Reply Brief — McIntosh v. United States

©

joe ae . T : _ or a i io |

Court of the. Hite

= Oout, Us

be OCTOBER TERM, 1970;

7 es a

: >

CARMINE PERSICO, ur, SALVATORE ALBANESH

nae noe and RALPH SPERO, |

oe ee 2 : 3 _ Petitioners, / :

Os ; ; Sone : —_——_ .

THE : UNETED STATES or Animetoa, 2

peers .

: , .

ON ‘JOINT PETITION FOR ‘A watt OF CERTIORARI :

Peta i | 10 THE UNITED STATES couRT OF APPEALS FOR THE os

| | Be oe \SECOND CIRCUIT = ee oF

= iene — - a <== :

: " PETITIONERS’ JOINT REPLY TO BRIEF FOR Te

: _ UNITED STATES IN OPPOSITION toe

"Magus ‘Gea accae

, 250-Broadway Son

Pe eee, oe . New York N. Y. 10007 oe

Be le a rire oh AO AE “ Attorney for Petitiower =~

NER ES See Nea Carmine Persico, Jr. -

: He ~ Ronesr Kasanor-

i 62 Broadway =. -. ,

_ # New York, N. Y. 10004

hae. ® Attorney for Petitioner

+ -Salvatore Albanese = si<s

Frances THarpsvus Wouzr TL eA oe hat ee cate

Ms Broadway ~ cee Sere ete

eer York, N. Xe ‘ os

a ag : ~ Raieh a for Petitioner

aes Pee a REO. BN Pree iat SE Ek

ABRAHAM GLASSER ; Saher - aoe *o de

Of Counsel for All Petitioners | ee

52 Highth Avenue Swi) ae

- New-York, N. Y. 10014 Tee See a ae

JEROME ‘Lewis . Staten EASON Pf SSN

2 Counsel for Petitioner Le ey ONE Ee errs Cag

"Hoo Broadway ee a rie

New ork y, 10007 is

a

-

‘

~

°

-

t

.

«

* °

™

’

‘ *

.

‘

tee

. .

.

—.

«

6

.

-

.

.

a

‘

.

x ‘

.

ot

. 2

.

-

.

é .

> .

°

.

.

.

* 5

° ©

.

-

.

.

. ”

x"

: .

°

e

te

"

-*

: «

.

. .

P a

5 a ig

¢

fe ul . @

sed

¢ >

7

e

28s

gets

; __,

-

>

* . *.

t

- a

IN THE

Supreme Court nf the Hnited States

‘ October r Term, 1970»

9% a” : a

‘CARMINE PERSICO, Jk., SqvaTore, ALBANESE

‘*» and. Rate mee!

; -. Petitioners,

: a

THE U NITED Sites OF "Amentc A,

; *

| _erponeont.

a ene fe + A

ON JOINT PETITION BOR ca WwW RIT “OF CERTIORARI

TO THE v NITED stags COURT OF APPEALS FOR THE

“SECOND CIRCUIT *.,

. * - 4 iy =

? .

.

PETITIONERS’ J JOINT REPLY TO BRIEF FOR THE

ITED STATES IN _———

The following items of reply are sei necessarily in the

‘order of their _importanee ; they are in the order in which: -

“the respective items.appear in the Brief in’ Opposition.

o

a Ne cry :

se : I. :

At Br. Opp. 6 the Government oversimplifies the record

~ facts’ as to the Trial Court ’s examination of the jurors on

the Joseph Valdachi publicity. This- oversimplification is in

the Government’s sentence reading. (p. 6):

7

-- “The-trial court closely examined ind juror separ-

ately and- each—except one who was later excused—

assured the court that he could decide thie case fairly

baséd on the evidence intr oduced 1 in the C ase (T.2 296-

_ 407)." Pate ot here rey

f

ae

of our Joint Petition herein.

The Court will please contrast with the above statement of.

¢ |

the Government, our more complete (and more meaningful)

recitals on this same subject -at p. 26 (first full. paragraph)

Il.

aie a ae :

At Br. Opp. 8, fn. 6, the Government takes up our claim

‘that news reporters were aware of Valachi’s presence be-

fore the Government told defense counsel (see Joint Pet.

