Brief for the United States — Babcock v. Community Redevelopment Agency

INDEX

Opinion below--------+----------- 2777-7

Jurisdiction eee cenaneccneaeneenanome wi

Questions presented--------- _ navmenmcnnnetenmensaee

Statement -----------------—---=------ 9-7 -

Argument -.---------------<G------- 90-7007 |

Conclusion -----------------~-----------"--~

CITATIONS

Cases: . ae

Bryson v. United States, 238 F, 2d 657,

' eertiorari denied, 355 U.S. 817---------

Escobedo v. Illinois, 378 U.S. 478--------

Massiah v. United States, 377 U.S. 201..-.

Constitution and statute: |

U.S. Constitution, Fifth Amendment-----

18 U.S.C. 2314_.--.---- as alata

Miscellaneous:

McCormick, Handbook of the Law of Evi-

748-844—64

the Supreme Gort of the Wited States

OcTOBER Term, 1964

No. 372

SAMUEL J. MARROSO, PETITIONER

‘oe

Unrrep States or AMERICA

No. 471

Joun Jacop SAMARIN, PETITIONER

‘ Vv. -

- Untrep Srates or AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI 10 THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The per curiam opinion of the court of appeals

is reported at 331 F. 2d G01 (Pet. No. 372, App. B;

Pet. No. 471, App. A).

JURISDICTION

The judgment of the court of appeals was entered

on May 5,°1964. Petitions for rehearing were de-

(1)

§)

2

nied on July 8, 1964. On August 11, 1964 Mr. Justice

Black extended the time for filing. a petition for a

- writ of certiorari in No. 372 until August 14, and

the petition was filed on August 11. On August 4,

1964.Mr. Justice-White extended the time for filing a

petition in No. 471 until September 7 (Labor om)

and the petition was filed on September 8. The juri

diction of this Court is invoked under 28 US. C.

1254(1). .

QUESTIONS ‘PRESENTED

1. Whether the evidence supported the verdict (No.

471).

2. Whether there was any violation cf petitioners’

rights under the Fifth or Sixth Amendments, or under

18 U.S.C. 3481, when an F.B.I. agent, testifying in

detail as to an interview he had conducted with peti- —

tioner Marroso, stated that Marroso had terminated

the interview on advice of counsel (Nos. 32 and

471).

STATEMENT .

_ After a jury trial~in the United States District

- Court for the Southern District of Florida, petitioners

were convicted of conspiracy to transport counierfeit

securities in foreign commerce in violation of 18

U.S.C. 2314, and of a substantive violation of the same

statute. Petitioner Samarin was sentenced to five |

years’ imprisonment on both counts, the sentences to

‘run concurrently. Petitioner Marroso was sentenced

.-to three years’ imprisonment on the conspiracy count

and was placed on probation for three years on the

substantive count. The court of appeals affirmed

per curiam. a

re

‘The sidiieae may be summarized as folléws:

v.

Some time during the summer of 1960, petitioner

Samarin went to the office of a steckbrexer in Cleve: .

land and requested an Ohio Turnpike Bond in “street

form,’’ explainirg that he had an opportunity to make

‘big money’’; that he wished to counterfeit the bond ;

that the counterfeit bonds would be used by a South |

American banker to replenish an estate some of whose

“funds had been loaned to a union in Detroit; and

that after the estaté had been. audited and the union

had ‘repaid the 4oan, ‘the bonds would be destroyed

and never go into circulation (R. 71-737°99, 106).

Samarin obtained one genuine Turnpike bond in

October, 1960 (R. 361-364, 439-441). Thereafter he

‘> approached three printers and asked them if they

could print “certificates’’ or “bonds’’, having specified

‘certain characteristics which corresponded to those of

the genuine Turnpike issue (R.,'164, 174-175, 183,

513-514, 525-526). He told one printer ‘‘It’s a little

shady’’ (R. 165).

