Petition — Jarrett v. United States

Office -Supreme Court, U.S,

„

No. AUG 8 1993

5 =) NL STEVAS,

2 NN

In THE

Supreme Court of the United States

Ocroser Term, 1982

RONALD JARRETT,

Petitioner,

vs.

UNITED STATES OF AMERICA,

f Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

LOUIS CARBONARO

CaRBONARO & CARBONARO

79 West Monroe Street

Chicago, IIlinois 60603

(312) CEntral 64722

Attorney for Petitioner

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTIONS PRESENTED

1. Whether petitioner presented a valid claim of vin-

dictive prosecution under the doctrine of Blackledge v.

Perry which prohibits prosecution or punishment of a

defendant for exercising his constitutional rights.

2. Whether the Court of Appeals erroneously held

that petitioner’s claim of vindictive and selective prose-

cution was waived by failure to raise it under Rule 12(b)

prior to trial, and whether the District Court’s actions

should be interpreted as granting relief from any waiver.

3. Whether errors and omissions of trial counsel, in-

cluding waiver of a claim which in effect constituted

petitioner’s only defense by failure to comply with the

time limitations of Rule 12(b), denied him effective

assistance of counsel.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . .. . i

TABLE OF AUTHORITIES. . iii

r ...... 1

r ]”, 2

CONSTITUTIONAL PRO VISIONS

AND STATUTES INVOLVED .. .

STATEMENT OF THE CASE . .

REASONS FOR GRANTING THE WRIT:

1.

Petitioner Has Stated A Valid Claim Of

Vindictive And Selective Prosecution ............. 12

2.

Petitioner Did Not Waive His Claim Of Vin-

dictive And Selective Prosecution . 18

3.

Petitioner Did Not Receive Effective Assist-

See 25

III Sica cen echissssncebuasindcaspnewesséedontns 29

APPENDIX

1—Opinion of Court of Appeals. . . . . . App. 1

2—Order Denying Rehearing . . . App. 21

3—District Court Judgment Order App. 22

iii

TABLE OF AUTHORITIES

Cases

Blackledge v. Perry, 417 U.S. 2c 21 (1974) .......... 12, 17

Bordenkircher v. Hayes, 434 U.S. 357 (1978) . 16

Colton v. Kentucky, 407 U.S. 104 (1972) . . 17

Davis v. United States, 411 U.S. 233 (1973) ...... 20, 21, 25

Fallen v. United States, 378 U.S. 139 (1964) ....... 24

Fay u. Nota, 372 U.S. 391 (1963) . . . . . 22, 25

Herring v. Estelle, 491 F. 2nd 125 (5th Cir. 1974) .. 26

Johnson v. Zerbst, 304 U.S. 458 (1938) . . . 25

Kent v. United States, 423 F.2d 1050 (5th Cir.

P/ — ̃⁵²ß 27

McMann v. Richardson, 397 U.S. 759 (1970) 26, 27

North Carolina v. Pearce, 395 U.S. 711 (1969) ... 12, 18

United States v. Andrews, 633 F. 2d 449 (6th Cir.

1 ↄ eR ENR eA CURR Ce SP REA 18

United States v. Bourque, 541 F. 2d 290 (Ist Cir.

—— — aliadiaed 13

United States v. Easter, 539 F. 2d 663 (8th Cir.

— Ä A dias imenitacumiinoeinedied 27, 28

United States v. Goodwin, ..... UB: cos FO be

PPT » et eee Ret Mocs erat 12, 16

United States v. Oaks, 508 F. 2d 1403 (9th Cir.

. A AA FAP SUE. BY STC 22

United States v. Velsicol Chemical Corp., 498 F.

nee 15, 16

United States v. Wilson, 639 F. 2d 500 (9th Cir.

— ³ w» » ̃ ͤ- . 12, 13

iv

Constitutional Provisions,

Rules And Other Authorities

Fifth Amendment to the Constitution of the United

States (Due Process Clause) . 2

Sixth Amendment to the Constitution of the United

US salah ae lil aia eee ͥͤ hia oamianes 2

—TT—T—TVTT—T0——— 3, 13

Federal Rules of Criminal Procedure, Rule 12(b) ...

VVVVVVVVVVVVVVVTVTTTP—T—T—T—T—TJV—TVTTVGVTF passim

Notes of Advisory Committee on Rules, Rule 12,

T 19

Wright, Federal Practice and Procedure: Criminal

( 19

Ix TRE

Supreme Court of the United States

Ocroser Term, 1982

RONALD JARRETT,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Ronald Jarrett hereby petitions that a writ of certio-

rari be issued to review the judgment and opinion of The

United States Court of Appeals for the Seventh Circuit

entered on April 5, 1983.

OPINION BELOW

The judgment and opinion of The United States Court

of Appeals for the Seventh Circuit was entered on Apri!

5, 1983 (No. 82-1128) and is reported at 705 F.2d 198

(7th Cir. 1983). The opinion is attached hereto as Ap-

pendix 1.

*

JURISDICTION

The judgment of The United States Court of Appeals

for the Seventh Circuit (App. 1) was entered on April 5,

1983, affirming the petitioner’s conviction dated Janu-

ary 21, 1982. A petition for rehearing was denied on

June 8, 1983. The jurisdiction of this court is invoked

under and pursuant to 28 U.S.C. Sec. 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Fifth Amendment to the Constitution of The United

States (Due Process Clause):

“No person shall. . . be deprived of life, liberty or

property, without due process of law...

Sixth Amendment to the Constitution of the United

States:

“In all crimina! prosecutions, the accused shall en-

joy the right . . . to have the Assistance of Counsel

for his defense.”

Federal Rules of Criminal Procedure, Rule 12:

7 = *

“(b) Pretrial Motions. Any defense, objection, or re-

quest which is capable of determination without the

trial of the general issue may be raised before trial

by motion. Motions may be written or oral at the

discretion of the judge. The following must be

raised prior to trial:

(1) Defenses and objections based on defects

in the institution of the prosecution; or

*

(2) Defenses and objections based on defects

in the indictment or information (other than

that it fails to show jurisdiction in the court or

to charge an offense which objections shall be

noticed by the court at any time during the

pendency of the proceeding); or

(3) Motions to suppress evidence; or

(4) Requests for discovery under Rule 16; or

(5) Requests for a severance of charges or

defendants under Rule 14.”

E * *

(f) Effect of Failure to Raise Defenses or Objections.

Failure by a party to raise defenses or objections or

to make requests which must be made prior to

trial, at the time set by the court pursuant to sub-

division (c), or prior to any extension thereof made

by the court, shall constitute waiver thereof, but the

court for cause shown may grant relief from the

waiver.

STATEMENT OF THE CASE

On December 15, 1977, Alfred’s Orange Blossom Jew-

elry Store, in Chicago, Illinois, was robbed by two gun-

men of approximately $39,000.00 in diamonds, watches

and yags (phony diamonds), and $3,000.00 in cash (Tr.

41). Approximately three years later on or about Octo-

ber 29, 1980, petitioner was charged by a federal grand

jury in a one-count indictment with the robbery, in vio-

lation of the Hobbs Act (18 U.S.C. Sec. 1951) (R. 1).

Sometime during 1978, petitioner became a suspect in

an unrelated investigation of another offense conducted

by Department of Justice Attorney S. Gay Hugo of the

Department of Justice Strike Force in Chicago, Illinois,

8

before the Special September 1978 Grand Jury. Some-

time prior to November of 1978 F. B. I. Agent Pecoraro

attempted to contact Petitioner as a suspect (R. 32). In

March of 1979, Agent Pecoraro served petitioner with a

grand jury subpoena. Petitioner appeared before the

grand jury on April 11, 1979, and refused to testify on

the grounds of his Fifth Amendment privilege against

self-incrimination (R. 32, 40, 61).

Just eight days later, on April 19, 1979, Department

of Justice Strike Force Attorney S. Gay Hugo obtained

an indictment charging petitioner with unlawful posses-

sion of a firearm three and one-half years earlier. The

firearms charge had already been the subject of a State

Court prosecution which terminated when the court

found no probable cause for the traffic stop of petitioner

which resulted in the seizure of the firearm (R. 32, 40).

Petitioner moved to dismiss the federal firearms prose-

cution on the grounds of vindictive prosecution and pre-

indictment delay. Although the district court denied the

motion to dismiss, in finding no probable cause for the

arrest of petitioner, as the State Court had found ear-

lier, the district court noted “irregularities” in the case

which it found “particularly troubling” and also ob-

served:

[T]he return of the indictment only eight days

after the defendant exercised his right to remain

silent before another grand jury on an unrelated

investigation is almost incredible. In view of the

court’s resolution of the motion to suppress, no

further comment on these aspects of the case need

be made. (R. 40)

The government did not appeal from the district court’s

finding of no probable cause, and the case was later dis-

missed (R. 32).

While the firearms case was pending, F.B.I. Agent

Pecoraro and another agent who were working with the

=

Strike Force and the grand jury on the original investi-

gation in which petitioner was a suspect, began looking

into the Orange Blossom robbery, the subject of the

instant prosecution. In June of 1979, they located and

told one David Willis, who admitted committing bur-

glaries and robberies in 1977 and 1979 and who was one

of the alleged gunmen in the Orange Blossom Robbery,

that he could get on a “witness protection program” if

he told them what he knew about the Orarge Blossom

robbery (R. 153-157, 174-80). Willis admitted that he

was one of the gunmen who had robbed the Orange

Blossom (R. 153-57, 180-81). Later, in September of

1979, they contacted one Ronald Brown, who was incar-

cerated in the Cook County Jail on two pending burgla-

ry charges. Brown had been an informant for the F.B.I.

since September of 1978, during which he was paid by

the F.B.I. and while so employed by the F.B.I., gave

them bogas information and committed a number of

burglaries. During this time he had told Special Agent

Gorman about the Orange Blossom robbery and said that

it was organized by a guy named Joe Rodriquez (a/k/a

Joe Zito), who used two men from Indiana to commit it.

Brown never mentioned petitioner to the agents at this

time, but claimed at trial, when he testified against

petitioner, that he was lying then (R. 280-84).

When Brown talked to Agent Pecoraro in September

of 1979, he admitted that he was the other gunmen in

the Orange Blossom robbery, but this time claimed that

petitioner also participated in the robbery and acted as

a “lookout”. Two weeks later, Brown was released from

custody. (R. 259-60, 263-66, 270).

