Petition for Writ of Certiorari — Daly v. Daly

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Pi - ‘THE: |

“Supreme Court of the ied Stites

. OCTOBER. TERM, 1970 — e ie

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"KARL MU LL ER, PR ANK KISSE Li,

. and IL: \R ay STUB. Le Kk,

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. ‘Petitioners, °

against—

THE STATE OF NEW YORK,

Es ade Re ss

—~ ———_~

PETITION FOR'A WRIT OF CERTIORARI TO THE .

SUPREME COURT OF THE STATE OF NEW. YORK,

APPELLATE. DIVISION, FIRST ‘DEPARTMENT.

/ ac

InvinGc XNOLIK

SLU eae aABR auam-H, Brovsey> and ~

. i AROLD KXRIEGER. .

malin ys for Petitions rs.

* 229 Broadway. .

“New York, NOY. 10007

ee cre (212) °732-1322

‘Of Counsel f. ay es

Irnvinc Anosuf, | | .

Apratam H. Bropsxy,

Krrecer, Cuovasn & Poirray

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1 dong ee oe Wee ee | Aa gp

- Opinion Below a dees Nal bles Deaesnn bs sent Pe "

_Surtsdietion “6 es news Messeesegecees tebe, MBM E's

Le ee Ee a ee ee et a ee ee

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“Gayton ae | Staiutory Provi isions Involved . weg we Sh

* Statement’ of the Case.. pate EEO | oe ne ome) Ses

. Borst: L_The District Ktortey adigiitted: that exten- Si hah sas

sive electronic surveillance took place i in connéction’ —_ san

~ With thy investigation of the petitioners. Further- = a ga wet one

__ more, it was eqnceded that much information about: - |

_ the petitioners. was thus learned. : No ‘éourt orders Saal yeh,

. were ‘introdueed, nor were Any of the tapes them- >... : ote

_ selves introduced into. évidenées his violatedNhe bs oe ae

- petitioners’-rights under the Fourth, Fifth,. Sixth eet a At:

_-- and Fourteenth | Amendments, Bs’ well as’ “ander ng eat get eg

_ Port IIL—The fietitioners hereit were cof sted of ts a

‘similar statutes and constitutional Provisioris in > aes

_ the State of New York . ea sae mee ee ae ea, BS

7 ee 367 a pet ‘

Pyst 1I—Inordinate pretrial publicity permieated the /

pre-trial atmosphere in ‘this case and, if! was efror, : ie? Sms"

as a matter of law; reachingconstitutional di en- irae

sions for the tr ual court to have denied a comtapdia alice. | Pare

violating Section 850. of the ‘New York Penal Law. ore

. The only evidesiee, however; admissible against them. ~ .. <,

established a violation of Section 380( 2) of the'Penal . ft ae ;

Liaw and. accordingly, the’ ‘colviction, "resting upon no’ ar ;

comipetent, evidence, is s"uncomsty tiitional eee ey de a Qe

Cox CLUSION Sheek 0+ ooh, wheel. ne at Sea il. :

APPENDIX A—Certificate Denying Leave | - ne t ore 2” :

APPENDIX B evel che Pisnineswa Benatar naeys ees oi, 13

Aprenpix C—Order ..... eT A ot Wise Oe aN Aa

) : ii - ft :

. STATUTES 7 j : :

(foes PAGE

* BUSC. See. NE SO Peron ip 2

St UBC. Bee, G06, 50h og. oe cis. eeaeees ,~ 3, 6,7

N ew York Penal Law: eat ss

'. .Seetion. 380(2) Seay. ere ee See Stake pee 2,3, 9, 10°

Section 850°: .... erre ere Tere eer eerere, fee oe.