~ Petitioner Marroso was from Detroit and had

authority over or access to funds of the’ Teamsters’

Union (R. 230, 263, 399). He and Samarin had been

seén together in June, 1960 at Samarin’s residence

(R. 397--398, 401-402). During the last week of 1960,

Hyman Green, an acquitted co-defendant in this case,

"gave his friend Martin Von Zamft, president of. the

' Bank of Miami Beach, a list of 265. or 266 Qhio

Turnpike. bonds and requested that he ascertain

whether those bond numbers were free of claims (R.

219-224). Green, who was the director of a bank in |

- Nassau, Bahamas, told Von Zamft that the owner of

NOE ON NT orm

+

- the bonds. wanted them sold through Green’s Nassau

bank (R. 225, 247). Later the same week, Green

and petitioner Marroso left 266 Ohio Turnpike. bonds

with Von Zamft for safekeeping (R.~ 233-236, 243, _

245). On January 3; 1961, an employee of the Bank

of Miami Beach made telephone inquiries with regard

to the bond numbers. specified by Green, and learned

that five of them had previously been cancelled (R.

60-66, 223-224, 333, 337, 345). On.the same day,

January 3, a telephone call was made from petitioner

Marroso’s Miami hotel room to a party named

“Samarin”’ in Cleveland (R. 391). The telephone

number called from Miami was that of a house in a

Cleveland suburb, and it was established that Samarin

was residing there at the time of the call ial 395-

396).

On January 9, Von Zamft returned the 266 ‘Turn-

pike bonds to petitioner Marroso in Miami; the same

-day Marroso, arriving in Nassau, handed a package

to Green (R. 276, 288, 290, 298-299). The Nassau.

bank of which Green was a director handled, several

““X”? or confidential accounts, one of which was

utilized in the negotiation of some of the counterfeit

bonds at. issue here (R. 249-250, 294-296, 313-315).

| Within three @ avs of Marroso’s trip to Nassau, he

~ and Green took 265 Turnpike bonds to a broker’s

office, where a sale was negotiated (R. 299-303, 321).

_ The bonds were shipped to New York purchasers,

who discovered that they were counterfeit (R. 125,

149, 191-192, 312). The bonds sold in Nassau did

not inelude the five numbers which, upon the inquiry

previously instig rated by Green, were found to have

9)

been cancelied (R. 312, 355). All the counterfeits

had been made from the genuine bond which Samarin

_.. possessed in October (R. 514-521, 524, 532).

After newspapers had publicized the negotiation of

-eertain counterfeit Ohio Turnpike bonds, petitioner. °

_ Samarin approached the broker to whom he had orig-

inally mentioned the counterfeiting. proposal and. to Id

him that the ‘“‘deal’’ had not gone through (R. 77).

Petitioner Marroso, questioned by an F.B.I: agent,

denied ever. having had possession of any Ohio Turn-

pike bonds, genuine. or otherwise, and stated further

that he*knew of no one who had such bonds. He de- _

nied having attended any meetings with Green in.

Nassau and declared that he could not recall whether

he had seen Green in Nassau or in Miami (R.

4457446).

4, ’ ARGUMENT

1. Contrary to petitioner Samarin’s contention,

there was substantial evidence to support the jury’s

finding that the forged bonds were tr ansported to

Nassau and that he, Samarin, was implicated in that

> transportation. As we have shown, the record- estab-

lished that about two weeks prior to the sale of the

counterfeit bonds in Nassau, Green asked a’ Miami .

banker to check out a list of 265 or 266 Ohio Turn-

pike bearer bonds in the “132,000”’ series (R. 342); .

that, shortly afterward, Green and Marroso deposited

266 Ohio Turnpike bearer bonds with a Miami banker

- for temporary safekeeping; that on January 9, 1961, .

the very day these bonds were returned to Marroso,

- he flew to Nassau and there handed a package over

to Green; that within'two days Green and Marroso

OO A A ORO CIN wk ang rose

*

.

