Petition for Writ of Certiorari — Motto v. United States

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Lib rARY_- | Office-Supreme Court; U

. ‘ FILLED

SUPREME COURT.U8& *© :

| OCT 17 1969

JOHN F. pans, CLERK

. IN THE. — aoe

Supreme Cot of the Buited States

OctToBeR TERM, 1969 |

| No. FAI

DanreL J. Morto, Petitioner,

Vv.

UNITED STATES OF AMERICA

_ PETITION FOR A WRIT OF CERTIORARI TO THE

| UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

J AMES M. LaRossa

115 Broadway

New York, New York

HERALD PRICE HAHRINGER

One Niagara Square

Buffalo, New York 14202

/ _KuGENE GRESSMAN

1730-K Street, N.W.

Washington, D. C. 20006

| Counsel for Petitioner

October 17, 1969

PREsS OF Byron S. ADAMS PRINTING, INC., WASHINGTON, D.C.

ES y

ILI A MLE ATS EEE MEET TRI A RE SE EN ORE

INDEX

(1964) 2s eeeeeeeeeeees snd hes een oecanecs oe

Page

I i ob oe eee es aeaces ace.

ee errs Perper OED Se SORA ener -. 9

Questions presented Siawwaes RT Seas pi aideie eae :

Constitutional and statutory provisions involved Pere 4

Statement of the case ...,........ Se aeeeane ceek ane 5

Reasons for granting the writ ........... ee 11

COMMUMON, « oobi a i suceseceses ede See biinens

CITATIONS

Cases: © .

‘scobedo v. Rlintis, 878 U. 8. 478-(1066)....:........ 12

Gladden v. Unsworth, 396 F, 2d 373 (9th Cir..1968) .. 18

» Groban, In re, 362 U. S. 330 (1957)... .........0008e 14

Grunewald v. United States, 353 U. S. 391 (1957) . 11

' Jackson v. Denno, 378 U.S. 368 (1964) .............. 18

Jones v. United States; 296 F. 2d 398 (D. C. Cir. 1961) 18

Jones v. United States, 342 F. 2d 863. (D. C. Cir. ~— 13 ©

Krulewitch v. United. States, 336 U. S. 440 (1949) . 18

Messiah v. United States, 377 U. S. 201 (1964) ...... 12

~ Miranda v. Arizona, 384 U. 8. 486 (1966) ........ 12, 15, 16

People v. Negrin, D4 Mise. 2d 181, 201 N. Y.S. 24. 59

(psn evens (heaven ses tcodeseansneneee ae

People v. O’Farrell, 175 N. Y. 323, 67.N. E. 588 get 19

Sears v. United States, 343 F. 2d 139 (5th Cir. 1965) :. 19

United States v. Chase, 372 F. 2d 453 (4th Cir. 1967).. 19

United States v. Costello, 352 F’. 2d 848 (2nd Cir. 1965) 19

United States v. Morello, 250 F. 24.631 (2nd Cir. 1957) 19

——Wong Sun-v. United States, 371 U.S. 471 (1963) .....: 18.

MISCELLANEOUS:

N. Y. Code of Criminal Procedure, § 399 ............ 19

Meschberger, Right to Counsel Before Grand J ury, 41

ee te Fy ere Te ere ere 13

The Supreme Court, 1963 Term, 78 Harv. L. Rev. 143

By, saab

SOE PE AT

< IN THE

Supcems Court of the United Gites

« OCTOBER TERM, 1969

No.

DANIEL J. Motto, Petitioner,

UNITED STATES OF AMERICA ~

PETITION FOR A WRIT OF CERTIORARI TO. THE

UNITED STATES COURT OF” APPEALS

FOR THE SECOND CIRCUIT

, The petitioner Daniel J. Motto prays that a

of certiorari issue to review the judgment and opiri

of Appeals for the Second Circuit in the proceeding

entitled United States of America, Appellee, v. An-

ONO. TERRIER RENMEI 0 Me ETI

‘ . °

if GEASS ELON GEN DGG LIP IO GL IS ENN NRE 0 OM TTT

PREM ME RAE | SY

tonto Coriille; Henry Fried, Daniel J. Motto and S.

