Petition for Writ of Certiorari — Reiter v. United States

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vgn | Supreme Court, US.

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89-1878\)

' way 31 1980

No. i

Jooeee

CLERK

IN THE —

Supreme Court of the United States

OctTosBeER TERM, 1989

MARK REITER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

RICHARD E. MISCHEL*

Attorney for Petitioner

225 Broadway

Suite 1804

New York, New York 10007

(212) 406-0181

*Counsel of Record

QUESTIONS PRESENTED

1. Whether Petitioner’s right to due process, as guaranteed

by the Fifth Amendment, was violated by the district court’s

refusal to direct the government to extend use immunity, pur-

suant to 18 U.S.C. 6001 et seq., to five defense witnesses?

2. Whether the district court’s Order excluding the opinion

testimony of Petitioner’s expert concerning certain intercepted

conversations violated his Sixth Amendment right to present a

complete defense?

3. Whether the district court’s Order denying Petitioner's

request that the government provide access to original tapes not

disclosed to the defense violated his right to a fair trial?

LIST OF PARTIES

The parties to the proceeding below were Petitioner Mark

Reiter, and Defendants-Appellants Raymond Clark, a/k/a

“Romar”, Leonard Rollack, a/k/a “Petey”, a/k/a “Peter Rollack”,

a/k/a “Peter Ifill”, Alfred Dicks and Timothy Smith, and the

Respondent, United States of America.

TABLE OF CONTENTS

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Constitutional Provisions Involved ................ 3

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Reasons For Granting the Writ -

Conflicts Exist Among the Federal Circuits, and

Between the United States Court of Appeals for

the Second Circuit and the Court of Appeals of

the State of New York, Concerning the Scope of

Defense Witness Immunity and the Role, if any,

of the Trial Court in Ordering the Prosecution to

Confer Immunity or in Conferring Immunity as

an Exercise of its Inherent Authority. Moreover,

the Issue of Defense Witness Immunity Presents

Broad and Important Questions of Federal Law

which Have not Been, but Should be, Settled by

this Court. Finally, the Petition Presents

Substantial Questions Concerning the

Fundamental Fairness of Petitioner’s Conviction.

Accordingly, the Petition for a Writ of Certiorari

ey ict ren ececsens 10

a 19

APPENDIX

Opinion of the United States Court of Appeals For

EE A-1

Order of the United States Court of Appeals For the

Second Circuit Denying The Government’s

SEES eee A-17

TABLE OF AUTHORITIES

Cases

Andresen v. Maryland, 427 U.S. 463 (1976) .....

Baldwin v. Alabama, 472 U.S. 372 (1985) .......

Commissioner v. Bilder, 369 U.S. 499 (1962) ....

Crane v. Kentucky, 476 U.S. 683 (1986) ........

Fuller vy. Oregon, 417 U.S. 40 (1974) ...........

Government of the Virgin Islands v. Smith, 615

Be We Co. os ove cic evceneeess

Layne & Bowler Corp. v. Western Well Works,

ke fd ee re rer eee

People v. Adams, 53 N.Y.2d 241, 440 N.Y.S.2d

902, 423 N.E.2d 379 (Ct. Apps. 1981) ........

People v. Chin, 67 N.Y.2d 22, 499 N.Y.S.2d 638,

490 N.E.2d 505 (Ct. Apps. 1986).............

People v. Owens, 63 N.Y.2d 824, 482 N.Y.S.2d

250, 472 N.E.2d 26 (Ct. Apps. 1984) .........

People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d

422, 409 N.E.2d 897 (Ct. Apps. 1980) ........

Rice v. Sioux City Cemetery, 349 U.S. 70 (1955) .

United States v. Burns, 684 F.2d 1066 (2d Cir.

1982), cert. denied, 459 U.S. 745 (1983) ......

United States v. Capozzi, 883 F.2d 608 (8th Cir.

1989) cert. denied, ___ U.S. ____ (1990) .....

11, 12

17

14

15

15

vi

Cases:

United States v. Herman, 589 F.2d 1191 (3d Cir.

1978), cert. denied, 441 U.S. 913 (1979) ......

United States v. Morrison, 535 F.2d 223 (3d Cir.

1976), cert. denied, 429 U.S. 824 (1976) ......

United States v. Todaro, 744 F.2d 5 (2d Cir.

1984), cert. denied, 469 U.S. 1214 (1985) .....

United States v. Turkish, 623 F.2d 769 (2d Cir.

1980) cert. denied, 449 U.S. 1077 (1981) ......

UNITED STATES CONSTITUTION

Fifth Amendment .....................000005-

Sixth Amendment .....................000005-

STATUTES INVOLVED

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9, 12, 13

No.

IN THE

Supreme Court of the United States

OctToser TERM, 1989

MARK REITER,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioner Mark Reiter respectfully prays that a Writ of

Certiorari be issued to review the Order of the United States

Court of Appeals for the Second Circuit, entered on or about

February 26, 1990, which affirmed as to Petitioner the judgment

of the United States District Court, Southern District of New

York (Owen, J.), entered on October 24, 1988.

OPINION BELOW

The opinion of the Court of Appeals is officially reported at

897 F.2d 639, and appears as Appendix A1-16 to this Petition.

The Court of Appeals, in its February 26th Order, affirmed the

judgment of the United States District Court, Southern District

of New York, convicting Petitioner of the crimes of Racketeer-

ing, 18 U.S.C. 1961 and 1962(c), Conspiracy, 18 U.S.C. 1961 and

1962(d), Engaging in a Continuing Criminal Enterprise, 21

U.S.C. 848, Distribution and Possession With Intent To Distribute

Heroin, 21 U.S.C. 812, 841(a)(i) 841(b)(1)(B), Use of a Telephone,

21 U.S.C. 843(b), Distribution and Possession With Intent To

Distribute Heroin (prior to amendment), 21 U.S.C. 812, 841(a)(1)

and 841(b)(1)(B), and Tax Conspiracy, 18 U.S.C. 371, 26 U.S.C.

7201, and sentencing him, inter alia, to concurrent terms of life

imprisonment without parole.

The Court of Appeals also affirmed the judgments of con-

viction and sentences of Defendants-Appellants Raymond Clark,

Alfred Dicks, and Timothy Smith; however, Defendant-

Appellant Leonard Rollack’s conviction was reversed and the

matter remanded for a new trial.

The government petitioned for rehearing as to that part of

the order reversing Defendant-Appellant Rollack’s conviction.

On May 4, 1990, the government’s application was denied. The

Order denying rehearing appears as Appendix A-17 to this

Petition.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C. 1254.

The Court of Appeals’ Order sought to be reviewed was filed

on or about February 26, 1990. This Petition for a Writ of Cer-

tiorari is filed within ninety (90) days of the judgment of

conviction.

CONSTITUTIONAL PROVISIONS INVOLVED

Fifth Amendment:

“No person 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”.

Sixth Amendment:

“In all criminal prosecutions, the accused shall enjoy

the right *** to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor”.

