# Petition for a Writ of Certiorari — Callahan v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1200%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 826 ## Text ae 3 AGRA re ¥. Supreme Gourt, tod coo ; SUPREME © WEE re | e /FELED ar. eee RR FR? a MAY 201971 B ROBERT SEAVEX, Ct 7RK IN THE Supreme Court of the United States October Term, 1970 70 -/ 5 ? | Tv HOM AS CALLAHAN and THOMAS-KAPATOS, ceriake Petitioners, vs. UNITED STATES OF AMERICA. _ PETITION FOR A WRIT OF. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR . THE SECOND -CIRCUIT a HERALD PRICE FAHRINGER, 2 Counsel for Petitioner, Thomas Callahan, LAWRENCE A. SCHULZ, | i. On the Brief, One Niagara Square, — a. Buffalo, New York 14202, THEODORE ROSE NBERG, 133 Schermerhorn Street, Brooklyn, New York, Counsel for Petitioner, Thomas Kapatos. if Of eeets : Lipsitz, GREEN, FAHRINGER, Roi_, SCHULLER AND JAMES. - J April 27, 1971. BATAVIA TIMES, LAW PRINTERS, ; eG ERs : BATAVIA, N.Y. . 2 — ee ei Py . = -- - . .s . ° . ° e “1 8 ’ " \ ‘ ; ¥ \ | rf \ “ Mo : \ : i a - | : ‘ s P| >= - 7 ; s - aed ‘ ‘ INDEX TO PETITION FOR WRIT OF CERTIORARI” ~~ ee * eee _ Reaséns' for Granting the Writ . Cipres v. United States, 343 F. 2d 95 (9th Cir., 1965), | Cert. demed, ee er ceive anneve 26 =n The decision below is in direet conflict with and ss % acs . . PAGE ee ee ee een Vea Read aes 1 Jurisdiction ......... enka darcans : Doe eas paren 1 Questions Presented ..............: Zexwebres ht & Constitutional Provisions Involved ................. 8 SME SOON 0 S93 dords 03s ew cd sre oe bavi dante Statement of Facts ......... Pay tees ages Fee TS | I. i in defiance of this Court3s rulings regulating © identification procedures to be used in eriminal : eniddabnsdee Bhedsnas cue see Brite “eeeee 8 Identification gy er ee apr eee j The Identification. was Terperanlesibiy Sug- > ; I rok wek eer bnssee lcs sacs sereee 14 IL. The Search and Seizure Issue .............¥. 18 III. The decision below raises anew the unresolved constitutional question concerning” the use of hearsay evidence before a grand jury ......... * 30 . FV. Petitioner Callahan’s mere participation in. the overall conspiracy to rob a money truck was “ insufficient to sustain a separate conviction of the substantive offense of transporting in inter- state commerce a stolen vehicle which’ the Gov- ernment concedes he in no way. participated.. 35 . Conclusion SORES RAMC Abn Gelcm ee cae Sb awhendna Ge rens 40 | Aimee: eat of the Second Circuit eee re A-1 (Siaateecucs. Alderman v. United States, 394 U. 's. 165° (1968) . eae . 34 Baker v. United ‘states, 395 F.2d 368 (8th Cir., 1968):. 39 | Bumper v. North Carolina, 391 U. S. 543° (1968) vaens 24, 25 II. ? + \° _ PAGE ‘. Davis v. United States, 362 F. 24 964 (D. C. Cir. 1966), G08: GORE Te Bis We Eo 8 has kB Awad ee pnasscads Escobedo v. Illinois, 378 U. 8. 478 (1964)........ 11, 12,16 _ Foster v. California, 394 U.S. 440 (1969)........ 14, 15, 18 Frazier v/ Cupp, 394 U. S: 731 (1969) ............... 27. _.Grimes’v. United States, 379 F. 2d 791, 795° (5th Cir., 1967), Cert. denied, 389 U. S. 846 ................ 39, 40 Johnson v. Zerbst, 304 U. 8. 458 ers ‘26, 28 - Judd v. United States, 190 F. 2d 649 (D. C. Cir., 1951). 24 - Katz v. United States, 389 U.S. 347 (1967).......... 24 Lambert. v. United States,. 261 F. 2d 799 (Sth anit FEO CT EET ECCT EC TERETE Te aan alt Mack v. United States, 326 F.2d 481 (Sth Cir., 964), ik cort.. denied, 377 Ui; . GAT .. obn ccc tcces seve . oe ’ Massiah v. United States, 377 U.S. 201 (1964). Ui, 12,16 Miranda v. Arizona, 384 U. S. 436 (1966)....... 94. 25, 29 Nye and Nissen v. United States, 336 U. S. Sie | CEE icdctus ethewsaenadad wan enka se tenses 0,30 . People y. Friedlander, 16 N. Y. 2d 250 (1965). ikusen ee Stoner v. California, 376 U: S. 483 (1964)..... ee Stovall v. Denno, 388 if 5} eee ee Cee 14 United States v. Arcuri, 405 F. 2d 691 (2d Cir., 1968) ... 32. United States v. Beltram, 388 F. 2d 449 (2d Cir. » 1968). 32° | - United States v. Blalock, 255° F. Supp. 268 (K. D. re United States v. Costello, 350 U. S. 359 (1956)....... 1 United States v. Curiale, 414 F. 2d 744 (2d Cir, 1969)... 27 United States v. Honeyeutt, 311 F. 2d 660. (4th Cir. rere erry Tre ep preter Sere 40 -- United States v. Jordan, 399 F. 2d 610 (2d Cir., 1968) .. © 29 United States ¥. Moderacki, 280 F. Supp. 633° (D. Del. a rere er Perr errr reer reer 29: United States v. Murphy, 222 F. 2d 698 (2d Cir., 1955) . 13 United States. v. Nikrasch, 367 F. 2d 740 (7th Cir., 1966) 29 United States .v. Payton, 363 F. 2d 996 (2d Cir., 8) .32, 33 - . United States v. Umans, 368 F. 2d 725 (2d Cir., 1966)... 32 United States v. Wade, 388.U. S. 218 (1967)........ 11, 14 "United States ex rel. Ev erett v. Murphy, 329 F. 2d 68 | me ke | eer eri rere corer errr eres 13 - Villano v. United States, 310 F. 2d 680 (10th Cir., RR RRR mere Py Py re ure ree re 26, 27 Wren v. United States, 352 F. 2d 617 7 (oth Cir., 1965) .26, 29 g e : IN THE Supreme Court of the United States ; : October Term, 1970 : THOMAS CALLAHAN and THOMAS KAPATOS, | - Petitioners, VS. UNITED STATES OF AMERICA. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR. ‘THE SECOND CIRCUIT The petitioners, Thomas Callahan and Thomas ‘acaton pray that a writ of certiorari issue to review the judgment -.of the United States Court of . Appeals for. the Second Circuit entered in the , above-entitled case on. | March 22, 1971. ; | ‘Opinion Below | The opinion of the Court of Appeals, duit March. 