Petition for Writ of Certiorari — Schipani v. United States

Supreme Court brief1970

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Text

- FILED

1- FE = |

ij PR iiMe GOuURT. WU. & . OCT 10 1969 ;

wma Ea DAVIS, CLERK

‘N

In THE

Supreme Court of the United States

- Obndbais TERM, 1969

Docket No. 795 | :

° JOSEPH F. SCHIPANI, - x

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

— —-

PETITION FOR WRIT ‘OF CERTIORARI TO THE .

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Jacos P. LerKowrrz

150 Broadway

New York, Nv Y.

- ABRAHAM GLASSER :

: 52 Eighth Avenue

New York, N. Y. 10014

Attorneys for Petitioner

Joseph F. Schipam

TABLE OF CONTENTS

OPINIONS BELOW ........-.------ Acer bear ae ea Paige etig eases

J URISDICTION Ae Wat shentiate ee Dee MUA eer Malte ee A

; : Questions PRESENTED tease pioudeain Peer Mineo ae

‘tommateewes PROVISIONS AND STATUTES Tex OLVED..

STATEMENT OF THE CASE ...:.:.........--- SUES) | ERIE Re ole eg

x & Introductory ID Bards aoe RAD RE AT a TIER

2. “The Electronic Taint Factor And The See-

Ott “RIA =e saibiintiatiesrcinstaactnectae accent

3. The Second Trial Proofs As Such (Consist-

ing Of A Re-Incorporation Of The First-

Trial Proofs ‘Into The Second-Trial Record

Except For Proof Of Likely Source) ............

- l

‘REASONS FOR GRANTING THE WRIT .................c-ccc--cees-005

ee a. Rana ROS teh Ua PLO DOSNT ACHE TE bees ae

APPENDIX:

A—Opinion of the United States Court of Ap-

peals NS Seat RPA Ge MSS ene Ta :

5 Opinion of the United States District Court

(May 10, 1968, Weinstein, D.J.) ................-..--

C—Opinion of the United States District Court

(July 26, 1968, Weinstein, D.J.) -2.22...

D—Memorandum~ and Order of the United

States District Court ee 14, 1968,

Weinstein, Did.) 22... eee eeeeeeeeeeeeee

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Puree’? : * COP aS el Rtoes. . : Ae

SERN Re ATR SLRS RL it a A ee AN Oy IR

in | _ TABLE OF CONTENTS

— PAGE

E_Opinion of the United States District Court

(November 8, 1968, Weinstein, ; SF a T4a -

F—Supplemental Memorandum for the United

States ..... 92a

G@—Memorandum of James D. O’Brien, Novem-

ber 18, 1966 Saati: PO

H—Judgment of Court of Appeals Sere

Conviction ...~ : (108a

I—Order of Court of nel Heavine Motion

Under 28 U.S.C. §1651 110a

Cases Cited |

Alderman v. United States, B04 U.S; LGB ..ecceeseseosns 8, 58

‘Black v. United States, 385 U. S. 26, decided Novem-

ber 7, 1966) 29, 30

Desist et al. v. United States” no. 12, Oct. Tenn 1968 57

Linkletter v. Walker, 381 U.S. 618, 629 ..... 27

Schipani v. United States, 385 U. S. 372, decided De-

cember 12, 1966) ............-.--- 10,12 .

- United States v. Massei, 355 U. S. 595 ..... 11

United States v. Ohio Power Co., 353 U. S. 98, 99 ...... 44

United States v. Schipani, 362 F. 2d 825 (C. A. 2, |

SG ke eeeiinneen y 10

eo Siates Constitution Cited

Fourth Amendment 9, 30

Fifth Amendment ........ ae sete 9

Sixth Amendment ........ eS ; 9 }

Ninth Amendment 2..2....0...2..0:.ccccccecseccsescorneseescccessoncceneqees 9

ae: | /

TABLE oF CONTENTS ©’. See

: PAGE

, _ _» Statutes Cited

SCT ee eee

28 U.S. C. $518 Neo CEES a 43

28 U.S.C. §1254(1) ..... , 4.

28 U.S.C. §1651 - 2, 4, 6, 9, 59, 60

_ Other Authorities Cited

. 19 A. L, B.3d 502 .... : 49

87 A. L. R. 2d: : a

, Page 271 ............ te 7 49

FIDO BIO wijessprccgoowsciseus 3 peduilees Goakewsiniantioceias 49

Page 280 ............- ; Re . 49

5 Am. Jur. od: a 3 a7 t

Sec. 744 oui... a a ceeeee eee 49.

BP I aca cernctenene 49

Pages 188 et seq...,.......-...1---+-+ 49

Pages 417-418 _0 i... 50

gz.

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- e : . =

In THE

| Sinrace Court uf the Med States.

OctoBER TERM 1969

Docket No.

—_

—>

JosePH F, ScHIPANI, . ;

: : Petitioner,

Unitep States oF AMERICA, ‘

Respondent. '

—

PETITION. FOR A ‘WRIT OF CERTIORARI TO THE.

UNITED STATES COURT OF APPEALS FOR THE |

os SECOND CIRCUIT ©

Petitioner, Joseph F. Schipani, prays that a writ of

certiorari issue to review the judgment, and an accom-

panying order, of the United States. Court of Appeals

for the Second Circuit, hereinafter described. “i

rae ; Opinions Below

The opinion of the Court of Appeals affirming petition-

er’s conviction (on this second triaf under the. same in-

dictment), printed as Appendix A hereto, infra, is not

yet reported. The Court of — did not write an-

2 2 *%

opinion in connéction with its accompanying order deny-

ing relief against the District Judge under 28 U. S. C.

§1651 (the/*All Writs” statute).’ The opinion of ‘the Dis-

trict Court of May 10, 1968, denying the Government’s

motion to withdraw its consent to a trial without a jury,

printed as Appendix B hereto, infra, is reported in 44

‘F.R.D. 461. The opinion- of the District Court, of July 26,

1968, on the defense motion to suppress electronically ob-

tained evidence, printed as Appendix C hereto, infra, is

reported | in 289 F. Supp. 43°° The memorandum and_

order of ‘the District Court, of October 14, 1968, dispos-

ing of various defense motions to ‘strike or suppress evi-

dence, printed as Appendix D hereto, imfra, is not re-

ported. The opinion of the District Court, of November

8, 1968, finding the defendant guilty of tax evasion, print-

ed as Appendix E hereto, infra, is reported in 293 F.

Supp. 156. On the first’trial of this indictment an opin-

ion was written by the Court of Appeals, reported in, 362

F. 2d 825, reversed 385 U. S. 372; and by the District

Court, not reported; both of the latter opinions were

printed in the separately bound Appendix to the petition

or certiorari.in No. 504, Oct. Term 1966.

Jurisdiction

The judgment of the Court of Appeals affirming peti-

tioner’s conviction was entered on August 11, 1969. The

-time for filing this petition for Gertiorari_has heen ex-

tended, by order of Mr. Justice Harlan, to and including-————-___

October 10, 1969. At the oral argument in the Court of

Appeals on June 25, ‘1969 .the Court entertained a mo-

- tion by the appellant (the present petitioner) for relief

pufsuant to 28 U. S. C. §1651 (the “All Writs” statute),

which sought mandamus, prohibition or other appropri-

ate writ with reference to our contention that the Dis-

= @

trict Cotirt inal exceeded its jurisdiction in the manner in

which it dealt with an order of this Court which had re-

versed: Schipani’s first conviction on grounds of electronic

taint and had remanded the case to the District Court

_ “for a yew trial should the Government seek to prosecute

peititionér anew” (385 U. S. 372). Our latter motion in

the Court of Appeals for relief under 28 U. S. C. §1651

was ¢aptioned by-us under the same title and docket

number as the.appeal from Schipani’s second conviction.

At the conclusion of the oral argument on June 25, 1969

the Court of Appeals denied our said motion in open —

Court. Thereafter, on August 11, 1969 the Court of Ap- |

peals affirmed the second conviction, as above stated. We

(counsel herein) did not find out until October 9, 1969,

when’ we éxamined the certified recoril in the office of

the Clerk of the Court of Appeals, that our motion under

28 U.S. C. §1651 had been re-entitled ai id had been given

a new docket number by that Clerk, and that a separate

order denying the motion had- been ‘entered under that

new title and new docket number on June 25, 1969.* We

were under the impression that the Court of Appeals’

judgment of August 11, 1969 affirming the conviction

would also optrdte as the order denying our motion un-

der 78 U. S. C. §1651. Therefore, we have never filed a

separate petition for certiorari in connection with the

§1651 motion, nor have we applied for an extension of

time to file such a separate petition’ for certiorari; and

the ninety days allowed for certiorari to-weview a $1651

proceeding expired_herein n sc anced 23, 1969. When

~<~

*The Clerk had re-entitled. the case as Joseph F. Schipani, .

Petitioner v. Hon. Jack B. Weinstein, United States District

Judge for the Eastern District of New York, Respondent, Docket

No. 93753. ,

’ : 4 :

‘

we requested and received. from. Mr. Justice Harlan the

extension of time until October 10, 1969 to file this peti-

tion for certiorari .we made no separate mention of the

§1651 aspect; that application for extension of time was

mailed on August 28, 1969, and Mr. Justice Harlan’s or:

der granting. the extension is dated.September 4, 1969, all

of which was well before September 23, 1969 when the

time for a separate certiorari petition in the §1651 /pro-

‘eeeding expired. As will appear, infra, the §1651 aspect

of this case is—under our theory of the case—insepa-

rably integral with the proceedings under the indictment

whieh are here sought to be reviewed. We also note that

this Court has original jurisdiction under 28 U. S. ¢.

§1651; and that the very subject matter of our within

§1651 motion is that We allege a violation of a mandate

of this Court by a Federal District Court in this same

criminal prosecution. In any event furthermore, the same

issues raised by our §1651 motion are involved in the

present certiorari application to review the judgment of

conviction as such. For all the above reasons we pray

that the Court entertain jurisdiction, via this petition for

certiorari, of the order of the Court of Appeals denying

our §1651 motion.* i

The jurisdiction of this Court is invoked under ‘28

U. S. C. §§1254(1) and 1651.

*In order to perfect our jurisdictional position in regard to

the §1651 motion we shall shortly file a separate motion for leave

to file an original §1651 motion in this Court, and for consoli-

dation of such original motion with the present petition for cer-

tiorari.

)

Questions Presented

At the October 1966 Term this Court, after first deny-

ing certiorari to review petitioner, Schipani’s conviction

for income tax évasion (385 U. S. 934), about a month

later granted the petition and .vacated the conviction

“upon the suggestion of the Solicitor General and upon

an independent examination of the case”, because of elec-

_ tronic taint (385 U. 8. 372). The Court remanded the

ease to the District Court “for a new-trial should the

Government seek to prosecute petitioner anew” (2bid)..

In the Solicitor General’s memorandum which had led to

this result, it was stated that, “Since there was material

evidence against petitioner which wis tainted, his convic-

tion cannot stand, and no purpose would be served here

in having the District Court conduct a collateral hear-

ing, such as was suggested by the Government in its mem-

orandum in Black.” Karly in 1968 a “trial attorney” of

the Department of Justice in Washington filed an affida-

vit in the District Court stating that the Solicitor Gen-

eral had been “in error, when he informed the United

States Supreme Court that ‘Since there was,material evi-

dence against petitioner which was tainted, his convic-

tion cannot stand * * *’”. The District Court then held

a hearing on the electronic issues, in which the Govern-

ment contended that the entirety of the first-trial proofs

(which this Court had found tainted) be again admitted

in evidence at a re-trial of Schipani. The District Court

ruled that all proof of “likely source” of income (under

the “net worth” theory) must be suppressed for electronic

taint, but that all the rest of the Government’s first-trial

“net worth” proofs could be used anew. Schipani was

then tried and convicted a second time without any new

proofs whatsoever beyond the first-trial proofs which this

rn Ryne teeta Ries ae

Court had condemned as electronically tainted and which

the Solicitor General had disowned for the same reason.

The Court of Appeals affirmed the second conviction and

approved of the District.Court’s handling of this Court’s

mandate. The questions are:

1. Were the second-trial proceedings repugnant to the >

mandate of this Court? If the Government thought the

Solicitor General had been “in error”, which necessarily .

must mean also that the Government thought this Court’s

own “independent examination of the case” was likewise

“in error”, was not the required procedure a petition by

the Government for re-hearing in this Court to-recon- .

sider the allegedly “erroneous” 1966 decision vacating the

first conviction? |

9 Was not the District Court’s function in applying

this Court’s 1966 mandate limited to conducting a second

trial, if the Government wanted one, in which the Gov-

ernment would either produce an entirely new body of

proof or at least some substantial new proof wholly un-

connected with the electronic-tainting activities con-

demned by this Court on the first-trial record? Did this

Court intend or contemplate that the District Court

would in effect collaterally review this Court’s 1966 find-

ing that the first-trial proofs were tainted? Again, should

not any such re-examination of this Court’s 1966 finding

have been made only by this Court itself, upon a proper

application by the Government for rehearing or other

reconsideration in this Court?

8 Should not the Court of Appeals have reversed the

second conviction and granted our motion for relief un-

der 28 U. S. C. §1651 for the reasons denoted in ques-

tions 1 and 2, supra? -

2. i

‘

4. In view of the District Court’s findmg that the

electronic taint did require suppression of all proof of

“likely source”, and in view of the fact that undisputedly

the Government’s attention became focused on -petitioner

Schipani as a tax-evasion defendant because of his al-

leged “organized crime” involvements and income sources, ..

and in view also of the fact that the Government’s undis-

puted electronic activities re Schipani and his alleged as-

sociates were part and parcel of me governmental pre-

occupation with “organized crime” in general and Schi-

pani in particular, and in view of the fact also that un-

disputedly the concededly crucial evidentiary leads (cer-

tain records of money orders) for Schipani’s conviction

herein were obtained by the Government after and dur-

ing the most intense portions of the electronic surveil-

lance, was it not error for the District Court to conclude

that the Government could re-try Schipani on the entirety

of the first-trial proofs except the proofs of “likely

source” of income, the District Court’s reasoning being

that the Government’s prosecutive attentions had not be-

eome “focused” on Schipani by reason of electronically

obtained information but that the Government had origi-

nally become interested in Schipani some time before

the electronic’ activity commenced? Can this kind» of

microscopic surgery of such massive and pervasive elec-

tronic cancer be countenanced as a fair and decent pro-

cedure in the administration of federal criminal justice?

Can it be countenanced either as a general precedent-

shaping activity by a Federal District Judge, or as a spe-

cific instance on the present record? Should not certio-

rari be granted here for the reason, without more, that

the exceeding peculiafity of the District Court’s miero-

surgery methods in this case call for a review by this

Court, for “test case” purposes, in this important area of

the law of governmental electromic activity—and a for-

SOFT SRO NPE a Ne eS NES EN ROT TREN DRA RRO NT SpE HONE

ESAS PI

tiori, again, for the herein specifically further accompany-

ing reason that all this has taken place in the setting of

the very dubious and very disturbing way that the Dis-

trict Court has here construed and applied (and, we sub-

mit, tampered with and trampled upon) this Court’s

1966 mandate?

5. In any event, conceding arguendo that none of our

above questions have certiorari merit, should not_the case

be reviewed by this Court on the electronic issues, to ‘de-

- termine (a) whether the District Court’s entirely de novo.

formulations as to burden of proof of the Government

to negate electronic taint are sound—the District Court

here having accepted the test of “beyond a reasonable

doubt” on the question of whether specific items of evi-

dence were free of electronic taint, while at the same time

it accepted the test of merely “a preponderance of the

proofs” on the artificially separated question of whether

the Government’s “focusing” on Schipani was free of elec-

tronic taint; and (b) whether the District Court’s evalua-

tion of the evidence at the electronic-suppression hearing

was correct? That is, should not the case be reviewed for

these purposes, from the “test case” standpoint above sug-

gested, ‘and, again, from the standpoint of the confronta-

tion between what the District Court has here done and

what this Court ‘did in its 1966 decision?