STATUTES INVOLVED

18 U.S.C. 6001:

“As used in this part

(1) ‘agency of the United States’ means any executive

department as defined in section 101 of title 5, United

States Code, a military department as defined in sec-

tion 102 of title 5, United States Code, the Atomic

Energy Commission, the China Trade Act registrar

appointed under 53 Stat. 1432 (15 U.S.C. sec. 143),

the Civil Aeronautics Board, the Commodity Futures

Trading Commission, the Federal Communications

Commission, the Federal Deposit Insurance Corpora-

tion, the Federal Maritime Commission, the Federal

Power Commission, the Federal Trade Commission,

the Interstate Commerce Commission, the National

Labor Relations Board, the National Transportation

Safety Board, the Railroad Retirement Board, an arbi-

tration board established under 48 Stat. 1193 (45 U.S.C.

sec. 157), the Securities and Exchange Commission,

the Subversive Activities Control Board, or a board

established under 49 Stat. 31 (15 U.S.C. sec. 715d);

(2) ‘other information’ includes any book, paper, docu-

ment, record, recording, or other material;

(3) ‘proceeding before an agency of the United States’

means any proceeding before such an agency with

respect to which it is authorized to issue subpenas and

to take testimony or receive other information from

witnesses under oath; and

(4) ‘court of the United States’ means any of the fol-

lowing courts: the Supreme Court of the United

States, a United States court of appeals, a United

States district court established under chapter 5,

title 28, United States Code, a United States bank-

ruptcy court established under chapter 6, title 28,

United States Code, the District of Columbia Court

of Appeals, the Superior Court of the District of

Columbia, the District Court of Guam, the District

Court of the Virgin Isiands, the United States Claims

Court, the Tax Court of the United States, the Court

of International Trade, and the Court of Military

Appeals.”

18 U.S.C. 6002:

“Whenever a witness refuses, on the basis of his

privilege against self-incrimination, to testify or pro-

vide other information in a proceeding before or an-

cillary to -

(1) a court or grand jury of the United States,

(2) an agency of the United States, or

(3) either House of Congress, a joint committee of

the two Houses, or a committee or a subcommittee

of either House, and the person presiding over the pro-

ceeding communicates to the witness an order issued

under this part, the witnss may not refuse to comply

with the order on the basis of his privilege against self-

incrimination; but no testimony or other information

compelled under the order (or any information di-

rectly or indirectly derived from such testimony or

other information) may be used against the witness

in any criminal case, except a prosecution for perjury,

giving a false statement, or otherwise failing to comply

with the order.”

18 U.S.C. 6003:

“(a) In the case of any individual who has been or

may be called to testify or provide other information

at any proceeding before or ancillary to a court of

the United States or a grand jury of the United States,

the United States district court for the judicial

district in which the proceeding is or may be held shall

issue, in accordance with subsection (b) of this sec-

tion, upon the request of the U.ited States attorney

for such district, an order requiring such individual

to give testimony or provide other information which

he refuses to give or provide on the basis of his

privilege against self-incrimination, such order to

become effective as provided in section 6002 of this

part.

(b) A United States attorney may, with the approval

of the Attorney General, the Deputy Attorney

General, the Asscciate Attorney General or any

designated Assistant Attorney General or Deputy

Assistant Attorney General, request an order under

subsection (a) of this section when in his judgment-

(1) the testimony or other information from such

individual may be necessary to the public in-

terest; and

(2) such individual has refused or is likely to

refuse to testify or provide other information on

the basis of his privilege against self-

incrimination.”

STATEMENT OF THE CASE

Petitioner Mark Reiter was charged in seven counts of a com-

plex thirteen count superseding indictment*, which identified

six defendants and eighteen co-racketeers, with violating and

conspiring to violate the racketeering laws by participating in

the management of the so-called Jackson (RICO) organization

for some seven years, the primary purpose of which was the

alleged widespread distribution of heroin in New York and

elsewhere. Petitioner was alleged to have participated in the

management of the Jackson enterprise through a pattern of

racketeering activity which included three conspiracies to

murder and murder, federal narcotics violations, conspiracy to

distribute and possess with intent to distribute heroin, distribu-

tion and possession with intent to distribute heroin on three

separate dates, and unlawful use of a communications facility.

Petitioner was also accused in those counts of engaging in a

continuing criminal enterprise, and with several of the predicate

acts comprising the alleged pattern of racketeering activity, viz:

federal narcotics violations (two counts) and unlawful use of

a telephone, and, finally, of conspiring to impede the Internal

Revenue Service in ascertainment and collection of taxes.

Petitioner and four of his named co-defendants pleaded not

guilty and jointly proceeded to trial before Honorable Richard

Owen, U.S.D.J., and a jury. The trial, which lasted approximate-

ly three and one half months, consisted of some sixty govern-

ment witnesses and three witnesses in rebuttal to Petitioner’s

case. Petitioner, who did not testify, presented the testimony of

sixteen witnesses; co-defendant Rollack presented four witnesses.

In addition, numerous exhibits, including tape recorded

telephone conversations and videotapes, were admitted into

evidence, and many stipulations were read to the jury.

The success of the government’s case against Petitioner

primarily depended upon the testimony of fourteen persons who

* Petitioner was named as a defendant in the twelfth superseding indictment,

(12S) 87 Cr. 132.

had agreed to testify against Petitioner and/or his co-defendants

in return for favorable cooperation agreements. Many of these

witnesses were identified in this indictment and/or earlier in-

dictments as co- defendants or co-racketeers.

Both prior to and after the government rested, Petitioner re-

quested the government to grant use immunity, pursuant to 18

U.S.C. 6001 et. seq., to five witnesses who were willing to pro-

vide exculpatory testimony but who, after consultation with

counsel, decided to invoke their Fifth Amendment privilege. In

each instance, the government refused to grant defense witness

immunity. Applications were then made to the district court to

direct the government to grant immunity to the five proposed

witnesses, and each application was denied. Consequently, none

of the witnesses testified.

Similar to the governmer .’s cooperating witnesses, three of

the proposed defense witnesses were named as defendants or

co-racketeers in this and preceding indictments. One of the pro-

posed defense witnesses (Renee Gary) had been given use im-

munity before the federal grand jury investigating this case.

Another witness (Olga Endara) was a target of the same tax in-

vestigation as was a witness (Frank DiStefano) who was

cooperating with the government against Petitioner. In effect,

the government immunized its witness’s testimony, but declined

to immunize the testimony of an identically situated defense

witness.

In addition to denying Petitioner the testimony of five

witnesses, the district court ruled inadmissible the proffered

testimony of a licensed private investigator, who had con-

siderable experience in electronic surveillance, concerning his

interpretation of certain electronically intercepted telephone

conversations between Petitioner and other persons named in

the indictment as defendants and/or co-racketeers, or persons

Petitioner was alleged to have supervised in connection with his

continuing criminal enterprise.

The testimony of the defense expert was proferred to rebut

the testimony of the government’s expert that many of the

electronically intercepted conversations, which were played for

the jury, were coded narcotics and narcotics related conversa-

tions. The district court ruled the defense witness’s testimony

inadmissible because Petitioner had not testified, noting that

“if Mr. Reiter were to put these statements in while he is on the

witness stand, that might be one thing because he is cross-

examinable ***. Otherwise, he is not cross-examinable and they

are uncross-examinable, arguably in this case, self-serving hear-

say statements” (Tr: 7690-91; 7693). In essence, admissiblity hing-

ed on Petitioner’s testimony as a witness that “[t]his is what I

meant, I said this on other occasions. Then he can be cross-

examined” (Tr: 7694).

