Petition for Writ of Certiorari — Feldstein v. United States

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ODIBRARY ee.

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| “Supreme Cou rt of the U nited States:

| October Term, 1970

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i. ALFRED MELVIN FELDSTEIN, ive = eh Sl ae) ee : R.

Petitioner,

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UNITED + OF AMERICA, | 7

Responden a -

: « @ :

-” PETITION FORWRITOFCERTIORARI =. ss

TO THE UNITED STATES COURT OF APPEALS -

‘FOR THENINTH CIRCUIT: — ) | if

we

. BURTON MARKS

9720 Wilshire Boulevard —

Beverly Hills, California 90212

Telephone - (213) 278-2301

_ Attorney for Petitioner

Offset printed by: Dean-Standefer Co., 322 Main, Huntington. Beach, Ca.

: (714) 536-7161

AW’

ea

_ TOPICAL INDEX -

- Petitioner prays tor Writ of Certiorari’ ..........

ee Meas ee eee ey eae

' Jurisdiction , patente ue Se

a ° . . . .

Questions Presented’ ......:.... a

é . ss

1. . Where error of constitutional dimension

has admittedly occurred, is it constitu-

tionally permissible for a reviewing court

to construe the record “‘most favorably

to the government” (Appendix “‘A” p. 2.

in order to affirm a menial is ii STO ee

2 Was the admitted errer in the trial court

—— (instructing the jury on the “Leary” -pre-

“sumption) harmless beyond a reasonable

doubt i hd a Se eS gi wwe oi

‘é

Statutes Involved PROS Aa Sight eRe 9 ah BP Seok

Statement ot ita oo 5

Reasons for Granting Petition for Certioyari

1. . To secure uniformity of decisions and

methods of review by Circuit Courts, in

that,the court below used an-impermissible

_ Standard in its method of review, and in so |

"doing, conflicted with other Courts of- |

Appeals and with this Court’s decisions of

Chapman v. California, 386 U.S. 18, and .

| oe v.. California, 395U.S. 250 ©

a ‘To. decide new and important ‘icine

of law:

nN

aw

~ >: a : e 2

a | \

es | \ _ TOPICAL INDEX

\> Page

a. To declare that (constitutionally)

erroneous instructions to the jury °

which might have contributed to the-

verdict can Hever be considered harm-

less beyond-a reasonable doubt even

_—though. it may be permissible to construe’

the record most favorably to the govern- :

ee ee ee ny pment tg 11

and .

b. To declare what objective criteria should

be considered by a reviewing court in

order to niake a determination “beyond

a reasonable doubt” that the constitu- _

tional error did not contribute to a

verdict (where the evidence is conflict-

ing on crucial matters, it can never be

considered ‘‘overwhelming” in favor of

a verdict of conviction in the face of a

constitutional error) ..:....... eas me

Conclusion ......0.... ee eee rarer one e ae

TABLE OF AUTHORITIES CITED

‘ Cases . . ‘ . | + } %

Anderson v. Nelson, 390 U.S. 523 (1968) ren cc ee

_(see Wilson. v. Anderson)

Bollenbach v. United States, 326 U.S. 607 (1945) ee

r

Chapmea v. California, 386 US. 18 (1967) ae € :

ee ere Ol id hs yc ke a 5, 6, 7, 11, 12, 13; 14

. Fahy v.-State of Connecticut, 375 U.S.85 ...... 12

*

a o

4 °

<‘ +

9

| - TABLE OF AUTHORITIES CITED c

: 4

— “cars teant’a) ar c y Page

Gillison v. United States, 399 F.2d 586 x =

(OS. Cr 1908) «8 eee gpa 1

“Government of the Virgin Islands v. ‘Bell, . ee

392 F.2d 207 (3 Cir. 1968) ees Eee ee 10, 11

Haller+. Robbins, 409 F.2d 857 . : or oe r

(1 Cir. 1969) Serr er wer tere mbes -

; “dh ¢

Harrington v. California, 395 US. 250 (1969) .... i ey AS ae

~ Hooper v. ennane. 401 F. 2d 352. —-

48 | or ere Sear Pee 1]

Leary v. United States, 395 U.S: 6 (1969) /... i <7

Lele:+- United States, 376 F.2d 243° a Sy poe eae

(D.C. Cir..1967) eS Serer Oe ane ET ee

Pearson v. United States, 389 F.2d 684

(5 Cir. 1968) 2... Sea ae sae

Rosenthal v. Henderson, 389 F. “d 5 14 , . a

(6 Cir. 1968) | S54 Vee hea e oe eee ori eh as oa |

Street v. New York, 394 US. $76.(1969)" ee

Stromberg’v. California, 283 U.S: 359 (1931) ates “i

- United States v. Hayward, 420 F. 2d 142.

(D.C. Cir. 1969) bby a we ewe Fn ge vw a ee 15

United States v. Lookretis, 398 F. 2d 64."

\

H

(7 Cir. 1968) inc a 10

United States y. Reynolds, IGF. 2d 951.

ist 7 rae ee 16

iv

TABLE OF AUTHORITIES C CITED

" Cases ‘laa *d)

> F.2d 330 (1967)

“_ rev’d sub nom. Anderson v. Nelson,

390 US. 523 (1968). ee.

Wood v. _ Crouse, 417 F.2d 394 a: fom rae

————

,; “ 2

Statutes re ’

United States Code

Title 19

_ Sections 1459, 1464, 1484, 1485

Title eae a sear

Section 17Ga. 4... 6.0 se eee

Title 28

"Section Pee ae At oe a

———

INTHE )

SUPREME COURT OF THE UNITED STATES.