Cert. herein, pp. 19, 24). First, the Government invokes the

statement in the opinion below that’this claim of ours was

‘‘tenuous’’ (Br. Opp., p: 8, fn. 6).*. It is hard to see how

the facts presented ° in the’ quotation from the record on_

p.24 of our joint petition herein could be justly dispar aved

as ‘‘tenuous’’. Second, the Government is silent concerning

our recitals on p: 19 (last paragraph) of the Joint Petition

about the Gov erpment? s failure to keep its promise that it.

would: investigate anu. report back to the Trial Court as

to haw the ‘Valachi sensation had so- manifestly . leaked to

the press before defense counsel were informed. Supple-

menting. our recitals and quotations at pp..19 and 24 of the

Joint Petition, may we now call attention ‘to the fact that

the trial prosecutor’s promised ‘investigation. to find out”’

‘how. this leak occurred was promised. by him in direct re-

“-sponse to an. unchallenged statement by one of the defense

counsel (Mr. Risen Tr. 8577 ris

“My, Lewis: Your Honors may I ask-one. qnestion ?.

| hope Mr. Ww oerheide will 2 answer ° it.

' * The opinion below did use ‘the word. swine" but the Brief in;

Opposition sees fit -to intimate—quite, .incorrectly—that the Couri

below deemed this matter ‘‘most’’ “tenuous”, rather than only

“tenuous”. ria :

3

Mr. Valachi’s presence was ‘announced sometime

during the afternoon, How is it for the first time that

three defendants, including my defendant, had their

picture taken during the lunch hour?) How is. it: that

this place was loaded with reporters before the an-

nouncement-was made that Valachi was here? What

about security provisions then?

Will you explain that to the Court? Did these re-

porters’ have a erystal ball to know that you were

going to call Valachi? We didn’t know it.

Mr. Woerheide: Your Honor, we are making an

investigation to ‘find out.’?

How can it be said, ‘then—in ‘tiew of the above quotation

from the record plus-the record items cited and quoted at

pp: 19 and: 24 of our joint petition—that, again, our claim of

the reporters’ knowing about Valachi before defense counsel

were informed is ‘‘tenuous’’?. In view of Mr. Woerheide’s

apparent acknowledgment in the above quoted colloquy. that

some kind of advance alert of the press had actually oc-

curred and was something that needed to be explained or

Vavestigated, how can the Government, now argue as it does

. in the Brief in Opposition (p. 8, fn. 6) that ‘this advance

alert of the reporters had not even taken place at all. Since

the Government’s own trial prosecutor apparently recog-

nized that sich an advance alert ‘of the press had taken

place, it is wrong for the Government now before this Court

to try to disow n that acknowledgment of its own trial pros:

ecutor. - Third, the Brief In Opposition goes on to’ suggest.

(p. 8, fn. 6) that: defense counse] themselves, and not. the

prosecution, caused the net harm to the defense from the

Valachi publicity, because defense counsel pressed ‘the issue

in open court ‘With a ‘plenitude of reperters present’’.

This is extremely unfair urgument by the Government, for

it. Was this very presence of “a plenitude of reporters’ ‘

°

“4 Psa

at the trial juncture in question which Mr. Woerheide ‘him-

self acknowledged (supra) indicated an advance alert to

the reporters and called for investigation.

Ill.

At Br. Upp. 8 , fn. 6 (second eee the Quveveunanh

answers our aliases (Joint Pet. Cert, pp. 4, 17-19, 32)

that the Government improperly. led the Trial Judge to.

believe that the then United States Attorney had lent* his

local official authority to the secret summoning of Valachi.

* The Government is.jncorrect in its statement (Br. Opp. 8,

fn. 6, second paragraph): tliat ‘*The body of the aflidavit

made no ge representation but indicated quite the con-

trary (S. T. 186)’. In this very aflidavit, which bore the

ty adele initials ‘*JPH’’—the initials of Joseph P. Hoey,

the then United States Attorney—the Government, contrary

to its present contention, did not exclude from its representa-

tions to the Trial Judge that the United States Attorney

was privy to tlfis secret step or that the natural inference

from the use of his initials should not be drawn. Instead, .

the Government represented only that “personnel of the

United States Attorney’s Office’? had not been. informed.”

* The record references fomthe text of this affidavi it appear at pp.

17-18 of our Joint Petition. The pertinent portion of the text of the

affifavit appears also in the transcript, dated September. 20, 1968, p.