Finally, the district court denied Petitioner’s request that the

government be directed to obtain an order unsealing the original

tapes of Petitioner’s electronically intercepted telephone con-

versations which the government chose not to use at trial. The

basis of the request was that in reviewing the “work copies” of

the wiretap, the “duplicate originals”, and the wiretap logs,

defense counsel had discovered that not only were some of the

tapes provided blank, but there were discrepancies among the

materials provided leading counsel to conclude that additional,

perhaps exculpatory, information might be contained in the

balance of the tapes not previously provided to the defense in

discovery.

At the Second Circuit, Petitioner, inter alia, contended that

his right to due process of law was violated by the denial of use

immunity to five proposed defense witnesses, pursuant to 18

U.S.C. 6001 et seq., all of whom were willing to provide ex-

culpatory evidence on his behalf in that their testimony was ex-

pected to contradict the testimony of several key witnesses who

were cooperating with the government. Petitioner pointed out

that in each instance, the proposed defense witness was willing

to testify but was intimidated by the government. In one in-

stance, one of the three assistant United States attorneys pro-

secuting this case, responding to defense counsel’s arguments

concerning the proposed testimony of alleged co-racketeer Ted

Key, stated in Mr. Key’s presence that “Ted Key has made

-aeivetttienes aamlllllll

contrary statements to the testimony that [defense counsel] an-

ticipates in our office. He can be prosecuted for the false

statements to us, if he now contends they were false. He is in

tremendous jeopardy” (Tr: 7315-16; emphasis added).

The government, relying on the Second Circuit’s opinion in

United States v. Turkish, 623 F.2d 769 [2d Cir. 1980], cert. denied

449 U.S. 1077 (1981), responded in essence that four of the pro-

posed defense witnesses were themselves targets in the investiga-

tion of this and/or related state cases and that one of the witnesses

(Olga Endara) was a target in an unrelated criminal tax in-

vestigation. As a consequence, the government’s argument con-

tinued, conferring use immunity on the proposed witnesses

would compromise the government’s or the state’s ability to pro-

secute the witnesses for their alleged participation in the crimes

under investigation. This is so because, according to the govern-

ment, it would have the “heavy burden” of establishing that its

evidence against each immunized witness had not been obtained

as a result of his or her immunized testimony. However, as

pointed out by Petitioner, the government’s case against these

witnesses was established long before this trial by information

and testimony provided by the government’s fourteen

cooperating witnesses.

Petitioner also argued at the Second Circuit that the exclu-

sion of his expert’s testimony concerning his interpretation of

certain electronically intercepted telephone conversations

violated Petitioner’s Sixth Amendment right to present witnesses

on his behalf. Petitioner argued that the district court’s ruling

in effect obligated him to waive his Fifth Amendment privilege

by himself testifying as a witness in order to avail himself of

his expert witness’s testimony. This error was compounded, Peti-

tioner argued, by the district court’s denial of his request for

an order directing the government to provide him with copies

of the original tapes which the government decided not to of-

fer into evidence at the trial.

In affirming Petitioner’s conviction the Second Circuit terse-

ly stated that “[ w]e have carefully reviewed the claims *** and

find[ |] all to be without merit” (Al6).

10

REASONS FOR GRANTING THE WRIT

CONFLICTS EXIST AMONG THE FEDERAL CIR-

CUITS, AND BETWEEN THE UNITED SIATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

AND THE COURT OF APPEALS OF THE STATE OF

NEW YORK, CONCERNING THE SCOPE OF

DEFENSE WITNESS IMMUNITY AND THE ROLE,

IF ANY, OF THE TRIAL COURT IN ORDERING

THE PROSECUTION TO CONFER IMMUNITY OR

IN CONFERRING IMMUNITY AS AN EXERCISE

OF ITS INHERENT AUTHORITY. MOREOVER,

THE ISSUE OF DEFENSE WITNESS IMMUNITY

PRESENTS BROAD AND IMPORTANT QUESTIONS

OF FEDERAL LAW WHICH HAVE NOT BEEN,

BUT SHOULD BE, SETTLED BY THIS COURT.

FINALLY, THE PETITION PRESENTS SUBSTAN-

TIAL QUESTIONS CONCERNING THE FUN-

DAMENTAL FAIRNESS OF PETITIONER'S CON-

VICTION. ACCORDINGLY, THE PETITION FOR A

WRIT OF CERTIORARI SHOULD BE GRANTED.

At the Court of Appeals for the Second Circuit, Petitioner

contended, inter alia, that his right to due process was violated

by the denial of his requests for defense witness immunity for

five witnesses. He also argued that his Sixth Amendment right

to present witnesses on his behalf was violated by the district

court's exclusion of his expert witness’s testimony concerning his

interpretation of certain electronically intercepted telephone

conversations between Petitioner and several other persons

allegedly implicated in this case as co-defendants, co-racketeers,

or supervisees in a continuing criminal enterprise. This error

was compounded by denying Petitioner access to certain original

tapes of his telephone conversations which the government decid-

ed not to use at the trial.

We submit that, because there is a conflict among the federal

circuits, as well as a conflict between the Court of Appeals for

the Second Circuit and the court of last resort in the State of

11

New York - the Court of Appeals, concerning defense witness

immunity, and the role to be assumed by the trial court, if any,

in determining whether it should be conferred, and further

because these issues have not been, but should be, settled by this

Court, certioriari to review the Second Circuit’s order affirm-

ing Petitioner’s conviction should be granted (see Baldwin v.

Alabama, 472 U.S. 372, 374 [1985]; Andresen v. Maryland, 427

US. 463, 475 n. 5 [1976]; Full. » v. Oregon, 417 U.S. 40, 42 [1974];

Commissioner v. Bilder, 369 U.S. 499, 501 [1962]).

In Government of the Virgin Islands v. Smith, 615 F.2d 964,

966 (3d Cir. 1980), the Third Circuit relying on its earlier pro-

nouncements in United States v. Herman, 589 F.2d 1191 (3d Cir.

1978), cert. denied 441 U.S. 913 (1979) (see also United States

v. Morrison, 535 F.2d 223 [3d Cir. 1976], cert. denied 429 U.S.

824 [1976]), said that,

“two possible situations [exist] in which the due pro-

cess clause might compel granting of immunity to

defense witnesses. First *** in cases where government

actions denying use immunity to defense witnesses

were undertaken with the deliberate intention of

distorting the judicial fact finding process, the court

has the remedial power to order acquittal unless on

retrial the government grants statutory immunity. ***

Secondly *** in certain cases a court may have ‘in-

herent authority to effectuate the defendant’s com-

pulsory process right by conferring a judicially

fashioned immunity upon a witness whose testimony

is essential to an effective defense’ ” (emphasis in

original).

Several circuits, including the Second, Sixth, Seventh, Ninth,

and District of Columbia, have taken positions similar to that

taken by the Third Circuit with regard to the first example as

set forth in Smith, supra, 615 F.2d at p. 966 (see United Staies

v. Burns, 684 F.2d 1066, 1077 [2d Cir. 1982], cert denied 459

U.S. 745 [1983]; United States v. Capozzi, 883 F.2d 608, 613 [8th

Cir. 1989] [citing cases], cert. denied, ___. U.S. ____ [1990)).

j

12

As noted in Capozzi, “the reeommended remedy in such cases

*** has not been a grant of judicial immunity to defense

witnesses. Rather a court should set aside the conviction and

remand the case, in order to afford the government an oppor-

tunity to immunize both government and defense witnesses pur-

suant to 18 U.S.C. 6002 and 6003” (883 F.2d at p. 613).

