Petition — Moore v. United States

FILED

33-1350 FEB 18 1984

No. ALEXANDER \ STEVAS.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

FEBRUARY TERM, 1984

UNITED STATES OF AMERICA, RESPONDENTS

VS.

ba KENNETH E. MOORE, III and

KENNETH E. MOORE, JR., PETITIONERS

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

FROM THE UNITED STATES COURT OF APPEALS

IN AND FOR THE SECOND CIRCUIT

KENNETH P. RAY and

ANTHONY J. LaFACHE, P.C.

Attorneys for Petitioner

213 Rutger Street

Utica, New York 13501

(315) 733-2355

Anthony J. LaFache, Esq.,

of counsel

TO: UNITED STATES ATTORNEY

® NORTHERN DISTRICT OF NEW YORK

369 Federal ——

a i osgett New York 13260

(315) 423-5165

John J. McMann, Esq.

Joseph A. Pavone, Esq.,

of counsel

QUESTIONS PRESENTED FOR REVIEW

“ 1. Whether the misconduct of the Assistant

United States Attorney committed during the

prosecution of this case so violated the

defendants’ constitutional rights so as to

a warrant a dismissal of the indictment.

2. Whether it was incumbent upon the defen-

dants in this case to prove prejudice as a

result of such misconduct.

: TABLE OF CONTENTS

: Page

eae ee ee es oe es ee

: Se er are es

Constitutional and statutory

~° provisions involved ena

Statement bid 60 Rie ose ace, 6 eee

Reasons for granting the petition ....

Conclusion ae we te ae ed eee

oS ss. 6 ee eke) 0 ee ace ee

| Appendix B a. "e. ibis 6: apa ta cecee ae ache :

Ee

a?

TABLE OF AUTHORITIES

Cases: Page

Berger v. U.S. 295 U.S. 78 (1935). .... 6

, Black v. U.S. 385 U.S. 26 (1966) ..... ll

Coplon v. U.S. 191 F.2d 749 (D.C. Cir.,

. 1951)... il

Gideon v. Wainright 372 U.S. 335 (1963). . 10

Mooney v. Holohan 294 U.S. 103 (1964). . . 6

O'Brien v. U.S. 386 U.S. 345 (1967) .. . 11,12

U.S. v. Agurs 427 U.S. 97 (1975). .... 6

U.S. v. Bess 593 F.2d 749 (6th Cir.,1979). 6

U.S. v. Estepa 471 F.2d 1132 (2d Cir. ,1972) 6

U.S. v. Fields 592 F.2d 638 (2d Cir.,1978). 6,7,8

U.S. v. Jacobs 531 F.2d 87 (2d Cir.,1976) . 6

U.S. v. Morrison 101 S. Ct. 665 (1981) . .. 12

_ Weatherford v. Bursey 529 U.S. 545 (1977).. 11,12

Constitution, statutes and regulation:

United States Constitution:

iy’ Sinth Amendment... «5... 008s ws ee un eR Be

be 10,11,12

ee U.6.6.°.125401). ae. ee

IN THE SUPREME COURT OF THE UNITED STATES

FEBRUARY TERM, 1984

No.

UNITED STATES OF AMERICA, RESPONDENT

vs.

KENNETH E. MOORE, III and

KENNETH E. MOORE, JR., PETITIONERS

JOINT PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

Petitioners, Kenneth E. Moore, III and

Kenneth E. Moore, Jr., were jointly indicted

and tried in the United States District Court

in and for the Northern District of New York.

Petitioners appealed their judgment of convic-

tion to the United States Court of Appéals in

and for the Second Circuit.

Petitioners herein filed a Joint Petition 8

for a Writ of Certiorari to review the Order Be,

and Opinion of the United States Court of a

Appeals for the Second Circuit entered December b

15, 1983. | y

=e

OPINIONS BELOW

The opinion rendered by the District Court

was on a pretrial motion to dismiss the indict-

ment; this opinion, not reported, is reproduced

and set forth in Appendix B to this Petition.

The opinion and order of the Court of Appeals,

also unreported, is reproduced and set forth in

Appendix A to this Petition.

JURISDICTION OF THIS COURT

The Order and Opinion of the United States

Court of Appeals for the Second Circuit was

entered on December 15, 1983 (Appendix A, infra).

The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. The Sixth Amendment to the United States

Constitution provides as follows:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

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district wherein the crime shall have been com-

mitted, which district shall have been previously

ascertained by law, and to be informed of the

nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have

compulsory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel

for his defense.

STATEMENT OF THE CASE

The Constitutional questions sought to be

reviewed here were raised in the United States

District Court in and for the Northern District

of New York by Petitioners’ timely pretrial

motion to dismiss the indictment. In this

motion, petitioners averred that their Fourth,

Fifth and Sixth Amendment United States Consti-

tutional rights were violated when the Assistant

United States Attorney assigned to prosecute the

case wrongfully obtained, reviewed, copied,

_ withheld, and failed to disclose his possession

of a carton of documents which contained defense

material consisting of correspondence between

defendants and defendants’ attorneys; chatts and

summaries prepared by the defense team in prepar-

ation for trial; and memoranda prepared by the

defense team containing defense trial strategy.

The motion was submitted and argued and a

hearing on the issue was held in District Court.

The District Court judge denied the motion to

dismiss the indictment. A trial was held in

District Court in November and December of 1982.

Petitioners were found guilty of a portion of

the counts on the indictment. Petitioners

filed a Notice of Appeal with the United States

Court of Appeals for the Second Circuit. The

Second Circuit rendered a decision and order

duly filed on December 15, 1983.

REASONS FOR GRANTING THE WRIT

I

THE DECISION BELOW CONFLICTS

WITH DECISIONS OF FEDERAL

COURTS ON IMPORTANT ISSUES

AFFECTING FEDERAL CONSTITU-

TIONAL RIGHTS.

This very Court has long held that a prose-

cutor must adhere to high standards and princi-

ples and further that prosecutorial misconduct

May merit reversal or dismissal when a defendant

is deprived of a constitutional right. Berger

v. United States 295 U.S. 78 (1935). Federal

Courts have dismissed indictments both prior to’

and during criminal trials because of prosecu-

torial misconduct. U.S. v. Agurs 427 U.S. 97

(1975); Mooney v. Holohan 294 U.S. 103 (1934);

U.S. v. Bess 593 F.2d 749 (6th Cir., 1979);

U.S. v. Fields 592 F.2d 638 (2d Cir., 1978);

U.S. v. Jacobs 531 F.2d 87 (2d Cir., 1976);

U.S. v. Estepa 471 F.2d 1132 (2d Cir., 1972).

