Petition for A Writ of Certiorari — Roviaro v. United States

enero ot es

MAR 4 1970

No. ma /03 JOHN F. DAViS, curr

LIBRARY

SUPREME COURT, U. S.

In the

Supreme Cowt of the United States

Octoser Term, Qp /777

ALBERT ROVIARO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CARL M. WALSH

29 South LaSalle Street

Chicago, Illinois 60603

Counsel for Petitioner

EE

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

NN TE

Jurisdiction

Questions Presented ........

Constitutional Provisions Involved

2

2

2

3

Statutes Involved 3

Statement of the Case ............... ar 6

24

34

Reascas for Granting the Writ ....

Conclusion ..... ree

Appendix A .......... App. 1

Appendix B App. 5

TABLE OF AUTHORITIES

Cases Cited

Bollenbach v. United States, 326 U.S. 607, 90 L.Ed.

350 34

Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d

476 29, 30

Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705 25,32

Delli Pacii v. United States, 352 U.S. 232, 1 L.Ed.

2d 278 30

Edna Mae Development Company v. Chicago Title and

Trust Company, 79 Ill. App. 2d 251, 223 N.E. 2d 285 26

Johnson v. Yeager, 3 Cir., 399 F.2d 508 33

ii

Kinser v. Cooper, 6 Cir., 413 F.2d 730 . 33

People v. Kurth, 34 Ill. 2d 387, 216 N HK. 2d 154 oo... 26

People v. Wolfson, 79 Ill. App. 2d 309, 224 N.E. 2d

581 26

United States v. Bujese, 2 Cir., 378 F.2d 718; re-

versed 382 U.S. 297, 20 L.Ed. 2d 1113, 88 S.Ct. 2064;

remanded for new trial, 405 F.2d 888 32

United States v. Dote, 7 Cir., 371 F.2d 176 ........... 25, 26, 27

United States v. Greene, 6 Cir., 400 F.2d 847 .......... 33

United States v. Heft, 7 Cir., 413 F.2d 1027 33

United States v. Roviaro, 7 Cir., 379 F.2d 911 ........... 29, 30

United States v. Torres, 7 Cir., 354 F.2d 633 30

_ United States v. White, 7 Cir., 405 F.2d 838 (en banc)

cert. granted 394 U.S. 957, 22 L.Ed 2d 559 ... 26

Constitutional Provisions

Fourth Amendment, Constitution of the United States 25

Sixth Amendment, Constitution of the United States 27 » 32

Statutes

28 U.S.C. 2255 27

47 U.S.C. 605 . 25, 27

Chapter 38, §14-1, Illinois Revised Statutes ............. 26

Deere Neuer wnne

In the

Supreme Court of the United States

Ocroser TERM, 1969

No.

ALBERT ROVIARO,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FO®, A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner, Albert Roviaro, prays that a writ of cer-

tiorari issue to review the judgment of the United States

Court of Appeals for the Seventh Circuit, affirming the

judgment of the United States District Court for the

Northern District of Illinois entered February 17, 1969,

granting the Respondent United States of America’s mo-

tion to dismiss the Petitioner’s motion to vacate sentence

and judgment of conviction pursuant to 28 U.S.C. 2255.

2

OPINIONS BELOW

The opinion of the District Court Judge issued Febru-

ary 17, 1969, has not been reported, but is printed as

Appendix ‘‘B’’ to this petition. The opinion of the Court

of Appeals issued January 5, 1970, has not been reported,

but is printed as Appendix ‘‘A’’ to this petition.

JURISDICTION

The judgment of the Court of Appeals was entered on

January 5, 1970 (Appendix A). Petition for Rehearing

was denied by order entered February 2, 1970. The juris-

diction of this Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. May a District Court Judge and a panel of the Court

of Appeals ignore an en banc decision of that Court of

Appeals and deny a petition pursuant to 28 U.S.C. 2255,

thereby upholding a conviction based upon evidence ob-

tained by means of illegal electronic eavesdropping, 1.e.,

evidence obtained by use of an electronic radio transmit-

ter carried on the person of a government informer acting

under coercion, and evidence received in violation of 47

U.S.C. 605?

2. Were the rights of the petitioner, who was the only

defendant found guilty in a conspiracy case, under the

Sixth Amendment and under the holding in Bruton v.

United States, 391 U.S. 123, 20 L.Ed. 2d 476, violated by

admission of extra-judicial statements and acts of co-de-

fendants when the co-defendants did not testify, and which

statements and acts although prejudicial to the petitioner,

were admitted under instructions to the jury to consider

them only as to the alleged speaker or actor, particularly

when one of the co-defendants was dismissed on motion

3

of the government, but the petitioner’s motion to strike

the testimony or for a mistrial was denied, and when the

jury disagreed as to the guilt of one of the other co-de-

fendants and a mistrial was declared, and found the re-

maining co-defendant not guilty?

CONSTITUTIONAL PROVISIONS INVOLVED

‘AMENDMENT IV—SEARCHES AND SEIZURES

The right of the people to be secure in their persons, |

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affir-

mation, and particularly describing the place to be searched,

and the persons or things to be seized.’’

‘‘AMENDMENT VI—JURY TRIAL FOR CRIMES, AND

PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the Assistance

of Counsel for his defence.’’ :

STATUTES INVOLVED

28 U.S.C.

**§ 2255. Federal custody; remedies on motion

attacking sentence

A prisoner in custody under sentence of a court estab.

lished by Act of Congress claiming the right to be released

upon the ground that the sentence was imposed in violation

of the Constitution or laws of the United States, or that

the court was without jurisdiction to impose such sentence,

or that the sentence was in excess of the maximum autho-

+

rised by law, or is otherwise subject to collateral attack,

may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

A motion for such relief may be made at any time.

Unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief,

the court shall cause notice thereof to be served upon the

United States attorney, grant a prompt hearing thereon,

determine the issues and make findings of fact and conclu-

sions of law with respect thereto. If the court finds that

the judgment was rendered without jurisdiction, or that

the sentence imposed was not authorized by law or other-

wise open to colla*-val attack, or that there has been such

a denial or infringement of the constitutional rights of

the prisoner as to render the judgment vulnerable to col-

lateral attack, the court shall vacate and set the judgment

aside and shall discharge the prisoner or resentence him

or grant a new trial or correct the sentence as may appear

appropriate.

A court may entertain and determine such motion with.

out requiring the production of the prisoner at the hearing.

The sentencing court shall not be required to entertain

a second or successive motion for similar relief on behalf

of the same prisoner.

An appeal may be taken to the court of appeals from the

order entered on the motion as from a final judgment on

application for a writ of habeas corpus.

