# Petition for Writ of Certiorari — Motto v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1969
- **Citation:** 396 U.S. 963

## Text

Lib rARY_- | Office-Supreme Court; U

. ‘ FILLED
SUPREME COURT.U8& *© :
| OCT 17 1969
SS
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
13

ae

2

By, saab

SOE PE AT

‘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

7.
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

8

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-

ES

13

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

14

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.

15

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

16

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 |

IT

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

(c) An additional problem is raised by the atcail
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

—

18

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.

IL

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

J

y

19

testimony of Itkin that he was indeed a ‘Goverment
informer, secreted in the alleged conspiracy for the
‘© purpose of. obtaining evidence for prosecution.

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: ,

~

20

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
prosecution as game to be stalked until cornered in 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 ‘

4

21

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,
including those who have become the defendants in ©
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_1134%3A1. Public record. Not legal advice.