Petition for Writ of Certiorari — Palumbo v. United States
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Office ; Supreme Court, U.
=F LED
SEP 14 1984
No ALEXANDER L. STEVAS
° CLERK
in the
Supreme Court
of the
United States
October Term, 1984
RICHARD PALUMBO,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent
On Writ of Certiorari to the
Supreme Court of the United States
PETITION FOR WRIT OF CERTIORARI
RICHARD B. MARX, ESQUIRE
Counsel of Record for Petitioner
2250 S.W. Third Avenue, Third Floor
Miami, Florida 33129
(305) 854-1555
QUESTIONS PRESENTED
(1) Whether the Trial Court erred in concluding
that there were exigent circumstances to justify a
warrantless non-consensual entry into Petitioner’s hotel
room by Agents of the Drug Enforcement Agency for
the purpose of making a routine felony arrest, in violation
of the Fourth Amendment to the United States
Constitution and the well established case law of Payton
vs. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d
639 (1980); Rakas vs. Illinois, 439 U.S. 128, 99 S.Ct. 421,
58 L.Ed.2d 387 (1978); Chimel vs. California, 395 U.S.
752, 89 S.Ct. 2034 (1969): Hoffa vs. United States, 385
US. 293, 87 S.Ct. 1583 (1967); Weeks vs. United States,
232 U.S. 383, 34 S.Ct. 341 (1914).
(2) Whether the Trial Court and/or the Appellate
Court erred by misinterpreting Petitioner’s defense of
diminished responsibility due to the Government’s failure
to establish the requisite mental state for the crimes,
in violation of the Fifth and Sixth amendments to the
United States Constitution.
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ................... i
TABLE OF AUTHGGII tee 5 OA iii
OPINIONS BELOW ......... era i LA 2
SURGES 5.006 TR Ae 2
STATUTES ENVOU eee 6 i CE. Sa 2
STATEMENT GF CARE i..36. ASF 4
REASONS FOR GRANTING WRIT ............ 9
CONGIAIGIUN «ow. 0. SE ee 23
CERTIFICATE OF MAILING SERVICE ....... 24
APPENDIX
Judgment and Opinion of the United States
Court of Appeals for the Eighth Circuit ... App. 1
Opinion of the United States District Court
for the Eastern District of Mivsouri ..... App. 14
Judgment and Order of the United States
District Court for the Eastern District of
eee ee App. 23
Order denying Petition for Rehearing ... App. 34
TABLE OF AUTHORITIES
Brubaker vs. Dickson,
310 F.2d 30 (9th Cir. 1962) ..............
Chimel vs. California,
ee
Coolidge vs. New Hampshire,
403 U.S. 443, 91 S.Ct. 2022,
29 L.Ed.2d 564 (1971) .................
Hinkle vs. Scurr,
677 F.2d 667 (8th Cir. 1982), cert. den.
a re alate oe ss yas «
Hoffa vs. United States,
385 U.S. 293, 87 S.Ct. 1583 (1967) .......
Hopt vs. People,
104 U.S. 631, 26 L.Ed.2d 873 (1882) ......
Katz vs. United States,
se kn cece acne cas ses
Long vs. Brewer,
667 F.2d 742 (8th Cir. 1982).............
New York vs. Belton,
i Re ae era ne
. 6 8.4
Page
TABLE OF AUTHORITIES (Continued)
Page
Payton vs. New York,
445 U.S. 573, 100 S.Ct. 1371,
63 L.Ed.2d 639 (1980) ................... i, 9,
11,22
People vs. Gorshen,
51 Cal.2d 726, 336 P.2d 492 (1959) ............ 17
People vs. Wells,
33 Cal.2d 330, 202 P.2d 53, cert. den.
Co ere 17
Rakas vs. Illinois,
439 U.S. 128, 99 S.Ct. 421,
sk sk nn 0kss swansea i, 9
Rhodes vs. United States,
282 F.2d 59 (4th Cir. 1969) cert. den.
aT ed ev db bn kd hates Oh ok 14
Rinehart vs. Brewer,
ey | 14
Roaden vs. Kentucky,
413 U.S. 496, 93 S.Ct. 2796,
ek rr eee 9, 11, 22
United States vs. Brawner,
471 F.2d 969 (D.C. Cir. 1972) ................ 14
iv
TABLE OF AUTHORITIES (Continued)
Page
United States vs. Brown,
671 F.2d 585 (D.C. Cir. 1982) ................ 14
United States vs. Bulman,
667 F.2d 1374 (lith Cir. 1982) ............... i)
United States vs. Erskind,
588 F.2d 721 (9th Cir. 1978) ................. 15
United States vs. Hammond,
642 F.2d 248 (8th Cir. 1981) ................. 18
United States vs. Houle,
603 F.2d 1297 (8th Cir. 1979) ................ 13
United States vs. Munz,
504 F.2d 1203 (10th Cir. 1974), cert. den.
aha eee ke veh 14, 15
United States vs. Zink,
612 F.2d 511 (10th Cir. 1980) ................ 17
Weeks vs. United States,
232 U.S. 383, 34 S.Ct. 341 (1914) ............ i, 13
Zaehringer vs. Brewer,
635 F.2d 734 (8th Cir. 1980) ................. 14
TABLE OF AUTHORITIES (Continwed)
Page
CONSTITUTIONAL PROVISIONS
Fourth Amendment
United States Constitution ................ 3
Fifth Amendment
United States Constitution ................ 3
Sixth Amendment
United States Constitution ................ 4
STATUTES
Tetie 16 U.S.C. GOG2 06 GOO w. so oc ccccce cca eus 4
Title 18 U.S.C. §84i(aXl) 2. 4
Title 18 U.S.C. §846 .. 0.2... 4
Title 28 U.S.C. §1254(1) . 2... n, 2
Rule 12.2(b)
Federal Rules of Criminal Procedure ........ 2,3
Rule 28
Supreme Court Rule ......................, 24
vi
TABLE OF AUTHORITIES (Continued)
Page
TEXTBOOKS
21 American Jurisprudence 2d §41 .............. 17
MISCELLANEOUS
4 Loyola University Law Review 308 “Diminished
Capacity”, Grant B. Cooper (1971) ............... 17
14 Stanford Law Review 59 “Criminal Responsibility
of the Mentally Ill”, Bernard L. Diamond
De ce eT a aeee ele 17
Chapter 32 “Diminished Capacity”, Vol 1A of
Criminal Defense Techniques, ed. by Michael
Eisenstein, Steven W. Allen and Douglas L.
Winston, pub. by Matthew Bender, rev. 1983 ... 17, 18
vii
NO.
in the
Supreme Court
of the
United States
October Term, 1984
RICHARD PALUMBO,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari to the
United States Court of Appeals
For the Eighth Circuit
PETITION FOR WRIT OF CERTIORARI
RICHARD B. MARX
LAW OFFICES OF RICHARD B. MARX
2250 S.W. THIRD AVE.
MIAMI, FLORIDA 33129
(305) 854-1555
The Petitioner, RICHARD PALUMBO, prays that
a Writ of Certiorari issue to review the Judgment and
Opinion entered on June 7, 1984, by the United States
Court of Appeals for the Eighth Circuit in a proceeding
entitled: UNITED STATES OF AMERICA,
Plaintiff/Appellee vs. RICHARD PALUMBO,
Defendant/Appellant, Docket No. 83-2153 EM.
OPINION BELOW
_ The Judgment and Opinion of the Court of Appeals
for the Eighth Circuit appears in the Appendix at page
App. 1 of this Petition for Writ of Certiorari.
JURISDICTION
The Judgment and Opinion of the Court of Appeals
was entered on June 7, 1984. A motion for extension of
time in which to file a Petition for Rehearing was filed
on June 19, 1984 and was subsequently granted. A
Petition for Rehearing was timely filed on July 2, 1984
and was denied July 17, 1984. The jurisdiction of this
Court is invoked under Title 28, U.S.C. Section 1254(1).
STATUTORY PROVISIONS INVOLVED
Rule 12.2(b) of the Federal Rules of Criminal
Procedure provides:
EXPERT TESTIMONY OF DEFENDANT’S
MENTAL CONDITION. If a defendant intends
to introduce expert testimony relating to a
mental disease or defect or any other mental
condition of the defendant bearing upon the
issue of his guilt, he shall, within the time
provided for the filing of pretrial motions or
at such later time as the court may direct,
notify the attorney for the government in writing
of such intention and file a copy of such notice
with the clerk. The Court may for cause shown
allow late filing of the notice or grant additional
time to the parties to prepare for trial or
make such other order as may be appropriate.
The Fourth Amendment to the United States
Constitution provides:
The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or things
to be seized.
The Fifth Amendment to the United States
Constitutic 1 provides in pertinent part:
No person shall be held to answer for a capital,
or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury
. nor shall be compelled in any criminal
case to be a witness against himself, nor be
deprived of life, liberty, or property, without
due process of law. . . .
The Sixth Amendment to the United States
Constitution provides in pertinent part:
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... .
STATEMENT OF THE CASE
Petitioner, Richard Palumbo, was the Defendant
in the case of United States of America vs. Richard
Palumbo, Case No. 82-0098 CR (5), in the United States
District Court for the Eastern District of Missouri, the
Honorable Clyde S. Cahill presiding. Co-Defendant, Gary
Millner pled guilty prior to trial. The jurisdiction of the
Trial Court was invoked pursuant to Title 18 U.S.C.
Section 801 et seq.
Petitioner was indicted in a two-count indictment
on charges of wilfully, knowingly and unlawfully
possessing cocaine with the intent to distribute (Title
18 U.S.C. Section 841(a)(1)) and wilfully, knowingly and
unlawfully conspiring to possess cocaine with the intent
to distribute (Title 18 U.S.C. Section 846). The amount
of cocaine involved in this case was approximately 10
ounces (TR: 32).'