The F.B.I. recommended an attorney for Brown and

the burglary charges were ultimately dismissed at the

request of the F.B.I. (R. 263-66, 270). During Sep-

tember, 1979 Brown was relocated and given a new

identity. The F.B.I. paid his rent and utility bills, as

* *

well as 820 per day for food for Brown and his family

(R. 214-17). In October of 1979 Willis, the other gun-

man, was also relocated by the government, given a new

identity and assisted in finding employment. He was

paid $14,000.00 by the government for various expenses.

In addition, the government paid for his housing, utili-

ties and furnishings (R. 143-45).

Almost one year later, on October 29, 1980, the Spe-

cial September 1978 Grand Jury (the same grand jury

which had been conducting the original investigation

before which petitioner had refused to testify) indicted

petitioner for a violation of the Hobbs Act based on the

Orange Blossom robbery. This indictment was also ob-

tained by Special Attorney Hugo of the Department of

Justice Strike Force (R. 1).

Prior to trial petitioner asked his attorneys! whether

this was a proper federal case, and discussed with them

the fact that this case appeared to be an effort by the

Government to retaliate against him and harass him

owing to his refusal to testify. Petitioner stated in his

affidavit that both attorneys told him that it appeared

the Government was trying to “get” him, and that they

knew what it was “all about.” Petitioner informed both

attorneys of this indictment in the federal firearms case,

filed about one week after his grand jury appearance,

which was pending before Judge Roszkowski, and dis-

cussed it with Mr. Walsh, one of his attorneys, in the

presence of another attorney who represented him in

These conversations are related in petitioner’s affidavit

filed in support of his claim that he was denied effective

assistance of counsel by failure of trial counsel to move to dis-

miss the indictment on the grounds of vindictive and discrim-

inatory prosecution. On September 2, 1982, the Court of

Appeals granted petitioner’s motion to file the affidavit as a

supplemental record.

i

the firearms case. Petitioner asked whether this case

could be dismissed before trial on grounds that the Gov-

ernment was retaliating against him and harassing

him, and his attorneys told him that they had to go to

trial before his claims of retaliation and harassment

could be raised. Petitioner stated in his affidavit that he

continually asked them when the claims would be raised,

and they repeatedly told him that they would be raised

later. Petitioner stated that Mr. Lydon, one of his attor-

neys, told him that his claims were the strongest part of

his case and both attorneys mentioned “vindictiveness”.

Petitioner’s affidavit states that he was never told that

failure to make the claims prior to trial would result in

waiver, that he would have insisted that these claims be

raised before trial if he knew that this was required,

and that he was relying on the expertise and judgment

of his attorneys.

Trial on the Orange Blossom robbery charges began

on December 15, 1980. On the second day of the trial,

counsel for the petitioner informed the court that he

wanted to file a motion raising the issues of prosecu-

torial vindictiveness and pre-indictment delay (Tr. 75-76).

In response, the district court said:

THE CourRT: Well, you go ahead and do that.

You can do that at the appropriate time. (Tr. 76)

During the testimony of Brown and Willis, the two

gunmen, defense counsel failed to object to the govern-

ment’s leading questions concerning the benefits they

had received from the government in exchange for their

testimony. Defense counsel did not object to the identi-

fication by Brown and Willis of the handgun allegedly

carried by Brown during the robbery, nor was either

witness cross-examined on this point. Willis was allowed

to testify, also without objection, to hearsay statements

by one Joseph Rodriquez, also known as Joe Zito, who

2

allegedly told Brown and Willis that petitioner was

planning the robbery. Willis also testified, also without

objection by defense counsel, to other statements by Zito

after the robbery concerning alleged hearsay conversa-

tions with petitioner (Tr. 162-64, 244-45).

Although Willis claimed that on the day of the rob-

bery he traveled to the Orange Blossom in petitioner’s

car, Brown testified in direct contradiction to Willis,

that he (Brown) rode to the Orange Blossom in petition

er’s car, but this difference was not explored on cross-

examination of Brown.

Defense counsel also failed to object to admission in

evidence of invoices for jewelry purchased by Orange

Blossom during the year, when exhibits were offered to

show the jurisdictional element of interstate commerce,

although there was no testimony that the items reflected

in the exhibits were taken during the robbery.

During cross-examination petitioner denied partici-

pation in the robbery, and denied that he owned any

police scanners or walkie-talkies, or had any in his home

when he was visited by agents in April of 1978 (Tr.

303-05). There was no objection to their questions by

defense counsel. In rebuttal, an agent was allowed to

testify over objection that he had been in petitioner’s

home in April of 1979, sixteen months after the robbery

and one year after the time referred to by petitioner,

and had seen three walkie-talkies in a closet in petition-

er’s bedroom (Tr. 329-30). However, defense counsel did

not object and in fact agreed to an instruction on im-

peachment which specifically mentioned the testimony

about walkie-talkies in his home in April of 1979.

Although Brown and Willis were admitted partici-

pants in the robbery, defense counsel did not request a

standard instruction on “accomplice” testimony. Later,

*

during elosing arguments, defense counsel told the jury

that the testimony of all witnesses was to be judged by

the same standard (Tr. 347).

On December 18, 1980, the jury returned a verdict of

guilty. On December 27, 1980, petitioner filed a motion

raising the issue of selective and prosecutorial vindic-

tiveness and requesting a hearing on the claim (R. 32).

Two months later, on February 17, 1981, other coun-

sel appeared for petitioner, and asked that sentencing

be continued to permit full exploration of the issue of

the court’s jurisdiction and prosecutorial vindictiveness.

The court replied:

THE CouRT: Well, you are certainly entitled to

raise any points that you want... and if you find

something to bring to my attention, why, you are

certainly welcome to do so and I would expect you

to do it. (R. 40 at p. 8)

The following colloquy between former counsel and

the district court also took place:

Mr. LYDON: .. . I am wondering whether you re-

ceived the post trial motions that we filed to dis-

miss, one, for vindictive prosecution—

Tur Court: Yes, I have those but I assumed

that you were going to present them and I was

going to suggest today—

. . . that obviously there is going to have o be

some kind of a hearing. . in connection with the

contentions raised by—I am aware of the fact that

you filed such motions and I assumed that the hear-

ing was going to go ahead covering that (as well as

the Government’s dangerous special offender peti-

tion). (Id. at 11).

a

On March 27, 1981, the government filed a lengthy

response directed to the merits of petitioner’s claims, but

did not assert that such claims were waived by failure

to bring them prior to trial, and did not dispute peti-

tioner’s right to a hearing (R. 61).

On June 23, 1981, the district court denied petitioner’s

claim of unlawful preindictment delay, but observed

that a hearing of some kind would be required on the

other claims. The Court said:

“The government has given, through affidavits,

reasonable explanations for its actions. But these

affidavits have not been tested by cross-examina-

tion. Indeed, the fact that the government felt it

necessary to respond to this motion with its own

evidentiary showing lends further support to this

court’s conclusion that some limited hearing should

be required to determine whether there may be

reasonable doubt as to the prosecutor’s motive in

this case.

Thus, even though defendant has not yet raised a

reasonable doubt in the court’s mind to warrant a

full scale evidentiary hearing, the court will give

the defendant the opportunity to present what evi-

dence he currently has to cross-examine the govern-

ment’s affiants in this hearing.” (R. 70 at 7).

Also on June 23, 1981 the government for the first time

asserted that petitioner had waived his claims by failure

to present them prior to trial under Rule 12(b), but the

court ordered an evidentiary hearing (R. 70-71).

However, on July 30, 1981, the date set for an evi-

dentiary hearing, the district court ruled that petition-

er's claims had been waived by failure to raise them by

pretrial motion under Rule 12(b). (Transcript by July

30, 1981).

ones

Just before sentencing petitioner filed a motion assert-

ing that he was denied effective assistance of trial

counsel, which was denied by the district court. (R. 61).

Subsequently, petitioner filed an affidavit in support of

his claim of ineffective assistance of counsel based on

failure of trial counsel to raise the claims of vindictive

and selective prosecution and preindictment delay prior

to trial. (Supp. R.)? On September 17, 1981, petitioner

was sentenced to 25 years imprisonment as a special

dangerous offender (R. 99).

On appeal, the Court of Appeals for the Seventh Cir-

cuit affirmed petitioner’s conviction. The Court held

that petitioner’s claim of selective prosecution was

waived by failure to raise it prior to trial pursuant to

Rule 12(b) of the Federal Rules of Criminal Procedure.

As to the claim of vindictive prosecution, the Court

observed in a footnote that “this is not the type of situa-

tion which falls within the perimeters of a vindictive

prosecution defense.” (Opinion, p. 8, fn. 8). The Court

refused to reach the issue of whether petitioner had

been relieved of any waiver because petitioner “never

requested such relief from the district court.” (Opinion,

pp. 10-11). The Court also held that the petitioner's

claim of effective assistance of counsel was not properly

before the court even though petitioner has been given

leave to add this argument to his brief.

2 The facts stated in petitioner’s affidavit are summarized in

this statement, supra at pp. 6-7.

x

REASONS FOR GRANTING THE WRIT

1.

PETITIONER HAS STATED A VALID CLAIM OF

VINDICTIVE AND SELECTIVE PROSECUTION.

Certiorari should be granted because this case pre-

sents a number of questions concerning the scope of this

Court’s prior rulings prohibiting vindictive prosecutions

following a defendant’s exercise of his constitutional

rights. This Court in North Carolina v. Pearce, 395 U.S.

711 (1969) held that Due Process requires that a defend-

ant be free of the “fear of vindictiveness” which may

unconstitutionally deter him from exercising his right to

appeal or collaterally attack his conviction. Subsequently

in Blackledge v. Perry, 417 U.S. 21 (1974) this Court

held, following Pearce, that it was not constitutionally

permissible for the State to bring a more serious charge

in response to a defendant’s request for a trial de novo

because due process “requires that such a potential for

vindictiveness must not enter into North Carolina’s two-

tiered appellate process.” (417 U.S. at 28) The principle

underlying both these and subsequent decisions prohibit-

ing vindictive prosecution is that Due Process does not

permit the prosecutor to punish a person for “doing

what the law plainly allowed him to do.” (United States

v. Goodwin, 73 L. Ed. 2d at 87).

