petition.

TABLE OF CONTENTS

Page

QUESTION PRESENTED 2

THE PARTIES 2

CITATION TO OPINIONS BELOW °

JURISDICTION 6

PROVISIONS INVOLVED 6

STATEMENT OF THE CASE 7

REASONS FOR GRANTING THE WRIT 12

COMCLUSION 23

TABLE OF AUTHORITIES

Cases

Barker v. Wingo,

407 U.S. 514 (1974) ..-

Brewer v. Williams,

440 0.8. 367 (1977) . «© «© ws @ «

Cannistraci v. Smith,

470 F.Supp. 486 (S.D.N.Y. 1979)

Dillingham v. United States,

493 U.8. 64 (1978) «+ «© «© »

Edwards v. Arizona, Dkt. 79-5269 .

Fare v. Michael C.,

442 U.S. 707 (1979) .

Kirby v. Illinois,

406 U.S. 662 (1972). « » « » «

Massiah v. United States,

377 U.S. 201 (1964) .

Miranda v. Arizona,

384 U.S. 436 (1966)

Moore v. Illinois,

434 U.S. 220 (1977)

Rhode Island v. Innis,

446 U.S. 291 (1980) .

Schilling v. State,

86 Wisc. 2d 69, 271 N.W.2d 631

(Wisc. Sup.Ct. 1978)

13,15,¢4¢

15

19

13

13

13,14,15

13,127.22

13

13,15

13

16

¢

United

537

United

565

United

404

United

624

United

558

United

626

United

439

United

468

United

460

TABLE OF AUTHORITIES

Cases (Cont. )

States v. DuVall,

F.2d 15 (2d Cir. 1976)...

States v. Lord,

F.2d 83 (2d Cir. 1977) .. -

States v. Marion,

Uses 307 (1972) 7 . ° ° +. -

States v. Mohabir,

F.2d 1140 (2d Cir. 1980)...

States v. Satterfield,

F.2d 655 (2d Cir. 1976)

States v. Zazzara,

F.2d 135 (9th Cir. 1980). .

States ex rel Burton v. Cuyler,

F.Supp. 1173 (E.D.Pa. 1977).

12

16

States ex rel Robinson v. Zelker,

F.2d 159 (2d Cir. 1972) ..

States ex rel Sanders v. Rowe,

F.Supp. 1138 (N.D.I11. 1978)

Other

U.S. Constitution, Sixth Amendment

mn .Crin.?. 3, 4(@})-~'s « + » © 2 *

oP Crin. Pi. SIR) “so 6 46 6% ee

2,6,14

6,12

18

CITATION TO OPINIONS BELOW

The Court of Appeats affirmed petitioner's

conviction in a Memorandum Judgment, not

reported, annexed as Appendix A. The Dis-

trict Court Opinion of May 13, 1980, de-

livered from the bench before trial, not

reported either, is annexed as Appendix B.

JURISDICTION

The Court of Appeals judgment was

entered October 29, 1980. A timely re-

hearing petition with a suggestion for

rehearing en banc was denied December 23,

1980 (App. C). The jurisdiction of this

Court rests upon 28 U.S.C. 1254(1).

PROVISIONS © NVOLVED

The question involves the Sixth Amend-

ment to the United States Constitution:

"In all criminal prosecutions

the accused shall enjoy the

right .. . to have the assist-

ance of counsel for his defense."

as well as Rules 3 and 4(a) of the Federal

Rule of Criminal Procedure:

"The complaint is a written

statement of the essential

facts constituting the offense

charged. It shall be made

upon oath before a magistrate."