“TR” refers tc the transcript of the hearings held on the
Motion to Suppress the Evidence and the Trial, which transcript
is contained in the Record on Appeal on file in the United States
Court of Appeals for the Eighth Circuit.
After a non-jury trial, Petitioner was convicted of
all charges.
The indictment and subsequent conviction took
place as a result of the following facts:
During the winter of 1981, the Petitioner met
Co-Defendant, Gary Millner (TR: 74). Millner was in
Miami, Florida, looking for a place to live while attending
college (TR: 75). Millner, who was from St. Louis, Missouri,
returned to St. Louis and had numerous meetings with
Byron Valier, a man who he had known for twelve (12)
years and with whom he had previously dealt drugs
(TR: 46, 78). These two men met from January through
April of 1982 to discuss the purchase of cocaine (TR:
80). In February of 1982, Valier entered into an agreement
with the Government to become a confidential informant
(Byron Valier hereinafter referred to as the “CI”) (TR:
45).
As of February, the Government was aware of the
pending cocaine transaction scheduled for the middie
of April. From March 19, to April 16, the exact time of
the arrival of the Petitioner and Millner in St. Louis
was discussed with the CI and it was decided that
Petitioner and the Co-Defendant would arrive on April
16, and stay at the Stouffers Riverfront Inn (TR: 57). It
is logical to assume that the Government became aware
of Petitioner’s impending arrival through the CI. They
also recorded a conversation between the Co-Defendant
and the CI on April 15 in which it was stated that
Petitioner and the Co-Defendant would arrive on April
16, and stay at Stouffers. (TR: 18).
On Petitioner’s arrival at Stouffers the night before
the cocaine transaction, he registered in Room 678 (TR:
34). The CI subsequently spoke to the Co-Defendant
and confirmed the fact that he and Petitioner were in
room 678, had the cocaine, and that the narcotics
transaction would take place in that room during the
afternoon of the following day (TR: 57).
At no time prior to the Drug Enforcement Agency
Agents’ (hereinafter referred to as Agents or DEA
Agents) entry into the hotel room did they attempt to
obtain a search or arrest warrant (TR: 27).
The morning of April 17, the CI was outfitted by
the Agents with a Kell Transmitter (TR: 19). In the
early afternoon, the CI entered Petitioner’s room (TR:
58). Via the Kell Transmitter, the Agents were able to
hear the conversations within the room from the time
of the CI’s entry to the time of Petitioner’s arrest (TR:
23). They did not hear any statements made during the
recorded conversations which suggested: (1) that there
were more than three people in the room, (those people
being the CI, the Co-Defendant and Petitioner) (TR:
23); (2) that any of the people located in the room were
armed (TR:24); (3) that Petitioner or the Co-Defendant
were aware either that a) their conversations were
being recorded or b) that Valier was a Confidential
Informant (TR: 25-26); (4) that either the CI or the
Agents located outside the room were in any danger as
a result of any actions by either Petitioner or the
Co-Defendant (TR: 26); or (5) that there was a probability
that the cocaine would be destroyed before the Agents
would be able to enter the room (TR: 32).
During the first stage of the cocaine sale, the CI
was given a small amount s» that he and the Co-Defendant
could then meet with the CI’s buyer (TR: 62). The
balance of the cocaine was taped behind a drawer in a
bureau located in the. room (TR: 64). The CI then opened
the door to the room, and the Agents entered and
arrested the Petitioner and the Co-Defendant and had
them sit on the floor near the wall (TR: 12). The CI was
then taken to another room and told the Agents where
the cocaine was hidden (TR: 32). The Agents then
re-entered the room, and, with the Petitioner and the
Co-Defendant on the floor,’ surrounded by 4 or 5 Agents,
they opened up the bureau drawer, reached behind it
and removed the cocaine (TR: 12).
Petitioner’s defense of Diminished Responsibility
Petitioner (who is now 25 years old) has been suffering
from the degenerative disease of ulcerative colitis for
17 years (TR: 145). The disease is a serious systemic
disease which involves the colon and the rectum. The
major symptoms are gastrointestinal with abdominal
pain, cramps, nausea, vomiting, weight loss, loss of
appetite, diarrhea, bloody bowel movements, nocturnal
bowel movements, malaise, anemia, anorexia and
numerous other debilitating symptoms (TR: 129). The
terminal end of the sigmoid and the rectum becomes
scarred and a condition known as Pseudopolyposes
occurs wherein the lining of the large bowel, instead of
being of normal service, becomes bumpy and irregular
and begins to look like polyps. This disease requires
*The Petitioner and Millner were placed in handcuffs at or
about the time of their arrest.
extensive care and extensive surgery. The surgery,
which is referred to as a Proctocolectomy, would consist
of a colectomy (removal of the colon) and a colostomy (a
surgical implantation of the colon exteriorized to the
abdominal wall), and then a removal of the rectum and
the ilium (a portion of the small intestine). After the
surgery, Petitioner will have to drain his stools into a
bag several times a day.
Prior to the onset of the disease, Petitioner’s mental
capabilities were normal (TR: 144). Upon diagnosis
Petitioner was prescribed various medications which
had serious adverse mental side effects (TR: 145). These
medications included: Prednisone (a steroid which is a
Cortisone derivitive drug) (TR: 145), Cortisone (TR:
208), Azulfidine (TR: 145), Phenobarbitol (TR: 247), Sulfa
Drugs, Immodium, and Lomotil (TR: 208). More
significantly, as to the Prednisone and Cortisone drugs,
the Petitioner took extremely high doses, sometimes
up to 100 milligrams a day (TR: 128). The expert witnesses
testified that the taking of heavy doses results in serious
meniai side effects and an inability to fully comprehend
one’s actions. Petitioner experienced these adverse mental
side effects to the extent that he was incapable of
forming the requisite specific intent for the crimes
charged.
REASONS FOR GRANTING WRIT
The warrantless non-consensual entry into
Petitioner’s room, absent exigent circumstances,
violated the Fourth Amendment to the United
States Constitution and cases decided by this
Court interpreting the Fourth Amendment.
Petitioner’s arrest was unlawful and the search of
his hotel room was illegal since it violated the Fourth
Amendment to the United States Constitution and several
Supreme Court cases interpreting the Fourth
Amendment. Payton vs. New York, 445 U.S. 573 (1980);
Roaden vs. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37
L.Ed.2d 757 (1973); Coolidge vs. New Hampshire, 403
US. 448, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). When the
DEA Agents entered Petitioner's room to make the
arrest, they did not have an arrest warrant or a search
warrant. The record does not support the existence of
exigent circumstances to justify the entry into the
room.
The arrest and search took place within Petitioner’s
hotel room, a place which was the legal equivalent of a
home for which he had the same constitutional protections.
Rakas vs. Illinois, 439 U.S. 128 (1978); Katz vs. United
States, 389 U.S. 347 (1967); Hoffa vs. United States, 385
U.S. 293 (1966); United States vs. Bulman, 667 F.2d
1374 (11th Cir. 1982). It is clear that Petitioner did not
waive his constitutional rights to privacy because he
was staying in a hotel room.
The DEA Agents had been aware of Petitioner’s
movements and drug related plan for more than a
month prior to the arrest but failed to obtain a warrant.
The Agent’s confidential informant had contacted the
Co-Defendant a few months prior to the transaction to
discuss the details and eventually met with Petitioner
in Miami, Florida to discuss the transaction. The Agents
knew when the Petitioner arrived in St. Louis and
knew where the Petitioner was staying the night before
the transaction took place. Well in advance of the arrest,
the Agents, through the confidential informant, knew
the following: (a) the location of the transaction (TR: 57,
93); (b) the amount of cocaine which was to be involved
(TR: 58); (c) the price of the cocaine (TR: 58, 86); (d) the
identities of the participants (TR: 48, 49); (e) “confirmation”
(telephonic) that the “sellers” had the cocaine (TR: 57):
and (f) that Petitioner and the Co-Defendant were the
only other participants in the transaction (TR: 84, 87).
The trial transcript is clear as to when the Agents
had information that a cocaine deal was to occur. The
Agents knew during March of 1982 that the cocaine
deal would occur in St. Louis (TR: 57, 58, 80). The
Agents knew on April 16, 1982 that the transaction
would be in the Stouffers Riverfront Inn and later
learned that same evening (at approximately 9:30 p.m.)
(TR: 92, 57) that the transaction would take place in
Room 678 the next day at or around noon (TR: 370).
The period of time which elapsed between the Agents’
complete knowledge of the transaction and the eventual
arrest of Petitioner 15 hours later was more than sufficient
time to obtain a search or arrest warrant.
This was a well-planned drug raid by the Agents.
It is submitted that the Government had sufficient
probable cause prior to the arrest with which to obtain
a search warrant and an arrest warrant, but chose not
to do so. As a result of the Agents’ monitoring of the
10
activities within the room, the Agents knew that there
were no exigent circumstances to justify the entry into
the room to make a routine felony arrest and search.
The United States Supreme Court has held that
the Fourth Amendment to the United States Constitution
prohibits the police from making a warrantless non-
consensual entry into a suspect’s home for the purpose
of making a routine felony arrest. Payton vs. New
York, supra. It is a basic principle of Fourth Amendment
law that searches and seizures inside a home without a
warrant are presumptively unreasonable. Unless the
search and seziure falls within one of a carefully detined
set of exceptions based on the presence of exigent
circumstances, the search and seizure is unreasonable.
Roaden vs. Kentucky, supra; Coolidge vs. New Hampshire,
supra. The record fails to demonstrate that exigent
circumstances existed here other than those imagined
by the DEA Agents.