The second basis suggested by the Smith court, viz: that a

court has inherent power to immunize witnesses whose ex-

culpatory testimony is essential to an effective defense, has been

recognized only by the Third Circuit. In Smith, supra, the court

announced a rule which vests the trial court with the power

to immunize a potential defense witness when it is determined

that the witness can offer testimony which is clearly exculpatory

and essential to the defense case, and when the government has

no strong interest in withholding statutory immunity (615 F.2d

at p. 974). Under Smith, the court’s power to immunize witnesses

is said to exist independently of the prosecutor’s authority to

grant statutory use immunity.

The Supreme Court has not ruled on whether a court has in-

herent authority to grant use immunity (see United States v.

Capozzi, supra, 883 F.2d at p. 613) and it appears that every

circuit that has considered the question, including the Second

Circuit in United States v. Turkish, supra, 623 F.2d 769, has re-

jected the Third Circuit’s Smith holding as being a violation

of the doctrine of separation of powers (883 F.2d at p. 614 [citing

cases]). Indeed, the Eighth Circuit in Capozzi, supra, 883 F.2d

at p. 614, reaffirmed “our doubt that such a power lies in the

judiciary.”

In United States v. Turkish, supra, 623 F.2d 769, the Second

Circuit found to be without merit the defendant’s contentions

that his rights to due process, as guaranteed by the Fifth Amend-

ment, and to compulsory process, as guaranteed by the Sixth

Amendment, were violated by the denial of defense witness im-

munity to several prospective witnesses.

Rejecting the argument that “the Sixth Amendment’s Com-

pulsory Process Clause gives the defendant the right to bring

13

his witness to court and have the witness’s [privileged] testimony

heard” (623 F.2d at pp. 773-74), the court found an “[a]rguably

*** more plausible basis for defense witness immunity in the

more general and perhaps developing requirement of basic

fairness protected by the Fifth Amendment’s Due Process Clause”

(623 F.2d at p. 774). Constitutionally protected fairness, however,

is not violated by the denial of defense witness immunity in cases

where, as in Turkish, the witnesses’ testimony “would either have

been cumulative, immaterial, or impeaching only on coilateral

matters” (623 F.2d at p. 778). Nor does constitutionally protected

fairness require that defense witness immunity be ordered

“whenever it seems fair to grant it” (623 F.2d at p. 777).

Sensitive to avoiding what the Second Circuit called intru-

sions into the prosecutor’s sphere and to spare district courts the

burden of holding needless hearings (see United States v. Todaro,

744 F.2d 5, 9 [2d Cir. 1984], cert. denied, 469 U.S. 1214 [1985]),

the Turkish court set forth the following guidelines:

“[t]rial judges should summarily reject claims for

defense witness immunity whenever the witness for

whom immunity is sought is an actual or potential

target of prosecution. No hearing should be held to

establish such status. The prosecutor need only show

that the witness has been indicted or present to the

court in camera an ex parte affidavit setting forth the

circumstances that support the prosecutor’s suspicion

of the witness’ status as an actual or potential target

of prosecution to foreclose any inquiry concerning im-

munity for that witness” (623 F.2d at p. 779).

Though the Second Circuit since Turkish has “regularly upheld

district court denials of requests for defense witness immunity”

(United States v. Todaro, supra, 744 F.2d at p. 8 n. 3) and has

questioned whether it is “ever available” (United States v. Todaro,

supra, 744 F.2d at p. 6), the court has left unresolved the follow-

ing question:

“li]f a case should arise where the witness is not an

indicted defendant and the prosecutor cannot or

14

prefers not to present any claim that the witness is

a potential defendant, and if the defendant on trial

demonstrates that the witness’s testimony will clear-

ly be material, exculpatory, and not cumulative, it will

be time enough to decide whether in those cir-

cumstances a court has any proper role with respect

to defense witness immunity” (623 F.2d at pp. 778-79).

By way of contrast, the New York Court of Appeals has taken

a more expansive view of defense witness i..1munity. Beginning

with People v. Shapiro, 50 N.Y.2d 747, 759-60, 431 N.Y.S.2d 422,

429, 409 N.E.2d 897 (Ct. Apps. 1980), the court said,

“To be sure, ordinarily, exposure, whether to per-

jury or other criminal charges, is a sufficient basis for

a witness’ invocation of the privilege against self-

incrimination (citations omitted). However, there are

times when the exercise of this constitutional right may

press on a defendant’s due process right to a fair trial

and to compulsory process (citations omitted), all the

more so when, as in the present cases, the offenses are

of such a nature that the only persons capable of fur-

nishing useful testimony will be those implicated in

some way in the crime (citation omitted).

Given the power to confer immunity and thereby

to compel testimony from a witness who asserts his

privilege resides within the discretion of the prosecutor

(citation omitted), in an appropriate case it is not to

much to expect that the exercise of this prosecutorial

discretion be tempered by an obligation to respond

to such a problem. On that principle, in cases in which

witnesses favorable to the prosecution are accorded

immunity while those whose testimony would be ex-

culpatory of the defendant are not, or in ones where

the failure to grant immunity deprives the defendant

of vital exculpatory testimony, due process may be

violated (citing cases).”

One year later, in People v. Adams, 53 N.Y.2d 241, 247, 440

N.Y.S.2d 902, 904, 423 N.E.2d 379 (Ct. Apps. 1981), then

15

Associate Judge, now Chief Judge Wachtler, writing for the

court, noted that though the prosecutor has discretion to con-

fer full transactional immunity on witnesses for the prosecu-

tion or for the defense, that discretion is reviewable for abuse

“if, for instance, the prosecutor builds his case with immuniz-

ed witnesses but denies the defendant a similar opportunity or

affirmatively threatens the defendant’s witness2s with prosecu-

tion for perjury if they give evidence favorable to the defense.”

(Acord: People v. Owens, 63 N.Y.2d 824, 482 N.Y.S.2d 250, 472

N.E.2d 26 [Ct. Apps. 1984]; People v. Chin, 67 N.Y.2d 22, 32,

499 N.Y.S.2d 638, 646, 490 N.E.2d 505 [Ct. Apps. 1986}).

In the case at bar, the government entered into cooperation

agreements with fourteen individuals, in effect granting them

use immunity in return for their cooperation against Petitioner

and his co-defendants. Most of the cooperating witnesses had

been named in the indictment or preceding indictments as defen-

dants or co-racketeers, and were intimately involved with the

Jackson organization. One of the witnesses was a target in a

criminal tax investigation.

Petitioner, joined by his co-defendants, sought defense witness

immunity for five persons who, similar to the government’s

witnesses, were criminally implicated in the charges set forth

in the indictment. Another witness was also a target of the same

criminal tax investigation. A last witness had been granted use

immunity for her testimony before the grand jury. Moreover,

counsel represented to the district court that each defense witness

was expected to contradict certain key cooperating witnesses in

their testimony implicating Petitioner in the commission of the

crimes charged.

Nevertheless, Petitioner’s requests for defense witness immuni-

ty were denied. Certiorari should be granted to determine

whether Petitioner’s due process rights, as guaranteed by the

Fifth Amendment, were violated.