Sections 738, (40 eee f PORTS Orr eee abe ©

New York Code of Chisaiaiad Procedure:

Section : cath PEE TE. SPOT Oe Ee eee eee ee 3

Ss tnrnconrap Batch. EOC PEE De eee Rae 3

Section 399°. ..:.:... LPI MUO ee Pee 3, 10

- : . ’ af 2. i

Revised New York Penal Law: . ee

Section 250.00 ..... Ka CAS aL bition hate wenn ee a

Section 250.05. . PGE toh a aCe i as

U.S S. Constitytion~ ao re

ee ee ee |

is ticle Pautth . Paes SNe chao etal sia ewes 2,3, passim

Artele Fifth ~...... aes eke Fis ga kas rr eteeere 3, ai

Artetle. Sixth | ere er re tee ree re Ter meee 2, 3, passin

Article Fourtecinth . ea camte aueees ered 2, 3, passim.

| ; <i

New York State Cox: STITUTION |

Article 1, Section 12 re onesies views Se shes 3

\ . : Bi

: | ae 9 hii, ;

n |

ae eR | 7 TApLE or. Cases .. (oe

er rae MA PAGE

‘Chapman v. C-lifornia, 380 U, S. 18... Ree feet, Se

Estes. Tegs, 381 U. $.532..... ene POC er eR) 9 .:

* Garner v. Louisiana, 368 U.S. 157 (1961) eee | Sage

. Irvin ¥. Dowd, 366 U. S. Ly aaa ek cite ame Me epee 9

Johnson& ‘Florida, 391 ee 28a 11

Lee v. Florida, 392. U. S. 378 Ree eR AES Ca Olas URL 6, 7,8

Mancusi v. DeForte, 392 U.S: MOP iksesssvinds cai, - 6.

: oN ardone v. United States, 308 U.S. 388 ........ ‘ ei - 6,7 zoe 3

Nick v. United’ States, 122 F, <2d 660 (8th Cir. 1941) . 10 mG fe

- People v. Dioguardi, 8 N.Y. 24 260'......... Se ey =

People v. Feld, 262 App. Div. 909 ............. wees 10

, Ridéaw v. Louisiana, 373 U. 8. 723 “tt Py epee pee 9

Y | Sheppard v. Maxwell, 384 UG. B88 fe... De ;

Thompson v. Louisville, 362 US. 199, 80. ALR. 2d say.

a: eens ee A ey u

” United States v. Black, O. oy ‘591- 63, “650. 63, D. C.

December 18, 1967, page .0 Nee eee ree ee ee ee 6,7

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IN: THE

* Supreme Court ot ‘the Huited States

Coney Term, 1970 es ae

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.. Karu Mutter, Frank Kisser, and Harry STuBAcK,

“ea 7 | -’ Petitioners,

+ | THe Strate or New Yor, . . aoe oe

, ‘Respondent!

‘ 17 sa j ° o 4

PETIGON FOR A WRIT OF CERTIORARI. ro THE “

SUPREME COURT OF THE STATE OF NEW YORK,

“A APPELLATE. DIVISION, FIRST DEPARTMENT.

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-

Petitionérs, Kart) Muller, Frank Kissel, pe Harty Stu-

back, respectfully pray that this, Court: issue a Writ’ of,

, Certiorari to the New York Supreme Court, Appellate Divi i:

: sion, First Depa partment, to review.its affirmants ofa judg-

-—* ment of the Néw. York Supreme Court, County of New York,” °

WwW hieh conv ieted each: ‘defendant of the crimes of. extortion,

attempted | extortion,. and | conspiracy, | after “trial . before

a Gellitioff, J., and a. jury. Concurrent. sentences were’ im-

pone for the various crimes ‘SO: tHat m effect Petitioner,

te

—————~. .

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PS

. ‘

. Muller, is serving three and a half to seven years imprison-

ment ; Petitioner, Kissel, is to be inearcerated for seven

"and a half to fifteen . Years, while Petitioner, Stuback, will

have to serve five to ten years.

- Opinion Below

There Was no opinion rendered by the New York Supreme

Court, Appellate Division, First’ Department.

durisdiction

The jurisdiction of this Court is invoked - under ‘Title 28

United States ( ‘ode; See. 1253. The Court of Appe: ils of the

State of New York denied leave to : ‘ppeal on May 5, 1970 and

denied reargument on June 22, 1970. (See Appendices A and

B). The order of the Appellate Division is at’Appendix C.

