Petition for Writ of Certiorari — Littman v. United States

Supreme Court brief1971

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ILE

| JOHN F. DAVIS, CLERK

| SUPREME CouRT, u. 5.

Petitioner

SIDNEY A. LITTMAN,

UNITED STATES OF AMERICA,

Cases Comm

Bruton v. United States, 391 U.S. 123 (1968) wwe 2, 8,9,

18, 14, 16, 18

Osborn v. United States, 385 U.S. 323 2,21

Pointer v. Tease, 380 U.S. 400, 13 L. Bd. 24 823, 8

8. Ot. 1065 13

Douglas v. Alabeme, 380 U.S. 415, 13 L. Bd. 24 984,

85 . Ct. 1074 B

PAGE

Roberte v. s 1921, 20

L. Bd. A 1110 13

Wheat v. Weshifigton, 202 U. $52 ..... 1

Wade v. Yeager, Werden, 382 U.. GBI oo... cen 14

Grosso . United States, (1968) 300 U.S. 62, 88 8. Ct.

3 708, 19 I. Bd. 2d 906 — 14

Dette States v. Jones, 382 U.. 208, 88 8. Ct. 2050,

20 L. Bd. 2d 1104 14

9 (1068) . 1S

Join Grafton Grey . United Stetee, 007 Fan n U.S.

Sth Cir. (1968) , 15

United States v. Lyon, 307 F.2d 505 (1968) ................ 15

United States v. Kelly, 300 F.2d G82 (1968) ................ 15

Calloway v. United States, 300 F.2d 1006, C. A. D. C.

(1968) 15

Townsend v. Henderson, 405 F.2d 324 (6th Cir. 1968) 16

Serio v. United States, 661 F.24 989 (CA—Dist. of

Col. 1968) 16

Atwell v. United States, 8 F.2d 507 (CA Sth Cir.

1968 ) 16

Krulewitch v. United States, a eer ee

700, 69 8. Ct. 716 16

Fiewick v. United States, —

r 67 8. Ct. 224 16

Deli Paoli v. mne Sinton, 200 28 0, 16

United States v. Grunewald, 233 F.2d 556, 574 ............. 17

Shepard v. United States, 290 U.8. 96, 104, 78 L. Ed.

196, 201, 84 8. Ct. 22 17

0 iu

E. G. Blumenthal v. United States, 332 U.8. 580, 888,

500, 82 I. Bd. 164, 169, 68 &. Ce. 48 ...

Daley v. United States, 231 n 123, 125 ........

:Olmetead v. United Stetes, 277 U.. 488, sss

Nardone v. United States, 302 U.8. 379

Benanti v. United States, 355 U. 06

Mepp v. Ohio, 367 U.. 643

Kate v. United States, 1967, 389 U. 347, 88 . Ct.

507, 10 L. Bd. G6

Wong Sun v. United States, 371 U.S. i, 485, 83

8. Ct. 407, 416, 89 L. Bd. N 441

Berger v. State of New York, 388 U.S. 41, 51, 87 8. Ct.

1873 at 1879, 18 L. Bd. 2d 1000

Silverman v. United States, 365 U. 8. 505, 81 8. Ct. 678,

5 L. Bd. 2d 736 -

United States v. White, 405 F.2d 838 (Tth Cir. 1969)

3s 8 * & SESESS”

SrarutTas Cn

Title 18, United States Code:

§ 371

§ 1341

§ 1343 .

§ 1952 :

— —

„ „ „ 0

. rex

AvuTwourss c

Broeder, ‘The University of Chicago Jury Project, 38

Neb. L. Rev. 144, 153-755. (1958) .. 7 16

8 Wigmore, n. 3, Section 2272, P. 416 17

K Morgan, Some Problems of Proof under the Angio-

American System of Litigation 105 (1956) ............. 17

Meltser, Involuntary Confessions: The Allocation of

Responsibility Between Judge and Jury, 21 U. Chi.