Secondly, the district court conditioned the admissibility of

expert testimony (concerning his interpretation of Petitioner’s

electronically intercepted telephone conversations with other

16

persons connected with this case) on Petitioner’s testifying, at

which time Petitioner could be cross-examined about what he

meant during specific conversations. Petitioner sought the ad-

mission of expert testimony to rebut the testimony of the govern-

ment’s expert that, in his opinion, some of those conversations

were coded narcotics or narcotics-related conversations. In

essence, to vindicate his Sixth Amendment right to present a

defense, Petitioner had to surrender his Fifth Amendment

privilege not to testify.

Recently, in Crane v. Kentucky, 476 U.S. 683, 690-91 (1986),

this Court said,

“(whether rooted directly in the Due Process Clause

of the Fourteenth Amendment, Chambers v. Mississip-

pi, supra, or in the Compulsory Process or Confron-

tation clauses of the Sixth Amendment (citations omit-

ted), the Constitution guarantees criminal defendants

‘a meaningful opportunity to present a complete

defense’ ***. We break no new ground in observing

that an essential component of procedural fairness is

an opportunity to be heard.”

Mindful that a criminal defendant’s rights are subject to cer-

tain limitations (see Crane v. Kentucky, supra, 476 U.S. at pp.

689-90), there is no rule, of which we are aware, that, as a

precondition to the admission of favorable testimony, the defen-

dant must first subject himself to cross- examination on that same

subject, nor is there anything in this Court’s cases which sug-

gests that there is such a rule.

Third, the prejudicial effect of the district court’s dubious rul-

ing concerning the testimony of Petitioner’s expert witness was

exacerbated by the district court’s ruling which, in effect, denied

Petitioner access to the original tapes of conversations which

the government chose not to use at trial. Defense counsel had

represented to the court that, based on the discrepancies in the

materials provided during discovery, and the testimony of two

law enforcement officers that the original tapes may have in-

formation not contained in the copies provided to counsel (Tr:

z 17

5665-66, 5959-61), there may be exculpatory information on the

original tapes to which the defense was entitled.

Certiorari should be granted to determine whether Petitioner's

Sixth Amendment right to present a defense was violated by the

district court’s rulings which excluded the expert testimony of

Petitioner’s witness unless he testified and was subject to cross-

examination and, further, denied him access to the original tape-

recorded conversations which the government chose not to use

at trial.

Finally, the issues raised in this Petition present broad policy

questions of significance to the criminal justice system and the

federal judiciary in that they implicate the powers of each in

the context of a series of interrelated and recurring problems,

viz: the circumstances, if any, under which the government

should grant immunity to defense witnesses, the remedies

available to a defendant whose witnesses were denied immuni-

ty, and the powers of the court when the government denies im-

munity to a defense witness. That the issues presented are of

significance to the public (see Layne & Bowler Corp. v. Western

Well Works, 261 U.S. 387, 393 [1923]; Rice v. Sioux City

Cemetery, 349 U.S. 70, 79 [1955]), is clear from the interests

implicated, i.e., the rights of the accused, the administration

of justice, and the role of the federal judiciary. Moreover, the

district court’s rulings concerning Petitioner’s expert witness and

access to the original tape recordings of Petitioner’s telephone

conversations, which the government chose not to use at trial,

are so questionable that certiorari should be granted for that

reason as well.

To conclude, we respectfully submit that the Petition for Cer-

tiorari should be granted to resolve the conflicts among the

several circuits, as well as the conflict between the United States

Court of Appeals for the Second Circuit and the Court of Ap-

peals, State of New York, on the issue of defense witness im-

munity. Indeed the subject itself has never been addressed by

the Supreme Court. Moreover, defense witness immunity

presents broad policy questions of significance to the criminal

18

justice system and the federal judiciary, implicating not only

the rights of all criminal defendants, but also implicating the

administration of justice and the role, if any, of the judiciary.

Lastly, certiorari should be granted to review the district court’s

questionable rulings conditioning the admissibility of expert

testimony on Petitioner’s availability for cross-examination and

denying the defense access to original tape recorded conversa-

tions which the government chose not to use at trial. Not only

were these rulings questionable but they had a direct impact

on Petitioner’s Sixth Amendment right to present a complete

defense.

1S Yaad Ge Cg EAT ONAL San 8 iE REE

7 —

ee Ce ee et ee ae

19

CONCLUSION

FOR THE REASONS STATED, WE RESPECTFULLY

PRAY THAT A WRIT OF CERTIORARI BE

GRANTED TO REVIEW THE ORDER OF THE

COURT OF APPEALS FOR THE SECOND CIRCUIT

AFFIRMING PETITIONER’S CONVICTION.

Dated: New York, New York

May 25, 1990

Respectfully submitted,

RICHARD E. MISCHEL, P.C.

225 Broadway

New York, New York 10007

(212) 406-0181

Counsel for Petitioner

APPENDIX

4 Pi ie

he , nt ‘a

A-1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

*

Nos. 31, 32, 129, 276, 413—August Term 1989

Argued: September 11, 1989

Decided: February 26, 1990

Docket Nos. 88-1493, 88-1494, 88-1500,

88-1501, 89-1226

>

UNITED STATES OF AMERICA,

Appellee,

—against—

MARK REITER, RAYMOND CLARK, a/k/a ‘‘ROMAR’”’,

LEONARD ROLLACK, a/k/a ‘‘PETEY’’, a/k/a

‘‘PETER ROLLACK’’, a/k/a ‘‘PETER IFILL’’,

ALFRED DICKS, and TIMOTHY SMITH, a/k/a

‘*HEARTBEAT’’,

Defendants-Appellants.

a

Before:

PRATT and MINER, .

Circuit Judges.*

-&-

* Shortly before the oral argument of this appeal, the third member of

the panel found it necessary to disqualify himself. As announced at

oral argument, and consistent with § 0.14(b) of the Rules of the Sec-

ond Circuit, 28 U.S.C. Rules, United States Court of Appeals for the

Second Circuit § 0.14(b), the appeal has been decided by the remaining

two judges who agree as to the disposition.

A-2

Appeals from judgments entered in the United States

District Court for the Southern District of New York,

Richard Owen, Judge, convicting various defendants of

offenses, including participation in and conspiracy to

participate in a narcotics racketeering enterprise; opera-

tion of a continuing criminal enterprise; conspiracy to

distribute, and to possess with intent to distribute, her-

Oin; possession with intent to distribute heroin; use of a

telephone to facilitate a narcotics felony; and conspiracy

to impede the Internal Revenue Service in the ascertain-

ment and collection of taxes.

Affirmed in part, reversed in part, and remanded for

new trial with respect to Rollack.

>

RICHARD E. MISCHEL, New York, NY

(Richard E. Mischel, P.C., New York,

NY, of Counsel), for Defendant-

Appellant Reiter.

PAUL J. MCCALLISTER, New York, NY,

(Kenny, McAllister & Roland, New

York, NY, of Counsel), for Defendant-

Appellant Clark.

DOUGLAS L. THOMAS, Hempstead, NY, for

Defendant-Appellant Rollack.

EDWARD M. CHIKOFSKY, New York, NY,

for Defendant-Appellant Dicks.

JAMES A. COHEN, New York, NY, for

Defendant-Appellant Smith.

