Petition — Segal v. United States

83-1736

No.

IN THE

Supreme Court of the Bnited States

Ocroser Term, 1983

A <TR

UNITED STATES OF AMERICA,

Respondent,

— against —

HUGO Z. SEGAL,

Petitioner.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Davip SEcAL

Attorney for Petitioner

Office & P.O. Address:

Eleven Broadway

New York, New York 10004

(212) 943-5668

QUESTIONS PRESENTED

1. DID THE ADMITTING INTO EVIDENCE

OF A TAPED CONVERSATION MADE BY A

CONFIDENTIAL INFORMANT, WITHOUT A

SHOWING AS TO HIS UNAVAILABILITY TO

TESTIFY, DENY TO APPELLANT HIS CONSTITU-

TIONAL RIGHT TO CONFRONTATION?

2. DID THE GOVERNMENT VIOLATE

APPELLANT'S CONSTITUTIONAL RIGHT TO- DUE

PROCESS, BY FAILING TO REVEAL THE TRUE

IDENTITY OF THE CONFIDENTIAL INFORMANT?

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED i

TABLE OF CASES CITED iii-iv

OPINION BELOW 1

JURISDICTION 2

STATEMENT OF THE CASE 3-9

REASONS FOR GRANTING THE WRIT 10

POINT I - APPELLANT WAS DENED

HIS RIGHT OF CONFRONTA-

TION, BY THE ADMISSION

INTO EVIDENCE OF THE

TAPED CONVERSATIONS

MADE BY THE CONFIDENTIAL

INFORMANT, WITHOUT A

SHOWING AS TO HIS

UNAVAILABILITY TO

TESTIFY. 10-15

POINT II - BY FAILING TO REVEAL

THE TRUE IDENTITY OF

THE CONFIDENTAL

INFORMANT THE GOVERN-

MENT VIOLATED

APPELLANT'S CONSTITU-

TIONAL RIGHT TO DUE

PROCESS. 16-21

CONCLUSION 22

APPENDIX A Al-A5

TABLE OF CASES CITED

PAGE

Pointer v. Texas,

380 U.S. 400 (1965) 10

Douglas v. Alabama,

380 U.S. 415 (1965) 19

Alford v. United States,

282 U.S. 687 (1931) 10

California v. Green,

399 U.S. 149 (1970) 11

Ohio v. Roberts,

488 U.S. 56 (1980) 11,12,14

Barber v. Page,

U.S. 719 (1968) 12

Mancusi v. Stubbs,

408 U.S. 204 (1972) 13

United States v. Ricardo

Valenzuela-Bernal,

458 U.S. 858 (1982) 13

Washington v. Texas,

388 U.S. 14 (1967) 14

Dutton v. Evans,

400 U.S. 74 (1970)

Roviaro v. United States,

353 U.S. 53 (1957) 16-18&20

United States v. Silva,

580 F. 2d 144 (5th Cir.1978) 18-19

United States v. Raddatz,

477 U.S. 682 (1980)

Suarez v. United States,

582 F. 2d 1007 (5th Cir.1978) 19

United States v. Jiles,

658 F. 2d (3rd Cir. 1981) a9

OPINION BELOW

The appellant was convicted,

following a jury trial, before the Hon.

Whitman Knapp of the United States

District Court for the Southern District

of New York.

The Second Circuit Court of Appeals

affirmed the judgment of conviction in

a written, unreported opinion, dated

March 5, 1984, (See Appendix A)

JURISDICTION

The judgment of the United States

Court of Appeals for the Second Circuit

was dated and entered on March 5, 1984,

Jurisdiction is conferred upon this

Court pursuant to 28 U.S.C. 1254(1).

STATEMENT OF THE CASE

The Second Circuit Court of Appeals

affirmed the conviction against appell-

ant which was rendered following a jury

trial in the District Court for the

Southern District of New York.

The trial commenced on July 19, 1983

and concluded on July 27, 1983, when the

jury found the appellant, Hugo Z. Segal,

guilty on every count, except count

three, in a nine count indictment.* The

indictment charged appellant with posse-

sing an unregistered machine gun, trans-

ferring an unregistered machine gun,

and failing to make and maintain the

required records in connection with the

sale of seven handguns.

