Petition for Writ of Certiorari — Molinas v. Mancusi

"JOHN F. DAVIS, CLERK

In THE °

Eupreme Court of the United States :

OcTOBER TrRM, 1966 ~

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9 Unrrep SraTes OF America ex, rel. Jaco MoLInNas, Fae)

. - Retitioner, -

| —against— | . |

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Vincent R. ‘ick hice’ to. Albert J. Meyer), : q

. Warden of Attica State Prison, Attica, New York,. .

4 | a a Respondent.

“

SS SSS iat &

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED SFATES COURT OF APPEALS _ ,

FOR THE SECOND CIRCUIT | a

pe a ees

Tomas R. NEwMAn

Counsel for Petitioner

233 Broadway

New York, New York 10007

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“. . “INDEX.

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Opinions Below ..... | ‘ : : 1

) ne Jurisdiction = oe sie sre BEN SL nee a

Questions Presented ........... a pacar Acnlt. Wasoone ONT ae ae

| Statement a " seeieepitenaveniauininines 5

- Reasons for Granting the Writ ma bance >

ConcLusion Pies ae Pe ne ME , : 15.

APPENDIX A’ . |

Decision of the United States District Court. for

the We estern District of New York .. A |

on OEE

( - Appenvix B a . O°

: Opinion of the United States Court of Appeals for ie

ae the Second Circuit ...... ARTERY A rn JR OT 24

} Citations to ones: o"

Pae _ Berger v. New York, 18 N. ¥, 2d 638, cert. granted 35

, U. S. L. W. 3201 tO MRT eon rr anon ake 13, 14

Garrity v. New Jersey, —— U. S. ——, 35 U. Ss. L. w.

GED risinees . , , . 10

Hoffa v. United States: ——.U. S. —, 87S. Ct. 408. 13

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TN A kD

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Lopes v. United States, 373 U. 8. 497 .. 11 .

Malloy v. Genie. 978 U. 8.1 10:

-Massiah v. United States, 377 U. S. 201 ewsernezen 10

, Miranda v. Arizona, 385 U. S. 436 Soe ee

" Molinas oy ‘Ne ew York, 380 U. 8. 907 a 11

On Lee v. United States, 343 U. S. 747 tenia HL 3

Osborn v. United States, 382 U. S. 1023; — =

— , 87 S. Ct. 429 ane ul

-Rochin v. California, 342 v. S. 165 | i

" Spevack, V. Klein, — U. Ss. —, 35 v. 8. L. ua’

fal “- 9

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Pe ee er é

. Citations. to Statutes’

New York Code Crim. Pro. $399 .. 5

New York Code Crim. Pro\§8l3-a iecedona aN

98 U.S.C. s1254(2) | 2

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bs THE

| Supreme Court of the United States

? °

OctopeR TERM, 1966 .

; oo No. siibiaieeuiaie a.

Unirep States or America eg rel. Jacop Mottnas,

: | . -

oe \ Petitioner;

—against—

Vincent R. Mancust (Successor . to Albert - Meyer),

- Warden of Attica State Prison, Attica, New York,

Respondent.

PETITION F OR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

F OR THE SECOND CIRCUIT

Ka petitioner, Jaco een preys. that a Writ of Cer-

- tiorari issue to review the judgment of thé United States

. Court of Appeals for the Second Circuit entered on Janu-

ary 5, 1967 which. unanimously affirmed an. order of the

United States District Court for the Western District of

New York dated March 7, 1966, denying on the merits peti-

tioner’s application for a writ of: habeas corpus.

Opinions Below &

‘The decision of the United States District Court for the

Western District of New York (Appendix A) is not re-

ported. The opinion of the United States Court of Appeals

for the Second Circuit (Appendix B) is not yet reported.

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Jurisdiction :

"The judgment of ‘the United States Court of Appeals

for the Second, Circuit was entered on J. anuary 5, 1967. "The

— of this Court i is invoked pursuant to 28 U.S. C.