(Rule 3)

» =

"If it appears from the com-

plaint, or from an affidavit

or affidavits filed with the

complaint, that there is

probable cause to believe

that an offense has been com-

mitted and that the defendant

6

NT

has committed it, a warrant

for the arrest of the cefend-

ant shall issue to an officer

authorized by law to execute

it. Upon the request of the

attorney for the government

a summons instead of a warrant

shall issue. More than one

warrant or summons may issue

on the same complaint. (Rule 4(a))

STATEMENT OF THE CASE

Robert Kenney is a onetime jazz musi-

cian. Victor Herrera is an illegal alien,

a federally comvicted prostitution ring

operator who avoided deportation by making

this case, among others (24-25, 28-30, 100-04).*

It may be taken for purposes of this petition

that Herrera importuned Kenney to sell heroin

to him; that Kenney was friends with one

Lincoln Stephens who sold a small sample

quantity of heroin to Herrera in Kenney's

apartment and a larger quantity in the garage

* Numbered references, without more, are

to the trial transcript. '"S'"' denotes the

district court hearing on petitioner's

motion to suppress the statements in issue

in this petition. The district court

denied that motion (App. B).

of Kenney's building; and that Kenney put

Herrera and Drug Enforcement Agent Kieran

Kobell, posing as a buyer, in touch with

Stephens and relayed messages back and forth,

knowing the parties were transacting heroin.

This happened in March and April, 1979.

In September the United States Attorney for

the Southern District drew up and filed with

a United States Magistrate a complaint charg-

ing Kenney and Stephens with conspiracy to

possess and distribute heroin and obtained

from the Magistrate a warrant for Kenney's

arrest.* <A month later Drug Enforcement Agent

Sandler went to Kenney's Manhattan apartment

to execute the warrant. Sandler gave Kenney

Miranda warnings which included telling Kenney

about the complaint charge of conspiracy

with intent to sell (S 66). Kenney and Sandler

also talked about bail and Kenney's being

held in jail. At the time Kenney had an

elderly and sick mother in Philadelphia and

* The complaint and indictment are appended

to this petition.

was not prepared for confinement (S 108).

On the way to DEA headquarters, therefore,

Kenney told Sandler that he was "guilty of

conspiracy" but not of a sale; that the heroin

came from Lincoln Stephens who in turn obtained

it from "John" in Queens; and that Kenney

would cooperate to help make cases (S 11).

The record established beyond dispute that

Kenney's statements to Sandler were solely

the product of his discussions with Sandler

about bail and Kenney's fear therefrom that

he would not be abdle to make bail and would

go immediately to jail.*

Thereafter Kenney had a "Pre-Arraignment

Interview" with Assistant United States Attor-

ney Stuart Baskin. The interview took place

in Baskin's office with a Drug Enforcement

* Sandler testified that Kenney agreed

to cooperate because Kenney thought that

otherwise he would have to go to jail

(S 23-24). Kenney's testimony (S 70)

was the same:

"nue [Sandler] said if I cooperate

I wouldn't stay in jail overnight,

I could get out on bail."

9

agent present. Baskin also gave Kenney

Miranda warnings, mentioned conspiracy charge,

and told Kenney he would be held on $150,000

bail, which Kenney could not make (S 71).

Kenney, therefore, told Baskin also that he

was "guilty of conspiracy", having intro-

duced the purchaser to a friend (S 106-07).

Baskin then arranged for Kenney to have two

days to visit his mother in Philadelphia (S 108).

Arraignment and assignment of counsel occurred

two days later (S 105).

Kenney was subsequently indicted and

convicted for conspiracy to sell and aiding

and abetting the sale of heroin. The indict-

ment's conspiracy count was the identical

charge of the complaint. Part of the Govern-

ment's direct case proof was Kenney's state-

ment to Assistant Baskin and to Agent Sandler

that he was "guilty of conspiracy" (493, 496).

The district court (Stewart, J.) sentenced

Kenney to fifteen months followed by three

years probation, being satisfied after hav-

ing heard Kenney testify at trial and on the

hearing to suppress, that the drug transaction

was "not your [Kenney's] principal way of

life, that to some extent at least...

that you do it as favors for friends"

(Sentence Tr., p. 13). The Second Circuit

Panel affirmed Kenney's conviction, reject-

ing the argument that Kenney's right to

counsel attached upon filing of the criminal

complaint.* Kenney's petition for rehear-

ing with a suggestion for rehearing en banc

was likewise denied. The Court, however,

stayed issuance of its mandate pending

this petition. Order of December 31, 1980.