An application for a writ of habeas corpus in behalf of

a prisoner who is authorized to apply for relief by motion

pursuart to this section, shall not be entertained if it ap-

pears that the applicant has failed to apply for relief, by

motion, to the court which sentenced him, or that such

court has denied him relief, unless it alse appears that

the remedy by motion is inadequate or ineffective to test

the legality of his detention.’’

5

47 U.S.C.

**605 Unauthorized publication or use of

communications.

Except as authorized by chapter 119, Title 18, no person

receiving, assisting in receiving, transmitting, or assisting

in transmitting, any interstate or foreign communication

by wire or radio shall divulge or publish the existence, con-

tents, substance, purport, effect, or meaning thereof, except

through authorized channels of transmission or reception,

(1) to any person other than the addressee, his agent, or

attorney, (2) to a person employed or authorized to for-

ward such communication to its destination, (3) to proper

accounting or distributing officers of the various communi-

cating centers over which the communication may be

passed, (4) to the master of a ship under whom he is

serving, (5) in response to a subpoena issued by a court

of competent jurisdiction, or (6) on demand of other

lawful authority. No person not beine authorized by the

sender shall intercept any radio communication and di-

vulge or publish the existence, contents, substance, pur-

port, effect, or meaning of such intercepted communication

to any person. No person not being entitled thereto shall

receive or assist in receiving any interstate or foreign

communication by radio and use such communication (or

any information therein contained) for his own benefit or

for the benefit of another not entitled thereto. No person

having received any intercepted radio communication or

having become acquainted with the contents, substance,

purport, effect, or meaning of such communication (or any

part thereof) knowing that such communication was in-

tercepted, shall divulge or publish the existence, contents,

substance, purport, effect, or meaning of such communica-

tion (or any part thereof) or use such communication (or

any information therein contained) for his own benefit or

for the benefit of another not entitled thereto. This sec-

tion sha!l not apply to the receiving, divulging, publishing,

or utilizing the contents of any radio communication which

is broadcast or transmitted by amateurs or others for the

use of the general public, or which relates to ships in dis-

tress.’’

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STATEMENT OF THE CASE

This Petition for Writ of Certiorari seeks to review the

judgment of the Court of Appeals affirming the judgment

of the District Court granting the government’s motion to

dismiss the petitioner’s motion to vacate sentence and

judgment of conviction pursuant to Section 2255 of Title

28, United States Code (R. 31, 32).* The trial judge filed

a written opinion which appears at R. 31.

The petitioner’s 2255 motion was directed towards the

judgment and sentence of conviction entered in the United

States District Court for the Northern District of Illinois

in the case of United States v. Walter Anderson, Albert

Roviaro, et al., No. 65 CR 543 (A. 99, 105). That case was

tried before a jury and resulted in the petitioner Roviaro

being the only one amongst four defendants to be found

guilty (A. 100). The facts will be set forth in chronologi-

eal order beginning with the indictment in the criminal

case.

The indictment charged that the petitioner along with

Walter Anderson, John Capko, and Richard Sandsbury

and eight named unindicted but alleged co-conspirators

did conspire ‘‘to import fraudulently and knowingly and

bring into the United States and territory under their

control and jurisdiction, narcotic drugs contrarv to law,

and to receive, conceal, buy, sell, and facilitate the trans-

portation, concealment and sale of such narcotic drugs

*“R” refers to the record on appeal in this case, no appendix

having been prepared pursuant to Circuit Rule 9 of the Rules of the

United States Court of Appeals for the Seventh Circuit. “A” will

refer to the appendix filed in the petitioner’s appeal of his criminal

conviction, [’nited States v. Roviaro, No. 15759, a copy of which is

contained as a part of the record on appeal in this case and appears

at R. 5.

7

after being unlawfully imported and brought into the

United States contrary to law; in violation of Section

174, Title 21, United States Code’’. Counts two and three

charged the petitioner Roviaro alone with the substan-

tive offense of having used a telephone in the commission

or attempting the commission of an offense on two differ-

ent dates (A. 2-4).

The petitioner Roviaro filed a written pre-trial motion

for severance which was denied (A. 7, 13). The motion for

severance was renewed and denied several times (A. 21,

and see docket of 65 CR 543 filed with record on appeal at

pp. 4-5).

The evidence for the Government consisted of the testi-

mony of five of the unincicted but alleged co-conspirators

and the testimony of various government agents. Three

of the unindicted but alleged co-conspirators who testi-

fied did not know the petitioner Roviaro, and their testi-

mony was admitted solely against the defendants Sands-

bury and Anderson. The defendant Sandsbury was dis-

missed on the government’s motion prior to the conclu-

sion of its case in chief (A. 66). The jury was unable

to reach a verdict as to the defendant Anderson and a mis-

trial was declared as to him (A. 99). He was subse-

quently dismissed on the government’s motion (See docket

of 65 CR 543 filed with record on appeal p. 6). The

trial court refused to strike the testimony (A. 99).

In particular, the witness RICHARD LEE COLLINS

testified that he knew Sandsbury since 1954 and Anderson

since 1958, both in Indianapolis. He did not know nor iden-

tify Roviaro or Capko. He stated he had been convicted of

a narcotics violation in 1963 (A. 21).

Collins stated that in July, 1958, at Sandsbury’s invita-

- tion, he went to work for Walter Anderson, remodeling his

home. Sandsbury told him that Anderson had some good

stuff (A. 21).

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When he went to work the next day, Walter Anderson

told him what should be done and he said he should see

Sandsbury for whatever lhe needed. Sandsbury then came

in and Walter Anderson left. Sandsbury asked him if he

wanted some good stuff and gave him three capsules of

white powder (A. 21).

Co!lins stated he then went to a drug store, bought a

hypode:mic needle and an eye dropper. ile went into a

restroom, got a pop can, emptied the capsules of white

powder into the top, added some water, heated the mixture,

and then injected himself with the fluid. He got a funny

feeling in his throat, then got a ‘‘relaxed’’. . . ‘light’?

... ‘high’ feeling (A. 21-22).

Collins kept working for Anderson until November,

1960. In March, 1960, he began selling for Anderson and

Sandsbury because Walter Anderson had threatened to

eut him off if he didn’t sell (A. 22). In April of 1960,

Walter Anderson turned him over to his brother Robert.

He was then selling 70 to 80 capsules per day.

On Cross Examination by Mr. Pincham who represented

Sandsbury and Anderson, Collins stated he was in error

when he said he saw Sandsbury up to November 1960,

when reminded that Sandsbury went to jail in April, 1960.

He stated that he, Anderson, and Sandsbury were ad-

dicts.