As observed by one court,

“Little substantive difference can be detected be-

tween selective prosecution and vindictive prosecu-

tion.” (United v. Wilson, 639 F.2d 500, 502

(9th Cir. 1981)).

The court went on to observe that vindictive prosecution

arises when the government increases the severity of

alleged charges in response to defendant’s exercise of

2

constitutional rights, and selective (or discriminatory)

prosecution occurs where defendant is prosecuted initi-

ally for having exercised a constitutional right. (639

F.2d at 502). But the interests involved are the same in

both selective and vindictive prosecution:

“the defendant seeks protection from criminal prose-

cution initiated punitively, in response to the exer-

cise of his constitutional rights.” (639 F.2d at 502)

But frequently the vindictive motive is also present in

the case of discriminatory or selective prosecution. As

stated in United States v. Bourque, 541 F.2d 290 (lst

Cir. 1976),

“... personal vindictiveness on the part of a prosec-

utor or the responsible member of the administra-

tive agency recommending prosecution would also

— a charge of discrimination.” (541 F.2d at

Petitioner in the instant case raised the claim that the

prosecution against him was both vindictive and dis-

criminatory. It was vindictive because it followed and

was motivated by a desire to retaliate against him and

punish him for his refusal to testify before the grand

jury in the original investigation. It was discriminatory

because petitioner was prosecuted under the Hobbs Act

(18 U.S.C. Sec. 1951) for the robbery of a local jewelry

store, when vitually hundreds of local robberies never

give rise to Hobbs Act prosecutions. Petitioner’s claim

was further supported by the fact that immediately

after he exercised his Fifth Amendment privilege, the

government brought a three year old weapons prosecu-

tion against petitioner based on an arrest which the

State Court had previously found to be lacking in prob-

able cause, and by the fact that federal agents sought

out and made arrangements for the principal witnesses

against the petitioner in the instant case to be paid and

placed in a “witness protection program” in exchange

*

for their testimony against petitioner. The original in-

vestigation, the subsequent weapons prosecution and the

instant prosecution were all under the direction of the

same Department of Justice Strike Force Attorney, and

the indictment against petitioner in the instant case was

returned by the same special grand jury before which

he had claimed his Fifth Amendment privilege not to

testify. So strong was the appearance of vindictiveness

that the district judge in the weapons case noted “irreg-

ularities,” found it “particularly troubling” and ob-

served that it was “almost incredible,” but did not find

it necessary to rule on petitioner’s motion to dismiss

based on vindictive prosecution because he granted peti-

tioner’s motion to suppress the evidence.

Although these facts obviously support the prima

facie inference that petitioner’s refusal to testify in

reliance upon his constitutional rights resulted in not

just one but two prosecutions against him, the Court of

Appeals held that petitioner did not present a claim of

vindictive prosecution because this. . . is not the type

of situtation that falls within the perimeters of Black-

ledge v. Perry.” (opinion p. 8 fn. 8) The court explained

that petitioner’s claim of vindictive prosecution fails

because “vindictive prosecution has as its basis an in-

crease in charges or a new prosecution allegedly brought

in retaliation for the exercise of constitutional rights”

and here “there is a single prosecution, and no increase

in charges” (Id.) The court further observed that peti-

tioner “apparently wishes to equate his appearance as a

witness before the grand jury with a criminal proceeding

against him personally.” (Id.)

To the extent that the Court of Appeals implies that

the proceeding before the grand jury was not a proceed-

ing against petitioner personally, it is inconsistent with

the fact that petitioner was regarded as a suspect in the

original grand jury investigation. Agent Pecoraro testi-

—1§—-

fied that petitioner was contacted as a suspect in the

original investigation, and the Government admitted in

the trial court that petitioner was a suspect (Govérn-

ment’s Response to Defendant’s Motions to Arrest Judg-

ment and Judgment of Acquittal, pp. 11-12). Moreover,

there was not just a “single prosecution” but two prose-

cutions following petitioner’s exercise of his constitu-

tional rights. After petitioner successfully defended

against the weapons prosecution, he was prosecuted for

the Orange Blossom robbery in the instant case.

To be sure, the court of appeals may be technically

correct and seems to have followed the prevailing views

as to Perry, namely, that there must be an increase in

charges based upon the same facts which supported a

previous charge in which the defendant relied upon his

constitutional rights. However, where the prosecution is

initiated with a vindictive motive in order to punish

a person for exercising his constitutional rights, it

makes little sense not to call it by the name of “vindic-

tive prosecution.” By granting certiorari the Court can

consider the question of whether the constitutional pro-

hibition against vindictive prosecution is limited to those

situations illustrated by Pearce and Perry, as the Court

of Appeals assumed, or whether all retaliatory prosecu-

tion for the exercise of constitutional rights is pro-

hibited by due process of law.

The timing of the prosecutions against petitioner in

the instant case as well as the stale nature of the

charges supports an inference of a reasonable likelihood

of vindictiveness. In granting a defense motion to dis-

miss an indictment on the grounds of prosecutorial vin-

dictiveness, the district court in United States v. Velsicol

Chemical Corp., 498 F. Supp. 1255 (D.D.C. 1980) said:

“When, as in this case, the government chooses not

to lodge charges for a period of time and then

2

makes the decision to prosecute so close after a

defendant elects to exercise his rights in the face of

prosecution opposition, apparent vindictiveness is

established. Indeed, the question of the delay and

the timing of the present indictment is crucial.”

(498 F. Supp. at 1264-65)

This case is an appropriate vehicle for further clarifica-

tion of Perry because, as in the Velsicol case, the timing

of the charges against petitioner “strongly indicates a

retaliatory motive.” (498 F. Supp. at 1265)

The existence of apparent vindictiveness under the

facts of the instant case is also supported by Borden-

kircher v. Hayes, 434 U.S. 357 (1978) where this Court

contrasted the “give and take” of plea bargaining where

a defendant is free to accept or reject the prosecutor’s

offer with the “unilateral imposition of a penalty upon a

defendant who has chosen to exercise a legal right to

attack his original conviction.” (434 U.S. at 362) When

petitioner appeared before the grand jury in the instant

case he was not given a choice of testifying or facing

indictment on other charges. Rather, after petitioner

had exercised his right not to testify, the subsequent

charges constituted the “unilateral imposition of a pen-

alty” on petitioner for the exercise of that legal right.

Subsequently, in United States v. Goodwin U.S.

8 73 L. Ed. 2d 74 (1982), in which defendant was

charged with a felony after refusing to plead guilty to

misdemeanor charges, the court refused to apply a pre-

sumption of vindictiveness under the circumstances of

that case, but reaffirmed the general principle under-

lying vindictive prosecution cases, and pointed out that

a defendant must be free from actual vindictiveness:

“In declining to apply a presumption of vindictive-

ness, we of course do not forec the possibility

that a defendant in an appropriate case might

prove objectively that the prosecutor’s charging

=

decision was motivated by a cesire to punish him

for doing something that the law plainly allowed

him to do.” (73 L. Ed. 2d ai 87)

The importance of avoiding persenal vindictiveness

was also expressed by this Court in Colton v. Ken-

tucky, 407 U.S. 104 (1972) where, in finding no due

process violation in the Kentucky two-tier system per-

mitting trial de novo before a different judge, the Court

remarked that there was little chance of “personal vin-

dictiveness” before a different jury because it has no

“personal stake in the prior conviction and no motiva-

tion to engage in self-vindication.” (412 U.S. at 17)

In contrast, question of personal vindictiveness is

present here because the earlier investigation during

which petitioner refused to testify and both subsequent

indictments were obtained by the Department of Justice

Strike Force Special Attorney Hugo rather than treated

as routine matters prosecuted by an Assistant United

States Attorney in the ordinary course of business. In

fact, it is entirely fair to say that neither the weapons

charge nor the very unusual Hobbs Act robbery charge

would have been brought against petitioner in the ordi-

nary course of business. This case is therefore stronger

for petitioner than Perry where the Court observed that

“There is, of course, no evidence that the prosecutor

in this case acted in bad faith or maliciously in seek-

ing 2 felony indictment against Perry.” (417 U.S.

at

In contrast, here petitioner has claimed that the partic-

ular prosecutor was actually motivated “to engage in

self-vindication” when petitioner refused to testify be-

fore the grand jury in the investigation which she was

conducting. As one Court of Appeals observed as to the

facts of Blackledge v. Perry:

“Anyone who assessed these facts objectively, would

conclude that the prosecutor had retaliated ayainst

a;

the defendant.” United States v. Andrews, 633 F.2d

449, 453 (6th Cir. 1980) (en banc).

In Goodwin this Court observed that the broad principle

that Due Process forbids punishment of a person be-

cause he has done what the law plainly allows him to do

underlies the line of cases beginning with North Caro-

lina v. Pearce and is in itself uncontroversial. The princi-

ple itself is too basic to be limited merely to cases in

which an attack on a previous conviction results in an

increased charge. This is an appropriate case for this

Court to recognize, as the Court of Appeals refused to

do, that the Due Process prohibition against vindictive

and retaliatory prosecution also protects petitioner and

others similarly situated from the vindictive motives of

a prosecutor.

2.

PETITIONER DID NOT WAIVE HIS CLAIM OF VIN-

DICTIVE AND SELECTIVE PROSECUTION.

This Court should grant certiorari also to consider the

question raised by the erroneous holding of the district

court and court of appeals that petitioner waived his

claim of vindictive and selective prosecution by failure

to raise the claim prior to trial pursuant to Rule 12(b) of

the Federal Rules of Criminal Procedure.

1. The Court of Appeals reached the conclusion that

petitioner’s claims had been waived only because it re-

jected completely his characterization of his claim as

one of vindictive prosecution, characterized it as solely a

claim of “discriminatory” prosecution and then cited

some authority for the proposition that a claim of dis-

criminatory prosecution must be raised prior to trial

under Rule 12(b). As already pointed out above, the mis-

characterization of the claim does not change the fact

that petitioner has made a prima facie showing that this

prosecution was both vindictive and discriminatory.