— ‘ '

a. %

es Questions Presented

In 1960, the District Attorney of the County of New

_ York initiated an investigation into the alleged bribery of .

college basketball players by persons seeking to control the |

Scoring in games and thereby illicitly winning wagers on

- such contests.. The investigation focused principally upon ~

the activities of petitioner, Jacob Molinas, and three of his

-. accomplices, Joseph Hacken, Joseph Green and Aaron

Wagman. By the middle of 1961, these thrée accomplices

had been indicted as participants in the alleged conspiracy -

to “fix” games and they subsequently pleaded guilty to the.

charges against them. One of ‘them, Wagman, agreed to*

. cooperate with the authorities in their continuing investi--

gation which, on May 15, 1962, culminated in the return

of Qn ; indictment against petitioner.

Theretofore, during the course of the investigation, peti-

tioner was subjected to secret interrogation by an agent —

of the proseeutor in the following manner: An accomplice, —

William Dennis Reed, who had previously retained peti-

tioner as tounsel, arranged to meet petitioner in the latter’s

law offices ostensibly to seek advice with respect to his own

position in the investigation and his scheduled appearance ~

before the Grand Jury. “In fact, the prosecutor had coerced

‘Reed: into cooperating with the authorities and Reed had

arranged the meeting at the prosecutor’s instruction. Act-

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ihg as the. agent of the hia Reed steered.his conver-

. sation with petitioner to topics suggested by the prosecutor: . :

and designed to:elicit incriminating statements which Reed | .

recorded by means of a concealed electronic device supplied

Dai the prosecutor. ead ete ,

_ At pétitioner’s trial, which. was interrupted for five weeks,

’ during which time the jury was dispersed, the prosecytion

introduced in evidence, over objection, a tape-recording of -

Reed’s conversation with petitioner. This furnished the

necessary corroboration essential for petitioner’s convic-

tion under the law of New York. That this surreptitious 3

recording was obtained solely for the purpose of supplying —

_ the legal requirenient of corroboration—and not to protect

_Reed’s credibility—is beyond dispute." 3

The following questions are presented :

i. Whether ‘petitioner’ s Fifth and. ‘Sixth Amendment .

‘agent of the oaene,

a) ‘after petitioner had Nena the primary target

of the prosecutor’ S investigation,

b) in the sided of counsel and without prior warn-

‘ing of _ constitutional right to remain silent, and

*In his brief to the Appellate Division (p. 48) the District At-

torney stated :

“The taped conversation | provided a major sunita: of the

corroboration needed to substantiate legally the overwhelming,

Cr

complete and detailed testimony of 9 coltege players. and one reese

° echaere ate. Aaron Wagman.”

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-c) ina manner calculated to conceal from petitioner

the fact that he was under interrogation and thus de-

. prive him of an Piscean de to exercise his right to

_ . remain silent? -

,2.. Whether the admission of the tape recording did not

* .

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‘ also violate petitioner’s Fourth Amendment rights because

a) it was the. product of surreptitious electronic sur-

veillance without prior court order by an agent of the

preen

. b) who aiid entry into petitioner’ s constitutionally |

‘siviedaite private law office by fraud, deception and mis-

representation,

-¢) for the sole purpose of eliciting and seizing in-

criminating statements from petitioner without his

knowledge or consent which; upon being recorded,

would furnish the essential. acai required to

convict. him? ae ewe

2 .

3. After a criminal jury trial has been in progress for .

more than a month and.almost 3,000 pages of testimony

* have been taken, does not its interruption for five weeks

during which time the jury is dispersed and not subject

to the control of the Court, so complet ly destroy the con-

tindity of the trial and deprive petitioner of : his consti-

_ tutional right to due process of law and a fair trial, as to

require, as a matter of constitutional law, the granting of

his timely’ motion for a mistrial,

ty

_ denied. On October 15,

Statement

‘On May 15, 1962, a five-count indictment was returned

against petitioner.. Count I charged petitioner with con- —

. * spiracy; Counts II, III and IV charged petitioner with the

-pribery of Reed, a player on the basketball team of Bowling

Green University; Count V charged attempted subornation

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of perjury in’ connection with Reed’s appearance before

‘the Grand Jury. :

uf te me ; . ‘ .

