# Petition for Writ of Certiorari — Littman v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0412%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 400 U.S. 991 ## Text vie 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 ee 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 ee 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: 12 § 371 § 1341 § 1343 . § 1952 : — — „ „ „ 0 5 . 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 2 — 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. 3 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. a — "> t 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. (c) Investigations of violations under this section in- 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. 7 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? 10 ‘ “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 11 a license to practice law or ORE EO Ne . some discussion abou conspiracy, — Masts ©. United States, 329 U.S. 211 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 i l 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 ‘\ \ \ 14 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. See also: Roberts v. Russell, infra, and Grosso v. United States, (1968), 300 U.S. 62, 88 S. Ct., 709, 19 L. Ed. 2d 906. 5 In United States v. Jones, defendant was convicted of perjury on verdict in U.S. D.C., 8.D. of N.Y. before William B. Herlands, J. The judgment was affirmed on appeal, 374 F.2d 414. The United States Supreme Court vacuted the judgment of the Court of Appeals and remanded for fur- ther consideration, 392 U.S. 209, 88 S. Ct. 2050, 20 L. Ed 2d 1104. Upon remand reported in 402 F.2d 851 (1968) CA—2nd Circuit, before Moore, Friendly and Smith, Cir- cuit Judges, it was decided that the crucial testimony of the co-defendant before the grand jury was not subject to cross-examination and that it was more than u fair likeli- hood, that the jury was unable to perform the feat en- 15 joined on it by the court’s instructions to disregard the testimony. a ie In United States ew rel. Joseph v. La Vallee, 290 F. Supp. 90 (1968) U. S. Dist. Ct., N. D., New York, James T. Foley (Chief Judge), it was held that federal habeas corpus would be granted where inadmissible hearsay evi- dence of co-defendant, which inculpated petitioner, was received in evidence under circumstances where effective redaction was impossible. In John Grafton Gray, Appellant v. United States of America, Appellee, 407 F.2d 830, U. 8. Ct. of Appeals, 5th Cir., 3/6/69, a motion to vacate judgment under 28 U.S. C. A. Section 2255 was made relying on U.S.C.A. Const. Amend. 6. Reversed and new trial granted: “On that approach, the receipt of this out-of-court idence over timely objection orbits to a constitu- “Yona apogee within the thrust of Section 2255.” In United States v. Lyon, 397 F.2d 505 (1968), U. S. Ct. of ‘Appeals, 7th Cir., it was held that a co-defendant’s extra-judicial admissions which implicated a defendant as a partner in a prostitution enterprise, as post-conspiracy declarations were inadmissible against defendant, and in- troduction of such admissions at a joint trial violated de- fendant’s right of confrontation, and such violation could not be directed by instruction. Reversed. In United Stutes v. Kelly, 399 F.2d 692 (1968) 3rd Cir.— Reversed—lInculpatory statements of co-defendants may not be admitted in evidence during a joint trial—inadmissible. In Calloway v. United States, 399 F.2d 1006, C.A.D.C. (1968) defendant is denied Sixth Amendment right to con- front witnesses against him if confessions of non-testifying co-defendant which inculpates him is introduced at joint 16 trial despite cautionary instructions by judge that confes- sion should be considered as evidence only against con- fessor. To same effect: Townsend V. Henderson, 405 F.2d 324 (1968) 6th Cir. ~\ Serio v. United States, 401 F.2d 989 (1968) CA— Dist. of Col. Atwell v. United States, 398 F.2d 507 (1968) CA Sth Cir. Under traditional rules of evidence, hearsay statements inculpating petitioner are clearly inadmissible against him, see Krulewitch v. United States, 336 U.S. 440, 93 L. Ed. 790, 69 S. Ct. 716, and Fiswick v. United States, 329 U.S. 211, 91 L. Ed. 196, 67 S. Ct. 224. It has been suggested that the limiting instruction ac- tually compounds the jury’s difficulty in disregarding the in- admissible hearsay. See Broeder, The University of Chicago Jury Project, 38 Neb. L. Rev. 744, 753-755 (1959). In Delli Paoli v. United States, 229 F.2d 319, 321, which rule was subsequently changed by Bruton v. United States; it was said by Judge Learned Hand: “The limiting instruction, is a ‘recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else’. Nash v. United States, 54 F.2d 1006, 1007; Nobody can indeed fail to doubt whether the caution is effective, or whether usually the practical result is not to let in hearsay.’ United States v. Gottfried, 165 F.2d 360, 367; . . . it is indeed very hard to believe that a jury will, or for that matter can, in aneen observe the admonition. .. .” 17 Judge Hand referred to the instruction as a “placebo”, medienlly defined as a “medicinal lie“. Judge J Frank suggested that its legal equivalent “is a of judicial lie“. It undermines a moral relationship between the courts, the jurors and the public; like any other judicial deception, it damages the on judicial administration of justice”. United States v. G ald, 233 F.2d 556, 574. See also 8 Wigmore, n. 3, on 2272 at P. 416. The use of limiting instructions fosters an inconsistent attitude toward juries by “treating them at times as a group of low-grade morons and at other times as men endowed with a superhu ability to control their emo- tions and intellects”. E. Morgan, Some Problems of Proof under the Anglo-American 8 of Litigation 105 (1956). See also Shepard v. United States, 290 U.S. 96, 104, 78 L. Ed. 196, 201, 54 S. Ct. 22, Meltzer, Involuntary Confes- sions: The Allocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev. 317, 326 (1954). ne \ An important element of a fair trial is that a Jury con- sider only relevant and competent evidence bearing on the issue of guilt or innocence, See E. G. Blumenthal v, United States, 332 U. S. 539, 559, 560, 92 L. Ed. 154, 169, 68 S. Ct. 248. From: Daley v. United States, 231 F.2d 123, 125. Rules 8 (b) and 10 of the Federal Rules of Criminal Procedure, which deal with joinder of defendants, were designed to promote economy and efficiency and to avoid a multiplicity of trials where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial. However, each defendant is entitled to have his case determined from his own acts and statements and the other evidence in the case which may be applicable to him. Under the traditional rules of evidence, a co-defen- dant'n statement inculpating the accused is inadmissible against the accused as hearsay. An.accused’s right of cross- 18 — examination secured by the Sixth Amendment is violated at his joint trial with a co-defendant who does not testify by the admission of the co-defendant’s statement inculpat- ing the accused, notwithstanding jury instructions that the co-defendant’s statements must be disregarded in deter- mining the accused’s guilt or innocence. The decision below squarely conflicts with Bruton v. United States, supra. Certiorari should therefore be granted to resolve the conflict and to decide whether the decision below sustaining the conviction does not violate the Bruton rule which has been followed in all recent decisions, II. The admission of a tape recording made by one of the victims of a conversation he had with petitioner, and the subsequent failure to play this tape to the jury con- stitute reversible error (Government’s Exhibit 15A; R. 179-181). ö The use of the-wire-tap recording of a telephone con- versation between petitioner and Philip Shapiro, one of the complainants, as evidence, was unconstitutional, in violation of the Fourth Amendment of the Constitution of the United States. A ruse was used by the agents of the Federal Bureau of Investigation to circumvent the unconstitutional wire- tapped secured evidence when it was submitted that Shapiro, of his own volition and with his own instrument secured the recording. It is noted that such wire-tap offered into evidence was actually made when the F. B. I. agents were on the Shapiro premises, and under their direction. Section 605 was enacted as part of the Federal Com- munication Act of 1934, 48 Stat. 1103, six years after the Court had said in Olmstead v. United States, 277 U.. 438, 465, that “Congress may of course (legislate to) protect the secrecy of telephone messages by making them, when 19 intercepted, inadmissible in evidence ...”