Questions Presented

| t. Whether. the Petitioners were denied their constitutional

‘rights under the Fourth, Fifth, Sixth-and Fourteenth Amend-

ments by virtue of the’ employment of wiret apping arid ¢aves-

dropping 1 in connection with the investigation leading up to

the indictment herein?

2. Whether inordinant ‘pre-trial “publicity violated the

Petitioners’ : constitutional rights under the Fourteenth

‘ Amendment. to a fair trial? - | :

4. Whether Petitioners. jasieed a fair trial ‘under. the

Fourteenth Amendment 1 in view of the fact that there was in-

- sufficient evidence as a matter of law to warrant a coiiviction

for extortion under its definitionypursuant to the New York

statutes (compare sections 380 (2) and 850, N.Y. Penal Law) ?

s ’

—

°

id e

Constitutional and Statutory. Provisions Involved

The Fourth, Fifth,. Sixth and Fourteenth Arendments of

the, United States Constitution are herein involved. .

In addition, Beclions 605:and 501 of the FE edoralet ommuni-

cation Act are also involved: (47 U.S.C. See, 605, 501).

Article - 1, Section 12 of the New York’ Constitution and

Section 813(a) and Section 249 of ‘the NewYork Code of

Criminal Procedure, as well as Sections 738, 740 of the New

York Penal Law and Sections 250.00, and 250.05 of the Re-

‘vised New York Penal Law are, also germane.

Statement of the Case

The prosecution relied solely upon the crime of *‘extortion”’

under Sections 850 of the Penal Law, since as a matter .of

due process of law and as a matter of New York evidence, io

conviction ‘could’ be ‘predicated upon the companion statute,

namely Section 380(2) of the Penal Law. involving bribery.

The witnesses who testified. against the Petitioners herein

would all have been accomplices as a matter of law and thus

“no conviction could be obtained as a result of their uncorrob-.

orated testimony. (Section 399 of the Code of Crimina#Pro-

cedure). Only bribery, not extortion, was proved.

The District Attorney frankly conceded that extensive elec-

tronic surveillance was conducted in connection with the in-

vestigation of the Petitioners herein. .At no time was any

Court Order introduced authorizing such surveillance. Some

of this electr onic surveillarice was of the trespassory eaves-

- dropping type, that is, “bugs”? o ' listening devices were

placed in the premises being used by the Petitioners for the

conducting of their normal business.

_ The Petitioners herein were the president, secretary and

Vice-president, respectively, of Local 174 of the Amalgamated

Meat Cutters Butchers Workmen of North America.

It was alleged that in connection with negotiations: seck-

ing to arrive ata contract in 1964, the Petitioners ‘ *ex-

torted’’ $60,000.00 from the victims, namely, about fifteen

or so of about 45 meat packers With whom the contract was

being negotiated.’

/

The labor committee of the Meat Trade Institute was

negotiating this contraet.

One of the essential elements of finding a conviction

under Section 850 of the New York Penal Law is that

payment must be ’‘induced by a wrongful use of fore e or

; pear’: ‘,

Every single ‘witness who ieuaa that. money had been

paid to the defendants herein, confirmed fhat: none «f this

money had been turned over until after a contract with

the union had already been approved and ratified by the

union itself by a vote of approximately 4,000 to 6.

Thus, it is urged that as_a matter of law there could not

have been-any “force or fear”’ used in connection with the

payment of this money since the alleged threat was. that

no contract would ever be approved unless and until the

$60, 000.00 was paid.

It was ‘undisputed that Petitioner, Frank Kissel, at one

point said with respect fo the alleged $60,00.00, “You can

Shove it up your ass’’. ( sini

-* Numerals in parenthesis refer to pages of the appendix. used

in the’ Court below unless otherwise indicated.

S

+

A perusal of the record will indicate that the money was

apparently paid, at least in part, but that it was given asa

““bribe’’ and not under the force or fear necessary to make

z

at “extortion”?