T, Grand, I né., Defendants- Appellants. <A. petition

. for writ of certiorari was filed on behalf. of Antonio

Corallo-on- September 11, 1969, No. 578, Oct: Term,

1969, and a petition for ¥ writ-of. certiorari was filed

. on behalf of Henry Fried and §,_T. Grand, Inc., ‘on

September 19, 1969, ‘No. 620, Oct. — 1969. ~

OPINIONS BELOW

‘The opinion of the: Court of Appeals is not yet

reported. It has been printed as Appendix A (pp.

la-56a) to the petition in the Corallo case, No. 578,

and as Appendix A (pp. la-63a) to the petition in’.

the- Fried case, No. 620; since this petition will be

considered by the Court simultanéously with the peti-

tions in Nos. 578 and 620, the lengthy opinion-of the

Court of Appeals has been omitted from this petition.

The opinion of the District Court for the Southern

District of New York is reported at 281 F. Supp. 24.

It is, reprinted as Appendix B (pp. 57a-69a) of the

petition in No. 578; portions of it are repri ted as.

a B id 64a-67a) of the ——— in Mo. 620. -

- JURISDICTION

The judgment of the Court of Appeals: was entered.

on July 8, 1969. A timely.petition for rehearing, to-

gether with a suggestion that the rehearing be heard —

_ in bane, was denied on August 21, 1969. On September,

11, 1969, Mr. Justice Harlan signed an order extending |

the time for filing this petition for writ of certiorari

to and including October 18, 1969. The jurisdiction

of this Court is invoked ander 28 U.S. ©. § 1254(1). (

pean

- QUESTIONS PRESENTED

1. Whether an accused individual, who has already

been named as a defendant in a previously prepared

indictment about to be voted on by. a federal grand

jury and who is compelled to appear and testify be-

fore that grand jury, (a) is entitled to be given the

’ Miranda warnings, (b) is entitled to a hearing on his.

complaint that his grand jury statements, were ob-

tained in violation of his Fifth and Sixth Amendment

rights, and (c) is. entitled to have his incriminating

grand jury statements excluded from the trial beeause

he.was compelled to make such. statements as a captive

witness and without, having been properly advised as

to his constitutional rights to remain silent or to con-

sult with counsel.

2. Whether an undercover Government. agent, in-

~ structed bythe F.B-1. to infiltrate an alleged criminal -

: activity, can be treated in a subsequent criminal con- .

spiracy prosecution as a co-conspirator for purposes

of admission into evidence of extra-judicial aaa aes

by him or to him.

3. Whether, in a prosecution for conspiracy to vio-

late 18 U.S:C. § 1952 by using interstate telephone fa-

cilities with intent to promote the ‘‘unlawful activity”’

of the commission of the. New York state crime of

' bribery, the —_* may be sustained where there

was no corroboratio

quired by the New York law of bribery:

1 of accomplice testimony | as're--—

’ _ 4

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED |

United States Constitution; Amendment V:

‘© * * * nor shall he be compelled in any crimi-

nal case to be a witness against himself * * *.”’

United States Constitution, Amendment VI:

‘Tn all criminal prosecutions, the accused shall °

enjoy the right * * * to have the Assistance of

Counsel for his defence.’’

18 U.S p. $3962:— - |

‘*§ 1952. Interstate and foreign travel or trans-

portation in aid of racketeering enterprises

(a) Whoever travels ini interstate or foreign

commerce or uses any facility in interstate or for-

eign commerce, including the mail, with intent to—

(1) distribute the proceeds of any unlawful

activity; or . P

(2) commit any crime of violence to further

any unlawful activity; or

(3) otherwisé promote, manage, establish,

earry on, or facilitate the promotion, manage-

ment, establishment, or carrying on, of ‘any un-

lawful activity, '

and thereafter performs or attempts to perform.

any “of the acts specified in subparagraphs (1),

(2), and (3), shall be fined not more than $10,000

“= ere for not more than five years, or

t ‘ine

_ (b) As used in this section ‘unlawful activity’

means (1) any business enterprise involving gam-

/ poe to get on which the Federal excise tax has

not been paid, narcotics, or prostitution offenses

in violation of the laws of the State in which

they are committed or of the United States, or

(2) extortion, bribery, or arson in violation of

the laws of the State in which committed or of |

the United States. .

tion involving liquor or narcotics shall be con-

ducted under the supervision of the Secretary of

the Treasury.”’