The Agents, who had been fully aware of the planned
cocaine transaction for a month or more prior to the
arrest and were fully aware of the transaction
approximately 15 hours in advance of the arrest,
apparently neglected to prepare a solid plan to assist
arresting the Petitioner. Part of the transaction included
the procedure wherein the CI and the Co-Defendant
would take a sample of the cocaine to the CI’s buyer for
approval and then the CI and the Co-Defendant would
return to Petitioner's room to complete the transaction.
This procedure is typical of narcotics transactions, but
the Agents failed to adequately prepare for it. When
the Agents realized that the Co-Defendant and the Cl
were going to leave the room, they then were faced
with a problem which they had created. The Agents
1]
felt that they had to enter the hotel room when the CI
opened the door to leave because if they waited, they
may have been confronted with a situation wherein
they could have only arrested the Co-Defendant, but
could not have arrested the Petitioner.
The Agents chose to enter Petitioner's room to
arrest him, in violation of his Fourth Amendment rights,
rather than arrest the Co-Defendant outside of the
room, which they could have lawfully done.
The Government contended that the DEA Agents
were justified in entering the Petitioner's room at the
time they did without a warrant because of exigent
circumstances. The Government argued that one or
more of a myriad of circumstances could have occurred
(the Petitioner could have destroyed the cocaine, the
Petitioner could have caused harm to the DEA Agents
[even though the Government knew, via the Kell
Transmitter, that the Petitioner was unarmed] ), but
these possibilities cannot justify such an entry. The
claimed exigent circumstances asserted by the
Government consisted of the subjective beliefs of DEA
Agents, beliefs which were the product of their
imagination as to “possibilities” of what could have
occurred had the Agents not acted when they did (TR:
11 ). Such subjective beliefs pertaining to mere possibilities
cannot furnish justification for such an entry.
Finally, the Court of Appeals has rejected the
Government's argument, in a similar case, that its delay
of more than a day in obtaining a warrant (especially
when the Government never did even attempt to obtain
a warrant) was justified.
12
The Court in United States vs. Houle, 603 F.2d
1297 (8th Cir. 1979), stated that the Government could
not be excused for undue delay (and the resultant absence
of an arrest warrant or search warrant) for needlessly
waiting four (4) hours before arresting a defendant in
his home without a warrant.
The search of Petitioner's room, subsequent to
his arrest, did not constitute a “search incident
to arrest’”’ under the Fourth Amendment to the
United States Constitution or under the cases
decided by this Court interpreting the Fourth
Amendment |
At the time the Agents conducted the search,
Petitioner was under arrest, was seated on the floor,
and was surrounded by 4 or 5 DEA Agents. The evidence
was taped behind a closed drawer in a dresser. The
clesed drawer was not reasonably accessible to the
Petitioner, and was, for ail practical purposes, under
the controi of the Agents.
The Supreme Court has consistently held that the
police may not conduct a search incident to an arrest
once there is clearly no further danger of the arrestee
obtaining evidence or weapons from the area being
searched. Chimel vs. California, 395 U.S. 752 (1969);
Weeks vs. United States, 232 U.S. 383 (1914). At the
time of the search of the room, there no longer reasonably
existed any danger that the Petitioner or Co-Defendant
could obtain any evidence or weapons.
The Government contends that the search of the
Petitioner’s hotel room was justified as a search incident
to arrest. The Government's reliance on New York vs.
13
Belton, 453 U.S. 454 (1981) and United States vs. Brown,
671 F.2d 585 (D.C. 1982) is misplaced. These cases,
though they interpret Chimel vs. California, supra, do
not furnish support for the Government's argument
that the DEA Agents were justified in searching behind
a dresser drawer to find evidence which was taped to
the inside of the bureau when the evidence was clearly
not within Petitioner's immediate control.
The Petitioner was denied due process and a
fair trial, in violation of his rights under the
Fifth and Sixth Amendments to the United States
Constitution, by the Trial Court’s and the
Appellate Court’s misinterpretation of his defense
of diminished responsibility.
Petitioner submits that his Fifth and Sixth
Amendment rights to due process and a fair trial have
been violated. The Trial Court and the Court of Appeals
both misinterpreted Petitioner's defense of diminished
responsibility. Further the Government failed to meet
its burden of proof of establishing the requisite mental
state for the crimes.
The doctrine of diminished responsibility is
recognized and followed in the Eighth Circuit of the
United States Court of Appeals [Hinkle vs. Scurr, 677
F.2d 667 (8th Cir. 1982), cert. den. 103 S.Ct. 456; Long
vs. Brewer, 667 F.2d 742 (8th Cir. 1982); Zaehringer vs.
Brewer, 635 F.2d 734 (8th Cir. 1980); Rinehart vs. Brewer,
561 F.2d 126 (8th Cir. 1977)] and is also recognized in
many other Circuits [Brubaker vs. Dickson, 310 F.2d 30
(9th Cir. 1962); Rhodes vs. United States, 282 F.2d 59
(4th Cir. 1960), cert den. 364 U.S. 912; United States vs.
Brawner, 471 F.2d 969 (D.C. Cir. 1972); United States
14
vs. Munz, 504 F.2d 1203 (10th Cir. 1974), cert. den. 429
U.S. 1104; United States vs. Erskind, 588 F.2d 721 (9th
Cir. 1978)] This defense is used to demonstrate that a
defendant is incapable of forming the requisite mental
state (specific intent as applied here) for the crimes
charged due to a mental disease or defect.
The Supreme Court case of Hopt vs. People, 104
U.S. 631, 26 L.Ed 873 (1882) recognized the underlying
concept of the defense of diminished responsbility. The
Court there, in discussing the relevance of evidence
pertaining to the presence of a mental state (there, due
to intoxication) stated that the’ degree of the offense
depended upon wilfulness, deliberation and premeditation.
Therefore, the jury could properly consider:
evidence [of alcohol intoxication); “upon the
ground that the condition of the defendant's
mind at the time the act was committed must
be inquired after, in order to justly determine
the question as to whether his mind was capable
of deliberation, or premeditation which
accordingly, as there absent or present,
determines the degree of the crime”. (Hopt, at
page 874, emphasis added).
The Court further stated that:
“whenever the actual existence of any particular
purpose, motive or intent is a necessary element
to constitute any particular species or degree
of crime, the jury may take into consideration
the fact that the defendant was intoxicated at
the time, in determining the purpose, motive
15
or intent with which he committed the act.
(Hopt, at page 874, emphasis added).
Finally, the defense of diminished responsibility is
specifically included in the Federal Rules of Criminal
Procedure, as is set out below:
Rule 12.2(b). EXPERT TESTIMONY OF
DEFENDANT’S MENTAL CONDITION. If a
defendant intends to introduce expert testimony
relating to a mental disease or defect or any
other mental condition of the defendant bearing
upon the issue of his guilt, he shall, within the
time provided for the filing of pretrial motions
or at such later time as the court may direct,
notify the attorney for the government in writing
of such intention and file a copy of such notice
with the clerk. The Court may for cause shown
allow late filing of the notice or grant additional
time to the parties to prepare for trial or
make such other order as may be appropriate.
The defense of diminished responsibility i; distinctly
different from the defense of insanity. For the insanity
defense, one attempts to show that a given defendant
is incapable of appreciating the wrongfulness of his
conduct and has a complete lack of mental capacity.
The defense of diminished responsibility attempts to
show that the defendant is incapable of forming the
requisite mental state for the crimes charged and that
the defendant’s ability to think, contemplate, meditate
and understand the consequences and ramifications of
his actions has been significantly impaired.
16
The defense of diminished responsibility can be
used to establish the absence of the state of mind
required by the existing law defining the crime, either
by proving inability to entertain the state of mind or
by proving that, despite the capacity to entertain that
state of mind, the defendant did not in fact entertain it.
This doctrine states that a person is not to be found
guilty of a crime which requires specific intent as an
element if that person is suffering from a mental disorder
or defect, short of insanity, which prevents him from
forming the requisite specific intent. The doctrine of
diminished responsibility is not intended to serve as a
substitute for whatever definition of legal insanity is
employed in a particular jurisdiction. On the contrary,
it concerns merely the admissibility of psychiatric or
psychological evidence for the purpose of determining
whether, in fact, a particular offense or crime was
committed. Evidence of diminished responsibility is
admissible as it relates to a defendant’s ability to form
the specific intent necessary to commit a particular
crime. Long vs. Brewer, 667 F.2d 742 (8th Cir. 1982);
United States vs. Zink, 612 F.2d 511 (10th Cir. 1980);
People vs. Wells, 33 Cal.2d 330, 202 P.2d 53, cert. den.
338 U.S. 836 (1949); People vs. Gorshen, 51 Cal.2d 726,
336 P.2d 492 (1959); 21 Am Jur 2d §41; Chapter 32
“Diminished Capacity”, Vol 1A of Criminal Defense
Techniques, ed. »y Michael Eisenstein, Steven W. Allen
and Douglas L. Winston, pub. Matthew Bender, rev.
1983; 4 Loyola University Law Review 308, “Diminished
Capacity”, Grant B. Cooper (1971); and 14 Stanford
Law Review 59, “Criminal Responsibility of the Mentally
Ill”, Bernard L. Diamond (December 1961).
The Petitioner’s defense of diminished responsibility
was used due to the prolonged long-term use of various
17
prescription medications (mostly steroids). These
medications greatly impaired his ability to think clearly,
to contemplate, meditate, to understand the nature
and character of his actions and their consequences
and to be aware of the ramifications of his actions (TR:
209, 210). All of the Petitioner’s expert witnesses testified
that the Petitioner was incapable of forming the requisite
mental state for the crimes charged (TR: 131, 139, 140,
214, 304). The Petitioner did not raise an insanity defense
nor did any of his expert witnesses testify that he was
insane at the time of the commission of the crimes.