He described his fear of not getting the drugs and the

feeling with the result that he never wanted to be without

it. He did not know where Anderson or Sandsbury got

the drugs (A. 23).

ROBERT ANDERSON, JR., also an alleged but unin-

dicted co-conspirator stated he was currently serving a

federal sentence for sale of narcotics in August, 1962.

9

He testified to purchasing, with Walter Anderson, nar-

cotics from Kenney McGuire and later Orville Drake up

to September, 1961 (A. 24).

He described the high feeling he received from using

the white powder. He identified Walter Anderson and

Richard Sandsbury (A. 25).

He did not know nor did he identify Roviaro or Capko.

On Cross-Examination by Mr. Pincham, he described

more of his purchases from McGuire. He stated he also

bought from Jack Hilton (A. 26).

He admitted he thought it better to be a co-conspirator

than a defendant. He further admitted he had used a

statement given him by Agent Waltz to refresh his recol-

lection for testifying (A. 26, 27).

FREDERICK L. DRAKE, who was also an unindicted

but alleged co-conspirator testified that Orville Drake, a de-

ceased alleged co-conspirator, was his father. He testi-

fied that after talking with Orville Drake in the latter’s

home in Indianapolis, Indiana, Fred Drake sold some

capsules of white powder for Orville Drake in the spring

of 1956 (A. 27).

Fred Drake first met Albert Roviaro in February, 1961,

and present were Fred’s wife, his father Orville, and step-

mother Florence Drake, and Mr. and Mrs. Roviaro (A. 27).

Fred Drake met Roviaro several times in 1961, near

Fowler, Indiana. On one occasion, in June 1961, Drake ac-

companied his father, Orville, to Fowler, Indiana, where

his father dropped him off at a tavern. When Orville

Drake returned in about twenty minutes, Fred noticed a

small package which Orville placed between the seat:. In

September of 1961, Orville Drake died, after leaving a

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10

shoe box with Fred for safekeeping. Fred found some 15

small packages of white powder in the box and calied Jack

Hilton, named as a co-conspirator, and Hilton turned over

to Fred Drake about thirty packages of white powder.

About one week after September, 1961, Drake received

a phone call that he subsequently came to know as that of

‘*Chick’’ Roviaro. This voice asked if Drake was going

to carry on his father’s business, and that Fred Drake re-

plied yes, but he did not know who the customers were.

The voice said hold on, that he would send somebody,

and that Orville Drake owed $5300 for the last buy.

After a phone call from Roviaro, Fred Drake met Rovi-

aro at the 100 Mile Inn in Fowler, Indiana. They drove

to the outskirts of Fowler, where they stopped at a dead

end road, and Roviaro reportedly stated that this was

where ke had met Orville Drake, and that from now on

Roviaro and Fred Drake would meet there. Drake said

that Roviaro claimed that ‘‘Dad’’ had told him about the

colored boys, and that Roviaro again told Fred Drake

about the $5,500.00, then told him not to worry about it,

that it could be paid as Fred Drake sold stuff. Roviaro

also gave Fred Drake a phone number and asked Fred

Drake to get him some numbers in booths where he could

call Fred Drake. This was all in October, 1961. Fred

Drake met Roviaro three more times between October and

the end of the year, although Fred Drake could not remem-

ber the date. There were no business transactions of any

kind of these claimed meetings.

Fred Drake then testified to being acquainted with Rob-

ert Anderson and said that in October, 1961, he sold An-

derson three ounces of white powder that he had taken

from the shoe box (A. 29). Thereafter, Fred Drake made

various sales to Walter Anderson of white powder. After

this, on or about July 6, 1962, he sold some white powder

to a man named ‘‘Duke’’, and thereafter made several

other sales to Duke, who turned out to be Agent Robert

Waltz of the Bureau of Narcotics. Thereafter, in the

presence of and on instruction of agents and police offi-

cers, on various occasions, Fred Drake made phone calls

attempting to reach Roviaro and did reach him and had

various conversations purported to be concerning ‘‘stuff’’

and ‘‘pieces’’ (A. 30-31).

Fred Drake then testified to various meetings and con-

versations with Roviaro and Capko, all purporting to be

concerned with possible narcotics sales, but none of which

did result in any indication of importation, purchase, sale,

distribution or facilitation thereof, of narcotics by Roviaro,

or for that matter, Fred Drake. (A. 32).

Drake testified that prior to these meetings, Agents Cass

and Waltz equipped him with a radio transmitter which

they concealed on his person by taping to his thigh (A. 32,

33).

Drake testified that he had ridden out to O’Hare Air-

port with Roviaro. At that time, he had the transmitter

on. He did not testify to any conversation during that

trip (A. 32).

On Cross-Examination, he tesiified that he had never

purchased narcotics from anyone (A. 35). He did testify

that he sold narcotics to Jack Hilton and Walter Ander-

son and that he stopped selling to Anderson in 1962 be-

cause his brother had been arrested. He further stated

that he increased his prices to Hilton knowing the ulti-

mate purchaser to be an addict. He admitted he had

been arrested in 1962, that he had been arraigned and was

presently on bond. He did not have a lawyer and he did

(

12

not know the possible penalty he faced. He is not a de-

fendant in this case. He hoped his testimony would be

brought to the attention of the Court (A. 34).

He stated that he was being reimbursed by the govern-

ment for his expenses (A. 25). The defense was not allowed

to inquire into the actual expenses as compared to reim-

bursement (A. 35).

He understood the transmitter strapped by him to be a

transmitter to a radio in a car. The agents never sat

close enough to hear the conversations (A. 36).

THOMAS KARL HILTON (A. 36), testified that he

is an Indiana State Highway Inspector, and stated that

he was convicted of a felony for issuing fraudulent checks

in 1945, and of burglary in Indiana in 1950. Hilton testi-

fied to his acquaintance with Orville Drake, Walter Ander-

son and Fred Drake, and to narcotic transactions in 1959

with Orville Drake and Anderson. And Orville Drake in

1959, after having Hilton help him with the mixing and

packaging of one-ounce packages of white powder, left the

scales and other equipment with Hilton, paying him for

his help.

Hilton further testified that in November, 1959, he and

Orville Drake drove to Fowler, Indiana, and that upon

their return from this and other trips, Orville Drake had,

in his possession, about four pounds of white powder, and

on one occasion, they dropped a package of white powder

off at Fred Drake’s house (A. 38).

In October, 1961, Fred Drake came to Hilton’s office and

picked up the powder that Orville Drake had left with

him, and after that, Hilton was set up as the contact

between Fred Drake and Robert Anderson, and Hilton

stated that from October, 1961 to June 1962, he then sold

Robert Anderson an average of three ounces a week at

$200.00 per ounce.

be.