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| October tei, 197Q :

| ne sca No.”.....

“ALFRED we rnin

| Sere , es Petitioner, a

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; UNITED:STATES: OF AMERICA, so fee.

_— : wie; Respondent :

¢

| PETITION FOR WRIT OF CERTIORARI.

: TO THE UNITED STATES COURT OF APPEALS

. FOR THE NINTH CIRCUIT: .

¥

Petitioner hereby, prays fora Writ of Certiorari to review _

' a judgment of the. United States Court of Appeals for the Ninth -

Circuit which affirmed the judgment of the trial coprt as.to him.

OPINIONSBELOW st

Petitioner -was-convieted aftera jury trial; judgment was

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. . ® . . , .

entered thereon June 24, 1966. On appeal, the United .

States Court of Appeals for tHe Ninth. Circuit filed its.

decision on June 22, 1970, and a rehearing was denied

on July 37, 1976. The decision of the Ninth Circuit

Court of Appeals, together with the dissenting opinion

_ of Circuit Judge Walter Ely, is seaman to thes Petition

as Appendix “A.”

~ JURISDICTION 3

1a. ve Ee

This suit was ‘originally brought in the United States

District Court for the Southern District of California.

fe urisdiction was. based upon an indictment charging a vjo-

_Jation of a federal’ statute, Title 21, U. S. C., section 1 76a.

" - The*questions sought to be presénted hére were raised at

’ the first available instance in the courts below, including

questions raised before the Court of Appeals, and in the\

petition for rehearing filed in that court. This Court’s |

; jurisdiction i is invoked under Title 28, U.S.C., section

1245S(1).

f ; i r

QUESTIONS PRESENTED

The following questions are presented for determina-

tion by this Court: ~ = - 2m 7

FP Where error of constitutional dimension has

admittedly occurred, is it constitutionally permissible for

a reviewing court to construe the record “most favorably

to the government” eases “A” p. 2) in order to .

affirm a conviction? os ee

= Was the admitted error in the trial court epee

*

Bad

ing the jury on n the “Lee ary’ " presumption Jharmlessbe. - |

yond a reasonable > doubt i in this/ case? :

ie

STATUTE INVOLVED 3

Soctiea 176a of Title 21, United States Code, pe

vides i in pertinent part: | °** ,

ae ee oan ee kriowingly, with intent to ide: os

- fraud the United States, imports or brings into

the United States marihuana contrary tolaw, _

or smuggles or clandestinely introduces int> the a “ ‘S

United States marihuana which should have

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*

been invoiced, Or receives, conceals,.. . . or

in any manner facilitates the initia ‘{or]}

; concealmént . . . of such marihuana after

. being imported ot brought in, knowing the same

' to have been im ported or brought into the United _

States contrary to law, or whoever ae eee to

do any of the foregoing acts,. . . ” shall be

guilty of an offense’ ‘against the ib Uaiea States.

“Whenever on trial for 4 violationof this ,

subsection, the defendant is shown to have or ; its

to have had the marihuana in his pOssession,

such possession shall be deemed suffitient °,.

_ evidence to authorize conviction unless the

defendant explains his possession to the satis- |

pe of the j jury. - Tike - -

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STATEMENT OF THE CASE - :

; . es : P

Petitioner was convicted, after a jury: trial, of three

different offenses arising under 21 U.S.C. 176a. In count

1 of the indictment he and two others, Dodds and Olllen-

dorf,*were charged with aiding and abetting. a fourth person,

Rosciano, in smuggling marijuana ‘into the United States

from. Mexico. Count 2 charged petitigner, Dodds and

Ollendorf with aiding and abetting Rosciano in conceal- .

ing and facilitating the transportatign and concealment

Count 3 charged petitioner and the other

/

of the marijuana.

~ three with conspiring to bring marijuana into this country —

without presenting it for inspection « or declaring it, as

. PUS.C, sections 1459; 1461, 1484 and.1485 require, ;

: aa conspiring to conceal and facilitate the transportation |

and concealment of marijuana brought into the United

States contrary to law. - me, .

Petitioner was the only one of the four to stand trial.

The other three named defendants testified for the prose-

cution. .

In summary, conten to the prosecutor’ sopening. - ,

statement (Transcript of Record on Appeal, pages 40, ff

—hereafter Transcript page references will be: preceded by

“TR, certain pack ges of marijuana were brought into

the United States from the Tijuana, Mexico area on Jan- —

uary 7, 1966 by Rosciano, apparently i in an auto rented |

by petitioner in Los Angeles (TR 41 ). It was alleged that

petitioner had earlier paid over money for the marijuana, ~

but this payment was returned almost entirely by Ollen-

dorf (TR 42). On January 6a discussion took place in ~

the apartment occupied by petitioner and Dodds, following |

x

which Dodds and Ollendorf went to Minidso, bought the

marijuand-and turned it over to Rosciano for transporta-

tion into this country (TR 43). On January 7 Rosciano —

drove the car containing the’ marijuana across the border

near Fijuana, was stopped and arrested, the marijuana

being confiscated almost immediately. after. the eens

(TR 44).