° If the right did attach, then it was

not waived under the standards demanded

in the Second Circuit, United States v.

Mohabir, 624 F.2d 1140 (2d Cir. 1980),

and Kenney's confession should have

been suppressed.

11

REASONS FOR GRANTING THE WRIT

This case involves an important ques-

tion in the administration of justice with

respect to when the Sixth Amendment right to

counsel attaches for purposes of Government

interrogation. The Second Circuit, recog-

nizing that the counsel right attaches

at least upon indictment and that the stand-

ard for waiver is nigher than for similar

Fifth Amendment rights, United States v.

Massimo, 432 F.2d 324, 327 (2d Cir. 1970),

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

(2d Cir. 1976), United States v. Lord, 565

F.2d 83 (2d Cir. 1977), mow requires that

the counsel waiver not be taken by the Gov-

ernment official doing the questioning Dut

by a judicial officer. United States v.

Mohabir, 624 F.2d 1140 (2d Cir. 1980). That

Court, however, held previously that no

counsel right arises pursuant to a criminal

complaint. United States v. DuVall, 537

F.2d 15 (2d Cir. 1976); F.R.Crim.P. 3,4(a).

12

The Second Circuit has again so held in

this case. The issue is not only important,

involving as it does Government questioning

and procedures with respect thereto. Miranda

v. Arizona, 384 U.S. 436 (1966); Massiah v.

United States, 377 U.S. 201 (1964); Brewer

v. Williams, 430 U.S. 387 (1977).* But the

Court of Appeals decision is also in con-

flict with applicable decisions of this

Court. **

The reasons why this Court ought grant

the petition and hold that the Sixth Amend-

ment right to counsel attaches upon filing

of a federal criminal complaint are as

follows:

sal The point appears to be open in all the

other Circuits.

** Kirby v. Illinois, 406 U.S. 682, 689

(1572); Moore v. Illinois, 434 U.S. 220,

228 (1977); Brewer v. Williams, supra.

See also, on custodial interrogation,

Oregon v. Mathiason, 429 U.S. 492 (1977);

Rhode Island v. Innis, 446 U.S. 291 (1980);

Fare v. Michael C., 442 U.S. 707 (1979);

Edwards v. Arizona, Dkt. 79-5269.

13

1. The Sixth Amendment guarantees

counsel in all "criminal prosecutions".

That means at any time "at or after the

initiation of adversary judicial criminal

proceedings -- whether by way of formal

charge, preliminary hearing, indictment,

information or arraignment". Kirby v.

Illinois, 406 U.S. 682, 689 (1972). Kirby

also makes clear that it is the "adversary"

feature that is important, the point at

which "the adverse positions of government

and defendant have solidified" and "defend-

ant finds himself faced with the prosecu-

torial forces of organized society, and

immersed in the intricacies of substantive

and procedural criminal law". (406 U.S. at

689-90). Judged by the policy behind the

counsel right, as set forth in Kirby,

Clearly the complaint ought trigger that

right: the complaint puts the Government

as the "adversary" of defendant; it invokes

14

the court's process against him; it is a

"prosecution"; and it "immerses [defendant]

in the intricacies of substantive and pro-

cedural criminal law". Kirby v. Illinois,

supra, Brewer v. Williams, supra, United

States v. Mohabir, supra.

2. Although this Court has not yet

addressed the specific issue raised here,

it has held in other situations that there

is no necessity of an indictment to bring

defendant's right to counsel into play.

Brewer v. Williams, supra (right to counsel

violated by police questioning after arrest

and arraignment but before indictment) ;

Moore v. Illinois, 434 U.S. 220, 228 (1977)

("an accused's rights [to counsel] attach

to identifications conducted ‘at or after

the initiation of adversary judicial criminal

proceedings' including proceedings instituted

'by way of formal charge [or] preliminary

hearing'"). Other courts have held the same

15

thing. Cannistraci v. Smith, 470 F.Supp.