POINT I

v

The District Attorney admitted that extensive elec-

tronic surveillance took place in connection with the ©

investigation of the petitioners. Furthermore, it was .

conceded that much information about the petitioners

was thus learned. No court orders were introduced, nor

_.were any of the tapes themselves introduced into evi- -

’ dence. This violated the petitioners’ rights under the

Fourth, Fifth, Sixth and. Fourteenth Amendments, as

well as under similar statutes and constitutional provi- |

sions | in the. State of, New York.

uring the tr ial: the assistant District Attorney in charge

O} “nly admitted (A895) =

‘‘The eavesdropping was extensive anit took place

over some period of time over many locations, which.

I would like to list for the record, and although it

was productive in some other areas, it had nothing

‘~ to do with this indictment.”’ as

At another point the District Attorney admitted :,. ae

“Mr. Scopetta: That’s right; Judge, ves unques-

_ tionably. The. officers I would say undoubtedly made

use ofthese wiretaps to keep track of defendants.

They heard it, they may have been there, but I’m |

saying no observations were made of these defend-

ants that affect this case. ig

It was the sccndtas of the District Attorney that since: *

none of the tapes themselves were introduced into evidence.

that therefore there was no prejudice to the Petitioners.

“L

s

Bir} B64. -The petitions have standing.

This, of ‘course, completely overlooked the doctrine of

‘“‘frilits of the poisonous tree’’ (Nardone v. United States,

308 U.S. 338). : :

In Lee vy. Florida, 392 U.S. 378, the Supreme Court of the

United States indicated that only by prohibiting tthe use .

of the ey idence directly and indirectly, could respect be —

obtained for the statutes of the United States. The elee- |

tronic surveillance in this -case uriquestionably Was In Vi0-

lation of Sections 605 and 501 of title 47 of the United

States Code. In other words, it‘ constituted a federal crime.

It should be further noted that the mere revelation of the

fact that electroiiic surveillance, namely wiretapping, took

‘place is sufficient to invoke the penalties of that statute.

‘The disclosure of -the existence of electronic surveillance

through. wiretapping constitutes a violation: of the statute.

“Motions had been made to dismiss. the indictment pased

upon this, but-of ‘course e they. were denied.

On the issue of ‘*standing’’, see Mancusi.v. DeForte, 392

It should be: noted that it is the ‘‘possibility’’ of preju-

dice that controls and not actually a demonstration that

unequivecal pr ejudice was wrought by the electronic sur-_

veillance. (See Chapman vy. California, 386 U.S. 18, 24).

Chapman is important from the standpoint of recognizing

that the District Attorney admitted that electronic surveil-

lance. of a’substantial nature occurred and that it enabled

the police authorities to keep track of the defendants. The

gratuitous statement by the assistant District Attorney that

the observations did not affect ‘‘this case’? are not con- .

clusive. The Court should have granted the motion to dis-

miss the indictment. For example, the testimony of Special .

Agent Pennypacker of the F.B.L. in United States v. Black,

G6.

~

herein:

- C.R. Nos. 551- 63, 650-65, D. C. ee 18, 1967, tr anscript a

page 610, reveals the following which is very significant

ge

ss, Sear during the course: of the investig ration pital

send a lead out te an office and make reference to

thie fact previously it had been determined from:

several sources. One of thg, sources would be micro-

phone surveillanee; that a given named individual

had been associated with Mr. Black, because this

was my. area of, investigation ¢ .. Consequently, the,

course of my information ... would be from several

sources including microphone surveillance and. it

would become commingled with other infornation.

c My purpose sending leads out in the first place -

—°* would be to, identify individuals which I liave .no-

identity ‘for or. I wanted to get additional back:

cround ...s8o it would be a situation w here I would

be anxious and interested.”’