At all times during the purchase, handling and trans-

porting of the 1 marijuana petitioner was, in Los Angeles,

more’ than 125 miles away from these activities... More-

over, at no time from the departure of the other three |

from Los Angeles to Mexico, through the purchase,

handling, transporting aid seizure ‘of the marijuana by :

customs agents were any of the three in contact with

petitioner... Pertinent facts, which illuminate the points

allegedly involving the petiticner with these activities—

the money payment, the ear rental and the discussion—

will be noted at length in ers § reasons for granting’

this petition, «| ay oe

___ REASONS FOR GRANTING

_ PETITION FOR CERTIORARI

1. To-secure uniformity of decisions and methods of

! review by Circuit Courts, in that the court below

used an impermissible standard in its method of

review, and in So doing, conflicted with other

Courts of Appeals and with this Court's decisions

of Chapman v. California, 386 U.S. 18, and Harr-

ington vy. California, 395 U.S. 250. a

a

In affirming petitioner’s conviction, the Court of

Appeals for the Ninth Circuit reviewed the record and |

stated the facts ““most favorably to the government”

(Appendix “A” p. 2). Petitioner contends that this .

method and the standard:it reflects are inconsistent

with the clear mandate of this Court as expressed i in

Chapman v. California, 386 U.S. 18 (1967), and

Harrington v. California, 395 U.S. 250 (1969).

_ After, admitting thopendix “A” p. 5) that peti-

tioner’ s “conviction must be reversed and a new trial

ordered” on the basis of constitutional error at peti-

‘tioner’s trial of the type condemned in Leary v. United

~ States, 395 U.S. 6 (1969), the court below recognized |

that the Chapman and Harrington test must be satisfied .

before petitioner’s conviction could |< upheld. In both

Chapman and Harrington this Court held that “before

a federal constitutional error can be harmless, the court

must be able to declare a belief that it was harmless .

beyond a Teasonable doubt,”’ 386 U.S. at 24, 26; 395

U.S. at 251. :

In applying this standard, this Court made it iil

that ‘constitutional error, in illegally admitting highly

prejudicial evidence or comments, casts on someone

other than the person prejudiced by it a burden to show

’ it was harmless,” 386 U.S. at 24. However, the court

below in the instant case construed the record “most

favorably to the government,” thus shifting the burden

of showing ¢hat the error was harmless from the prose-

cution, where this Court correctly has dictated it belongs,

and presuming every fact necessary to sustain the prose-

cution’s burden against the petitioner.

a 38

Petitioner respectfully contends that this method

of reviewing admitted constitutional 'error is clearly

erroneous, and that it constitutes a mistake of such pro-

portions that to sanction it would be to apprové a method

by which the Vital. Rrotections carefully erected by this -

: Court i in Chapman and Harrington could easily be a

ized.

This danger i is aptly ittustrated In petitioner’s case.

The court below did not, in its opinion, even consider the

probable impact of that testimony en the jury. -This is in.

‘marked contrast to the methd@d employed by this oe

in Chapman and Harrington. In the latter case, this Court ae

carefully reviewed the testimony against Harrington, con-

- cluded that the erroneously admitted testimony was “cumu-

lative,” and declared the error to be harmless because “the:

case against Harrington was so overwhelming . ee 395

U.S. at 254. Petitioner also calls the Court’s attention, to

Wilson vy. Anderson, 379 F.2d 330 (1 967), rev'd sub nom.

Anderson v. Nelson, 390 U.S. 523 (1968), which Circuit

J udge Ely, in dissenting from the opinion below, cites

for his cogent contention “that it is a rare. case indeed

when error of constitutional magnitude can be held,

beYond a reasonable doubt, not to have prejudicially

affected the rights of an accused” (Appendix “A” p. 9).

Petitionerrespectfully argues that this is not one

of those rare cases, that the court below, had it not con- "5

strued the record ‘“‘most favorably to the government,”

could not have found the case against petitioner so over-

- whelming as to find the admitted error harmless, as a

cursory review of the facts as seen by the court below

shows. as ;

‘

n

a

” The court states that petitioner “paid $1800 to

Ollendorf to be used by Ollendorf to buy marihuana

in México for Feldstein and Dodds” (Appendix “A” p

2). This was very much debated at the trial. Dodds’

testimony about this was impeached with a prior state-

ment made to a customs agent in New York: He told

the agent that he, not petitioner, had given Ollendorf >

not $1800 but $2800 (TR 192,193). Ollendorf, to

whom the money was allegedly given; testified that he

- received it from one Sampson, not from er (TR

177, see also TR 174).

The court below states that the. money was returned .

- to petitioner and Dodds (Appendix “A” p. 2). Ollendorf

testified that he gave the money back to Dodds, not peti-

tioner (TR 177), and even Dodds: testified. that most of

the money was his (TR 89). .:

The entire “plan” for the trip. to Mexico, from the

testimony in the record, was not as the court below

describes it. dt is clear that it was not, as set forth i in the

court’s opinion (Appendix “A” p. 2), “agreed that Ros-

ciano. . . would reeeive the marihuana. . . and bring

it.across the border .. . ” (TR.155). Dodds himself

testified that the “first alternative” was not to\have Ros-

ciano drive the car across the border but to have someone

else do it (TR 197). Furthermore, it is not even clear

_ from the record that it was Dodds’ car which was taken - .

by Dodds and Ollendorf to Mexico. Dodds had told the *

customs agent in New ¥ork that it was Ollendorf’s car

and found himself impeached with this statement (TR:

194).