586, 592 & n. 16 (S.D.N.Y. 1979) (DuVall

questioned); United States ex rel Burton

v. Cuyler, 439 F.Supp. 1173, 1181 (E.D.Pa.

1977) (counsel required after arrest war-

rant issues and defendant apprehended, and

police attempt to obtain further evidence

from defendant); Schilling v. State, 86

Wisc. 2d 69, 271 N.W. 2d 631 (Wisc. Sup.Ct.

1978) \“custodial interrogation"). The

Second Circuit has held that the right to

counsel attaches when defendant is arrested

under a New York State complaint and arrest

warrant. United States ex rel Robinson v.

Zelker, 468 F.2d 159 (2d Cir. 1972). See

also United States ex rel Sanders v. Rowe,

460 F.Supp. 1128 (N.D.I11l. 1978) (same;

Illinois law); United States v. Zazzara,

626 F.2d 135 (9th Cir. 1980) (counsel right

attaches "upon arrest"). Jt is illogical

and inconsistent that a state defendant's

counsel right attaches upon complaint

while a federal defendant's does not.

16

3. Had petitioner's arrest followed

indictment, his right to counsel would have

attached before he was questioned. Massiah

v. United States, supra. No valid distinc-

tion can be drawn between a complaint and

indictment for interrogation purposes. A

prosecution initiated by indictment re-

sults in a warrant, an arrest, an arraign-

ment, assignment of counsel, and fixing of

bail. Exactly that happens following a

complaint. Similarly, questioning after

an indictment arrest is to buttress the

prosecution's prima facie case, not for

investigation or to absolve defendant.

The counsel right attaches because de-

fendant should "not stand alone against

the State at any stage of the prosecution,

formal or informal, in court or out, where

counsel's absence might derogate from the

- e - right to a fair trial". United

ae

States v. Mohabir, supra. No difference

exists between questioning after indict-

ment and after complaint which would compel

that the counsel right attach only as to

the former, not the latter. Indeed if the

Government can take a-counsel waiver and

then question a complaint defendant but

cannot do so with an indictment defendant,

then the Government will base arrests on

complaints rather than indictments, with

indictment to follow only after the Gov-

ernment has attempted to obtain an uncounseled

confession.

4. This case dealt with a felony

complaint, followed by an indictment. On

the other hand, when the charge is a "minor

offense" triable by magistrate, the accusa-

tory instrument is the complaint. F.R.Crim.P

5(b). It is arbitrary and inconsistent to

have the right to counsel attach immediately

on the complaint's filing in a minor offense

18

and yet have no right to counsel until in-

dictment when the case involves a felony.

5. Commencement of a "criminal prose-

cution", as used in the Sixth Amendment,

brings not only the right to counsel but

triggers defendant's speedy trial rights.

A criminal complaint is a "criminal prose-

cution" for purposes of the latter. United

States v. Marion, 404 U.S. 307 (1972);

Barker v. Wingo, 407 U.S. 514 (1974);

Dillingham v. United States, 423 U.S. 64

(1975). It is arbitrary and inconsistent

that a complaint is not a "criminal prose-

cution" for purposes of the former.

The. error in holding that there is no

right to counsel after a complaint arrest

is well illustrated by the facts of this

case. Before petitioner was arrested the

United States Attorney's office reviewed

the evidence against him, prepared and

filed a complaint which mentioned speci-

fically conspiracy and possession with

19

intent to sell in exactly the same terms as

the later indictment, and secured an arrest

warrant from a magistrate (pp. 8-9, supra).

In executing the warrant Drug Enforcement

Agent Sandler engaged petitioner in a bail

discussion, petitioner believed he would

be incarcerated for a long time (erroneously

the district court held), and to avoid that

petitioner gave a confession directly geared

to the conspiracy charges in the complaint:

"T am guilty of conspiracy but not a sale".