. In Nardone v. United States, 302 US. 379, the Court was first called upon to decide whether Sec. 605 had indeed served to render evidence of intercepted communications inadmissible in a federal trial. In that case, the Government urged that “a construction be given the section, which would exclude federal agents since it is improbable Congress intended to hamper and impede the activities of the govern- ment in the detection and punishment of crime”, 302 U.S. at 383. In reversing the judgment of conviction, the Court’s answer to that argument was unequivocal: ; “(T)he plain words of Sec. 605 forbid anyone, unless authorized by the sender, to intercept a tele- phone message, and direct in equally-clear language that ‘no person’ shall divulge or publish the message or its substance to ‘any person’. To recite the con- tents of the message in testimony before a court is to divulge the message. The conclusion that the act forbids such testimony seems to us unshaken by the government’s arguments.” (From Lee v. United States, at p. 378). This rule applied to state officers in: Benanti v. United States, 355 U.S. 96; Mapp v. Ohio, 367 U.S. 643. The federal law itself explicitly protects intercepted communications from divulgence in a court or any other place. ee The F. ll. I. agents were present and listening in on the telephone conversation when made, and directed Shapiro’s wire-tap and recording of it. In the leading case of Katz v. United States, 1967, 389 U. S. 347, 88 8. Ct. 507, 19 L. Ed. 576, it was held that a listening device attached by government agents outside a phone booth was illegal search and seizure prohibited by the Fourth Amendment of the Constitution of the United States without a warrant therefor and thus reversible error. The interception of telephene conversations reasonably intended to be private could constitute u “search and seizure”, and that the examination or taking of physical property was not required. View of 4th Amend.— Wong Sun v. United States, 371 U.S. 471 at 485, 83 8. Ct. 407 at 416, 9 L. Ed. 2d 441, and Berger v. State of New York, 388 U.S. 41 at 51, 87 S. Ct. 1873 at 1879, 18 L. Ed. 2d 1040. See: Silverman v. United States, 365 U.S. 505, 81 8. “Ct. 679, 5 L. Ed. 2d 7384. Appellant “sought to exclude... the uninvited ear”, and spoke under circumstances in which a reasonable person would assume that uninvited ears were not listening. 4. . . and of course, the very nature of electronic surveillance precludes its use pursuant to the sus- pect’s consent.” (Adapted from Katz v. United States, infra). In absence of search warrant or court authorization, federal agent’s electronically eavesdropping on conversation between informer, on whom transmitter had been placed, and defendant, who did not know of eavesdropping, violated defendant’s Fourth Amendment rights, even though in- former with whom defendant conversed had consented to the eavesdropping. (Decision by Swygert, Cir. J.). United States v. White, 405 F.2d 838, 1969, 7th Cir, 21 In Osborn v. United States, 385 U.S. 323, 87 8. Ct. 429, 17 L. Ed. 2d, 394 (1966), in a 6-3 decision, the Court emphasized the essentiality of prior authorization. There i paid informer recorded conversations between himself and defendant in order to corroborate his sworn statement. However, there, a warrant was obtained. Here a reversal is required since appellant did not consent to the eavesdropping and no antecedent justifica- tion was sought or obtained. The wire-tap wus introduced into evidence over objection. The fact that it was not played to the jury may very well have given the jury reason to infer that it would be indictable and highly prejudicial to petitioner. Actually, petitioner’s taped telephone conversation was exculpatory. othe jury could not have known this but could, instead, reason thut it was inculpatory.. If petitioner was tried separately, he would not have objected to the jury hearing the tape of his telephone conversation, once it was admitted into evidence, but this does not detract from the prejudice generated in this trial by the wire-tap. The petitioner respectfully urges. this Court to consider ne question of wiretap evidence and its disclosure, in order to preserve the integrity of the fact-finding process in the federal system. The petitioner has challenged many other rulings of the a district court each of which would be ground for reversal. Many of these errors are serious and important. Inas- much, however, as the two major constitutional questions already treated are sufficient to dispose of the case, and are clearly substantial it does not seem necessary to discuss these additional points in this statement. — CONCLUSION u u respectfully submitted that this petition for a writ of certiorari should be granted. Respectfully submitted, Auyreo D. Leaver, Attorney for Petitioner. an i --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0412%3A1. Public record. Not legal advice.