The Second Circuit in Fields held:

“The extreme sanction of dismissal

of an indictment is justified in

order to achieve one or both of two

Se

Tat ot P ee 7 ' wuts -Aed

aA Jie - ne et. ) beats ane .

‘dat SS arr re een y 2), wee ee eS erg yet Fe ie aly Ce A ge ia

“objectives: first, to eliminate

prejudice to a defendant in a crim-

inal prosecution, second, to ‘help

translate the assurances of U.S.

attorneys into consistent perform-

ance by their assistants.'"

The facts are undisputed and uncontroverted.

The prosecution took, reviewed, copied and with-

held defense material. The prosecution failed

to disclose its possession of this material

until queried by the defense. The Second Circuit

in its decision held:

“The most troublesome issue on this

appeal arises out of the retention

by the prosecution of certain docu-

ments belonging to the defendants

or their companies without notifica-

tion to defense counsel. Although

we affirm the judgments of conviction,

this should not be taken as an

indication that we condoiie what

occurred. We do not. We are per-

suaded only in part by Chief Judge

Munson's finding that ‘there was

, no deliberate or intentional mis-

conduct on the part of the prosecu-

tor.’ Of greater significance is

Judge Munson's finding that appel-

lants were not prej ced by t

prosecution's conduct. Had prejudice

ocaurred, action by this Court might

have been more drastic than the

criticism implicit in the foregoing

discussion."

The Second Circuit based its decision on

the District Court's finding of no prejudice

to the Petitioners. This decision, however,

conflicts with the standard set forth in the

Fields case. Fields set forth two alternate

standards or reasons for dismissing indictments

due to prosecutorial misconduct. Only the first

standard related to a finding of prejudice. The

second related to the transmission of the concept

of fairness and fair play to United States

Attorneys when necessary. The Second Circuit

in this case never addressed this standard and

as such, its decision conflicts with Fields.

This case is most assuredly one where based

on the conduct of the prosecutor, dismissal was

warranted to inform the prosecutor that such

conduct will not be tolerated. The prosecutor

possessed defense material for over four months.

The material was prepared by the defense for

trial. The material in most instances was

addressed to defense attorneys. The prosecution

read all these documents and copied them. The

prosecution, while knowing full well that the

material was defense material, never disclosed

to the defense that it possessed these records.

Worse yet, the prosecution testified at a pre-

trial hearing that it gained new information

from a thorough review of these records and

planned to use some of this information against

the Petitioner, Kenneth E. Moore, Jr., if and

when he testified.

The Second Circuit should have granted the

relief requested by the Petitioner. It is

respectfully prayed that this Court review the.

misconduct of the prosecutor. Unless settled

principles of prosecutorial self-restraint are

to be disregarded, this serious error of the

Second Circuit ought not to go uncorrected by

this Court.

» istration of justice. The Petitioners did not

It

THIS CASE PRESENTS EXTREMELY

IMPORTANT FEDERAL CONSTITU-

TIONAL ISSUES WHICH SHOULD

BE DECIDED BY THIS COURT.

The Sixth Amendment of the Constitution of

the United States guarantees the Petitioners’

right to a fair trial. Gideon v. Wainright 372

U.S. 335 (1963).

The Petitioners could not have received a

fair trial once the prosecution had the defense

material in question. A review by this Court

of the entire proceeding will substantiate this

statement. The basic concept of our judicial

system is fair play. The test of our system

of legal jurisprudence should be measured by

the interest we take in safeguarding the funda-

mental rights of the accused. A defendant is

entitled to a fair determination of his guilt.

Fair trials ensure our concern with due process

and contribute to what is the only proper admin-

receive a fair trial and dismissal was the only 4g

i

ie

-10- ae

;

way to prevent the undermining of mockery of

justice.

The Sixth Amendment of the United States

Constitution also guarantees the right of

private commmication with counsel. Weather-

ford v. Bursey 529 U.S. 545 (1977); O'Brien v.

U.S. 386 U.S. 345 (1967); Black v. U.S. 385 U.S.

26 (1966); Coplon v. U.S. 191 F2d 749 (D.C. Cir., |

1951).

The balance of forces as between accuser

and accused is sharply askewed in favor of the

accuser if the government is permitted to dis-

cover defense strategy and evidence.

The United States Supreme Court addressed

this very issue in Black v. U.S. 385 U.S. 26

(1966). In Black, the government obtained

information from attorney-client conferences

which were later reduced to memoranda for the

prosecuting attorneys. The Court held that this

intrusion was a violation of the defendant's

Sixth Amendment right sufficient to vacate the

conviction.

In O'Brien v. U.S. 386 U.S. 345 (1967), the

Supreme Court vacated the defendant's conviction

due to the government's intrusion into an

attorney-client communication which violated

the defendant's Sixth Amendment right.

In Weatherford v. Bursey 529 U.S. 545 (1977)

the Court recognized that an intrusion into the

privilege can unfairly advantage the prosecution

and threaten to subvert the adversary system

of criminal justice. The Court held that

when material or evidence gained from the

intrusion is passed on to the prosecution and

has produced directly or indirectly any of the

evidence offered at trial, the conviction must

be vacated.

The United States Supreme Court in U.S. v.

Morrison 101 S. Ct. 665 (1981), held that where

there has been an intrusion by the government

into the attorney-client privilege in violation

of the defendant's constitutional rights, the

indictment may be dismissed upon a showing of

prejudice. The intrusion in question resulted

-12-

in the Assistant United States Attorney and his

entire investigative force discovering defense

strategy and privileged communications. This

intrusion has prejudiced the defendant in that

it has become impossible to restore the defendant

to his position prior to the intrusion. One

cannot reach into the minds of the Assistant

United States Attorney and his investigative

force and remove the knowledge gained by the

intrusion. The intrusion so tainted the defen-

dant's right to a fair trial that dismissal was

the sole remedy.

III

THIS CASE PRESENTS AN IMPOR-

TANT ISSUE WHICH SHOULD BE

SETTLED BY THIS COURT.

It is respectfully submitted that the Second

Circuit determined that the prosecution in this

+ case committed acts of misconduct in connection

with the defense material in question. The

Second Circuit specifically criticized the

conduct of the prosecution and noted that the

result of the Appeal might have been different

upon an express showing of prejudice by the

petitioners. The Second Circuit apparently

relied upon exising case law which at least

in part seems to require a showing of prejudice

when prosecutorial misconduct is alleged.