22, 1971, is not yet reported, but is reprinted i in the appendix hereto, p. A- 1, infra. . | Jurisdiction ~ : AS Following a jury trial, the petitioners Thomas Callahan and Thomas Kapatos were found. guilty on June 17; 1970 of charges of conspiracy to violate § 2113, the Federal 2 , ; | ” Bank Robbery: Statute, and transporting a stolen vehicle in interstate commerce in-violation of $aits of Title 18 of - the United States Code. On July. 15, 1970, the petitioners Thomas Callahan and Thomas Kapatos were sentenced to five years on each charge to run consecutively. The Court of. Appeals for the Second Cireuit affirine’ thé judgment of eonviction on March 22, 1971. On April 6, 1971, Mr. Justice Harlan signed ‘an order | exteriding the time for filing this petition for a writ of - certiorari to and including May 21, 1971. The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).. Questions Presented _(1) Was the identification of the petitioner Kapatos impermissibly suggestive and violative of his Sixth Amend-. ment right to counsel where he appeared at a Grand Jury proceeding with his lawyer and was secretly placed in a | one-to-one linejup without his lawyer’s knowledge? _ - (2) Whether a search of petitioner CaHahan, conducted © behind the closed doors at FBI headquarters, after he re- . fused to be questioned, photographed, fingerprinted, and was told to “empty his pockets’’ can be considered volun- — tary in the constitutional sense. (3) Whether petitioner’s rights under the Fifth Amend-— ment providing that no person shall be held to answer for ~ an infamous crime, unless on a presentment or indictment of a Grand Jury, was violated where no. factual witnesses : were called before the Grand Jury but all of the hearsay evidence was summarized. by an FBI agent? . ve Ce ee oe eed 3 (4) Whether pétitioner ° ‘Callahan’ ’s mere participation in the overall conspiracy to roh:a money truck in New J ersey was Sufficient - to sustain a separate conviction of. : transporting in interstate commerce a stolen vehicle in which ‘it is eonceded he in no way participated in? "Constitutional Provisions’ Involved | AMENDMENT IV . “The right of the people. to be secure in their persons, : _ hquses, papers, and effects, against unreasonable searches: _and seizures, shali not be’ violated, and no Warrants shall - issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be — searched, and the persons or things to be seized. AMENDMENT V No person ‘shall be, held to answer for a, capital, or other- | ment of a Grand Jury, except in cases arising in the land or naval forces, or in the. Militia, when in“actual service in time of War or. -public danger; nor shall any person he subject for the same offense to be twice put in jeopardy of life.or limb; nor %hall be compelled in any criminal case wise infamous : a Sar se on a presentment or. jndict- . to bé a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private’ property be taken for public use, without just com-. pensation. Cats | | nee AMENDMENT VI. | ‘| In all et prosecutions, the accused shall enjoy the right to a spe¢dy. and public trial, by an impartial jury of the State and district wherein the ‘crime shall’ Have been committed, which ac cia shall have been previously ascer- | I | i a 4 tained by law, and to be informed of the nature and cause of the accusation; ta be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Coun- sel for his defence. MO BS raat Statutes Involved Title 18, U. 8. C. §.371 provides in part: “If two or more persons conspire either to commit any offense against the United States . . . and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than ae 000 ‘or a aie not more than five iccccea or Title 18, U.S. C. § 2312: “Whoever transports in ‘interstate or foreign com- merce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or a not more than five years, or nan”. Title 18 S.C. $2: array a “(ay Whoever commits an offense against the United States or aids, abets, counsels, commands, in- duees or procures its commission, is punishable as a principal. “(b) Whoever “willfully causes an. act to be done -” which if directly performed by him or another ~ would be an offense against the United vsti is hunrarrst as a a dari ase ate . * Statement of Forte On December 21st, 1964, a money truck carrying. $500, 000 belonging to the First National Bank of Passaic County,! was intercepted and robbed by five men wearing masks. ‘The First oe pera “tha of Passaic County: will. be called the -New J ersey Bank.- 2 a On August 5th, 1968, four years later, a nine-count indict- — , ment was returned in-the Federal District Court for. the Southern District of New York, charging Thomas Callahan and.Thomas ‘Kapatos, the Petitioners, and Frank Camp- - bell, John Pierce and Henry Speditz, with conspiring to violate the Federal Bank Robbery. Statutes [18 U.S. C. § 2113(a)} and § 2113(d)]. . Only the defendants Callahan and Kapatos were tried for these offenses, and the Govergnent’s case implicating them in these crimes rested’ almost -exclusively upon the testimony of Charles Roberts, another’co-conspirator who — _ was neither named nor charged .in the indictment. Although the trial, of tise charges consumed ten days of testimony and involved 48 witnesses, it will not be neces- sary to devote much space in this pétition to the coverage of all that evidence because only two counts of the original | indictment were submittéd to the jury, Count 1 (the con- " spiraey count) and Count 8 (the stolen car count). Thus, the facts relevant to those counts can be briefly sketched.* © Charles Roberts, the Government’s chief witnéss, and — the only person who implicated the: Petitioners in the at-— tempted robberies, is a convicted felon and was paid over $5,000 for his cooperation with the Government (332a, * 333a).? And, as is usual with this breed of witness, he had lied on. previous oceasions and has not been prosecuted for. other crimes ‘he has committed which are just as, serious as those involved, here (342a, 243a, 250a,, 128a). * We apologize for the length of this petition - ‘hut it does Thvolve two Petitioners: with a number of Constitutional ‘claims. 2 Refers to the pages of the appendix in the United States Court. of Appeals. To avoid confusion, reference to pages of the appendix _ attached to this Petition will be referred to parenthetically as A-1, A-2, et cetera. : 6 Roberts said that the co-defendant John Pierce had con- ceived of a plan for robbing a money truck belonging to the First National Bank of Passaic County during the course of its pick-ups and deliveries in ‘the City of Pater- son, New Jersey (129a, 130a). He had apparently studied the route of this money truck and ‘had located ‘a place where he thought. it could be easily intercepted and relieved of its contents (130a). He introduyed this plan to Roberts who then joined the conspiracy. Roberts claimed that the Petitioners Callahan and Kapatos, were then invited to join this confederacy and did so (138a, 148a). The robbery plan,| as described ‘by Roberts, consisted - of Campbell, who world be driving a station wagon, wait- _ ing for the money