186. The relevant text portion of the affidavit reads (item numbered

, 62 in the Record: on Appeal) : so

To this juncture, only a few officials of the Criminal

Division, Department of Justice, the Bureau of Prisons, the

Federal Bureau of Investigation, Marshall George Ward and-

. Chief Deputy Marshall ‘Joseph Denson are informed of the

plan to produce this witness. Precautions have been taken tu

inform no other person, including personnel of the United

- , States Attorney’ s office and the office of the Clerk of the

Court.”

’

?

5

W ith the United States ims s own initials. appearing

on the affidavit, the words “‘ personnel of the United States.

Attorney’s office’’ would naturally be taken .by any intelli-

gent reader as being intended to convey that the United

States Attorney himself Knew what'was happening but that

his office ‘‘personnel’’ did not know. On p. 19 of our Joint

Petition herein we quote the. record items where the prose-

cution did later unambiguously represent to the Trial Court

_ that the U nited States Attorney had not been informed.

There Was no such unambiguous representation in the afli--

davit, and it is wrong for the Government now to try to

convince this Court to the contrary.

IV.

-

At Br. Opp. 11-13 the Government answers our contention

that certiorari’is needed to redress the over-all opressive

impact of the five-trials history-of this case as culminated in.

the fifth trial convictions here sought to be reviewed.

Nothing in the Government’s presentation on this subject

touches the crucial aspect of the final cumulative impact of

.the fifth trial itself. For example, nothing m the history of

the prior proceedings as summarized by the Government at

Br. Opp. 11-12—including the 1969 Mandamus ‘pr oceedings

—reaches this ultimate problem of the aggrieving ‘effects

or of the due process merits of the fifth trial itself in its’

relation to the entire five-trials history, In other words,

~ now is the first time that this Court has been called upon to

examine this latter inclusive question of ultimate: due pro-

cess in this'case. In our Reason no. 6 in the Joint Petition

herein (p. 384), we pointed out this decisional posture of the

case. thus far on the over-all five-trials issue; we there

referred .to pp. A33-A38 of the ae ‘to. our Joint,

' Petition. The latter portion of that ‘Appendix consists of a

part of our Joint Petition for Rehearing and Rehearing

En Bane in the Court below. For convenience, we now quote

from A37-A38 of said Appendix to the Joint Petition, where

the thus far incomplete decisional posture above refer réd to

is particularly deseribed :

‘a We urge that, to this moment, there. has not been

an adequate, indeed there has not been any appellate

ackjudication, by this Court, of the overall, combined,

cumulative impact of the history.of the five: trials,

taken all together, on the constitutional rights of the

appellants. The mandamus decision of this Court

dealt solely with Judge, Dooling’s evaluation of these

constitutional issues as confined within the frame-

work of :the narrowly limited ‘speedy trial’, issues

which -the mandamus Bench déemed were the only

issues left open by Judge Weinstein to be decided by —

Judge Dooling.*: Then, in the recent decision of this

Court dated April 15, 1970, only two points (insofar

as pertinent to the five-trials issue) were decided by

this Court, namely, (1) that Judge Weinstein had

ruled correctly on.the points presented to him. (but,

_we repeat, those points all factually pre-dated all of

the happenings in the fifth trial, before Judge Dool- °

ing), and (2) that Judge Dooling.had not erred in

‘declining to set aside the jury verdict on the basis of

the happenings in the fifth trial as such (which, we

note, wholly left out of account the inter-relationship

between the fifth trial happenings and the happenings

_ over the entire course of the prior four trials).

*“To this moment we respectfully fail to ‘tidberstaned how this

Court in the mz indamus case could read Judge W einstein’ s plenary

order in this narrowed way.

—~J

Thus, it respectfully seems to us that, in all of the

presently governing decisions affecting this matter—

this Vourt’s decision of April 14, 1970 on the merits

of the appeal from the jidgment of conviction, this’

Court’s 1969 mandamus decision, Judge Dooling’s

several adjudications, and Judge Weinstein’s pre-

fifth trial determination as to overall constitutional

aggrievement—there still abides an entirely unde--

_ctded, by this Court, element of this case, a‘ constitu- |

" tionally indispensable clement that must and has not

‘been decided, namely, whether, tested by overall due

process and by overall double jeopardy and by over-

\all cruel punishment considerations, the entirety of

these prosecutive proceedings, from the first through

the fifth trial has satisfied the constitutional tests

just mentioned. — . ar

If we are correct in our suggestion: of this glaring

decisional.gap in the present appellate posture of this

case before this Court, it does respectfully seem to us"

that rehearing is indicated.”’