6. Was petitioner denied his rights under Alderman v.

\ United States, 394 U. S. 165, as to the Tony Ricci tres-

passory bugging in Florida?

7. Is the evidence sufficient for conviction on the net

worth theory? This question is not argued in this

petition, we respectively preserve it in the event of

the grant of certiorari, and we ask leave to re-adopt here

our Questions Presented 1, 2 and 3 plus supporting pre-

sentation in our petition for certiorari in No. 504, Oct.

Term 1966.

| 9

8. Was petitioner denied a fair trial in violation of

due process of law and of his privilege against self in-

crimination, as well as his right to counsel and to be free

of unreasonable search and seizure, by the reception in ;

evidence, over defense objections, of a statement taken

from petitioner while he was under coercive authority in

a Federal prison, the statement being the indispensable

starting point of. the prosecution’s entire proof of open-

ing net worth in this case? (Not argued in this petition

but preserved in event of granting of certiorari.)

9. Was the petitioner denied a fair trial and a fair

and impartial tribunal by the Court’s taking over the

function of the prosecution in re-fashioning the whole ba-

sic prosecutive strategy for the express purpose of sav-

ing the prosecution from failure of such re-fashioning

were not done? (Not argued in this petition but pre-

served in event of granting of certiorari.) —

10. Was the petitioner denied a fair trial by the infec-

tion of the record with references to his alleged notori-

ous criminal background? (Not argued in this petition .

but preserved in event of grant ing of certiorari.)

11. Was the petitioner denied a fair trial and the

right of confrontation by the Court’s consideration of

non-proved “facts” concerning the petitioner’s personal-

ity, shrewdness, ete.? (Not argued in this penton. but

preserved in event of granting of certiorari.)

Constitutional Provisions and Statutes Involved

The case involves the Fourth and Ninth Amendments

(search and seizure, and privacy), the Fifth Amendment > |

(due process and self incrimination), and the Sixth

Amendment (right of counsel and confrontation) of the

United States Constitytion. It also involves 26 U. S. C.

§7201 and 28 U.S. C. §1651.

NTA RRO NII

7 \

Statement of the Case

1. Introductory eae:

Petitioner seeks review of a judgment of the United

States Court of Appeals for the Second Cireuit which af-

firmed a judgment of the United States District Court for

the Eastern District of New York (Weinstein, D.J.), after

a trial without a jury, convicting petitioner on five counts

of personal. income tax evasion through failure to file re-

turns for the years 1956-1960, in violation of 26 U. S. C.

§7201, and sentencing him to three years on each count

to run concurrently plus committed fines of $2500 on

each count totalling $12,500. a 3

This is the second time the case has been tried. The

first trial, before Judge Rosling, without a jury, resulted

- in a conviction and in imposition of the same sentence

now imposed; the Court of Appeals. affirmed the first-

trial conviction in United States v. Schipani, 362 F. od >

825 .(C. A. 2, 1966); but this Court reversed, on grounds

of electronic taint (Schipani v. United States, 385 U. S.

372, decided December 12, 1966). :

The case was tried in both trials on the “net wort ”

theory. The defendant introduced no proof .at either .

trial; he rested on the insufficiency. of the Government’s

proofs.

The Government’s proof of its “net worth” contentions

depended to an unusual degree—indeed, we think, to a

unique degree in this case as compared with any other

reported criminal prosecution in this country on the net

worth theory—on a voluminous and complex ‘process of

“inferences” claimed to ke derivable from “circumstantial

evidence”. There were no “leads” obtained from the de-

fendant. | |

BEER ROE IRL OHI ALS NT MDE DE

ae Rater "-

But now, in thege proceedings for review of the sedond ra wr

conviction there is an important difference concerning

the appellate. merits of those same net-worth-theory is-

sues, because Judge Weinstein found. it necessary to sup-

press a certain portion of the Government’s ‘ first-trial

proofs in view of: the circumstances of electronic taint

which led to the reversal by this Court in 1966 as above :

mentioned. Judge Weinstein suppressed: all proof of

“likely source” of taxable income during the prosecution

years (details infra). This meant that the Government

had to satisfy the test of United States v. Massei, 355

U. 8S. 595—“* * * shotld all possible sources of non-tax-

able income be negatived, there would he no necessity €or

proof of a likely source”’—and Judge Weinstein con-\

cluded the Government met this requirement.

‘This last makes it of next immediate pertinence to. men- .

tion that Judge, Weinstein decided this second trial solely ;

on the same proofs the Government introduced -in_ the

first trial* (minus the suppressed “likely source” proofs), ~__

The Government did introduce into evidence on this sec- : .

ond trial just one new item (testimony by FBI Agent ,

Shedd, infra), but Judge Weinstein expressly declined to

givé probative consideration to this single new item,

Thus, one new, issue is whether the first-trial proof with-

out more, is sufficient for this second conviction, since

the first-trial proof is now stripped ee any proof of

likely source.

The reason Saat this problem of the sufficiency of the

proof in this second’ trial is so acute, is that (1) the Gov-

ernment’s whole indispensable proof of “opening net

worth” (as of the beginning of the first indictment year,

* The entire first-trial record was received in evidence here as

an =

- 12

1956) entailed both negating a pre-indictment period cash

hoard and negating that such hoard would have been suffi-

cient to account for the expenditures or the alleged “net

worth inereases” durihg the indictment years, whereas

these proofs to negate eash hoard are- intrinsié

ally and notably insufficient, in this case; and (2)

since “likely source” is out of this case, the Government’s

burden of negating eash hoard, and of establishing “‘open-

ing net worth”,. became increased in this ease to the de-

gree of the Massez test, supra (“all possible sources of

‘non-taxable income be ions apie ate

2. The, Electronic Taint Factor And The Second Trial.

After Schipani lost his previous appeal in the Court

of Appeals (362 F. 9q 825—decided June 29, 1966) he

petitioned for certiorari, and on November 7, }966 the oS

petition was denied (385 U. S. 934). Schipani was ready-

ing himself to begin serving his jail sentence when, near oma

the end of November 1966, the Solicitor a eo ee

“Supplemental Memorandum For The United States”, a ot

copy of which is reproduced in ‘Appendix F hereto, infra. ae

The Solicitor General told this Court it had been dis-

covered that by reason of trespassory ‘electronié activity

which “provided investigatory leads and other informa-

tion used in proceeding against petitioner [Schipani]”,

“fhere was material evidence against petitioner which

was tainted, his conviction cannot stand, and no purpose

would be served here in having the District Court con-

duct a collateral hearing * * *” (p. 3 of the Solicitor

General’s supplemental memorandum). .

On Deceniber 12, 1966 this Court rendered the follow-

ing opinion per curiam (Schipani v. United States, 385

U. S. 372): : %

* As noted in our Questions Presented, we are preserving these

issues as to sufficiency of proof in the event of granting of

certiorari.

w..0

“Upon the ‘suggestion. of the: Solicitor General,

and upon an independent examination of the case,

the petition for a rehearing is granted, the ofder

of this Court denying certiorari is vacated, cer-

tiorari granted, the judgment of the United States

. Court of Appeals for the Second Circuit is vacated

“~and the case is remanded to the United States Dis-

trict Court for the Eastern District of New York .

for a new trial should the Government seek to

prosecute petitioner anew.” (Emphasis supplied.)

Barly in 1968 we were favored with word from the

* Government that they wanted to re-try Schipani because

a “Trial Attorney” in the Department of Justice in

Washington = convinced that the Solicitor General had

been “in error’. We quote from the affidavit of that

Washington Trial Attorney (dated May 1968) :

“The United States of America by Expon F.

Haw ey, ‘Trial Attorney, Criminal Section, Tax Di-

vision, Department of Justice represents - to the

Court as follows that:

(1) Upon information and belief the evidence in

the defendant’s prior trial, which will be used on a

re-trial, is not and was not tainted and should not

be suppressed; further analysis and examination

by the Government of the evidence establishes that

the Solicitor General was in error, when he in-

formed the United States Supreme Court that

‘Since there was material evidence against peti-

tioner which was_Afinted, his conviction cannot

» stand * * *? (SoliCitor’s General Supplemental Mem-

-orandum No. 504, October Term 1966). Although

- the Solicitor General stated to the Supreme Court

that conversations of the defendant were illegal-

AT ia

' -* ae , if ‘ Ae fi

ly and electronically monitored by the. FBI at a

place of business frequented by the defendant, none

of the conversations provided evidence or supplied

leads to evidence at defendant’s trial.” (Emphasis -

. in’original,) FF

Our aforesaid siaowal-idthte to suppress was set for ~.

hearing by Judge Weinstein. It was agr ed by all con-

cerned that, in wew of this Court’s ruling, the Govern-

ment had the burden “of proving that, its evidence is

not tainted” (Hawley affidavit, supra). Early in the re-

-‘newed suppression hearing it became apparent that fle

Washington trial attorney who wanted this case re-tried

(Mr. Hawley) was quite in earnest in his contention that.

the case should be re-tried because the Solicitor General’ -

was “in error”.* For, it appeared that Mr. Hawley want

to re-try this case not because he had found some new,

untainted evidence, independent of the first trial record |

-eontents which this Court had independently examined ©

and had unqualifiedly pronounced@tainted. Instead, it

,appeared that Mr. Hawley wanted to re-try this case

because that adjudicatedly tainted first trial record was

not tainted after all. At the outset of the new suppres-

sion hearing we pointed out to Judge Weinstein that the

Government was confronting the District Judge with. the

severe jurisdictional dilemma of in effect undertaking: a,

* Phe Solicitor General himself has not been heard from con-

cerning any of this, neither the former Solicitor General (now

Mr. Justice Marshall) nor any suecessor. Even when the time

came to ‘‘proye’’ just/how such ‘‘error’’ inside the Department

of Justice had enmeshed the Solicitor General himself, the Gov-

ernment in the suppression hearing herein did not bother to call

even any junior employee of the Solicitor General’s offiee (de-

tails infra). - \ nes

. .

5 ar ee RR

collateral “review” of the Supreme Court ruling (Tr.

5/6/68, pp. 12, 43), but the Court said, “I am not con-

cerned with what was before the Solicitor General and

I. am not concerned with what the Supreme Court did”

“(id., p. 43). (Subsequently we briefed this same conten-

tion twice for the District Court, but without avail.)

In essence, the Government’s thrust, in the new suppres-

sion. hearing, was that each and every item of proof

needed to convict Schipani in the first trial could be traced

ultimately to a non-tainted source. An elaborate 31-page

chart entitled “Analysis Of The Sources Of The Proof”

(exhibit 1) had been prepared by I.R.S. agent Masetti,

the main investigative agent in the case, to substantiate

this contention. The Government also supplied the Dis-

trict Judge and defense counsel with copies of FBI logs

of trespassory buggings at a location in New York City

(Prisco’s Travel Agency) where Schipani frequently vis-

ited during the investigative period in 1961; nine of these

logs: contained conversations by Schipani (exhibit 2);

> twenty-seven other logs contained conversations of other

persons referring to Schipani (exhibits 1A to 1Z). The

electronic monitoring covered by these logs extended from |

January 16, 1961 to January 31, 1963. There had also

been electronic monitoring by the Alcohol and Tobacco

Tax Unit, but allegedly it produced no evidence (details

imfra).

The Government called Agent Masetti to the stand, —

several FBI agents, several agents of the Alcohol and

Tobacco Tax Unit who had participated in the Schipani

investigation, and two Department of Justice lawyers who

had worked on the case (details infra). The theme of

all this testimony was supposed to be that nobody who

ever actually got any of the first-trial proof against Schi-

pani had any knowledge of the massive electronic, moni-

toring. According to the Government; every single in-

vestigator and Government lawyer. who prosecuted Schi-

_pani just did not know anything about the whole elec-

tronic business. Let us see:

The Government’s first witness at the new’ suppression

hearing was I.R.S. Agent Masetti.* Masétti testified con-

cerning Exhibit 1, which he had prepared or had par-

ticipated in preparing (54 et seq.). He stated that he had

no contemporaneous knowledge of the electronic activity ~

of the F.B.1. (57-58), and that he had never seen the logs

and did not know their contents (112). He had “hear-

say” knowledge of the ATTU electronic surveillance (58) ;

he got no information from the ATTU electronic sur-

veillance concerning the Schipani case (112). It is. of

interest that Masetti also testified that the ATTU elec-

tronic surveillance “did not work”, according to his un-

derstanding (112). This is interesting because, as was

made perfectly clear by other witnesses (imfra), at least

one of the two ATTU electronic installations did work

quite well,ethe claim of those other witnesses being that

they got no significant information. (We contended in the

Courts below that Masetti’s overstatement of the situa-

tion, in claiming he understood the ATTU installations

~did not work at all, casts suspicion on the good faith of

either Masetti himself or of whichever Government of-

ficials supposedly told him this, or on both Masetti and

those other officials.)

Masetti then went on to testify extensively as to the

sources of the evidence listed in Exhibit 1 (59 et seq.). As

*In the following description of the hearing testimony. we

shall be referring to transcripts, numbered from pages 1 to 688,

dated respectively May 6, 7, 8 and 9, 1968.

was to be expected, there was no electronic surveillance.

source for any of this evidence, according to Masetti. ©

However, Masetti in several instances admitted he got

information from the F.B.I. and saw F.B.I. files (64, 77,

96, 102, 103, 106). (We urged in the Courts below that

it is of utmost importance that Masetti thus apparently

had access to the F.B.I. files, which of course were sat-

urated with electronically obtained information.)

Further as to Masetti’s dealings with ATTU, the Courts

below and the Government attached decisive importance

to certain alleged physical surveillance by ATTU which .

supplied the so-called “money orders” leads that are

clajmed to have “made” this case (details infra).* Maset-

ye testimony as to sources of his evidence in Exhibit 1 is

replete with such “money order” references (e.g., 66-75,

77, 84-86, 89-91, 94-102, 104-109, 114-122). We are not

overlooking that the ATTU witnesses (infra) denied in

the hearing that they got any significant information from

their own electronic installations. But, as we shall show

infra, the credibility of this testimony is poor, and the

record herein furthermore reveals strong likelihood that

the ATTU people got information from the F.B.I. in cir-

cumstances indicating taint. The Government never es-

tablished that the all-important “money order” leads are

free of electronic taint.

It is to be noted also in connection with Masetti’s testi-

mony that he said his “initial investigative materials in-

cluded a memorandum from an I.R.S. Intelligence Agent

€

- *“QATTU physical surveillance spotted Schipani buying money

orders at a bank on July 17 and September 25, 1961 (the FBI’s

trespasssory electronic bugging had started in January 1961).

The money order ‘‘leads’’ in turn produced a mass of proof of

expenditures, ‘‘net worth’’ increases and ‘‘wilfulness’*

‘

= SpA

named Tarangelo (125-130). (Where, we ask, was Mr.

Tarangelo during this hearing? Why did not the Govern-

ment produce Tarangelo? The absence of this witness

leaves a gaping hole in the Government’s “showing” in

this proceeding (imfra).)

Masetti also testified (136-137) (re Tarangelo) that,

‘ with a Department of Justice letter turned over to him by

Tarangelo at the commencement of his investigation in

1961, he also received “miscellaneous notes” which “in-

eluded handwritten notes relative to inspection of files

of the F.B.I., a note in connection with checking through

on the Narcotics Bureau”. The Government did not ne-

gate in the hearing that those latter papers, which came

to Masetti apparently in March 1961 or later, were taint-

ed. True, Masetti also said (138) that the F.B.I. notes

he received referred to a report of October 10, 1960* and

were made on March 22, 1961 (the notes were introduced

in evidence herein as Exhibit 4); but the total picture

in regard to Masetti and his F.B.I. materials remains ex-

tremely unsatisfying.**

Masetti also testified that subsequently he asked for

and received additional F.B.I. information, from F.B.I.

Agent McShayne (144, 168-174, 197-198).

Further as to Tarangelo—who did not testify—Masetti

said he “probably” had talked to Tarangelo about the lat-

ter’s activities and information in this case (149-150).