6

had begun negotiations for the sale of 265 Ohio Turn-

pike bonds; -and that on J anuary 13, 1961, four days

after Marroso’s receipt of the 266 bonds in Miami

and his flight to Nassau, the counterfeit bonds here at

issue, all belonging to the “132,000” series, were sold

to New York purchasers. In these circumstances, .

the jury could readily find that the forged bonds sold

by Green and Marroso had been. transported by Mar- —

roso from Miami to Nassau.

_ Samarin’s participation is.also inferable from the

record. ,It was shown that Samarin had sought to

obtain an Ohio Turnpike bond for the declared pur-

pose of counterfeiting it; that he did manage to se-

cure such a bond and approached three printers with |

a view to duplicating its characteristics; that the

counterfeit bonds sold by Marrosa and Green in Nassau

were forged copies of the model bond procured by

' Samarin; that Samarin and Marroso had been seen

together and had engaged in business discussions on

&t least two oceasicns during the months preceding

the sale of the-bonds; and that. Marroso in Miami

had placed a.telepHone call to Samarin in Cleveland

only a~few days before the transportation of the.

bonds te Nassau.. In addition, the proposed counter-

feiting scheme, as described by Saniarin to a. Cleve-

land stockbroker, involved a South American banker"

and a Detroit union, and the evidence showed that

Marroso, who lived in Detroit, -was connected with the-

Teamsters Union and collaborated in the sale with

Green, a Nassau banker. From these facts the jury

. could reasonably conclude that Samarin was an ac-

cessory to the illegal transportation. 2

7

2. The F.B.I. agent who interviewed Marroso took .

the witness stand and gave a detailed description of

the ‘interview from beginning .to end. He. testified,

inter alia, that Marroso denied having possessed Ohio ° -

‘Turnpike bonds and did not recall having seen Green

either in Nassau or Miami; that when ‘questioned as to .

. why he had-been in Florida at the time here relevant,

Marroso asked to be excused to consult his attorney,

who had accompanied him to the F.B.I. office; and

that, after consulting him, Marroso “came back and —

said that his attorney had instructed him not to an-

swer any more questions, and that terminated the in-

terview”’ (R. 444-446). In his opening remarks, the

' prosecutor, previewing the testimony which the gov-

ernment would offer, summarized the F.B.I. agent’s

_ description of the interview, including the manner in

which it terminated, (R. 26). Defense counsel moved

unsuccessfully for a mistrial on. three occasions, claim- ©

ing that the prosecutor ’s opening comments and the

agent’s testimony were unduly prejudicial to peti-

tioners (R. 26, 413-415, 448). In this Court, peti-

tioners contend that the comments and testimony

abridged their privilege against self-in¢rimination

under the Fifth Amendment, impaired their right to

counsel under the Sixth Amendment, -and violated

their statutory right not to testify under 18 U.S.C.

3481.1. These contentions, we submit, are ground- .

less.

? Neither at trial nor before the court of appeals was there

‘any contention by petitioner Samarin as to the propriety of

the evidence in question. He now asserts for the first time

(Pet. No. 471, pp. 13-17) that the evidence relating to the

8.

We note first that, under familiar rules of evidence, -

‘the testimony in question was relevant, and was ad-

missible for the purpose of giving the jury a complete

and intelligible picture of the interview. Without

that evidence, the jury would have been at a loss to

understand the. abrupt cessation of the questioning or

might have drawn the erroneous inference that the

Interview had embraced other significant questions

and answers about which the agent had not testified.

As th® court of appeals stated, “this was no more than

evidence of stitrounding: circumstances tending to

illuminate the principal fact in such a way as to

reflect the entire transaction or conversation and_plac-

ing the whole in a trué light’? (331 F. 2d at 602).

Thus, whether the evidence be viewed from the stand-

point of “testimonial completeness”' (see Bryson v.