In addition, there is no getting around. the fact that the

activities of. the law enforcement agencies constittited wa

clear and unequivocal violation of a federal bora namely,

title 47 U.S.C. Sections 605 and 501; sei We bidet 392

U; S. 378.

te Wacdas vy. United States. 308 US. 358, the Court.

made it clear that not only \ was direct evidence of electronic

Senin to be suppressed, but ‘‘fruit of the. poisonous

trée’’ doctrine also required that all indirect evidence ob-

tained must also be barred. Thus in the Nardone ‘ase, the

Court explained: |

by Fea “To forbid the direct use of methods . Anak, to put

no eurb on their full indirect use woukd only invite

the very methods deemed ‘inconsistent with ethical -

. standards and destruetiv e of personal liberty Pike

e

all

The argument is further bolstered by the opinion: in the’

js Lee case where the Court further held: :

%

‘*But: the ‘decision we reached today. is hot. hased ¥

upon language ang doctrinal sy mmetry’ alone. It is

buttressed as well by the ‘imperative of judicial

_—— Elkins v. United States, 364 U.S. 206, 222

. Under our Constitution, no’ Court, State of fed-

ae may serve as an accomplice in the wilful tranis-

gression of the ‘laws of the United States’, laws by

which ‘the Judges in every State (are) bound. ries

It is therefore quite manifest that the only way that the

Court could have enforced these mandates was’ by _pre-

venting the prosecution alfogether, that‘is; to have elimin-.

ated itself as an accomplice in the commission of the federal” *

erime which had ‘undoubtedly been perpetrated by. the a

enforcement authorities.

This Court should now grant cavtioredi and reverse the

‘judgment in order to enforce the doctrine explained above.

POiNT I

Inordinate pretrial publicity permeated the pre-trial

atmesphere in this case and it-was error, as a matter of

law, reaching constitutional dimensions for the trial .

court to have denied a continuance.

Prior to trial; there had been sub: tantial publicity which,

it is submitted, precluded a fair trial. This publicity dealt

not-only. with the generic subject of the meat industry, but

specifically ref orrell to fraudulent ard criminal practices in- -

volving at least one or more of the witnesses who were

>. later to testify at this very trial.

> oe be

In addition to that fact, the C ourt ‘also. was.shown anum- .

ber of the articles. and was~asked to grant a continuance

in order to ameliorate and attentuate the virulence of this

publicity. (The Yecords of the State Court confirm the

fact). pee er

The casés are legion that such a trial atmosphere pre-

’ eludes fair and impartial consideration) of the facts’ by a

trial jury... a

!

On a number of occasions, ik Courts have held that the

only Sensible and proper procedure to even attempt to

reduce the damaging consequences of -this publicity, - to.

adjourn. the _— until things have “simmered down’?. A’

continuance w as’ denied. . : / ‘

See Sheppard ¥. Maxwell, 384 U. S. 333

» Irvin v. Dowd, 366 U, S. 717; |

Estes v. Texds,-381 U. S. 532; and

Rideau v. Louisiana, 373 U. S: 725.

Wew ould ask this Court to also review this aspect of the

cGasé as raising a Federal Constitutional question. -

Under the cireumstances, it is submitted that a fair trial

was impossible. | |

POINT ie

- The petitioners herein were “convicted of violating

Section 850 of the New York Penal Law. The only-evi-

dence, however, admissible against them established -

a violation of Section 380(2) of the Penal Law and ac- ©

cordingly, the conviction, resting upon no competent

evidence, is unconstitutional. :

The petitioners herein were charged with the violation

of New York statute forbidding extortion, namely, Section —

\

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7 2

* - /

v4

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~

850 of the Penal Law. In order to convict them of. this _

> ~erime;-the District Attorney was required to establish that

; ’ the money alleged to have been paid herein, was paid under ~

~ the compulsion of ‘‘force or fear’’. This, it is’ submitted, .

Bos the District Attorney was unable to do sinc ®t | is undisputed.

‘that the alleged “force or fear’’ employed herein was that

no contract betw een management and the Uni#h would be

- approved by. the Union until the money was actually, paid.

‘The Union itself,, approv ed the agreement by. a vote of.

about 4 1000 to 6 on June 9, 1964. .