* Which antedates the within FBI ‘‘bug’’ that started in Jan-

uary 1961 (138). The Government also claims a ‘‘clean’’ 1959

' F.B.I. report (infra).

sie Unsatisfying is hardly the word; see the description infra

of the November 1966: memorandum by Department of Justice

attorney ‘‘Dewey’’ O’Brien.

(

aS Se

i N\A v

Masetti also testified that atghclo’s memorandum had

requested certain equipment which, it|appears, was so-

_phisticated electronic eavesdropping equipment; and that

these requests in Tarangelo’s memorandum had _ been

processed by two I.R.S. reviewing \officials—who were not

produced as witnesses in this proceeding (177-181). Ma-

setti was vague and unsure as to whether these Tarangelo

proposals had been earried into effect (180-181).

Masetti was also vague and apparently evasive about

his contacts with ATTU (192-196, 207).

ATTU Agent Wallace P. Hay -testified for the Govern-

ment (228 et seq.). He was assigned on March 3, 1961 to

investigate Schipani’s connection with three restaurants,

including the Casa Bianca (229-230); this assignment

came from Mr. Hundley of the Department of Justice*

(ibid.). Hay conferred with I.R.S. and 1.B.1. officials, but

he did not know of any Shor ernie activity by those agen-

cies (230-231). ATTU’s own*electronic installations re-

vealed nothing of significfénce (232, 234). These installa-

tions, at the Pierrepont Health Club in Brooklyn, were

run from August 21 to September 8, 1961 (237). We es-

pecially invite attention to pp. 276-284 of Hay’s testimony

where he testified with obvious evasiveness about his con-

tacts with F.B.I. and I.R.S. intelligence personnel, and

about his knowledge of the workings of the Justice De-

partment’s “organized crime” activities. Hay also testi-

fied about a meeting in Mr. Rogovin’s office in the De-

partment of Justice in Washington in November 1966

when the electronic problems, of this case were being re-

viewed; Hay ae Mr. Rogovin and Mr. O’Brien** that the

* Organized Crime Section.

“#* Mr. Rogovin was Assistant Attorney General, Tax Division;

Mr. O'Brien was one of his aides. They were reviewing the case

at request of then Solicitor General Marshall (infra).

ATTU electronic installations had produced nothing sig-

nificant, and that he had had no knowledge of the F.B.1.

electronic activities (289-297).

(On the basis of this last-mentioned testimony of Hay

we note that the Solicitor General’s office in November

1966 was fully aware of AT'TU’s claim that their elec-.

tronic installations had yielded nothing significant and of

-their claim also that they had not gotten anything from

the F.B.L. installations. This is important, we submit, as

indieating that the Solicitor General did not proceed on

any “error” supposedly consisting of any erroneous im-

pression as to taint on the part of A'T'TU.)

: We refer especially also’ to Ilay’s testimony at 302-306,

313-314 and 335-336 where he admitted that in September

1961 he had requested additional and better electronic

equipment, but claimed that although he received it he

never used it. in connection -with Schipani.

Important also is Hay’s testimony at 314-330, 336-337,

where he deseribed the activities of his assistant Busby.

Busby had a radio for contact with other agents while

he was monitoring the ATTU installation at the Health

Club. .Those other agents were engaged in surveillance of

Schipani, and it is manifest that Bushy’s monitoring at

the Health Club assisted him in coordinating with the

surveillance agents for the furtherance of the latter

agents’ activities. (Ilere, we submit, is direct and ineon-

trovertible proof from the Government’s own admissions

that the Health Club “bug” did play a tangible part in

the Schipani investigation which led to this prosecution."

*This Health Club bug and the attendant physical surveillance

were vital in the obtaining of the erucial ‘‘money order’’ leads.

ATTU Agent George I’. Busby testified for the Gov-

ernment (343 et seq.). He said that the AT'TU bugs pro-

duced nothing significant, and that a KEL installation

did not work (345). Ile claimed he had no contempora-

neous knowledge of the F.B.I. electronic activity (349).

Busby admitted that he conferred with F.B.I. Agent

McShayne in 1961 for “general liason” and to obtain in-

formation about Schipani, and that he did get “leads”

and “clues” from McShayne; also that he “undoubtedly”

had similar contacts with other F.B.I. officials or agents

(370- 374).

We argued below that this last Hiobe testimony of

the ATTU witness Busby is in itself enough, without

‘more, to defeat the Government’s showing of non- taint.

Busby apparently qualified his testimony under question-

ing by the Court at 373-374, but see the re-cross examina-

tion at 374-375.

ATTU Agent Pierre Rogers (376 et seq.) denied hav-

ing any electronically obtained information concerning

Schipani (377) or any contemporaneous knowledge of the

F.B.I. electronic activity (377-378). In connection with

Rogers’ testimony it should be especially noted that this

was one of the agents whose alleged physical surveillance

activities opened up for the Government the “money

orders” lead, which occurred on July 17 and September

95, 1961. It is eoneeded by the Gov ernment that its “satu-

rational” * foeus on Schipani began some months before

the earlier and the latter dates, and that during all of

that time and earlier the F.B.I. bug had been in use. We

Judge Weinstein treated the ‘ ‘saturation’’ issue (or ‘‘foeus-

sing’? of the 1961 Schipani investigation) as of prime importance

in determining the influence of the FBI bugging on the building

of this ease (infra).

also noted earlier that ATTU’s own physical surveillance

was aided by the Health Club bug. Is there then not the:

strongest circumstantial indication that the intense focus-

ing which resulted in the all-important money order leads

of July 17 and September 25, 1961 is integrally bound up °

with the antecedent electronic activity?

Former ATTU Agent Thomas H. Maher (382 et seq.)

denied obtaining any significant electronic information

from the ATTU bugs, and any contemporaneous knowl-

edge of the F.B.I. electronic activity (383). However, he

knew of AT'TU’s liason with*the F.B.I., and he had one

meeting himself with F.B.1. Agent McShayne, at Maher’s

own request, Maher stating that he was seeking leads as

to ownership of restaurants, labor jmion activities, gar-

bage disposal business, and “any leads” relating to Schi-

pani’s “activities”; and when asked whether he received

any such information from the F.B.I., he said “We must

have received something” (384-387). 7

On the basis of this last described testimony of Maher

we urged in the Courts below, as in regard to the similar

admissions of ATTU Agent Busby, that these disclosures,

without more, are sufficient to defeat the Government’s

showing of non-taint in this proceeding,

ATTU Agent Donald eagerness denied getting any

significant information from ATTU’s bugs or contempor-

aneous knowledge of the F.B.I.’s electronic activities

(389).*

F.B.I. Agent James T. McShayne deseribed the F.B.1.

electronic installations and the operations thereunder (401-

405). He never informed ATTU or LR.S. about these

* We are. aiming in this Statement of the Case to give a sum-

~ mary of the entire suppression-hearing testimony.

activities (405), and he made no “dissemination” of elec-

tronically obtained information to any other Federal

agency (405-406). McShayne said the F.B.I. had consider-

able information concerning Schipani prior to January

1961, when their bugging commenced (404-405). He was

shown Government’s ixhibit 9, an F.B.I. report or memo-

randum of October 10, 1960, which contained references

to Gurney’s Inn and to Schipani’s son’s wedding; t this ex-

hibit, MeShayne said, contained nothing derived from any

electronic source (407-409). He insisted that in-his con-

ferences with I.R.S. and ATTU representatives he gave

them only innocuous “background” information (409-410).

It was never made clear by McShayne just how he han-

dled the allegedly taint-free Exhibit 9 items as distinct

from subsequent F.B.I. information which was derived

from electronic sources, in his: dealings with the other

agencies. 4

McShayne testified that he was not assigned to the

Schipani matter until some two or three months after the ..

F’.B.I. electronic activities began in 1961 (416-419). We °

called the attention of the Courts below to this last item

as another indication of the way in which an intensify-

‘ing dynamic was apparently operating in this case ini

chronological and causative relation to the F.B.I. elee-

tronic activities. A similar item is MeShayne’s testimony |

that one reason he was assigned to the Schipani case was

that “I had current knowledge of Mr. Schipani’s activities

as a result of this electronic surveillance” (420-424): The

(lynamie was revealed also in MeShayne’s testimony that

- when he first. started the Clemente*-directed bugging at

Prisco’s Travel Agency he had never heard of Schipani;

*The original F.B.I. monitoring target at Prisco’s Travel

Agency was Michélino Clemente.

re)

(24

~ he first heard of Schipani from the results of that bug-

ging (441-442). And he said that the bugging, revealed in-

formation about the Casa Bianea restaurant, labor union

activities, and the garbage business (443-444.)*

While MeShayne was insistent, as above noted, that he

gave only innocuous “ba¢k-ground” information to other

agencies, he admitted on cross-examination. that he had

“cooperated” with other law enforcement agencies in the

Schipani investigation (454-435); and he had no knowl-

edge as to whether his superior officers in Washington

had given mformation to other agencies (449-454, 456).

He also admitted that he had conferred with ATTU Agent

Hay, and that another F.B.I. agent had done so, in the

Summer of 7961, concerning Sehipani (454-456).

Of foremost interest was MeShayne’s testimony at 458-

459 that neither he nor anyone else of whom he knows

in ‘the F.B.I. were consulted by Mr. Rogovin or the

Solicitor General at the time of the Schipani review dis-

eussions in November 1966. (Since it is inconceivable that

no one from, the office of Mr. Rogovin or of the Solicitor

General had° any communication at all with responsible

‘F.B.I. representatives at that juncture in 1966, the ree-

ord presents another gaping hole from the standpoint

of completeness of the Government’s showing. Where is

the F.B.I. functionary,-or functionaries, who must have

been consulted by Mr. Rogovin or the Solicitor General

or their representatives? The Government has not ne-

‘gated that there was such consultation.)

. These were activities offered by the Government as s “likely

source’’ items ‘in this prosecution.

Philip Wilens, a Department of Justice attorney,* tes-

tified for the Government concerning the letters and mem-

oranda in the Department of Justice in early 1961 which

apparently initiated or helped to initiate the Schipanj in-

vestigation (473 e¢ seq.). He said he had no contempo-

raneous knowledge of the F.B.I. ‘electronic activity (483-

484); but he also said that he had been transferred to

another assignment early in the year 1961 (479, 487). He

testified also that his initial written recommendations

early in 1961 had been based on the F.B.I. report or mem-

orandum of October 10, 1960, Exhibit 9** (476-479). Mr.

Wilens also testified that he receiv ed voluminous and reg-

ular F.B.I. reports on the Schipani matter (485-486) ; and

he did not know whether he had seen the Exhibit 11

series of F.B.I. reports, which concededly were based on

the electronic .activity; he thought his successor, a Mr.

Gerald Shur would know about this (499- 508). (It is

therefore interesting that the Government did not see fit.

to produce Mr. Shur as a witness in this proceeding.) t

Mr. Wilens also said that Upon receiving the kind of in- |

formation contained in the F.B.I. reports here. in question

it would have been the regular practice in his office to

alert other law-enforcement agencies, but with use of eva-

sive tactics to conceal that the information was from elec-

tronic sources (499-508). (The Exhibit 11 series of F.B.I.

reports—the reports referred to by Mr. Wilens—are re-

plete with passages plainly stggesting on their face that

live human conversations had been audited.)

* Organized Crime Section.

** Which allegedly is untainted.

tShur’s name and activities become practically ubiquitous as

will soon appear—ubiquitous, that is, everywhere except in this

hearing record of governmental witnesses produced for ques-

tioning.

7] ,

Also interesting in Mr. Wilens’ testimony was that he

knew nothing of the review proce bding i in November 1966

by Mr. Rogovin and the Solicitor General (509-510). The

question therefore arises, did’ Mr. Wilens’ successor Mr.

Shur pafticipate in por latter discussions, and if so why

has the Government not produced, him; and if not, why

* has the Government not negated such role of Mr. Shur?

F.B.I. Agent James T. Mulroy testified for the Govern-

ment that he had dnade no diss¢mination of the Schipani

electronic information “to an ‘agency of the United

States Treasury Department” (515-516).

(We may here note that nowhere in the Government's

proof in this hearing was there any distinct, or even in-

distinct, showing as to the F.B.1.’s disclosures of its elec-.

tronic’ data to attorneys of the Department of Justice—

who would be the gentlemén/ ultimately responsible for

the actual institution of this /criminal prosecution. It is

* self evident that there must | have been such “dissen\na-

tion” to the Justice Department’ $s prosecuting Seca

See the multifarious instances in this record where wit-

nesses speaking for various Government agencies have

claimed that they did not know what: representatives of

other agencies were doing—f rom which the Government’s

attorneys who presented this matter in the Courts below

in effect asked those Courts to conclude that the Govern-

ment’s case is free of unconstitutional electronic taint

on this basis of the existence in the Government’s far«

flung law-enforcement’ establishment of any number of:

“Poohbalig” who function unto themselves alone. We

urged in the Courts below that the constitutional policy.

of “deterrence” of unconstitutional police conduct (¢.g.,

* One answer to\this mystery is probably attorney Shur (de-

tails infra).

Linkletter vy. Walker, 381 U. S. 618, 629) is hopeless when

even the most “saturational” illegal electronic eavesdrop-

ping by Federal police may be held to be of mo constitu-

tional significance on the mere claim of the various police

witnesses that each of them (or the enforcement agency .

which employed each of them) functioned “autonomously” .

and without, mutual knowledge of What the others were

doing.)

We interrupted. our description of the testimony of

F.B.1. Agent Mulroy, supra, to insert the above theme of

comment. Agent Mulroy further testified that, in regard

to the Exhibit 11 series of F.B.L. electronically obtained

reports, certain of the contents theresf* “could be dis:

closed” to other agencies but not the text thereof; and

that if L.R.S. Agent Masetti had asked for F.B.I. infor-

mation about “any restaurants” in which Schipani had

an interest, “and you looked at the report that had any-

thing to that effect, would you tell him about it?”, agent

Mulroy answered flatly “yes” (544-545).

F.B.1. agent Norman A. Murray-testified for the Gov-

ernment that there had been no “dissemination” by him

of the F.B.1.’s electronic information (565), and that he

knew of cooperation with-pther agencies (571).

F.B.I. agent Guy C. Berado testified that he had not

“disseminated’’ any of the F.B.I. electronic information .

(575).

F.B.I. agent Ralph Desena testified that he had no

contacts with Treasury Department personnel (577).

When it came to giving F.B.I. electronic information to

other agencies, he would find means of camouflagijg the

source but would, apparently, give the substance of the

information (580-581). (Here again we hea one of those

occasional narrow but very revealin ams of light af-

forded by this hearing record, to the effect that the F.B.I.

electronic information must in fact have got through to

the herein ultimately significant person, agent Masetti of

the I.R.S.)

F.B.I. supervisory official James Patrick Mansfield was

examined on direct examination by defense counsel in this

hearing (586 et seq.). Mansfield was agent MeShayne’s

supervisor, having taken over from a Mr. Emery (588,

591); Emery did not testify in this hearing. Mansfield

said he had no contemporaneous knowledge of the F.B.I.

electronic activity concerning Schipani (589). He did

know of the F.B.I. electronic surveillance directed at

Clemente (589-590, 594). At 596-612 Mansfield sparred

with defense counsel repeatedly as to what he had learned

from his subordinates about Schipani. At 612-613 Mans-

field similarly hedged as to what information would be

given by the F.B.I. to other agencies. He admitted, how-

ever, that Attorney General Kennedy’s directives at the

time in question ordered cooperation with other agencies

to the completest extent possible (613-614).*

F.B.I.agent MeShayne was recalled to the stand by the

Government (617 et seq.). MeShayne -had marked with

red and blue pencils the portions of the Exhibit 11 series

of the F.B.I. reports to indicate which items came from

the electronic surveillance (618-269). We invite this Court

to sean’ the impressive aggregation of these tainted items

thus marked by MeShayne in the F.B.I. reports covering

the two years’ electronic surveillance period (1961-1963).