L. Rev. 317, 328 (1064) 17

| “Hilt

12 ü

Ober Term, 1069

Sn A. Lua,

Status oF

Writ OF

OOO

SECOND

Littman

a judgment

Second

fodgment

— Siew

hi iliac a ial aaa

below are reprinted herein (Appendix B, infra).

The judgment of the Court of Appeals is dated and was

entered on January 21, 1970. The Jurisdiction of the Court

is invoked under and conferred by 28 U.S. C. § 1254 (1),

and Rule 22 (2) of the Rules of the Supreme Court of the

United States.

Questions Presented

1. Whether the powerfully incriminating extra-judicial

statement of a co-defendant, who stood accused side-by-side -

with petitioner, and which was deliberately: spread before

the jury at the joint trial, abrogates petitioner's rights

under the Sixth Amendment, in accordance with the rule

expressed in Bruton v. United States, 391 U.S. 123 (1968)?

2. Whether petitioner was denied his Fourth Amend-

ment rights by the admission into evidence of a tape re-

cording without authorization in accordance with decision

rendered in Osborn v. United States, 385 U.S. 323?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment (IV)

Unreasonable searches and seizures,—The right of the

people to be secure in their persons, houses, pdpers, and

effects, against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and particu-

larly describing the place to be searched, and the persons

or things to be seized.

Amendment (VI)

Rights of the accused.—Iin all criminal prosecutions,

the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district where-

in the crime shall have been committed, which district shall

have been previously ascertained by law, and to be in-

formed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor, and

to have the Assistance of Counsel for his defense.

Statutes Involved

18 U.S. C. Section 2. Principals.—

(n) Whoever commits an offense against the United

States, or aids, abets, counsels, commands, induces, or pro-

cures its commission, is a principal.

(b) Whoever causes an act to be done, which if directly

performed by him would be an offense against the United

States, is also a principal and punishable as such. June

25, 1948, C. 645, Section 1, 62 Stat. 684.

18 U.S. C. Section 371. Conspiracy to commit offense or

to defraud United States.—

If two or more persons conspire either to commit any

offense against the United States, or to defraud the United

States, or any agency thereof in any manner or for any

purpose, and one or more of such persons do uny act to

effect the object of the conspiracy, each shall be fined not

more than $10,000 or „ not more than flve years,

or both.

If, however, the offense, the commission of which is the

object of the conspiracy, is a misdemeanor only, the punish-

ment for such conspiracy shall not exceed the maximum

punishment provided for such misdemeanor. June 25, 1948,

e. 645, Section 1, 62 Stat. 701.

—

18 U.S. C. Section 1341. Fraud and swindle.—

Whoever, having devised or intending to devise any

scheme or artifice to defraud. or for obtaining money or

property by means of false or fraudulent pretenses, repre-

sentations, or promises, or to sell, dispose of, loan, ex-

change, alter, give away, distribute, supply, or furnish or

procure for unlawful use any counterfeit or spurious coin,

obligation, security, or other article, or anything repre

sented to be or intimated or held out to be such counter-

feit or spurious article, for the purpose of executing such

scheme or artifice or attempting so to do, places in any

post office or authorized depository for mail matter, any

matter or thing whatever to be sent or delivered by the

Post Office Department, or takes or receives therefrom, any

such matter or thing, or knowingly causes to be delivered

by mail according to the direction thereof, or at the place

at which it is delivered by the person to whom it is ad-

dressed, any such matter or thing, shal! be fined not more

than $1,000. or imprisoned not more than five years, or

both. June 25, 1948, c. 645, Section 1, 62 Stat. 763; May

24, 1949, e. 139, Section 34, 63 Stat. 94.

18 U.S. C. Section 1343. Fraud by wire, radio or television.—

Whoever, having devised or intending to devise any

scheme or artifice to defraud, or for obtaining money or

property by means of false or fraudulent pretenses, repre-

sentations or promises, transmits or causes to be trans-

mitted by means of wire, radio or television communica-

tion in interstate or foreign commerce, any writings, signs,

signals, pictures or sounds for the purpose of executing

such scheme or artifice, shall be fined not more than $1,000

or imprisonment not more than five years, or both. July

16, 1952, e. 879, Section 18 (a), 66 Stat. 722; July 11,

1956, c. 561, 70 Stat. 523.