It was: s only a after the approval of the contract by this over-

whelming majority of the Union, that any money whatso-

ever was paid to the petitioners by the management com-

mittee or any of the members thereof.

The District Attorney may have proved that a “bribery

ywas committed under Section 380(2), but in the case of

-bribery, the ‘‘victims”’’ are accomplices as a matter ‘of law’

and therefore, pursuant: to Section 399. of the Code of Crim- \

inal Procedure, no conviction would be possible’ herein,

since there was no independent corroborating evidence’ to

2 “satisfy the mandates of Section 399. of the Code of Criminal _

Procedure. (See People v. Fetd, 262 App. Div. 909; People

ie Dioguardi, 8 N.Y. 2d 260; Nick v. United States, 122 F. 2d

‘

660, 671 (8th Cir. 1941)).

The District Attorney admittedly used substantial eee.

\. tronic surv eillance in this case but could. ‘not introduce. this

Yor eorroborative purposes since it obviously would have

constituted the commission of a Federal crime to have done -

so. (Lee v. Florida, supra:).

Accordingly, the’ District Attorney asseeentlp decided to

prosecute on the theory of extortion (Section 850 of the

e

;

» ie

Penal Law),- since the victim of an extortion is not an

“accomplice”. The facts howeyer, do wot support this

theory because no‘:payment could have been made. under the

force or fear that no contract would be approved’’, since

‘no payments were made until after the Union had already

: approved the contract.

The convictions therefore violated due process. of law

under the Fourteenth Amendment because they are of in-

sufficient factual foundation. (Garner v. Louisiana, 368 U.S.

157 (1961) ; Thompson v. Louisville, 362 U.S: 199, 80 A. L. R.

2d 1355; Johnson v. Florida, 391 U.S. 596. :

CONCLUSION

- The petition for cértiorari should be granted.

Respectfully submitted:

* Irvine ANOLIK,

| Aunanam ‘H. Brovsky, and ~

i - Harotp Krigcer ;

oo a Attorneys for Petitioners

Of Counsel ae i

Irvine ANOLIK,

ABRAHAM H. Bropsky,

Krrecer, Cuopasi & Pot. ITAN

APPENDIX A

Certificate Denying Leave

ag STATE OF NEW YORK

gery 54 Court or APPEALS) pe ee

—

Before: . - + ; : ‘ . ad Fs

- . | Hon. Aprian. P. ae ron

ae " Associate Judge.

.

_

“Tre Brorie OF THE STATE OF New Yoni,

L : us against —

Kari- Mv LLER, FRANK Kise and, Harry Stusack, |

Defendants-Appellants.

I, ADRIAN P. tua Associate Judge of the Court of ‘Ap-

. peals of the State of New York, do hereby certify that, upon

application timely made by the above named appellant for a

. _ certificate pursuant to $520 of the Code of Criminal Proce-

dure, and upon the record and proceedings herein, there is no

_ question of law presented which ought to be reviewed by the

_ Court of Appeals and permission to appeal is hereby denied.

Dated at New York City, New York

May 5th, 1970 . .

: Aprianx P: Burke

Associate Judge

Respondents, — |

eee oo aes

S° ee : Fee”

Tet APPENDIX B.

STATE OF NEW YORK 3

‘Court or APPEALS

Ee ai June 22, 1970.

Irving Anolik, Esq.,_ : . eee ee 8 . a

225 Broadway, er eee 7 oe on 6 «

New York, N. Y. 10007 .

Dear Mr. Anolik:

Re: People y. Carl Muller, | :

‘Henry Stuback and Frank an

Kissel ~ > | ae

.

a

L hereby deiiy your application for reargument and recon-

' sideration of your applicdtion for leave to appeal i in the above

entitled matter. I considered your argument that the case. in-

- yolved-a federal constitution question. ~

em Very truly yours, =~ -*

- Appian P. Bc RKE .

3 : - Associate Judge ts:

is \ A:

14

APPENDIX C _

Order

At i a tefm of. the Appellate Divi ision of

the Supreme Court held” in and for

the First Judicial Department i in the’

County of New York, on the 24th day

. of March, 1970.