18 U.S.C. §371: |

‘*§371\ Conspiracy to commit offense or to de-

fraud United States

‘Tf two or more persons conspire either to

commit any offense against the United States, or

y defraud the United States, or any agency there-

of in any manner or for any purpose and one or

more of such persons do any act to effect the

object of the conspiracy, each shall be fined not |

more than $10,000 &r imprisoned not more than,

five years, or both. * .

STATEMENT OF ‘THE CASE

Only those facts that underlie the questions herein

presented need be set forth. A full statement of the

essential facts appears in the petitions in Nos. 578

and 620 and will not be repeated here. :

The Government alleged that sometime in May,.

1966, James Marcus, assistant to the Mayor of the

City of New York, and in charge of the Department

of. Water Supply, Gas and Electricity, planned’ to

award an emergency contract for the cleaning of the

Jerome Park Reservior in the City of New York. It

was alleged that the petitioner Motto, along with.

Marcus, Itkin, Corallo and Rappaport, agreed and

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Et tte een mere” were Lett

DSA earime ee Fee

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‘conspired to negotiate with Tear}, Fried, president of

_§. T. Grand Co., to award the contract to S. T. Grand

Co. in return for a ‘‘kickback”’ of five per cent which

-~ was to be shared by the participants. The contract

was allegedly let to Grand & Co. and the agreed re-

turn: of five percent paid to’ Marcus, Itkin, Corallo,

Rappaport and Motto. ,

Late in 1967 a federal grand jury. investigation was

launched into the acceptance of bribes by New York

‘City public officials. On December 17th, a Sunday,

the petitioner Daniel Motto, the president of Local

350 of the Bakery and Confectionery Workers Union, ~

was served with a grand ‘jury subpoena made return-

able the next morning, December 18, 1967, at 10:00

A.M. before a federal grand jury sitting in the United

States District Court for the Southern District of

New York.

The petitioner Motto appeared before the grand jury

at the designated time and place, under the compulsory

process of the grand jury subpoena, and the following

questions and statements occurred (R. 1467) :

‘*(. Please state your name. A: Daniel Motto,

M-o-t-t-o. | ‘

Q. And your address. <A. 121 Birch Lane,

Greenwich, Connecticut.

Q. Mr. Motto, let me advise you that the grand

jury before you is investigating alleged violations

of Title 18, United States Code, Section 371.- That

section makes it a crime to conspire to commit any

crime against the United States, to commit any

offense against the United States.

There is ‘also a Section 1952 of the same Title

which makes it a crime to use any interstate facility

or telephone or to travel, or the mails, in fur-

therance of certain particular State offenses. In

this case the State offense that the grand jury is

investigating is the offense of bribery of a local .

official, namely a municipal official. Do you un-

derstand that? .A. Yes.

Q. And it’s investigating conspiracy concerning

this. I do want to advise you that you have a

right to refuse to answer any questions the grand

jury may ask you today the answers to which you.

fee] they tend to incriminate you personally. Do

you understand what I just said? A. Yes.

Q. However, should you answer questions, those

answers could be used against You in a’ court of

] r otherwise in the future.

At that point the witness nddded. ] ;

Q. You also have the right to consult with an

attorney. You understand that? A. Yes, sir.

Q. Do you have an attorney here today? A. No.

(). Let me also advise you that you are a subject

of the investigation of this grand jury. Do you

understand that? <A. Yes, sir.

