# Petition for Writ of Certiorari — Reiter v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1614%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 817 ## Text — —— —~ vgn | Supreme Court, US. LED 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 EE i ee a se ine ses caves ve nes ii ee ea dpe see esis ces oes ES 2 2 Constitutional Provisions Involved ................ 3 ek ne dvs seis eceess 3 6 ccc wee ececccs 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 a 4 Seg re ee og 8 a 2 Fa a ee ree 2S 8 | ee GES ky Se gS 8 a. Se 2 ar WEED oo eds k eee dees ceewestevan ye¥¥s RM OID oes evs eee sns ee ea ents eewevewes 4 SY elie.) eer Page 13 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1614%3A1. Public record. Not legal advice.