PO oe ee RT ae ae eNOS

A-3

ROBERT HAMMEL, Assistant United States

Attorney for the Southern District of

New York, New York, NY (Benito

Romano, United States Attorney for the

Southern District of New York, Maria

T. Galeno, Robert W. Ray, Andrew E.

Tomback, Kerri Martin Bartlett, Assis-

tant United States Attorneys, New York,

NY, of Counsel), for Appellee.

>

PRATT, Circuit Judge:

Defendants Mark Reiter, Raymond Clark, Leonard

Rollack, Alfred Dicks, and Timothy Smith appeal from

judgments of conviction entered against them in the

United States District Court for the Southern District of

New York, Richard Owen, Judge, in connection with

their participation in and conspiracy to participate in a

racketeering enterprise organized principally to distribute

heroin.

Following a four-month trial, the jury found each

defendant guilty of every count and every predicate act

of racketeering activity submitted to the jury in which

that defendant was named. Each defendant now raises

numerous issues for review. We affirm in ali respects the

convictions of Reiter, Clark, Dicks, and Smith. For the

reasons set forth below, however, we reverse Rollack’s

conviction and remand for new trial.

A-4

I. BACKGROUND

Defendants were tried on a thirteen-count twelfth

superseding indictment, (i2S) 87 Cr. 132 (the 12S indict-

ment), that charged seven defendants with, inter alia,

participation in and conspiracy to participate in a racke-

teering enterprise. The 12S indictment charged that from

approximately January 1, 1980, to October 31, 1987,

‘the Jackson organization’’, including the organiza-

tion’s leadership, members, and associates, constituted

an enterprise ‘‘associated in fact’? within the meaning of

18 U.S.C. § 1961(4), which had as its purpose the

obtaining of income for the members of the enterprise

through a large-scale scheme to distribute heroin in

Manhattan, the Bronx, Bridgeport, Connecticut, Wash-

ington, D.C., and Boston, Massachusetts. From approx-

imately late 1983 through 1987, the Jackson

organization was headed by James Jackson, who eventu-

ally became the government’s chief witness at trial. The

indictment also charged that to protect and preserve the

enterprise, its members resorted to fraud and violence,

including murder.

Through Jackson’s testimony and other evidence, the

government presented evidence at trial that the members

of the racketeering enterprise distributed millions of dol-

lars worth of heroin over a seven-year period in various

locations on the East Coast. Additionally, the govern-

ment presented evidence that one or more of the defen-

dants charged in the 12S indictment were responsible for

at least seven murders and two attempted murders.

The jury convicted all appealing defendants of partici-

pation in a racketeering enterprise in violation of the

Racketeer Influenced and Corrupt Organizations Act

Ag heer Se,

it nein CDA Sle cin Mor

Saha titre BOP Ae MD a iam ames

a ee

A-5

(RICO), 18 U.S.C. § 1962(c), and of conspiracy to vio-

late RICO, 18 U.S.C. § 1962(d). In addition, Reiter was

also convicted of operating a continuing criminal enter-

prise, in violation of 21 U.S.C. § 848(a); two counts of

distributing heroin, in violation of 21 U.S.C. § 841;

using a telephone to facilitate the commission of a nar-

cotics felony, in violation of 21 U.S.C. § 843(b); and

conspiracy to impede the Internal Revenue Service in

ascertainment and collection of taxes, in violation of 18

U.S.C. § 371. Rollack, Smith, and Clark were each con-

victed of conspiracy to distribute and possess with intent

to distribute heroin, in violation of 21 U.S.C. § 846.

Rollack and Smith were also convicted on two counts

each of possessing heroin with intent to distribute, in

violation of 21 U.S.C. § 841.

Each defendant attacks his convictions on numerous

grounds. After careful review, we find most of defen-

dants’ arguments to be unworthy of extended treatment,

and we limit discussion to (1) Rollack’s contention that

the district court erred in trying him in absentia on the

12S indictment when he had been arraigned only on the

fourth superseding indictment (4S indictment); and (2)

Smith’s claim that the ineffectiveness of his trial counsel

mandates reversal of his convictions.

II. DISCUSSION

A. Trial of Rollack in Absentia

Rollack claims that his trial in absentia on the 12S

indictment, on which he was never arraigned, violated

his sixth amendment right of confrontation and his right

under Fed. R. Crim. P. 43 to be present at the time of

arraignment and the taking of the plea. The government

A-6

counters that Rollack waived his right to presence when,

following arraignment on the 4S indictment and after he

had knowledge that he was soon to be arraigned on the

tenth superseding indictment (the 10S indictment), Rol-

lack absconded. We hold that the 4S indictment on

which Rollack was arraigned was insufficiently similar

to the 12S indictment on which he was tried to apprise

Rollack of the nature of the proceedings against him.

Because Rollack therefore had insufficient knowledge to

waive his right to presence, trial in his absence was

improper.

A brief review of the charges against Rollack in the

4S, 10S, and 12S indictments is necessary. In the 4S

indictment, Rollack was named as a member of the

Jackson heroin distribution enterprise, and charged with

(1) distribution of heroin in July 1983 in Manhattan,

New York; (2) conspiracy to distribute heroin, based on

the July 1983 distribution; and (3) separate counts of

participation in a racketeering enterprise and conspiracy

to violate the racketeering laws. The underlying RICO

predicate acts were the July 1983 distribution and the

conspiracy charge based on that distribution.

At his arraignment on August 17, 1987, Rollack pled

not guilty to the 4S indictment. In September 1987

James Jackson entered into a formal cooperation agree-

ment with the government and supplied information

which permitted the government to charge additional

crimes against Rollack and his codefendants. Based on

the new information, the government, on October 27,

1987, filed the 10S indictment which charged Rollack

for the first time, in a predicate racketeering act, with

murdering a man named Norman Bannister and with

conspiracy to commit that murder. Rollack was also

Ae a me PE i Nt ee

A-7

charged for the first time with two new substantive

counts alleging possession of heroin with intent to dis-

tribute in two separate locations in the Bronx, New

York. These two new charges were added as new predi-

cate acts of the substantive racketeering count and new

overt acts for the heroin conspiracy charge. The 10S

indictment also realleged the July 1983 heroin distribu-

tion and the RICO predicates and overt acts based on

that distribution.

By letter dated November 2, 1987, the government

distributed to counsel copies of the 10S indictment and

scheduled arraignment for November 6, [987. Rollack’s

attorney obtained an adjournment of Rollack’s arraign-

ment to November 13, 1987, but Rollack absconded

before that date and was never arraigned on the 10S

indictment.

On February 23, 1988, the government filed the final

indictment in the case—the 12S indictment. The charges

against Rollack in the 12S indictment were identical to

those in the 10S, but the government broadened the

scope of the racketeering enterprise in the 12S indict-

ment to include new codefendants who supplied the her-

oin to Rollack and to the rest of the Jackson

distribution organization. One of the new codefendants

was also a member of the Gambino organized crime

family.

In summary, when compared with the 4S indictment

on which Rollack was arraigned, the 12S indictment, on

which he was tried in absentia, charged him with partici-

pation in a substantially broadened racketeering enter-

prise. It also included two new substantive acts of drug

distribution which were added as new predicate acts of

racketeering and new overt acts of the drug conspiracy,

A-8

and perhaps most importantly, it newly charged Rollack

with responsibility for the Bannister murder.

1. Right to Presence

A defendant enjoys both a constitutional right and a

right under Fed. R. Crim. P. 43 to be present at trial.