On January 8, 1963, petitioner was convicted on all counts

of the indittment and, although a first offender, he was

nevertheless sentenced to imprisonment for an aggregate

- term of 10 to 15 years, which term was subsequently reduced

to 7 to 12% years.* |

Petitioner’s conviction was ‘secured principally by the

: introduction of the testimony of the co-conspirator Wagman Ss

andsthe accomplice Reed; additional testimony was given

by other basketball players who were also participants. in -

the alleged conspiracy. — a ee

However, standing alone, all of this testimony was in-

sufficient, as a matter of law, to warrant petitioner’s con-

viction because of New York’s statutory requirement (N. Y.

' Code Crim. Pro. §399) that the testimony of accomplices

must be corroborated by other evidence.

_ * The judgment of conviction was affirmed -by the Appellate Divi- -

sion First Department on June 16, 1964 (21 A. D. 2d 384). On

July 7, 1964, leave to appeal to the New York Court of Appeals

was denied. On July 2, 196+, after reargument, leave was again

964, the Appellate Division denied reargu-

ment and on March 1, 1965, this Court denied certiorari. (380

U.S. 907).

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The Manner in Which the Self-Incriminating |

Tape Recording Was Secured - . .

In January 1962, a detective approached Reed in Bowling

Green, Ohio, and, after a conference with university offi-

cials, Reed. agreed to return to New York with the officer

and to appear. before the Grand Jury (1483-4).* Before ;

leaving Ohio, however, Reed notified petitioner, at the time

a member of the Bar of the State of New York, of the place

and time of their scheduled arrival (1484-5, 1828-9). Reed

had previously retained petitioner as his counsel (1468-70,

. 1795-7, 1991-2) to advise him with respect to his position

in the investigation. He wished to confer with petitioner

with respect ‘to his testimony before the Grand Jury (1828).

On the evening of J anuary 15, 1962, petitioner met Reed

- and the officer at Newark Airport, and after petitioner tele-

phoned the District Attorney’s office, Reed accompanied

petitioner to New York, where they spent the night in the

Martinique Hotel (1491, 1830). e

Reed discussed his situation with sdiiiiiiiies and the lat-

. ter ‘advised him of his rights and informed him that he

would accompany’ Reed to the District Attorney’s office the

following morning (1836). According to Reed (1492-4),

petitioner also sought to influence Reed’s testimony before

the Grand Jury. |

The following day petitioner appeared with Reed and

was informed by the prosecutor that he would not be per-

mitted to represent Reed. The prosecutor, Reed and peti-

- * All references, unless otherwise identified, are to pages of the

- original Record-on Appeal to the Appellate Division, First Depart-

ment, of the Supreme Court of the State of New - York, which

Record was before the United States District Court and the United

States Court of Appeals for the Second eae as part of the ree-

ord in these proceedings. ,

?

tioner thereupon went before Judge Dickens who suggested —

that it might be unethical for petitioner to represent Reed -

‘inasmuch as the investigation was. directed against peti-

tioner (1860; People’s Exhibit 35, p- 20).* According to.

Reed, petitioner was still attempting to show that. he was

entitled to represent him when “there was some commotion”

(1860) and Reed was “taken away” by the prosecutor and,

~ detectives (1497, 1860). Although Reed desired counsel

(1861), he was taken to the prosecutor’s office for question-

ing and was not permitted to call petitioner (1859).

' Reed was questioned, for “a very long time” (1843) by

at least 8 persons (1846) in connection -with his participa-

tion in the basketball “fixing”. Although Reed was without

counsel during this questioning, he “assumed that ‘Mr. Mo-: os

“ linas was still, my lawyer, but at that time I was becoming

quite unsure” (1840). ‘ :

Reed was told that he would not be prosecuted if he would

cooperate and testify against petitioner (1845, 1849).

_ Nevertheless, throughout the initial stages of the protracted

‘questioning, Reed took the position that he did-not wish

to make any statement (1848-9). He persisted in his refusal

to make statements implicating himself or petitioner until;

after more than six hours of questioning,** he “broke down”

(1849-50) under the “emotional” coercion (1850-51)* and

*In its opinion (p. 26, infra), the court below stated that the

“judge ruled that it would be unethical for Molinas to represent

Reed.” This is inaccurate, the judge had no power to nike such

_a ruling. He merely suggested, as his personal opinion, that: this

might he the case. Petitioner was a duly admitted attorney, legally

free to represent Reed or anyone else. If this proved to be un-

ethical, it would be a matter for seeoqiont ria before the

a Appellate Division.