The following facts were established

at trial:

*Prior to trial count four (4) of the

indictment was dismissed.

That the appellant, Hugo Z. Segal,

was authorized and licensed by the

Federal Government to deal in firearms.

In 1979, Robert Vivona, a theat-

rical special effects consultant,

started to shop at ''The Trader", an

army-navy store owned by the appellant.

Between 1979 and 1981 Vivona periodi-

cally purchased surplus goods and

articles of clothing from appellant.

During these frequent visits, Vivona

upon seeing a display case in the store,

learned that both he and appellant shared

an interest in replica weapons. Vivona

also learned that like himself, appellant

possessed a Federal Firearms Dealer's

license.

Vivona testified that appellant told

him he owned a real Schmeisser Machine

gun and that the weapon would not

properly function because of a bolt that

was missing. On a subsequent visit to

appellant's store, Vivona testified that

he actually saw the machine gun and that

it was operable. On May 6, 1982, Vivona

inquired if the weapon was for sale and

when he heard it was, he paid $700.00

for it. Vivona then testified that over

the next three months, appellant also

sold him five handguns allegedly in

violation of Federal Law.

On July 24, 1982, Vivona was arrested

by the New York City Police Department

for the illegal possession of weapons in

his home. After his arrest Vivona met

with Special Agent Frank Napoli of the

Bureau of Alcohol, Tobacco and Firearms

("ATF") and agreed to cooperate with

Federal Authorities by identifying his

source for the weapons. In return for

his cooperation, Vivona eventually

received reduced charges in the State

case pending against him.

On July 29, 1982, Vivona called

appellant, recorded the conversation,

and inquired as to the availability of

additional handguns. Later than day

Vivona, wearing a hidden transmitter,

purchased two additional handguns from

appellant. On August 16, 1982, wearing

a hidden recording device, returned to

appellant's store and again purchased

several weapons. During both trans-

actions appellant did not request any

identification from Vivona or record the

purchases made.

On October 28, 1982, Special Agent

Margaret Moore ("ATF") and a confidential

informant, "Suckow"', went to appellant's

store. ‘"Suckow" wore a hidden tape

recording device and the to of them

engaged appellant in a conversation.

Agent Moore, told appellant she needed

a gun and arranged to meet with him the

following day to pick up the weapon. On

October 29, 1982, Agent Moore and

"Suckow"' returned to the store. Again

"Suckow" wore a hidden tape recording

device and Agent Moore then purchased

a handgun from appellant.

On January 26, 1983, Agent Napoli

and another agent went to appellant's

store and demanded to see his firearms

and record books. Appellant showed them

his license but advised them he had no

such record books because he only sold

replica weapons not real firearms.

The appellant testifying in his

own behalf, admitted he sold replica

weapons to Agent Moore and Vivona but

denied selling any real weapons.

Appellant explained that he often pur-

chased job lots or bulk packages of

replica weapons and that it was possible

that these lots might sometimes contain

real weapons by mistake. Appellant also

testified that it was Vivona who had

shown the machine gun to him and told him

that he had paid $700.00 for it.

The appellant called six (6) factual

witnesses. Three of them, Innocencios

Rios, Mike Perkell, and Warner Huber

testified that they often visited

appellant's store and had never seen any-

thing bt replica weapons in the store.

Rios and Perkell stated that they had

seen Vivona in the store holding and

purchasing replica weapons from appellant

Gary Cohen testified that he had

seen Vivona in the store carrying a

machine gun in a long bag and offering to

sell it to appellant for less than

$1,000.00. Cohen then stated that

appellant had refused to buy the gun

from Vivona.

Carlos Romero who had worked at

appellant's store testified that he saw

the appellant sell agent Moore a replica

weapon after Agent Moore said she needed

a gun for protection.

The appellant also produced three

character witnesses who testified to his

excellent reputation.