Petitioner then was moved to the United

States Attorney, with more discussions

about bail with the number $150,000 in-

cluded, and another "I am guilty of con-

spiracy" confession specifically tied to

the complaint and specifically because of

petitioner's uncounseled belief that he

would have high bail set and have to spend

a long time in jail (p. 10, supra).

20

There is no basis on which this can

be constitytionally correct as to petitioner

because there was a complaint but incorrect

if there had been an indictment. Certainly

a defendant is not in a position to dwell on

the nuances between a complaint and an in-

dictment. What matters is that the United

States Government (not only the arresting

officer) has charged him with a crime; a

judge (i.e., magistrate) has reviewed the

charges and issued an arrest warrant; an

agent has arrested him pursuant to that

warrant; and now he is being questioned

by the agent who has him in custody and

wants a confession and then by a Govern-

ment attorney who has drawn the complaint

and heads in prosecution team.

In sum, the fact that there is a

court showing of probable cause in a

21

complaint faces defendant with a posture

that has particular consequences. A de-

fense attorney, not federal agents and

especially not a federal attorney, ought

ordinarily be the one to consider those

consequences with defendant since defend-

ant is in the agents' custody and they,

as the United States Attorney, are de-

fendants' adversaries, not his allies.

Here, what the complaint charged, what

evidence supported it, and what petitioner

might expect in terms of bail and its

relation to cooperation were subjects

petitioner should have discussed first

with his own attorney, not the Govern-

ment. Massiah v. United States, Supra;

Brewer v. Williams, Supra.

CONCLUSION

For the foregoing reasons this petition

for certiorari should be granted.

Respectfully submitted,

DONALD E. NAWI, ESQ.

Attorney for Petitioner

Robert Kenney

February 18, 1981

23

United States Court of Appeals

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ela °3=E |Ata stated Term of the United States Court of Appeals for the Second

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segsse twenty-ninth day of October

*°=@05 |ousand nine hundred and @ighty.

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2S2aeS JoNoRASLE IRVING R. KAUFMAN

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nwo @w» OF ONORABLE MYRON H. BRIGHT, sitting by

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aes"acs Circuit Judges,

LEFT E-

1

vaisse0D STATES OF AMERICA,

Appellee,

Vv.

80-1294

ROBERT KENNEY, ;

Appellant.

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.

ON CONSIDERATION WHERECOF, it is now hereby ordered, adjudged,

and decree that the judgment of said District

Court be and it hereby is affirmed.

l. Appellant's scatements to Drug Enforcement Administration

agent Sanders and to Assistant United States Attorney Baskin were

net obtained in violation of his right tc counsel. See United

States v. Duvall, 537 F.24a 15 (2d Cir.), cert. denied, 476 U.s.

550 (1976)-

APPENDIX A

Docket No. 80-1294

Page Two

2. Judge Stewart's charge to the jury on the subject of .

appellant's credibility was both balanced and fair. See,

e.g., United States v. Floyd, 555 F.2d 45 (2d Cir.), cert.

enied, 434 U.S. 851 (1 }; United States v. Martin, 525 F.2d

703 (2d Cir.), cert. denied, 723 U.S. 1035 (1975).

3. The presecution's rebuttal summation concerning appel-

lant’s entrapment defense did not substantially prejudice

appellant, since, on cross-examination, he admitted most of

the facts alleged by the Goverrment.

4. The mandate will issue ferthwith.

q a

Genes tLe 4 “—/ i

/‘H. BRIGHT, F

‘

Circuit Judges.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

-Ve=

80 Cr. 94(CES)

ROBERT KENNEY,

Defendant.

DISTRICT COURT OPINION, MAY 13, 1980

APPENDIX B

ll

14

Re: BRE BS & ALB OG

_——_——

== > .

==

eobk

at least to some extent with’ the Drug Enforcement

Administration and that he appeared in response to a

mere telephone request for a meeting at a neutral

site, not in his home, not in the police station, not

in some place where he would be under circumstances of

undue coercion.