—19—

2. The contention that petitioner’s claims were not

waived is supported by the Advisory Committee Notes

and the 1975 amendments to Rule 12(b\1) and (2) which

describe those objections and defenses which must be

raised prior to trial to include irregularities in the grand

jury proceedings and defects in the indictment or in-

formation (other than lack of jurisdiction or failure to

state an offense) (Notes of Advisory Committee on Rules,

Rule 12, 18 U.S.C. at 167). Professor Wright has pointed

out that categories (1) and (2) also include misjoinder of

offenses or defendants, multiplicity, duplicity and failure

of the magistrate to follow the rules. (Wright, Federal

Practice and Procedure: Criminal 2d § 193 at 700). In

contrast, those objections and defenses which a defendant

may raise by motion prior to trial (but which are not

waived if not raised) include such matters as former jeop-

ardy, statute of limitations, immunity, lack of jurisdic-

tion and failure of the indictment or information to state

an offense. (Notes of Advisory Committee at 167)

The claims of selective and vindictive prosecution

are not “defects in the institution of the proceedings”

like those described by the Advisory Committee, but are

analogous to a claim that prosecution is barred by

double jeopardy, which could not be cured and would

preclude the prosecution from calling upon a defendant

to answer the charges at all. Significantly, this Court

in Perry compared a claim of vindictive prosecution to

a claim of former jeopardy. (417 U.S. at 30) Since a

claim of selective prosecution is similar to a claim of

vindictive prosecution, both should be treated like a

claim of double jeopardy and not considered waived if

not raised prior to trial.

3. Petitioner’s contention that his claim of vindictive

and selective prosecution is not the type of correctable

“defect in the institution of the proceedings” contem-

2

—20—

plated by the waiver provision of Rule 12(b) is also sup-

ported by this Court's discussion of the waiver provisions

under the prior rule in Davis v. United States, 411 U.S.

233 (1973) where the court explained that:

“The waiver provisions of Rule 12(b\2) are opera-

tive only with respect to claims of defects in the

institution of criminal proceedings. If its time lim-

its are followed, inquiry into an alleged defect may

be concluded and, if necessary, cured before the

court, the witnesses, and the parties have gone to

the burden and expense of a trial.” (411 U.S.

at 241)

This observation obviously contemplates limitation of

the waiver provisions to defects which could be cured

before trial. It is extremely reasonable that such claims

must be raised prior to trial because failure to do so

might result in the burden and expense of a trial fol-

lowed by the burden and expense of another trial. There

is no such possibility with claims such as vindictive

prosecution, discriminatory prosecution and double jeo-

pardy because once these claims have been successfully

raised, there will not be another trial.

To be sure, the trial which was held might have been

avoided if the claim had been successfully raised prior

to trial, but by the same token a hearing on the discrim-

inatory and vindictive motives of the prosecution might

have been avoided entirely by the return of a verdict of

not guilty. Where as here either the return of a verdict

of not guilty or a favorable ruling on defendant’s motion

to dismiss would also terminate the prosecution, the con-

venience of all concerned may be served by proceeding

to trial first. For example, in petitioner’s case the

indictment was returned on October 23, 1980, the case

proceeded to trial less than two months later and the

actual trial took only three days. In contrast, the pro-

=

ceedings resulting from petitioner’s motion to dismiss on

the grounds of vindictive and discriminatory prosecu-

tion continued over a period of over seven months, and a

hearing would have involved several days of testimony

and numerous exhibits.

Further support for these contentions is gleaned from

the Davis Court’s explanation, in support of its inter-

pretation of the waiver provision of Rule 12(b), that:

“If defendants were allowed to flout its time limita-

tions, on the other hand, there would be little in-

centive to comply with its terms when a successful

attack might simply result in a new indictment

prior to trial. Strong tactical considerations would

militate in favor of delaying the raising of the claim

in hopes of an acquittal, with the thought that if

those hopes did not materialize, the claim could be

used to upset an otherwise valid conviction at a time

when reprosecution might well be difficult.” (411

U.S. at 241).

The Court’s reference here to “reprosecution” obviously

contemplates the kind of errors which are “curable” and

which would not bar reprosecution after a successful

post trial motion or appeal.

4. There is something highly perverse and unfair in

applying the waiver rule to a situation in which it did

not occur to any of the lawyers involved on either side

nor to the district judge that there was any possibility of

waiver until after several months had passed, the gov-

ernment had responded on the merits and the district

judge had set the matter for a hearing. The district

court, as well as Counsel for the government obviously

assumed that the petitioner’s claim could be raised after

trial and in fact when counsel for petitioner first brought

up the subject, the district court informed him that it

could be raised “at the appropriate time” (Tr. 76). Given

the fact that the trial was already in progress, the dis-

trict court’s reference to “the appropriate time” obvi-

ously referred to after trial.

The waiver provisions of Rule 12(b) should be a

“bright line” rule which makes clear to counsel and the

court what claims will be waived if not raised prior to

trial. When, as here, reasonable men do not even think

of waiver until several months after the claim has been

raised and until the parties have devoted considerable

time to briefing and arguing the merits of the claim,

the waiver rule has no reasonable application and serves

only as “an airtight system of forfeitures.” Fay v. Nowa,

372 U.S. 391 (1963).

To hold otherwise and permit this characterization of

the claim as selective rather than vindictive to control

application of the waiver provisions of Rule 12(b)(2) is to

engage in a kind of “shell game” with petitioner.

5. This Court should also grant certiorari to consider

whether or not the actions of the trial court in delaying

sentencing for nine (9) months, permitting the parties to

address the merits of petitioner’s claim, and setting the

matter for an evidentiary hearing constituted “relief

from waiver” pursuant to Rule 12(b). When counsel for

petitioner first raised the point during trial, the trial

court invited counsel to “go ahead and do that. You can

do that at the appropriate time.” (Tr. 76) Thi: invitation

by the district court compares most favorably to the

court’s statement in United States v. Oaks, 508 F. 20,

1403 (9th Cir. 1974) where the district court, in response

to counsel’s statement that he wanted to raise the point

of discriminatory prosecution, “All right. The point is

duly noted.” The Court of Appeals held that this state-

ment constituted “relief from waiver” within the mean-

ing of the prior waiver provisions of Rule 12(b\2) (508

F.2d at 1405) Surely, in the instant case, the district

court’s invitation to file the motions “at the appropriate

wiih.

time” should similarly be construed as “relief from

waiver.”

Moreover, if there was any doubt about the district

court’s remarks during trial, its subsequent actions

affirmatively support the conclusion that relief from

waiver was allowed. When new counsel filed his appear-

ance two months after trial, and asked for sentencing to

be continued so as to permit full exploration of the ques-

tion of vindictive prosecution, the district court remarked

that counsel was “certainly entitled to raise any points

that you want.” (R. 40 at p. 8) A few minutes later,

with reference to the motion to dismiss based on

vindictive prosecution filed by the trial counsel, the

court apparently in reference to its remark during trial

that the point could be raised at “the appropriate time,”

said that “I assumed you were going to present them.”

(Id. at 11) The court then remarked that “. . obviously

there is going to have to be some kind of a hearing” in

the connection with the claim of vindictive and discrimi-

natory prosecution. (Id. at 11) If the trial court’s re-

marks during trial did not constitute relief from waiver,

was such relief not granted by the trial court’s remarks

just quoted?

But there is more to support petitioner’s contention

that relief from waiver was granted. In June, six months

after trial, the court stated that the government’s affi-

davits had not been tested by cross-examination and

again observed that “.. The fact that the government

felt it necessary to respond to this motion with its own

evidentiary showing lends further support to this court’s

conclusion that some limited hearing should be required

to determine whether there may be reasonable doubt as

to the motive in this case.” (R. 20 at 7) The government

then, for the first time, asserted that petitioner had

waived his claims, but the court nevertheless set the

cause for a hearing on July 30, 1981. Did not this consti-

.

tute “relief from waiver”? Does the fair administration

of justice permit the district court to lead counsel to

believe that there has been no waiver for several months,

and then inexplicitly and suddenly change its mind?

In the face of such overwhelming evidence in support

of the obvious conclusion that the district court had

intended to and in fact did grant relief from waiver

(before inexplicably changing its mind eight months

after trial), the Court of Appeals refused to reach the

issue of whether petitioner could have been relieved of

his waiver “since he never requested such relief from

the district court.” (Opinion, p. 11) Certainly both the

district court and the court of appeals have violated this

Court’s injunctions against overly rigid or formalistic

interpretation of the federal criminal rules. (Fallen v.

United States 378 U.S. 139 (1964) Certiorari should be

granted so this Court can offer guidelines as to when

and under what circumstances the actions of the district

court constitutes “relief from waiver.”

6. Although petitioner contended that the govern-

ment, by responding on the merits and by failure to

raise its claim of “waiver” until several months after

trial, had “waived” its right to assert that petitioner’s

claim had been waived, the court of appeals rejected

this claim in a footnote as “completely without merit.”

(Opinion, p. 11 fn. 11) But if the waiver provisions of

Rule 12(b) are designed to save the time and expense of

the government and court by avoiding useless proceed-

ings, do not the same considerations apply to the re-

sources of petitioner? After the district court invited peti-

tioner to raise his claims of discriminatory and vindic-

tive prosecution in February, counsel for petitioner

investigated, spent days in legal research and brief

writing, submitted motions for discovery and briefs on

the merits and made numerous court appearances, all

for nothing apparently because at the last minute the

government cried “waiver” and rendered useless the last

six months of work. Petitioner and his counsel had cer-

tainly relied on the good faith of the government and

the court in spending time and money getting ready for

a hearing. Under the circumstances, should not the

government and the court have been equitably estopped

from raising the question of waiver at the last minute?

7. This case certainly illustrates the need for addi-

tional guidance on the question of which claims are and

which claims are not waived by failure to raise them

prior to trial. Both petitioner and his counsel were well

aware of petitioner’s claim of discriminatory and vindic-

tive prosecution and in fact counsel stated to petitioner

that it was the strongest part of his case. (Supp. R.)

There was obviously no intention that the claim be

waived or abandoned by waiting until after trial to

raise it. There was obviously no waiver in the sense of

an “intentional relinquishment or abandonment of a

known right or privilege.” (Johnson v. Zerbst, 304 U.S.

458, 464) Under the circumstances of this case, this is

certainly sufficient to show cause for relief from waiver

under Rule 12(b) (Davis v. United States, 411 U.S.

233, 255) (Marshall, J., dissenting) To hold otherwise is

simply to apply “an airtight system of forfeitures” (Fay

v. Noia, 372 U.S. 391, 482).