* Agent Mansfield, evidently not an official overly burdened

with a sense of intra-agency reverence towards the superior

‘‘eivilian’’ echelons in the Department of Justice, unhesitatingly

gave it as his opinion that Solicitor General Marshall ‘had

‘‘erred’’ in this case (614).

ae reese neste

The last witness at the suppression hearing was De-

partment of Justice Attorney James D. “Dewey” O’Brien

(642 et seq.): Unlike all of the Government’s other wit-

nesses in this matter (supra), Mr. O’Brien was truly a

“key” witness on the issue of taint,* because Mr. O’Brien

is the official who made the initial study of the Schipani

ease late in 1966 which culminated.in the Solicitor Gen-

eral’s Supplemental Memorandum. to this Court ree-

ommending a vacating of the conviction for electronic

taint. The results of Mr. O’Brien’s study were written

up by him in a six-page typewritten memorandum dated

November 18, 1966 (Govt’s exhibit 15 in the suppression

hearing herein, printed as Appendix G hereto, infra).

It appears that Mr. O’Brien’s memorandum came about

as part of the Departmental program during the latter

part of 1966 for a thorough self-searching governmental

review of electronically tainted federal criminal prosecu-

tions, a program prompted by the happenings of the

Black case (Black v. United States, 385 U. S. 26, decided

_———

*Not even Agent Masetti was a key witness in any degree

comparable to Mr. O’Brien. For the ultimate question is not

_ whether Masetti, or any other I.R.S. or even Department of

Justice prosecutive officials actually consciously knew electronic

taint existed; the ultimate question is whether Masetti or any-

one else who helped to ‘‘make’’ this case had in some way re-

ceived or acted on information tainted by what the FBI had

done. This simple and realistic question was unfortunately ob-

scured by Judge Weinstein’s peculiarly formalistic method of

analyzing the issues and proofs in the suppression hearing, i.e.,

he formulatedea supposed differentiation between (a) whether

specific items of trial proof were tainted and (b) whether ‘‘focus-

ing’’ or intensification of the prosecutive effort as a whole in

the Schipani matter had been influenced by the electronic ac-

tivity. See further infra as to this ‘‘logical’’ approach of the

Court below.

November 7, 1966), where the Court threw out a criminal

conviction for electronic taint even though the Govern-

ment represented that its attorneys responsible for the -

prosecution got nothing of value from or had no con-

temporaneous knowledge of the electronic activity.

' (The now famous “Schipani review procedure” in which

the Solicitor General proposed and this Court adopted

a systematic program, post-Black, for reviewing cases

thus tainted, is a creation that came out of the deliberate

and careful efforts pressed by then Solicitor General

Marshall inside the Department of Justice in conjunction

with the Black case problem. And it is this creation, the

“Schipani review procedure”, which is, we surmise, the

Government’s real target in this present second trial of

Joseph Schipani. Far more is at stake here, then, than

the re-conviction of Joseph Schipani as an individual.

What we are having here is a flank attack on the whole

Fourth Amendment rampart against electronic abuses.

Utmost care is therefore needed in the judicial evaluation

of the record of the suppression hearing in this case, and

utmost scrutiny is needéd in reviewing just exactly what

Judgé Weinstein has done in this case. It is our position

that nothing in this suppression hearing record justifies

what Judge Weinstein has done in allowing this case to

be re-tried solely and exclusively on the first-trial record

which this Court adjudged to be tainted, and. that the

one item in this suppression hearing record which above

all imported into that record something of real signifi-

cance for the issue, the O’Brien memorandum (infra),

was utterly misapprehended by the Courts below. It is

also our position that items far more important than

even the O’Brien memorandum—the testimony of the’ sev-

eral other key Government officials in this matter who

were not brought to testify before Judge Weinstein—

will need to be known before the deliberate policy choice

of Solicitor General Marshall and the deliberate inde-

pendent adjudication of this Court, in November-Decem-

ber 1966, can ever ‘validly be judged to have been “in

error”.)

Let us return to the subject of the O’Brien memoran-

dum. The memorandum states that Mr. O’Brien had read

five volumes of relevant FBI electronic logs, the Criminal

Division’s effice files, the ATU case reports, and the trial

Court’s (Judge Rosling) findings of facets on Schipani.

Mr. O’Brien then noted how, in the nature of net worth

prosecutions, “everything which relates to the financial

condition or enterprises of the defendant during the pe-

riod under examination is material”. Ir. O’Brien then

referred to Judge Rosling’s finlings agd noted that the

Judge had discussed Various afleged bufiness interests of

Schipani including particulate the Casa Bianca restaur-

ant and labor unién services. “Mfr. O’Brien then noted

that Masetti on Febriiary 20, 1963 reported having com-

enced the Schipani income tax case as a result of a

Segre RIE EN in the Spring of 1961, in conjunction with

which Mr. O’Brien noted “the context” of an electronic

surveillance of Schipani from January 10, 1961 to Janu-

ary 31, 1963. The Masetti report of February 20, 1963

referred to various alleged illicit business activities of

Schipani, including activities as to which the F.B.I. elec-

tronic logs abound with detailed references.

Mr. O’Brien also stated that the Masetti report of Feb-

ruary 20, 1963 was by Masetti and another I.R.S. special

agent} Wynne. (We therefore ask, where was Agent

Wynne in this suppression hearing—another of the big

gaps in the Government’s ostensible plenary “showing”

to negate taint.) Farther on in his memorandum Mr. OBri-

en gives numerous details of how.the contents of the F.B.I.

logs. aebnioed to the contents of the Masetti-Wynne re-

port of February 20, 1963.

Then, examining the chronology of the Schipani matter

at the level of the Department of Justice Attorneys of

Organized Crime Section and the Criminal Division,

rien_lists happenings which reveal the time con-

junctions hetwed\ the F.B.I. monitoring and the inception

and intensificatiozh of ‘the efforts of the Government Attor-

neys, early in 1961. Mr. O’Brien then describes in detail

the further numerous coincidings of the leads produced by

the logs and of the spreading and intensifying investiga-

tions by both Department of Justice and Internal Reve-

nue personnel through the middle months of 1961 espe-

cially, when the F.B.I. monitoring was at its height and

was producing a spate of information about Schipani.

(It is hopelessly beyond the space confines of this pe-

tition for us to attempt even ‘the most superficial sum-

mary of the relevant contents of the thirty-six F.B.I. logs.

Asideefrom specific items in those logs which tie in so

acutely with the evolution of this prosecution in 1961-1963,

there is the perhaps more significant factor.that the logs

seethe with just the sort of raw, undigested “data” of no-

torious “organized crime” personages and activities that

would naturally appeal to the prosecutive mentality as of-

fering especially tempting avenues for sensationalistic

prosecution of a Joseph Schipani. If ever electronic

“data” spurred zealous prosecutors to pursue a particular

individual, it happened here. To anyone reading the full

text of these logs, it is simply preposterous to think that

this “data” had nothing to do with this income tax prose-

cution; or that this “data” did not filter through from the

F.B.I. to the LR.S. investigators. and the prosecuting

lawyers; or that somehow a “clean” case against Schipani

can be quarantined out of the infected totality. Thanks

to the apparently’ extraordinary degree of inter-agency

co-operation and unity of effort that Schipani inspired in

1961-1963, this is probably the last case in which any prop-

erly advised Court would conclude that such: quarantine

is possible here.)

Of special interest also in Mr. O’Brien’s memorandum

is his detailed reference to a report of Masetti dated May

14, 1962 relating his liaison with his predecessor I.R.S.

Agent Tarangelo—this Tarangelo is the I.R.S. agent of

whom we previously spoke as having avidly preoccupied

himself with means for improving additional electronic

surveillanee by /.R.S. itself in the Spring of 1961, and it

is this Tarangelo who is one of those important witnesses

that was never heard from in this suppression hearing. _

Mr. O’Brien, speaking of this Masetti-Tarangelo phase,

notes that Masetti apparently took over from Tarengelo

shortly before’ May 1, 1961 and that at that time Masetti

reported “that he had reviewed Tarengelo’s materials, in-

eluding transcripts of files of * ** F.B.L.” which revealed

some of Schipani’s “financial interests”. It will be re-.

called that by that time (May 1961) the F.B.E. ¢ad been

bugging the Schipani locale (Prisco’s Travel Agency) for

nearly four months.

Inconspicuously (but inconspicuous only to the unknow-

ing eye) nestled in Mr. O’Brien’s intriguing memorandum

is the following item, which is probably the single most

important specific factual revelation in that memorandum:

“* * * In a memo from Shur [a Department of Justice

Criminal Division attorney] to Silbering [Chief of

the Organized Crime Section] dated May 29, 1961,

Shur said the last FBI report was 10-10-60 but this

obviously referred only to a report on Schipani as

he also referred to an FBI report dated May 8,

1961, on Clemente the subject of the eleetronic sur-

veilance. Special agent Donovan (apparently of

the FBI), according to Shur, stated Shur would re-

ceive periodic intelligence reports and recommended

that the I.R.S. continue with the investigation of

the cartage association as it did not involve ecross-

ing State lines. Shur also referred to what Dono-

van told him concerning Schipani in the garbage

collecting business and that Schipani was a Profaci

man. He quoted the 5-3-61 report of the FBI on

Clemente.”

Concerning the itcm just quoted we ask: (1) Again, where

was Attorney Shur in this suppression hearing; why was -

he not called by the Government (in pursuance of its sup-

posed discharge of its burden of proof to negate taint)?

(2) Where was, also, Donovan in this supprression hear-

ing—here we have an entirely new gap in the Govern-

ment’s “showing”. (3) Can there be any doubt, in view

of the above words of the knowledgable Mr. O’Brien—a

Department of Justice career attorney who was Assistant

Chief of the Criminal Section of the Tax Division in

Washington at the time he wrote the instant memoran-

<lum, and who later took over comparable rank and duty

in the Civil Section of that Division—that there was ample

cause indeed, in. November 1966, in the Solicitor General’s

office, to conclude that the F.B.1. electronic activity had

been “getting through” to the Department’s prosecutive

lawyers? And is it not disturbing that, in view of this

single most revealing item in the O’Brien memorandum,

and in view of the endemic agnosticism or innocent ignor-

ance professed by the chosen list of witnesses whom the

Government did produce before Judge Weinstein, for

some unexplained reason Judge Weinstein and we were.

not favored with testimony from the evidently strategic

SNL AWE LAL NER BILE ROSES LDR See ae ne

Messrs. Shur and Donovan? Is- it possible to doubt that,

in this Shur-Donovan sector, lies (thus far hidden) one

path to revelation of. the actual truth about the issue of

electronic taint in this case? And only the Muse of over-

zealous Governmental Prosecutors can know all there real-

ly-is to be known about other like hidden sectors and hid-

den pathways in this case.* ce

Mr. O’Brien’s memorandum further notes that in a re-

port around the end of May 1961 -Masetti made it perfect-

ly clear just how closely he was working with the F.B.I.—.

“said he would arrange to secure information from the

files of the F.B.I.” Mr. O’Brien also notes that on July

12, 1961 the busy Mr. Shur wrote of “a field trip»on the

case in which he talked to agents of the different agen-

cies.” Mr. O’Brien gives two additional proofs of the ex-

cellent mutual absorption of: investigitive informativa -

-among the several agencies that had come about by mid-

July 1961:

“By letter of July 17, 1961, Mr. Miller [Assist-

ant Attorney General in charge of the Criminal Di-

vision] asked Mr. Caplin [Head of I.R.S.] for a

‘saturation . investigation’ because of information

‘supplied us by other investigative agencies’. An-

*We speak of the ‘‘Muse’’ of the Prosecutors, rather than

» of the indiyvidua] prosecutive gentlemen themselves, because in

the bureaucratic maze it may well happen that a conscientious

Government lawyer like prosecutor Hawley in this ¢ase has him-

self not been able:to find out all the relevant facts about the

taint issue. Nevertheless, any such forgiveable failure on Mr.

Ilawley’s part individually, does not foreclose us from adducing

the demonstrable record indications that there is more to be known

and that somewhere within the four corners of the Government’s

total knowledge the full truth does exist and is available for judi-

cial disclosure, and has not thus far been disclosed.

other letter (10-19-61) to Alan Long [Director of

the 1.R.S. Intelligence Division] gave full report on

Schipani and said ‘the following information was

obtained from recent reports of the FBI’ * * *”,

Immediately following this last item in his memorandum

Mr. O’Brien states, “The FBI reports often parrot almost

verbatim what was overheard by means of the electronic

surveillance of Clementi and Schipani’”’,

In concluding his memorandum Mr. O’Brien said:

“From the foregoing, it can be seer that during

the period in which the Schipani tax: case was in-

vestigated the Government achieved the rare ob-

jective of complete interchange of information be-

tween three investigative agencies and the Depart-

ment of Justice.. Unfortunately, much of ‘it. was

tainted. |

“I do not see how we can support the conviction

thus obtained of Schipani on income tax: evasion

charges. The nature -of the proof is such that I

would have little hope of ever perfecting a taint-

free case. * * * [I]n view of the fact that three

Government agencies were, apparently keeping a

personal surveillance of the defendant, it would be

difficult to convince a Court that anything is free

from taint.”* (Italics in original.)

*In the omitted portion of the above quoted item from Mr.

O’Brien’s memorandum he referred to possibilities of tracing

prosecutive proofs to non-tainted sources, but all of - these non-

taint possibilities mentioned by Mr. O’Brien related solely to

‘likely source’? of income, not to the structure of the inter-

(Footnote continued .on following page)

As above mentioned, the Government called Mr. O’Brien

to testify in this suppression hearing (642 et seq.). The

prosecutor tried by various lines of questioning to get

Mr. O’Brien to repudiate his memorandum or at least to

palliate it—in short, to help the prosecutor’s theory that

the Solicitor General and this Court were “in error”. But

apparently in Mr. O’Brien the prosecutor had the wrong

man for any such purpose. The closest that the prosecu-

tor was able to come in getting any solace out of Mr.

O’Brien was in eliciting from him that (1) he did: not

think he had seen the entirety of the evidence and exhibits

of the first trial (648), (2) that he had not written the

Solictor General’s Supplemental Memorandum (657-658),

and (3) that as to the statement in said Supplemental

Memorandum that “Some of the materiz] in the F.B.I. re-

ports * * * provided investigatory leads; and other infor-

mation used in proceeding against petitioner” he (Mr.

O’Brien) would not have phrased it that way if he had

written it but would have said “may have provided” (660-

661).

The heart of Mr. O’Brien’s testimony is in the tran-

seript at pages 657-659 where, under questioning by the

(Footnote continued from preceding page) | ‘

joined several elements of the requisite net worth proofs as a

whole. Judge Weinstein has suppressed all procf of likely source

in this case anyhow, as earlier noted. The big question is, and it

is the question for which Mr. O’Brien’s memorandum offers no

hope of an answer favorable to the Government, can this net-

worth theory prosecution as a whole be maintained on a taint-

free basis in view of’ all of the foregoing circumstances of taint

depicted in Mr. O’Brien’s memorandum, thereafter solemnly

, recommended for reversal of the conviction in Solicitor General

Marshall’s Supplemental Memorandum to this Court, and then

acted upon by this Court via its own expressly announced

‘‘independent examination of the case’’. .

cae |

. ‘ , ad

™

Court, he confirmed ‘that, in contrast with the Black case, ,

“TI did recommend, of course, that we concede the necessity

of a new trial” and “because the investigation was contem-

_ poraneous with the intercepts and there had been ex-

changes of information between the investigative agencies

* * * [e]ssentially our position was, and’ think the key

part of this is that: ‘We cannot say in the instant case

that none of the evidence used was obtained directly or

indirectly from an improper source’” (657-658).