Q. How long have you lived in Greenwich, Con-

necticut ?

rm, * a * 99

Later during the course of the grand jury interroga- |

tion the United States Attorney asked the petitioner

Motto about his relationship with Carl D’Angelo, an

attorney and a named co-conspirator in the indict-

ment, which had already been prepared and was

destined to be returned within the hour. The peti-

tioner. indicated that they were friends and that he

wanted him to represent his union (R., 1495), but

when he was asked whether D’Angelo ever repre-

- sented him in any manner the petitioner answered

‘‘No, not that I know of.” (R. 1497).

The United States Attorney then proceeded to elicit

ineriminatory statements from the petitioner Motto

in that he admitted knowittg Corallo, Itkin, and Marcus

and that he had dealt with them in the past.

_ After the United Statgs Attorney finished interro- © |

gating the petitioner before the grand jury he was —

excused and subsequently arrested, less than‘an hour

later, on the indictment which forms the subject of

the prosecution. It is undenied that the indictment

had already been prepared and typed before the peti-

tioner Motto’s appearance before the grand jury. This

charge was undenied by the Government in a motion

to suppress the petitioner’s testimony before the grand

jury., Thus, it is undisputed that when the prosecu-

tion compelled the petitioner Motto to appear. before

the federal grand jury which indicted him, the grand

jury knew that he had.already been nained as a de-

fendant in the indictment which was returned moments

after his appearance before that body.

The petitioner’s grand jury testimony was read to

the trial jury in its entirety, over the objection of his

defense counsel. (R. 1465-1499, 1526-1558). A motion

was also made, in advance of trial, to dismiss the

indictment and to suppress the evidence before the

grand jury on the grounds that petitioner’s rights

under the Fifth and Sixth Amendments of the Federal

Constitution had been violated and a hearing was re-

quested to determine all issues relative thereto. _ The

Court denied this motion, without opinion.

At the trial, Mareus was permitted to testify to a

great number of out-of-court statements made to him

by Itkin concerning the acts and declarations of the

other defendants. These statements were received in

evidence on the theory that they were made by, Itkin

as a co-conspirator, in wigs oak of the allegéd.con-

He must, without the presence of a lawyer, exercise an

independent and precarious judgment as to whether

each particular question warrants his exercise of the

Fifth Amendment privilege. See Meshberger, Right

‘to Counsel Before Grand Jury, 41 F. R. D. 189, 200-

201 (1967).*

‘As has been said by Judge Edgerton of the Court

of Appeals for the District of Columbia Circuit, in an

opinion joined by Judges Bazelon, Fahy and Wright, .

Jones v. United States, 342 F. 2d 863, 868 (1964) :

‘‘Mere interrogation before a grand jury may

harm the accused as much as mere interrogation

at a.trial. Even if he makes ‘no direct incrimi-

nating statement, there is no way to know whether

ins fact his appearance was lucriminating In the

minds of some or al] the. members of the Grand

Jury’. United State¥ v. Digrazia, 213 F. Supp.

232, 234 (N.D. Ill. 1963). His having been brought

there may arouse suspicion. His manner and

voice may arouse suspicion. Because grand jury

investigations are secr&t, as we said in Powell

[226 F.2d 269], he is ‘isolated from the protection

of counsel and presiding judge and insulated from

the critical observation of the public.’ Though

he may be unqualified . .". to decide for himself

* “<The logic of Escobedo would seem to require application of its

safeguards to grand jury and other investigatory proceedings,

whose purposes are to determine probable guilt. Here the witness’s

privilege is more complicated than in police interrogations, for

he can legally be compelled to answer nonincriminatory questions

- and will be held to have waived his privilege if he answers incrimi-

natory ones. Until now it has been held that witnesses called fo

appear before such bodies have the right neither to be warned of

their privilege nor to be represented, by counsel so long. as they

have not been indicted. It is uncertain, however, whether Escobedo

will supplant the extensive case law defining a witness’s right at

these investigations.’’ The Supreme Court, 1963 Term, 78 Harv.