truck while it was making its deliveries, - and then at a fixed point he would pull in front of it, slowing it. down to a ‘stop at a designed place -in front of a factory: in Paterson, New Jersey (160a). When the money © truck was stopped, Petitioner Kapatos, who was supposed to lie on the back floor of the station wagon armed with a machine gun, would raise himself up, pointing the weapon at the truck. guards (148a). Petitioner Callahan and Roberts, who were to be positioned on opposite. sides of the street where the truck was stopped, would then come. . up on the guards, in a flanking movement, taking them into custody (160a). John Pierce,.operating a Buick automo- © bile, would drive up and park immiediately behind the truck, thus completing the pincer movement (148a).. — - * Roberts claimed that two separate attempts to rob the | truck were aborted because of unexpected developments. On May Ist, 1964, the first occasion when the plan to ambush the money truck misfired, the —* wagon driven by, Campbell was on its way over, to/ intercept the money . truék when a motorcycle police officer was. observed, which a IT LO Tt . | 7 understandably resulted in the iii S miscarriage (169a). All of the defendants then returned to New York 1 in Kapa- tae tos’ automobile (17a). dee r Several weeks later Roberts claimed a second ann was made on the money truck which. was. also bungled (175a). The.same plan of attack was followed, but this time Campbell, again driving the ‘station wagon, made a wrong ; turn and missed the money truck ( 179a). Once again, the parties dispersed and returned to New York (171a). “ de With these two unsuccessful attempts on the "money truck behind them, Roberts and Campbell became: dis- enchanted with the project ‘and withdrew from the con- spiracy (183a, 280a), Consequently, from. this point on there was no further proof produced of any conspiratorial — activity on the part of these Petitioners. With the excep- tion that Roberts claimed he saw Callahan in 1965. when Callahan is alleged to have made the equivocal comment “Aren’t you sorry you didn’t get-a hunk of that seore?”. (189a). 7 - On December 21st, 1964, the money truck was robbed, but an entirely different plan was employed. On that oc- casion, when the drivers of the money truck entered St.: Anthony’s Rectory in Paterson to pick up the week’s col- | lections, they were confronted by several masked men who took them into custody and stole approximately $500,600 (T 551).2 Although the truck guards and several witnesses from the rectory’ testified, none were able to identify any of the men who committed the robbery. Since none of the questions presented’ in this petition involve the overall evidence, we will discuss the facts” pertinent to the issues raised here under the appropriate — Refers to the pages of the original trial transcript. | Poe: eae point headings. However, it should be stated tHat the trial . began on June Ist, 1970, before the Honorable Thomas F. Murphy and ended on June 17th, 1970, with the jury’s re- turning a verdict of guilty on the only two counts submitted to them—Count -1, the conspiracy count, and Court 8, charging the transportation in interstate commerce of a stolen 1962 Mercury. station wagon (T- 1335)» The-other i counts were dismissed on the Petitioners’ motion, “because of the lack of venue”, and Count 9 was dismissed for a failure of proof (T 1335). | | On July 15th; 1970, the Petitioners: Thomas Callahan and ’ Thomas Kapatos were sentenced to five years on each — count to run consecutively. - On March 22nd, 1971, the United States oe of Aids for the. Second Circuit unanimously affirmed their convic- tions. Reasons for Granting the Writ 4 : I. The decision below is in. direct conflict : with and in defiance of this Court’s rulings regulating identification procedures to be used in criminal cases. — Procedures used by the police in ‘identifying the Peti- tioner Kapatos as one of the co-conspirators in this case are so patently at odds with the controlling decisions of this ‘Court governing proper methods of identification and are so serious a threat to the continuing vitality of those deci- sions, as to call for immediate corrective action. On December 21st, 1964, a money truck was robbed by. several masked men who secreted’ themselves in St. Anthony’s Rectory. At the trial, no one identified the Petitioners Callahan and Kapatos as_participants in this robbery. However, sometime before the robbery, a man — ~. Panesar set -9 : oe visited St. Anthony’s Rectory on two occasions and re- quested food, which was given to him by Sister Olympia, | a nun residing’ in the rectory (401a, 402a). At the trial, -_ when Sister Olympia was asked whether she saw. in the courtroom the man who came te-the rectory on those two —oeeasions, she replied, “T can’t really state that I see him” » (403a). _ However, Sister Olympia and an F B I sant were per- mitted to testify about her previous identification of the | Petitioner Kapatos as the man who allegedly came to the 4 rectory ( on those two occasions. Identification Procedure On J anuary 24th, 1965, a month after the sini. Peti- tioners were subpoenaed before ’a federal grand jury in Newark, New Jersey. Both Petitioners appeared before that grand jury with counsel. : When they. arrived. at the Federal Cour ouse in Newark, they were ushered into the Grand J ury m, where there were ten or fifteen other prospective witnesses. The Assistant United States Attorney in charge of the investigation made a point of calling out the’ Petitioners’ - names in the presence of these. witnesses and ‘‘took great pains to. make certain that each prospective: witness had a- $ood opportunity to view the defendants.” 