The defense need not “prove” the absence of the
required mental state, but must raise some doubt
concerning the Government’s proof of the requisite
mental state.’ Here, the Petitioner’s defense went further
than was required by law and made out a prima facie
case of diminished responsibility. All of his witnesses
testified as to his taking of medication which had adverse
mental side-effects and further testified about the aberrant
behavior which resulted from the taking of such
medication. The testimony of the Petitioner’s witnesses
supported the defense theory that the Petitioner was
incapable of forming the requisite mental state for the
crimes of which he was convicted.
Title 18 U.S.C. Sections 841(aX1) and 846 are specific
intent crimes. United States vs. Hammond, 642 F.2d
248 (8th Cir. 1981).
‘Chapter 32 “Diminished Capacity”; Vol 1A of Criminal Defense
Techniques, ed by Michael Eisenstein, Steven W. Allen and Douglas
L. Winston; pub by Matthew Bender, rev. 1983.
18
The Government failed to meet its burden of proving
beyond a reasonable doubt, the specific intent
requirements for the crimes charged.‘ The Government,
rather, furnished testimony to support its contention
that the Petitioner was not insane. The Government
failed to establish the requisite mental state for the
crimes, but also failed to offer substantial evidence to
controvert Petitioner’s defense of diminished
responsibility. It is apparent that all of the requisite
elements for the crimes charged were not proven by
the Government beyond a reasonable doubt.
Both the Trial Court and the Appellate Court
misinterpreted the Petitioner’s defense of diminished
responsibility. Both Courts instead addressed the issue
of “insanity”.
The Trial Court stated in its Opinion that the
“defense in the case as noted earlier, was the sanity of
the Defendant. . . .” (App. 25 of the Opinion of the
United States District Court). The Trial Court went on
to cite the American Law Institute definition of insanity,
A.L.I. Section 4.01 which states as follows:
(1) a defendant is insane within the meaning
of these instructions, if, at the time of the
alleged criminal conduct, as a result of mental
disease or defect, he lacks a substantial capacity
either to appreciate the wrongfulness [footnote
ommitted] of his conduct or to conform his
conduct to the requirements of law. (2) As
used in this Article the terms ‘mental disease
‘Ibid.
19
or defect’ do not include any abnormality
manifested only by repeated criminal or
otherwise anti-social conduct. (App. 25 of the
Opinion of the United States District Court
for the Eastern District of Missouri, emphasis
added).
The Trial court in its opinion discussed “sanity”
even though the issue was not that of the Petitioner's
sanity or insanity, but whether he had the ability to
form the requisite mental state for the crimes charged.
[Note: All of the following quotations are from the
Opinion of the Trial Court: App. 26 “. . . burden of
showing that the defendant was sane beyond a reasonable
doubt.”; App. 29 “ the issue presented to this court, in
light of all of the above, is whether Palumbo could
appreciate the nature, quality, severity and wrongfulness
of his actions. . . .”; App. 30 “Richard Palumbo suffered
from no serious mental disease or defect, but had a
substantial capacity to appreciate the wrongfulness of
his conduct and possessed a substantial capacity to
conform his conduct to the requirements of law”.; App.
31 “or defect to such a degree that he could not appreciate
the wrongfulness of his act in drug dealing, or that the
could not conform his conduct to the requirements of
the law.” |
The Appellate Court in attempting to address the
Petitioner’s defense of diminished responsibility,
commented on the Trial Court’s determination and stated,
“the District Court rejected the insanity defense. . . .”
(See footnote 2 at App. 6 of the Opinion of the United
States Court of Appeals; emphasis added). Further, the
Appellate Court, although properly stating that the
Petitioner’s defense at trial was that of diminished
20
responsibility stated, again in reference to the District
Court decision, that the Petitioner “had the capacity to
appreciate the wrongfulness of his conduct and to conform
his conduct to the law” (App. 6 of the Opinion of the
Court of Appeals; emphasis added), when such a statement
is only applicable to the issue of insanity. The Appellate
Court in analyzing the Petitioner’s behavior, stated
that the Petitioner conducted himself in a rational and
business-like manner. This determination flies in the
face of the testimony of Dr. Barry M. Crown, who
testified that the Petitioner could demonstrate behavior
which to the casual observer was proper and appropriate
under the circumstances when he was in fact experiencing
a psychotic episode. (TR: 236).
In light of the Trial Court’s and Appellate Court's
discussion of the Petitioner’s defense and the fact that
both Courts have viewed this defense as if it was the
defense of “insanity”, the Petitioner was denied due
process of law and was denied a fair trial because the
Courts failed to address the defense that was presented.
21
SUMMARY
When Government Agents enter an individual's
hotel room without a warrant and absent exigent
circumstances arrest him and search areas not within
the person’s, immediate control under the ruse of a
“search incident to an arrest”, this type of activity is
condemned by this Court in Payton vs. New York,
supra, and Chimel vs. California, supra.
It is submitted that the Circuit Court’s ruling with
regard to the Petitioner’s Motion to Suppress the evidence
is in direct conflict with Payton vs. New York, supra,
Roaden vs. Kentucky, supra, and Chimel vs. California,
supra, and the Fourth Amendment to the United States
Constitution.
It is further submitted that the Appellate Court's
and the Trial Court’s rulings with regard to the
Petitioner’s defense of diminished responsibility and
their failure to adequately address that defense violates
the Petitioner’s Fifth and Sixth Amendment protections
under the United States Constitution.
Upon the foregoing, it is respectfully submitted
that Certiorari should be granted to Petitioner RICHARD
PALUMBO.
CONCLUSION
Based upon the foregoing reasons, a Writ of
Certiorari should issue to review the judgment and
opinion of the Eighth Circuit Court of Appeals.
Respectfully submitted,
LAW OFFICES OF
RICHARD B. MARX
Attorney for Petitioner
2250 S.W. Third Avenue,
Third Floor
Miami, Florida 33129
(305) 854-1555
BY: /s/ RICHARD B. MARX
RICHARD B. MARX
DATED: September 10, 1984
23
CERTIFICATE OF SERVICE
I, RICHARD B. MARX, a member of the Bar of
the Supreme Court of the United States and counsel of
record for RICHARD PALUMBO, Petitioner herein,
hereby certify that on September 14, 1984, pursuant to
Rule 28, Rules of the Supreme Court, I served three (3)
copies of the foregoing Petition for Writ of Certiorari
on each of the parties herein as follows:
On the United States of America, Respondent herein,
by depositing such copies in the United States Post
Office, Miami, Florida with first class postage, prepaid,
properly addressed to the post office address of the
Honorable Rex E. Lee, Solicitor General, the above
named Respondent's counsel of record, at the Department
of Justice, Washington, D.C. 20530.
On the United States of America, Respondent herein,
by depositing such copies in the United States Post
Office, Miami, Florida, with first class postage prepaid,
properly addressed to the post office address of ROBERT
T. HAAR, the above named Respondent’s counsel of
record, at 1114 Market Street, Room 414, St. Louis,
Missouri 63101.
24
All parties required to be served have been served.
DATED: September 14, 1984.
ls| RICHARD B. MARX
RICHARD B. MARX
LAW OFFICES OF
RICHARD B. MARX
2250 S.W. Third Avenue,
Third Floor
Miami, Florida 33129
(305) 854-1555
25
Appendix
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
NO. 83-2153
UNITED STATES OF AMERICA,
Appellee,
v.
Richard Palumbo,
Appellant.
Appeal from the United States District Court
for the Eastern District of Missouri.
Submitted: March 16, 1984
Filed: June 7, 1984
Before HEANEY, BRIGHT, and McMILLIAN,
Circuit Judges.
BRIGHT, Circuit Judge.
Richard Palumbo appeals from his conviction, after
a bench trial,’ of conspiracy to distribute cocaine and
possession of cocaine with intent to distribute in violation
of 21 U.S.C. §§846 and 841(a)(1). We affirm.
Palumbo makes two allegations of error on appeal:
(1) that the district court erred in admitting into evidence
'The Honorable Clyde S. Cahill, United States District Judge
for the Eastern District of Missouri.
App. 1
cocaine seized from his hotel room by law enforcement
officers upon a non-consensual, warrantless entry; and
(2) that the evidence failed to establish that Palumbo
formed the necessary specific intent to commit the
crimes charged because he allegedly suffers from a
mental disease or defect as a result of an illness and
the medication prescried therefor.
I. Background.
For approximately sixteen years, Palumbo has
suffered from ulcerative colitis, a serious systematic
disease involving nonspecific inflammation of the colon
and the rectum. The predominant symptoms are
gastrointestinal — abdominal pain, cramps, nausea,
vomitting, loss of appetite, weight loss, and diarrhea.
He takes, and has for many years, heavy doses of
steroids to treat his condition.
The transaction leading to Paiumbo’s arrest and
conviction had its beginnings in December of 1981 in
Missouri. Palumbo’s co-defendant, Gary Millner, went
to the home of a friend, Byron Valier, to get some
cocaine. While he was there, Millner told Valier that he
had a source for cocaine in Florida. Nothing developed
as a result of this conversation until March of 1982,
when Valier, who was by then cooperating with
government agents, went to Florida for a vacation. He
contacted Millner, who had since moved to Florida, and
asked him to arrange a meeting with his source. Valier,
Millner, and Palumbo met on March 19, 1982, to arrange
a sale. Palumbo agreed to deliver a quantity of cocaine
to Valier in St. Louis and allow Valier, or his ultimate
buyer, to examine it before purchasing it.