The court below states that it was “undisputed that -

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Feldstein had obtained the car Rosciano used, and ny

ed it over.to him” (Appendix “A” p.. 3). However, the.

- court does not State the fact that petitioner Feldstein.

had only borrowed the car for one day, even though the

‘tftp to Mexico, as he knew, took two. Moreover, the

court omits the equally contested fact that petitioner

called the agency that loaned him the car; when it could

not be returned on time (TR 57), and that after he dis-

covered that the car had been confiscated, offered to take

full responsibility for it (TR 58).

‘In addition, it is important to note, as the court

below did not, that Dodds admitted being the initiator

of all ul smuggling plans (TR' 91, 109); that Rosciano was

} Dodds’ long-time friend (TR 152);and that Rosciano

had been made a part of the smuggling plans on the in-

vitation of Dodds (TR 98). Ollendorf. who accompanied

Dodds to Mexico, had met petitioner only a month before

the unsuccessful.attempt. to bring the marijuana across

the border (TR 173). :

Finally, andespecially significant, Dodds, Rosciano

and Ollendorf all testified. ‘against petitioner becAuse of

hopes and assurances of shorter sentences or other bene-

"fits. ‘Dodds was given a tax count in exchange for his

es testimony implicating petitioner and had not offered: ‘to

testify prior to the arranged “deal” (TR 92, 93, 94, 109,

190). Ollendorf, a heroin addict (TR.177), hoped charges

would be reduced ; against him (TR 180), and it appears ©

. was in trouble with the police before this incident. -Ollen- |

dorf may well have been working as an informer in ex-

change for his freedom (see TR 174, 176). and thus

been under ‘an obligation to implicate others. Rosciano,

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a

who had shortly before been released from prison. after

incarceration because of an-identical charge (TR 151),

‘obviously benefited as well from his cooperation in con-

victing petitioner.

Thus, if the presumption against petitioner is thrown

out for the error that it is, and if the facts are not read. ~

“most:favorably to the government,” which reading is an

i Th shifting of the prosecution’s burden, it becomes,

at best, extremely difficult to say what the jury might have

thought and, surely, impossible to conclude that the error

was harmless beyond a reasonable doubt.

The court below is in conflict,at least in principle,

. with other Courts of Appeals in its construing the record

in this case in a manner most favorable to the govesnment.

As the Court of Appeals for the Tenth Circuit noted

in Wood v. Crouse, 417 F.2d 394 (10 Cir. 1969), at 399,

’ not only has the prosecution “at the very least” failed to

shoulder its burden of showing the error harmless beyond

a reasonable doubt, but even in its “appellate brief [it] -

does not discuss or in any way refer to the harmless error

‘issue.”” \ a

In a case in the Seventh Circuit, United States v.

Lookretis, 398 F.2d 64 (7 Cir. 1968), at 65, the govern-

ment has conceded “that the ‘hargiless-constitutional

error ruJe’ promulgated in Chapman’. . . is subject toa

limitation that once a constitutional infraction has been

shown the government must prove beyond a reasonable

doubt that the error complained of did not contribute to

the verdict obtained.” |

In the Third Circuit, the court in Government of the

=e

2

Virgin™ hie: v. Bell, 392 F. 2d 207 (3 Cir. 1968), rever-

sed a conviction with the holdirig that the-fact that a

“jury may have been influenced by error was “not rebutted ;

by the government” (at 210). .

In addition, the First, Fifth, ‘Eighth, and District of

Columbia Circuit Courts of Appeals have all held that .

Chapman requires that the prosecution must prove any

ra harmless, which holdings conflict with the action

of the court below regarding the reading of the record

in petitioner's case. See: Haller v- ‘Robbins, 409 F.2d

857 (1 Cir. 1969) at 860: Pearson y. United States, 389

F.2d 684 (S Cit. 1968) at 688; Hooper v.“Swenson, 401

F.2d 352 (8 Cin_1968) at 356; Gillison v. United States,

399 F.2d. 586 (D.C: Cir. 1968) at 588; Lollar v. United

States, 376 F.2d 243 (D.C. Cir. 1967) at 247.

Petitioner respectfully urges that the court below —

is not only in conflict with, but, by the weight of auth-_

ority of the eight | Cases just cited on this point distinctly

in error concerning, the applicable standard the harmless

error test of. — and Harrington requires.

2. To decide new and ee questions of law:

*& To declare that (constitutionally erroneous |

_ ‘instructions to the j jury which might have ’

| contributed to the verdict can riever be con-

sidered harmless beyond a reasonable doubt

even though it may be permissible to construe

the record most on to the government;

. and

b. To declare-what objective criteria should be

—12-— —

considered by a reviewing court in order to-

make a determination “beyond a reasonable

doubt” that the constitutional error did not

- contribute to a verdict (where the evidence

is conflicting on crucial matters, it can never

‘s . be considered “overwhelming” in favor of a

verdict of or in the face of a consti-

tutional error). ~ |

te

— if the court below can be-said to have Jegiti-

mately reviewed the record despite its admitted bias for.