Nowhere in Mr. O’Brien’s testimony is there the remot-

est intimation that he would now change his mind, as the

prosecutor himself was apparently satisfied should be

done. The prosecutor did not get Mr. O’Brien to say

that he (or the Solicitor General) were now shown to have

been “in error”. The prosecutor, before calling Mr. O’Brien

to the stand, might have had Mr. O’Brien examine thor-

oughly Agent Masetti’s exhibit 1 in order that Mr. O’Brien

might decide whether in trith his original opinion: had

been wrong; but jt is evident that the prosecutor had not

fad Mr. O’Brien look into exhibtt 1. Is this ‘because the

‘ prosecutor feared Mr. O’Brien would not endorse Masetti’s

exhibit 1 or the prosecutor’s new-fangled theory of

“error”. It is extremely significant that Mr. O’Brien was

not put through a study of exhibit 1, and was apparently

not even asked by the prosecutor to read the testimony

of the agents and other Government officers who had pre-

ceded him on the stand in this suppression hearing. He

was not asked to study or to read any of that material

in preparation for taking the stand himself, and we say

that this is extremely significant. For, without Mr. .

O’Brien’s having gone into that material before taking

the stand, all that the Gov¢rnment was asking him (from

any meaningful probative standpoimt) was whether his

November 1966 memorandum was justified at the time it

9”

was written, and Mr. O’Brien said it was, as we have just

seen, The Government could not, and we suggest it dared

not, ask Mr. O’Brien whether he agreed with the prose-

cutor’s supposedly detailed “new” reasons for now urging

that there was “error” in 1966.

The record is clear (supra) from Masetti’s own testi-

mony that he was present at the largely attended confer-

ence in Mr. Rogovin’s oflice at the end of November 1966,

where Mr. O’Brien was also present. And the record

shows also that Mr. O’Brien had interviewed both Masetti

and the ATTU agents at a stage which evidently preceded

both the meeting in Mr. Rogovin’s office and, obviously,

the Solicitor General’s Supplemental Memorandum in the

Supreme Court (648). Thus Masetti, and the ATTU peo-

ple, were evidently interrogated in the intensest fashion

before Mr. Rogovin made his recommen lation to the Soli-

citor General—and before the Solicitor General announced

his position to this Court. ane

Had the Government. called as witnesses in the sup-

pression hearing, in a proper and meaningful descending

“echelon” series, the former Solictor General. himself and

thence all other persons having knowledge of the alleged

“error”, the picture might claim some pretense. towards.

probative rationality at least. But instead the Govern-

ment only made haphazard stabs at the problem, with the

result that the picture ends up probatively meaningless.

ha word, the Government has not revealifgly portrayed

at all just how it came about that the Rollcitoe General

“erred” in November-December 1966, « fortiari, the Gov-

érmment has not even touched at all the staggering prob-

liom of demonstrating: how the Supreme Court of the

United States “erred”. \

The above concludes our description of the proofs at

the suppression hearing. Judge Weinstein wrote a leng-

thy opinion, which is set forth in Appendix C hereto,

infra. His conclusion was that “All evidence relating to

the defendant’s likely sources of income which was intro-

duced at the first trial is suppressed. The motion is denied

in all other respects”. The net result of this ruling, taken

together with Judge Weinstein’s subsequent Memorandum

And Order of October 14, 1968 (printed as Appendix D

hereto, infra) which struck or suppressed all evidence as

to illicit income, and which ruled that the Court would

not rely on the only new evidence of “likely source” ad-

duced by the Government for the second trial (testimony

of F.B.I. Agent Shedd), was that the case went to the

trier of the facts in the second trial herein solely and

exclusively on the evidence in the first trial record (minus

all “likely source” evidence). But what Judge Weinstein’s

ruling on the motion to suppress (Appendix C hereto,

infra) also meant was that the Government: was allowed

to keep and t6 use again at the second trial the ‘entire

first-trial proof of income tax violation via the net worth

theory, omitting only the likely source items. That is,

despite the permeation of the whole investigation by, the

influence of the. F.B.I.. and ATTU electronic activities

which this ‘Court had inflependently adjudicated as taint-

ing the .case, Judge Weinstein permitted the Government

to salvage the case as a whole and, particularly, the

“money order” leads from which admittedly the Govern-

ment-had built the entirety of its net worth proofs as to

- the indispensable items of expenditures and net worth in-

creases in the’ indictment years. Judge Weinstein’s rea-

soning enabled him to arrive at this twofold conclusion—

suppress likply source and save everything else as un-

tained—by posing a distinction between (1) the influence

Ae Te mee + lint St Se ahs erp SD. cartes,

_of\the electronic activity on the obtaining of specific evi-.

dence, ahd (2) the influence of that activity on the Gov-

ernment’s overall decision in 1961 to “focus” on an income

tax prosecution of Schipani. This distinction artificialized

the whole actual reality of what had taken place in 1961,

it conferred on the unitary taint of the inter-agency con-

dict in 1961-1963 the benefit of an arbitrary judicial sur-

gery to amputate from the unitary corpus tainted sub-

stances which had already hopelessly infected the whole:

and it did not even consistently apply the idea of distin-

guishing between “focus” and specific items of proof, be-

cause, without justification (infra), it suppressed the likely

source items while salvaging the at least equally tainted

“money order” item.*

/ |

a. , «

*The Government has insisted above all that its likely source

items are surely pure because they derive ultimately from pre-

’ taint FBI reports of 1959 and 1960. Yet Judge Weinstein sup-

pressed the likely source items. The Government has not even

tried to suggest that the ‘‘money order’’ leads pre-dated the

tainting electronic activity. Yet, these latter items Judge Wein-

stein declined to suppress. Is this because, under the law of net-

worthy:theory prosecution, the Government can convict a man

without showing ‘‘likely- source’’, but could never get a convie-

tion in a ease like this one without the money order leads that

made possible ‘the proof of expenditures and net worth increases?

Did the Courts below make a judicial judgment, or did they

make a“‘‘stragetic’’ one in disposing of our motion to suppress?

3. The Second-Trial Proofs As Such (Consisting Of A

Re-Incorporation Of The First-Trial Proofs Into The

Second-Trial Record Except For Proof Of Likely

Source )

At the second trial as such*—.e., the proceedings be-

fore Judge Weinstein following conclusion of the proceed-

ing on the motion to suppress (supra)—the proof con-

sisted solely of a stipulation (reserving various rights as

to admissibility of evidence) plus the entirety of the first-

trial reeord subject to the terms of the latter stipulation.

The defense rested without introducing any evidence (Tr.

9-16-68, p. 73). Judge Weinstein found Schipani guilty on

all counts (Appendix E hereto, infra).

* * *

The opinion of the Court of Appeals affirming the con-

viction (Appendix A hereto, infra) in essence approved

_ all of Judge Weinstein’s reasons and conclusions.

Reasons For Granting The Writ

1. The electronic-taint issues in this case are broader

than those of a mere issue of “suppression” of specific.

items.of illegally obtained evidence. The broader issue is

whether the Government may constitutionally re-try this

case at all, in view of the entire background situation,

z.€., the circumstances of this Court’s order in December

1966 vacating the judgment of the Court of Appeals and

[

* The stenographer’s transcript of what we have above termed

the second-trial proceedings as such consists of minutes for Sep-

tember 16; 1968 numbered pages 23-97, and minutes.for* November -

1, 1968 numbered pages 1-59a. The sentencing minutes (Decem-

ber 6, 1968) were not ordered to be typed.

remanding ‘the case, and the circumstances of the Solici-

tor General’s Supplemental Memorandum which resulted

in the latter order of this Court. The Government has

taken the position, now endorsed by both Courts below,

that, in effect, nothing which occurred in this Court’s

action of December 1966 has any binding foree here ‘be-

cause the Solicitor General was “in error.” But the

Government (and the Courts below) ignore the signifi-

eance of the words “and upon an independent examination

of the case”. in this Court’s per curiam order of December

12, 1966. Unless this last-quoted language in this Court’s

order is’ correctly understood and applied, there emerges

an indeed most peculiar cluster of procedural difficulties

of the most fundamental sort, difficulties touching pro-

found issues of federal jurisdiction as well as individ-

ual constitutional right, difficulties which we respectfully

think were not adequately considered by the Courts be-

low. For, when this Court expressly states in a formal

order or decision that such order. or decision bs made

“upon an independent, examination of the case,” does it:

not of necessity follow that, in any ‘subsequent proceed-

ing upon remand toa lower Court, such lower Court

is required to construe the mandate of this Court in the

light of the decisionally announced statement of this

Court that its order of remand is based upon such “inde-

pendent examination?”. That is, do we not have here

a difficulty far transcending even the difficulty posed by

a lower-echelon governmental claim of an alleged “error”

by the Solicitor General—the Federal officer designated by

Congress to represent the Government in the Supreme

Court of the United States (28 U.S.C. §518)?> Do we -not

have here, to speak bluntly, what amounts to an invita-

tion (“imposition upon” might be the truer phrase) by

Government attorneys to a lower Federal Court to en-

~A ; ’

9 > a

gage in a form of collateral review of a decision of the

Supreme Court of the United States?

Why, since the Government of necessity is accusing this

Court and not only the Solicitor General of “error”, did

not the Government go directly before this Court for con-

sideration of the Government’s instant We novo conten-

tions? What right has the Government instead, to de-

mand that a lower Federal Court should collaterally re-

view the Supreme Court of the United States, under the

form of “construing” or “applying” the mandate of the

Supreme Court. There was open to the Government at

all times herein since December, 1966, the conventional -

rehearing procedure in this Court—notwithstanding the -

lapse of tume-involved since the December, 1966 order

of ‘this Cert. Cf. United States v. Ohio Power

Co., 353 U. S. 98, 99, granting out of time a re-hearing

on the principle that “the interest in finality of litiga-

tion must vield where the interests of justice would make

unfair the strict application of our rules.” That is, if the

Government is convinced that the Solicitor General

“erred”: in the November-December, 1966 situation, such.

still does not excuse the Government from the duty of

any litigant to refrain from: collateral attack upon a

judgment until after first exhausting all avenues of direct,

review, and such an avenue (the re-hearing procedure in

this Court) has been and is open to the Government here.

The Government’s duty to resort first to this Supfeme

Court rehearing procedure is plain, for the reason, Again,

that the’ Court’s order of December 12, 1966, & based

“upon an independent examination of the case”, and not

. only “upon the suggestion of the Solicitor General” which

the Government now claims was “error”.

‘The impact of the incongruous procedural situation

which the Government has here created strikes still more

ER TOI AMM gs aR

acutely when one reflects that the instant suppression-

hearing record is totally devoid of any proof as to what

went into fis Court’s “independent examination of the

case”. To be sure, this last suggestion of ours embodies

a truism, for it goes.without saying there may searcely

ever be expected to arise an occasion when a party may

hope to be able to “prove” any such in camera contents

of the decisional deliberations of this Court. But by this

same token it follows that the Government was asking

a lower Federal Court to.do the impossible, namely, to

make a collateral judicial determination that when the

Supreme Court of the United States announced, without

stating reasons, a decision “upon an independent exam-

ination, of the’ case” that Court “erred”.

It is unthinkable that when this Court used the words

“upon an independent examination of the case”, it meant

to empower the Court below to find, upon its de novo re-

examination of the record or of any new showing by the

Government, that this case never really had to be vacated

and remanded by this Court in the first place. This case

is not like the Black case or other cases in which the So-

licitor General or this Court or both in conjunction saw

fit to favor a remand to a lower Court for a hearing to

determine whether there was taint via electronic activity.

To the contrary, this is one of those. cases in which both

the Solicitor Gencral and this Court, have already con-

cluded that constitutionally fatal taint does exist, on the

record as reviewed by both the Solicitor General and this

‘Court independently, and that all that remains is for the

Government to attempt if it can to re-try the defendant on

untainted evidence. i.e., on evidence free of the already ad-

judicated taint, which is to say that the-case may be re-

tried only on evidence other and separate from that which

has already been adjudicated as tainted.

(

‘

But that is not what the Government was asking the

Courts below to allow the Government to do. The Govern-

ment was not asking for retrial of this case on segregated-

ly “clean” evidence untouched by the previously adjudi-

cated taint. Instead, the Government was asking the

Courts below to adjudicate, collaterally, that the prior ev-

idence which has already been adjudicated as tainted

should now be re-adjudged as “clean”. It is not even clear

whether the Government was also asking the Courts below

to find certain portions of the Government’s evidence to

be separatedly or segregatedly “clean” in the sense of be-

ing untouched by this Court’s 1966 adjudication of eviden-

tiary taint. It is not clear whether this latter aspect was

included in what the Government was ‘asking the Courts

below to do because that aspect here became inextricably

intermingied with the other aspect, the jurisdictionally and

constitutionally forbidden aspect in which the Government

was asking these lower Courts to ‘undertake a collateral

review of the decision of this Court.

This intermingling was the inevitable result of the Gov-

ernment’s choice to press for a collateral rejection of this

Court’s 1966 decision. This. choice by the Government

brought about -an apparently hopeless obscuring of the

separate aspect or issue of whether the case ean be re-

tried on segregatedly clean evidence untouched by this

Court’s 1966 decision.

In all probability, it would have been impossible in any-

event for the Government to mount a constitutionally ac-

ceptable corpus of prosecutive proof for retrial of -this.

case, owing to the pervasiveness of the taint adjudicated

in 1966. Theoretically, wholly or partly new proof could

‘have been developed by the Government, but that is not

the course which the Government chose.

bo Se E SN RRS Rese

; 47

2. Furthermore, even if the Government might have

succeeded in achieving the theoretical possibility of de-

veloping “clean” new proof, there would persist the seri-

ous further probiem of the viability of the present indict-

ment, unless the Government could show that there was

no fatal taint in the proof on which the Grand Jury re-

turned this indictment. The Government made no showing

in the, instant hearing record, or anywhere else to our

knowledge, that the Grand Jury proofs were thus un-

tainted. This Grand Jury problem goes beyond the fa-

miliar problem of whether the Grand Jury proceedings

are vitiated by incompetent or constitutionally tainted

evidence when other evidence free of such defects was pre-

sented to the Graid Jury. Here, if we are correct in our

understanding of the meaning of this Court’s “independent

adjudication” of fatally pervasive taint in \this case, the

conventional saving factor of the Grand Jur\’s having re-

ceived additional legal evidence, could not cone into play,

“for here the whole of the Grand Jury evidence would

stand tainted. ;

Furthermore, here there is present an even more seri-

ous problem, now that Judge Weinstein has suppressed

all proof of likely source or of any illicit income, for \in

light of the latter ruling of Judge Weinstein it becomes”

necessary to confront the ultimately basic problem of

whether the Grand Jury in this case would have indicted

‘at all on an indictment theory that exctuded likely source

- and illicit income. That is, with likely source and illicit

income iaken out of this Grand Jury picture retrospec-

tively by virtue of Judge Weinstein’s ruling of electronic

taint, the question becomes, has Schipani even been af-

forded at all his constitutional right to indictment by a

Grand Jury? Given this radical change of the Grand

Jury posture (in light of Judge Weinstein’s ruling on

likely source and illicit income or activity), does the in-

dictment vtself survive as being that particular indictment

which this particular Grand Jury thought it was handing

down?

Further, there is the problem of whether the Govern:

ment itself would have presented this case at all to a

Grand Jury if the likely source and illicit income items

had not been deemed available in the Grand Jury picture.

' This latter problem, as to the prosecution’s own position

vis-a-vis the Grand Jury (retrospectively viewed in light

of Judge Weinstein’s ruling), is admittedly of fesser con-

stitutional dimension than the companion problem affect-

ing the Grand Jury’s own province. But it all adds up to

showing just how grotesque the evolution of this prose-:

cution became, in point of both constitutional wrong and

of wrongful federal prosecutiye policy, in light of the elec-

tronic taint factors as they \ktand on the present record.

And this grotesqueness, in turn, but further bespeaks the’

fatal constitutional disorientation of ‘this remarkable fed-

‘eral prosecution, the disorientation caused by a Federal

District Court’s having undertaken in effect to pronounce

a collateral judgment. ef reversal against the Supreme

Court of the United States.