App. 2
Millner and Palumbo arrived in St. Louis on April
16, 1982, and arranged with Valier to complete the sale
the next day. The following morning, Millner called
Valier and instructed him to come to Room 678 alone at
noon with his money. When Valier entered Room 678,
he was, unbeknownst to Palumbo and Millner, wearing
a device to transmit their conversation to agents listening
in another room. After showing Valier the cocaine,
Palumbo gave a sample to Valier and Millner, who
were to take it to Valier’s buyer waiting in another
room, allow him to inspect it, and return with the
money. As Valier and Millner opened the door to leave,
law enforcement officers announced their presence and,
with badges displayed and weapons drawn, entered
the room and arrested Millner and Palumbo. After
learning from Valier where Palumbo hid the cocaine,
the officers retrieved it from behind a dresser drawer.
II. Discussion.
A. Search and Seizure.
Palumbo argues that the district court erred in
refusing to suppress the cocaine seized from his hotel
room because (1) exigent circumstances did not justify
the officers’ non-consensual, warrantless entry, and (2)
the warrantless search was not justified as a search
incident to arrest. After reviewing the testimony at
the suppression hearing, we conclude that the district
court’s decision to deny Palumbo’s motion to suppress
was not clearly erroneous.
App. 3
1. Exigent Circumstances.
The officers originally planned that Valier would
go to Palumbo’s hotel room, get the cocaine sample,
and take it alone to Room 684, where his “buyer,”
Detective Zambo, was waiting. Zambo, carrying the
money to “complete the transaction,” would then return
to Palumbo’s room with Valier to make the arrests.
While Valier was in Palumbo’s room, however, the
officers learned, via the transmitter on Valier, that
Millner intended to accompany Valier to Room 684 to
get the money. This posed a problem for the officers.
Because Zambo could not actually give Millner the
money, he would be forced to arrest Millner in Room
684. The officers feared, however, that Palumbo would
become suspicious when Millner failed to return in a
short time and would destroy or remove the cocaine
before they could obtain a warrant for his arrest. Their
only alternative, they believed, was to arrest both
Millner and Palumbo as Valier and Millner opened the
door to leave. We believe that the officers’ fear that
Palumbo would become suspicious and destroy to cocaine
was reasonable, and created an exigency sufficient to
justify the warrantless entry and arrest. See United
States v. Wentz, 686 F.2d 653, 657 (8th Cir. 1982); United
States v. Eddy, 660 F.2d 381, 384 (8th Cir. 1981).
That the officers might have obtained a warrant
before going to the hotel is not fatal to the finding that
exigent circumstances justified their entry. The officers
were conducting an ongoing investigation, and were
not required to seek a warrant as soon as they had
probable cause to suspect a conspiracy to distribute
cocaine. Rather, they could legitimately wait in order
to gather additional evidence of conspiracy and to establish
App. 4
probable cause for the possession offense. See United
States v. Hultgren, 713 F.2d 79, 87 (5th Cir. 1983). That
the exigency might have been foreseeable does not
invalidate the entry and arrest. The important point is
that the exigency, while perhaps not unexpected, was
not created by the officers. Jd. at 88.
2. Search Incident to Arrest.
Palumbo also contends that even if exigent
circumstances justified the officers’ entry, their
subsequent search was not justified as a search incident
to arrest. Palumbo argues that the cocaine, hidden
behind a dresser drawer, was inaccessible to him because
he was handcuffed and in the presence of several officers.
The record does not unequivocally support this assertion.
Detective Zambo’s testimony at the suppression hearing
indicates that Palumbo was not handcuffed when the
officers retrieved the cocaine from behind the drawer
within an arm’s reach from where Palumbo sat. Moreover,
accessibility, as a practical matter, is not the benchmark.
The question is whether the cocaine was in the area
within the immediate control of the arrestee within the
meaning of Chimel v. California, 395 U.S. 752, 763 (1969).
This rule defines the area generally which may be-
searched, and is not constrained because the arrestee
is unlikely at the time of the arrest to actually reach
into that area. See New York v. Belton, 453 U.S. 454,
459-60 (1981) (police may search passenger compartment
of car after police have ordered passenger to leave the
vehicle); United States v. Sanders, 631 F.2d 1309, 1313
(8th Cir. 1980).
App-5
B. Diminished Responsibility.
At trial, Palumbo sought to establish the defense
of diminished responsibility, introducing expert testimony
that steroids can cause psychotic behavior and that
Palumbo, because of the steroids, suffered from a mental
impairment that adversely affected his ability to formulate
the requisite intent. The district court rejected his
defense, concluding that Palumbo suffered from no serious
mental disease or disorder and had the capacity to
appreciate the wrongfulness of his conduct and to conform
his conduct to the law. The district court determined,
beyond a reasonable doubt, that Palumbo knowingly,
willfully, and intentionally agreed to distribute cocaine
and knowingly, willfully, and intentionally possessed
cocaine with intent to distribute.’
Ample evidence supports the district court’s
determination. The crimes charged involved a transaction
which occurred over a period of a month. In handling
the transaction, Palumbo conducted himself in a rational
and businesslike manner. When he met with Valier in
Florida, he worked out the details of the transaction,
required payment in cash, discussed the physical
attributes of the cocaine he was to sell, and assured
Valier as to the quality of his intended purchase. In St.
Louis, he continued to orchestrate the transaction.
Palumbo registered at the Stouffer’s Riverfront Inn
*Palumbo asserts that the district court addressed an insanity
defense rather than one of diminished responsibility. We disagree.
The district court rejected the insanity defense and expressly
found that the evidence established that Palumbo possessed the
requisite intent necessary to establish his guilt.
App. 6
and paid for the room. When Valier came to Room 678,
Palumbo showed him the cocaine under a Panasonic
light scope, discussed its quality, and scraped off a
sample for Valier to take to his buyer. He also figured
the purchase price of the cocaine, given the quantity
for sale and the agreed-upon price.
The arrangement required Palumbo to obtain cocaine
and transport it from Florida to Missouri without detection
by authorities. The evidence indicates that potential
detection concerned Palumbo, and that he took precautions
to avoid detection. Before agreeing to meet with Valier,
Palumbo asked Millner for assurances that Valier was
not a police officer. He transported the cocaine by car
rather than by plane because of the danger of detection
in airports. On the way to St. Louis, he did not exceed
the speed limit, which was unusual according to the
Millner, and had a radio in the car to detect police
surveillance. As they waited at the hotel to complete
the transaction, Palumbo asked Millner for a description
of Valier’s car and watched for Valier’s arrival from the
window. In addition, he insisted that only Valier, and
not Valier’s ultimate purchaser, come to Room 678 to
complete the transaction. In light of this evidence, the
court did not err in concluding that Palumbo had the
requisite intent to commit the crimes charged.
Affirmed.
McMILLIAN, Circuit Judge, concurring.
I fully agree with the majority opinion’s analysis
of Palumbo’s steroid psychosis — diminished responsibility
defense. I do not agree with the majority opinion’s
analysis of the fourth amendment issues and write
App. 7
separately only to set forth my position. However,
even assuming that the warrantless arrest was not
justified by exigent circumstances or that the cocaine
was not seized from an area within the defendants’
immediate control, I think the failure to suppress was
harmless error. Accordingly, I concur in the affirmance
of the judgment of the district court.
First, I agree that the government agents were
not required to seek an arrest or search warrant as
soon as they had probable cause to suspect a conspiracy
to distribute cocaine. “[T]he government may [delay an
arrest] in the hope of ferreting out any hitherto unknown
individuals involved in the illicit undertakings, gathering
additional evidence substantiating the crimes believed
to have been committed, or discovering any other offenses
in which the suspects are involved.” United States v.
Hultgren, 713 F.2d 79, 87 (5th Cir. 1983). Cf. Payton v.
New York, 445 U.S. 573 (1980) (“routine” felony arrest
following investigation). See generally 2 W. LaFave,
Search and Seizure §6.1, at 391-92 (1978 & Supp. 1984).
However, the ongoing nature of the investigation is
only one factor to be considered in determining the
reasonableness of the warrantless arrest. United States
v Hultgren, 713 F.2d at 87. Another factor to be considered
in determining reasonableness is the opportunity to
obtain a warrant. See Vale v. Louis‘ana, 399 U.S. 30, 40
(1979) (Black, J., dissenting). Here, the agents’ knowledge
of the conspirators’ plan was accurate and relatively
complete at least several hours before the transaction
was to occur; this was not a rapidly developing situation.
I am not satisfied with the government's justification
for the warrantless arrest. The articulated precipitating
cause of the exigent circumstances in the present case
App. 8
was the government agent’s inability to transfer the
buy money to Millner,’ which would have forced the
agents to arrest Millner in the agents’ hotel room.
Millner’s failure to return to Palumbo’s hotel room
with the money would have made Palumbo nervous
and caused him to destroy or remove the cocaine before
the agents could obtain a warrant. I do not doubt that
this is a plausible sequence of events. However, in my
opinion, the agent’s understandable anxiety about the
transfer of the money alone cannot justify the warrantless
arrest. The agent’s inability to transfer the money,
although admittedly not “created” by the government
in the sense that it was not purposely arranged, would
be characteristic of a drug investigation where the actual
transaction is effected through a third party. I would
distinguish the circumstances in the present case from
those in United States vu. Hultgren, 713 F.2d at 87, in
which the unexplained failure of a transmitter worn by
the government informer during the transaction created
the genuine concern that the informer had been discovered
and that his life and those of the agents conducting the
surveillance were in danger.’
For these reasons I would conclude that the
warrantless arrest was not justified by exigent
circumstances and would hold that the district court
‘Cf. United States v. Joyce, 693 F.2d 838, 840 (8th Cir. 1982)
(reference to Drug Enforcement Administration guidelines prohibiting
transfer of illegal drugs into physical possession of persons under
investigation).
*The court in United States v. Hultgren, 713 F.2d 79, 88 (5th
Cir. 1983), concluded that the district court had properly found
App. 9
erred in failing to suppress all the evidence seized as a
result, including the cocaine.