13

Hilton was arrested in June, 1962 by Agents Cass and

Jefferies, and turned the scales and the cardboard box in

which they were contained over to Agent Cass. He was not

required to turn over any white powder to them and re-

turned that to Fred Drake. Hilton said that he had never

received white powder from anyone other than Orville

Drake or his son, Fred Drake.

On Cross-Examination, Hilton said that he had agreed

to cooperate with Agent Cass and was turned loose, and

no charge was ever placed against him; that he received

$50.00 and Fred Drake $150.00 out of each $200.00 an

ounce.

He further stated that he and Fred Drake had once

talked to Honschell, named as a co-conspirator, about the

sale to them of some heroin, but that no sale ever occurred.

‘le neither in his direct testimony, nor on cross-examina-

tion, claimed to know or have any dealings with Roviaro

or Capko.

All of the testimony of Collins, Anderson, and Hilton

was admitted over the objection of the petitioner Roviaro

and under ‘‘protective instructions’’ such as, ‘‘ . . .You

may take into consideration with respect to any one de-

fendant only things which he said or did... ’’ (R. 7-4b).

FLORENCE DRAKE (A. 41), identified and stated that

she knew Albert Roviaro and married Orville Drake on

January 1, 1956. In March, 1961, she and Orville Drake

went to Fowler, Indiana, where they met Roviaro outside

Fowler. Orville got in Roviaro’s car, and after twenty

minutes, Orville re-joined her, and she and Orville went

to Indianapolis.

In April, 1961, she and Orville Drake met Roviaro and

his wife at Kentland, and that Orville Drake and Roviaro

were absent for about twenty minutes.

14

EDWARD R. CASS testified that he was a federal nar-

cotics agent. He further testified to directing Fred Drake

to make certain phone calls to Roviaro. The objections to

this testimony as being electronic eavesdropping and in

violation of Section 605 of the Communications Act were

overruled (A. 42, 43).

He further testified that he and Agent Waltz equipped

Fred Drake with a transmitter by which he overheard two

conv°rsations between Drake and Roviaro. The objections

to the conversations as being overheard via electronic

eavesdropping and in violation of the defendant’s rights

were overruled (A. 43).

On cross-examination, he stated that he gave Fred Drake

$2,400.00 in advance funds on May 4, 1963 for Drake to

make a buy. However, he subsequently received the

$2,400.00 back. There was no purchase (A. 44-45).

IT WAS STIPULATED that on April 23, 1963, the

complaint against Fred Drake was dismissed upon the

Government’s motion. This stipulation was the result of

production by the defendants of certified copies of the

order (A. 44).

RICHARD JONES (A. 45) stated that he was a De-

tective Lieutenant with the Indianapolis Police Depart-

ment, and that he heard Fred Drake make a long distance

eall to Chicago, and that the party on the other end said,

this is ‘‘Chick’’; and that he had been unable to contaci

Drake because he had lost the number.

On Cross-Examination, he stated that his business that

day was to help the Federal Bureau of Narcotics.

The objections to his disclosure of the phone conver-

sations were overruled (A. 45).

15

ABBIE GREGORY (A. 45) testified that she was a

special agent with the Illinois Bell Telephone Company,

and she produced records, Government Exhibits 6, 6A

and 6B and 7, 7A, all of which were admitted into evidence.

The objections to the disclosure of phone calls was over-

ruled (A. 46).

On Cross-Examination, she claimed to have general

supervision of the records but admitted she is not the

only one with supervision, and that her job was to pro-

duce records in response to subpoenas, and she did not

see the particular records or know of their existence be-

fore they were delivered to her.

The Motion to strike Exhibits 6 and 7 was denied (A.

46).

RAYMOND LEE VINSIK (A. 46), stated that he is a

federal narcotics agent, and that on February 16, 1963,

he saw Roviaro and Fred Drake at the bar in Cap’s

Table, and that he also saw Capko there, and saw Cap

talk to Roviaro.

ALLEN R. PRINGLE (A. 47), testified that he is a

federal narcotics agent, and that on February 15, 1963, he

observed Roviaro in the coffee shop of the Florence Hotel

in Chicago. He further stated that on February 16, while

watching Roviaro and Fred Drake, he saw a woman whom

he later learned to be Eva Neforos, walk up to Roviaro

and then go into a back room. Roviaro followed her. About

five minutes later, he came out, said something to Fred

Drake, and then both Drake and Roviaro went into the

back room.

16

ANTHONY S. POHL (A. 48) testified that he is a federal

nareoties agent, and that while watching Cap’s Table on

May 4, 1963 at about 10:00 P.M., he had a beer, and that

when he went to pay the bartender, he noticed Capko

behind him, and as he walked out, Capko watched him.

On Cross-Examination, he stated that he is 6 feet, 3

inches, and weighs 200 pounds, but that he did not have

a weapon with him on the date of this occurrence.

CHARLES E. VOLL (A. 48) tesitfied that he was a

Federal narcotics agent, and that he saw Drake, Capko

and Roviaro in Cap’s Table, a restaurant, on May 4, 1963,

and observed them in conversation with each other.

BERNARD THEISEN (A. 49) stated that he was a

Federal narcotics agent and testified to following Fred

Drake and Roviaro to O’Hare Airport on February 16,

1963. He stated he had been present earlier when the

radio transmitter was attached to Drake.

The objections to the overheard conversations were over-

ruled (A. 49).

Theisen stated that he heard Roviaro tell Fred Drake

about his (Roviaro’s) associations with Fred Drake’s

father in the old days via the transmitter while following

them as they were driving to O’Hare (A. 49).

No one was at the airport and they returned to Cap’s

Table (A. 50).

By means of a radio transmitter, Theisen heard Roviaro

introduce Drake to a woman named ‘‘Eiva’’, who said that

since she did not see Roviaro at the Airport, she had taken

a cab home from there. Theisen said that later, he heard

Roviaro say, ‘‘The Stuff I got was garbage, and I don’t

want to sell you anything that’s not good.’’

17

The objections to the overheard conversations were

overruled (A. 50).

ROBERT E. WALTZ (A. 51), testified to making pur-

chases from Hilton and Fred Drake in 1962. He identified

Government Exhibits i1-A, 1-B and 1-C as being the ma-

terials and containers involved in his first transaction with

them on July 6, 1962. On July 7, he made another pur-

chase, and he identified Government Exhibit 2 and its

components as being the white powder and containers in-

volved in that sale to him by Drake and Hilton.