. ** At one point, after several hours of interrogation, Reed was

taken by detectives for a brief consultation with a Legal Aid So-

ciety attorney (1858-61). He was then taken back for further ques-

tioning, still in the absence of his counsel (1862). .

“8

- only saben to cooperate because he could see “no-other

way. I mean I was frightened” (2075). Thereupon, he was

granted immunity from prosecution (1853). ©

As noted above, however, Reed’s testimony as an: accom-

plice would“have been legally insufficient to convict peti-

tioner. Accordingly, the prosecutor decided to have Reed

meet with petitioner and, with the aid of an electronic re-

‘eording device which he supplied to. Reed, surreptitiously

record a conversaticn during the course of. which Reed

would attempt to extract incriminating statements. After

_ Reed was equipped with a concealed recording device he -

was told to call petitioner and arrange for an immediate

meeting at the latter’s law office (1870, 1504).-

The Distt ict Attorney suggested the type of conversation ‘

which Reed was to engage petitioner in, as well as. the sub-

_ jects to be covered (1865-7, :1876). Specifically, Reed was

instructed to talk about perjury and “to find out where Mr.

Molinas would stand in the event I committed perjury”

- (1867). Of course, the District Attorney already knew peti-

tioner’s position on this for Reed had related to him the

conyersation of the preceding evening during which peti-

tioner had allegedly attempted to suborn perjury.

Reed went directly from the District Attorney’s office to

petitioner’s law office and, in the guisé of, consulting him

as his attorney, elicited ineriminating statements from peti-

tioner.* The surreptitiously-made tape recording provided

the’ corroboration-yequired to convict petitioner. Its use

- was not limited to supporting Reed’s credibility on the at-

tempted subornation. of perjury charge. Rather, it was the

essential mainstay of the conviction on all of the counts.

_ ; } : ;

*.To lend credence to their scheme thé prosecutor supplied Reed

- with a subpoena requiring his appearance before tlie Grand Jury

- on the following - (People’s Exhibit 35, pp. $4)..

os)

' Statements from a suspect who has not been warned that he ge

Reasons for Granting the Writ |

1. In Miranda v. Arizona, 384 U: S. 436, 469, this Court

stated that its aim was “to assure that the individual’s right

to choose between ‘silenc: and speech remains unfettered

throughout the interrogation process.” While the decision

was necessarily restricted to the factual situation presented °

—in-custody interrogation—it was dictated by the Court’s

continuing “eoncern for adequate safeguards to protect

Fifth Amendment rights”: (384 U. S. at pp. 457-458) and

‘was merely “an application of principles long recognized

and applied i in other settings” (384 U. S. at p. 442).

T e instant case provides‘this Court with the condetedits

to decide whether the same basic ‘principles are equally

applicable to other more insidious forms of interrogation

which have as their aim the-extraction of self-incriminatory

is under intérrogation or advised of his constitutional

rights, More specifically, whether, when the mere act of —

taking the suspect into eustody would instantly serve ‘to .

~ alert him to exercise his right to remain silent; the prose-

cutor may strip the suspect of his right to choose between.

silence and speech by conducting his interrogation through :

an informer who is secretly recording the suspect’s un-

‘guarded statements?

The decision of the court below is completely at odds

with the “liberal construction” which this Court has always

accorded to the Fifth Amendment privilege (Spevack: v.

Klein, 35 U. S. L. W. 4140, 4141; Miranda v. Arizona, :

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Tactics such as those employed by the prosecutor, in the

case at ‘bar are squarely in conflict with the accusatorial

nature of our system of criminal justice, and violative of the

privilege which “has always been ‘as broad as the mischief -

against which it seeks to guard’ ” (Miranda V. Arizona,

supra, at Pp. 459-460). .

The privilege is fulfilled only when the.person is guaran-

teed the right-‘to remain silent unless he chooses to speak

in the unfettered exercise of his own will’. Malloy y. Hogan,

378 U.S. 1, 8” (Miranda v. Arizona, supra.at p. 460). The .

question in each instance “is whether the aceused was, de-

prived of his free choice to admit, to deny, or to refuse:to

answer” (Garrity v. New Jersey, 35 U: S. L. W. 4135, 4136).