Appellant was sentenced on Count

Five to three months' imprisonment to be

served on weekends, to be followed by a

four (4) years, nine month term of pro-

bation. The Court suspended imposition

of sentence on the remaining counts and

placed appellant on probation for a

period of five (5) years on each count,

to run concurrently with the sentence

imposed on Count Five.

Appellant is free on bail pending

the outcome of this petition.

10

REASONS FOR GRANTING THE WRIT

POINT I

APPELLANT WAS DENIED HIS RIGHT

OF CONFRONTATION, BY THE

ADMISSION INTO EVIDENCE OF THE

TAPED CONVERSATIONS MADE BY

THE CONFIDENTIAL INFORMANT,

WITHOUT A SHOWING AS TO HIS

UNAVAILABILITY TO TESTIFY.

The rights of a defendant under the

Sixth Amendment include the right..."'to

be confronted with the witnesses against

him."" This right to confrontation has

been held to be fundamental. Pointer v.

Texas, 580 U.S. 400 (1965). Inherent

in this is the belief that the use of

cross-examination is crucial to a

defendant's ability to obtain a fair

trial. See: Douglas v, Alabama, 380

U.S. 415 (1965); Alford v. United States,

282 U.S. 687 (1931). Nor would it be

frivolous to argue that the defendant's

constitutional rights include a Govern-

mental obligation to produce each and

every witness whose declarations it seeks

ll

to use, California v. Green, 399 U.S.

(1970) J. Harlan, concurring opinion,

In the case at bar the Government used

the testimony of Agent Moore to intro-

duce a secretly recorded conversation

between Agent Moore, the appellant and

a confidential informant called "Suckow".

The unexplained refusal of the Government

to produce "Suckow", who recorded the

conversation, violated appellant's right

to confront and cross-examine "'Suckow".

In Ohio v. Roberts, 448 U.S. 56

(1980) this Court established a two part

standard which had to be met before the

prior statements of an unavailble witness

could be introduced. First, the

Government is required to show that a

good faith effort has been made to pro-

duce the non-appearing witness. Once

this is established, it must then be

shown that the statement sought to be

introduced bears sufficient "indicia of

reliability" that the otherwise hearsay

statement is worthy of trust. Ohio v.

Roberts, supra at 65. At appellant's

trial the government violated this

standard by failing to produce 'Suckow"

or explain why he was not called as a

witness,

In Barber v. Page, 390 U.S. 719

(1968) this Court reversed a defendants

conviction when the state failed to

explain what good faith efforts had been

made .to produce a witness whose prior

testimony had been introduced at trial.

Appellant readily concedes that no single

good faith test can be used for all cases

but here the Government failed to use

any. There was no showing that the

Government's efforts to subpeona ''Suckow"'

had failed. Cf. Ohio v. Roberts, supra,

(where attempts to subpeona the witness

had failed). Nor was there a showing

that the witness was outside the

13

jurisdictional reach of the Government's

process, Cf. Mancusi v. Stubbs, 408 U.S.

204 (1972), (where the missing witness

had become a permanent resident of a

foreign country). In short, no showing

was made at all as to why ''Suckow" was

not produced at trial to testify concern-

ing the tape recorded conversation he

made which was admitted into evidence.

It is clear that appellant was

prejudiced by the Government's failure

to explain the absence of '"'Suckow".

Both the court and the jury were left

guessing as to why "'Suckow" did not

appear. It is quite possible that the

jury wrongly believed that 'Suckow's"

absence was due in some way to appellant's

actions, In addition, appellant firmly

believes that the testimony of "Suckow"

would have been both "relevant and mater-

ial to his defense". United States v.

Ricardo Valenzuela-Bernal, 458 U.S. 858

14

(1982). This being so the Government was

obligated to advise the Court as to the

whereabouts of 'Suckow'' so that

appellant's constitutional right to

compulsory process under the Sixth

Amendment could be protected. See:

Washington v. Texas, 388 U.S. 14 (1967).