His third purchase on July 19, 1962 was from Drake

in a parking lot, and he identified Government Exhibit 3

and its components as being the powder and containers

involved. He then testified that on May 4, 1963, he over-

heard through electronic devices, conversations between

Drake, Capko and Roviaro at a restaurant in Chicago

called ‘‘Cap’s Table’’.

The conversations involved Drake wanting to purchase

narcotics and Roviaro replying that he couldn’t get hold

of his man with the stuff.

The objections to the electronically overheard conver-

sations were overruled (A. 54).

On Cross-Examination, Waltz said that he did not take

part in the arrest of Jack Hilton, but that he knew that

Hilton and Robert Anderson were arrested at about the

same time. He found out that Hilton became a special

employee on July 5, 1962, and he did not at that time know

that Hilton had been convicted of burglary and forgery,

but now knows it.

Hilton at about that time agreed to introduce Waltz

to Fred Drake, and no charges were filed against Hilton.

SPT LTT PN LE NS RLY a

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RIN, 6 FP LO OREM OEE Ft _ a LER AE 1 TARA ag SFE NDI OG ORG, 0 & A> OP gaa ey ea are

18

Waltz said that after meeting Drake through Hilton, he

made various purchases, previously described, and in mak-

ing these purchases, paid Fred Drake $1,300.00 of Govern-

mert money, and that the Government never received any

of this money back, and that Fred Drake had kept it all.

He further testified that Drake, although arrested on Oc-

tober 31, 1962, had all charges dismissed against him on

the Government’s motion on April 29, 1963.

On further Cross-Examination, an objection as_ to

whether Drake was charged with all the offenses that he

had committed was sustained.

At the conclusion of Waltz’ testimony, Government group

exhibits 1C, 2C and 3C were received into evidence over

objection. They consisted of narcotics purchased by Waltz

from Fred Drake and Hilton, and apparently emanated

from the shoe box given to Fred by his father, Orville.

Government Exhibit 5, the scales given to Hilton by Orville,

were received in evidence over objection.

The objection that all of these sales were in Indiana,

out of the district in which the prosecution was brought,

was overruled, and objection as to relevancy was over-

ruled (A. 58, 59).

JOHN D. ENDRIZ (A. 59), as a Chief Chemist for the

U.S. Government in Chicago, testified that Government

Exhibits 1C, 2C and 3C contained heroin diluted with

manite.

The government moved to dismiss the defendant Sands-

bury, which was granted. The petitioner Roviaro moved

for a mistrial, a severance, and to strike testimony ad-

mitted as to Sandsbury which was denied.

The government then rested and the motions for ac-

quittal were denied (A. 59).

19

EVA NEFOROS (A. 59), testified that she is a widow,

and that prior to her husband’s death, they had a res-

taurant which they leased from Roviaro, and that she has

known him and his family for thirteen years.

She stated that she knew Agent Waltz and met him

when he served her with a subpoena.

On February 1, 1963, she visited her sister in Canada

because her sister is taking care of Mrs. Neforos’ five-

year old daughter. She had expected Roviaro to meet

her upon her return from Canada, but no one met her.

When she arrived at her home, her sister told her that

Roviaro had gone to meet her and apparently missed her.

She then went to Cap’s Table, a restaurant, had two

drinks with Roviaro and met a friend of Roviaro’s when

she was there (A. 60). This friend was named Fred, and

there was no conversation about her passing through

customs.

Mrs. Neforos said that all she brought with her from

Canada was her clothing and some souveniers, and that

she did not give Roviaro anything, nor was there any con-

versation about narcotics either with her or which she

overheard. She said that she next talked about her trip

to Canada about 18 months later with Agent Waltz and

another agent when she was served with a subpoena, and

she told them the same story. Mrs. Neforos said that

she appeared before a grand jury, and objections as to

whether that was the grand jury which returned the in-

dictment was sustained. She said that when she went to

the grand jury, she talked to two men, including a Mr.

Bailey whom she did not see in the court room, and a

question as to her conversation with Bailey was objected

to and sustained.

20

Mrs. Neforos said that she had never made any state-

ment contrary to what she told Agent Waltz, and that she

knows nothing about narcotics. She also stated that she

has been friendly with Roviaro and his family for 12

years and she is not a girl friend.

JOHN CAPKO (A. 61-64), testified that he operates

Cap’s Table which is a restaurant with three rooms, a front

room, a small secondary room, and a rear room. The

front room contains a bar, a steam table, and tables to

eat at. The other rooms contain dining tables.

Capko testified that he has frequently taken telephone

messages for many people, and that he has never dis-

cussed dealing in narcotics with Roviaro or anyone else,

and is not guilty, and he has never seen the defendants

Sandsbury or Anderson prior to the trial, and did not

remember seeing Fred Drake.

JAMES J. DRISCOLL and RICHARD BUCK (A. 65),

testified that Capko’s reputation for truth and veracity,

honesty and integrity, was good, and it was stipulated that

if Capko called the Reverend Harry J. Stubbs and Mr. Rob-

ert Schmidt, that they would testify to the same effect.

All parties rested (A. 66).

Motion for acquittal and for severance were denied

(A. 66, 90-91).

The Court then charged the jury in part as follows:

‘*Now we know that in determining whether or not

a defendant or anybody else, a co-conspirator not here

a defendant, for example, was a member of a con-

spiracy, you cannot consider, and I have told you this

a number of times, what others may have said or done.

That is to say, the determination as to whether or

not a particular individual defendant was a member

of a conspiracy has to be determined solely on the

21

basis of what he said or did, his own conduct, and not

on the basis of what anybody else may have said

about him or done as evidence of his participation

in the conspiracy. So when you examine the evidence

with respect to each of these three defendants, you

will have to look and see on the basis of what they

said or did whether you conclude that there was a

conspiracy of which they were a member.

‘‘Now if and when it appears from the evidence

that a conspiracy did exist, if it does, and that a

particular individual was a member of it, then and

thereafter any acts knowingly done, any statements

made by any person likewise found to be a member

of this partnership in crime o1 this conspiracy may

be considered by you as evidence in the case not only

as to the man who did it or said it, but as to every

other partner, every other member of the conspiracy

whom you find at that time to be a member of the

conspiracy based on his own acts or his own state-

ments.

‘“‘This is true even though the acts and the state-

ments occurred outside of his presence, without his

knowledge, provided only such acts and statements

must have been in furtherance of an object or of the

purposes of the conspiracy. A partner may be bound

only with respect to acts of another partner which

are within the scope of the partnership business un-

der commercial law. The same thing is applicable

in a conspiracy. A partner may be bound only with

respect to acts and statements of a co-conspirator in

furtherance of the purposes or objectives of the con-

spiracy.’’ (A. 81-82)

The jury returned the following verdicts: The defen-

dant John Capko was found not guilty: the petitioner

Albert Roviaro was found guilty on all counts; and the

jury disagreed as to the defendant Walter Anderson and

a mistrial was declared as to him (A. 98-99).