United States, 238 F. 2d 657, 661 (C.A. 9), certiorari

denied, 355 U.S: 817), or “res gestae’”’ (see Rogers v.

United States, 334 F. 24-83, 86 (C.A. 5)), it was ap-

propriate to “permit the witness to tell his story in a

natura} way by telling all"that happened at.the time

of the narrated incident including those details which

give light and color to the story. * * * ’’ McCormick,

Handbook of the Law of Evidence (1954) 587.

termination of the Marroso interview was prejudicial to his

cause. We think it.plain that if there was some infringe-

- ment of Marroso’s rights—which we do not concedé—that

was a persona] matter. relating only to Marroso. Particularly

is this so where, as here, the judge carefully instructed’ the

jury on numerous occasions that post-conspiracy statements

were to be considered only against the respective declarants

(R. 437, 447, 460, 618-619, 628).

Z

9.

The prosecutor's remarks and the agent’s testi-

mony in no way infringed’ petitioners’ privilege

against self-incrimination. -In terminating the inter-

view, Marroso did not invoke any const!+utional

privilege; nor was there any occasion for “him to do

so. He was not under arrest or under indictment at

the time, and there is no indication that the agent

was exerting pressure upon fim to extract a confes-

sion. On the contrary; Marroso came voluntarily to

the F.B.I. office, was accompanied by his attorney,

and freely responded to a dozen questions before de-

ciding to break off the dialogue. He was at liberty to

discontinue the interview and to walk out of the

“office at any time and for any reason he chose, with-

out resort to the Fifth Amendment and without

regard to whether his answers might We self-inerimi-

nating. The prosecutor in no way suggested that

Marroso had relied upon the Fifth Amendment, much

less that there was anything inculpatory in his refusal

to participate further in the interview. What was

damaging about the agent’s testimony was not the

description of the way the interview ended, but rather

the answers which Marroso gave to the first ten or

twelve questions—particularly his assertions, in the

face of strong contrary evidence, that he had not

pgssessed Ohio Turnpike bonds and did not remember

- seeing Green either in Miami or Nassau. In these

circumstances, we submit, there was no impairment

of the Fifth Amendment privilege. The same con-

siderations dispose of the contention under 18 U.S.C.

3481, which provides merely that a defendant’s failure

10

_ to take the witness stand “‘shall not create any pre-

~ sumption against him.”’

Nor is there any basis for the aibiitee that the

decision below is at odds with the decisions of this

Court of Eschbedo v. Illinois, 378 U.S. 478, or

Masstah v. Umited States, 377 U.S. 201, both of which

dealt with the right to counsel under the Sixth .

Amendment. In Massiah, the Court held that incrim-

inating statements elicited from the defendant by

federal agents subsequent to his indictment and in

the absence of his retained. counsel could not, con-

sistently with the Sixth Amendment, be introduced in

evidence against him. In Escobedo, the Court ap-

plied the same rule to statements obtained through

the interrogation of a defendant who had not yet been

formally indicted, but who was in police custody and

had been denied access ta counsel. In the present

case, Marroso was accompanied by his attorney and

was. free to consult with him at all times. Moreover,

as we have noted, he was neither under arrest nor

“under indictment at the time ‘of the questioning, and

the record does not show that he had ‘‘become the

aecused,” that “the purpose of the interrogation was

to ‘get him’ te confess his guilt,’”’ or that ‘‘the poliee

urged him to make a statement’”’ (378 U.S. at 485):»

11

CONCLUSION

It is therefore respectfully submitted that the peti-

tions for writs of certiorari should be denied.

ARCHIBALD Cox, ,

Solicitor General.

Hersert J. Muzer, Ir.,

Assistant Attorney General.

BEATRICE ROSENBERG,

JEROME NELSON,

Attorneys.

Ocroser 1964.

0.9. GOVERNMENT PRINTING orrice 9664