Did he agree to such a meeting? That he

appeared there and he made the same offhand remarks

concerning his co-involvement in the instant offense,

the same remarks he had made all along.

Your Honor, under all these circumstances,

I think it is clear that each of the statements was

voluntary with the defendant fully aware of his rights

and choosing in a knowing and intelligent fashion to

waive those rights and make the statements he thought

in his best interests at the tine.

Under all those circumstances the

government urges that they should be admissible at trial.

| THE COURT: May I see Exhibit 1 and 2?

(Pause)

THE COURT: I am going to deny the motion.

It seems to me that on the whole the testimony of

Messrs. Sandler, Kobell and Baskin is more credible than

that of Mr. Kenny in most respects. I accept the

SOUTHERN DISTRICT COURT REPORTERS. US. COURTHOUSE

POLEY SQUARE. NEW YORK. N.Y. = 791-1029

ait eee . eee

& & F&F 5S.

x 8S B BRB

_—

eobk r

statements that they made to the effect that Mr. Kenny

was given his Miranda warnings before he made any

statements. I was especially impressed by the credibility

of Mr. Baskin's tsstimony about Mr. Kenny's statements

to him which confirmed the testimony, of course, of

that of Mr. Sandler and Mr. Kobell. 1f think this was

a small point, but, as you will recall, Mr. Baskin was

called at the last second without any warning at my

request. I am not suggesting that he was totally

unprepared, but at least I don't believe up to that

point that he had expected to be called to testify

for whatever that is worth.

Mr. Kenny indeed admits that he said to,

I guess, Mr. Baskin that he had made an introduction

involving a proposed sale of narcotics. I don't find

anything in the testimony to support the argument of

the defendant that he was coerced in order to obtain

his cooperation or to pressure him into making some

kind of confessions.

I don't find anything in the evidence

to suggest that under the circumstances there would

have been a high bail fixed, in fact, or that he would

have had to remain in jail more than overnight.

As I understand the evidence, the brief

SQUTHEAN DISTRICT COURT REPORTERS, US. COURTHOUSE

FOLEY SQUARE. NEW YORK. N.Y. = 791-1020

— om ae mete —— |

x SF B B

eobk

period postponing the arraignment was at the defendant's

request after he entered into agreement waiving

arraignment.

The question of whether the proceedings

all took place on October 22nd or whether they continued

into October 23rd is hard we resolve.

The exhibits that we have all use the

date October 22nd. I take it that on Exhibit 1 the

date was entered by Mr. Baskin of October 22nd.

Exhibit 2 the date October 22nd on the

last page, which appears twice on the last page, the

first time, it might have been, it is hard to tell

but it could have been in Mr. Kenny's handwriting,

I don't -pretend to be a handwriting expert. And then

there is another date written next to the witness's

name which doesn't appear to be in that witness's —

handwriting, but again I am not an expert.

Certainly the written documents are

all consistent that the arres« and the proceedings

at the U.S. Attorney's Office all occurred on October 22nd.

On the other hand, the witnesses for the government

were all clear that it took place on the 23rd.

Mr. Kenny said it was on the 22nd, the same

day. However, it doesn't seem to me that I need to

SOUTHERN DISTRICT COURT REPORTERS, US COURTHOUSE

FOLEY SQUARE, NEW YORK. N.Y. = "%-i020

| eobk

2 decide whether it was the 22nd or the 23rd.

3 ) In any event, I think the officers, agents

3 4 and U.S. Attorney conducted themselves properly at

5 all times.

6 ; The admitted statements which were made

7 on December 14th the evidence indicates that the

8 defendant at least was purporting to cooperate or

y was having contacts with the government agents and

10 apparently according to his own testimony did some of

ll the enings they asked him to do and although he had

2 a lawyer at that point, he did appear voluntarily at a

B restaurant where from the evidence it appears that he

4 voluntarily repeated what he had earlier said to the agents

and Mr. Baskin.

The fact that Mr. Kenny when he was

3

arrested seemed to be fully aware of the reason for

the arrest, I think, is of some significance.

