Opposition — Palumbo v. United States

Offioe-Supreme Onurt, us. |

I. EILED

\ SUN 11 1981 |

ALEXANDE?! STEVAS,

he ee

No. 80-1724

Iu the Supreme Court of the Hnited States

OcTOBER TERM, 1980

ANTONIO JOHN PALUMBO, II, PETITIONER

Vv

UNITED STATES OF AMERICA |

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Wane H. McCree, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases:

Davis v. Alaska, 415 U.S. 308 ............

Sinclair v. Turner, 447 F. 2d 1158,

cert. denied, 405 U.S. 1048 ...........4..

United States v. Bastone, 526 F. 2d 971,

cert. denied, 425 U.S. 973 ...ccccccccees

United States v. Estell, 539 F. 2d 697,

cert. denied, 429 U.S. 982 .........0008-

United States v. Partin, 493 F.2d 750 .....

Statutes:

1B U.S.C. 2 cccccccccccccccccccccccccecs

1B U.S.C. S71 wn cccccccccccccccccccccces

1B U.S.C. 472 wcccccccccccccccccccccvece

1B U.S.C. 473 .cccccccccccccccvcccccvece

ZI U.S.C. BAG .ccccccccccccccccccceccees

** **

In the Supreme Court of the United States

OCTOBER TERM, 1980

No. 80-1724

ANTONIO JOHN PALUMBO, II, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that the district court improperly

restricted his cross-examination of a government witness

concerning her recent hospitalization and her 1972 suicide

attempt.

1. Following a jury trial in the United States District

Court for the Western District of Pennsylvania, petitioner

was convicted of conspiracy to possess and pass counterfeit

bills, in violation of 18 U.S.C. 371 (Count 1). conspiracy to

possess cocaine with intent to distribute it, in violation of 21

U.S.C. 846 (Count 2), possession of counterfeit bills, in

violation of 18 U.S.C. 2and 472 (Count 3). and transfer and

delivery of counterfeit bills, in violation of 18 U.S.C, 2,472

and 473 (Count 4-6).' He was sentenced to consecutive

'A seventh count, relating to possession of cocaine with intent to

distribute it, was dismissed during trial, and the jury acquitted peti-

tioner on an eighth count, relating to the distribution of cocaine.

2

terms of two years’ imprisonment on Counts | and 2 and

one year’s imprisonment on Count 3, and to concurrent

two-year sentences on Counts 4, 5 and 6 (Pet. App. 2a-3a,

Sa).? The court of appeals vacated petitioner's conviction on

Count 2, the cocaine charge, and affirmed his convictions

on all other counts (Pet. App. la-22a).

The evidence at trial showed that unindicted co-conspira-

tor Mary Jane Pfaff entered into an agreement with Jon

Crosson to receive counterfeit money, which Pfaff was to

exchange for genuine currency (Pet. App. 2a-3a; S. Tr.

9-10).3 On several occasions from August 1978 to October

1978, petitioner gave counterfeit money to Pfaff. who then

passed the money and returned genuine currency to peti-

tioner (Pet. App. 3a; S. Tr. 11-13). In all, petitioner gave

Pfaff from $60,000 to $70,000 in counterfeit bills, and he

received in return from $15,000 to $20,000 in real currency

(S. Tr. 19-20).

2. Petitioner contends (Pet. 3-9) that the district court

improperly restricted his cross-examination of Pfaff con-

cerning her attempted suicide in 1972 and her recent hospi-

talization, thereby denying him his Sixth Amendment right

of confrontation. The court of appeals correctly rejected

this claim (Pet. App. Sa n.3).

Although a defendant may not be deprived of the right to

effective cross-examination( Davis v. Alaska, 415 U.S. 308

(1974)), this right is not unlimited, and a trial court’s deci-

sion to limit cross-examination will not be reversed absent

>The net result of the sentence was cither a five or six year prison term,

In light of the ambiguity of the sentence, the court of appeals left the

question whether the intended prison term was five or six years for the

trial court on remand. Pet. App. Sa & n.2.

“S. Tr.“ refers to the supplemental transcript, which contains Platts

direct testimony. “Tr.” references are to her testimony on cross-

examination, redirect and recross.

3

an abuse of discretion. United States v. Bastone, 526 F. 2d

971, 981-982 (7th Cir. 1975), cert. denied, 425 U.S. 973

(1976). Here, petitioner thoroughly cross-examined Pfaff

concerning her use of drugs and her mental state (Tr. 174-

179, 191-192, 211-217, 482). His inquiry revealed that Pfaff

had used marijuana, hashish, LSD, mescaline, Seconal,

Tuinal, Nembutal, cocaine, quaaludes and Methadrine, as

well as a number of prescribed drugs; that she had taken

illegal drugs as recently as three days before her testimony;

and that she was taking prescribed drugs every day in

connection with an emotional problem (Tr. 174-177, 191-

192, 211, 215). Pfaff specifically admitted that some of the

drugs she had taken could affect one’s perception and.

indeed, that her use of drugs “has affected my memory toa

degree as far as minute details go” (Tr. 176). Pfaff testified

under defense questioning that she had been under psychi-

atric care for nine years, that she was currently under psy-

chiatric care, and that she had reported increasing lapses of

memory for the preceding eight or nine months (Tr. 177-

178). Defense counsel also elicited the names of all the

institutions at which Pfaff had been treated and inquired

about medical reports concerning her mental state (Tr.