Alternatively, assuming that the warrantless arrest
was justified by exigent circumstances, I would remand
the immediate control question to the district court for
additional findings and further consideration. I agree
that the critical question is whether the cocaine was in
an area within Palumbo’s “immediate control.” After
reviewing the record, however, I think several points
which are material to the question of immediate control
were not considered by the district court. For example,
Professor LaFave suggests that “the relevant facts
are those which show (i) what places it would be possible
for the arrestee presently to reach, and (ii), perhaps of
somewhat lesser importance, how probable it is that
the arrestee would undertake to seek means of resistance
or escape or to destroy evidence,” 2 W. LaFave, Search
and Seizure §6.3, at 415 (emphasis in original, footnote
omitted), and outlines the following factors as relevant
(Footnote 2 Continued)
that exigent circumstances justified the warrantless arrests after
considering the following factors:
the home invaded was [that of a third party], the arrest
was precipitated amidst an ongoing investigation and its
attendant uncertainties, the period of time which elapsed
before the exigent circumstances arose was relatively
short, and the precipitating factors for the arrest [, while
not unexpected,] were not deliberately created by the
government.
App. 10
to the question of where it would be possible for the
arrestee to reach:
(1) Whether or not the arrestee was placed
in some form of restraints. .. .
(2) The position of the officer vis-a-vis the
defendant in relation to the place searched.
(3) The ease or difficulty of gaining access
within the container or enclosure searched.
Certainly “the accessibility of the searched
area’ should be taken into account. .. .
(4) The number of officers present in relation
to the numer of arrestees or other persons.
Because “the physical control of the situation
exercised by the police’ is an important
consideration, it is most relevant to take account
of the number of police officers on the scene.
Id. at 415-16 (footnotes omitted).
In the present case it is unclear from the record
whether the defendants were handcuffed at the time of
the search; if so, whether they were handcuffed with
their hands behind their backs, a position of restraint
which would make any use of the hands much more
difficult; whether the defendants were seated on the
floor or in chairs or on the beds; how many agents were
in the hotel room; and where the agents were positioned
in relation to the defendants and the dresser. In addition,
the record clearly indicates that the cocaine was taped
behind the dresser drawer, a factor which limited its
App. 11
accessibility to even a desperate arrestee. For these
reasons, I would remand the immediate control question
to the district court for additional findings and further
consideration.
However, even assuming that the evidence seized*®
should have been suppressed, either because the
warrantless arrest was not justified by exigent
circumstances or, if the arrest was lawful, because the |
search was not of an area within the defendants’
immediate control, I would conclude that the failure to
suppress was harmless error. This was a bench-tried
case. The remaining evidence overwhelmingly supports
the district court’s finding that Palumbo was guilty of
conspiracy to distribute and possession with intent to
distribute. The government investigation was
substantially complete before the warrantless arrest
and seizure of the cocaine, and the government informant,
Palumbo’s coconspirator Millner and one of the
government agents testified about the conspiracy,
Palumbo’s involvement in the conspiracy and his
possession of the cocaine. Moreover, although the cocaine
and other items indicative of drug transactions were
physical evidence which connected Palumbo to the criminal
conduct charged, possession of the cocaine at the time
of the seizure is not an essential element of the crime
of conspiracy to distribute cocaine. Cf. United States v.
Byers, 600 F.2d 1130, 1132 (5th Cir. 1979) (possession of
‘If the arrest was unlawful, all the evidence seized from the
hotel room and Palumbo’s person should have been suppressed. If
the arrest was lawful, all the evidence except the cocaine, which
was not in plain view or in an area within the defendants’ immediate
control, was lawfully seized incident to arrest or in plain view.
App. 12
marijuana at the time of the seizure is not an essential
element of the crimes of conspiring to possess marijuana
with the intent to distribute it or of conspiracy to
import marijuana with the intent to distribute it).
Similarly, although possession of the cocaine is an essential
element of the crime of possession with intent to
distribute, the government does not have to introduce
the cocaine itself to establish possession.
Accordingly, I concur in the affirmance of the
judgment of the district court.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
App. 13
[FILED (Illegible)]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
Case No. 82-98 CR (4)
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD PALUMBO,
Defendant.
MEMORANDUM OPINION
On April 22, 1982, the grand jury for the Eastern
District of Missouri returned a two count indictment
charging Richard Palumbo and Gary Millner with a
conspiracy to distribute cocaine, in violation of §841(a\(1),
Title 21, U.S.C. On June 29, 1982, the Court accepted
defendant Millner’s guilty plea to Count II of the
indictment. Defendant Palumbo waived his right to a
trial by jury and the case was tried to the Court on
May 25 and 26, 1982. For the reasons detailed below,
the Court finds the defendant guilty as charged in the
indictment.
The evidence at trial indicated that Gary Millner
had known Byron A. Valier for several years and that
during this association both Valier and Millner traded
and used illegal drugs. In December of 1981 Millner
went to Valier’s house in order to obtain a small amount
App. 14
of cocaine for the personal use of he and his friends.
During the negotiation for this cocaine, Millner told
Valier that he had a source for cocaine in Florida who
could obtain large quantities of relatively pure cocaine.
Nothing came of this conversation until several weeks
later when Valier was approached by Special Agents of
the Drug Enforcement Administration and asked if he
would cooperate with them in some drug investigations.
An agreement was subsequently reached between the
Government and Valier (Government Exhibit #12)
whereby in return for his cooperation Valier would not
be charged with any drug offense which had a maximum
term of imprisonment of over five years.
On March 10, 1982, Valier, who was then cooperating
with the Government, went to Key Biscayne, Florida,
for a vacation. During the time that Valier was in
Florida he had several telephone conversations and
meetings with Millner. Valier asked Millner to arrange
a meeting with the source so that a drug sale could
take place. After repeated attempts, Millner finally
reached Palumbo and discussed the Valier proposal!
with him. Palumbo asked for assurances from Millner
that Valier was not a police officer and that he had the
money necessary to purchase the cocaine.
A meeting between the three eventually took place
at the Key Biscayne Resort and Villa on March 19,
1982. During the conversation various details of the
proposed sale were discussed. Palumbo told Valier that
he could obtain large amounts of relatively pure cocaine
for him. Palumbo told Valier that delivery in St. Louis
was possible, that Valier could examine the cocaine
prior to purchase, and that the payment had to be
made in cash.
App. 15
At one point during the conversation Valier showed
Palumbo a quantity of powder which Valier stated was
cocaine. Palumbo took some of the powder and placed
it on his hand. Palumbo commented that the “cocaine”
was not very good and that he could obtain some cocaine
that Valier could work with. During the conversation
Valier and Palumbo discussed whether the cocaine would
have an “ether or acetone wash.” At some point during
the conversation a maid knocked on the door and uttered
a statement in Spanish. Palumbo turned to the door
and responded immediately in Spanish. As the meeting
ended it was agreed that Valier and Millner would
remain in contact and work out the details of the
transaction and then contact Palumbo.
During the ensuing weeks there were several
telephone conversations between Millner in Florida
and Valier in St. Louis attempting to set a date for the
delivery of the cocaine in St. Louis. On several occasions,
however, the intended delivery was postponed.
Eventually Palumbo called Millner and stated that
he was then obtaining the cocaine and would come by
Millner’s house in Florida that evening to begin the
drive to St. Louis. Some hours later Palumbo arrived
and displayed to Millner the cocaine which he had just
obtained. Palumbo stated that the cocaine was very
good and that Valier would be pleased with it.
Sometime prior to driving with the cocaine from
Florida to St. Louis, Palumbo and Millner had a
conversation about alternate methods of transportation.
Palumbo stated that since dogs who could detect drugs
were used at airports, air transportation was dangerous.
Palumbo stated that driving the cocaine to St. Louis
App. 16
would be safer. As they began the drive to St. Louis
Palumbo showed Millner a radio which he had in the
car. Palumbo stated that the radio could be used to
detect police surveillance. Although Millner observed
that Palumbo generally drove very rapidly, Palumbo
stayed at the speed limit during the Florida to St.
Louis trip.
Upon arrival in St. Louis, Palumbo and Millner
checked into Room 678 of the Stouffer’s Riverfront
Inn. Palumbo asked Millner to call Valier to advise him
that they were in St. Louis with the cocaine and ready
to transact their business that evening. When Valier
teld Millner that his money was not available that
evening, they agreed to finalize the arrangement the
following day. That evening Millner and Palumbo went
to a Cardinal’s baseball game and later visited Laclede’s
Landing.
The following morning, Saturday, April 17, 1982,
Palumbo and Milliner rose at approximately 10:00 a.m.
Shortly thereafter Millner called Valier to finalize their
arrangements. During the waiting period, Palumbo
commented to Millner that he hoped that Valier was
not a police officer and that the deal would go smoothly
so that they could get out of St. Louis and return to
Florida. Palumbo was insistent with Millner that only
Valier come into the room to transact the business and
that Valier’s ultimate purchaser (Detective Zambo) not
be allowed into the room. Palumbo also asked Millner
for the description of Valier’s car. As they waited for
Valier to arrive, Palumbo was looking out the window
of the hotel room and eventually saw Valier’s car arrive.
He stated that he could not understand why the car
was circling. Also that morning, Millner saw Palumbo
App. 17
make some handwritten notations. (Government Exhibits
7 and 8.)
Valier eventually arrived at their room and was,
unknown to Palumbo and Millner, wearing a device to
record the conversation. (Government Exhibits 3a and
3b.)' As Valier entered the room he exchanged greeting
with Palumbo. The cocaine was removed from a dresser
or desk drawer and shown to Valier with a Panasonic
light scope provided by Palumbo. (Government Exhibit
4.) They discussed both the quality and quantity of the
xeaine Palumbo had brought. Palumbo then scraped
off a sample of the cocaine and placed it on a one dollar
bill. Valier and Millner were then to take the sample
(Government Exhibit 1) to the room occupied by Valier’s
purchaser, allow an inspection of the cocaine, and return
with the full purchase price. Valier opened the door to
leave Room 678. DEA agents then announced their
presence and with badges displayed and weapons drawn
entered the room and arrested Millner and Palumbo.