L. Rev. 143, 222-223 (1964).

ED iat re

what questions .to answer, he must decide at his

peril. If he answers incriminating questions he

may make it certain . . . that he will be indicted.

And testimony before the grand jury may be used

~ . to impeach his testimony at trial. If he re-

fuses to testify at all, or to answer some questions

on the ground that answers might incriminate him,

the grand jury may draw conclusions. If the re-

fuses to answer questions that are not incriminat--

ing, he may be guilty of contempt.”’

Here, then, is a situation quite unlike that involved

in In re Groban, 352 U.S. 330 (1957), where a bare

majority of this Court ruled that.a mere witness called

before a fire marshal investigating the causes of a fire

had no constitutional right to be assisted by counsel

in giving testimony before the marshal. The peti-

tioner here was not merely a witness. The indictment

had been dyafted and the grand jury’s investigation

was completed. Less than one hour after he testified

he was arrested upon the basis of the indictment. The

only purpose of calling petitioner was not to aid in

the completed investigation but to elicit incriminating

statements or to force him into a contemptuous postute.

For all practical purposes, then, the indictment had

focused upon this petitioner and he was in need of

the protections the Fifth and Sixth Amendments were ©

designed to provide.

: While there is dicta in Groban (352 U.S. at 333)

' that a witness before a grand jury ‘‘cannot insist, as

a matter of constitutional right, on being represented

‘by his counsel,’’ that dicta should be re-evaluated in

light of Miranda, Escobedo and Messiah, particularly

as to one like petitioner who has become not only a

witness but the defendant in a prepared criminal

indictment. °

Im 1$S1NE

FACES 9-/2.

The obvious importance of this question, combined

with the conflict between the views expressed by the

court below.and the views of the four Judges of the

District of Columbia Circuit in the Jones case, makes

review and resolution by this Court appropriate.

(b) Assuming that the Miranda warnings must ‘be a

given to a person involuntarily called before a grand

jury as a defendant in a prepared indictment, the

ruling below that the warnings given petitioner ‘‘were

completely adequate” raises serious questions as to

ether there was indeed compliance with the Miranda

requirements. A quick comparison indiéates serious

the warning given the petitioner:

nda warnings Petitioner’s warnings

1. Iie ‘‘must frst be informed in 1. ‘‘I do want to advise you that

equivocal terms © you have a right to refuse to

that he has tke right to re- answer any questions the

main silent.’’ ‘884 U. S. at grand jury may ask you today

467-468. This wakning ‘‘ must the answers to which you feel .

the ex- they tend to incriminate you

planation that anyt

cen and will be used Against stand what I just said?’’ R.

cne individual in court.’’ 384 1467. He nodded when told

U. S. at 469. that ‘‘should you answer

questions, those answers could

be used against you in a2 court

of law or otherwise in the

future.’’

2. He ‘‘must be clearly informed 2.‘‘You also have the right to

that he has the right to con- consult with an “age 4 You

sult with a lawyer and tohave. _—scunderstand that? .. . Do you

the lawyer with him during have an attorney here to-

the interrogation.’’ 384 U.S. day ?”” R. 1467.

at 471. This right ‘‘compre- —

hends not merely a right to

consult with counsel prior to

questioning, but also to have

counsel present during any

ing said _— personally. ‘Do you under- *

Re EN ES

DIADARBON ODDIE Eo

Miranda warnings

Petitioner’s warnings

‘k@owingly and

self-incrimination

questioning if the defendant

so desires.’? 384 U.S. at 470,

It is also necessary to advise

him ‘‘that if he is indigent a

‘lawyer will be appointed to

represent him.’’ 384 U. S™

at 473. ;

.“‘If the interrogation con-

tinues without the presence of

an attorney and a statement

is taken, a heavy burden rests

on the government to demon-

strate that the defendant

intelligently

waived his privilege against

and _ his

right to retained or appointed

counsel ... But a valid waiver

will not be presumed simply

from the silence of the ac-

cused after warnings are given

or simply from the fact that a

confession was in fact evén-

tually obtained.’’ ~,, 384 U. S.

at 475. %

4. ‘‘The oe required and

petitioner Motto are serious.

thé waiver necessary .. . are,

in the absence of a fully ef-

fective equivalent, -prerequi-

sites of. any statement made

by a defendant.” 384 U. S.

at 476.