The constitutional right is premised on an accused’s

sixth amendment right to confront his accusers, see /Ili-

nois v. Allen, 397 U.S. 337, 338 (1970), and fifth and

fourteenth amendment due process right to be present at

certain trial-related proceedings where he is not actually

confronting witnesses or evidence against him, see Ken-

tucky v. Stincer, 482 U.S. 730, 745 (1987); United States

v. Gagnon, 470 U.S. 522, 526-27 (1985) (per curiam);

United States v. Crutcher, 405 F.2d 239, 242 (2d Cir.

1968), cert. denied, 394 U.S. 908 (1969).

The right of presence at trial has also been codified in

rule 43 which provides:

(a) Presence Required. The defendant shall be

present at the arraignment, at the time of the plea,

at every stage of the trial including the impaneling

of the jury and the return of the verdict, and at the

imposition of sentence, except as otherwise pro-

vided by this rule.

Fed. R. Crim. P. 43(a). In framing rule 43, Congress

explicitly intended to codify existing law concerning an

accused’s constitutional and common law rights of pres-

ence at trial. United States v. Fontanez, 878 F.2d 33, 35

(2d Cir. 1989). Thus rule 43 encompasses the protections

afforded by the sixth amendment confrontation clause,

the due process clause of the fifth amendment, and the

common law right of presence. Fontanez, 878 F.2d at

35; United States v. Gordon, 829 F.2d 119, 123-24

el

A-9

(D.C. Cir. 1987); United States v. Alessandrello, 637

F.2d 131, 138 (3rd Cir. 1980), cert. denied, 451 U.S. 949

(1981).

It is well established, however, that despite its consti-

tutional and statutory underpinnings, the right of pres-

ence may be waived as long as the waiver is both

knowing and voluntary. See, e.g., Taylor v. United

States, 414 U.S. 17, 18-20 (1973) (per curiam); Diaz v.

United States, 223 U.S. 442, 455-58 (1912); Fontanez,

878 F.2d at 35; United States v. Hernandez, 873 F.2d

516, 518 (2d Cir. 1989); United States v. Tortora, 464

F.2d 1202, 1208 (2d Cir.), cert. denied, 409 U.S. 1063

(1972). Indeed, rule 43(b)(1) itself provides that ‘‘[t}he

further progress of the trial * * * shall not be prevented

and the defendant shall be considered to have waived

the right to be present whenever a defendant, initially

present, * * * is voluntarily absent after the trial has

commenced * * * .”’

In Tortora, 464 F.2d at 1209, we stated that trial may

proceed in a defendant’s absence if ‘‘[i]Jt * * * clearly

appear(s] in the record * * * that the defendant was

advised when proceedings were to commence and that

he voluntarily, knowingly, and without justification

failed to be present at the designated time and place

* * * .”’ This is so because a defendant may not unilat-

erally set the time or circumstances of his trial. United

States v. Sanchez, 790 F.2d 245, 249 (2d Cir.), cert.

denied, 479 U.S. 989 (1986); Tortora, 464 F.2d at 1208;

United States v. Bentvena, 319 F.2d 916 (2d Cir.), cert.

denied, 375 U.S. 940 (1963). Instead, the defendant

bears the burden of justifying his absence from a known

proceeding against him. Sanchez, 790 F.2d at 249; Tor-

tora, 464 F.2d at 1209.

A-10

Rollack’s primary contention is that, absent arraign-

ment, he had insufficient knowledge of the proceeding

against him to ‘‘knowingly’’ waive his right to presence.

He argues that rule 43 and our language in Tortora pre-

clude trial in a defendant’s absence unless he has been

arraigned on the particular indictment that is the subject

of the trial. In Tortora, we undertook our most exten-

sive discussion of the knowledge a defendant must have

before he may waive presence and be tried in absentia:

Before a trial may proceed in the defendant's

absence, the judge must find that the defendant has

iiad adequate notice of the charges and proceedings

against him. Notice is initially given to a defendant

by the issuance of an indictment. But not until the

defendant answers the indictment by pleading in

open court to the charges therein can a court know

with certainty that the defendant has been apprised

of the proceedings begun against him. Thus no

defendant can be tried until after he personally has

entered a plea to the charge.

464 F.2d at 1209.

Rollack asserts that this language erects an absolute

barrier to trial in absentia on any indictment until a

defendant has been arraigned, because only arraignment

and plea in open court assure that the defendant had

notice of the charges against him. The government, on

the other hand, contends that Tortora means only that a

defendant must have ‘‘been apprised of the proceedings

begun against him’’. According to the government, once

a defendant has been arraigned on an indictment, and is

therefore aware that criminal proceedings have begun

against him, he may be tried in absentia on any super-

seding indictment if the district court finds, based on the

A-11

circumstances of the case, that the defendant must have

had notice of the charges against him. We disagree with

both contentions.

First, we stress that Tortora did not deal with a super-

seding indictment, but with the government’s issuance of

a first indictment. Tortora, then, holds only that when

the government initiates new criminal proceedings

against a defendant, the defendant must be arraigned

and must plead in open court in accord with rule 43(a)

to ensure that the defendant knows the proceedings have

begun against him and also knows the nature of those

proceedings. Accord United States v. Christopher, 700

F.2d 1253, 1261-62 (9th Cir.), cert. denied, 461 U.S. 960

(1983); United States v. Diacolios, No. 84 Cr. 436-CSH

(S.D.N.Y. Sept. 9, 1986) (Available on LEXIS, Genfed

Library, Dist File) (Available on WESTLAW, Federal

Database); see also 8B J. Moore, Moore’s Federal Prac-

tice ¢ 43.02[2], at 43-13 (2d ed. 1989) (‘‘In felony cases,

the defendant’s presence at arraignment [and] at the

time of plea * * * is mandatory.’’). A defendant’s

knowledge that particular proceedings have begun is so

critical that we will not permit trial in absentia based on

fine calculations of what the defendant knew, what he

might have known, or what he should have known.

Instead, we insist, as in Tortora, on a per se rule that

requires an arraignment.

This per se rule of arraignment also applies in the

superseding indictment context, at least where it serves

the same function we held critical in Tortora: notifying

a defendant that particular proceedings have been initi-

ated against him. Thus, when a superseding indictment

is sufficiently different from a prior indictment on

which the defendant has been arraigned that it is tanta-

A-12

mount to the initiation of ‘‘new’’ criminal proceedings

against the defendant, and the prior arraignment cannot

reasonably be said to have apprised the defendant of the

current proceedings, the government may not proceed in

absentia on the superseding indictment unless the defen-

dant has been arraigned on the superseder. Cf. United

States v. Londono, 659 F. Supp. 984, 987 (E.D.N.Y.

1987) (arraignment not prerequisite to trial in absentia

On superseding indictment where defendant had been

arraigned on prior indictment because, though supersed-

ing indictment added new charges, it constricted scope

of conspiracy). In such a situation, only arraignment

ensures the defendant has been apprised of the current

criminal proceeding against him.

In this case, Roliack was arraigned on the 4S indict-

ment as a One-time heroin distributor, a narcotics con-

spirator, and a narcotics racketeer, based on a single

distribution of heroin in July 1983 in Manhattan. The

12S indictment, by contrast, based in large part on the

vastly expanded evidence the government gained after

enterprise-chief Jackson began cooperating, broadened

the conspiracy in which Rollack was charged to include

not only those conspirators involved in distribution of

heroin, but also those responsible for supplying the her-

oin. It also named Rollack for the first time in a predi-

cate act alleging murder and conspiracy to commit the

Bannister murder.