Further as regards our above remarks concerning the

theoretical possibility that the Government might have

developed totally new and “clean” proofs, we do not-mean

to imply that such new proofs would be literally the only

method of constitutionally retrying this case.* Theoretie-

ally also the Government might retry this case on the ba-

sis of such portions of the prior proofs which the Govern-

eee

* When we speak of ‘‘constitutionally’’ retrying this case on

totally new proofs we do not recede from the above suggested

qualification that such a course would raise its own grave con-

stitutional difficulty in connection with the Grand Jury problem.

ment might demonstrate are outside the area already ad-

judicated as being tainted. But, again this latter the-

oretical possibility does not seem to us realistic owing to

the pervasiveness of the adjudicatedly tainted items; and

again, the Government has not chosen to make a distinct

and clear demonstration along such lines.

The foregoing necessarily suggests, we realize, that it

is apparently impossible to retry this case at all under

any circumstances owing to the factor of the pervasive-

ness of the 1966 adjudicated taint—or owing to the sheer

impossibility of defining just what are the bounds and

contents of the adjudicatedly tainted area. This latter

suggested impossibility is the result of the Government’s

own fault in having tainted its case so pervasively, albeit

so undefinably, in the first place. And the task of trying

to define the bounds and contents of the adjudicatedly

tainted area was a task which the Government had to

undertake as part of its burden in the proceedings below,

but the Government avoided that task, choosing instead

to pitch its whole effort on the contention that the 1966

decision of this Court was “error”,

3. The conduct of the Courts below is in defiance, more-.

over of “the law of the case”. See 5 Am. Jur. 2d (“Appeal

and Error” §§ 744 et seq., 989 et seq.) pp.188 et seq.; 19

A. L. R. 3d 502 et seg.; 87 A. L. R. 2d 271 et seq., collect-

ing the familiar decisions for the axiomatic proposition

that a lower Court must obey the terms of the mandate

of an Appellate Court.. For example, ‘it’ is stated in 87

A. L. R. 2d at p. 276 that, “Obviously, a decision of a

higher appellate court is binding * * * whether the deci-.

sion is right or wrong”. It is stated at 87 A. L. R. 2d

p. 280 “* * * that the only remedy‘ available to correct

the error is a petition for a rehearing seasonably made

after the decision on the former appeal.” It is stated in

- fe Seay eae

) Am. Jur. 2d at pp. 417-418 that “It is the duty of the

trial court, on remand, to comply strictly with the man- ©

date of the appellate court according to its true intent

and meaning, as determined by the directions given by the

reviewing court. No judgment other than that directed by

the reviewing court may be entered, even though it may

. be one that the appellate court ougyt to have directed.”

' * * * ;

- (In our closing presentation to the District Court, after

the ‘Court had announced its tentative opinion and *order

and before pronouncement of verdict, we moved (Novem-

ber 1, 1968) for a continuance of the: cause pending op-

portunity to apply to this Court for a correction

of Judge Weinstein’s interpretation of this Court’s order:

of remand. It was not until the latter stage of the pro-

ceedings below that the situation became ripe for such

a motion on our part, because we had to await the un-

folding of the Government’s proof in this second trial and

the District Court’s manifestation of its views in regard

thereto—that is, until the stage just mentioned we were

not in a position.to pursue our “collateral review” objec-

tions because down to that moment it had remained pos-

sible that the Government would try to free the case of

taint by bringing in new untainted evidence, or that the

Court below would acquiesce in our “collateral review”

objections in light of the Government’s failure to adduce

any such new untainted evidence. Our request for continu-

ance was denied.)

4. The Courts below erred in ruling that the Govern-

ment successfully negated electronic taint with respect to

all of the first-trial proofs except likely souree. Much of

the argumentative presentation peztinent to the latter

contentions has crept, we fear, into our recitals concern-

ing this topic in the Statement of the Cage, supra, where

51 ane \ 5

(we realize) our factual recitals frequently crossed over ,

into the area of “argument”.

In the Statement of the Case, supra, we petereea to

_ Judge- Weinstein’s distinction between the “focusing”

_ phase. and the phase of specific items of evidence, in re-

gard to the electronic-taint issues. It was’ not written in

the Stars of the judicially objective issue-framework of

this case, on the electronic aspect, that this peculiarly

logicalized formulary distinction proposed by Judge Wein-

stein had to be the only or the right way of judicially

_approaching the eléctronic issues. It is familiar to, all

“of us, from the time of our sophomore-year course in ¢ol-

lege Logie, that one should: never let :the other fellow

formulate the issue, lest the eneounter be lost then and

there. Judge Weinstein formulated the issue framework

here. Before this Court we are free to urge that he be

ruled wrong in that formulation. :

Accordingly, we respectfully contend that the realistic

and fair formulation of the electronic-taint issues is the

one found in Mr. O’Brien’s memorandum of November 18,

1966 described supra (Appendix G hereto, infra). Mr.

O’Brien, an experienced Government lawyer in this field

of criminal income tax prosecutions on the net worth

theory, knew that the issue of electronic taint in this case

was not one of “focusing” versus “specific items” or any-

. thing of that sort. Mr. O’Brien knew that the only proper

issue was whether, fairly and candidly, the Federal Gov-

ernment lawyers in this case were going to be able to

go before a Court and assure that their investigative-

prosecutive totality was salvageably free of electronic taint

in view of all of the circumstances. Mr. O’Brien knew

that that was the only acceptable way to put the issue.

And evidently Solicitor General Marshall knew this also.

What was not to be expected was that eager-beaver junior

officials of the Department of Justice and the LR.S. would

later presume to foist on a Court their Masetti “exhibit 1”

theory—or perhaps this was to be expected in view of the

enormous temptation that must lure the prosecutive bu-

reaucratic mentality in situations of this kind, especially

in this situation where a prime stake in contemporary con-

stitutional history is involved, the stake of the survival or

destruction of the whole “Schipani reyiew proceure”. But ‘

what was surely never to be expected was that a Federal

Court would facilitate such pretensions of career prosecu-

tors. 3

When one reads Judge Weinstein’s opinion on the elec-

tronic issue which is printed in Appendix C hereto, infra

one soon finds oneself in a world of verbal and logical un- -

reality. Judge Weinstein’s.“foeus versus specific-item” dis-

tinction bears no relation to the actual chronological de-

velopment of the real-world happenings that were taking

place among the several agencies during the Schipani in-

vestigatidn, especially during 1961. The participants in

that inter-agency activity were not sitting around contem-

plating their logical navels to trace out the distinct con-

‘volutions of :“focus”- or of “specific items”. Those partici-

pants were involved together with each other in an or-

ganic, real-life Action or “gestalt” (to use one of Judge

Weinstein’s ofvn words). Those participants were all

unitedly in pursuit of Joseph Schipani. It is as though .

one were to inquire of a pack of foxhounds whether, at

any moment, they were devoting their pursuit energies to

“focusing” on the fox ‘or to “specific-itemizing” on the fox.

It is as though one were to inquire of Victor Hugo’s Javert

whether, in Les Miserables, at any one moment he was

“focusing” or “specific-item” questing after Valjean. Logic

and good disciplined analytical thinking Have ‘their place

in the law, to be sure. But surely the “logic” and the “ana-

53 is

lysis” with which we have all been favored by the learned °

District Judge below are not helpful to the proper conduct

of the judicial process in this case. Mr. O’Brien, Solicitor

General Marshall, the unanimous Justices of this Court, all

of those legal thinkers in 1966.discerned the organic or

unitary nature of the electronic taint problem in this ease.

The learned Courts below should have profited by their

example. |

Actually, the Government’s only “showing” with respect

to the specifies of the supposedly taint-free evidence under

Exhibit 1 consists of the testimony of I.R/S. Agent Masetti,

supra. But in thus relying on Masetti the Government is

relying on a blend of bootstrap-levitation and petitio prin-

_cipwu. The Government is defying the laws of legal gravity

and the logical law which forbids the begging of questions.

The bootstrap-levitation aspect is revealed in the fact that

Masetti has done noting more than sel-servingly testify

that he did not know that any of his information had an

electronic source. This is unavailing for the Government.

The essential question is not what Masetti knows as to

wtimate sources of evidence, but what the entire herein

involved Federal Law Enforcement Establishment knows

er is chargeable with knowing as to such sources. The

begging of the question by Masetti’s testimony and by his

Exhibt 1 is expressed likewise in. what we have. just said.

The Government cannot lift its tainted case out of the

tainted level by the self-serving testimony of Masetti when

the Government’s showing fails to negate taint through the

activities of the overall Law Enforcement Establishment

herein, any more than the Government can successfully

~ meet the ultimate question of taint known to or reason-

' ably attributable to that overall Establishment, by plac-

' ing on stage the single underling Masetti with his claim

of “autonomous” ignorance of the obviously universal elec-

tronic taint which surrounds this ease like the “Ocean” of

classic, Greek mythology which encompassed the known

world of finite Man.

A comparable fundamentally disturbing item in the

Government’s case on the electronic issues is the follow-

ing: The testimony of the ATTU Chief Agent Hay is:

that his agency was embarked upon a “saturation” focus

upon Schipani (228 et seq., passim).* ATTU has admitted

electronic surveillance at the Pierrepont Health Club in

Brooklyn commencing in August 1961. It is perfectly evi-

dent from the testimony of Hay and the other ATTU

agents that, thanks to their claimedly massive physical -

surveillance of Schipani during 1961, they must: have

known that Schipani was frequenting Prisco’s Travel

Agency, where the F.B.I. had its electronic installation.

The immediate and urgent question arises, then, why did

not ATTU: itself try to conduct electronic surveillance of

Prisco’s? ATTU’s readiness, indéed its’ardor, to devote

its electronic attentions to Schipani during the times in

question speaks out boldly from: page after page of the

present hearing record, as we have seen. What is the

answer to the mystery of why ATTU did not—if, indeed,

it did not—install an electronic device at this place,

Prisco’s Travel Agency, which the physical surveillance

must have revealed to ATTU as being a place of such

frequent resort by Schipani? The answer to this mys-

tery is, we respectfully suggest, that. ATTU knew that

the F'.B.I. was already taking care of the electronic job at

Prisco’s. This inference which we are suggesting seems

to us to be so unavoidable-in point of the factual logic

of the present situation, that we believe we are justified

in arguing that it is incredible, practically as a matter of

* This refers to the transcripts cited in the footnote on p 16,

supra. i

law, that ATTU did not: know of the F.B.I.’s electronic

activity at Prisco’s Travel Agency. And if we are cor-

rect in this seemingly inescapable inference, what is left

of even the fragments of believability of the Govern-

ment’s entire “showing” in the present hearing record?

The credibility of the Government’s entire evidentiary

showing in this hearing must be concluded to be worth-

less, for as seen, both the F.B.I. witnesses and the ATTU

. witnesses were bold enough to swear in this hearing that

* ATTU had no knowledge of the F.B.I.’s electronic bug-

ging at Prisco’s.

Further as to the “focusing” aspect, as record of the

suppression proceedings herein cannot support the deter-

mination that unconstitutional “focusing” was negated

by the Government by “a preponderance of the proof”.

In that suppression hearing—where the Government had

the burden—persons whose testimony was indispensably

needed (on the “focusing” issue) were not brought in as

witnesses. Where was the First Assistant to the Solicitor

General mentionad by Mr. O’Brien as the official who evi-

dently carried forward the November 1966 Departmental

Review after Mr. O’Brien’s paper was finished? Where,

in our suppression hearing, was anyone from the Solici-

tor General’s office? The District Court noted in its opin-

ion printel in Appendix C hereto, znfra, that Mr. O’Brien

“did not know if the Solicitor General had additional in-

formation or had @onducted an independent review. There

is no indication in the record that such a review had taken

place”. We must respectfully ask, whose fault is it that

there is no such “indication in the record”? Was it not

‘part of the Government’s burden to meet one way or

the other, the lack of such “indication in the record”?

And where, likewise, were all of the other absent Govern-

ment-employee witnesses mentioned supra whose testi-

mony was needed to fill gaps not only as to the con-.

temporaneous “focusing”, but as to the 1966 Depart-

mental review? :

5. We submit also that the District Court’s enunciation

of the “preponderance” test for the “focusing” issue, as

distinct from the “reasonable doubt” test (Appendix C,

hereto, infra) is unsound., An important consideration,

mentioned by that Court as favoring the “preponderance”

eanon for this branch of the case, is comity owed by the

Judicial to the Executive Department.- We must ask,

“since when has the Judicial Branch under our Constitu-

tion felt itself under comity restraint in enforcing the

Constitution against Executive violation?* The whole

history of the contemporary rulings of this Court in this

electronic monitoring field eschews any such comity con-

siderations.

6. As to the aspects of the District Court’s opinion

(Appendix C hercto, infra) in which taint is found only

as to items of “likely source”, the very.items of adminis-

_ trative chronology and unfolding administrative activity

-which the Court itself so exhaustively marshaled, the

very items which caused the Court to conclude that taint

of the “likely source” items had not been negated by the

* Incidentally, when the District Court evidently gave decisional

weight in its opinion (Apendix C hereto, infra) to Mr. O’Brien’s

testimony that he would not have phrased the Solicitor General’s

previously quoted positive and unequivocal statement in the way

the Solicitor General did, the Court was putting a strange gloss

on its own ‘‘comity’’ reasoning. It does not seem wise for a Court

to pit Executive subordinates against their superior officers (who

have not even been heard from on the record), in a setting of

judicial reasoning which also posits that the Court is reluctant

to intrude itself into the Departmental inner privacies of the co-

equal Executive Department.

Government beyond a reasonable doubt—this reasonable

doubt test was found applicable by the District Court to

this branch of the case, i.e., the branch involving specific

evidentiary. items as distinct from the “focusing” prob-

- Jem—require equally the copenaeien: that the Government

did not carry beyond a reasonable doubt. the burden of —

negating taint as ‘to the ATTU surveillance which re-

sulted above all in what the Court below repeatedly re-

ferred to as the “crucial” money order leads. ~

7. Referring to our Question Presented no. 6, supra,

it came out in. the “3500” material of F.B.I. agent Shedd

in this second trial that the agent had\questioned Schip-

“ani about one Tony Ricci and that Schipani knew Ricci

in Florida. We informed Judge Weinstein (in our paper

entitled “Defendant’s Statement Of Objections, Motions |

And Requests After Conclusion Of The Proof At 1968

Re-trial,” pp. 17-19) that, from the record on file in this

‘Court in-Desist et al. v. United States, no. 12, Oct. Term ~

-1968, it was’ known that the name of this same Tony Ricci

figured importantly in certain ‘admitted trespassory elec- :

tronic eavesdropping by the F.B.I. in a Miami, Florida

restaurant, where Ricci was the direct target of the F.B.I.

bugging over a period which included the herein relevant

period from ‘April 1962 to May 1963. We therefore

urged Judge Weinstein, in our aforesaid “Statement of

Objections” ete. “to compel the Government to make

plenary disclosure concerning the Florida bugging of

Tony Ric¢ei’’ (id., p. 19). And we further move@ as fol-

lows before Judge Weinstein (cbid.):

«* * * Kor, if Tony Ricci was bugged prior to

Agent Shedd’s interview with Schipani on May 19,

-1959, and if that bugging of, Ricci turned up the

name of Schipani or any lead to- Schipani, such

would have an obvious vital bearing on the elec-

. 08

tronic issues of this case. In the first place, it

would go to the question of whether Agent Shedd’s

allegedly pre-electronic information is actually pre-

electronic. Second, it would be one further impor-

tant item going to the fundamental due process-

Fourth Amendment question of the Government’s

overall behavior in regard to its duty of full dis:

closure of its electronic activities affecting this case

of Schipani. We therefore move for an order re-

quiring the Government to make a plenary report

to the Court and to the defendant concerning the

Tony Ricci electronic bugging in Florida.”

However, all that Judge Weinstein did concerning this.

was that he directed the Government to report to him '

about the Tony Ricci bugging, and he then announced as

follows in the opinion printed in Appendix D hereto; infra

(p. 72a-73a) : “ :

“Electronic eavesdropping involving one Tony Ricci

has no bearing in the instant case. At the Court’s

request, the logs relating to that surveillance were

examined by the government. The government has

represented that the defendant’s name was not men-

tioned, none of his activities were mentioned, and —

the defendant’s voice was not picked up. Based

upon the suppression hearing already had in this

case, it .1s clear that no leads to evidence used

. ./ against the defendant were obtained as a result of

electronic eavesdropping involving Tony Ricci.”