.the government’s version of what transpired, petitioner

; contends that the record in tiiis case cannot support a

- finding of harmless error. In this regard petitioner is

compelled to — this Court’s eis a in Chapman,

at + sad

“There is ay if any, difference shia our

statement in Fahy v. State of Connecticut

[375 U.S. 85] about ‘whether there is a

reasonable possibility that the evidence ‘com-

plained-of might have contributed to the con- -

| viction’ and requiring the beneficiary of a con-

stitutional error to prove beyond a reasonable

doubt that the error complained of did not

contribyte to the verdict obtained. We, there-

fore, do no mae than, adhere to the meaning

of our Fahy case \when. we hold,ag, we now do,

that before a federal constitutional error can be

held harmless, the court must be able to declare’

a belief that it was harmless beyond a reason-

c

—§ 3...

able doubt. ” (Emphasis added. )

The court below, using its facts, found the error in

this case to be harmless because (Appendix “A” pp.6& 7):

“The jury could not have found. possession if

‘it did not believe the testimoriy showing that

Feldstein supplied the money and the car, pur-

suant to the plan, and for the purpose of, Carry-

ing it out, and thus, although: he never | ft Los

Angeles, was in sufficient control of the man-

-euvering of the three other conspirators, and

particularly of Rosciano: to have constructive

+ possession. This same evidence, if believed, as

"it must have been for the j jury to convict, also

’ . shows knowledge and intent or Feldstein’s part

that the marihuana ‘would be acquired in Mexico,

would be smuggled into'the United States, and

would then be concealed and transported i in the

United States.” \ , |

This statement first assumes that the jury was entirely

rational and logical i in its deliberations, despite the erroneous

and confusing instructions, and, second, -that the court below

_ has determined Precisely what went on in the minds of each

of the twelve jurors. It réquires two such assumptions to

view the circumstances of this Case as not presenting a’

“reasonable possibility” that the error here. ‘Was prejudicial.

F urther, these assumptions are made despite’ “how little

is impirically known about the workings of a jury” (J ustice

Harlan, dissenting i in Chapman, at 56) and despite the

requirement that it is the prosecution’s burden: to prove |

what the court assumes. This Court’ S-words in. Bollenbach

y. United States, 326- U. S. 607 (1945), at 614, are especial

‘3 +

4g.

ly apbropriate on this Soint:

“In view of the Government’ S insistence. that

there is abundant evidence to indicate that

Bollenbach was implicated in the criminal

enterprise from the beginning, it may not be —

‘amiss to remind that the question is not

whether guilt may be spelt out of a record,

but whether guilt has been found by a jury -

according to the procedure and standards

appropriate for criminal trials in.the federal _

.

i

{

| courts.”

It is manifest that in petitioner’s case such stand-

_ards and procedures have not been satisfied.- Indeed, the

rationale of the court below is surprisingly akin to that

used in Wilson v. Anderson, 379 F.2d 33 (9th Cir. 1967).

This Court, in reversing Anderson v. Nélson, 390 U.S.

523 (1967), at 525, noted that the fact that the defendant

in that case “did not flee the country could be viewed as

casting doubt on the prosecution’ s case,” perhaps on (an

adverse witness’s) veracity. Petitioner’s case reveals many

. facts which a jury, unburdened by an unconstitutional .

presumption, could view as “casting doubt on the prose- oy

cution’s case.” As noted above, all the adverse witnesses -

were motivated, ‘by failure to prosecute or prosecution

on lesser charges, to testify against petitioner; their testi-

mony was contradictory in key respects; and petitioner

did not attempt to hide his connection with the car used

to smuggle the contraband. These are merely the principle

facts which cast doubt on the prosecution’ S case. Compare

further the evidence against the defendants in Chapman,

at 54-55. Compare also the rejection of a test which looks

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only to ‘ ‘sufficient evidehice too conyict-without a which

is challenged,” jn Rosenthal v. Henderson, 389 a 2d 514

‘(6th Cit. 1968), at 516.\ 7

. Petitioner stresses that the. jury in his.case could have -

believed some of what the prosecution witnesses said:

without believing it all. Yet, because of the instruction

under 21 U.S.C. 176a, and the.constructive Possession

instruction, the j jury could have. convicted petitioner solely

because he unwittingly —though admittedly — —supplied the

car used to smuggle the marijuana. It is important to note

that the’ prosecution i in both Opening and final argument to

. . the jury touched upon petitioner’s responsibility for the car

(TR 259, 291). Petitioner emphasizes that the only matter

‘to be resolved by the jury was his knowledge and intent. He

| : did not deny that he rented the car or that Rosciano attempt- |

ed to use the car to smuggle Marijuana into the United

States. The erroneous instruction dealt with just this

element of the case, and the prosecution, as the court ;

below admits, relied entirely on this instruction. Compare

the attitude toward erroneous instructions demonstrated

in United States v. Hayward, 420 F.2d 142 (D.C.-Cir. 1969) ©

at 145, and Stump v. Bennett, 398 F.2d 111 (8th Cir. 1968)

at 122. )

Finally, petitioner oelate out that:

“Tt has long’ been settled that when a case issub

mitted to the j jury on alternative theories the

_unconstitutionality ofany of the theories requires .

‘that the conviction be set aside. See, e.g...

Stromberg v. California, 283 U.S. 359 (1931).”

_ Leary v. United States, supra, 395 U.S. 6

(1969) at 31-32. (Emphasis added.)

oe

* This rule of law has been reaffirmed in Street v, New York, —

' 394 U.S. 576 (1969). It must be stressed that the only

theory upon‘which petitioner’s case was presented to the

jury was unconstitutional, ‘Compare the approach of the

~ , court below with United States pv, ae 416 F.2d

951 (7th Cir. 1969).

“e .

CONCLUSION.

