# Petition — Kenney v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1379%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 984 ## Text 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.* 3 bel souwod gn 2ss ela °3=E |Ata stated Term of the United States Court of Appeals for the Second SSfnms” It, held at the United States Courthouse in the City of New York, on the segsse twenty-ninth day of October *°=@05 |ousand nine hundred and @ighty. wa Cc rw ht ete =O jit: 208-98 2S2aeS JoNoRASLE IRVING R. KAUFMAN a an aa $ 7 $.~ 2° % SPONORABLE AMALYA L. KEARSE as2acd 3 nwo @w» OF ONORABLE MYRON H. BRIGHT, sitting by ys designation, 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 — --<- eh ae 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1379%3A1. Public record. Not legal advice.