Petitioners respectfully urge thig Court ’

that they should not, in instances such as this,

be required to show prejudice to the Court. It

a is extremely inequitable to place the burden of 5

proof concerning prejudice on the Petitioners.

This court, upon a review of the factual situ-

- ation herein, should establish new law requiring

vat ike

the prosecution to prove that no prejudice

resulted from a review of the records. Logic

dictates that the burden of proof should be

upon the prosecution in cases such as this.

The prosecution reviewed and copied defense

material consisting of correspondences with

defense attorneys, charts and summaries prepared

by the defendants and numerous other documents,

all prepared in connection with case preparation.

These records, which were contained in a carton,

consisted of hundreds of pages. The prosecution,

during testimony at a pre-trial hearing, admit-—

ted to a review of the records and further ad-

mitted it gained additional information from

this review. By placing the burden of proof

on the Petitioners concerning a showing of pre-

judice, Petitioners would be required in some

way to read the mind of the prosecution to

ascertain what information it may have con-

sciously or unconsciously gained from this

review. It would seem that an analogy would

serve a purpose in connection with this Writ.

If an individual gains access to hundreds

of confidential files contained in the United

States Supreme Court Chambers and reviews each

of these files, the question as to how much or

what kind of information this individual may

have gained can only come directly from the

individual who reviewed the records. The

nine justices of this Court would never know

what the individual has ascertained or whether

or not any of the cases were prejudiced in any

fashion without being able to read the mind

of the individual who read the records.

The above analogy can be applied to the in-

stant case. There was absolutely no way the

petitioner could have ascertained precisely

what the prosecution gleaned from a review

of the records or in what way, if any, the pros-

ecution could have used or would have used this

information against the Petitioners. What

Petitioners are suggesting is that in situa-

tions such as this, when a prosecutor obtains,

a retains, withholds, reviews and copies defense

| -16-

material without notifying the defense it even

has such material, the only way the Petitioners

could be made whole would be to require the

prosecution to prove to the Court that no pre-

judice has resulted by such conduct.

It is respectfully submitted that this Court

should settle such an important question of

Federal law at this point in time by deter-

mining that in instances such as this where the

intrusion into the defense material prepared

for trial is so blatent and admitted by the

prosecution, the burden of proof concerning the

showing of prejudice should shift to the pro-

secution. The prosecution then should be

required to come forward and convince the trial

judge that its conduct resulted in no prejudice

to the defendants.

Petitioners respectfully pray this court to

settle this Federal question of law.

For the foregoing reasons, Petitioners

CONCLUSION

»

. respectfully pray that a Writ of Certiorari

should be issued to review the decision and

| order of the United States Court of Appeals

_* for the Second Circuit.

Respectfully submitted,

KENNETH P. RAY and

ANTHONY J. LaFACHE, P.C.

Attorneys for Petitioners

213 Rutger Street

Utica, New York 13501

(315) 733-2355

February, 1984.

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UNITED STATES COURT OF APPEALS

For the Second Circuit

At a stated Term of the United States Court

of Appeals of the Second Circuit, held at the

United States Courthouse in the City of New York,

on the 15th day of December, One Thousand Nine

Hundred and Eighty-three.

PRESENT:

. HON. WILLIAM H. TIMBERS,

HON. ELLSWORTH A. VAN GRAAFEILAND,

HON. JON O. NEWMAN,

Circuit Judges

ee ee re ee ee | x

UNITED STATES OF AMERICA,

Plaintiff-Appellee, ORDER

83-1083

v. 83-1084

KENNETH E. MOORE, III and

KENNETH E. MOORE, JR.,

Defendants-Appellants.

ee | x

Kenneth E. Moore, Jr. and Kenneth E. Moore,

III appeal from judgments of conviction of the

United States District Court for the Northern

» District of New York which followed a jury trial

before Chief Judge Howard G.Munson. Kenneth E.

Moore, Jr. was convicted of presenting false

claims to the government in violation of 18 U.S.C. ‘

(la) :

§287. Kenneth E. Moore, III was convicted of

perjury before a grand jury in violation of 18

U.S.C. §1623.

The most troublesome issue on this appeal

arises out of the retention by the prosecution

of certain documents belonging to the defendants

or their companies without notification to

defense counsel. Although we affirm the judg-

ments of conviction, this should not be taken as

an indication that we condone what occurred. We

do not. We are persuaded only in part by Chief

Judge Munson's finding that "there was no deli-

berate or intentional misconduct on the part of

the prosecutor." Of greater significance is

Judge Munson's finding that appellants were not

prejudiced by prosecution's conduct. Had preju-

dice occurred, action by this Court might have

been more drastic than the criticism implicit in

the foregoing discussion.

We find no merit in appellants’ remaining

arguments. Appellants have failed to show that

substantial prejudice resulted from the district

(2a)

court's refusal to order a severance, a decision

which was discretionary with the court. United

States v. Losada, 674 F.2d 167, 171 (2d Cir.),

cert. denied, 457 U.S. 1125 (1982). The district

court did not err in refusing to instruct the

jury that intent to defraud is a necessary ele-

ment of 18 U.S.C. §287. Umited States v. Preci-

sion Medical Labs., Inc., 593 F.2d 434, 443

(2d Cir. 1978); United States v. Milton, 602 F.

2d 231, 234 (9th Cir. 1979). The district court

was in the best position to assess the progress

of the jury deliberations, see United States v.

Winley, 638 F.2d 560, 561 (2d Cir. 1981), cert.

denied, 455 U.S. 959 (1982), and appellants have

shown no abuse of discretion on the part of the

trial judge in denying their motions for mis-

trial.

Concluding that appellants had a fair trial

and that the jury's verdicts had ample support in

the evidence, we affirn.

Mandate shall issue forthwith.

isi William H. Timbers

: am A. 3

(3a)

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Graafeiland

. psf Jon 0. Newman

. Jon O. Newman

s N.B. Since this statement does not

* constitute a formal opinion of this court

and is not uniformly available to all parties,

it shall not be reported, cited or otherwise

used in unrelated cases before this or any

other court.

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA

bay 81-CR-120

KENNETH E. MOORE, JR.,

KENNETH E. MOORE, III

and ANTHONY FREDDOSO,

Defendants.

APPEARANCES : OF COUNSEL:

FREDERICK J. SCULLIN, JR. JOHN McCANN

UNITED STATES ATTORNEY PAULA RYAN CONAN

NORTHERN DISTRICT OF NEW YORK ASSISTANT U.S.

