# Petition — Moore v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1420%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 467 U.S. 1204 ## Text 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 a2e ye 7 ’ ws ty 0 me, me 24 oe <> , ab : e 4 fe if aif rs = ee Kee PA eee = «Rees 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 7 " , > —_— oe ee ee te oe ~ Fo of ee | at ae gu ** awe > Ss s see _ i _ © 1 ad - ie. et iaw? WS oy I Eta 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." | p . : 7 ¥ 4 * --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1420%3A1. Public record. Not legal advice.