For the reasons above set forth, a Writ of Certiorari

should issue to review (and reverse) the judgment and

opinion of the Court of Appeals.

ce aif

Respectfully submitted,

BURTON MARKS, ESQ.

Attorney for Petitioner

YEN,

)

. , ‘ : °

4% °

el .

; °

~

_ APPENDIX “A”.

\ | “ : | ‘

OPINION OF THE COURT BELOW -

Before: BARNES, DUNIWAY and ELY,

‘APPENDIX“A”. 0) .

© + PINION OF THE COURT BELOW

In the United States. Court of ea aares for the Ninth

Circuit. sie

_ ALFRED MELVIN FELDSTEIN, Appellant, vs.

UNITED STATES OF AMERICA, Appellee.

No. 22,344. © aes

FILED June 22, 1970. ~ p

peor tree the United States Court for the Southern.

District of California.

Circuit Judges.

, DUNIWAY, Circuit Judge:

In a jury trial, Feldstein was found guilty of three differ-

ent offenses, ‘each arising under 21 U.S.C. §!76a. In count 1 .

of the indictment, he, Dodds and Oliendorf, were charged

with aiding and abetting one Rosciano in smuggling marihuana

into the United States from Mexico. In count 2, he and the

. Same two persons were charged with aiding and abetting Ros-

ciano in concealing and facilitating the transportation and

concealment of the same quantity of marihuana, which had

been imported into the United States contrary to law. In

count 3, Feldstein, Rosciano, Dodds and Ollendorf were .

charged with conspiring to import and bring marihuana into

the United States without presenting it for inspection or

entering and declaring it, as required by 19 U.S.C. .§ §1459,

1461, 1484 and 1485, and to conceal and facilitate the con-

cealment and transportation of marihuana brought into the

United _— contrary to law. Feldstein was sentenced to ten

<<.

Appendix “A” ~ . a ——

years on each count, all three sentences being concurrent, and

toa fine of $10, 000 on each of counts | and 2, a total of

$20, 000. The assignments of error affect all three counts.

‘Feldstein was tried alone; thé other thre named defend-

ants testified for the F wseubeen Stated most favorably to_

the government, the facts, as shown in their tes}imony, are

these: Feldstein and Dodds shared an apartment in Los.

Angeles in December, 1964 and January, 1965. In Decem-

ber, while Dodds was away, Feldstein paid $1800 to Ollen-

dorf to be used by Ollendorf to buy marihuana in Mexico

for Feldstein and Dodds. Dodds did not trust Ollendorf.

On about J anuary | or 2, 1965, after Dodds had returned

and learned what Feldstein had done, these three men met

at the Los Angeles apartment. Ollendorf returned $1250

__ of the money to Feldstein and Dodds. At another meeting,

“it was agreed that Dodds and Ollendorf would proceed to

Mexico on January 6, in Dodds’ car, and buy marihuana

froma source.in Mexico known to Ollendorf. It was also

agreed that Rosciano would meet them in Tijuana, Mexico,

“and would receive the marihuana from them and bring it

across the border and back to Feldstein in Los Angeles in a

different car, furnished by Feldstein. Feldstein, usinga

false name, obtained a car from a car-rental agency in

Angeles, and turned it over to Rosciano. The planwas’

carried out. Dodds and Ollendorf drove, in Dodds’ car, to

“Mexico, brought the marihuana, and put it in the trunk of

that car. Rosciano drove to Mexico in the car furnished by

Feldstein. The three men met at the appointed place, in

Tijuana, drove out of town to a secluded spot, removed the

marihuana from Dodds’ car, and concealed it in the rented

car. Rosciano, driving that car, proceeded to the border.

Appendix “A” - + :

Dodds and Ollendorf did not accémpany. him. When Rosciano-

drove: across the border into‘the United States in,the fented |

car, he was stopped at the United States Customs Station, the

Car was searched, and the marihuana was found concealed in it.

» It is undisputed that Rosciano did smuggle the marihuana

into fhe United States and conceal and transport it after if

was brought into the United States. It is. also undisputed that

Feldstein had obtained the car that Rosciano used, and Te

it over to him. If the testimony of Dodds, Oliendorf and

Rosciano is believed,’ ‘it is also clear that Feldstein, Dodds and

Ollendorf aided and abetted Rosciano in committing these

offenses,-and that all four men conspired to commit them.

The same evidence, if believed, demonstrates beyond perad-

venture thatFeldstein had the necessary knowledge and intent

that ‘the marihuana was to be imported into the United States

from Mexico and was to be transported and concealed i in this

country. On the other hand, if these witnesses’ testimony i is

not believed, the government had no case against Feldstein.

In its instructions, the court told the jury that it must

find specific intent on the part of Feldstein, that a necessary

element of the offense charged in count 1 was that Feldstein

‘knowingly caused the importation of the Marihuana, thata _

necessary element of the offense charged’in count 2 was that

Feldstein knew that the marihuana had been imported into

the United States contrary to law, and that as to count 3, a

necessary element was.that Feldstein knew that the marihuana

was to be brought into the United States contrary to law.

Furthermore, in defining aiding and abetting, the court told

the jury that it must find that Feldstein personally had know-

ledge of the fact that the marihuana had been illegally import-

ed.

Appendix “A” - ° ~4-

a eli

1. ~The presumption in §176a.