369 Federal oe ATTORNEYS

Syracuse, New York 13260

KENNETH P. RAY ESQ.

213 Rutger Street

Utica, New York 13501

HOWARD G. MUNSON, C.J.

MEMORANDUM- DECISION

From January, 1977 until Spring, 1980, Issa-

char Manufacturing Company, Inc. (Issachar) and

Reuben Garment, International, Inc. (Reuben) con-

tracted to supply tents, military clothing and

other items for the United States armed forces.

The defendants, Kenneth E. Moore, Jr. (Moore, Jr.),

(5a) f

President and Chief Executive Officer of both

companies, and Anthony Freddoso, employee and

plant supervisor of both companies, were indicted

by a federal Grand Jury on November 20, 1981 for

allegedly conspiring to defraud the United States

Government of approximatley $2.9 million in rela-

tion to these government contracts and in viola-

tion of Title 18 U.S.C. §371 and 18 U.S.C. §287.

Moore Jr. is charged with submitting 134 false

claims for progress payments on six manufactur-

ing contracts with the Government in violation of

18 U.S.C. §287. Moore III and Freddoso are

charged with knowingly acquiescing in this fraud.

Moore III also faces two perjury counts and

Freddoso faces one perjury count under Title 18

U.S.C. §1623.

The case was set to go to trial in September,

1982! On September 28, 1982, the defendants

filed the present motion alleging violations of

defendants’ rights under the fourth, fifth pa

sixth amendments of the Constitution of the United

States with regard to the prosecutor's possession

(6a)

be stl . " wey wie, Ty vals

of a box of documents owned by the defendants.

The defendants moved to dismiss the indictment

against them or, in the alternative, to remove

the prosecutor, Assistant United States Attorney

Joseph A. Pavone, from this case or to suppress

the Government's use of certain evidence at trial.

On October 6, 1982, the Government made a motion

before this Court to hold Freddoso and the de-

fense attorneys Anthony J. LaFache and Frank

Policelli in contempt of court and to compel the

production of certain documents which the Govern-

ment claims were to be turned over to them under

Grand Jury subpoena and by the terms of a Febru-

ary 22, 1982 stipulation between the parties.

The Court conducted extensive pretrial hear-

ings on both motions in Utica, New York during

the period from October 7, 1982 until October 22,

1982. Upon careful consideration of the merits

of both motions, the testimony and documents pre-

sented at the hearing, and the memoranda of law

submitted by both sides, the Court issued an

order on November 12, 1982.

(7a)

The Court's Order denied that part of defen-

dants' motion which sought to dismiss the indict-

ment or, in the alternative, to remove the prose-

cutor, and granted that part of the motion which

sought to suppress certain evidence. The Court

then denied that part of the Government's motion

which sought to hold Freddoso, LaFache and Poli-

celli in contempt, and granted that part of the

motion which sought to compel the production of

those documents listed in Court Exhibit 6.2

Accordingly, the Court's Order precluded the

Government from introducing into evidence or

using for purposes of its direct case or for

impeachment purposes specific statements, data,

and defense arguments contained in Defense Exhi-

bits A through T (except Defense Exhibit M-1/

Goverment Exhibit 3), Government Exhibit 1 and

Court Exhibits 2 through 5, except to the extent

that such statements, data, and defense arguments

contained therein were elicited and developed by

the prosecutor in the Grand Jury investigation

of this case. The Court ordered that the prose-

(8a)

cutor is precluded from using for purposes of its

direct case or for purposes of impeaching Moore

Jr. the statements, data, and any other informa-

tion contained in Defense Exhibits 0-1 through

0-14, the letters of reference for Moore Jr.

The Court further ordered the three defendnats

to immediately produce and turn over to the

prosecutor the documents enumerated in Court

Exhibit 6, including Exhibit A-8. The Court's

Order set a trial date for November 15, 1982 in

Utica. This Memorandum-Decision explains the

Court's November 12, 1982 Order, and states the

Court's findings of fact and conclusions of law.

THE DEFENDANTS’ MOTION

I. Findings of fact

The testimony before this Court reveals a

rather confusing and somewhat disturbing set of

facts. Each side has alleged misconduct on the

part of the other, and has allowed its adversarial

zeal to color its view of the other's conduct.

The Court is disturbed by the circumstances and

opines that neither side has conducted itself as

carefully as it may have; however, the evidence

does not present a case of misconduct by either

side. The pertinent testimony is as follows.

Defense Exhibits A through T and Court Exhi-

bits 2 through 5 were compiled and prepared by

Freddoso, with Moore Jr.'s assistance, at LaFache

and Policelli's request and for the purposes of

the defendants’ upcoming trial. Court Exhibit 2

is a twenty-two (22) page document in which

Freddoso sets out certain defenses to the indict-

ment against all the defendants and supports his

arguments with specific references. to the docu-

ments, Defense Exhibits A through T.3 Court

Exhibits 3 through 5 are letters written by Fred-

doso and Moore Jr. to defense attorney Kenneth P.

Ray.“

Freddoso testified that in approximately

March, 1982 he placed Defense Exhibits A through

T into a box.) Freddoso placed Court Exhibits 2

through 5 into a legal-sized manila folder on

which he wrote in black magic marker "Defense of

K.E—. Moore, Jr." Freddoso testified that he then

Placed this manila folder on top of the box con-

(10a)

taining the other documents. In late March or

early April, 1982 Freddoso took the box to

LaFache's office. At that time, Freddoso gave

LaFache two copies of the 22-page document, one

* for LaFache and one for Policelli. Freddoso

showed LaFache the box and pointed out the var-

ious folders and envelopes in the box. Freddoso

also gave LaFache a brief description of how each

folder and envelope was marked and explained that

the 22-page summary referred to the supplemental

documents, however, he did not specifically show

LaFache the contents of any of the folders.

Freddoso then placed the box underneath a book-

shelf in a corner to the right of the doorway

inside LaFache's office.

According to the testimony of the defendants

and their attorneys, the whereabouts of this box

+ became an issue in early September, 1982. On

approximately September 7, 1982, Freddoso went

to LaFache's office to retrieve the box. Fred-

doso and LaFache's secretary twice searched La-

Fache and Ray's offices and did not find the box.

(lla)

Later in the week LaFache and his secretary also

conducted an unsuccessful search for the box.

Sometime later, LaFache informed Freddoso that

he could not find the box. Upon LaFache's sug-

" gestion, Freddoso telephone Policelli on Septem-

ber 22, 1982 to inquire as to the whereabouts of

the box. Policelli also unsuccessfully searched

his office for the box.