OF OLE CII TL NE MME OG I US STON LOI ES SF PUG NIM NIRS LY ET Ne LOE RY OR PI II MG

22

The defendant, Walter Anderson, was subsequently dis-

missed on the government’s motion so that the petitioner

Roviaro was the only person found guilty in the charged

conspiracy (see docket of 65 CR 543, page 6).

Roviaro was subsequently sentenced to 10 years on

Count One and 5 years on Counts 2 and 3 to run concur-

rently. The sentence was later changed to 5 years on

Count One and 5 years on Counts 2 and 3, the sentences

on Count 2 and 3 to run concurrently with each other

but consecutively to the sentence on Count One. (See

docket of 65 CR 543, pages 6 and 7.)

The conviction was appealed to the Court of Appeals

and affirmed in United States v. Roviaro, 379 F.2d 911 and

Roviaro commenced serving his sentence in November,

1967.

The petitioner then filed his motion under Section 2255

of Title 28, United States Code, on June 13, 1968, alleging

violation of the. petitioner’s rights under the Fourth

Amendment and moving for vacation of his sentence and

judgment of conviction (R. 2).

On August 8, 1968, the petitioner amended his motion

adding allegations of denial of his rights to confronta-

tion, cross-examination, and a fair trial under the Sixth

Amendment (R. 7).

On September 11, 1968, the United States filed its mo-

tion to dismiss (R. 13) and filed its memorandum in sup-

port thereof on September 25, 1968 (R. 17).

The petitioner filed his memorandum in oppositicn to

the motion to dismiss on October 4, 1968 (R. 19), and the

United States then filed a reply memorandum on October

10, 1968 (R. 20). The petitioner filed memorandums of

additional authority on October 16, 1968 (R. 21, 22).

23

On October 21, 1968, the parties then appeared before

Judge Will for ruling on the motion at which Judge Will

‘indicated he was going to deny the petition but further

stated:

‘*T am going to determine this on the basis of White.

Whatever they do in White, I am going to take as

controlling. If they adhere to the earlier decision

of White, I am going to grant your 2255. If they

reverse themselves, I am going to deny it... .’’ (R.

35, pages 8-9)

The Court further indicated it did not feel the Bruton

decision was controlling and then continued the matter

from time to time for ruling to await the en banc decision

of the Court of Appeals in United States v. White which

was eventually rendered on January 7, 1969, and is now

reported at 405 F.2d 838, cert. granted 394 U.S. 957, 22

L.Ed.2d 559.

On January 14, 1969, the parties appeared before Judge

Will for ruling, and at that time, the Court indicated it

did not like the opinion in White and that therefore the

Court was going to distinguish the White opinion and

deny the petition (R. 36, page 11).

Subsequently, on February 4, 1969, the District Court

not having yet entered judgment, the petitioner moved to

reconsider and cited as additional authority the opinion of

the Court of Appeals in United States v. Waller, No. 16426,

January 31, 1969 (R. 29). The motion was denied (R. 30).

On February 17, 1969, the Court filed its opinion (R. 31).

In the District Court’s opinion, the Court attempts to

distinguish the instant case from White and Bruton. In

particular, the District Court attempts to distinguish

Bruton on the basis of ‘‘confession’’ versus unculpatory

extrajudicial statements and acts, and relies on its pro-

tective instruction to sustain its denial of a severance to

the petitioner (R. 31, pages 14-18).

24

REASONS FOR GRANTING THE WRIT

1. THE PETITIONER’S RIGHTS UNDER THE

FOURTH AMENDMENT AND 47 U.S.C. 605 WERE

VIOLATED.

The facts in this petitioner’s criminal case show that

evidence of conversations between the petitioner and a

government coerced informer overheard via radio trans-

mitters was used to obtain the petitioner’s conviction in

violation of the petitioner’s rights under the Fourth

Amendment to the Constitution of the United States. This

evidence was in the form of testimony of government

agents as to their memory of the contents of the con-

versation. Most of the testimony was repetitive of testi-

mony of the informer Drake. However, in one notable

exception, agent Theisen testified to a conversation he

allegedly overheard via the radio transmitter while he

was riding in his car following the informer Drake and

the petitioner Roviaro as they were driving to O’Hare

Airport (A. 49).

That testimony was to the effect that the petitioner

Roviaro told Drake about his past associations with

Drake’s father Orville. This testimony went far to es-

tablish the government’s contention on trial that the peti-

tioner had dealt and associated with the deceased alleged

conspirator Orville Drake as a part of the conspiracy al-

leged in the indictment.

It must be remembered that all of the conversations

testified to were unrecorded, and were simply testimony

by the overhearer to his recollection of what he heard via

the eavesdropping equipment.

25

Further, it must be considered that the informer Drake

was coerced into cooperating with the agents (A. 34) and

thus it cannot be said that he consented to any of the

overhearings.

Certainly, the government has not made a showing that

the informer consented or would have consented to the

electronic eavesdropping and the eavesdropping of tele-

phone comunications (A. 30-31) if he had not been un-

der the threat of prosecution and mandatory imprison-

ment, when convicted. (Such a showing would have to be

made beyond a reasonable doubt. Chapman v. California,

386 U.S. 18, 17 L.Ed. 2d 705.)

The failure to demand recovery of some $1,300.00, money

which was paid to the informer for narcotics by federal

agents (A. 56), and the subsequent dismissal of the com-

plaint charging established sales of narcotics against the

informer (A. 44), in fact, affirmatively demonstrate the

coercion under which he acted.

The facts also show that evidence of telephone con-

versations were received. There was testimony of Rich-

ard Jones (A. 45), an Indianapolis police detective, and

Edward Cass (A. 42), a narcotics agent, to conversations

they overheard the informer Drake make to the petition-

er Roviaro. There was also evidence in the form of tele-

phone records introduced through an agent of Illinois Bell

Telephone Company exposing the existence of long dis-

tance calls. All of this evidence was allowed in over ob-

jections and in violaiton of the petitioner’s rights under

the Fourth Amendment to the Constitution of the United

States and Section 605 of Title 47, United States Code,

and contrary to United States v. Dote, 371 F.2d 176.

It is argued that by virtue of the admission of the

evidence outlined heretofore, the petitioner’s conviction is

vitiated under the Seventh Circuit Court of Appeal’s hold-

26

ings in United States v. White, 405 F.2d 838, cert. granted

394 U.S. 957, 22 L.Ed. 2d 559, and in United States v.

Dote, 371 F.2d 176.