So, on the ete, 2 think the evidence

| supports the government's position more than it does

that of the defendant and I will deny the motion.

MR. SPANAKOS: I your Honor please, I

take exception to your decision, but in particular

to the decision concerning December 14th -- the

xn & 8 B & 8B & &

admission made on December 14, 1979.

SOUTHERN DISTRICT COURT REPORTERS. US COURTHOUSE

POLEY SQUARE. NEW YORK. N.Y. = 791-1020

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT - . .°

‘

°-

At a stated term of the United States Court of Appeals, in

and for the Second Circuit, held at the United States Court House,

in the City of New York, on the 23™4 = day of December . , one

_

thousand nine hundred and eighty. rm a 7a iy

\ 6 -/ a f

{

UNITED STATES OF AMERICA, sa "a

Plaintiff-Appellee,

Vv.

ROBERT KENNEY, a/k/a "Kenneth Pack",

Defendant-Appellant.

A petition for renearing containing a suggestion that the action

be reheard in banc having been filed herein by counsel for the

defendant-appellant, Robert Kenney,

Upon consideration by the panel that heard the appeal, it is

Ordered that said petition for rehearing is DENIED.

It is further noted that the suggestion for rehearing in banc has

been transmitted to the jucges of the court in regular active service and

to any other judge on the panel that heard the appeal and that no such

judge has requested that a vote be taken thereon.

A A Anek- | on

A. Daniel Fusaro

Clerk

APPENDIX C

4h ,/

alee Binag, |, wh

Assistant United States At y f} (us 49

‘Before: | HONORABLE NINA GERSHON SEP 41978 (4

United States Magistrate, £ p 4! i

Southern District of New York . OF N.

cainoume TOMO

o¢e : COMPLAINT

KENNETH PECK and : Violation of

LINCOLN STEVENSON, 21 U.S.C. §§ 812

: 841(a)(1), 84100) (1) (A

d 846,

eee ae a Pter-ta 9k

SOUTHERN DISTRICT OF NEW YORK, ss.:

| FRED SANDLER, _— duly sworn, deposes and says

‘that he is a Special aoe of the Drug Enforcement Administra-

tion and alleges and ges as follows:

}

‘1. . From on or about the Ist day of March, 1979

and continuously thereafter up to and including the date of

‘the filing of this complaint, in the Southern District of

New York, KENNETH PECK and LINCOLN STEVENSON, the defendants,

‘and others wknown, wmilawfully, intentionally and knowingly

‘sombined, conspired, confederated and agreed together and

with each other to violate Sections 812, 841(a) (1) and

‘841(b) (1) (A) of Title 21, United States Code.

2. It was part of said conspiracy that the s°id

\defendants wmlawfully, intentionally and knowingly would

‘distribute and possess with intent to distribute e Schedule

Tt narcotic controlled substance the exact amowmt thereof

Bie unknown violation of Sections 812, 841(a)(1) and

841(b) (1) (A) of Title 21, United States Code.

, ‘ OVERT ACTS

ne In pursuance of the said conspiracy and to effect

objects thereof the following overt acts were committed

in the Southern District of New York:

‘1. Om or about the 27th day of March, 1979

defendant KENNETH PECK had a conversation with two other

ersons, including Special Agence Kieran Kobell of the

g Enforcement stration, who was — an under-

cover capacity, concerning the sale by him (PECK) of a

guantity of heroin.

APPENDIX D

)

|

4, |

2. On or about the 12th day of April 1979,

in the lobby of thé building located at 7 West l4th Street,

jManhattan, defendant KENNETH PECK had a conversation with

|, wo other persons, including Special Agent Kieran Kobell,

;an which PECK stated that he would have defendant LINCOLN

— deliver one ounce of heroin to them on the next

| zi

3. On or about the 14th day of April, 1979

defendant LINCOLN STEVENSON met with a reliable informant at

7 West 14th Street, Manhattan, where STEVENSON sold approxi-

we one ounce of heroin to the said informant for $10,000.

|

The sources of deponent's information and the

ds of his belief are investigations conducted by him in

jthe course of his official duties, including:

| 1. Conversations with Special Agent Kieran

bell of the Drug Enforcement Administration in which he

jwelated to me the facts as set forth above in overt acts

one and two,

2. Conversations with the informant and with

‘Special Agent Kieran Kobell concerning the facts as set

‘forth in overt act 3 above.