Clearly, petitioner would never have incriminated himself

had he been taken into custody and subjected to interroga-

tion by police officers or known agents of the prosecutor.

’ To succeed, the prosecutor’s scheme required that peti-

tioner be deceived, that he talk unguardedly to a “trusted”

friend and client who was purportedly seeking legal advice,

. but in ‘reality secretly recording petitioner’s statements for

use as evidence against him. This is precisély the type of

7 ‘interrogation which this Court condemned in Massiah v.

United States, 367 U. S. 201, 206, where it held that the

protection afforded by the right to counsel extends to “in-

-direct and surreptitious interrogation as 3 well as those con-

, ducted: in the jailhouse.’ “i

If the prosecution is still permitted to, secure incrinr

inating statements from an accused whd is the primary

target of its investigation by indirect and surreptitious

interrogation, the force of the decisions expanding and safe-

guarding the right to counsel and the right not to incrim-

inate ane would be nullified.

11

Finally, the unlawful manner in which the ,prosecutor —

~ coerced Reed to cooperate in extracting incriminating state-

.ments from petitioner violates due process (Rochin v. Cali-

fornia, 342 U. S. 165, 169) and taints the evidence obtained

thereby, The prosecutor flagrantly violated Reed’s right

to counsel and ruthlessly exploited the confidential | relation-—

ship which existed between petitioner and Reed. ‘The sanc-

tioning of such “dirty” "practices on ‘the part of law enforce-

ment officials and’ officers of the court, and the undermining ~

of the confidential relationship between attorney and client —

poses a‘far greater threat to our society than petitioner’s

comparatively innocuous “fixing of basketball gamies”.

Since the tactics disclosed in the case at bar. are ap-

parently still in widespréad use by prosecuting authorities,

' a definitive statement -by this Court as to their legality is

oe urgently needed.

2. The introduction in evidence during petitioner’s trial —

_of the surreptitiously obtained tape recording raises “grave

constitutional questions under the Fourth and Fifth Amend-

ments” (Lopezv. United States, 373 U.S. 427, 441 [Warren,

C.J., concurring in résult]).

In November, 1964 petitioner unsuccessfully sought to

have this Court pass upon these questions and to decide

whether On Lee v. United States, 348 U. S. 747, should. be

overruled (Molinas v. New York, 380 U. S. 907). |

_ Subsequently in Osborn v. United States, 382 U. 8. 1023,

certiorari was granted on this identical question. The de-

cision in Osborn (—~ U. S. —,, 87 S. Ct. 429, 432-433)

however, left: the question open since the:issue was “not the -

permissibility of ‘indiscriminate use of such devices in law.‘

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enforcement’, but the permissibility of using-such devices

under the most precise and distinct circumstances, cireum-

stances which fully meet the ‘requirement of particularity’

which the dissenting opinion in Lopez found necessary”.

The instant case furnishes this Court the opportunity

to finally resolve this issue which has a vital effect upon

7 law enforcement procedures throughout the country.

The prosecution’ s tactics in the case at bar readily dis-

-tinguish it from Osborn and Lopez and are of the type

expressly condemned by the Chief Justice. Thus/in addi-

tion to the violation of petitioner’s Fifth Amendment rights,

discussed above, the following factors are significant : ~

The case at bar

: a) The agent-accomplice gained

entry into “petitioner’s private

law office by deliberately mis-

representing his true. purpose

and purporting to seek advice

with respect to his own involve-

: The Lopez case

The agent truthfully dis- .

closed that he was a fed-

eral agent conducting an

investigation of petition-

er’s affairs. :

ment in the prosecution’ s in-

vestigation.

b) The. aecomplice detiberately

steered the conversation to

topics suggested by the prose-

cutor, designed to elicit incrim-

inating statements. __

c) But for the’ presence of the

concealed recording device, pe-

titioner took no. risk in speak-

ing freely to the accomplice-

Petitioner made: an un-

solicited bribe offer to the.

agent.