3.The petitioner merely said —

‘‘Yes’’? when asked if he un-

derstood he could refuse to an-

swer any incriminating ques-

tions. He merely said ‘‘ Yes”’

when asked if he understood

he had.the right to consult

counsel. He merely said

‘*No’’ when asked if he had

_an attorney here today.

4. No indication of a waiver or

“‘a fully effective equivalent.”’

Apart from the fact that the petitioner Motto was

not told that he was a named defendant in an indict-

ment already prepared, the discrepancies between the

Miranda requirements and the warnings given the

He was not told clearly

and unequivocally that he had a right ‘‘to remain |

silent,’’ but was misled into thinking that he could

refuse to answer only if he thought the answers might

tend to incriminate him. While te was told he had a

right to consult counsel, he was not given an oppor-

tunity to do so or even asked if he desired to exercise

that right.

Indeed, petitioner was told-nothing “prior to-the in-- ;

terrogation in the presence of the grand jury. And. _

the advice that was given concerning the right to

- counsel and the right to remain silent as to incriminat-

ing questions was all stated in the presence of the

grand jury. Even then he was not told that head

the right to have counsel’ and consult with him prior.

to the interrogation that was by then underway. Nor

was any effort made to determine if he desired to

- waive the right to counsel or his privilege against self-

incrimination. And no ‘fully effective equivalent’’

by way of immunity was offered him as a substitute. ,

_ A full consideration by this Court of these discrep-

- ancies is warranted by the intrinsic importance of the |

problems in the context of grand jury procedures. If

the discrepancies are as significant as petitioner be-

lieves, the reading of his grand jury testimony to the

trial jury was an obvious denial of his- constitutional

rights. 7

of the courts below to permit a hearing to determine if,

as petitioner claimed, his statements were obtained

from him, as a named defendant, involuntarily and in

violation of his constitutional rights.

It is now axiomatic that a defendant has a ‘‘constitu-

tional right at some stage in the proceedings to object

to the use of . .. [a] confession and to have a. fair

ite ee

—

hearing and a reliable determination on the issue of

voluntariness,-a determination. uninfluenced by the

truth or falsity of the confession.’’ Jackson v. Denno,

378 U.S. 368, 376-377 (1964). Such a hearing must take

. ~ place outside the presence of the trial jury. And while

Jackson yv. Denno dealt with a confession rather than

an admission, Miranda itself dealt generally with

‘*statements obtained through interrogation’’ and any

‘‘evidence obtained as a result of interrogation.’’ 384

U.S. at 478-479. In other words, insofar as admissi-

bility i is concerned, there can be no meaningful distine-

tion between confessions and admisgions. See Jones

v. United States, 296 F.2d 398, 402 (D.C. Cir. 1961) ;

Gladden v. Unsworth, 396 F.2d 373, 375 (9th Cir. 1968).

- This Court should now make express that which

seems inescapable—i.e., that*the defendant is entitled

to a Jackson v. Denno typeof hearing as to the volun-

tariness of admissions extracted from him after he

had been made a defendant in the prepared indictment.

The decision below raises important snestions as to the ad-

missibility of declarations by an alleged co-conspirator as

_ an exception to the ‘hearsay rule.