PETITIONER DID NOT RECEIVE EFFECTIVE

ASSISTANCE OF COUNSEL.

Assuming for the moment that the court of appeals is

correct in its conclusion that petitioner’s claim of vindic-

tive and selective prosecution was waived by failure to

raise it prior to trial, is not such a waiver a denial of

effective assistance of counsel as guaranteed by the

Sixth Amendment? This contention must be viewed in

—26—

the context of the following facts: (1) There was an

appearance of vindictiveness resulting from the fact

that petitioner was indicted only a week after he had

refused to testify in another investigation before the

grand jury under circumstances which another district

judge found to be “almost incredible” and “particularly

troubling”; (2) The type of local robbery with which

petitioner was charged almost never gives rise to a fed-

eral charge of robbery under the Hobbs Act; (3) Peti-

tioner’s counsel were aware of the prior judge’s views

and told petitioner prior to trial in the instant case that

the motion to dismiss on grounds of vindictive and selec-

tive prosecution which they waived was the strongest

part of the case; (4) Petitioner himself wanted the point

raised and would have insisted that it be raised prior to

trial if he had known that failure to do so would have

constituted waiver; and (5) There was no conceivable

tactical advantage to be gained from not raising the

point prior to trial. Under the circumstances, it was

ineffective assistance of counsel for petitioner’s lawyers

to allow his claim to be subject to forfeiture, just as it

would be incompetence for a lawyer entrusted with the

responsibility of filing a personal injury lawsuit to for-

feit the claim by failure to file within the statute of lim-

itations.

The Sixth Amendment requires the effective assist-

ance of counsel performing within a minimum standard

of competency or “within the range of competence de-

manded of attorneys in criminal cases” McMann v.

Richardson, 397 U.S. 759, 771 (1970). Speaking to this

standard, the Court of Appeals for the Fifth Circuit has

observed that

. . . a lawyer who is not familiar with the facts and

the law relative to his client’s case cannot meet the

required minimum level.” Herring v. Estelle, 491

F.2d 125, 128 (6th Cir. 1974)

The Eighth Circuit has held that

„. . . trial counsel fails to render effective assist-

ance when he does not exercise the customary skills

and diligence that a reasonable competeni attor-

ney would perform under similar circumstances.”

United States v. Easter, 539 F.2d 663, 666 (8th Cir.

1976)

The Eighth Circuit in Easter held that under the cir-

cumstances present in that case failure of counsel to

question the search and seizure on the Fourth Amend-

ment grounds constituted ineffective assistance of coun-

sel and in so doing observed that it is fundamental to

afford a defendant in a criminal case a fair trial “that

his counsel assert that which may be his only defense.”

(539 F. ad at 666)

Applied to the circumstances of this case, these stand-

ards certainly require a holding that petitioner was

deprived of the effective assistance of counsel. Counsel

for petitioner surely was not familiar with “the law rel-

ative to his client’s case” if he did not know that failure

to raise petitioner’s claim would constitute waiver under

Rule 12(b) of the Federal Rules of Criminal Procedure.

A lawyer not familiar with the rules surely does not fall

“within the range of competence demanded of attorneys

in criminal cases” as required by McMann v. Richard-

son. In this context it should be pointed out that this is

not the type of “waiver” which results from a tactical

decision made during trial not to object to a particular

question or not to raise a particular point in favor of

some other advantage. Rather, the failure to file a

timely motion to dismiss is similar to failure to file a

timely notice of appeal, which has been held to consti-

tute ineffective assistance of counsel. E.g. Kent v. United

States, 423 F.2d 1050 (5th Cir. 1970) It is analogous to

failure to file a personal injury case within the statute

of limitations, which as most lawyers learn in law school

8

is equivalent to a surgeon leaving a sponge in a patient

during an operation.

The failure of counsel for petitioner here to file a

timely motion resulted, as in Easter, in failure of coun-

sel to “assert that which may have been his only de-

fense.” (539 F.2d at 666) The remainder of the two-day

case against petitioner consisted principally of the testi-

mony of alleged accomplices who, if believed, left peti-

tioner with no defense, which is entirely consistent with

counsel’s statement to petitioner that the motion to dis-

miss was the strongest part of the case.

The failure of counsel for petitioner to raise his claims

of vindictive and selective prosecution was compounded

by numerous other errors and omissions which are

detailed above at pp. 1-9 of the statement of the case.

Most notably, counsel for petitioner failed to exploit

inconsistencies in the government’s case and failed to

request an instruction on accomplice testimony in a case

predicated entirely on the testimony of alleged accom-

plices. Counsel also failed to raise other points which

prompted the Court of Appeals to reject them on the

grounds that they were waived.

In sum, this case is also appropriate for certiorari

because it presents the question of effective assistance of

counsel in the context of the court of appeals decision

that petitioner’s strongest defense was waived by failure

of counsel to file a timely motion.

8

CONCLUSION

For the reasons stated above, it is respectfully re-

quested that this petition be granted.

Respectfully submitted,

LOUIS CARBONARO

Carsonaro & CaRBONARO

79 West Monroe Street

Chicago, Illinois 60603

(312) CEntral 6-4722

Attorney for Petitioner

App. 1

APPENDIX 1

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 81-2565

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

Vv.

RONALD JARRETT,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 80 CR 666—Bernard M. Decker, Judge.

ARGUED SEPTEMBER 13, 1982—DECcIDED APRIL 5, 1983

Before WooD and POSNER, Circuit Judges, and DuMm-

BAULD, Senior District Judge.*

Woon, Circuit Judge. This appeal, raising a variety of

issues, arises from a jury conviction under 18 U.S.C.

§ 1951 (“the Hobbs Act”) for the armed robbery of

Alfred’s Orange Blossom Jewelers (“Orange Blossom”) in

Oak Lawn, Illinois, on December 15, 1977. The court

sentenced Jarrett as a dangerous special offender under

18 U.S.C. § 3575 to twenty-five years imprisonment.

* The Honorable Edward Dumbauld, United States Senior

District Judge for the Western District of Pennsylvania, is sit-

ting by designation.

App. 2

I. Jurisdiction

Jarrett asserts that the federal government lacked both

constitutional power and statutory authority to prosecute

him for the robbery of the Orange Blossom. According to

Jarrett, the Hobbs Act does not permit the federal

government to bring a criminal prosecution for a local

robbery of a retail store upon a de minimis showing of

effect on interstate commerce. Jarrett argues that,

although the de minimis standard applies in extortion

cases under the Hobbs Act, a more exacting standard

should apply in robbery cases because of constitutional

limits on the power of the federal government imposed by

the reservation of power to the states to prosecute

traditionally local offenses under the Tenth Amendment.

Jarrett points out that traditionally robbery is a local

offense whereas extortion is not. Thus, Jarrett concludes,

the government failed to establish Hobbs Act jurisdiction

in this case because, “of the $38,952.03 listed stolen, the

Government proved that about $2,000 worth of interstate

commerce was ‘affected,’” a figure which establishes only

a de minimis effect on commerce. An examination of the

statutory language of the Hobbs Act, the legislative

history of the Act, the cases interpreting the Act, and the

cases which examine the Tenth Amendment refute this

position.

Nothing on the face of the Hobbs Act indicates a con-

gressional intent to define the phrase “affects commerce”

more narrowly with respect to the offense of robbery as

opposed to the offense of extortion.? To the contrary, the

1 Although Jarrett cites to the Ninth Amendment, his x 4

ment is essentially a Tenth Amendment argument. Cf. J. Ely,

Democracy and Distrust at 34-41 (1980). In any event, the

Tenth Amendment provides a stronger argument does the

Ninth Amendment.

2 Title 18 U.S.C. § 1951 provides:

2 Whoever in any way or degree obstructs, delays, or

ects commerce or the movement of any article or com-

modity in commerce, by robbery or extortion or attempts

(Footnote continued on following page)

App. 3

statute places robbery and extortion on equal ground

regarding the jurisdictional requirement of affecting

commerce. Such equal placement and treatment provides

strong evidence that Congress intended the use of the

same standard in determining effect on commerce by

robbery or extortion.

The legislative history provides no support for Jarrett’s

contentions. Congress clearly intended to define as a

federal crime conduct that it recognized as punishable

under state law. United States v. Culbert, 435 U.S. 371,

379 (1978). The legislative debates contain numerous

statements to the effect that the conduct reached by the

Hobbs Act was already subject to punishment under

state robbery and extortion statutes.? Representatives

2 continued

or conspires so to do, or commits or threatens physical

violence to any person or property in furtherance of a plan

or purpose to do anything in violation of this section shall

be fined not more than $10,000 or imprisoned not more

than twenty years, or both.

(3) The term “commerce” means. . commerce between

points within the same State through any place outside

such State; and all other commerce over which the United

States has jurisdiction.

8 See, . g. 91 Cong. Rec. 11848 (1945) (remarks of Rep.

Powell) (“Extortion and robbe 1 crimes in all 48 States.“);

id. at 11900 (remarks of Rep. Hancock) (“robbery and extor-

tion, two crimes which are recognized as serious in every State

in the Union.. . . The courts of the States of this 2 have

tried thousands of cases of robbery and extortion.”); id.

11901 (remarks of — Gwynne) (Of course, the state law

prohibits robbe extortion. Unquestionably State in-

dietments could ie been returned against the members of

this union. The fact is, however, such indictments were not

returned. It is a breakdown of law enforcement reminding the

Congress of its duty to protect interstate commerce by the

enactment of this bill.”); id. at 11916 (remarks of Rep. Patrick)

(“If you gentlemen can convince me that any state in the Union

in which these depredations to which reference has been made

(Footnote continued on following page)

App. 4

who opposed the Hobbs Act contended that the Act in-

terfered with the rights of the states.‘ In passing the bill,

however, Congress concluded that “the States had not

been effectively prosecuting robbery and extortion affect-

ing interstate commerce and that the Federal Govern-

ment had an obligation to do so.” United States v. Culbert,

435 U.S. 371, 380. Contrary to Jarrett’s position, Con-

gress perceived both extortion and robbery to be crimes

traditionally subject to state prosecution.

Jarrett cites no case which distinguishes between the

degree to which commerce must be affected for purposes

of invoking federal jurisdiction for a charge of robbery

and for a charge of extortion under the Hobbs Act.

Courts draw no such distinction and require only a de

minimis effect for robbery as well as extortion.