Policelli testified that on September 22,

1982, he had a telphone conversation with Assis-

tant United States Attorney Pavone in which Poli-

celli asked Pavone if he had the box of documents.

During that telephone conversation Pavone said

that he had come across some materials that he

thought might belong to the defendants. Poli-

celli and Pavone arranged for the return of the

documents to take place five days later on Monday,

* September 27, 1982 at the United States Attorney's

| office in Utica.

On September 27, 1982, Pavone returned the

documents, Defense Exhibits A through T, to

Policelli and Freddoso. Pavone denied having

possession of the 22-page document and Court

(12a)

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Exhibits 3 through 5, the letters to Ray. The

primary factual issues before the Court are

whether the prosecution ever possessed Court Exhi-

bits 2 through 5 and whether the prosecution il-

legally came to possess Defense Exhibits A

through T.

LaFache testified that he did not remove the

box from his office and did not see anyone else

do so. However, LaFache also testified that he

simply had no "specific recollection" of the box

after Freddoso pointed it out to him in late

March or early April, 1982. .

On April 22, 1982, Pavone and Special Agent

Louis Dunlay went to LaFache's office to pick up

approximately eighteen boxes of documents which

had been turned over to the defense by the terms

of the February 22, 1982 stipulation between the

parties. Pavone and Dunlay were directed by

LaFache to a pile of boxes located on a stairway

landing approximately a few feet away from La-

Fache's office. Pavone and Dunlay piled one

box on top of another, and in this fashion, car-

ried a few boxes at a time out to their vehicle.

(13a)

LaFache testified that he assisted the two men by

handing the last five or six boxes to Dunlay who

handed them to Pavone. Pavone then placed the

boxes in the vehicle. LaFache testified that he

and Pavone quickly looked around the offices to

make sure that they had retrieved all the boxes,

and then they returned to the doorway where

Dunlay was waiting.

The defendants assert that Pavone and Dunlay

stole the box of documents from LaFache's office

on April 22, 1982. However, the testimony shows

that neither Pavone nor Dunlay had unrestricted

access to the attorneys’ offices on April 22,

1982 nor on any other occasion. LaFache and his

staff were present on April 22nd, and there is

no evidence that Pavone and Dunlay did not prop-

erly conduct themselves. There is no clear testi-

mony as to the whereabouts of the box between

the time Freddoso came to LaFache's office in

the Spring of 1982 and September, 1982. It

is clear, however, that Freddoso and perhaps

others, including secretaries and cleaning staff,

did have unrestricted access to LaFache's offices.

(14a)

boy ae } ; Lae Sires ys BES 3 if m xa y ¥ fae

ee pe i <i ‘sepa Sesh. gots * SS PR FT Bo

DBs i SE Ge Ss Oe RR Oe BRS eters boy «Sore Le

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The Court can only conclude that at some time

the box was moved to the stairway outside La-

Fache's office, and was placed among the pile of

approximately eighteen boxes, and that the box

was thus inadvertently placed in the hands of

the prosecutor on April 22, 1982.

The Government claims that it was unaware of

the presence of the box until September, 1982.

The Government introduced the testimony of two

janitors® employed at the Federal Courthouse in

Utica where the United States Attorney's office

is located. The janitors testified that they

found a box outside the United States Attorney's

office and, without ever viewing its contents,

they placed the box inside the office. The Court

finds that the entire testimony by these janitors

was inconsistent and, at points, incredible.

| Neither janitor ever looked inside the box, yet

each insisted he could identify the contents.

Each janitor's account of the particular date

upon which this event occurred differed. The

first janitor's testimony with regard to the date

was later discredited by information introduced

by the United States Attorney's office. The

Court is convinced that there is no factual

support for the Government's contention that

the defendants purposefully, and with the intent

to delay the trial, planted the box outside the

United States Attorney's office in Utica, and

the court rejects this theory in full.

The Court finds credible the prosecutor's

testimony that he was not aware of the box until

September, and did not ever view the 22-page

document. The prosecutor admits that he looked

through the box in the belief that the Government

was entitled to possession of Defense Exhibits A

through J and L through T under the terms of the

Grand Jury subpoena. Upon viewing Defense

Exhibit K, the prosecutor believed that he had

seen this group of documents among the thousands

of case-related documents already in the posses-

sion of the prosecution.

| The prosecutor requested that a student

* assistant in the United States Attorney's office

(16a)

in Syracuse photocopy the documents. This part-

time assistant testified that she remembered being

given a pile of documents which she photocopied

over the period of five or six days after Septen-

ber 13, 1982. The testimony of David Roll, an

auditor with the Defense Contract Auditing

Agency investigating this case, shows that he

was telephoned by Pavone on September 15,

1982. Pavone described the documents to Roll,

but Roll was unable to determine if the documents

belonged to the Government. Roll was not able

to come to Utica until September 20, 1982 at

which time he determined that the documents were

not the Government's records or "work product.”

However, Roll did determine that certain documents

were corporate records that should have been

turned over to the prosecution under the Grand

Jury subpoena.

II. Conclusions of Law

A. Fourth Amendment Claims

The Fourth amendment of the Constitution of

(17a)

als Ree EN ST, See eke

agen oie GO a a shat

the United States guarantees '"(t)he right of the

people to be secure in their persons, houses,

papers, and effects, against unreasonable sear-

ches and seizures. . ." It is elemental that

the police activity at issue must constitute a

"search" or "seizure." See W.R. LaFave, Search

_ and Seizure: A Treatise on the Fourth Amendment

221 (1978). "A search is a probing exploration

for something that is concealed or hidden from

the searcher; a seizure is a forcible or secre-

tive dispossession of something against the will

of the possessor or owner." United States v.

Marti, 321 F. Supp. 59 (E.D.N.Y. 1970).

In the instant case, there was no probing

exploration by the prosecutor, nor was there any

forcible or secretive dispossession. In fact,

the box was inadvertently placed in the hands of

the prosecution when Pavone and Dunlay lawfully

and with permission retrieved the approximately

eighteen other boxes of documents from LaFache's

law office. In this document-laden case, it is

+ mot unreasonable that the prosecutor did not im-

(18a)

OT ee ee Ne Tne ee Oe ear

mediately recognize the documents. Once Roll

was called in and determined that certain of the

documents should not be in the Government's pos-

session, those documents were returned to Poli-

celli and Freddoso in Utica on a mutually con-

venient date. Defendants’ fourth amendment

claim is not substantiated by the facts and is,

therefore, denied.