If ever there was a case in which the so-called presump-

“ tion contained in section 176a was not needed by the govern-

ment to obtain a’ conviction, this is that case. Nevertheless,

for reasons that escape us; government counsel requested, and

the court gave, elaborate instructions regarding the presump-

tion and defining possession. Feldstein’ s counsel objected,

albeit not too forcefully, his principal ground being that there

‘was no possession by Feldstein. _

In its instructions about the presumption, the, \court first

_ read to the jury the pertinent language of section. 76a, It

then proceeded to embroider on that language. It defined

constructive possession as knowingly having the power and

the intent to exercise dominion and control, either directly

or through another person, and.stated that if the jury found

that Feldstein had constructive possession, that would bring

him within the word “possession” as used in the statutory

‘presumption. It then said that the statute makes it unnec-

- essary for the government to offer any evidence in support of

the charge as to the defendant’s knowledge, if it shows that

_ the defendant was in constructive or actual possession of the

marihuana. It continued by saying that if Possession was

established, it became incumbent upon the defendant to go

forward with the evidence.and show that he came inte pos-

session of the marihuana legally. It further said that to rebut

the presumption the defendant must show by satisfactory proof

that the possession did not involve a violation of the statute,

either because the substance’ was not imported contrary to .

law or because he nad no knowledge of unlawful importation,

and that if possession is shown, the explanation offered must

not only be believed by the jury, but must be one that shows —

Appendix “A” ae .

that the possession was lawful under the statute. “Such explan-— ,

ation serves no purpose if it shows guilty knowledge by the ©

defendant offering such explanation.” .

‘ In Leary y. United Statés, 1969, 395 U.S. 6, the fiaisiias

Court struck down the section 176a presumption insofar as it |

relates to the knowledge of the defendant that the marihuana

was illegally imported. In Scott v: United States, 9 Cir., 1970,

pon, Bae (No. 23,119, March 6, 1970) we held that this ©

aspect of the Leary decision is fully retroactive. Under these

circumstances, Feldstein’s conviction must be reversed and

a new trial ordered, unless we can say, beyond a reasonable

doubt, that the. giving of the instructions as to. the presump-

tion was harmless. Chapman v. California, 1967, 386 U.S. 18;

: Harrington v. California, 1969, 395 U. S. 250. As we have

previously indicated, the government quite unnecessarily

risked a reversal by asking for instructions based upon the

presumption in a case in which its own evidence directly shows

’ the necessary knowledge and intent. Not only that; but the

instructions proposed and given go beyond the presumption

as written in the Statute, and, if the presumption were valid,

might still amount to prejudicial error. See, e.g., United

States v. Christion, 9 Cir., 1970, ..... F.2d ..... ,» (No. 24,373,

May 14, 1970); Chavez v. United Pane, 9 Cir., 1965, 343

F.2d 85, 89; United States v. Llanes, 2 Cir., 1967, 374 F.2d *

712, 71 5- 16. However, Feldstein’ s counsel did not specifical-

ly object to these instructions as misstating the law as it was

- embodied in section 176a. His objection was general, and

based on his contention that Feldstein did not have possession

« at all. :

Strange to say, government counsel, in arguing to the jury,

did not urge that the government’s evidence directly showed

i ames a ye —

the required knowledge and intent on the part of Feldstein.

As to this —- of the case, - relied entirely upon ~~

possession. The major part of his argument was a summari-

zation of the testimony of the government’s witnesses and

an argument as to why the jury should believe them. Similar- .

ly, defense counsel did not argue that if the witnesses were

believed the government still had not proved either the nec- -

essary knowledge and intent or constructive possession, or

that possession had been explained. He devoted himself to an

‘attack on the credibility of the government’s witnesses. As

3 the case was presented.to the j jury by counsel, the real i issue

was the. credibility of the government’ Ss witnesses, not the ©

legal consequences of their testimony if it was believed. —

In spite of the emphasis unnecessarily placed upon the

Presumption, we are convinced that the giving of these in-

structions, and counsel’s argument were, in this particular.

case,harmless beyond a reasonable doubt. The only. basis

“upon which-the jury could have convicted was by believing the

- etestimony of the three government witnesses as to the agree-

‘ment that was 'reached at Feldstein’s apartment, and as'to

what was done to carry it out. ‘The jury could not have

found possession if it did not believe the testimony showing

that Feldstein supplied the money and the car, pursuant to”

the plan, and for the purpose of carrying it out, and thus,

‘« although he never left Los Angeles, was in sufficient tontrol

of the maneuvering of the three other conspirators, and par-

ticularly of Rosciano, to have constructive possession. This

same evidence, if believed, as it must have been for the

jury to convict, also shows knowledge and intent on Feld-

stein’s part that the marihuana would be acquired in Mexico,

—_—,

‘ . * Meas ‘ . :

; Appendix “A oe —7- v

sii be smuggled into the United States, and neal then °

be concealed and transported i in the United States. Thus -

the jury’s finding of possession is: necessarily based upon

the identical testimony which’ unequivocally shows the

requisite knowledge and intent, and so indicates to us that

the result would have meee Seenty the same had the pre-

sumption instructions not ‘been given or discussed, and that

the error was harmless beyonda reasonable doubt.

2. Other claimed errors. j :

‘ a. Aiding and abetting an unconvicted principal;

| conspiring with unconvicted co-conspirators.

Feldstein argues that he should not have been convict-

. ed of aiding and abetting where the alleged principal, Ros-

* clano, was never tried. This is not the law. All that the prose-

cution need prove is that the offense has been committed.