Appellant recognizes that the

Government may not be called upon to

demonstrate the unavailability of a

witness in every conceivable circumstance,

Ohio v. Roberts, supra at 65, footnote

7, citing Dutton v. Evans, 400 U.S. 74

(1970). However, this is not an example

of a situation where such a confrontation

would be useless or of little value. The

tape recorded conversation involved a

critical aspect of the Government's case

against the appellant. Without the

ability to cross-examine '"Suckow"

appellant had no opportunity to determine

"Suckow's" role in the Government's case

15

and whether previous unrecorded conversa-

tions had taken place. In short,

appellant was unable to attack the

credibility of a confidential informant

whose tape recorded conversations with

appellant and Agent Moore were introduced

at trial.

16

POINT II

BY FAILING TO REVEAL THE

TRUE IDENTITY OF THE

CONFIDENTIAL INFORMANT

THE GOVERNMENT VIOLATED

APPELLANT'S CONSTITUTIONAL

RIGHT TO DUE PROCESS,

In Roviaro v. United States, 353

U.S. 53 (1957), this Court established

that the right to due process may require

the Government to reveal to a defendant

the true identity of its confidential

informant. Here, the failure of the

Government to reveal to appellant the

true identity of "Suckow"', a confidential

informant who in essence was allowed to

testify without being called as a witness

clearly violated appellant's rights under

the due process clause,

The role played by ''Suckow" in the

investigation of appellant was a critical

part of the Government's case at trial.

He secretly recorded a conversation be-

tween himself, appellant and Agent Moore

during which Agent Moore purchased a

17

weapon from appellant. At trial Agent

Moore was called as a Government witness

and "Suckow's" tape recording was intro-

duced through her testimony. At no time

did the Government reveal the true

identity of "Suckow" or explain why they

could not.

In Roviaro, supra at page 62, this

Court recognized the difficult issues

presented and stated:

"The problem is one that

calls for balancing the public

interest in protecting the

flow of information against

the individual's right to prepare

his defense. Whether a proper

balance renders non-disclosure

erroneous must depend on

the particular circumstances

of each case, taking into

consideration the crimes charged,

the possible defense, the

possible significance of the

informers testimony, and other

relevant factors."

In an examination of appellant's

case based upon the above factors, it

becomes obvious that they point in

favor of disclosure.

18

As in Roviaro, supra, appellant was

charged with an illegal sale. Since

"Suckow" was apparently the crucial link

between appellant and Agent Moore his

involvement was not a minor one. ‘'Suckow

probably initiated the contact which led

to the ultimate transaction between

appellant and Agent Moore,

In addition, because "Suckow" did

not testify appellant was unable to

question him as to any prior conversa-

tions between himself and appellant.

This would have enabled appellant to

firmly establish his defense of not

"knowingly" selling an operable firearm

to Agent Moore. Finally, the Government

made no attempt to explain why "Suckow’'s"

identity could not be revealed to

appellant. Such a failure should be

viewed as a "relevant factor". United

States v. Silva, 580 F. 2d 144 (5th Cir,

1978). As is readily apparent, the

19

revealing of "Suckow's' true identity

would have been relevant and helpful

to appellant's defense at trial. See:

United States v. Raddatz, 447 U.S. 682

(1980).

It has been held that the Roviaro

test can be applied to three different

types of cases. See: Suarez v. United

States, 582 F. 2d. 1007 (5th Cir. 1978);

United States v. Jiles, 658 F. 2d 194

(3rd Cir. 1981). In the first type,

the informant plays a critical part in

the actions which led to the defendant's

charges. In such a case production

of the informant's identity is almost

always required. See, e.g., United

States v. Silva, supra. Herein,

appellant was confronted with the

same situation. In the other two

types of cases, the informant plays

a minor role or was a witness to the

events.

20

In these cases the Roviaro balancing

test will be more difficult to apply and

as a result may not be easily predicted,

However, appellant's case falls within

the first type and requires disclosure.

In the Government's brief to the

Court of Appeals, it was stressed that

""Suckow'' was known to appellant. Even

if true, this should not be a reason for

allowing the Government to assert its

limited privilege concerning "Suckow's"

true identity. As was stated in Roviaro,

supra at 60...."'Once the identity of the

informer has been disclosed to those who

would have cause to resent the communica-

tion, the privilege is no longer

applicable,"

Under the factual circumstances of

this case it is clear that the identity

of "Suckow" was vital to appellant's

defense. The failure of the Government

to reveal his true identity, or at least

21

show why it could not, deprived

appellant of his constitutional right

to due process.