212-215, 248-249). Defense counsel also cross-examined

Pfaff specifically concerning the possibility that she suf-

fered from visual hallucinations (Tr. 178-179).

When Pfaff was recalled to the witness stand some days

later, defense counsel brought out the fact that during the

intervening weekend Pfaff had been admitted to the psychi-

atric unit of the Armstrong County Hospital (Tr. 482). The

court prohibited further cross-examination on that subject

absent medical testimony that Pfaff’s problems affected her

truthfulness. The court found the information defense

counsel sought to elicit to be so highly prejudicial and unfair

to the witness as to outweigh any probative value. and

4

observed that Pfaff’s emotional problems already had been

extensively portrayed to the jury (Tr. 483-484).4

In these circumstances, the district court's action was not

an abuse of discretion. The court did not prohibit cross-

examination concerning a relevant subject. Indeed. defense

counsel was given wide latitude in asking questions con-

cerning Pfaff’s mental state and her ability to perceive and

recall accurately. The district court required only that

further inquiry into this matter be preceded by a proper

foundation.’ It was not unfair for the court to require

medical testimony to establish some correlation between

Pfaff’s emotional state and her veracity, in order to prevent

additional cross-examination from turning into persecu-

tion or ridicule of her, instead of a test of her credibility. See

United States v. Estell, 539 F. 2d 697, 699-700 (10th Cir.),

cert. denied, 429 U.S. 982 (1976). Petitioner's counsel had

access to the witness’s doctors and the opportunity to pres-

ent medical information to the jury. Hence, his failure to

demonstrate the relevance of his proposed line of inquiry

provided ample reason for the court to restrict further

‘The court stated that it believed defense counsel was authorized to

talk to Pfaff's physicians. including the physician who had admitted her

to the hospital over the weekend. and that if he did not have authoriza-

tion to talk to the doctors and get Pfaff's medical records. the court

would see to it that he got such authorization (Tr. 484).

‘Even defense counsel recognized the cumulative nature of the evi-

dence he was attempting to introduce. In response to the government's

request foran offer of proof (Tr. 482). defense counsel characterized the

testimony he wanted to elicit from Platl as toliows (hr, 483): “the thrust

of itisthat Mary Jane Platt had a sufficient emotional problem over the

weekend that it required her to be hospitalized: that she was let out this

morning in time to come to court. | think it goes to her emotional

stability in line with what's been brought out on cross-examination and,

in fact. in line with what was brought out on direct examination even

from this witness.”

5

questioning on the subject, particularly in view of the exten-

sive questioning in that same area that the court already had

permitted.®

Accordingly, it is immaterial whether the attempted

cross-examination is viewed as an attack on Pfaff’s general

credibility or on her ability to recall and report accurately

the specific events of the offenses charged. In either case,

defense counsel's prior extensive questioning of Pfaff con-

cerning her use of drugs, her psychiatric history, and her

powers of recollection, as well as the district court’s willing-

ness to permit him to delve even more deeply into those

areas after he had laid a proper foundation for doing so,

render the cases relied on by petitioner inapposite.’

*The district court also properly restricted inquiry into Pfaff's seven

year old suicide attempt on the grounds that the unfair prejudice

outweighed any probative value, that it was remote, and that it had no

relevance to Pfaff's veracity (Tr. 199).

’For example, in United States v. Partin, 493 F. 2d 750 (Sth Cir.

1974), the court reversed the trial court's refusal to admit hospital

records showing that the government's witness was having auditory

hallucinations a few months prior to the events about which he testified.

In contrast, in the present case the court's ruling was based on the

absence of any medical evidence that Pfaff's recent hospitalization was

suggestive of any impairment of her credibility. Similarly, although in

Sinclair v. Turner, 447 F. 2d 1158 (1971). cert. denied, 405 U.S. 1048

(1972), the Tenth Circuit observed (447 F. 2d at 1162) that “[t}he fact of

insanity or mental abnormality either at the time of observing the facts

which [the witness] reports in his testimony, or at the time of testifying,

may be provable, on cross-examination or by extrinsic evidence, as

bearing on credibility.” it held (/hid.) that the district court had not

abused its discretion by limiting defense counsel's inquiry into the

psychiatric history of the prosecution's principal witness where the

defendant “[d]uring the offer of proof * * * made no claim that she

could or would produce any hospital, medical or prison records, or that

she could or would produce any examining physicians to impeach [the

witness's] testimony.”

6

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Wave H. McCree, Jr.

Solicitor General

JUNE 1981

DOJ-1961-06