ey

. At Br. Opp. 12, fh. 9, the Government answers our argu-

ment based on United States v. Sisson, 399 U.S. 267 (Joint

Pet. Cert. herein, pp. 35-37). First, the Government relies

on the fact that Judge Dooling’s proposed order of dismissal

Was never actually entered by him. The order was never

entered by Judge Dooling, however, because he’ was man- .

damused (United States v. Dooling, 406 F. 2d 192 (C.A. 2

1969), cert. denied 395 U.S. 911—printed as Appendix G

to our Joint Petition herein). Our Joint Petition herein

urges that (pp. 35-37), on the over-all record as it now

stands, this Court should now remand the case. to Judge

Dooling for a ‘Sisson’’ disposition in his discretion.

me ed 8

Second, we now respectfully further pray that; if deemed

necessary to a correct disposition of the within certiorari

petitions, the Court should: grant rehearing, out of time, of

its der ual of certiorari in the mandamus case (395 U.S. 911) ;

ef. United States v. Ohio. Power C 0., 303 US. 985 Gondeck v.

soe -lmertcan World Airways, 370 US. 918, 371 U.S. 856,.

$2 U.S. 25; Stern & Gressman, Supreme ‘Court Practice,

F ourth Edition, pp. 919-520. “We do not. know whether this

Court has power, or would in this ease exercise that power,

to grant such a late-tiled petition for rehearing. sua sponte,

ie. Without first receiving a formal motion for leave to -

file such a petition for rehearing. We aye therefore also

- filing a séparate motion for leave to file a petition for ro-

hearing i in the mandamus case, Persico v. U nited States, 395 °

US. 911, Uctober Term 1968, No. 1187.

Third, the Gov Decent argues, against our Sisson point,

that Judge Dooling’s proposed order “would not have re-

lied upon the insufficiency of the evidence, but rather on

other factors’ (Br. Opp. 12, fn. 9). Judge Dooling’s pro;

posed order is printed in the pune to our Joint Petition

herein at A44-A59. At p. 37 of our Joint Petition (first

paragraph) we suggest just how Sisson applies here, in-

cluding the resemblance. of our situation to Sisson in regard

to the Trial Judge’ s re- examination of the trial evidence.

We there call attention especially to Judge Dooling’s ex-

pressions of dissatisfaction concerning the testimony of the

witness Gehring. Gehring was important for the Govern-_

meut’s case on the literally win-or-lose evidence-sufficiency

issue of whether the hijacked truck had been located on the

.Union Street or the Nevins Street side-of the Akers Ter-

minal during the alleged pre- -hijack ‘*spotting’’ activities

of the accomplice w itness Vaccaro (Joint Pet. Cert. herein,

*

pp. 4-5, 8-10, 12-14, 37). In his proposed Order and Opinion

Judge Dooling said, ‘“‘ There is more than a disturbing doubt,

‘too that Gehring’s possibly very important testimony about

the location of the ‘straight job’ on ,the erjtical morning

was ‘not fairly presented’? (A-56 in appendix to Joint Peti-

tion herein) ; and further, ‘Gehring’s failure of Fecolleétion -

between 1964 and, 1968 impaired counsel’s opportunity to

cross-examine him in the most effective manner. The trial

related to an episode that had occurred nearly nine years

earlier, After four trials within the three year ‘period May

1961 to April 1964, the fifth trial was not commenced until

over four years after the last preceding trial commented.

Testimony, i in such a-setting js arguably a feat in recalling

| earlier testimony rather than the facts; consistency not truth

arguably -becomes the testimonial goal’’ | (id., A57-AS8).

‘Gehring’s testimony being thus undeniably important for

the Government’s ease’ on the issue of sufficiency of the evi-

- dence, and Judge Dooling having thus so gravely questioned |

the probative quality of. Gehring’ s testimony, how can the

Government now justifiably. argue that Judge Dodling’s

‘ * roposed order would not have relied upon the insufficiency |

of the evidence’? (Br. Opp. 12, fn. 9). 4 fortiori, when one

"considers the exhaustively detailed: way in-which the Court

analyzed the Trial Judge’s approach to the evidentiary prob-

“Jems in Sisson, does one not come ‘away with the strongest

possible impression that Sisson favors a ‘maximum of de”

tailed judicial ¢are in reviewing such Sisson’ type trial ree-

ords on appeal, rather than the minimum. or conclusory

15

standard suggested by the Government’s argument herein -

on this Sisson point of ours.