Petitioner risked prosecu- .

tion and conviction, by of-

fering an unsolicited bribe

to a federal agent, since the

13

The case at bar _+ The Lopez case

agent, since a conviction cannot ‘agent’s testimony would

be obtained in New York on have sufficed to convict.

uncorroborated accomplice tés- ” |

timony. aan cea

d) The recording of incrim- The “only purpose” of the

inating statements deliberately. recording was to protect

elicited from petitioner was the credibility of the fed-

sought not to protect the cred- eral agent. °

ibility of the accomplice-agent, |

but to furnish the prosecution

with the lacking essential ele-

ment of correboration required _

by the law of New York.

Moreover, in both Lopez and Osborn, the petitioners knew

, that. they were speaking to law enforcement officers, Finally,

- in his dissenting opinion in Hoffa v. U. S., —— U. S. —,

87 S. Ct. 408, 421m. 1, the Chief Justice again expressly

noted his opposition to the “use of a secretly made record-

ing. other than for the purposes of corroborating the testi-

mony of a witness who can give firsthand testimony con-

cerning the recorded conference and who is made available

for cross-examination.” As noted above, but for the pres-

ence of the concealed recording device petitioner took no

risk in speaking freely to Reed., Lopezand Osborn aré

thus distinguishable since both were federal prosecutions

where the mere testimony of the agent, if believed, would

suffice to convict. | fect

“While we do not recognize the constitutionality of the

‘ New York eavesdropping statute (N. Y. Code Crim. Pro.

§813-a), a question presently before this Court in Berger v.

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New York, 18 N. Y. 2d 638, cert. granted 35 U. S L. W.

_ $201, the case at bar is also fergie from Osborn:

because the prosecution, althoughit had’ ample opportunity

~- to do so, neither applied for nor procured prior judicial

authorization for their surreptitious electronic eavesdrop-

ping. | | |

jurors totally unprepared for the unexpected events which

were to follow.

Over the weekend the judge was stricken with a kidney

stone attack, and his subsequent hospitalization prevented.

resumption of the trial until J anuary 2, 1963. During this ~

five-week interval, the jury was dispersed and not under the

control or ‘guidance of the Court. The jurors returned to y

their respective jobs and otherwise resumed their daily’

. normal routine. They did not know whether the case had

been concluded or whether they might be recalled. They

received no instructions on how to conduct themselves dur-

ing a prolonged and indefinite interruption in the trial.

When: the Court finally reconvened, and before any fur-

_- ther testimony was taken, petitioner moved for a mistrial .

_ (2933-4, 2941). His motion was denied (2942) because “the

People had extreme difficulty in bringing their witnesses to

court, some being in military service, stationed at distant

points, and others traveling about.” (Opinion of Hofstad-

_ ter, J., granting certificate of reasonable doubt, 4/3/63.) -

-Petitioner’s constitutional right to trial by an impartial.

' jury competent to recall and evaluate all of the relevant -

_ 3. On Friday, November 30, 1962 the trial judge excused:

the jurors with the perfunctory remarks, “Do not talk about

the case. Do not form or express any opinion. You may .

retire” (2906). This 5-second recitation, however, left the

oneal

evidence does not depend uj upon the relative ease with which

the prosecution can assemble its witnesses. The cost of pos-

sible prejudice during ‘a criminal trial to the defendant is

counted in years of his life atid exceeds any amount which

the State may be réquired to spend on a new trial. ‘When

an individual’s liberty is at stake, our Constitution demands.

that the State accord him due process of law and take what-

ever steps are necessary to instire that he receives a fair.

trial. No court should accept the argument that it is incon- -

venient for the prosecution to insure ‘the absolute fairness aa

of a defendant’s trial.

G

The question of constitutional law presented is a novel

one and, while the custom and practice of-many trial courts -

is to grant a mistrial under circumstances such as those pre-

sented by the instant case, there should be’an expression of ee

this Court ona matter so fundamentally affecting the rights —

of defendants i in criminal jury trials.

CONCLUSION = ts ee

For the fovegeing reasdha,t this ae for a writ of

certiorari should be granted.

Respectfully submitted,

‘Tuomas R. NewMan +

Counsel for Petitioner .

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