Palumbo and Millner were both placed in a seated
position in the hotel room and advised of their
constitutional rights by DEA Task Force Detective
Robert Zambo. As they were seated, within arm’s reach
of the desk or dresser, the cocaine was removed from
the drawer and seized. (Government Exhibit 1.) From
the hotel room the agents also seized the Panasonic
light scope (Government Exhibit 4) and torn pieces of
paper containing arithmetic notations (Government
‘Although agents were monitoring the transmission of the
conversation in Room 678, the agents at that time did not know
whether other co-conspirators were in the room at the hotel and
did not know whether Palumbo or Millner were armed.
App. 18
Exhibit 8). From Palumbo’s person were seized two
conversion charts showing metric and United States
weight equivalents (Government Exhibit 5), a Dial-A-
Page rental agreement (Government Exhibit 6), and a
piece of paper containing arithmetic notations indicating
the quantity of the cocaine and its price (Government
Exhibit 7).
Both Millner and Palumbo stated that they
understood their constitutional rights. They were
subsequently removed from the hotel room and taken
before the Honorable David D. Noce, United States
Magistrate, for their initial appearance. Millner and
Palumbo were then conveyed to the St. Louis County
Jail where they were detained over the weekend. During
the weekend in the jail Palumbo made several comments
to Millner about the trouble in which they currently
found themselves.
During its case in chief, the United States called
Bryon Valier, Gary Millner, and Detective Zambo as its
witnesses. Valier related his conversations with Palumbo
in Florida on March 19, 1982, and in St. Louis on April
17, 1982. He stated that at all times Palumbo conducted
himself in a rational, coherent, and businesslike fashion.
Milner testified as a result of a plea agreement reached
with the United States in which he entered a plea of
guilty to Count II of the present indictment, cooperated
with the Governmewt, and would have the United States
move for an order dismissing Count I at the time of his
sentencing. All cooperation provided by Millner is to
be made known to the sentencing Court. Millner related
his conversations with Palumbo and Palumbo’s concern
that Valier might be a police officer. He also related
Palumbo’s conversations about the danger of transporting
App. 19
drugs through airports, his caution in driving to St.
Louis, and the fact that he had never seen Palumbo
take any prescribed medications. Both Valier and Millner
identified a photograph of Palumbo (Government Exhibit
10) as what the defendant looked like during the times
that they dealt with him.
Detective Zambo testified about the investigation
which resulted in the warrantless arrests and seizures
on April 17, 1982. He testified that at his arrest Palumbo
stated that he understood each of the rights which
were read to him. Detective Zambo also testified that
he took a personal history of the defendant (Government
Exhibit 9) and that all of the information provided by
the defendant later proved to be accurate. Zambo also
testified that he found no prescribed medication in any
of Palumbo’s personal effects.
The Government and the defense entered into a
Stipulation of Anticipated Testimony that a qualified
forensic chemist would testify that the sample of cocaine
provided by Palumbo to Valier (Government Exhibit 1)
weighed approximately .20 grams and was 79% pure
cocaine. The stipulation also stated that the cocaine
seized from the drawer (Government Exhibit 2) of the
hotel room weighed approximately 245.10 grams and
was 66% pure cocaine.
During defendant’s defense both of his parents
testified for him. Both related incidents surrounding
the defendant’s childhood and the onset of ulcerative
colitis. Both noted changes in the behavior of the defendant
after the onset of this disease and both testified about
various periods of hospitalization and prescribed
medications. Mrs. Palumbo testified that the defendant
App. 20
read everything he could about ulcerative colitis and
was withdrawn and distraught about the disease and
with the keeping of appointments with his doctors.
Dr. Escoto’s deposition was read at the trial. He
diagnosed the defendant’s mental disease or defect as
a personality disorder further defined as an emotionally
unstable personality. (Escoto Deposition p.47.) Escoto
further testified that in his opinion the defendant did
not have the sufficient mental capacity to appreciate
the wrongfulness of his conduct on April 17, 1982.
(Escoto Deposition p.25.) He testified that the prolonged
use of steriods can produce psychosis, transient-psychosis,
and personality changes. (Escoto Deposition p.23.)
Dr. Escoto, however, testified that Palumbo was
logical, coherent, oriented to time, place, and person,
suffered no impairment of remote or recent memory,
suffered from no delusions or hallucinations, and was
in touch with reality. Escoto Deposition pp.26-29.) He
also testified that at the time of his interview Palumbo
suffered from no active psychosis or organic brain
dysfunction. (Escoto Deposition p.31.) Dr. Escoto also
testified that:
“he [Palumbo] was not psychotic when I talked
to him. In other words, at the time he was not
psychotic. He was able to talk, to be coherent
in his thinking. He didn’t show any evidence
of psychosis — active psychosis at that time.”
(Escoto Deposition p.15.)
James T. O’Donnell, a pharmacist with impressive
credentials, testified about the dangerous side effects
App. 21
of steriods. He stated that in any amount exceeding
replacement value, steroids can cause delirium,
hallucination, neurosis, euphoria, and an inability to
think. He testified that when treatment by steroids
terminates the patient returns to his or her normal
state within a brief period of time.
The deposition of Robert F. DeLuca, M.D., a board
certified gastroenterologist, was also admitted into
evidence at the trial. Dr. DeLuca, the physician who
treated the defendant for ulcerative colitis, offered
evidence about the disease itself and the recommended
treatment. He stated that large doses of Prednisone
and Cortisone by enema were prescribed by him for
the defendant for at least five years. DeLuca testified
that Prednisone can cause euphoria, inappropriate and
irrational behavior, problems in intellect, memory
association, orientation, and flagrant psychotic behavior,
including paranoia. He added that steroids can cause
facial swelling and an accumulation of fat in the trunk
of the body causing what is described as a “buffalo
lump.” (DeLuca Deposition pp.15-16.) He added that
the use of steroids can be associated with “steriod
psychosis” which he explained to be a disturbance in
intellect, memory, association, and orientation of the
patient that can manifest itself in bizarre behavior. He
added that, in his opinion, the behavior of the defendant
was “consistent with steriod psychosis.” (DeLuca
Deposition pp.18-19). Dr. DeLuca also testified that
there was no way to determine whether the defendant
was actually taking the amount of drug prescribed and
that there were periods when he could feel perfectly
normal. (DeLuca Deposition pp.26,30.)
App. 22
Barry M. Crown, Ph.D., a forensic psychologist,
testified that he performed a psychological evaluation
of the defendant after reviewing medical records of his
prior diagnosis and treatment. Dr. Crown testified that
the defendant suffered from apparent psychotic behavior
and that he was unable to weigh all of the alternatives
of his action. He noted that the defendant was not well
organized and that his thoughts were not realistic. He
added that the defendant had graduated from high
school with a 3.8 average on a 4.0 scale and had done
some further studies at the University of Miami.
Moisy Shopper, M.D., was the final psychiatrist
called by the defense. Dr. Shopper testified that he
interviewed the defendant and found him to be remorseful.
Dr. Shopper testified that the defendant was not psychotic,
but was socially immature and had a pervasive
developmental defect. He stated that he had not read
the investigative report compiled by the Drug
Enforcement Administration in this matter and that
his opinion regarding the defendant's ability to distinguish
right from wrong would be altered had he known that
Palumbo had stated to Millner his concerns that Valier
might be a police officer.
In rebuttal the United States called Joseph S.
Shuman, M.D. Dr. Shuman testified that he had
interviewed the defendant after reviewing the
investigative report. Dr. Shuman stated that the defendant
suffered from no mental disease or defect recognized
by the American Psychiatrie Association Diagnostic &
Statistical Manual of Mental Disorders (8d Ed. 1980)
(DSMIII). Dr. Shuman testified that the defendant was
not psychotic, schizophrenic, or suffering from any
delusions or hallucinations. After reviewing the
App. 23
investigative report, interviewing the defendant, and
reading the reports of Drs. Escoto, Shopper, and Crown,
he formed the opinion that the defendant suffered from
no serious mental disease or defect, had a substantial
capacity to understand and appreciate right from wrong,
and had a substantial capacity to conform his conduct
to the requirements of law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
From the evidence detailed above the Court finds,
beyond a reasonable doubt, that during the period
alleged in the indictment Richared Palumbo and Gary
Millner had an agreement to possess cocaine with the
intent to distribute it to Byron Valier. It is clear from
the evidence that Palumbo and Millner agreed to obtain
cocaine in Florida, somehow transport it to St. Louis,
and to eventually sell it to Valier.
It is equally clear that on April 17, 1982, Palumbo
and Millner posssesed a quantity of cocaine in St. Louis
which they intended to sell to Valier. It is undisputed
from the evidence that on that day Palumbo and Millner
did, in fact, distribute a sample of the cocaine to Valier
intending that he show it to his buyer in order to
accomplish a sale of the entire amount of cocaine brought
to St. Louis by Palumbo and Millner.
In order to sustain its burden on Count I of the
present indictment, the Government must prove beyond
a reasonable doubt that:
1) Two or more persons agreed to distribute
cocaine, and
App. 24
2) the defendant knowingly and voluntarily
joined in the agreement.
See e.g., United States v. Garcia, 655 F.2d 59 (5th Cir.
1981).
In order to sustain the charge in Count II of the
present indictment, the Government must prove beyond
a reasonable doubt that:
1) The defendant possessed cocaine, and
2) that the defendant possessed the cocaine
with the specific intent to distribute it, and
3) that the defendant did so knowingly and
intentionally.