18 U.S.C. Section 1952. Interstate and foreign travel or

transportation in aid of racke-

teering enterprises.— :

(a) Whoever travels in interstate or foreign commerce

or uses any facility in interstate or foreign commerce, in-

cluding the mail, with intent to—

(1) distribute the proceeds of any unlawful activity; or

(2) commit any crime of violence to further any un-

lawful activity; or

(3) otherwise promote, manage, establish, carry on, or

facilitate the promotion, management, establishment, or

carrying on, of any unlawful activity, and thereafter per-

forms or attempts to perform any of the acts specified in

subparagraphs (1), (2), and (3), shall be fined not more

than $10,000 or imprisoned for not more than five years,

or both.

(b) As used in this section “unlawful activity” means

(1) any business enterprise involving gambling, liquor or

which the Federal excise tax has not been paid, narcotics,

or prostitution offenses in violation of the laws of the

State in which they are committed or of the United States,

or (2) extortion, bribery or arson in violation of the laws

of the State in which committed or of the United States.

volving liquor or narcotics shall be conducted under the

supervision of the Secretary of the Treasury. Sept. 13,

1961, P. L. 87-228, Section 1, (a), 75 Stat. 498; July 7,

1965, P. L. 89-68, 79 Stat. 212.

18 U.S.C. Section 3237. Offenses begun in one district and

completed in another.—

Except ax otherwise expressly provided by enactment

of Congress, any offense against the United States begun

in one district and completed in another, or committed in

more than one district, may be inquired of and prosecuted

in any district in which such offense was. begun, continued,

or completed. (i

Any offense involving the use of the mails, or trans-

portation in interstate or foreign commerce is a continuing

Offense and, except as otherwise expressly provided by

enactment of Congress, may be inquired of and prosecuted

in any district from, through, or into which such commerce

or mail matter moves. June 25, 1948, c. 645, Section 1,

62 Stat. 826.

Teal Law of the State of New York. \,

Section 155.40—Grand larceny in the first degree.—

A person is guilty of grand larceny in the first degree

when he steals property and when the property, regardless

of its nature and value, is obtained by extortion committed

by instilling in the victim a fear that the actor or other

person will (a) cause physical injury to some person in

the future, or (b) cause damage to property, or (e) use or

abuse his position as a public servant by engaging in con-

duct within or related to his official duties, or by failing

or refusing to perform an official duty, in such manner as

to affect some person adversely.

Statement of the Case

The Indictment.

Petitioner and six others were charged with mail fraud,

wire fraud, the use of interstate facilities to promote the

crime of extortion and conspiracy so to do in nine couſita,

alleging a scheme to procure gain through false pretences

and fraudulent representations.

The conviction and sentence

Petitioner was convicted on all nine counts and was

sentenced to six months’ imprisonment on the conspiracy

count and a suspended sentence and three years probation

on the remaining eight counts (substantive) of the in-

dictment. |

The evidence.

The scheme to defraud began with a representation that

the conspirators could obtain for the victims, lucretive

Cadillac automobile agencies. To obtain the agencies, the

victims were required to deposit over a million dollars with

petitioner which monies were to be used immediately for

the purpose of obtaining the agencies. Certain so-called

“escrow agreements”, which were in reality guarantees of

payment, only, for return of the monies deposited, in the

event the agencies were not obtained, were given by peti-

tioner to the complainants. Thereafter, the complainants-

victims were enticed into a gambling game with an “eccen-

tric millionaire’, whereby they incurred substantial gambl-

ing losses and then were threatened with bodily harm in

the event they did not make their losses good. Petitioner

then, in turn, was prevailed upon to release the securities

he held, in the first instance in exchange for general re-

leases from one group of complainants and then in ex-

change for a forged, worthless certified check in respect

to the other group of victims.