In the White case, the Court of Appeals, en Lanc, spe-

cifically held that regardless of the consent of the informer,

the placing of the transmitter on the informer’s person

to overhear the defendant’s conversation was a violation

of the defendant’s Fourth Amendment rights.

‘*. . . we are of the opinion that the surreptitious

monitoring of the defendant’s conversations was a

naked violation of his rights and that the resultant

seizure of his statements was not made in conformity

with the provisions of that amendment.’’

(405 F.2d 838, at 848)

This case was of course presented to the District Judge

who, contrary to his statement that he was going to do

‘‘whatever they do in White’’ (R. 35, page 9), chose to

ignore and distinguish the en banc decision of the Court

of Appeals (R. 36, page 11). The panel of the Court

of Appeals deciding this case likewise ignored the en banc

decision of the Court.

This Cour’ aas granted certiorari in the White case and

has heard argument. It has since ordered that the case

be re-argued (38 L.W. 3267). If this Court should af-

firm the Seventh Cireuit en banc decision in White, the

decision in the case at bar must be reversed.

Further, this Court’s attention is directed to the fact

that the commission of eavesdropping and its disclosure

in this case is a felony under Illinois law. Chapter 38,

Section 14-1 et seq. Illinois Revised Statutes. (See People

v. Kurth, 34 Ill. 2d 387, 216 N.E. 2d 154; Edna Mae De-

velopment Company v. Chicago Title and Trust Company,

79 Ill. App. 2d 251, 223 N.E. 2d 285; and People v. Wolf-

son, 79 Ill. App. 2d 309, 224 N.E. 2d 581.)

27

In the exercise of the Court’s supervisory power over

the administration of criminal justice and to maintain

the ‘‘appearance of justice’’, it is suggested that this Court

cannot condone the commission of felonious acts by gov-

ernment agents and employees.

Lastly, it is argued that the petitioner’s conviction was

vitiated by the introduction of vitally corroborative tele-

phone conversations and records of the Illinois Bell Tele-

phone Company as to the existence of long distance calls

into evidence over objection and in violation of Section

605 of Title 47 of the United States. Code.

The Seventh Circuit has specifically held that such evi-

dence is inadmissible (United States v. Dote, 371 F.2d 176).

For the foregoing reasons, it is argued that the peti-

tioner’s rights under the Fourth Amendment and the Fed-

eral Statutes were violated and the judgment of the Court

of Appeals affirming the judgment of the District Court

granting the government’s motion to dismiss the petition-

er’s 2255 motion should be reversed and the petitioner’s

sentence and judgment of conviction be vacated.

2. THE PETITIONER’S RIGHTS TO CONFRONTA-

TION, CROSS-EXAMINATION, AND A FAIR TRIAL

AS GUARANTEED UNDER THE SIXTH AMENDMENT

WERE VIOLATED.

The petitioner argues that his rights to cross-examina-

tion and confrontation of witnesses as secured by the

Sixth Amendment to the Constitution and his right to a

fair trial by jury as secured by the Sixth Amendment

to the Constitution were violated in obtaining his gonvic-

tion and sentence, and that therefore his coe, and

sentence should be set aside.

28

The petitioner was charged in the indictment with con-

spiring with eleven other persons, three of whom were

also named as defendants: Walter Anderson, Richard

Sandsbury, and John Capko (A. 2).

The defendant, Richard Sandsbury, was dismissed on

the government’s motion after the testimony of two wit

nesses: Richard Collins (A. 21-24) and Robert Anderson

(A. 24-27), neither of whom testified to knowing the peti-

tioner, nor did they give any evidence directly concern-

ing the petitioner. Both did testify to acts and statements

of Richard Sandsbury and specifically as to dealings with

narcotics. They described details of the purchase and

use of alleged narcotics. They testified to the effect in-

jections had upon them (A. 22, 24) and of the pains and

fear of withdrawal (A. 23). All of this testimony had been

received over a standing objection (R. 19, page 11) and

subject ‘to the Court’s ‘‘protective instruction’’ to the

effect :

‘*. .. under our system of law you may take into

consideration with respect to any one defendant only

things which he said or did.

‘‘Therefore, any testimony about a conversation

with Mr. Sandsbury is applicable only to Mr. Sands-

bury, and is not applicable to Mr. Anderson, to Mr.

Roviaro or to Mr. Capko.

‘‘There is one exception to that general principle,

and that is that if you find, if you ever do, if you find

that there was a conspiracy ...’’ (Tr. 123) (R. 19,

page 11)

Further, the Court denied the petitioner’s motion to

strike the testimony (Tr. 293, R. 19, page 11).

It should be noted that the petitioner had moved for

severance twice prior to trial (A. 7, 21) and renewed

29

his motion for severance at the close of the government’s

case (A. 90-91) and at the close of all evidence (A. 91).

All of these motions were denied.

The government, in dismissing Sandsbury, was in effect

admitting that under the law there was insufficient evi-

dence to prove he was guilty of conspiracy (specifically

conspiring with the petitioner and therefore the petitioner

did not conspire with him).

The jury found the defendant, John Capko, was not

guilty (A. 99-100). Therefore, the petitioner could not b>

guilty of conspiring with John Capko.

The jury disagreement as to the guilt of Walter An-

derson and the resultant mistrial (A. 98-99) show that

the jury did not unanimously find that Walter Anderson

conspired with the petitioner beyond a reasonable doubt,

and therefore under the law, it could not have found that

the petitioner conspired with Walter Anderson.

If the Court’s instruction were followed, therefore, the

jury was not to consider any of the testimony or evidence

of acts or statements outside of the petitioner’s presence

or knowledge that were admitted against Sandsbury, Cap-

ko, or Walter Anderson.

‘“‘The government should not have the windfall of

having the jury be influenced by evidence against a

defendant which, as a matter of law, they should not

consider but which they cannot put out of their minds.

-.. The naive assumption that prejudicial effects

can be overcome by instructions to the cere

practicing lawyers know to be unmitigated fiction

...’’ Bruton v. United States, 391 U.S. 123, 20 L.Ed.

2d 476, 481.

It was contended by the government in the District

Court that the mere fact that the petitioner’s co-defen-

dants were acquitted and the fact that the issue of the

4

%

&

é

NS RR De Si a ~

30

prejudicial effect of the evidence was treated in the

petitioner’s direct appeal should foreclose the issue now.

~The Court of Appeals, in its opinion on the petitioner’s

direct appeal, specifically held that because of the trial

court’s limiting instructions evidence could not be said to

be prejudicial. (United States v. Roviaro, 379 F.2d 911,

914).