The above procedure followed by Judge Weinstein. de-

- prived petitioner Schipani. of his rights under Alderman

v. United States, 349 U. 8. 165. It'was not enough forghe

Court to aecept the Government’s unilateral representa-

tion. Schipani’s counsel should have been given the op-

' 59

‘

portunity to examine the Tony Ricci logs to make sure, on

his own judgment as defense counsel, that no evidentiary

leads to Schipani had resulted from that surveillance. In

the massive and intricate picture of electronic activity pre-

sented by this case, Schipani and his attorney should have -

‘ben given that right and opportunity. (We neglected to

argue this point before the Court of Appeals, but pre-

served it before the District Court, as seen from the °

above quotation.)

8: As regards cur motion in the Court of Appeals un-

der the “All Writs” statute (see our heading “Jurisdic-

- tion”, p. 2, supra, and our Question Presented. no. 3,

supra), we submit it was*the duty of the Court of Ap-

peals to guard the integrity of this Court’s mandate.

‘against the ‘impositions of the Government and District

-Court, that is, to guard the mandate against ultra tires

collateral review by a lower Federal Court bent upon help-

_ Ing the Government show that the Supreme Court of the

United States was “in error” in having laid down “the

law of the case” (in this very same case). In any event,

this Court’s own original jurisdictoin under,28 U. S. C.

§1651 may be invoked in such a situation. The Court will

please note that the certified record pertaining to our

“All Writs” motion in the Court of Appeals is under a

separate title and docket number (No. 33753, Joseph F.

Schipani, Petitioner, v. Hon. Jack B. Weinstein, United

States District Judge for the Eastern District of New

York, Respondent). . Our “All Writs” motion presented

the issue to the’ Court of Appeals via an adoption or an

incorporation by reference of our presentation on the

same subject'in our appeal brief in ‘that Court, the es-

sence of which has been heretofore set forth in this peti-

tion for certiorari where we have discussed the Govern-

ment’s and Judge Weipstein’s a of going about

declaring this Court “in error”

b= “

CONCLUSION

It is respectfully submitted that this petition for a

writ of certiorari should be granted, both as to the

judgment affirming the conviction, and as to the order

denyimg the motion for relief under 28 U.S.C. §1651.

Respectfully snbmitted,

Jacosp P. Lerxowitz

ABRAHAM GLASSER

Attorneys for Petitioner

Joseph F. Schipani

os ‘APPENDIX A f

‘

~ For THE Spconp Circuit

o_—

No. 692—September Term 1968 |

(Argued June 25, 1969 Decided August 11, 1969.)

Docket No. 33157

Unitrep States or AMERICA,

Appellee,

—V.-—

JosepH F. Scuipani,

Appellant.

> =

- Before:

Hays and Fernserc, Circuit Judges,

and Jameson, District Judge.*

__-~ Appeal from a judgment’ of the United States District

Z Court for the Eastern District of New York, Jack Wein-

stein, Judge, convicting appellant, upon a trial without a

jury, on five counts of willful income tax evasion, in viola-

tion of 26 U.S.C., 7201. |

Affirmed. h Bk

——— oe ve -

Jacop F. Lerkowirz, New York,- New York

(Abraham Glasser, of counsel), for Appel-

lant. ea

° Senior District Judge of the District of Montana, sitting by desig-

nation.

[1a]

ey, ape

AE EIEIO TE RE

cue Ye,

; : 2a:

JOHNNIE M. Watters, Assistant Attorney Gen-

eral, Lee A. Jackson, Joseph Howard, Cono

R. Namorato, Janet-R.: Spragens, Attorneys,

Department of Justice, Washington, D. (.

(Vincent T. McCarthy, United States At.

torney, for the Eastern District of New

York, Jerome C. Ditore, Assistant United

States Attorney, of counsel), for Appellee.

—o—

Jameson, District Judge:

This is an appeal from a Judgment of conviction entered

December 6, 1968, after trial without a jury, on five counts

of willful income tax evasion through failure to file returns

~ for the years 1956-1960 inclusive, in violation of 26 U.S.C.

7201. ;

| Appellant was first found guilty of the same offenses,

after a non-jury trial,? on October 15, 1965, and was sen-

tenced on December 3, 1965. This conviction was affirmed

by this court on June 29, 1966. United States v. Schipani,

2 Cir. 1966, 362 F. 2d 825. Certiorari was denied on No-

vember 7, 1966. 385 U.S. 934, 87 S. Ct. 001, 17 L. Ed. 2d

431, :

On November 30, 1966, the Solicitor General filed a sup-

plemental memorandum in the Supreme Court advising

1 26 U.S.C. 7201 provides in pertinent part:

“Any person who willfully attempts in any manner to evade or

defeat se Sic Saal by this title or the payment thereof shall,

_-in addition to other penalties provided by law, be guilty of a

iceay * °° »

2 Prior to the first trial the parties had waived a jury. Before the

second trial the Government moved to withdraw its consent to trial

without jury. The motion was resisted and denied, the court holding

that the Government’s waiver covered “the above entitled case” rather

than a particular ‘trial. United States vy. Schipani, E.D.N.Y. 1968,

44 F.R.D. 461. :

3168

the Court that material evidence against appellant was

based in part on electronic surveillance and suggesting that

by’ reason of this taint the “Court vacate its order denying

certiorari, grant certiorari, vacate the judgment of the

court of appeals, and remand the cause to the district

court for a new trial, should the government seek to prose-

cute the petitioner anew.” * On December 12, 1966, acting

“(u)pon the suggestion of the Solicitor General and upon

an independent examination of the case,” the Supreme

Court remanded to the district court “for a new trial

should the Government seek to prosecute petitioner anew.”

385 U.S. 372, 87 8S. Ct. 533, 17 L. Ed. 2d 428.

Following remand, appellant filed a motion to suppress

all evidence obtained as a result of any electronic surveil-

lance. A full evidentiary hearing on the motion com-

menced May 6, 1968, and continued: for five days. The

Government made full disclosure of all available informa-

tion relating to electronic surveillance of any conversations

in which appellant had participated.‘ In a thorough and

3 The memorandum set forth that it had eome to the attention of the

Solicitor General that appeliant had been a participant in a number of

conversations which had been electronically monitored as a result of

trespass. The Solicitor General was unable on the basis of information

then available to “say * * * that none of the evidence used by the gov-

ernment at petitioner’s trial was obtained, either directly or indirectly,

from an improper source.”

4 With respect to the evidence presented at the hearing, the court said

in part:

“The Government has freely revealed all data available to it. It

has presented all the surveillance logs of conversations in which the

defendant participated or was mentioned, the files of the Federal

Bureau of Investigation, the Alcohol and Tobacco Tax Division of °

the Treasury Department, the Intelligence Division of the Internal

Revenue Service, and the Department of Justice, and the testimony

of the many agents and attorneys in the 1961-1963 investigations of

the defendant and the 1966 review of their work by the Department

of*Justice. In addition, the Federal Bureau of Investigation ‘case

3169

well-reasoned opinion, Judge Weinstein suppressed all

evidence introduced at the first trial relating to appellant's

“likely sourees of income” * and otherwise denied the mo-'.

tion. United States y. Schipani, E.D.N.Y. 1968, 289 F,

Supp. 43.

At the second trial, the entire record of the first trial

was received in evidence as an exhibit, pursuant to a

stipulation entered into by the Government, appellant, and

appellant’s trial counsel. Since “likely source” evidence

had been excluded, the Government's case rested solely

on a negation of all non-taxable sources of income, a

theory approved in United States v. Massei, 1958, 355 US.

095, 78 S. Ct. 495, 2 L. Ed. 2d O17.

Following detailed findings, the court concluded: *Dur-

ing each of the years charged in. the indictment the de-

fendant had substantial taxable income greatly in excess

of six hundred dollars. During each of these years he

should have paid a substantial income tax. He failed to

file income tax returns: and concealed his income wilfully

in order to defraud the sovernment of income taxes due

by him to the government. The government has proved

beyond a reasonable doubt all the elements of the crime

charged for each of ‘the years charged in the indictment.

The defendant is guilty as charged on all counts.” United

States v. Schipani, ..D.N.Y. 1968, 253 F, Supp. 156, 163,

164. .

agent’ assigned to the Schipani investigation reviewed all the Fed-

eral Bureau of Investigation reports relating to the defendant and

underlined all information obtained as a result of electronic sur-

veillance” (289 F. Supp. at p. 45).

5 Each time the case was tried on the “net worth” theory. At the first

trial the Government offered evidence of “likely sources” of income, as

well as negating all non-taxable sources of income.

3170

Appellant first questions the propriety of the proceed-

ings upon remand and contends that the Government could

not constitutionally retry the case on the basis of “first-

trial proofs.” He argues that the ruling of the district

court that there was sufficient taint-free evidence to per-

mit a retrial on the same evidence constituted 4 “collateral

finding” that “the Supreme Court of the United States

was ‘in error’ in having ' adjudicated to the contrary in

deciding the same electronic issues in December, 1966, on

the qnerits and ‘upon an independent examination of the

case.’ ”’ 5 Ah

- We'do not so read the Court’s opinion. It is significant

that the Supreme Court, after its “independent examina-

tion of the case,” did not’ order a dismissal. Appellant

had petitioned for a “remand with direction to vacate the

judgment of conviction and to dismiss the indictment.”

The Court did not grant the petition but instead provided

expressly for a “new trial should the Government seek

to prosecute anew.” ° Had the Court intended the

construction placed upon its order by appellant, it would

have granted his motion.

* *« *

Clearly it was necessary to determine in some manner

what evidence was tainted. This the district court did in

an extended suppression hearing, with complete disclo-

sure to appellant by the Government of all available in-

formation in the Government’s files and with an oppor-

? :

6 A similar proceedure of remand for an exclusionary hearing was. fol-

lowed. in United States v. Wade, 1967, 388 U.S. 218, 87 8S. Ct. 1926,

18 L. Ed. 2d 1149; Gilbert v. California, 1967, 388 U.S. 263, 87 S. Ct.

1951, 18 L. Ed. 2d 1178.

3171

tunity to cross-examine the key agents and investigators

who had any knowledge of the electronic surveillance.’

The per curiam opinion of the Supreme Court did not

hold or even suggest that all evidence at the first trial was

tainted by electronic surveillance. The Court had been

advised by the Solicitor General that some of the leads

and evidence were tainted. Neither the Solicitor Genera}

nor the Supreme Court had the benefit of the careful

analysis and testimony with respect to the sources of all

evidence which were available to the district court as a

result of the suppression hearing.’

The evidence at the suppression hearing disclosed that

the F.B.I. had been compiling information on appellant

since 1958. In a report dated October 10, 1960, the defen-

dant was described by one source as “one of the most in-

fluential and most powerful figures in New. York under-

world” and “considered to be associated with several of

New York’s top hoodlums” (289 F, Supp. at p. 46). The

first information obtained by electronic surveillance was in

1961 through an investigation of Michael Clemente and

covered the “Prisco Travel Bureau, a ‘front’ for Clemente’s

criminal activities and a meeting place for many of New

York’s top mobsters.” Although appellant was not the

subject of that electronic surveillance, nine conversations

in which he participated and 27 others in which he ‘was

7 The evidence adduced at the Suppression hearing included “a pain- -

staking analysis of all the evidence introduced” in the first trial, pre-

pared by the Special Agent of Intelligence in charge of the Schipani

investigation, with a member of the staff of the United States Attorney.

“The products of their labors was a comprehensive chart which denotes

a specific source or sources for each witness and piece of evidence (in-

cluding 292 exhibits) introduced at the trial” (289 F. Supp. at p. 49).

8 The same is true of the memorandum prepared by James Dewey

O’Brien, then the Assistant Chief of the Criminal Section of the Tax

Division, upon which appellant heavily relies in support of his conten-

tion that all first trial proofs were tainted.

3172

7a oa

discussed or his name was 1::entioned were electronically

monitored (p. 47). 3

The district court properly examined all of the evidence

in the first trial to determine whether all or only a part

was tainted by the electronic surveillance, and whether any

untainted portion was independent of and distinguishable

from that which was tainted. After a full hearing the

‘court, in a careful opinion, first recognized that “evidence

is admitted if it is obtained from an untainted ‘indepen-

dent source’ but excluded if it is obtained as a result of

the illegality”; that evidence discovered “as a result of

both legal and illegal leads” is inadmissible, even though

“the legal lead would itself probably have sufficed to un-

cover the evidence” (289 F’. Supp. at p. 54); and that the

Government is required to “prove beyond a reasonable

doubt that the evidence it introduces was legally obtained”

(at p. 59).

Applying the foregoing rules, the court found, inter alia,

that the only tainted evidence was that relating to a likely

source of income; that the “(o)ther evidence of the clefen-

dant’s net worth was proved beyond a reasonable doubt to

be untainted” (at p. 61); that the investigation was not

intensified by reason of any tainted information,” and that

9 The proper test is: “(Wyhether, granting establishment of the pri-

mary illegality, the evidence to which instant objection is made has been

come at by exploitation of that illegality or instead by means suffi-

ciently distinguishable to be purged of the primary taint.” Wong Sun

v. United States, 1963, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441;

Hoffa v. United States, 1966, 385 US. 293, 309, 87 S. Ct. 408, 17 L. Ed.

2d 374; United States v. Wade, 1967, 388 U.S. 218, 241, 87 8. Ct. 1926,

18 L. Ea. 2d 1149.

10 “The government has established by a preponderance of evidence and

possibly by clear and convincing proof—though not beyond a reasonable

doubt—that the intensity of its investigation by Intelligence and the

Alcohol Tax Division was not affected by tainted information.” 289

F. Supp. at p. 64.

(footnote continued on next page)

3173

8a fi

it was “highly likely that the government would have

launched a saturation investigation * * * even if no in-

formation had been received from electronic surveillance of

the Priseo Travel Bureau” ™ (at p. 64).

We approve the legal principles applied. The findings

were not clearly erroneous. They were supported by sub-

stantial evidence. BO

II.

£P

Appellant’s next contention that the evidence was insufh-

cient to sustain a conviction was considered by this court

on the appeal from the first conviction.’ As noted supra,

at each trial the Government relied on the “net worth”

theory. The evidence of “likely source” income accepted

The court had previously concluded that proof showing that the in-

tensity of the investigation was not the result of tainted infermation

was satisfied by a preponderance of the evidence.

11 In reaching this conclusion the court relied in part upon the untainted

F.B.I. report: of October 10, 1960, supra, and “additional leads * * *

through acceptable investigative techniques. Defendant had never filed

an income tax return althoygh he obviously enjoyed a high standard of

living. Immediately after the investigation began, the defendant ap-

peared so vulnerable and the likelihood that an income tax investigation

would prove fruitful was so great, that government agents would-natu-

rally focus on him?’ (289 F. Supp. at p. 64).

12 In view of the factual background contained ii the prior opinion of

this court (362 F.-2d 825) and the detailed findings of Judge Weinstein

in his order following the suppression hearing (289 F. Supp. 43) and

in his opinion following trial (293 F. Supp. 156), we do not deem it

necessary to set forth the evidence in detail in this opinion.