In Stirone v. United States, 361 U.S. 212, 215 (1960), an

extortion prosecution, the Court stated that the Hobbs

Act “speaks in broad language, manifesting a purpose to

use all the constitutional power Congress has to punish

interference with interstate commerce by extortion,

robbery or physical violence.” Reaffirming this view in

United States v. Culbert, 435 U.S. 371 (1978) (extortion

prosecution), a unanimous Supreme Court said:

the statutory language [of the Hobbs Act] sweeps

within it all persons who have “in any way or degree

continued

has not adequate laws to convict people for robbery and for

every one of the things set out here, I will vote for this bill.”);

id. at 11906 (remarks of Mr. Robison) (“The definition of

robbery and extortion set out in this bill . . . are defined in sub-

—_ y the same way by the laws of every State in the Un-

ion.

4 91 Cong. Rec. 11903 (remarks of Rep. Welch); id. at 11848

(remarks of Rep. Powell) (“Mr. Speaker, this is another

ridiculous threat against democracy. It is the more ridiculous

because it comes from the great proponent of States’ rights. Ex-

tortion and robbery are crimes in all 48 States. then

ntlemen of the States’ rights school, do we need Federal

egislation.”).

App. 5

. .affect[ed] commerce... by robbery or extortion.”

... These words do not lend themselves to restrictive

interpretation; as we have recognized, they “mani-

fest ... a purpose to use all the constitutional

power Congress has to punish interference with in-

oe commerce by extortion, robbery or physical

violence.”

Id. at 373.

In a Hobbs Act robbery prosecution, United States v.

Caldarazzo, 444 F.2d 1046 (7th Cir.), cert. denied, 404

IJ. S. 958 (1971), this circuit drew no distinction between

the jurisdictional requirement for robbery and extortion

cases. In Caldarazzo, we ruled that “(t]he Hobbs Act

provides federal sanctions for robbery which ‘in any way

or degree obstructs, or delays, or affects commerce or the

movement of any article or commodity in commerce.’”

Id. at 1048-49.

We have previously held in an extortion case that “the

commerce element [of the Hobbs Act is] satisfied where

the actual impact on commerce is de minimis, .. . or

where, in the absence of proof of an actual impact, there

is a realistic probability that the extortionate transaction

will have some effect on interstate commerce.” United

States v. Hedman, 630 F.2d 1184, 1195 (7th Cir. 1980),

cert. denied, 450 U.S. 965 (1981). Thus, in light of

Caldarazzo and Hedman, we hold that the de minimis

standard applies to robbery cases under the Hobbs Act.

The Eighth Circuit, in Nick v. United States, 122 F.2d

660 (8th Cir.), cert. denied, 314 U.S. 687 (1941), addressed

a Tenth Amendment attack on the validity of the Anti-

Racketeering Act of 1934, ch. 569, 48 Stat. 979, 18 U.S.C.

§§ 420a-420e (the predecessor to the Hobbs Act). In up-

holding the validity of the Act, the court, 122 F.2d at 668,

explained as follows:

The argument as to the Tenth Amendment is that

this Act undertakes to invade State jurisdiction and

deal with domestic violence—in short, is an attempt

to exercise the police power reserved to the States

App. 6

under the Amendment. Clearly this is not true. The

Act is an exercise of 7 power but it is based

upon the protection of interstate commerce. If it

comes within the commerce clause of the Constitu-

tion it is not open to this objection. If it does not come

within the commerce clause it would be invalid

whether it involved an exercise of police power or

not. That the Act is within the commerce clause

seems clear... .

Similarly, the Ninth Circuit in Carbo v. United States,

314 F.2d 718, 733 (9th Cir. 1963) held that the Hobbs Act

is within the power of Congress and does not contravene

the Tenth Amendment.“

Rather than regulate the internal functions of the

states, the Hobbs Act regulates the activities of in-

dividuals. Furthermore, the Hobbs Act does not displace

the states’ freedom to prosecute robberies or extortions.

See generally Bartkus v. Illinois, 359 U.S. 121 (1959)

5 See generally United States v. Darby, 312 U.S. 100, 114

(1941) (“It is no objection to the assertion of the power to

regulate interstate commerce that its exercise is attended by

the same incidents which attend the exercise of the police

wer of the states.”); Hoke v. United States, 227 U.S. 321

1913) (Tenth Amendment challenge to White-Slave Traffie

— Act, ch. 395, 36 Stat. 825 9 United States v.

taszeuk, 517 F.2d 53, 58-59 (7th Cir.) (en ne), cert. denied,

423 U.S. 837 (1975); Gagliardo v. Un States, 366 F.2d 720,

722 (9th Cir. 1966) (18 U.S.C. § 1464 does not violate Tenth

Amendment); Marshall v. United States, 355 F.2d 999, 1004

Cir. 1966) (rejecting Tenth Amendment challenge to 18

S.C. § 1952), cert. denied, 385 U.S. 815 (1966); United States

v. Vignola, 464 F. Supp. 1091, 1099 n.23 (E.D. Pa. 1979) (un-

successful Tenth Amendment attack of RICO, 18 U.S.C. § 1961

oe) af} 4880 605 F.2d 1199 (3d Cir. 1979), cert. denied, 444

See generally United States v. Gi , 445 U.S. 360, 371

17 sery, 426 U.S. 833, 852

6). See also E Employment Opportunity Commission v.

1980

197

1970) Se 51 U.S.L.W. 4219 (March 2, 1983) (narrowly limits

Usery).

App. 7

(Illinois robbery conviction following federal prosecution

and acquittal of bank robbery presents no double jeopar-

dy probiem). The Hobbs Act presents no unconstitutional

intrusion upon the sovereignty of the states and, thus, is a

constitutional exercise of the commerce power.

Il. Jury Instruction on Affecting Commerce Element

Jarrett contends that the district court’s instruction

respecting the necessary element of interstate commerce

was inadequate. According to Jarrett, the instruction

which the trial court gave “improperly delegated to the

jury” the question of law of whether the robbery affected

interstate commerce. Thus, Jarrett argues, the trial court

erred in instructing the jury in terms of the governing

legal standard instead of requiring the jury to determine

only the factual questions supporting a finding of effect

on commerce, such as whether the Orange Blossom store

received jewelry from out-of-state suppliers. Jarrett fears

that the error “diverted the jury from its special office of

* the evidence, and making findings of faet

only.“

United States v. Kuta, 518 F. 2d 947, 951-52 (7th Cir.) (a

Hobbs Act case), cert. denied, 423 U.S. 1014 (1975), and

United States v. Sweet, 548 F.2d 198, 202 (7th Cir. 1977)

(18 U.S.C. § 844(i)), cert. denied, 430 U.S. 969 (1978), held

that the court determines as a jurisdictional matter

whether interstate commerce has been affected and the

jury finds whether the underlying facts exist. On the

issue of the requisite nexus to commerce, the district

judge in this case instructed the jurors:

Now, the defendant is charged, in effect, with the

crime of obstructing, delaying and affecting in-

terstate commerce by knowingly and willfully and

unlawfully committing robbery... .

R = **

Now, the term commerce“ means all commerce

— any point in the state and any point outside

thereof.

App. 8

The robbery here need only have a minimal effect

on commerce and it is not necessary for you to find

that the defendant knew or intended that his actions

would in any way affect commerce, it is only

necessary that the natural consequences of the acts

committed by the defendant charged in the indict-

ment was to affect commerce in any way or degree.

Record at 367-68.’

In dicta, we approved a similar instruction pertaining

to the element of commerce under the Hobbs Act in

United States v. Staszcuk, 517 F.2d 53, 55 n.6, 59 (7th Cir.)

(en banc), cert. denied, 423 U.S. 837 (1975). Moreover, no

prejudice resulted to Jarrett because the underlying

jurisdictional facts were not controverted. In any event,

Jarrett failed to object to the instruction at trial. Fed. R.

Crim. P. 52(a).

III. Selective Prosecution

Jarrett also raises a claim of selective prosecution.’ He

argues that it is not a claim which must be raised in a

pretrial motion under Rule 12(b) of the Federal Rules of

Criminal Procedure’ and, therefore, that he did not waive

In United States v. Stubin, 446 F.2d 457, 465 (3d Cir. 1971),

the Third Circuit examined a similar instruction and conclud-

ed that no plain error resulted.

Although Jarrett also claims vindictive prosecution, this

claim fails since vindictive prosecution has as its basis an in-

crease in charges or a new prosecution allegedly brought in

retaliation for the exercise of constitutional rights. Here there

is a hp prosecution, and no increase in charges. Jarrett ap-

1 77 1 to equate his appearance as a witness before

the 197 1978 grand jury with a criminal proceeding against him

veg: This, however, is not the type of situation that falls

within the perimeters of a vindictive prosecution defense.

Blac v. Perry, 417 U.S. 21 (1974); United States v. Wilson,

639 F.2d 500 (9th Cir. 1981).

Rule 12(b) provides:

Pretrial Motions. Any defense, objection, or

which is capable of determination without the trial o the

general issue may be raised before trial by motion. Motions

(Footnote continued on following page)

App. 9

that defense by failing to file his motion until after the

completion of the trial. We disagree.

It seems clear that a request for dismissal based on

selective prosecution must be raised before trial. United

States v. Taylor, 562 F.2d 1345, 1356 (2d Cir.), cert.

denied, 432 U.S. 909 (1977); United States v. Oaks, 508

F.2d 1403, 1404-05 (9th Cir. 1974), cert. denied, 426 U.S.

952 (1976). In order to gain an evidentiary hearing on the

issue of selective prosecution, the defendant must make a

prima facie case based on facts “sufficient to raise a

reasonable doubt about the prosecutor’s purpose.” United

States v. Falk, 479 F.2d 616, 620-21 (7th Cir. 1973). To do

this, the defendant must show (1) that the prosecutor

engaged in intentional discrimination based on an imper-

missible consideration, such as race, religion, or exercise

of constitutional rights, United States v. Peskin, 527 F.2d

71, 86 (7th Cir. 1975), cert. denied, 429 U.S. 818 (1976),

and (2) that “[wJhile others similarly situated have not

generally been proceeded against because of conduct

forming the basis of the charge against him, he has been

singled out for prosecution.” United States v. Berrios, 501

F. 2d 1207, 1211 (2d Cir. 1974). These issues bring into

question the institution of the prosecution; Rule 1Ab) re-

quires such issues to be raised prior to trial. The suf-

continued

may be written or oral at the discretion of the judge. The

following must be raised prior to trial:

(1) Defenses and objections based on defects in the in-

stitution of the prosecution; or

(2) Defenses and objections based on defects in the in-

dictment or information (other than that it fails to show

jurisdiction in the court or to charge an offense which

objections shall be noticed by the court at any time dur-

ing the pendency of the proceeding); or

(3) Motions to suppress evidence; or

(4) Requests for discovery under Rule 16; or

(5) ee for a severance of charges or defendants

under Rule 14.