It is not even necessary that the identity of the principal be

established, much less that he be convicted. See United

States v. Provenzano, 3 Cir., 1964, 334. F.2d 678, 691;

’ Hendrix vy. United States, 5 Cir., 1964, 327 F.2d 971, 975,

and the many cases there cited. Similarly, in the conspiracy

charge, one can be convicted even though the indictment

against all the other < conspirators has been dismissed. Such iy

conspirators need not even by charged. Ng. Pui Yu v. United

States, 9 Cir., 1965, 352 F.2d 626, 633.

b. ‘ Statements to undercover agent. rae

Feldstein objects to the admission of the testimony of -

- Bachrach, a government agent who talked to him while Pos-.

ing as.a marihuana buyer. This was after Rosciano’ S arrest,

-but before Feldstein had been either charged or arrested.

There was substantial evidence that the investigation had not

even focused on Feldstein when Bachrach talked to him.

“Appendix “A” - 8+

Although the conversation took place on January 28, 1965,

three weeks after Rosciano was caught at the border, Bach-

- rach testified that he knew nothing of that arrest, and had

approached Feldstein for other reasons. The purpose of the

meeting was to arrange a purchase of marijuana, _ oy

It is asserted that Bachrach should have warned Feld- _

: stein before talking to him. Reliance i$ on Miranda v. Ariz-~

ona, 1966, 3&4 U.S. 436. The trial. began in May of 1966,

$0 that Miranda would not apply even if Feldstein had been -_

in custody. Nor does Escobedo v, Illinois, 1964, 378 U. os

478 apply; F eldsteirl was not in custody.

One cannot be an effective undercover agent if he must

give warnings which inevitably disclose his identity. As ‘we

have several times held, a defendant is not entitled to an

" attorney while committing. or arranging to commit a crime.

Nor is he, in those circumstances, enntled to warnings. See

Garrett v. United States, 9 Cir., 1967, 382 F.2d 768, 772;

Battaglia v. United States, 9 Cir., 1965, 349 F.2d 556, 559;

"Grier v. United States, 9 Cir., 1965, 345 F.2d 523, 524.

Cf. Lewis v. United States, 1966, 385 U.S. 206, 210; Hoffa ‘

vy. United States, 1966, 385 U.S. 293, 303. |

No other point raised merits discussion. -

Affirmed.

me 2 «

_Feldstein-v. United States - No. 22, 344 -

ELY, Circuit Judge (Dissenting):“

. I respectfully dissent. The majority holds that an error

of constitutional dimension was, under Chapman v. California,

385 U.S. 18, 17 L.Ed.2d 705, 87 Sup.Ct. 824 (1967), harmless _

beyond a reasonable doubt. It does this while, at the same

Appendix “A” = ol

time, forthrightly observing that the prosecution’s appeal for -

conviction, in summation, was predicated, almost wholly, ©

upon the proposition that the j Jury should apply the unconsti-

tutional presumption. Feldstein never had actual possession of |

‘the: iS AR and I cannot believe that he was not prejudicial-

ly affected by the erroneous instruction and the prosecution’s

| argument thereof. We learned, in Wilson v. Anderson, 379

F.2d 330 (9th Cir. 1967), rev ‘d sub nom. Anderson vy. Nelson,

390 U. S. 523, 20 L.Ed.2d 81, 88 Sup. Ct. 1133 (1968), that

‘it is a rare case indeed when error of « constitutional magnitude

can be held, beyond reasonable doubt, not to have Prejudicial-

ly affected the rights of an accused.

Moreover, my examination of the instructions given to

the jury in this casé leads me to believe that the majority’s °.

conclusion’ cannot be reconciled with our court’s recent

opinion: in United States v. Christion, . F.2d :.... (9th Cir.

May 14, 1970). See also United States pv. ee Bios F.2d. .

se (9th Cir. May 12,1970). *

ee would reverse. *.

ec

™ .

STATE OF CALIFORNIA: ) ee “

ic. ) ss.

- County‘of Orange ae

: 5 fi the undersigned, say: I am and was at/all times herein mentioned, a citizen of

the United States and employed in the County of Orange, State of California,

over the age of eighteen years and fot a party to the within action or proceed-

ing; that ! oe

My business address is 322 Main Street, Huntington’ Beach, California 92648,

that on AUGUST OFTY 0, I served the within PETITION FOR WRIT OF

CERTIORARI (FELDSTEIN v. UNITED STATES OF AMERICA) on the

following named parties by depositing three copies thereof, enclosed in a sealed

envelope with postage thereon fully prepaid, in the United States Post Office

in the City of Huntington Beach, a addressed to said patties at the

addresses as follows:

UNITED STATES ATTORNEY

FOR THE CENTRAL DISTRICT OF CALIFORNIA

12TH FLOOR

U. S. COURTHOUSE ~ .

LOS ANGELES, CALIFORNIA 90012 . cs

SOLICITOR GENERAL OF THE UNITED STATES

WASHINGTON, D. C.

\. I declare under penalty of perjury that the foregoing is true and.correct.

_ Executed on AUGUST altiszo, at HUNTINGTON BE GF,

Vs Od

D. A. Standefer

/

Original copy fwded to Clerk, United States Supreme Court, via us .

Air Mail Special Delivery Registered - w/return receipt requested.

40 copies fwded to Clerk, United States Supreme Court, via -

Air Parcel Post

Dean- Standefer Co., 322 Main Street, Huntington seo Ca.

(714) 536-7161