B. Fifth Amendment Claim

The defendants’ fifth amendment claim is

that: "(t)he prosecution's obtaining of this

information would, in essence, force the defen-

dants to testify to correct the interpretation

the prosecution may give to this evidence.

(in) violation of the... right against self-

incrimination." The fifth amendment of the Con-

stitution of the United States ensures that no

person” .. . shall be compelled in any criminal

case to be a witness against himself. ..." : ;

The fifth amendment protects a person against his r

compelled testimonial incrimination. United a

States of America and Arthur Lott of the Internal

(19)

Revenue Service v. William J. Krawczuk, Misc. No.

113 (N.D.N.Y. June 8, 1977) (Memorandum-Decision

and Order) (Munson, C.J.)(citing Fisher v. United

States, 425 U.S. 391 (1976); 8 Wigmore, Evidence

§2264 (McNaughton Rev. 1961)). A defendant

cannot claim a denial of his fifth amendment

right against compelled self-incrimination where

he voluntarily takes the witness stand to offer

testimony to respond to or to counter the evidence

offered against him. See United States v. Bur-

reson, 643 F.2d 1344, 1350 (9th Cir. 1981),

cert. denied, 454 U.S. 847 (1981) and Channell v.

United States, 454 U.S. 830(1981); United States

v. Carleo, 576 F.2d 846, 850 (10th Cir. 1978),

cert. denied 439 U.S. 850 (1978); United States

ex. rel. Pendergrass v. Anderson, 304 F. Supp.

$77, 578 (D. Del. 1969); United States v. Hearst

563 F.2d 1331, 1343 (9th Cir. 1977), cert. denied, —

435 U.S. 1000 (1978).

The defendants fail to state a cognizable

fifth amendment claim. Furthermore, there is no

evidence that these defendants are being compelled

- Soh a eee Peer ow

to take the stand to testify against themselves.

Thus, defendants’ fifth amendment claim is denied.

C. Attorney-Client Privilege and Work-

Product Privilege

The defendants claim that the documents,

Defense Exhibits A through T and Court Exhibits

2 through 6, are communications protected by the

attorney-client privilege and the work-product

privilege and that the documents were nondis-

coverable under Rule 16 Fed. R. Crim. P. The

attorney-client privilege only applies if:

(1) the asserted holder of the privi-

lege is or sought to become a client;

(25 the person to whom the communication

was made (a) is a member of the bar of

a court, or his subordinate and (b)

in connection with this commmication

is acting as a lawyer; (3) the comm-

nication relates to a fact of which

the attorney was informed (a) by

his client (b) without the presence of

strangers (c) for the purpose of secur-

ing ager teg f either (i) an opinion of

law or (ii) legal services or (iii)

assistance in some legal proceeding,

and not (d) for the purpose of commit-

ting a crime or tort; and (4) the

privilege has been (a) claimed and

(b) not waived by the client.

Colton v. United States, 306 F.2d 633, 637 (2d

Cir. 1962)-(quoting United States v. United Shoe

(21a)

(a. ae. aa z

_ supporting the 22-page document which were already

Machine Corp, 89 F. Supp. 357, 358-359 (D. Mass.

1950); prob. juris noted, 346 U.S. 894 (1953).

The Court has inspected all of the documents

in camera, and concludes that certain documents

are covered by the attorney-client privilege and

are nondiscoverable under Rule 16(b)(2). Court

Exhibits 2 through 5 are covered by the privilege

because they are letters and memorandum prepared

and confidentially communicated by the defendants

as "clients" to their already retained attorney

for the purposes of securing legal advice and as-

sistance with regard to the defense of this case,

and the attorneys here were acting in their capa-

cities as attorneys in this regard. Similarly,

certain other documents within the group of Def-

ense Exhibits A through T are protected because

they are private letters by the defendants as

clients to their retained Philadelphia legal

counsel communicated for the purpose of obtaining

legal advice and assistance concerning the Govern-

ment's investigation of this particular case.

Furthermore, the charts and other documents

(22a)

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in existence and were simply collated by Freddoso

or the other defendants to be turned over to

their attorneys do not fall within this class

of privileged commmications. See Colton v.

United States, 306 F.2d at 639. The reason for

this differentiation is clear:

Insofar as the papers include pre-

existing documents and financial

records not prepared by the (def-

endants) for the purpose of commun-

icating with their lawyers in con-

fidence, their contents have

acquired no special protection from

the simple fact of being meg

over to an attorney. ° An

other rule would permit a person to

prevent disclosure of any of his

papers by the simple expedient

of keeping them in the possession

of his attorney.

It would appear that such pre-exising cor-

porate documents would have been available to

the Government pursuant to the reciprocal dis-

covery rights under Rule 16 Fed. R. Crim. P.

Nor would such pre-existing documents fall

within the protection of the work-product pri-

vilege. See, e.g., In Re Grand Jury Proceedings

601 F2d 162, 171 n.7 (Sth Cir. 1979) (citing

(23a)

Fisher v. United States, 425 U.S. 391, 403-404

(1976).

E. Denial of Counsel and Fair Trial Claims

The sixth amendment of the Constitution of

the United States guarantees the defendants’

rights to the effective assistance of counsel

and a fair trial.’ Gideon v. Wainright, 372 U.S.

335, 344 (1963); United States v. Morrison, 449

U.S. 361 (1981), reh. denied, 101 S. Ct. 1420

(1981). As stated in Morrison, 449 U.S. at 364,

"(the) cases have accordingly, been responsive

to proved claims that governmental conduct has

rendered counsel's assistance to the dotentent.

ineffective.''8

The defendants argue that the Government's

obtaining and viewing the privileged documents

has or will have the effect of denying the defen-

dants a fair trial and the effective assistance

of counsel. The defendants urge this Court to

dismiss the indictment against them or, in the

alternative, to dismiss the prosecutor or pre-

clude the use of the evidence at trial.

(24a)

Dismissal of an indictment is "so drastic"

a remedy that it "must be reserved for the truly

extreme cases."" United States v. Broward, 594

F.2d 345 (2d Cir. 1979), cert. denied, 442 U.S.

941 (1979). "A district court does not have

the power to dismiss a legally sufficient indict-

ment simply because it deems the dismissal to be

in the interests of justice." United States v.