The defense in the case, as noted earlier, was the
sanity of the defendant and his ability to form the
intent necessary to be held responsible for his actions.
In United States v. Frazier, 458 F.2d 911, 918 (8th
Cir. 1972), Judge Lay, writing for the majority, stated:
We therefore conclude that the A.L.I. [American
Law Institute] test is the rule to be followed in
this circuit: |
“(1) A defendant is insane within the meaning
of these instructions if, at the time of the
alleged criminal conduct, as a result of mental
disease or defect he lacks substantial capacity
either to appreciate the wrongfulness [footnote
App. 25
ommited] of his conduct or to conform his conduct
to the requirements of law.”
“(2) As used in this Article, the terms ‘mental
disease or defect’ do not include any abnormality
manifested only by repeated criminal or
otherwise antisocial conduct.
A defendant’s otherwise punishable conduct is,
therefore, excusable if:
1) at the time of the criminal conduct, and
2) as the result of a mental disease or defect,
3) the defendant lacked a substantial capacity
to appreciate the wrongfulness of his conduct,
or
4) the defendant lacked a substantial capacity
to conform his conduct to the requirements of
law.
The question of sanity is an issue for the fact
finder, unless a reasonable person, viewing the evidence
in the light most favorable to the Government must
necessarily possess a reasonable doubt as to the
defendant’s sanity. See, e.g., United States v. Dresser,
542 F.2d 737, 742 n.8 (8th Cir. 1976); Dusky vu. United
States, 295 F.2d 743, 755 (8th Cir. 1961), cert. denied,
368 U.S. 998 (1962); United States u Gilliss, 645 F.2d
1269, 1277 n.21 (8th Cir. 1981). Secondly, it should be
noted that lay testimony alone is sufficient for the
Government to meet its burden of showing that the
defendant was sane beyond a reasonable doubt. United
App. 26
States vu. Ming Sen Shiue, 650 F.2d 919, 923 (8th Cir.
1981); Kaufman v. United States, 350 F.2d 408, 413 (8th
Cir. 1965), cert. denied, 383 U.S. 951 (1966). Finally,
“ .. . lay testimony can be suiiicient to satisfy the
prosecution's burden of proving the defendant’s sanity,
even though there is expert testimony to the contrary.”
Dresser, supra, at 742. Dusky, supra, at 754. Perhaps
the reason for the later generality is that “in cases
involving opinions of medical experts, the probative
value of expert testimony is lessened when it is based
[as it was in many instances in the present case] on
subjective symptoms and narrative statement.” Dresser,
supra at 742. See also, Mason v. United States, 402 F.2d
732, 737-738 (8th Cir. 1978), cert. denied, 394 U.S. (1969).
The use of Prednisone was discussed in United
States v. Dresser, 542 F.2d 737 (8th Cir. 1976). In that
case the defendant was convicted of the unlawful
possession of unregistered firearms in violation of §§
5861(d) and 581(f), Title 26, U.S.C. At trial he asserted a
defense of insanity.
During his own testimony Dresser stated that he
took quantities of Prednisone which was prescribed for
his severe attacks of bronchial asthma and emphysema.
He stated on direct examination that he also experienced
“confusion, extreme elation and depression” at different
times. Dresser, supra at 741. A defense psychiatrist
testified that Prednisone “could cause mental disturbance
such as euphoria, depression and psychotic effects. Jd.
A second defense psychiatrist testified that Dresser
lacked a substantial capacity either to appreciate the
wrongfulness of his conduct or to conform his conduct
to the requirements of law on the date of the offense.
App. 27
This psychiatrist stated that this lack of responsibility
was related to the use of Prednisone. /d.
On cross examination, however, the defendant
conceded that he was fully aware of his actions when
he constructed the unlawful bombs for which he was
charged, knew how the bombs worked, and that
construction of bombs had been his hobby for some
time.
The second defense psychiatrist testified that his
opinion regarding the defendant's lack of a substantial
capacity was based upon an examination of the defendant
four months after the offense and a “social history” as
related by the defendant and his spouse,
The Government called two lay witnesses who
had brief encounters with the defendant at the
approximate time of the offense charged in the indictment.
Both testified that the defendant’s behavior did not
appear unusual. Dresser, supra at 741. The arresting
officer testified that he advised Dresser of his
constitutional rights and that the defendant stated that
he understood them. The arresting officer further testified
that information which the defendant provided to him
at that time had proven to be accurate and that the
defendant did not appear to be confused. The agent
testified that at the time of the arrest he had a reasonable
conversation with the defendant
In affirming the conviction, the appellate court
noted that the value of the defense psychiatrist's
testimony reflecting that Prednisone was the major
cause of Dresser’s alleged mental problems was diminished
by the statement of another psychiatrist that Dresser
App. 28
did not behave in a psychotic manner under the effects
of the drug. “Moreover, Dresser’s own testimony indicates
that he understood the nature and consequences of his
actions when he constructed the pipe bombs.” Dresser,
supra at 742.
The issue presented to this Court, in light of all of
the above, is whether Palumbo could appreciate the
nature, quality, severity, and wrongfulness of his actions
in March and April of 1982. The answer, beyond any
doubt, is that he did.
It is clear that the crimes charged in this indictment
were not “spur of the moment” transactions. They
required Palumbo to obtain ten ounces of cocaine in
Florida and have that cocaine transported, without
detection, to Missouri. The record indicates that on at
least two key occasions Palumbo expressed concern to
Millner that Valier might be a police officer. Palumbo
first sought this assurance prior to the March 19th
meeting in Florida, and later while waiting for Valier
to arrive at the Stouffer’s Riverfront Inn on April 17th.
Palumbo had a conversation with Valier in Florida
concerning the quality and quantity of cocaine to be
obtained. Valier characterized Palumbo during this
meeting as rational, coherent, and businesslike.
Prior to coming to St. Louis with the cocaine,
Palumbo explained to Millner the dangers of transporting
cocaine through air terminals. Millner noted that although
Palumbo generally drove very rapidly, he stayed at the
speed limit during the trip from Florida to St. Louis
with the cocaine. Palumbo also had with him during the
trip a radio which he stated could be used to detect
police surveillance.
App. 29
Once in St. Louis, Palumbo made some notes clearly
describing the business transaction which was the purpose
of the trip. He had with him conversion charts showing
weight equivalence on both the metric and United States’
systems. A magnifying scope with an attached light
source was brought from Florida to allow a detailed
inspection of the quality of the cocaine. During the
actual transfer of the cocaine and the money, Palumbo
was insistent that no one other than Valier come into
Room 678. It is also noted that the sample to be taken
to the ultimate purchaser was selected by Palumbo.
The sample was, as is the usual case, of a higher purity
than the remainder.
Palumbo was able to understand the Miranda rights
read to him by the arresting officer, Detective Zambo.
The information provided by Palumbo to him regarding
his personal history proved to be accurate. During
their weekend in jail Palumbo made some comments to
Millner about the fact that they were in trouble. In
short, the acts of Palumbo in the present case were
similar to the actions of drug dealers whose actions are
designed to avoid arrest, and who have acted in a
normal manner.
From the above the Court finds, beyond a reasonable
doubt, that the defendant, Richard Palumbo, knowingly,
willfully, and intentionally agreed with Gary Millner to
distribute cocaine and that subsequently he knowingly,
willfully, and intentionally possessed cocaine with the
intent to distribute it. The court further finds, beyond
a reasonable doubt, that during this period Richard
Palumbo suffered from no serious mental disease or
defect, but had a substantial capacity to appreciate the
wrongfulness of his conduct and possessed a substantial
App. 30
capacity to conform his conduct to the requirements of
law.
The Court observes that defendant was, and is
today, suffering from a debilitating physical condition,
ulcerative colitis, and that he will probably need medical
and surgical attention for his malady well into the
future. But such physical maladies, troublesome and
painful though they be, do not give a cloak of immunity
to the defendant’s criminal actions.
There is no doubt that the disease has been crippling
and embarrassing and that defendant’s mental attitude
toward life may not be the same as that of a person in
normal health. But there is no proof that he suffered
from a serious mental disease or defect to such a degree
that he could not appreciate the wrongfulness of his
acts in drug dealing, or that he could not conform his
conduct to the requirements of the law. To the contrary,
the precautions he took to avoid arrest and prosecution
are the clearest indicators that he recognized the illegal
character of his conduct and would have been able to
conform his conduct to the law had he chosen to so do.
Physical maladies alone cannot be a shield against
convictions otherwise valid; to hold thus would be to
license all sick and crippled people to become criminals.
The physical illness of the defendant will come properly
before the Court at the imposition of an appropriate
sentence, which the Court will impose on July 29, 1983.
App. 31
The Court finds the defendant GUILTY as charged
as to both Counts 1 and 2.
SO ORDERED.
Dated this 4th day of June, 1983.
/s/_ Clyde S. Cahill
Clyde S. Cahill
United States District Judge
[FILED (Ilegible)]
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
Case No. 82-98 CR (4)
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICHARD PALUMBO,
Defendant.
JUDGMENT AND ORDER
IT IS HEREBY ADJUDGED, DECLARED, and
DECREED that the Court finds Richard Palumbo, the
defendant in this action, GUILTY on both counts of.the
indictment.
Dated this 24th day of June, 1983.
ls} Clyde S. Cahill
Clyde S. Cahill
United States District Judge
App. 33
United States Court of Appeals
For the Eighth Circuit
No. 83-2153
September Term, 1983
Appeal from the United States District Court
for the Eastern District of Missouri.
United States of America,
Appellee,
v8.
Richard Palumbo,
Appellant.
Petition of appellant for rehearing filed in this
cause having been considered, it is now here ordered
by this Court that the same be, and it is hereby, denied.
July 17, 1984
App. 34
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