Present: " ‘

| How. SAMUEL W. Eacen,,

¥ . . ae; Justice Presiding.

. Hon. ae is J. Capozzout,

Hon. Owen McGivern,

. Hon. Emiuo NUNEZ,

ae ) 7 ae Ny Justices.

THE Puorts » OF THE eee OF Niw York,

| Respondent,

—against— .

‘Kari Mutter, Frank Kisse1, and Hanky Srusacg,

Defendant-Appellant.

An appeal having been taken. to this Court by the de-

fendant-appellant from the judgment of the Supreme Court,

New York County rendered on April 16, 1969, convicting

him of conspiracy as a Felony [Pena] Law §§ 580-a and 850], ~

Extortion (9 counts) [Penal Law § 850] and,Attempted Ex-

tortion (2 counts) [Penal ‘Law $§ 2 and 850], and said

appeal. having been argued by Mr. Irving Anolik, and

Arnold Stream, of counsel for the appellants, and by Mr.

Peter F. Schwindt, of counsel for the respondent; and due

deliberation having been had thereon,

It is unanimously ordered and adjudged that the judgment :

so appealed from be and the same is hereby, in all things,

seemed.

ENTER:

. Clerk.

, a

PREM ECOL Ti I entice 1)

| I | i | SeP 5 TO |

“as * IN THE E. ROBERT SEAVER: CLERK

Sug rye Court nf the United States -

- October Term, 1970

No. 510. 7

/ CARL, MULLER, PRANK KISSEL and

“ILARRY STUBACK,

‘ . Petitioners,

against :

THE STATE OF NEW YORK, a

; Respondent.

MEMORANDUM IN. OPPOSITION TO PETITION

- FOR A WRIT OF CERTIORARI

aa -

. . Frank S. Hocas

eee District Attorney

New York County

ulftorney for Respondent

155 Leonard -Street

New York, New York 10015, h:

(212) RE 2-7300

~ Micuarn R. Juviner

Perer PF. Scuwinxpr — .

‘Assistant District Attorneys _

Of Counsel ne

\

2)

2

‘

TABLE OF CONTENTS

Statement

mi ; a eee |

Introduction ns '

riyy. er. : ryy m \ . ra

Phe Mvidence at‘Trial :

The People’s Cage

The butchers union serves its demiwd for a

new contract and the defend ants refuse to

extend the old contract pending the out-

conte of negotiations :

The defendanté demand 60,000 or there will

he no contract, the packe rs: protest, and a

‘*tough”’ agreement’ is Cone ‘uded

‘Fearing intolerable business CONSEGUCHECS,

the packer ~ pay the defendants

PAGE

to

7.

~e

Defendants ‘Kissel and Muller attempt tos

“persuade their vietims not to testify

Point I—The ‘evidence at trial established the peti-

tioners’? guilt of conspiracy, extortion, and at-

, tempted extortion under the law of New York be-

youd a reasonable doubt

Point [Despite the prosecution's complete pre-trial

disclosure ef ¢leetronie surveiliimee, the. fecord is

devoid of any showing that this activity was not

authorized by a legal court order or’ that it

‘tated’? the evidence at trial

YZ -

Point HE Petitionses were not deprived of a fair

trial bee: ase of pre-tr iat publicity

Conelusion — ;

——

Oo

$1

TABLE OF AUTHORITIES

Cases:

New York:

. pas.

People v. Diognardi,s NY 2d 260

Federal:

Alderman v. United States, 394 U.S. 165

%..% ry = “, . ‘ x . 7s

Catlanan v. Cited States, 223-F.2d 171

Sheppard v. Maxwelly 384 US, 333

Statutes:

New York Penal Law:

Section 2

Section 480-a

Section S50,

’

PAGE *

21,22

a.

-

‘ ¢

.

-

IN THE

Supe rarity Court uf the United States:

+ . Qétober Term, 1970 .