300 F, Supp. 519, at523. The Petitioners were then taken into a suité of rooms, under the pretext of signing ‘vouchers for their _ witness -fees, ‘where ee were secretly viewed. in a show- 4 These facts snl the ones that follow, are taken almost verbatim . -from Judge Motley’s opinion in this case reported in 300 F. Supp. — 519, at 523. See also Petitioners’ motion in the trial court addressed to. the improper identification procedures employed here, which have ~ been made apart of thé record on appeal. : 10 up by Sister Olympia, the Government’s key identification witness. Sister Olympia was stationed behind bookshelves ° in such a way that she could view persons on the other -- side without being seen "herself (348a, 403a). The Peti- tioners and one other person were paraded in front of her ‘‘one at a time’’ (420a). | - Sister Olympia testified in Court that at this show-up in. Newark she recognized Kapatos as the man who came to the rectory for food spay prior to the robbery (403a, 404a). Apparently, a day or so after the solihicws, Sister tities. pia was shown photographs of’ Kapatos and Callahan, but was unable to identify. either as the man whom she had seen on the two previous occasions at the rectory. On. this occasion, she was unable to give any identifying features — of the man who came to the convent (364a). However, on December 30th, more than a week after the robbery, and approximately two weeks after she had seer: the man who came to the rectory, she was shown photographs again (371a). FBI Agent Laughlin admitted that Sister Olympia. had “thought about’ the matter and she had an opiziion with respect to Thomas Kapatos’ ae, the person who visisted the convent”’ (379a). All of Sister Olympia’s teach relating to bie out- of-court identification of the Petitioner Kapatos was sea- sonably objected to by counsel ices 413a, —_ 415a, 416a). ; Thus it is undisputed that the Petitioners were forced * to appear in a secret show-up, out of the presence of their’ lawyers, under the compulsion of a Federal Grand Jury subpoena. Both the Petitioners had hired lawyers to con- ‘voy them through the treacherous waters of this Grand 11 2 Oe noes Jury proceeding. There:can be no question that the prose- - eution had clearly focussed upon them; consequently, a a critical stage in these proceedings had been reached. United States v. Wade, 388 U. S. 218 (1967).5 ‘During the course of the trial, a judicial ‘investigation was conducted into the constitutional propriety of the identification. procedures used in Newark, and after a -hear- ing the court concluded, ‘‘. . . that there was no violation of any of the due process rights of the defendant Kapatos”’ ‘(348a-369a). Since Kapatos had é vedainel attorney in the courthouse in Newark at the time he was secretly placed: in the one-to- one show-up, his first complaint is that. he was deprived of the’ assistance of his lawyer at a critical stage in the - criminal proceedings. The Government’s ‘official miscon- duct brings Kapatos well within the reach of this Court’s decisions establishing a defendant’s right to ‘his retained counsel at a crucial stage in a criminal prosecution. Escobedo v. Illinois, 378 U.S. 478 (1964); Massiah v. United States, 377 U.S. 201 (1964). . The Court will recall tliat Escobedo, the subject of a murder investigation, was denied the assistance of his _ lawyer, who was at the police station, but was not allowed to see his client: Here the Petitioners were surreptitiously - separated from their lawyers and placed in-a secret show- up, ‘effectively depriving them of the advice of their coun- sel at a critical stage in these proceedings. As in Escobedo, _ they were deprived of “‘the guiding hand of counsel,’’ so essentially needed to advi ise them. b their Tights | in this 5 We recognize that because these events occurred hatore June 12th, 1967, the Petitioners were ineligible for the Wade warnings, but they _ were certainly entitled to the assistance of their retained lawyers under bags Sixth Amendment. Escobedo v. Illinois, 378 U. S. 478 (1964 } tye . | - erucial sitcatigh This was ‘‘the stage chin legal aid wail advice were most critical’? to them. What happened - at - this show-up ‘‘ ‘would certainly affect the whole triat . since rights may be irretrievably lost, if not then and there asserted, as they are when an .accused ‘represented by counsel waives a right for strategic purposes’ ’? at trial. 318 U.S. at 486. _As this Cinet pointed out in Massiah v. United States, 377 U.S. 201 (1964), at such ‘a crucial stage in the prosecu- tion, the Petitioners were ‘‘. . ..as much entitled to such aid [of counsel ] during that serie as. at the trial itself.’’ 377 U. S..at 205. The Court there, expressing its “alarm over such secret procedures, quoted from Judge Hays’ moving dissent in the Second Circuit as follows : “« . if such a rule ‘is to have any efficacy, it must. ; apply to indirect and surreptitious interrogations as well as those conducted inthe jail house. In this case, Massiah was more seriously imposed upon . : . be- cause he did not even know. that he was under inter- rogation by a government agent.” 377 U.S. at 206. Surely this‘ language applies with equal force to our | -_“surreptitious”’ show-up, because here Kapatos, like Massiah, did not know he was being put in a ‘show-up and his lawyer had been deceived into thinking that his client \ was merely in a federal courthouse for thé purpose of. . appearing befpre a grand jury. . Had his lawyer been made | aware of this clandestine activity, he could have insisted - that he be present to observe the irregularities in the iden- "\ tification procedures, could have recalled any suggestive statements made by F B I agents to identifying witnesses, would have insisted upon his client’s being placed in a traditional line-up, would have’ certainly objected to the highly suggestive ‘‘one-to-one’’ identification procedure, and thus could have more e effectively cross examined those ig 13 who participated in the secret show-up. Once the Govern- ment is on notice that a ‘defendant has a lawyer, it is . obliged to honer. ‘that relationship and do nothing to interfere with his attorney’s offering him: assistance, ; whether or not a‘ ‘critical stage” i is reached. In a word, Sister. Olympia’s very shaky wna fragile iden. “tification of Kapatos could not be effectively challenged by his lawyer because of this official trickery. . Thus, the ~ Government, by’ separating the Petitioner Kapatos from his lawyer at this vital stage in the prdveedings, effectively | foreclosed him from ‘‘any meaningful defense. ”’ - Significantly Sister Olympia was the only wileas out | of 48 -ealled: by the Government, who identified Kapatos and in any way connected him with the robbery in New | . Jersey. ‘It was this vital testimony that the jury asked to have re-read to them after their jury deliberations com- menced (531a). ” Aside from depriving the petitioner Kapatos of the as- sistance. of counsel at this critical stage in this criminal case, the proseéution’ S forcing him into ‘a secret show-up by the misuse of the grand jury process is indefensible and- cannot under arly circumstances be condoned. Courts ‘have understandably been much harder on prosécutors when they engage in official deception or deceit in ara wie | dence from unsuspecting defendants.