CONCLUSION

‘iti is nner es submitted that the. joint aes for-

certiorari should be granted. -

Respectfully submitted,

Mav. RICE EpeLbau M

Atterney for Petitioner a

Carmine Persico, Jr.

-Rosert Kasanor

Attorney for Petitioner.

Salvatore Albanese

‘Frances Tuappevs WoLFF

Attorney for Petitioner

~ Ralph Spero

ABRAHAM GLASSER

Of Counsel for all Petitioners

_ JEROME Lewis :

Of Counsel. for Peleus”

esas iad ee

\

* Incidentally, at Br. Opp. 13, fn.10, the Government says -that our

claim of insufficiency of me ie wea — “raised ‘for the first time in

the petition for Rehearing En Banc’ in -he court below. Our petition

for rehearing in the Court below was not merely for. rehearing ‘ ‘en

banc’, but “tor rehearmg and rehearing en bane’. That is, we do not

want this Céurt to ‘think that we neglected. to raise the question of. |

‘sufficiency of the evidence in the Court below until the fast-ditch stage

of a petition for rehearing en banc. This issue was fully preserved at

the stage of petition for rehearing-before the Panel of the Court below.

. See the sai to the Joint Petition for Certiorari se pp. A24-

43. ,

es

° = : ; | |

> ,

7 3 2 , . : P - . : .

. . ¢ a ) |

. . |

| ; ; . 4 ’ .

q ; | : |

: : : > / - s j - i |

| : | 5 . « = rive ‘ . .

o : : ° . ‘ = 2

. . a : | | |

. e | | |

. . ’ oe” 6 . ~” . : . 7 \ ; i

‘wot a , . r : . |

. . .

3 ‘ . P ;

- 4 i a

- /

2 : : ; ; ee “

ae ; i y ° 7 ‘

. oy ‘ F on : |

Ve : x - - o % ’ . ‘.

. = -* = ‘¢ }- . ;

. . . f : | :

.° . - rd | " - : an

. * “* - ij ! | |

Ec * . 2 : i | 7

| :; . é ' ‘ . . . . ‘

, oA 4

. a4 ‘ 2 . . ° ; ‘ : :

| : ‘ * 7 A |

. ae - 2 . Z *s f ~ :

- . ; .

; . * ¢ :

. ~ . . s : . | :

. é | } | |

” / | |

i

> . . * tad ‘ fs

\ - sag , 7

: | : ; : ‘ oe yA , . . -

| . 8

\ . | | }

- . J - ’ | .

. st! 7 |

vie 7 ; |

, f ° * °

i : > . . ~ P ae ae | ‘ |

. . te 3 ; |

. / : | |

. of | |

. . > ‘ . soe os : i - | |

| | i c . a .*

| | | | | ; x 7~ j

“. wi . : | , :

be . . : . ye a ; | |

| : | . 3 : 7 : ‘ *

. ‘ : | |

| | | . . :

. ‘ , | | )

* ° i |

° omy , . ¥ . wo * : : |

. . a ; . . F , ‘ : i

. ° 4 |

: . . * 6 ° r | |

. . - i | | | |

é ? |

. . : ; itis .

. | | o

. i ° ae” Vie! 7 : s |

| | | ; : . a

io , i |

. « 5 ,

: . . 4 : ; ‘ 7 |

* . ae . . ; | | ;

i . é ; : .e . .

. _* 5 ¢ | | |

‘ . . « é

- o : . , - - ; ; : | |

‘ rs

s ’ o ? : ?

——_ > . - . | | |

¢ : « . | | | |

. ‘ ; |

. . bad 5 . , |

. ;

. ; ; . . :

J . . ®

3 7 | ; . ‘

‘ “ ; | ;

. t . | |

.

| | . . ‘

- . F . i cd

. . é

’ “ey . : : : |

: é* . ’ s | 7 | :

. wy, 4 P [ | | | | | |

| - ® ° . ° é -

fe | | | 3 |

z ss ‘ . . - e: .

- ; |

4 . . ‘ r . |

Z

i . ; |

7 - es .

‘ ° ¥ :

| | rs . . , ad

. ° * . “ | : | :

. . ° : ‘ |

| /

. . 7 i |

- : |

. . . . ad ” ; : : ; Sa

“~ . x ; ; | | | |

* . : : ‘

« : ; ;

. %