No. 510 }

| F

ae oF Mes LLER, Fran iisset. aich Harry STUBACK,

_ Petitioners

eee “<

(Pure Stare or New Yorn,

me Respandent.

s

*.

oe ee es

MEMORANDUM IN @PPOSITION TO PETITION

' FOR A WRIT. OF ee

Statement

, .

Petitioners Muller, Kissel and Stuback are seeking a

Writ of certiorastito the New York Supreme Court,. Appely .

late Division, First Department, which unanimously anid

Without opinion afitrined, by order of Mareh 24, 1970. Jude-

- ments of the Supreme Court of the State of New York,

County of New York [Greut INoFF, J, and a jury], rendered

April 16; 1969, convieting each of them, after trial, ‘ot

(CONSPIRACY AS A FELONY [Penal Law ‘$480-a cand S50], Kx- °:

ToRTION (9 counts) | Penal Law SOO] and Arremprep: Ey-

TORTION (2 counts) [Penal Law Scand SOO]. Karl Muller

Was sentenecd to iwe lve concurrent State Prison terms of:

not. less than three nor. more than six years, and Frank

Kissel to’ three State Prison-terms. of not less’ than’ three

and one-half. nor more than seven years and nine terms

of not less than sever cand ong: halt nor more than fifteen

years, all Sentences lo run-concurrently. Harry Stuback

received three State Prison terms of three and one-half to

SEVEN. years and nine terms of live to ten years, all-to- be

served cone urrently, .

The Court of Appeals of the State of Sy Tork, per

Bu RKE, J., denied petitioners” motions for leave to, appeal

on May 0, 1970, stating ‘there ‘issno question of law pre-

— =_— ought to. be reviewed by the Court of Ap-

peals, *

Introduction |

In late April 1964, the pork producers of New York

City, some 30 to 40 i In number, we readyised. by’ Local 174,

Amalgamated Meat Cutters and Batchers Union, which

ee their production . employees, ‘of labor’s de-

mands fora new collective bargaining agreement ‘to be-

come Pee at the expiration of the old contract in mid-

" June. Shortly, having : already warned the packe Is, that a:

new agreément had to be reac hed by June 15th, the .de-

fendants, officers oF the local, de manded $60,000 for them-

selves or there would be ne contract at all. When no.

amount of protest availed, the-me anbers of the Labor N€go-

tinting ( ommittee of the Meat Trade Institute, which rep-"

resented .the produce rs, agreed. T her after, following ae-

. \ . ie

ceptance by both skles of a contraet which all agteed was

a major unio victory » but before formal signing, Various.

packers turned over Yo each of the defendants? varying

. Sums of: smioney totaling \i in excess of $44,000.

.

AXecordingly, in 1967—the defendants had bee ne suceess-

. ful enough to kee ‘p their victims quiet for a long while

the defendants were indicte d by a New York County Grand

‘Jury foi? the crinies of conspifacy to extort (Count 1) and

extortion (C ‘ounts. #e14),. the separate extortion . counts

charging the doftatickants With separate and distinct extor-

tions from Be different firms and their officers. Tried be--

. fore Mr. Justice GeLiiXorr and a-jury in the date winter

of 1969, the defendants were found’ guilty as’ charged un:

_Mer counts 1-3, 5-7 and 9-12) and. guilty of attempted. ex-

~ tortion under counts + and 8; counts 13 and 14 were not *

sent to the | jury. ;

| THE EVIDENCE AT TRIAL

a . - The People’s Case

The butchers union serves its Peete for a new

contract and the defendants refuse to extend the old

—— pending the outcome of negotiations.

Pe

On Fune. 15, 1964 three-year collective bargaining agree-

ments between the Amalgamated Meat Cutters. and Butch-

ers U nion, Local 174, and numerous pork pierce located -

in New ‘Youk ( ity Were to expire (Levy 231-2; Katz 415;

Prunz 619-20;-White 42-5). Accordingly, the union pre-

sented its notice of dem: ands te the employers and ou April

“* Numbers: preceded e names in parentheses-are pile ss aie TWISC

‘indicated, references to page numbers pregxed by the letter A" of

the rece record on appeal. gh