The conspiracy presupposes an agreement which was

not proven against petitioner. The acts attributed to peti-

tioner could have been and were in actuality, only those of

an attorney and not of a participant in the scheme to de-

fraud.

The fact that petitioner did do things, while acting as

an attorney, which parallel other actions and..because this

caused everything to fall into line, when viewed at a later

date does not complete the proof of his having been a part of

the conspiracy. Mere acquaintance with some of the mem-

bers of the conspiracy does not make petitioner a member

of the conspiracy.

There was no evidence that petitioner participated in

any manner in the overt acts appended to the count of con-

spiracy nor that he participated in the violations set forth

in the other eight substantive counts. °

The basis upon which the jury was swayed in reaching

their verdict of conviction of this petitioner are:

When the Trial Court erred in first admitting testimony

of the complainant-witness, George Desser, to which ob-

jection was made, and later on in the trial compounded

this error by reversing itself and sustaining this same

objection. .

The statement was: “Mr. Marino said that ‘Mr. Litt-

man is the only swindler in our gang that has a law degree

and I need him for the legel end of our scheme.“

The opinions below.

The Honorable Cireuit Judge Friendly, dissenting,

would have reversed on the grounds that petitioner's de-

in the Marino telephone cal] was not in further-

ance of the conspiracy but only gossip and hence subject

to the prohibitions expressed in Bruton v. United States,

391 U.S. 123 (1968) against the receipt of inadmissible

seheme. The evidence in the case linking petitioner as a

knowing and conscious member of the conspiracy to de-

fraud was meager. His activities could have been easily

announced in Bruton v. United States, 391 U.S. 123 (1968).

George Desser, one of the complainants, on direct ex-

amination, testified as follows:

That he received a telephone call from Salvatore J.

Marino, one of the defendants on Saturday, „

9:30 and from the record (R. 22):

“A. en, bo tld to aay atte, te, Eitimen io the

only swindler in our gang. .

“Mr. Wallach: Your Honor, I am going to ob-

ject to this.

“The Court: Yes, it io taken eubjest to connee-

tion as to Mr. Littman. You have to find that there

was a conspiracy, that Mr. Littman was a part of

it, and that this was done in furtherance of the

— A ge ~~ aati

you may apply it to Mr. Littman.

What did he say?

‘ “The Witness: Mr. Marino said that Mr. Litt-

man is the only swindler in our gang that has a law

degree and I need him for the legal end of our

“Mr. Wallach: Excuse me, Your Honor, may I

approach with the U. S. Attorney?

(At the side-bar) ,

“Mr. Wallach: Your Honor, in behalf of the

defendant, Sidney Littman, I didn’t want to say it

in front of the jury, I hope you don’t think I am

out of place, but I am constrained to do it. |

“A conspiracy mey be terminated by an arrest

or it may be terminated by the accomplishment of

any illegal object. Here we have a transaction

where the money is already withhold, shall we say,

according to this witness, and transferred to Marino.

“Mr. Littman drew the general release up. This

Later in open court, jury not present (R. 635-640) :

“Mr. Wallach: If it pleases Your Honor, as I

recollect, before we ended yesterday the government’s

witness testified that Mr. Marino, after the releases

‘were signed, about a day after, called him up and

_ glllegedly told him that Mr. Littman was a thief with

a license to practice law or

ORE EO Ne

. some discussion abou conspiracy,

und all continuity of action ended with the last overt

, act. ;

_ “What Mr. Marino allegedly said to Mr. Desser

was not in furtherance of any conspiracy since a

conspiracy is a partnership in crime.

“It is not deemed in furtherance of an agency or

partnership that an agent would say something that

would incriminate his partner, in other words, not

incriminate himself and thereby his partner, but

accuse his partner of being a thief or a swindler.

he Court: D Er ee ae

exception to defendant. I will, » give fur-

ther consideration to what I now take to be a re-

quest to strike certain testimony, and that I will

reserve decision on, namely, that he was a swindler,

and so forth.”

to that effect...

law.