Fed. R. Crim. P. 12(b).

App. 10

ficiency of these showings can, in the majority of cases, be

determined without trying the general issue, which in

this case was whether Jarrett was involved in the Orange

Blossom robbery in violation of the Hobbs Act.

While it is suggested in United States v. Wilson, 639

F.2d 500, 506 (9th Cir. 1981) (Real, J., concurring), that a

selective prosecution defense may require a full trial in

order to develop the relevant facts, this is allowed for

within the pretrial motion scheme, by Rule 12(e).!° The

court may, for “good cause,” defer decision of a con-

stitutional objection if production of evidence will clarify

the issue, or if factual uncertainties require “trial of any

nontrivial part of ‘the general issue... United States v.

Barletta, 644 F.2d 50, 57-58 (Ist Cir. 1981) (emphasis

in original); Wright, Federal Practice and Procedure:

Criminal 2d § 194. The stringency of the time re-

quirements are similarly softened by Rule 12(f) which

allows the trial judge to relieve a defendant of his waiver

“for cause shown.” The policies behind restricting the

time for making a motion for dismissal based on selec-

tive prosecution are well served by Rule 12(b), while

arguments against including selective prosecution in

those motions covered by 12(b) are mitigated by the

deferral and waiver relief provisions of Rules 12(e) and

(f). The district court was correct in finding that Jarrett

waived his selective prosecution motion by failure to file

until two months after trial. We need not reach the issue

of whether Jarrett could have been relieved of his waiver,

10 Rule 12(e) provides:

Ruling on Motion. A motion made before trial shall be

determined before trial unless the court, for good cause

orders that it be deferred for determination at the trial of

the general issue or until after verdict, but no such deter-

mination shall be deferred if a party’s right to appeal is

adversely affected. Where factual issues are involved in

determining a motion, the court shall state its essential

findings on the record.

Fed. R. Crim. P. 12(e).

App. 11

since he never requested such relief from the district

court.!!

IV. New Trial

Jarrett claims entitlement to a new trial, citing as

grounds (1) new evidence or perjured testimony, (2)

government withholding of discovery materials, (3)

rebuttal on a collateral matter, and (4) admission of hear-

say.'2 Pursuant to Rule 33 of the Federal Rules of

Criminal Procedure, a court may grant a new trial toa

defendant “if required in the interest of justice.“ After

reviewing the record and the parties’ arguments, we are

convinced that the interest of justice does not require a

new trial.

Jarrett argues that “the jury never heard a critical

change in the testimony of his coconspirator, Brown,

1 Jarrett’s final argument that the government “waived”

recourse to Rule 12(f) by responding on the merits to Jarrett’s

post-trial motion is completely without merit.

Jarrett also contends that because the arrangements

between the government and his coconspirators, Willis and

Brown, were not binding upon the government prior to testify-

ing, Brown and Willis had a reason to lie. Although this

provides an argument to present to the jurors, it is frivolous to

contend it provides a basis for a new trial.

1 Rule 33 provides:

The court on motion of a defendant may grant a new trial

to him if required in the interest of justice. If trial was by

the court without a jury the court on motion of a defendant

for a new trial may vacate the judgment if entered, take

additional testimony and direct the entry of a new judg-

ment. A motion for a new trial based on the ground of new-

ly discovered evidence may be made only before or within

two years after final judgment, but if an appeal is —s

the court may grant the motion only on remand of the case.

A motion for a new trial based on any other grounds shall

be made within 7 days after verdict or finding of guilty or

within such further time as the court may fix during the 7-

day period.

Fed. R. Crim. P. 33.

App. 12

which occurred subsequent to trial.” Thus, the jury lacked

an important factor in evaluating Brown’s credibility.

At trial, Jarrett’s counsel asked Brown the following

questions and received the following answers:

Q. Isn't it a fact, Mr. Brown, that you didn’t see

Ronald Jarrett on December 15, 1977, until after the

Orange Blossom robbery had been concluded and ac-

complished?

A. No.

Q. Isn’t that a fact?

A. No, it is not.

Q. Would you lie to help yourself, sir?

A. No, I would not.

Subsequently, at the sentencing hearing, counsel asked

Brown about his parole release in 1968. Brown admitted

that he obtained a regular job, not because he wanted

or intended to live a law-abiding life, but because it

was a “necessity to get out on parole.” When asked if he

— lie to help himself, Brown answered, I probably

would.“ “

Contrary to Jarrett's position, we detect no ser ious con-

flict in Brown’s testimony. In the first passage, Brown

denied that he was lying about Jarrett’s participation in

the robbery in order to help himself. In the second

passage, Brown admitted that he would lie on certain oc-

casions, such as obtaining his parole release. Further-

more, during the trial, Brown admitted to lying on a sub-

ject more pertinent to the case, stating that he lied to a

4 Counsel then asked Brown the following questions and

Brown gave the following responses:

Q. Right. In fact, the more serious the matter the more

you lie, isn’t that right?

A. No, not really.

Q. If it means going to jail, for example, Mr. Brown,

you will lie, won’t you?

A. No.

Q. You won't?

A. No.

App. 13

special agent who was investigating the robbery. The

1 therefore, heard Brown admit that he sometimes

ied. Finally, accepting Jarrett’s contentions arguendo,

Brown’s testimony at the sentencing hearing does not

meet the test for granting a new trial based on newly dis-

covered evidence, United States v. Hedman, 655 F.2d 813,

814 (7th Cir. 1981), or based on perjured testimony,

Larrison v. United States, 24 F.2d 82 (7th Cir. 1928).

Newly discovered evidence, to be grounds for a new

trial, must be “material, and not merely impeaching or

cumulative.” Hedman, 655 F. 2d at 814 (emphasis added).

Here, Brown’s testimony is merely impeaching, at best.“

For perjured testimony to form the basis for a new

trial, the court must be reasonably convinced that the

testimony given by a material witness is false and that

the jury might have reached a different conclusion had

the truth come to light. United States v. Robinson, 585

F.2d 274 (7th Cir. 1978) (en banc), cert. denied, 441 U.S.

947 (1979); Larrison v. United States, 24 F.2d 82 (7th Cir.

1928). Brown’s statement at the sentencing hearing does

not convince us that he was lying while testifying at

Jarrett’s trial. Moreover, the fact that Brown lied at his

parole hearing would not impress the jury to reach a

different verdict because Brown already admitted to

them that he lied to the special agent.

Jarrett claims that the government withheld certain

documents necessary for the defense to impeach

witnesses for the prosecution. Unfortunately, Jarrett does

not describe in particulars the nature of the documents

he sought to discover.“ The district court restricted dis-

covery to “any statements of the witnesses that might be

1 Under no stretch of the imagination can Brown be deemed

to have recanted his testimony at trial. 8A Moore’s Federal

Practice 33.05 (2d ed. 1982).

1 Although Jarrett's argument alludes to a curtailment on

impeachment in the nature of prior convictions and mi .

a thorough study of the transcript of the district court

proceedings reveals no such limitations.

App. 14

usable for impeachment purposes, but not every state-

ment made by witnesses regarding Jarrett.” In clarifica-

tion, the court ruled, and we agree, that simply because a

witness has accused Jarrett of committing another crime

does not mean the witness is biased.’ Moreover, even if

evidence that prosecution witnesses accused Jarrett of

other crimes indicates bias, such evidence would be

cumulative since the witnesses in question here were

already accusing Jarrett of the Orange Blossom robbery.

There is no indication or suggestion that the witnesses

were accusing Jarrett of crimes so great in number as to

connote prejudice or bias. The district court did not err,

let alone abuse its discretion, by denying discovery. See

generally United States v. Watson, 669 F.2d 1374, 1384

(11th Cir. 1982); 10 Fed. Proc., L. Ed. § 26:403 (1982).

Jarrett claims that he was improperly impeached on a

collateral matter. At trial he testified that when he was

visited by ATF agents in April of 1978 (about four

months after the robbery), he did not have any police

scanners or walkie-talkies in his home. In rebuttal, an

ATF agent testified, over objection, that when he went to

Jarrett’s home on April 20, 1979, he found walkie-talkies.

A matter is collateral if the impeaching fact could not

have been introduced into evidence for any purpose other

than contradiction. 3 Weinstein’s Evidence 1607 at 607-

64 (1981). We agree with Jarrett that proof of possession

of walkie-talkies sixteen months after the crime was com-

mitted is collateral. However, this impeachment resulted

in harmless error beyond a reasonable doubt. Fed. R.

Crim. P. 52(a); Fed. R. Evid. 103(a); Chapman v. Califor-

nia, 386 U.S. 18 (1967). The remoteness in time and lack

of relevance should have been obvious to the jurors.

Possessing walkie-talkies is hardly inflammatory.

» Nor is it “evidence favorable to an accused . . . material

either to guilt or to punishment” which must be disclosed ac-

580 the Supreme Court’s decision in Brady v. Maryland,

373 U.S. 83, 87 (1963).

App. 15

Jarrett challenges the instruction given by the court

relating to the rebuttal testimony.!“ At trial, defense

counsel raised no objection; rather, counsel specifically

approved the instruction. Tr. 360 (“That’s fine, your

onor, that’s good.”). We do not consider the instruction

to constitute plain error. Fed. R. Crim. P. 52; Fed. R.

Evid. 103(d). Rather, it appears to be an agreed upon

stipulation as to the date of the agents’ visit!“ and a

limiting instruction designed to eliminate any prejudice

to Jarrett.