° “Tr the right to counsel is to remain saaiiaienl, judicial: fidelity to this Court’ s rule-that no man should be deprived | - 6 See, 0.9.5 United States ex rel. Heavid v. pe 329 F..2d 68 * at 69, where the Court reversed a murder conv iction where the defend- ant confessed: after he was arrested “. . ‘on the pretext that the ar-_ resting officers had a.warrant from the Domestic Relations Court be- cause Everett’s children, were huner No such warrant existed.” See also, United States v. Murphy, 22% F. 2d 698 (2d Cir., 1955), | and People v. pesegander, 16 N.Y. 2d 250 peace ms \ \ \ \ \ 3s 14 of the assistance of counsel at a critical stage in a criminal ease is essential. -For this reason alone, and without re- gard to any of the other errors committed in this case, Kapatos’ petition for certiorari should be granted. The Identification i Impermissibly Saniiaties This Court was careful to point out in Stovall v. Denno, 388 U. S. 293 (1967), that aside from the right to counsel, identification procedures must meet due process standards. of fundamental fairness. in order to pass constitutional muster. It is uncontroverted that Sister Olympia was the only identifying witness in this case and her identifica- . tion was most uncertain. The identification occurred more ‘than a month after she claimed she saw Kapatos and her identification of him was the result of a most suggestive - show-up in a one-to-one situation. And finally, of critical importance was her inability to identify him at the time of the trial. Consequently, her constitutionally impermissible , identification became the sole basis of his conviction of these serious offenses and his résulting ten year prison. sentence. f ‘ The cotsiltaitonsity triumphant ‘Sidi of .this Coutt in Wade, Gilbert and. Stovall have spawned a mass of litiga- .tion which has reached almost unmanageable proportion. — ’ However, the case which most closely resembles the one at bar is Foster v. California; 394 U. S. 440 (1969), where an accomplice implicated the petitioner in an armed rob- bery of a Western Union office in California. As: in our _ ease, there was ‘only .one other ‘identifying witness who | corroborated, the accomplice. . This Court condemned the : line-up procedures used there, which were manifestly fairer than the ones used here, and held: > 15 ‘‘When this did not lead to positive. identification, the police ‘permitted a one-to-one confrontation between petitioner and the witness. This Court pointed out in Stovall that ‘(t]he practice of showing suspects singly to persons for. the purpose of identification, and not — -as part of a lineup, has been, widely. condemned.’ 388 . U. 8. at 302, 97 S. Ct. at 1972. Scan after this the wit-. ness’ identification of petitioner. was tentative: So . Some days later another lineup was arranged. Peti- _ tioner was the only person in this lineup who had also ~ participated in the first lineup. This finally produced ° a definite’ identification. oy U. S. at = ‘Emphasis supplied.) i o * * * ° : “ - The suggestive elements in this identification pro- cedure made it all but. inevitable that David would identify petitioner whether or not.he was in fact ‘the man.’ In effect, the police repeatedly said to the wit- tess, ‘This is the man.’ See Biggers v. Tennessee, 390 U.S. 404, 407, $8 8. Ct 979, 960, 19 L. Ha. 2d 1267 ting opinion). This procedure so undermined he reliability of ‘the eyewitness identification. as to viatate ‘diie process. * * * The respondent invites us to hold that any error was _ harmless under Chapman: v. California, 386 U. 8: 18, 87'S. Ct. 824, 17 L. Ed. 2d 705 (1967). We decline to. rule upon this question in the first instanee, Accord- _ ingly, the judgment is reversed and the case remanded for. further proceedings not inconsistent with this opinion.’’ 394 U. S. at 444. : The Court of Appeals, ina rather subuniry manner, ; ruled that ‘‘there was nothing suggestive about the way in which Kapatos was brought within the view of. those behind the bookcases’“and also concluded that the ‘. lineup ‘was not in any sense custodial; Kapatos was ‘not under arrest nor was he subject to restraint of any kind; ; . .” (A-23). eee ee L oe | ee it As if that were not aus the Court of Appeals an- nounced. an astounding new rule b§-holding : 6é . we think it proper to express our views . that after ‘the, commission of a crime, in addition to the use of photographs, as permitted by Simmons, we can — find nothing in Wade; Gilbert, Stovall, or any other — comrt decision banning. stratagems or deceptive | actices in. general or preventing law enforcement officers from putting witnesses in a Hosition to see or photograph the suspect in the neighborhood of his home or his work, playing golf or doing anything else ina publie place. And all this, we think, ean be proper- - ly done without letting the. suspect know in advancé that heeis to. be viewed or telling him he had a right to the presence of a lawyer. [citing a number of circuit ‘court degisions. ]” (A-26 Emphasis supplied.) | What the Court 6f Appeals’ opinion overlooks is. that Kapatos’ presence in the Grand Jury anterodom was_ by - compulsion, He had been foréed to appear there with- _out choice, which of course, is quite different from view- ing a suspect at the place of his employment or elsewhere and of course, what the Court of Appeals ignored was the prosecutionss duty to advise Kapatos’ lawyers. that they - had a right to_be present at the time he was Bas through the ‘‘show-up’’ procedures. Our situation is saclensds. no - different than one - where a. defendant is taken to the police station.and is waiting to be placed in a line-up. If his attorney had appeared and said that he wanted to see his client, under the unmistak- able language i in Escobedo and Massiah, he would have an absolute right to confer with his client and be present while the defendant was placed in a show-up. The situa- - tion here~is absolutely no different and requires the same —— 7 “3 . ; / 17 . / It is imperative for the Court to remember that Sister Olympia never identified Kapatos in his trial. Thus, the only identification supplied to the jury: had its. origin in the show-up in Newark, which was infected with the con- stitutional infirmities complained of here. Consequently, this Court’s, language in Gilbert is mont relevant: ; “Quite different seudidorsions are involved as to the admission of the testimony of. the manager of the apartment house at the guilt phase and the eight wit- nesses at the penalty stage that they identified Gilbert _ ‘ at the line-up.’ That testimony is the direct result of the illegal line-up ‘come at by the exploitation of [the primary] illegality. Wong Sun v. United States, 371 U. S. 471, 488, 83 S. Ct. 407, 9 L. Ed 24.44%, The State .is therefore not entitled to an opportunity’ to show that that testimony had an independent source. Only a per se exclusionary rule as to. such testimony can be an effective sanction to assure that law enforce- ment authorities will respect the accused’s constitu- tional right to the presence of his counsel at the critical line-up. . That conclusion is buttressed by the con- sideration that the witness’ testimony of his line-up identification will enhance the impact of his in-court identification on the. jury. and, seriously aggrav ate’ whatever derogation exists of the accused’s right to a fair trial.” _388.U. 8. at? 272-274 (Emphasis supplied. ) The nuaseeutor in the Trial Court effectively exploited Sister Olympia’s out-of-court identificatién in his summa- tion, regaling the jurors time and time again with her out- of-court identification of Kapatos as corroboration for his . understandably weak accomplice ——— Roberts.7 — The 7 .“The best evidence in the case iene Mr. ‘conia the evi- dence that tells you without doubt that Charley Roberts was tell- ing you the truth and that Kapatos was involved in this ¢rime is the evidence of Sister Olympia. * ek o& a 7 ' (Footnoté. continued on following page) y oh: 18 : / ’ vital importance of Sister: Olympi ’s testimony is demon- strated by the jurors calling for the reading of her identifi¥ cation testimony during the course of their deliberations, ‘before returning their verdict against the Petitioners. ‘Under this Court’s clear language in Foster and Gilbert, a grant of this Petition is required. IL The Search and Seizure Issue. - Seldom has there been so shocking and so unwarranted an intrusion upon the rights established by the Fourth Amendment to be secure in one’s person against unreason. able searches and seizures. The decision below, sustaining the validity ‘of that: intrusion, ts patently inconsistent with the Fourth Amendment’s principles established by this Court and presents a recurring and important. aspect of the constitutional search and: seizure problem that deserves the full attention of this Court. | ‘(Footnote continued yr preceding page) Then she goes to the courthouse a month later, and she, along with many other people you heard, testify, were put in the library and told to look through books and see if the ‘y could recognize anyone, and they were asked whether they could recognize peo- ple who they saw the day of the robbery, and she couldn’t. She couldn’t say that she saw that man the ‘day of the robbery, but she could say ‘and did ‘say that she recognized one man as the man she had seen at the convent, and not only did she recognize his appearance, but she recognized his voice, because he was _ talking, and she remembered what he was talking ahout, and ‘it was about having pictures taken. * °& me Do you think Sister. Olympia has any reason to come here anil tell you a phoney story ? What is'good, ladies and gentlemen, is the fact that at the time _it happened, shortly .after it happened, then she could and she’ did make the identification. That is the reliable one. ‘That is the one you can count on, What happens today, six years later, it is worthy of being suspect” (46 4a-168a). 19° On January 22nd, 1965, one month after the robbery of _ the money truck in New Jersey, a band. of FBI.agents descended upon Room .106 of the Ocean Haven Hotel. in Miami Beach occupied by Thomas Callahan and a female -ecompanion. Callahan described in gripping detail how he was awakened by a knock on his motel room door and how upon his opening it, a number of FBI gents burst into his room (T 265). When he asked them what this was all about, he was told to keep quiet and put- bis. clothes on (T 266). Callahan was then rushed into a police.car and taken down to FBI headquarters (T 266). While at FBI headquarters, the federal agents attempted to fingerprint and photograph him and sought to- question ‘him, but he declined to answer any qrestions and refused to be photographed or fingerprinted (T 266, T 274). He ‘was then told to ‘‘empty your pockets’? and he removed from them a quantity of-money and a rubber band which was confiscated (T 271). The agerts then made him re- | move his pants (T 272). The version of the facts upon which the courts below relied as constituting the “credible evidence”, however, was __ the testimony of only the FBI agent who performed the -interrogating and the search of Callahan, agent Putz. Agent Putz was one of the three agents who brought in the Petitioner to FBI headquarters. According to Putz, and inexplicably contrary to the Court of Appeals’ version of the facts, it was not until the Petitioner was at head- quarters that he was informed of the subject of the ques- _ tioning (33a). Once at headquarters, Putz testified, Callahan refused to be photographed, fingerprinted or to answer any ques- tions. The petitioner asserted that he was cognizant of. ‘his right to remain silent and elected to do’so. However, 20 agent Putz asserted at the hearing that Callahan, in a mhan- ner inconsistent with his earlier-refusal to assist the agents, permitted a close search of his person, and. “voluntarily” - removed the contents of his pockets and then his trousers. Special Agent Putz claimed that he asked Callahan if he could “pat him down,” and it is claimed that Callahan said “O. K.” (34a). In the process of “patting him down,” agent Putz said he turned Callahan’ s waistband over’ and there found a slit in Callahan’s pants which contained a — rubber band. He then asked Callahan if he could keep the rubber band, and Callahan is alleged to have said “yes” (35a). Putz claimed he put the rubber band around the . money taken from Callahan’s pocket and placed this evi- dence’ in am envelope which was subsequently sent to the FBI lab in Washington (35a).