Later, in open court, jury not present (R. 850-851) :

“The Court: ... By the way, I have been think-

ing about that application you made, which I in

effect reserved decision on when you moved for the

mistrial. I am inclined to agree with you at this

point, as I see it, it is only allowable as against

Marino und it is not allowable as against your client.

“I will do it in either one of two ways as you

indicate to me you and your client want. I will

either make that announcement to the jury now,

during the course of the trial, or I will do it when 1

I charge the jury and indicate clearly that at that

time that statement was only applicable to Marino

in the nature of an admission.

Mr. Wallach: Thank you.

“The Court; It is not applicable as against him.”

12 5

Then, the Court asked Mr. Wallach to tell him whether

to announce it trial or in the charges. It is clear,

at this point, , that the damage to petitioner was

already done, irreparable, and that nothing now could

be done .to the devastating effect of this ad-

mittedly — ;

Then, of the trial in the Court's

at the

-charges (R. 1378) in addressing the jury:

“it Jou say to a boy, Go in that corner and don’t

you think of a white elephant, the first thing he

thinks of as soon as he gets in the corner is a white

elephant, and that i what he shouldn't do and that

—5 2 N ö

Then the damaging statement is repeated (R. 1379,

1380), in addressing the jury:

“The. Court: When Desser was being examined

he made the following answer: ‘A. Mr. Marino said

that Mr. Littman is the only swindler in our gang

* that has a law degree, and I need him for the legal

end of our scheme’.”

“Now, I have stricken that from the record. ‘That

is not evidence in the case. The only one that: that

ee. Marino himself. It

does not bind Mr. Littman. . :

Again the wound is opened (n 1397, 1398), in address-

ing the jury:

“The Court: However, — af eng on

spirator which is not made in furtherance of the

conspiracy: or which is made before its inception or

after its termination may be considered as evidence

only against the person making it.

“I call your attention again to the statement.

tat I struck from the evidence about Marino. That

may only be referrable to Marino and no one else.”

13 2

This last statement of the Court to the jiry was highly

prejudicial since it presupposes the existence of a con-

spiracy and that petitioner is one of the conspirators.

The Wading case on this subject is Bruton v. United

States, decided by the Supreme Court of the United States |

in the October Term of 1967, No. 705, and was argued.

March 11, 1968 and decided May 20, 1968. The citation is .

George William Bruton, Petitioner v. United States, 301

U.S. 123, 20 L. Ed 2d 476, 88 8. Ct. 1920.

—

the Vetitioner'n accomplice incriminated him. It was held

the

introduction of his confession added substantial

form

the brains of the jurors—per Black, J. -

A basic premise of the Confrontation Clause, it

to mie, is that certain kinds of hearsay (see

Texas, 380 U.S. 400, ee

Douglas v. Alabama, 380 U.S. 415, 13 L. Ed. 885

8. Ct. 1074) are at once so damaging, so suspect, and yet

xo difficult to discount, that jurors cannot be trusted to

give such evidence the minimal. weight it logically deserve,

whatever instructions the trial judge might fire. An

accusation is even more prejudicial.—per Stewart, J.

In Roberts v. Russell, 392 U.. 293, 88 8. Ct. 1921, 20

r it was stated thet the “Bruton rele” wes

The effect of such a confession cannot be wiped from

seems

‘\

retroactive. Defendant's right of cross-examination may

be violated by the introduction into evidence, in a joint

trial, of a co-defendant’s incriminating extra-judicial state-

ment. In the circumstances of this case, the Supreme Court

held that cautionary instructions by the judge to the jury

could not eliminate the substantial prejudice to the peti-

tioner.

The decision that the “Bruton rule” was retroactive

was followed ia:

Wheat v. ae 292 U.S. 652, which was re-

manded to Supreme Court of Washington for reconsidera-

tion in the light of Bruton v. United States and Wither-

spoon Vv. Illinois, and in

Wade v. Yeager, Warden, 392 U.S. 661, which remanded

to United States Court. of Appeals for Third Circuit and

judgment vacated.