. This Court has established f policy of limiting the

scope of the ‘‘very narrow exception to the traditional

hearsay rule’’ as respects the admissibility of declara-

tions made by a co-conspirator. Wong Sun v. United

States, 371 U.S. 471, 491 (1963); Krulewitch v. Unite

States, 336 U.S. 440, 443-445 (1949). But the ruling

“below that Itkin qualifies as a co-conspirator for pur-

poses of admissibility of his out-of-court statements.

raises serious quéstions as to the vitality of that policy. _

Those problems arise out of the clear and undenied

testimony of Itkin that he was indeed a ‘Goverment

informer, secreted in the alleged conspiracy for the

Other Circuits have held that ‘‘one who acts as a

government agent and enters into a purported con-

spiracy in the secret role of an informer cannot be -

“” a eo-conspirator’’ since he ‘‘secretly intends: to frus-

trate the conspiracy.’’ United States v. Chase, 372

F. 2d 453, 459 (4th Cir. 1967) ; Sears v. United States,

343 F..2d 139, 142 (5th Cir, 1965). It would follow

. that the out-of-court declarations of such an informer”

cannot be-received in evidence as the declarations of a

ce-conspirator. under the established hearsay. exception.

See United States v. Morello, 250 F. 2d 631, 634 (2nd

_ Cir. 1957): United States v..Costello, 352 F. 2d 848,

855 (2nd Cir. 1965).

This problem obviously needs - definitive clarifica-

tion by this Court.

Il.

The decision below raises important ‘oudibaie as to the cor-

roboration necessary to prove an “unlawful activity”.

within the meaning of 18 U.S.C. § 1952. .

The Court of Appeals rejected the sidepenativens that

the New York requirement of corroboration of ac-

complice testimony respecting the crime of bribery is

applicable in jhe context of a federal conspiracy prose-

cution. . That such corroboration is necessary as a

matter of New York law is clear. N.Y. Code of Crimi-

nal Procedure, § 399; People v. O’Farrell, 175 N.Y.

823, 67 N.E. 588 (1903) ; People v. Negrin, 24 Mise. 2d

181, 301_N.Y.S. 2d 59 (1960).

An important question is thus raised as to whether _

the’same degree of proof is required where the alleged: ,

objegt or purpose of the federal crime ‘of conspiracy

is the ‘‘unlawful “activity”? of committing a violation

of the New York bribery statutes. In other words, the

‘‘unlawful activity’? mentioned by 18 U.S.C, § 1952

is borrowed in this situation from the crime of bribery -

as defined and proved in aceordance with New York’

law. There is no federal crime of bribery in issue.

There is nothing i in the language, purpose or history |

of § 1952 to suggest that Congress intended to ignore

or override the safeguards and conditions attaching

to the proof of crimes under state law, where proof of

an intent to commit such crimes‘is necessary to show.

the focal point of a conspiracy. And this problem,

touching as it does on sensitive areas of federal-state

relations, clearly warrants consideration and resolution

by this Court.

CONCLUSION

The, petitioner Mottd also adopts and urges each of

the questions asserted by the petitioners in Nos. 578

and 620 that are applicable to him and not otherwise

encompassed in this petition.

It only remains to be said that a defetdaut in a

criminal investigation should not ‘be treated by the

grand jury room-and there, stripped of all legal pro-

tection, forced into an incriminating position and then

taken into ¢aptivity. What was done to the petitioner

here, summoned on a Sunday to appear on the follow-

ing morning before the grand jury without an adequate

opportunity to obtain or consult with counsel, offers

an ominous omen of things to come if some legal or

constitutional limits are not placed on such prosecu-

tion tactics. It is fair to assert that, without some

- ~

/ e

f ‘

intervention by this Court, federal prosecutors will

be motivated to exploit the unfair procedures s approved

by the Second Circuit in this case. -

No defendant will be safe until prosecutors are ad-

vised that such brazen breaches of a defendant’s rights

under the Fifth and Sixth Amendments will not be

condoned. Certainly the safety and security guaran-

teed by those Amendments belong to all individuals,

prepared. iridictments.

For these reasons, this petition should be granted

and the judgment below reviewed. 6

Respectfully submitted,

JAMES M. LARossa

115 Broadway

New York, New York

HERALD Price FAHRINGER

One Niagara Square .

Buffalo, New York 14202

EUGENE GRESSMAN

1730 K Street, N.W.

Washington, D. C. 20006

Counsel for Petitioner

October 17, 1969

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.