Brown, 602 F. 2d 1073, 1076 (2d Cir. 1979),

cert. denied,444 U.S. 952 (1979). The standard

for dismissal was clearly set forth in United

States v. Fields, 592 F. 2d 638, 647-648

(2d. Cir. 1979), cert. denied, 442 U.S. 917

(1979) and again, more recently, in United States

v. Artuso, 618 F.2d 192, 196 (2d Cir. 1980), cert

denied, 449 U.S. 861 (1980):

The extreme sanction of dismissal

of an indictment is justified in

order to achieve one or both of

two objectives: first, to elimin-

ate prejudice to a defendant in a

criminal prosecution; second, to

"help to translate the assurances

of the United States oeeeeere

into consistent performance y

their assistants.

(25a)

ee ea

r:

ji

With regard to the deterrence objective it is

clear that: "(e) ven when a prosecutorial arm of

the government unlawfully obtains evidence, (the

courts) normally limit the permissible sanction

to suppression of the illegally obtained evidence.

It is only in the rare case, where it is impos-

sible to restore a criminal defendant to the

position that he would have occupied vis-a-vis

the prosecutor, that the indictment may be dis-

missed."" United States v. Field, 592 F.2d at 648.

"(P)roper regard for the public interest in the

prosecution of crimes counsels restraint in dis-

missing an indictment for deterrence purposes

unless the course of official misconduct is a

demonstrated, long-standing one. (The courts)

have approved this extreme sanction only when

the pattern of misconduct is widespread or con-

tinuous." Id. at 648; United States v. Estepa,?

471 F.2d 1132, 1137 (2d Cir. 1972); United States

"vy. Jacobs,10 531 F.2d 87, 90 (2d Cir. 1976), va- é

|

cated and remanded, 429 U.S. 909, aff'd on F 4

aff’ don remand E:

_ ~-$47 F.2d 772 (2d Cir. 1976), cert. dismissed,

| 436 U.S. 31 (1978).

(26a)

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The Court finds here that there was no deli-

berate or intentional misconduct on the part of

the prosecutor in obtaining and viewing the

documents. Therefore, no deterrence purpose

would be served by the Court's dismissal of the

indictment. The pivotal issue before the Court

is, however, whether there is sufficient preju-

dice resulting from the Government's nondeliber-

ate exposure to these privileged attorney-client

communications to warrant dismissal of the in-

dictment. "(A)bsent demonstrable prejudice, or

substantial threat thereof, the dismissal of the

indictment is plainly inappropriate, even though

the violation may have been deliberate.” United

States v. Morrison, 449 U.S. at 365.

Courts since Morrison have addressed the issue

of whether prejudice has resulted from the viola-

tion of defendant's sixth amendment rights and

whether dismissal is the correspondingly appro-

priate remedy. For example, the Fifth Circuit

in United States v. Killian and Brunk, 639 F.2d

206, 210 (Sth Cir. 1981), cert. denied, 451 U.S.

(27a)

1021 (1981), held that while the conduct of the

federal authorities in removing defendant from

jail to question him was highly improper and

unethical, the statements that were transcribed

and any evidence that might have been obtained

from the statements were not introduced by the

prosecution at trial, and therefore, no prejudice

occurred. The Killian court noted that had the

Government not independently decided not to use

the information at trial, the appropriate sanction

by the court would probably have been suppression.

Id. In any event, dismissal was "too drastic

and totally unnecessary" a remedy. Id.

Again, in United States v. Cross, 638 F.2d

1375 (Sth Cir. 1981), the Court found that the

conduct of the Federal Bureau of Investigation

(F.B.I.) agents, apparently approved by the

United States Attorney, in commmicating with

defendant before trial without approval of de-

fense counsel and prevailing upon defendant to

take a polygraph test represented a grossly in-

7 proper breach of defendant's relationship with

his trial counsel. The Court found that dis-

missal of the indictment was not the proper

remedy. First, because there was not evidence

that the F.B.I. agent intentionally sought to

destroy the defendant's attorney-client rela-

tionship. The second and more important basis

for the Court's decision to uphold the indict-

ment was the Court's finding that the suppres-

sion of the evidence headed off any potential

prejudice to the defendant from the Government's

conduct. Absent such prejudice, dismissal was an

inappropriate remedy. Id. at 1379.

The Third Circuit in United States v. Pantone

v. Kumer, 634 F.2d 716 (3rd Cir. 1980) dealt |

with the issue of whether the prosecutor's know- |

ledge of certain incriminating evidence, i.e.,

immunized Grand jury testimony which was obtained

after a first trial conviction, but prior to a |

remanded and second trial, which provided the pro-

secutor with a degree of psychological confidence

about the outcome of the second trial which he

might not have had if he had not seen the privi-

leged information was grounds for dismissal of

(29a)

the indictment or removal of the prosecutor. The

Court found that the "potential motivational

effect" failed to rise to the level of consti-

tutional significance. The record before the

Pantone court did not indicate that the United

States Attorney "learned anything new from the

grand jury testimony - certainly nothing bene-

ficial to the prosecution or inconsistent with

its position at the original trial.” The Court

found that the prosecutor "relied solely on inde-

pendent sources of information in conducting the

retrial." Id. at 722.

In the instant case, the Court finds that

there is no discernible prejudice to the defen-

dants resulting from the prosecutor's viewing,

photocopying, and briefly retaining possession

of Defense Exhibits A through T. Only certain

of these documents are protected by the attor-

ney-client privilege, and as in Cross, there

was no intentional infringement of the attorney-

client privilege. With the permission of both

sides, the Court has viewed all of the documents

(30a)

in camera. The Court also, with the permission

of both sides, reviewed the Grand Jury testimony

of two of the defendants in order to determine

to what extent the prosecutor knew specific

data, defense arguments, and other information

relating to this case prior to his viewing the

documents.

The Court finds that the data, statements,

defense arguments, and other information in these

documents were previously included in the Grand

Jury testimony of these two defendants. The

prosecutor's questions to the defendants before

the Grand Jury clearly show that, at that stage

of the investigation of this case, the prosecu-

tor was anticipating the arguments that would

be used by the defense at trial. For example,

the Grand Jury testimony of the two defendants

is replete with references to the defense argu-

ment that the company's bookkeeper and Assistant

to the President was solely responsible for the

submission of false claims to the Government.

_ The Grand Jury testimony clearly sets out the

(3la)

defense argument that certain named government

officials had a "vendetta" against the defen-

dants wit were conspiring to drive the defen-

dant Moore Jr. out of business. Much of this

revealing testimony was given in response to

the prosecutor's specific questions. Other

portions of the testimony were freely and

openly offered by the defendants in an effort

to defend their own actions and the actions

of their codefendant.