Jarrett’s final ground for a new trial—improperly ad-

mitting hearsay—is frivolous, not meriting detailed dis-

cussion. According to Jarrett’s contention, the district

court erroneously concluded that “the Government had

established a joint venture” between Rodriguez, Jarrett,

Brown, and Willis such that statements made by the now

deceased Rodriguez were not hearsay under Federal

Rule of Evidence 801(d\2XE). The independent evidence

of the conspiracy was more than sufficient to meet the

preponderance test adopted in United States v. Santiago,

582 F.2d 1128, 1135 (7th Cir. 1978). Willis and Brown

both testified to the participation of the four in the crime,

and to various admissions by Jarrett, Fed. R. Evid.

18 The district court then instructed the jurors:

Now, there was some evidence introduced that the defen-

dant had possession of certain electronic equipment on the

occasion of the visit of certain agents to his e. Defen-

dant has denied that he had any such equipment on the oc-

eas ion of the visit. The date of such visit has now been es-

tablished as having taken place in April of 1979. The

evidence is to be considered by you only insofar as it may

affect the credibility of the defendant. It must not be con-

sidered by you as evidence of the guilt of the defendant of

the crime for which he is on trial.

Jarrett claims the district court erred in using the date

1979 in the instruction. However, defense counsel, in closing

argument, said, “And [Jarrett] was cross-examined about

something that happened in 1979, . did he have some walkie-

talkies .. in his house.” Tr. 344.

App. 16

801(dX2)A). Their testimony clearly established that

Rodriguez was a coconspirator of Jarrett’s within the

meaning of United States v. Gil, 604 F.2d 546 (7th Cir.

1979). Furthermore, Jarrett failed to object to the admis-

sion of Rodriguez’s statements at trial.

V. Sentencing

Jarrett attacks his sentence imposed under the

dangerous special offender statute, 18 U.S.C. § 3575,

arguing that the district court’s findings concerning

“dangerousness” are not supported by the record and are

clearly erroneous, that the court abused its discretion in

relying upon the witness Mara and the police reports for

corroboration of the witness Brown’s testimony, and that

the court erred in not explaining “why a twenty five

year sentence is required when the maximum under

the statute is twenty years.” We find Jarrett’s claims

meritless.

Jarrett contends the finding of dangerousness to be un-

supported by the record because Brown’s testimony is in-

credible. As the finder of fact in the sentencing hearing,

however, the court was entitled to accord such weight as

it saw fit to Brown’s testimony. United States v. Inendino,

604 F.2d 458, 463-64 (7th Cir.), cert. denied, 444 U.S. 932

(1979); United States v. Williamson, 567 F. 2d 610, 615-16

(4th Cir. 1977). Additionally, Brown’s testimony was cor-

roborated by Mara’s testimony and by the police records.

Jarrett complains that Mara did not testify as to his

personal knowledge concerning Jarrett’s participation in

a burglary of a Jewel grocery store and other incidents.

Pursuant to Rule 1101(dX3) of the Federal Rules of

Evidence, the Rules do not apply in sentencing hearings.

Thus, the Rules relating to hearsay do not apply. A judge

may properly conduct a broad inquiry, “largely un-

limited either as to the kind of information he may con-

sider, or the source from which it may come.” United

States v. Tucker, 404 U.S. 448, 446 (1972). Hearsay

evidence is admissible in sentencing proceedings, in-

cluding dangerous special offender proceedings. United

App. 17

States v. Inendino, 604 F.2d 458, 463 (7th Cir.), cert.

denied, 444 U.S. 932 (1979).

Similarly, regarding Jarrett’s claim of lack of authen-

tication, Rule 901 of the Federal Rules of Evidence is in-

applicable. In particular, however, Jarrett points out that

the FBI agent at the sentencing hearing did not make

copies of the police reports himself, or compare them

with the originals for accuracy. However, the copies in

question were xeroxes of the original—“admissible to the

same extent as an original” under Rule 1003 of the

Federal Rules of Evidence, unless “a genuine question is

raised as to the authenticity of the original.” Fed. R.

Evid. 1003. Thus, even if the Rules applied, the fact that

the agent did not make the xerox or conform it with the

original would make no difference. Although defense

counsel called the accuracy into question in form, he did

not do so in substance. Further, the district court assured

Jarrett he would consider the reports “with a grain of

salt,” and would consider them for the “limited purpose

of .. . determining whether or not there is any corrobora-

tion in this record as to the testimony given by Brown.”

Tr. 343-44.

Finally, Jarrett contends that the district court erred

in failing to explain its findings concerning “dangerous-

ness” under 18 U.S.C. § 3575(f). “A defendant is dan-

gerous” under Section 3575(f) “if a period of confine-

ment longer than that provided for such felony is re-

quired for the protection of the public from further

criminal! conduct by the defendant.” 18 U.S.C. § 3575(f).

In United States v. Neary, 552 F.2d 1184, 1193 (7th Cir.),

cert. denied, 434 U.S. 864 (1977), we noted that a trial

court must make additional factual determinations of

“special” and “dangerous” after a verdict of guilty to sup-

port the imposition of a sentence longer than the max-

imum sentence normally applicable to the crime. A find-

ing of dangerousness under Section 3575(f) involves an

evaluation of the defendant’s character and a prediction

of future criminal conduct, “matters which are tradi-

oy Pe to [the] wide discretion of a sentencing

court.”

App. 18

Contrary to Jarrett’s contention, the district court ex-

plained its findings concerning dangerousness. The

court’s explanation is in accord with the construction of

Section 3575(f) in Neary. The district court said,

[This defendant was in charge of an operation

and he was the mastermind behind it, he was the

organizer of it and he was the one who determined

after the Orange Blossom robbery took place who

was going to get what....

But in addition to that .. this defendant has, asa

juvenile, two arrests, on 58 different occasions he has

been arrested as an adult. He had two convictions as

a juvenile. There were 13 as an adult.

R *

Now, when this information was finally collected

... the government apparently decided . . . that socie-

ty needed some kind of better protection from the con-

tinuance of this criminal enterprise in which the

defendant was engaged and .. . the only way in

which he was making his living.

... [I]t is clear to me from this record, without any

question, that this defendant has been a professional

criminal all of his adult life and he qualifies beyond

question as a dangerous special offender... .

.. [V pur past record also indicates to me that

probation and parole are terms which, apparently,

have little meaning for you.

Thus, the district court found Jarrett to be dangerous to

society because of his criminal life-style.2° As the trial

court judge clearly articulated the reasoning behind his

decision in finding Jarrett to be dangerous, we hold that

2 Jarrett also alleges that the district court failed to com-

eae se the lan of Section 3575(f). This contention is

ivolous. The record reflects a clear understanding of the

statute by the district court.

App. 19

the district court did not abuse its discretion. United

States v. Madison, 689 F.2d 1300 (7th Cir. 1982).

VI. Ineffective Assistance of Counsel

Jarrett’s final claim is that he did not receive effective

assistance of counsel as guaranteed by the Sixth Amend-

ment. Jarrett makes numerous allegations respecting

this claim, ranging from failure to timely file a motion

asserting selective prosecution to failure to object to the

introduction of certain evidence. As relief, Jarrett re-

quests this court to reverse and remand for a new trial

or, in the alternative, to remand for a hearing on the in-

effective assistance of counsel claim.

This claim is not properly before us. Just prior to

sentencing, Jarrett filed a bare motion asserting ineffec-

tive assistance of counsel. The district court denied it. At

a subsequently held hearing ont motion alleging

denial of effective assistance, the district court indicated

that it would permit defense counsel to file affidavits in

support of this motion, would allow briefing, and then

would reconsider its prior ruling. In response, however,

defense counsel indicated he preferred not to address the

issue further, opting instead to seek collateral relief pur-

suant to 28 U.S.C. § 2255 if this court did not rule

favorably on appeal. We believe defense counsel’s original

inclination is correct. As we stated in United States v.

Lang, 644 F.2d 1232, 1240 (7th Cir.), cert. denied, 454

U.S. 870 (1981):

First, this type of allegation is more appropriately

dealt with by the district court. Procedurally,

several vehicles are available, including Rule 33 of

the Fed.R.Crim.P., Motion for a New Trial, or the

collateral relief available to federal prisoners under

28 U.S.C. § 2255. Second, examination of the record

does not provide clear evidence of the ineffective

assistance of counsel, the failure alleged being those

of litigation strategy. Nor do we have the im-

pressions and findings of the district judge to guide

us.

App. 20

For the foregoing reasons, the judgment of the district

court is affirmed.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 21

APPENDIX 2

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

June 8, 1983.

Before

Hon. HARLINGTON WOOD, JR., Circuit Judge

Hon. RICHARD A. POSNER, Circuit Judge

Hon. EDWARD DUMBAULD, Senior District Judge*

No. 81-2565

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

U.

RONALD JARRETT,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 80 CR 666—Bernard M. Decker, Judge.

ORDER

On consideration of the petition for rehearing and

suggestion for rehearing in banc filed in the above-

entitled cause by the defendant-appellant, no judge in ac-

tive service has requested a vote thereon, and all of the

judges on the original panel have voted to deny a rehear-

ing. Accordingly,

IT Is ORDERED that the aforesaid petition for rehearing

be, and the same is hereby, DENIED.

* The Honorable Edward Dumbauld, United States Senior

District Judge for the Western District of Pennsylvania, is sit-

ting by designation.

App. 22

APPENDIX 3

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Docket No. 80 CR 666-1

United States of America vs.

Ronald Jarrett, Defendant

COUNSEL:

In the presence of the attorney for the government the

defendant appeared in person on this date, September 17,

1981, with counsel John W. Conniff.

PLEA:

Not guilty.

FINDING & JUDGMENT:

There being a verdict of guilty. Defendant has been

convicted as charged of the offenses of knowingly, will-

fully and unlawfully committing robbery, obstructing,

delaying and affecting commerce and unlawfully ob-

taining property by means of actual and threatened

force, violence and fear of injury, immediate and future,

to persons and property in their custody and possession;

In violation of Title 18, U.S.C. Sec. 1951.

SENTENCE OR PROBATION ORDER:

The court asked whether defendant had anything to

say why judgment should not be pronounced. Because no

sufficient cause to the contrary was shown, or appeared

to the court, the court adjudged the defendant guilty as

charged and convicted and ordered that: The defen-

dant is hereby committed to the custody of the Attorney

App. 23

General or his authorized representative for imprison-

ment for a period of Twenty Five (25) Years as dangerous

special offender within the meaning of Title 18, U.S.

Code 3575(e)(1) and 3575(f).

/s/ Bernard M. Decker

U.S. District Judge

Date September 17, 1981