3. Your deponent has been advised that the Drug

‘Enforcement Administration laboratory report on the sub-

‘stance referred to in Overt Act 3 above does, in fact,

‘contain heroin.

WHEREFORE, deponent prays that a warrant may issue

for the ——— of the above named defendants end that

‘they may be arrested and imprisoned, or bailed, as the case

!

SEP 14 i379 pa Pe el Administration

Sworn to before me this

j\l2eh day of September, 1979.

Nuns Krcbor

—— WINt GERSHON

_ States Magistrate

Southern District of New Yory

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a/b 39 ee

CNITID STATES DISTRICT COURT ; oe a

SOUTHERN DISTRICT OF MFI yorr .

‘ oe t

UNITED STATES OF AITRICA ah

-Vv- : INDICTTENT

LIMCOL:? STEPHENS and : 80 Cr.

ROPENT KENNY, a/k/a

"Kenny Peci:," : er ae _

Defendants. : worms « Vig

CCUST ONT

The Grand Jury charges:

Ae From on or about che lst day of March, 1979

and continuously thereafter up to anc including October 31,

1979, in che Southern District of Mew York, LINCOLN STEPRENS

and ROBERT KENNY, a/k/a "Kerny Peck," the defendants and

others to the Grand Jury known and unknown, unlawfully,

intentionally and knowingly combined, conspired, confederated

and agreed together and with each other to violate Sections

$12, 841(a)(1) and 841(b)(1)(A) of Title 21, United States

Code.

2. It was part of said conspiracy that the said

defendants unlawfully, intentionally and knowingly would

distribute and possess with intent to distribute Schedule I

marcotic drug controlled substances, to wit heroin, the

exact amount thereof being to the Crand Jury unknown in

violation of Sections $12, 841(a)(1) and 841(b) (1) (A) of

Title 21, United States Code.

OVERT ACTS

In pursuance of the said conspiracy and to effecr

the objects thereof, the following overt acts were committed

in che Southern District of New York:

0% APPENDIX E

big

--—-.?

SJB: jlw

2/5/80

1. Om or about March 27, 1979, ROBERT KENNY,

a/k/a "Kenny Peck," had a conversation with two other persons,

including a Special Agent of the United Scates Drug Enforcement

Administration who was then working in an undercover capacity,

concerning the sale by iENNY and his co-conspirators of oc

large quantity of heroin.

2. Om or about April 12, 1979, at 7 Wese l4ch

Street, Manhattan, New York, ROBERT KENNY, a/k/a "Kenneth

Peck," had a conversation with two persons, including a

Special Agent of the United States Drug Enforcement Administration

who was chen working in an undercover capacity, in which

KENNY stated that he would arrange for LINCOLN STEPHENS TO

sell one ounce of heroin for $10,000.

3. Om or about April 14, 1979, LINCOLN STEPHENS

sold to another person approximately one ounce of heroin for

$10,000 cash,

(Title 21, Umited States Code, Section 846.)

COUNT TWO

The Grand Jury further charges:

On of about the léth day of April, 1979 in the

Southern District of New York, LINCOLN STEPHENS and ROBERT

KENNY, a/k/a "Kenny Peck,” the defendants, unlawfully,

intentionally and knowingly did distribuce and possess with

intent to distribute a Schedule I narcotic drug controlled

substance, to wit, approximately one ounce of heroin and

dilutants.

(Title 21, United States Code, Sections 812,

841(a)(1) and &41(b)(1)(A) and Ticle 13, United

States Code, Section 2.)

°2G Pe CO

Uniced States Attorney