However, it should be noted that the petitioner’s direct

appeal was taken and the decision was rendered without

the benefit of Bruton, and while the law was as stated in

Delli Paoli v. United States, 352 U.S. 232, 1 L.Ed. 2d 278,

and United States v. Torres, 354 F.2d 633.

‘‘We therefore overrule Delli Paoli and reverse.’’

Bruton v. United States, 391 U.S. 1238, 20 L.Ed. 2d

476, 479.

Petitioner further argues that his right to confrontation

was violated by allowing evidence of acts and statements

of an alleged unindicted co-conspirator who was dead at

the time of the trial.

Testimony of many acts of the deceased Fred Drake

and of the fact there were conversations with the clear

import of what the conversations were, was allowed in

evidence (A. 24, 25, 27, 28, 37, 38, 39, 41). Most of this

testimony was admissible only against Walter Anderson,

since most concerned acts and statements outside the

presence and knowledge of the petitioner but within Wal-

ter Anderson’s knowledge. Further, much of the testi-

mony was of acts prior to 1960, outside of the statute

of limitations.

By allowing such testimony and evidence to go to the

jury, in view of the disagreement in verdict on Walter

Anderson, and the conclusion therefore that the petitioner

could not be found guilty of conspiring with Walter An-

BASIS LE

31

derson, it becomes clear that the jury was allowed to

consider prejudicial evidence which was not admissible

against the petitioner, to convict the petitioner.

The violation of the petitioner’s right to confrontation

becomes evident when it is remembered that he was not

present when most of the acts of the deceased unindicted

but alleged co-conspirator Fred Drake took place, and

that the petitioner was unable to call the deceased man to

the stand at his trial, as well as being unable to eall his

live co-defendant Walter Anderson, who was the only

other person alleged to have been present other than the

testifying witness, because of the joint trial.

The Court instructed the jury as follows:

‘‘Now if and when it appears from the evidence

that a conspiracy did exist, if it does, and that a

particular individual was a member of it, then and

thereafter any acts knowingly done, any statements

made by any person likewise found to be a member

of this partnership in crime or this conspiracy may

be considered by you as evidence in the cases not only

as to the man who did it or said it, but as to every

other partner, every other member of the conspiracy

whom you find at that time to be a member of the con-

sptracy based on his own acts or his own statements.’’

(Emphasis added.) (A. 81)

It is clear from the disagreement on the verdict as to

Walter Anderson that at least one juror and _ possibly

more believed that Walter Anderson had been proved to

be a member of ‘‘the conspiracy’’ beyond a reasonable

doubt. It is further clear that from the verdict of guilty

as to the petitioner that all the jurors believed that the

petitioner had been proved to be a member of ‘‘the con-

spiracy’’ beyond a reasonable doubt.

OE Sa TWN yop yen?

PET SOTERA PLES TIC LTS EIT EEA gt RE

ES OO Taig ee ee By Me,

.

32

The reasonable conclusion is that at least those jurors

who believed Walter Anderson was a member of ‘‘the con-

spiracy’’ then followed the Court’s instruction and con-

sidered acts and statements of Walter Anderson as well

as other evidence admissible solely against Walter Ander-

son not only as to Walter Anderson but as to the petitioner.

Certainly, it cannot be found that such is not the fact

beyond a reasonable doubt as would be required (Chapman

v. California, 386 U.S. 18, 17 L.Ed. 2d 705).

The petitioner’s inability to call Walter Anderson to

the stand makes the violation of the petitioner’s rights to

confrontation, cross-examination and a fair trial by jury,

as secured by the Sixth Amendment, clear.

The Court’s attention is directed to the recent case of

United States v. Bujese, 2 Cir., 378 F.2d 719, reversed 382

U.S. 297, 20 L.Ed. 2d 1113, 88 S.Ct. 2064; remanded for

new trial 405 F.2d 888.

In that case, the co-defendant whose statement impli-

cated the defendant, took the stand and testified, and in

that testimony, attempted to exonerate the defendant Bu-

jese. There was no objection in the trial court to the

prejudicial statement, yet this Court reversed the con-

viction and remanded the cause to the Second Circuit

in light of Bruton, and that Court then reversed and re-

manded the cause for a new trial. It is suggested that in

the case at bar, the error was preserved by objections and

motions for mistrial, and that the violations of the peti-

titioner’s rights under the Sixth Amendment to confron.

tation, cross-examination, and a fair trial were far more

pervasive than in the Bujese case.

The Court’s attention is also called to the following

cases :

33

Johnson v. Yeager, 3 Cir., 399 F.2d 508, where the Court

held that admission of co-defendants’ confessions under

limiting instructions was e~nstitutionally erroneous under

Bruton.

United States v. Greene, 6 Cir., 400 F.2d 847, where the

Court held at 848:

‘‘Although the general rule is that the subsequent

striking of erroneously admitted evidence accom-

panied by a clear and positive instruction to the jury

to disregard it cures the error ... If the evidence is

of such an exceptionally prejudicial character that its

withdrawal from the consideration of the jury cannot

remove the harmful effect caused by its admission,

a new trial will be granted.’’

It might be noted that in the case at bar, the trial judge

denied motions to strike the testimony.

Kinser v. Cooper, 6 Cir., 413 F.2d 730, where the Court

held that where a codefendant tried jointly with the defen-

dant was charged with aiding and abetting the defendant in

perpetration of a rape, that comment upon the failure of

the codefendant to testify necessarily implicated the defen-

fendant, was prejudicial, and violated his right to a fair

trial.

United States v. Heft, 7 Cir., 413 F.2d 1027, where a

different panel of the Seventh Circuit held that where

evidence has been seen by the jury, the defendant cannot

later be protected by instructions to the jury and a new

trial should be granted.

It is thus suggested that there now exists a conflict

amongst the Circuits, and even a conflict amongst panels

of the Seventh Circuit as to the effect of this Court’s

holding in Bruton.

34

It is further suggested that as this Court held in Bollen-

bach v. United States, 326 U.S. 607, 613, 90 L.Ed. 350, 355:

‘‘conviction ought not to rest on an equivocal direc-

tion to the jury... .”’’

The protective instructions in the case at bar, when con-

trasted to the trial court’s denial of motions to strike, are

at best equivocal.

The Petitioner submits that his sentence and conviction

were obtained in violation of his rights to confrontation,

cross-examination and a fair trial by jury, and therefore

should be set aside.

CONCLUSION

For the foregoing reasons, the Petitioner prays that his

Petition for a Writ of Certiorari be granted.

Respectfully submitted,

Cart M. WALsH

29 South LaSalle Street

Chicago, Illinois 60603

312-332-7374

Attorney for Petitioner.

March, 1970

ate Sead’ sini