Petition for Writ of Certiorari — Cimino v. United States

Hap | . ee

em Sapo a FILED

NOV 23 1963 |

: IN THE é

—— Court: of the duited States

October Term, 1963 : ce

641

JQHN CIMINO, '

: ; Petitioner,

i. ‘NITED ST \TES OF AMERICA,

Respondent.

er

____-____——_______ enna

PETITION FOR A WRIT. OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR _—_

| SECOND scat

——— —— ES ———

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ee

.

Arprrt J. KRiecEr,

m -THEODORE KRIEGER,

& ; J OSEPTI A. NoOTARO,

Counse? for Petitioner

Jonn Cimino, .

401 Broadway,

New York 13, N. Y.

—— a

¥ -—ORegon 5-4540

Case Paess Ixc, 423 Hudsen St. *

IN THE

_ Supreme Court uf the Huited States.

October T ERM, 1963

‘cd *

: No, .

— —_ > _~-— —

a . coe

6 ‘ « JOHN CIMINO,

Petition a.

ae

2 ; yy

UxiTEp ST ATES, or + AMERICA,

. . - Responde nf

PETITION FOR A WRIT OF CERTIORARI TO THE

. “ UNITED STATES COURT OF APPEALS FOR THE’

SECOND CIRCUIT

) To THE Cire Justice axp Assocrate Justices OF THE.

4 SUPREME Cov RT OFOHE U “NITED STATES : aoe

John Cimino prays that a writ of certiorari. issue to

. review the judgment of the U nite a States Court of Appe als

for the Second Circuit, entered, in the above-entithed Sease

on July 23, 1963. : |

.

dl

Citations to Opinions Below :

en

‘3 a

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_ fiere Was no opinion in the District Corrt. The opin--

ion of the Second Cireuit Court ot Appeals is earshaay a~

Lnited States rv. ¢ ‘iminoeand D- sitet » oan ‘d KF. 2d 509."

* The instant pe tition) ts.1n the nature of a cross petiti: Hi with that

of che ei-petitioner, foseph D'Ercole whose.record and appendix are

by reference inc tpor: ated he rey)

a

Jurisdiction os

The judgment of the Court of Appeals, was entered-on

July 23, T963. A petition for rehearing was timely made

and demed on September 24, mgt “The jurisdiction of the

‘Court is invoked ander 28 U.S. C., Section 1254(1).

ae Questions Presented

1. Are a defendant *s constitutional rights in a mon-jury

ériminal case violated when the Judge as presented, under

the Jencks Act; with a ioe ument which reveals the de-°

fendant’ ~ prior, conviction of the same crime with which

he is charged?

; . &

. Should the rule ¢ f Roriare r. United States (353 U.

_S. 53) he extenied! to require the Government to produce.

an infor mer where the evidence of guilt is ‘barely sufficient,

if sufficient at all, aned.w he ‘re the testimony of the informer

could tip the seale- in favor of guilt or jnnocence ?

a

= *

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‘Constitutional Provision Involved .

¢

The-petition raises ‘issue- under the Due. Process Clause

} :

of the Constitution. = *

: Statement of the Case

ee

The petitioner, Cimino, was indicted with one. D’Ercole

_ fot two substantive violation= and a ne to vidiate

the Federal Nareotic Laws, Title 21, U.S.C. §§ 178, 174 and:

he and his coadefendant were convicted on "both the sub-’

stantive and conspiracy counfs after a —_ before Hon.

-

;

4A

“

Vrederick van ‘Pelt’ Bryan, ‘United Statés Distritt Judge

for the Southern District of New York, without a jury.

- "The petitioner ha- been sentenced toa term of 20 years on

each of the tree counts, the sentences: Lo ru concurrently.

At-the trial, the Government relied mainly on thé testig

mony of four narcotics agents, Myron B. Ava t.. David

B. Costa. Jack i. Gohde ane Frank Dolee, who_testified

about events leading 16 the sale of nareotics qn November

44.1960 aml November 22, 1960, A more détailed presenta- .

tion has been seteforth im the eross-petition.

of ;

_ Reasons for Granting the Writ .

: 4

1. This Court has never passed upon the important issue

of constitutional law and federal trial procedure of whether

. a defendant’s rights.in a non-jury criminal case are irretriev-

ably prejudiced. where the trial judge, inspecting a docu-

"ment under the’ Jencks‘Act, is informed of the defendant’s

’ prior conviction of the same crime as that for which he is

_ being tried. 7 4

Gar: 4 .

S 6 m the secon day of trial, while Nareoties Agent

Costa was testifving, the petitioner sought the production,

under the Jencks Act, 18 U.S.C. 5900, of a report which | .

. had been made. by the agent. The ‘report concerned, was:

“in offect a compendium of all the information: contained

‘in (Costa's ) meimorandam reports and it Was based **not

R Only on his own actions. his own observations, but also, of

” eourse, things related to hirh by other officers assisting i

the investigation’’. Marked and--introdneed as Court’s

Exhibit 16 for. identification and reprodneed on pages 94a-

VW4a.of the petitroner’s appendix before thir Court, the

report is seefi to contain vatied information, including the

.cros= petitioner”= prior conviction of two narcotics offen=ex

4

(96a), and the statements that thi sources af supply. for

(Cimino was -D’Ercole.. D’Ercole is part of the Italian or-

: ganizition i in the East Harlem. area’ 7

Both the Trial Court, and the ¢ ourt of Appeals. in this

case were of the opinion that the contltt thus described

is an inevitable one and that the de fendant’s ‘Fights under

the circumstances. must be sacrificed to the necessity ‘of en-

forcing the Jencks Act. It is the petitioner's coutention ia

that, in the first place, this conflict ix not inevitable at all

and, in the second place, that the threat to a defendant’=

rights posed under these circumstances is so very grave

"as to require some extraordinary remedy. :

Since this Court has never passed upon the issue thus

raiged and since grave prejudice to a defendant is unh-

necessarily imposed upon a defendant by the Tule sanc-

. tioned by the Cireuit Court in this case, this Court should

grant certiorari. «

4

aad ft ie or cee

2. This case poses novel, interesting ‘and substantial

‘question as to th tension of the rule of Roviaro v. United

States (353 U. S. 53), so as to require the Government,

. under special circumstances, not only to name, but also to

produce. an informer at trial.

Consider’ ing the abuses ie a system of faceless paid

‘informers may. spawn, this Court should. re-examine its

rule in Roviaro and extend it in the limite fashion of

requiring the Government to produce an informer at trial

where the informer was within the (government.s control

at the time of indictment and where. the evidence of guilt

~ is weak. Such ‘a rule would in ne sense impair the proper

ase of informers and, yet, it would have the virtue of giv ing”

actual substance to what i= often only the idle gesture re-

quired under Roviaro. ; 4

.

*

CONCLUSION -

ap me, aS: tats

_ For the foregoing reasons, it is respectfully urged

that the petition for certiorari. should be granted.

‘, ». Respeetfully submitted,

ALBERT J. KRIEGER,

m THEODORE’ KRIEGER,

ae tg JoserH A. NoTtaro,

; fe egies o COMMBET FOF Petitioner.

November 19, 1965 is

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