22

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE GRANTED AND THE

JUDGMENT BELOW REVERSED.

Respectfully Submitted,

DAVID SECAL

Attorney for Appellant

Petitioner

Office & P.O. Address

Eleven Broadway

New York, NY 10004

(212) 943-5668

APPENDIX

Al

UNITED STATES COURT OF APPEALS

Second Circuit

At a stated Term of the United

States Court of Appeals for the Second

Circuit, held at the United States

Courthouse in the City of New York, on

the 5th day of March, one thousand nine

hundred and eighty-four.

Present:

HONORABLE IRVING R. KAUFMAN,

HONORABLE JAMES L. OAKES,

HONORABLE RALPH K. WINTER,

Circuit Judges.

ee eee ee ee ee ee a a a a ee ee ee a a ee x

UNITED STATES OF AMERICA,

Appellee, Docket No.

83-1388

-against-

HUGO Z. SEGAL,

Defendant-Appellant.

ee eee x

Appeal from the United States

District Court for the Soutern District

of New York.

A2

This cause came on to be heard on

the transcript of record from the United

States District Court for the Southern

District of New York, and was argued by

counsel,

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed

that the judgment of said District Court

be and it hereby is affirmed.

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,

1. Judge Knapp did not abuse his

discretion in denying a mistrial because

of Agent Napoli's remark on the stand.

The comment was made on cross-examination

and in relation to a line of questioning

initiated by the defense on direct.

When the defense has raised but not

A3

resolved an issue on cross-examination,

the prosecution may elicit testimony to

explain it more fully. U.S. v. Pane-

bianco, 543 F. 2d 447, 455 (2d Cir. 1976)

cert. denied, 429 U.S. 1103 (1977);

U.S. v. Cirillo, 468 F. 2d 1233, 1240

(2d Cir. 1972), cert. denied, 410 U.S.

989 (1973). Nor did the remark identify

specific unrelated acts of a criminal

| nature, as in Gregory v. U.S., 369 F. 2d

185 (D.C. Cir. 1966), after remand,

410 F. 2d 1016, cert. denied, 396 U.S.

865 (1969), on which appellant relies.

And, the judge gave a curative instruc-

tion limiting the jury's consideration

of the testimony, see U.S. v. Cirillo,

supra.

2. Segal argues his Sixth Amendment

rights were violated by the government's

| failure to disclose Suckow's status as

an informant or to produce him at trial.

This is, however, not a case in which

A4

the "informant is, in a real sense,

"unknown' to the defendant," U.S. v.

Fuentes, 563 F. 2d 527, 534 (2d Cir.),

cert. denied, 434 U.S. 959 (1977). On

the contrary, there was sufficient

evidence of Segal's awareness of Suckow's

identity, and the tapes on which Suckow's

voice was heard were furnished to Segal

several weeks before trial. The govern-

ment had no obligation to "produce the

informant at trial or to guarantee his

availability." Id.

3. We decline appellant's invitation to

overturn the well-established rule per-

mitting evidentiary use of recordings of

conversation between a government agent

and a defendant, U.S. v. White, 401

U.S. 745 (1971); U.S. v. Coven, 662 F.2d,

173 (2d Cir. 1981), cert. denied, 456

U.S. 916 (1982). The fact that Suckow

proceeded with the recording knowing its

intended purposes is adequate indication

A5

of the consent required for admission

of such evidence. U.S. v. Fuentes,

supra, 563 F. 2d at 533.

4. Appellant's other assertions,

including that relative to sufficiency

of the evidence, are equally without

merit.

5. Accordingly, the judgment of the

district court convicting Segal of

possession and transfer of an un-

registered machine gun, and failure to

maintain records in connection with the

sale of handguns, is affirmed.

JAMES L. OAKES,

RALPH K. WINTER,

Circuit Judges.