13 In a net worth ease, the Government “attempts to establish an ‘opening

net worth’ or total net value of the taxpayer’s assets at the beginning of

a given year. It then proves increases in the taxpayer’s net worth for

each succeeding year during the period under examination and calculates

at the beginning and end of each of the years involved. The taxpayer’s

non-deductible expenditures, including living expenses, are added to these

increases, and if the resulting figure for any year is substantially greater

than the taxable incom? reported by the taxpayer for that year, the

‘

3174

: - = Oe.

at the first trial was excluded at the second trial. The evi-

dence negating non-taxable income, however, was identical

at the two trials. i

In affirraing the first conviction, this court found that the

“totality of circumstances shown by the evidence” sup-

ported the conclusion that no “eash hoard” ever existed;

that the “absence of such a reserve fund was established

as part of the Government’s prima facie case” and appel-

lant “remained quiet at his own peyil.”** The opinion

pointed out that the appellant had not suggested any “non-

taxable sources other than a cash hoard” and that “the

Government negatived all other reasonably: possible sourees

from which Schipani could’ have acquned = non-taxable

funds.” It was held that, “Under the circumstances, proof

of ‘a likely source’ of net worth increases is not necessary,”

relying on United States y. Masset, supra, and other cases

cited. (362 F. 2d at 830.)

We adhere to our conclusion that: it was not necessary

to rely upon a “likely source” of net worth to sustain a

conviction, and hold that after the elimination of all evi-

Government claims the excess represents unreported taxable income. In

addition, it asks the jury to infer willfylness from this understatement,

When taken in connection with direct ‘evidence of ‘conduct, the likely

effect of which would be to mislead or to conceal.’ Spies v. United

States, 317 U.S. 492, 499.” Holland vy. United States, 1954, 348 U.S. 121,

125, 75 8. Ct. 127, 99 L. Ed. 150, rehearing denied 348 U.S. 932, 75 8. Ct.

334, 99 L. Ed. 731.

14 Appellant did not offer any evidence at either trial, but relied on

insufficiency of the Government’s proof.

15 Appellant recognizes that this issue was determined adversely to his

contention in our opinion affirming conviction on the first appeal, but

argues that the “inartistic reference to a ‘reasonably’ proved negation

of ‘all possible’ non-taxa¥le source under the Massei case” was an un-

warranted extension of the Massci rule and does not find support in

other cases construing Massei. We find nothing in the cases cited by

appellant contra to our construction of Massei as applied to the facts

of this case.

3175

10a

dence of “a likely source,” the evidence was still sufticient

to prove 2uilt- beyond a reasonable doubt.

With respect to appellant's contention that the Govern-

_-ment failed to establish the element of “willfulness,” Juqye

Weinstein sets forth in detail the factors showing “a pat-

tern consistent only with that of a guilty mind” (293 F.

Supp. at 161). We agree with his conclusion. The factors

enumerated in his opinion are essentially the same as those

considered by this court in its prior decision (362 I. 2d at

$31). 5 -

‘ et ¥L 2

III. ie

Tele eee :

This court also considered on the prior appeal appel-

lant’s contention that the trial court erred. in admitting

into evidence the prison record of a statement given by

appellant to a prison official in February, 1943, that he had

only $1350 in cash which he had left with his wife. The

statement was offered to show appellant’s net worth in

1943 as a starting point in proving his net worth at the

beginning of the indictment period. The statement was

given in the course of a routine interrogation by prison

authorities relating to Schipani’s personal history. It was

unrelated to any pending investigation of a criminal of-

fense, and particularly bore no relationship to the present

case, which was not initiated until many years later. We

adhere to our prior holding that there is'no basis for ap-

pellant’s claims that this statement constituted an involun-

tary or incriminatory statement in violation of appellant’s

Iifth Amendment rights and was an unlawful search and

seizure in violation of the Fourth Amendment.”

‘

16 The-cases upon which appellant relies are factually distinguishable in

that the statements under consideration in those cases were given in

connection with the investigation of the accused.

; 3176

}

lla

IV.

Finally, appellant complains of the conduct of the trial

Judge, first in “refashioning * * * an indispensable element

in the formulation and proof of the indictment charges.”

In the first trial, the Govermment relied upon the “pre-

*umption of innocence” arising from the failure to file re-.

turns in pre-indictment years. This court held this ap-

proach improper, and the. trial’ judge properly called this

conclusion to the Government's attention. In following the

‘suge restion of this court (362 F. 2d at 829- 30) the district

court did not abuse its discretion.

Nor is there merit in ap llant’s contention that he was

denied a fair trial by the “infection of the record with

reference to his alleged notorious criminal background.”

As noted supra, appellant resisted the Government’s mo-

tion to withdraw its consent to a trial without jury. The

motion was denied by reason of the trial court’s s conclusion

that there was “a substantial danger that the defendant

will be severely prejudiced if he is tried before a jury” (44

F.R.D. at 463), based in large part upon the testimony

in the suppression hearing with respect to defendant’s

criminal activities. In an order entered October 14, 1968,

Judge Weinstein granted appellant’s motion to strike all

references, to appellart’s alleged background of illicit ae-

tivities, saying in part: “The Court will not base its =

cision on the defendant’s criminal background, if any.

We find no evidence that the trial court gave any weight :

the evidence of appellant’s criminal activities in arriving

at the guilty verdict. The proof was sufficient without

considering this evidenee.

Appellant also complains of the court's reference to ap-

pellant’s “demeanor and general appearance, ” in view of

3177

6.27 Le gereerratg ae

the tact that appellant did not take the stand. We agree:

with the dostret court that, “The trier’s observation of the

non-witmess Gefendant’s demeanor and general appearance

may Se—amd almost invariably is—considered by him in

evalugtime evadence introduced at the trial (citing cases).

Murees wr. Jadge Weinstein specifically stated that “* * *

“the enamel asa that defendant was guilty beyond a reason-

able dowde was reached solely on the record.”

13a

APPENDIX B

Opinion of the ‘United States District Court

(May 10, 1968, Weinstein, D. J.)

(Reported in 44 F. R. D. 461 (1968))

—>

Unirep States or America,

Plaintiff,

JosePH F', Scurpant,

; Defendant.

No. 63 CR 237.

United States District Court

KE. D. New York.

May 10, 1968.

Prosecution for income tax evasion. The United States

Supreme Court vacated judgment of conviction and re-

manded cause for new trial, 385 U. S. 372, 87 Sup. Ct.

033, WW L. Ed. 2d 428. On motion by the United States

to withdraw its consent to trial without jury, the Dis-

triet Court, Weinstein, J., held that where government

sought to prosecute income tax evasion case on same, rath-

er than upon superseding indictment and government’s

waiver of jury trial covered “the above entitled case”

rather than particular trial, waiver was not limited to first

trial but would be applicable to subsequent trial on same

indictment.

Motion denied.

. ~ * ~

Joseph P. Hoey, U. S. Atty. for Eastern District of

New York, Brooklyn, N. Y., for plaintiff; Eldon F. Haw-

ley, U. S. Department of Justice, of counsel.

Jacob P. Lefkowitz, New York City, for defendant.

MEMORANDUM AND ORDER

Wersstern, District Judge.

‘The defendant, Joseph F. Schipani, was found guilty

in this Court of five counts of income tax evasion on Oc-

tober 15, 1965. He was tried by the Court without a

jury since both the government and defendant consented

to a waiver of a jury trial. The conviction was affirmed

by the Second Cireuit (632 F. 2d 825) and thé Supreme

Court denied certiorari on November 7, 1966 (385 U. S.

934, S7-S. Ct. 293, 17 L. Ed. 2d 214). 2¢2°~—~CS

On November 30, 1966, the Solicitor General filed a sup-

plemental memorandum with the Supreme Court which

suggested that “the Court vacate its order denying cer-

tiorari, grant certiorari, vacate the judgment of the court

of appeals, and remand the cause to the district court for

a new trial, should the government seek to prosecute peti-

tioner anew.” The basis for this suggestion was the dis-

covery by attorneys in the Department of Justice that the

defendant had been a participant in a number of conver-

sations which had been electronically monitored as a re-

15a

Appendiz B

sult of a trespass. This electronic surveillance took place

during the period when much of the evidence used at

the trial was discovered. Thus, the Solicitor General was

unable, on the basis of the information then available to

him, to “say * * * that none of the evidence used by the

government at petitioner’s trial was obtained, either di-

rectly. or indirectly, from an improper source.” _

The Supreme Court, acting on this suggestion, vacated

the judgment and remanded “the cause to the district

court for a new trial, should the Government seek to pros-

ecute petitioner anew.” 385 U. S. 372, 87 S. Ct. 533, 17

L. Ed. 2d 428.

Following a detailed analysis of the hundreds of ex-

hibits and the testimony of the many witnesses relied

upon at the trial, the Government concluded that none

of the evidence it utilized was tainted. It has decided to

continue the prosecution.

Defendant moved to suppress and a full evidentiary

hearing was held before this Court. The Government

freely revealed all data available to it. It presented all

the relevant surveillance logs; the files of the Federal Bu-

reau of Investigation, the Aleohol and Tobacco Tax Divi-

sion of the Treasury Department, the Intelligence Divi-

sion of the Internal Revenue Service: and the Depart-

ment of Justice; and the testimony of the many agents

and attorneys involved in the 1961-1963 investigations of

the defendant and the 1966 review of their work by the

Department of Justice.

At the outset of the hearing the government made

known its view that the second trial, if it should be had,

should be before a jury. The defendant strongly indi-

16a >

Appendix B

cated his desire to be tried a second time without a jury.

The issue of the form of the trial has been briefed and

argued. The parties have agreed that “whatever motions

are required under 23(c) to raise the issue of the right to

a jury trial have been made.”

The Court reserves decision on the suppression motion.

The government’s motion to withdraw its consent to a

non-jury trial is denied.

Subdivision (a) of rule 23 of the Federal Rules of Crim-

inal Procedure requires the consent of the defendant, the

government and the Court to a waiver of a jury trial.

See Singer v. United States, 380 U. S. 24, 85 S. Ct. 783, .

13 L. Ed. 2d 630 (1965). The rule provides:

“Cases required to bé tried by jury shall be so tried

unless the defendant waives a jury trial in writing

with the approval of the court and the consent of

the government.”

Prior to the first trial such a jury waiver was signed

by defendant and his attorney; the United States Attor-

ney “Consented” and a District Judge of this Court “Ap-

proved.” The body. of the document they executed reads

as follows: |

“Waiver Of Trial By Jury

Criminal No. 63-CR-237

IT IS HEREBY STIPULATED, CONSENTED TO AND AGREED

by and between the defendant Joseph F. Schipani

and the. United States of America that the above-

entitled case in which.the defendant J oseph F. Schi-

pani is charged with violations of Title 26, United

States Code, Section 7201, be tried by the Court

—---” oa

. 32. fs

Ay ee ae ae

A ES 4 _—

ria d f aths AX -

a Cr ae {/

> » a4 % / \

; %: pg \

ag # \

Appendix B

without a jury; and the defendant herein, ‘Mies

advised of his right to a trial by jury in this case,

hereby waives his right 1 in open court to a trial by

jury.”

[1] The waiver covers “the above-entitled case”—*Crim-

inal No. 63-CR-237”—rather than a particular trial. The

government is seeking to prosecute this case on the same,

rather than upon a superseding, indictment and the waiv-

er, by its terms, is not limited to a single trial. It is

not unreasonable to construe it as applying to any — of

this indictment. :

The court has not been able to find any direct authority

on whether a waiver of a jury at the first trial is bind-

ing at a subsequent trial in the same criminal case. The

civil cases cited by the government are not decisive; they

appear to rest on the proposition that where the first trial ‘

was on an agreed statement of facts, the parties should _

not be precluded from introducing new evidence on the —

second trial. See, i.g., Northern Pacific Ry. Co. v. Van

Dusen Harrington Co., 34 F. 2d 786 (D. Minn. 1929) (first

trial on agreed statement); F. M. Davies & Co. v. Porter,

248 F. 397 (Sth Cir. 1918) (no discussion, merely cites

Burnham); Burnham y. North Chicago St. Ry. Co., 88

F. 627 (7th Cir. 1898) (first trial on agreed statement).

~The, form of the stipulation in these civil cases was ap-

_ parently substantially different from the one before: us.

The defendant contends that the stipulation agreed to

prior to the first trial is still in effect, while it is the

government’s position that the stipulation is limited to

the trial in which the waiver was made and thus its con-

sent must be given anew. If the case is in the posture

18a

- Appendix B

defendant suggests—and, as already noted, the form of

' the waiver supports him—then this Court has discretion

to allow the waiver to be withdrawn. See, e.g., McCranie

v. United States, 333 F. 2d 307 (Sth Cir. 1964); Orfield,

Trial By Jury in Federal Criminal Procedure, 1962 Duke

L. J. 29, 77 (£962). Ifthe government is correct then

its consent to a waiver normally would be required.

Singer v. United States, 380 U. S. 24, 85 S. Ct. 783, 13

L. Ed. 2d 630 (1965).

As the Supreme Court recently indicated in the Singer

case, however, there may be “some circumstances” in which

the government’s insistence on a jury trial would be un-

reasonable:

_ “We need not determine in this case whether there

might be some circumstances where a defendant’s

reasons for wanting to be tried by a judge alone

are so compelling that the Government’s insistence

on trial by jury would result in the denial to a de-

fendant of an impartial trial. Petitioner argues

that there might arise situations where ‘passion,

prejudice * * * public feeling’ or some other factor

may render impossible or unlikely an impartial trial

by jury. However, since petitioner gave no rea-

son for wanting to forego jury trial other than to

save time, this is not such a case, and petitioner

does not claim that it is.” 380 U. S. at 31-38, 85.

S. Ct. at 791.

Whatever view is proper, whether it is an issue re-

quiring exercise of the trial judge’s discretion or a ques-

tion of the presence of special circumstances which. ren-

der the government’s refusal to consent to a non-jury trial

19a

Appendiz B

unreasonable, this defendant is entitled to be tried by the

Court without a jury if he so desires.

[2] There is a substantial danger that the defendant

will be severely prejudiced if he is tried before a jury.

The government is trying this case on a net worth theory.

Its starting point is a 1943 statement made to prison of-

ficials by defendant upon entering prison that he had no

assets. Thus, a jury would be immediately apprised that

the defendant had a prior criminal record. There is, in

addition, the distinct possibility that a jury would link

the defendant with organized crime and weigh this against

him in determining guilt. Defendant’s entire way of life,

including his expenditures, his associates, his leisure ac-

tivities and his style, together with the lack of any indi-

cation of legitimate sources of income, reeks with the odor

of organized crime. In a net worth case where all facets

of the defendant’s financial history, including likely sources |

of income, will have to be fully explored (see Holland v.

United States, 348 U. S. 121, 75 S. Ct. 127, 99 L. Ed. -

150 (1954); United States v. Massei, 355 U. S. 595, 78

S. Ct. 495, 2 L. Ed. 2d 517 (1958) (per ecuriam)), no

disinfecting admonition by the Court and no minor ex-

clusions of evidence can prevent the jury from becoming

aware of the stench. Moreover, at the suppression hear-

ing which has just heen completed, there was testimony

to the effect that beginning in 1961 the defendant, along

with other suspected hoodlums, had been the “target” of

an intensive investigation by the Department of Justice’s

Organized Crime Division. The names of well-known mob-

sters and derogatory information were spread in the ree-

ord. The presence of numerous spectators at this week-

Jong hearing raises the possibility that such information

20a

Appendix B

will be conveyed‘ to members of a jury through conversa-

tion overheard in courtroom corridors.

The government’s motion to withdraw its consent to a

So ordered.

2la

APPENDIX C

Opinion of the United States District Co

(July 26, 1968, Weinstein, D. J.)

(Reported in 289 F. Supp. 43 (1968))

»™

Unitep SrAres or AMERICA,

3 Plaintiff,

o. :

JosePH F’,. Scu1pani,

Defendant.

No. 63 CR 237.

United States District Court

EK. D. New York.

—

July 26, 1968.

Income tax evasion prosecution, on remand from the

United States Supreme Court at 385 U. S. 372, 87 S. Ct.

933, 17 L. Ed. 2d 428. Defendant moved to suppress

evidence. The District Court, Weinstein, Jr., held that

the government had burden to prove beyond reasonable |

doubt that evidence in question had not been obtained

as result of illegal electronie surveillance, and failed to

meet that burden as.to certain evidence, but that it was

required to prove only by preponderance of evidence that

the total investigation was not substantially affected by

the illegal leads, and stistained that burden.

Motion granted in part and denied in part.