The addition of the murder predicate linking Rollack

for the first time with participation in the murder and

with the violence used to protect the racketeering enter-

prise, combined with the substantially broadened scope

of the enterprise, rendered the 12S indictment suffi-

ciently different from the 4S that arraignment on the

A-13

12S indictment was required before Rollack could be

tried in absentia. In this context, only arraignment could

ensure that Rollack had notice of the proceedings and

that any waiver was ‘‘knowing’’.

Finally, the error was not harmless. In determining

whether error is harmless, we may uphold a conviction

only if the government can establish beyond a reason-

able doubt that the defendant’s absence did not create

‘‘any reasonable possibility of prejudice.’’ Fontanez, 878

F.2d at 37 (quoting United States v. Toliver, 541 F.2d

958, 965 (2d Cir. 1976)); Walker v. United States, 322

F.2d 434, 436 (D.C. Cir. 1963), cert. denied, 375 U.S.

976 (1964). See also Chapman v. California, 386 U.S.

18, 24 (1967). Where, as here, the defendant was absent

from an arraignment necessary to ensure that he had

notice of the nature of the proceedings against him as

well as all subsequent phases of the trial, the govern-

ment cannot meet its heavy burden of showing that Rol-

lack’s absence did not create ‘‘any reasonable possibility

of prejudice.’’ Christopher, 700 F.2d at 1262. We there-

fore reverse and remand Rollack’s case for new trial.

B. Ineffective Assistance of Smith’s Counsel

Defendant Smith contends that his convictions must

be reversed on grounds of ineffective assistance of coun-

sel. We disagree.

Immediately following his convictions, Smith obtained

new counsel and moved for a new trial. He argued that

his trial attorney, Wilmer Grier, had provided ineffec-

tive assistance because, inter alia, (1) she failed to move

to suppress bullets and cash found in Smith’s pockets

while he was in a hospital receiving medical attention

for a bullet wound; (2) she failed to develop through

A-14

cross-examination and to communicate to the jury

Smith’s theory of defense that chief prosecution witness,

James Jackson, would lie about Smith’s involvement in

the drug organization because Jackson felt sexually infe-

rior to Smith; and (3) she had pled guilty to a misde-

meanor forgery charge shortly before trial commenced.

He also asserted that Grier’s latenesses and absences

during the four-month trial, which led to various repri-

mands from the trial judge, to two findings of contempt

against Grier, and ultimately to the court’s ordering

Grier’s incarceration at the Metropolitan Correctional

Center for a short period in order to ensure her appear-

ance at trial, constituted ineffective assistance.

The trial court examined all of Smith’s claims under

the two-pronged test of Strickland v. Washington, 466

U.S. 668 (1984), which requires that to establish ineffec-

tive assistance of counsel, a defendant must demonstrate

both that his attorney’s conduct fell below an objective

standard of reasonableness, id. at 688, and that but for

his attorney’s unprofessional errors, the result of the

proceeding would have been different. Jd. at 694. The

court held that Grier’s failure to move to suppress evi-

dence in combination with her frequent latenesses and

absences and her entre cross-examination of Jackson,

fell below professionally reasonable standards, but that

the claim of ineffective assistance nevertheless failed

because, given the overwhelming evidence of Smith’s

guilt, he was not prejudiced by Grier’s performance.

In this appeal, Smith advances additional claims of

Grier’s ineffectiveness and now argues that the mistakes

were so pervasive that he, in effect, had no counsel at

all. He therefore urges that prejudice be presumed. See,

e.g., United States v. Cronic, 466 U.S. 648, 658-59

A-15

(1984). After careful scrutiny of the record, we hold that

Grier’s performance, though at times below an objective

standard of reasonableness, did not fall to the level of

constructive absence. In analyzing the claims premised

on Grier’s deficient performance at trial, therefore, the

trial judge correctly applied the two-part Strickland

standard that required Smith to prove prejudice, and he

correctly concluded that in the face of the overwhelming

evidence against him, Smith had not met that burden.

Nor could Smith succeed even on his present conten-

tion that the burden should be on the government to

prove beyond a reasonable doubt that Grier’s absences

did not contribute to the verdicts. See Satterwhite v.

Texas, 486 U.S. 249, 256-58 (1988); Penson v. Ohio, 109

S. Ct. 346, 353-54 (1988); Strickland, 466 U.S. at 692;

Cronic, 466 U.S. at 658-60; Sanders v. Lane, 861 F.2d

1033, 1040 (7th Cir. 1988), cert. denied, 109 S. Ct. 1323

(1989); United States ex rel. Thomas v. O’Leary, 856

F.2d 1011, 1017-19 (7th Cir. 1988); Siverson v. O’Leary,

764 F.2d 1208, 1217-21 (7th Cir. 1985).

Judge Owen did not rest his conclusion on the differ-

ing burdens of proof that apply under Strickland and

Satterwhite. He went further and made express factual

findings that Grier’s collective errors, including her

absences from trial, did not have any impact on the out-

come of the trial. In denying Smith’s motion for a new

trial, Judge Owen also expressly found that ‘‘in view of

the ‘overwhelming record support’ against Smith neither

Grier’s failure to suppress nor other instances of conced-

edly questionable and unprofessional conduct warrant a

new trial, since the outcome in my view would have

been the same even absent these incidents.’’ United

States v. Smith, No. 87 Cr. 132 (S.D.N.Y. April 10,

A-16

1989) (emphasis added). Moreover, Judge Owen found

that ‘“‘the evidence was so overwhelming and left no

doubt of guilt of murders and narcotics trafficking, tes-

tified to over nearly four months, [that] * * * [no] view

of the desirable pristine image of law requires a second

and extended trial [for] Smith where the outcome would

unquestionably be the same’’. Id. at n.8 (emphasis

added). These findings are are fully supported by the

record.

C. Other Claims

We have carefully reviewed the claims of the other

appealing defendants and, finding all to be without

merit, we affirm the convictions of each.

III. CONCLUSION

The convictions of Mark Reiter, Raymond Clark,

Alfred Dicks, and Timothy Smith are affirmed in all

respects. The conviction of Leonard Rollack is reversed

and remanded for a new trial because his trial in absen-

tia absent arraignment on the 12S indictment was

improper.

A-17

United States Court of Appeals

for the

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 4th day of May one thousand nine

hundred and ninety

Present:

Hon. GEORGE C. PRATT,

Hon. ROGER J. MINER,

Circuit Judges,

UNITED STATES OF AMERICA,

Appellee, Docket No.

#88-1493(L),

88-1494

MARK REITER, RAYMOND CLARK, a/k/a _ #88-1500,

“ROMAR”’ LEONARD ROLLACK, a/k/a 88-1501,

“PETEY” ’ a/k/a “PETER IFILL’, ALFERD 89-1226

DICKS, and TIMOTHY SMITH, a/k/a

“HEARTBEAT”,

Vv.

Defendants-Appellants

A petition for a rehearing having been filed herein by Appellee

UNITED STATES OF AMERICA.

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

/s/Elaine B. Goidsmith

Elaine B. Goldsmith,

Clerk