Thus, the Court must conclude that the As-

sistant United States Attorney was well aware

of the information contained in these documents

and that as in Pantone no psychological or moti-

vational advantage has resulted to the Govern-

ment. No prejudice or substantial threat of

prejudice has, therefore, accured to the defen-

dants as a result of the prosecutor's seeing

ao these documents. Accordingly, neither the dis-

- missal of the indictment, nor dismissal of the

prosecutor, is warranted. The Court's November

= 12, 1982 Order which suppresses the prosecutor's

(32a)

9 Xe onl ‘6 ; . ‘ "3 yes. * fa aay an . Se

& oer A CE ae ‘ a | 4 eM Pile a TK

Seo ae aes ete At otek aC: PR VOSS HRD TS Se I Be Pen Sa

a

14

use of these doucments at trial, for purposes

of its direct case and for impeachment purposes,

will clearly prevent even the most minute pos-

sibility that the defendants will suffer any

prejudice from what has occurred.

FOOTNOTES

lthe trial was scheduled for July 19, 1982

after this Court denied defendants' pretrial

motions for: dismissal, suppression of certain

statements, a bill of particulars, and severance

of Moore Jr.'s trial, inspection of Grand Jury

minutes and a list of Government witnesses.

2court Exhibit 6 is a “packing list" of

documents subpoenaed by the Grand Jury. The

list distinguishes those subpoenaed documents

which were never turned over by the defendants

and those documents which were turned over and

then were returned to the defendants pursuant to

the February 22 stipulation.

3pefense Exhibits A through T are folders

containing charts, checks, and other documents

Or corporate records. Each document in each

folder is marked with an additional exhibit nun-

ber, i.e., each document in folder A is marked

A-1, A-Z, etc. The Court will refer throughout

this opinion to Defense Exhibit A, for example,

and in doing so, intends to include all the docu-

ments in that folder.

4after examining these documents in camera,

the Court finds that Court Exhibits 3 through 5

are letters written by the defendants to their

attorney Kenneth P. Ray, LaFache's partner.

Court Exhibit 3 is a seven page letter dated

t 10, 1981. Court bit 4 is a twenty-one

page letter dated July 31, 1981. Court Exhibit 5

s a three page letter dated August 25, 1981 on

Reuben International Company Inc. letterhead

and signed "Tony." Attached to that letter is

a news article.

StThere is some debate as to the type of box

into which the documents were placed. Freddoso

testified that he vaguely remembered that the box

was aS s soda box that had no cover. The

box, in which the documents were introduced at

(34a)

trial, is a Xerox box with a cover. The Court

finds that there is no other evidence nor any

specific recollection by Freddoso to resolve this

factual dispute. It is possible that the docu-

ments were removed from the original box and

placed into another box by either the defendants

or the prosecution. However, the point seems to

this Court to be an insignificant one.

oY Testimony was introduced showing that both

: janitors have mental and physical problems which

e affect their memories and their ability to com-

municate and, therefore, their ability to compe-

tently testify. The Court has heard the testimony

of both janitors. Other 5 Pe testimony

and information from the United States Attorney

offered in chambers would indicate to this Court

that the testimony of these two witnesses is not

accurate or credible. It appears that the two

janitors are friends; they have discussed this

situation and each seems to have been influenced

by the other's memory of the event.

7 The Sixth Amendment provides that: In all

criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the

witnesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defense.

RG Sthe Supreme Court in its recent decision in

: ited States v. Morrison, 449 U.S. at 364-365

_,. presents a thorough survey of the case law on the

- subject of sixth amendment violations and the

~ guitable remedies for such constitutional depri-

» wations:

(W)ithout detracting from the

fundamental importance of the right

to counsel in criminal cases, we

have implicitly recognized the nec-

essity for preserving society's

interest in the administration of

criminal justice. Cases involving

Sixth Amendment deprivations are

subject to the general rule that

remedies should be tailored to

the injury suffered from the consti-

tutional violation and should not

necessarily infringe on competing

interests. Our relevant cases

reflect this roach. In Gideon

Vv. He power igbt the defendant was

ota d the assistance of

counsel at his criminal trial.

In Geders v. United States, Her-

ring v. New York and Powell v.

ieee Judicial action before

Or during trial prevented counsel

from being fully effective. In

Black v. ited States and O'Brien

v. United States Law enforcement

Ofticers improperly overheard pre-

trial conversations between a

defendant and his lawyer. None

of these deprivations, however,

resulted in the dismissal of

the indictment. Rather, the con-

viction in each case was reversed

and the government was free to

proceed with a new trial. Similarly,

when before trial but after the

institution of adversary proceed-

ings, the prosecution has improperly

obtained incriminating information

from the defendant in the absence oa

of his counsel, the remedy charac- i:

teristically imposed is not to dis-

miss the indictment but to suppress

the evidence or to order a new

trial if the evidence has been

(36a)

wrongfully admitted and the defen-

dant convicted. In addition, cer-

tain violations of the right to

counsel may be disregarded as

harmless error.

(Citations omitted)

The Morrison Court concludes that the courts'

“approach has thus been to identify and then

neutralize the taint by tailoring suitable relief

appropriate in the circumstances to assure the

defendant the effective assistance of counsel and

“a fair trial."

9tn United States v. Estepa, the Court dis-

missed the indictment against the defendant

because the United States Attorney allowed the

Grand Jury testimony to be based upon hearsay.

In light of the Court's prior admonitions and

the United States Attorney's assurances that

their assistants would comply, the court found

reversal of the conviction and dismissal of the

indictment was the only way to guarantee that

future violations would not occur.

101m United States v. Jacobs, the Court dis-

missed Count Z of the indictment against the defen-

dant who was not warned by the Str Force Attor-

ney that she was a target of the Grand Jury and

that she, therefore, had a right to remain silent.

Defendant was questioned about an incriminating

telephone conversation of which the Strike Force

Attorney had taped evidence. The Court held that

in light of the United States Attorney's policy

of advis potential defendants that they are

targets and in light of the Court's earlier deci-

sion upholding the Strike Force Attorney's right

to appear before the Grand Jury on the is that

they are supervised by the U.S. Attorney's Office, =

the Court found a conflict of criminal proce

within the district which prevented the achieve-

ment of "uniform justice” and fell outside the

“penumbra of fair play.”

(37a)

ee al

ST, Pa ees

er Se, ae ae

=

In another case, United States v. Brown,

602 F.2d 1073, 1074 (7d Cir. 1979), cert. denied,

444 U.S. 952 (1979), the court refused to dismiss

the indictment, finding that there was no showing

that the government's "less than exemplary system

for supervising" an informant was representative

of government conduct that was "widespread or

continuous."

|

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