°- ‘ a % It was stipulated that the usual consent forms commonly _ used in a consent search were never’ executed here, nor were they ever offered to Callahan for his signature (T 240). - Agent St.- Pierre, who participated in a pre-hearing. briefing with the United States Attorney and agent Putz, contradicted the testimony of agent Putz in the crucial matters that show Whether. or not the search was by con- sent given freely or under duress and color of authority. The circumstances which prevailed at the-hotel room leave little doubt that Callahan accompanied the agents only Be ‘eause of their authority and clear intent to “bring him in” for questioning. . Agent St. Pierre iaateiind that their assignment on January 22nd“... . was to bring Callahan in.” Specifically he testified : ae 8The FBI agents ‘aha other bills for the currency taken from ee so that his money was returned to him, (35a). . EE ae “Q. Well, the ans of you went there acs your specific. assignment was to bring Callahan int A. Yes, sir” (111la). © Agent St. Pierre, in responding to defense counsel’s ques- . tions, gave the following answers : “Q. After. the defendant indicated he wasn’t going to tell him anything, wouldn’t be fingerprinted, . wouldn’t be mugged, — sisal said, ‘Empty your ~ pockets ?’ a A.. Right. - . . ag a _ Q. To the best of your recollection, he said ‘Empty your pockéts?’ : i a Q. And he emptied his pockets? A. Yes” (109a). | “A. Yes: . Q. Did Special Agent Buts say ‘You don’t, have to empty your pockets?’ A. He did not’~<109a).. at headquarters Callahan sinha tt clear that he would not assist the agents in any way. However, the courts below deemed themselves controlled. by Putz’s testimony that the Petitioner voluntarily consented to the search of his person while refusing all other cooperation. That tes- timony was inconsistent with Putz’s earlier description -of the Petitioner’s attitude toward cooperating and with agent St. Pierre’s version of the character of Callahan’s s supposed cooperation. There is no question that the search could only be con- ducted pursuant to the voluntary consent of the Petitioner. As agent Putz testified, there was no need to search for a weapon for the protection of the agents, and even though Callahan was a suspect, he was-not under arresf' and there was no justification for a search incident to an arrest (53a- . 55a). There was no warrant of any kind in this case: 22 ‘In addition to the inconsistency inherent in the testi- mony of agent Putz and the contradictions of Putz mani- | _ fest in agent St. Pierre’s testimony, the official report which was dictated by the agents.in concert also fails to harmo- nize with agent Putz’s testimony (47a). The report, pre- pared by the agents and not a~tterk or other person not > present at the interrogation and search, states-clearly that _ the rubber band was -removed by the petitioner from his pocket with the eurrency which the rubber band circum- scribed. The FBI report covering this search. contained the following language relating to the removal of the money from Callahan’ s pocket: . “Tt is ated that: these bills were bound together by a_ | thick, wide, yellow-colored rubber band”. (70a, 71a). It is difficult to understand how this language in an official ‘FBI report could be construed to mean. that the rubber band was taken from another location and placed on-the - bills afterwards. Agent Putz’s testimony was in direct con- _ tradiction to the official report prepared by the agents par: ticipating i in the investigation. | After a judicial investigation was conducted concerning - the propriety of this search, the Court simply concluded : “On the factual situation, which I think you would agree is the test as to whether or not his rights were violated, I don’t believe Mr. Callahan, I believe the agents, and accordingly, I deny the motion to suppress and you have any: exception” (T 302). , During the course of the trial, the rubber wary was re- ceived in evidence against both Callahan and Kapatos _ (T 722-T 729). Expert and lay witnesses testified that the ® This *s the same rubber sia Agent Putz dlaimed hé Monted in a slit in the waistband of Callahan’s cerare, and the one claimed to be illegally seized. | oO eee - . . F .. 2B rubber band taken from Callahan was the same make, type _and texture as that used to bind the currency which formed a part of the money taken from the First National Bank of Passaic County (T 783-T 793). This rubber band was the very last piece of evidence men~. ° ' . tioned in the prosecutor’s summation to the jury when he proclaimed : ? | “What else do we have as corroboration?.. . . You have the rubber band” (479a, 480a).1° 7 And thus, this critical piece of evidence was seared into the minds of the jurors in the very last moments of the trial, lest they forget it in their deliberations. aa In summary, the only evidence showing voluntary con- ; sent of the search of the Petitioner is a portion, of. agent Putz’s.testimony. The balance of agent Putz’s testimony,. the testmony of agent.St. Pierre and the official report, com- pel the conclusion that the consent’ was not voluntary, but was given under duress and coercion. It must be‘clear to 10 Earlier in, his summation, the U. S. Attorney forcefully ex- _ ploited this crucial piece of evidence by declaring: There was one thing that I can’t fotget. It is the most in- credible piece of evidence I think I have ever heard of in a criminal ease—a bloody rubber band, a-little rubber band; which I am sure Callahan thought nothing of: and the FBI thought nothing of it when they first got it. ‘But isn’t that a remark- able rubber band? [He then explained ‘how it was identical to . ‘the rubber band used to bundle the stolen money.] © : * * * Don’t you suppose that what probably happened is, Callahan had some money in that slit at one time, and at one time maybe be took it out, for one reason or another, and the rubber band, — : which was on it originally, just got left there? Don’t you suppose that might have happened ? anes Well, how many of you gentlemen have rubber bands in your pockets today, or walk around with rubber bands in your pock- ets? (463a, 4642). . ee » ‘ a. . : \ ¢ ‘ . - : the Court, that even the testimony of the Government fails to show clearly and convincingly that the Petitioner con- sented freely and intelligently. Today, it is well'settled that every search is per se un- | reasonable when made without a Magistrate’s authority _expréssed through a validly issued warrant.’ This Court in» . Katz v. United States, 389 U. 8. 347 (1967), declared in un- mistakable language that all searches, with but.a few speci- fically established exceptions, conducted “outside-the judi- cial process, without prior approval by a judge or magis- trate are per se unreasonable under the Fourth Amend- ment . Pid 389 U.S. at 357. j - The Gov ernment’s claim that the victim. of an unreason- able search waived this Fourth Amendment protection must _ be established under a very hea¥y burden of proof. Miran- — ‘dav. Arizona, 384 U. S. 436 (1966) ; Bumper v: North Caro- lina, 391 U-S. 543 (1968). Although a person may consent to a.search, such consent rhust be proved by “clear and. posi- _ tive testimony. * Judd v. United States, 190 F. 2d 649 (D. C. _ Cir. 1951). "The courts below did not eeee4 this standard in assess- ing the government’s evidence bearing on whether Thomas Callahan voluntarily consented to this search. The issue | was not whether the Court. ‘‘believed”’ Callahan or the federal agents, but. whether the government established through their own independent proof, clearly and con- | vincingly, that the Petitioner had waived his constitutional rights under the Fourth Amendment and, thus, consented to the search. Tle Court of ps avoided the issue of burden of : ‘proof and simply held that “. . . ‘whether or not such con- sent has. been given is primarily a question of fact, better 95° left to the trial judge, who must pass upon the credibility of © witnesses.” (A-17), The real- issue, disregarded by the courts below, is the s rd: of proof that must be. main-— tained in measuring the constitutionality of the search. | A grant of certiorari is necessitated in this case because consent searches are being relied upon by prosecutors with . increasing frequency today. We suspect that in many cases . this approach is used to avoid the establishment of probable . cause, or time-consuming paperwork, and thus the protec- tion against unreasonable searches often depends upon the * difficulty- or ease ‘with which the proseeution can establish ~ that the defendant has consented to what otherwise would be an unconstitutional 1 invasion of. privacy. Consequently, these consent searches continue "= raise RARCrCenY difficult questions. I€ is most unfortunate ‘that these police searches are usually ‘conducted .behind the closed doors of police pre- cincts, because the dangers of over-reaching against a lone suspect under such circumstances are obvious. Such a situa- tion is inherently coercive, and its very existence is irre- " eoncilable with the possession of a form of mental freedom. on the part of a lone suspect against whom this full coercive force is brought to bear... And usually the: uncorroborated © — . eourt testimony of the defendant, as in Thomas Callahan’s ease here, about how he was searched will seldom be heard aver the testimony of the officers who conducted it. Recog- nition of these realites must have-been responsible for this Court’s establishment of the strict tests announced in: Miranda, and: Bumper, supra. It is an\insult to the ‘intelligence of any court to sug- gest that a man who is dragged out of his hotel room in the custody of\FBI agents, hauled down to FBI headquar- 6 2 ; 7 ters, and who refuses to be photographed, fingerprinted, or " answer any questions—can be deemed to have consented to ‘a search of his pockets, particularly when he has been ordered to ‘‘empty them out. - We are grateful to the eandor of at. saint some of the . FBI agents who admitted that their assignment was to _ “bring Callahan in;’? confessed that -he was directed to ‘‘empty your pockets ;’’? and-we are-most thankful for the _- official FBI report which :states in clear and unequivocal — ~ Janguage that when the money was taken from Callahan’s pocket, the ‘‘. . . bills ‘were bound together by a aa wide, yellow- iekaned rubber band.”? en The test which must be followed by the appellate courts in determining a consensual search and seizure is actually two- pronged. The first task of the appellate court is to discern 3 - what testimony constitutes the credible evidence. The sec- _ ond-task incumbent upon the appellate court, which was not ' done here, is to ascertain whether the credible evidence shows clearly and convincingly that the consent was volun- tary.. Wren v. United States, 352 F. 2d. 617 (10th Cir., 1965); Villano v. United States, 310 F. 2d 680 (10th Cir., 1962). , It is beyond e: cavil that the Court should proceed reluc- “ tantly and with noticeable hesitation to decide that a funda- mental right has been waived. Johnson v. Zerbst, 304 U.S. ~~ 458 (1938) ; Cipres' y. United States, 343 F. 24.95 (9th Cir., 1965), Cert. denied, 385°U. S. 826; Villano v. United States,° ‘ supra. It is in this regard that ‘the court below seems to have ignored the ‘teachings of this Court. The evidence - ‘adduced at the hearing below shows clearly that-the peti- tioner was taken into custody for the purpose of interro- gation| As in Villano v. United States, supra, the initial intrusion by. the FBI agents was sudden and-at an un- eS. | Me “ et wy netural hour. Deapite suggestions that the petitioner 1 was advised that he was not compelled to. accompany the agents. to the FBI headquarters, the credible evidence in this case clearly demonstrates that the ‘petitioner was coerced by | the color of authority inherent i in the presence of the three FBI agents in his hotel room: oe o- The Court of Appeals, relying on its earlier decision in Curiale v. United States, 414 F. 2d 744 (2d Cir., 1969); seems to have adopted a policy which ignores this Court’s admonitions against finding a waiver of fundamental rights unless a waiver is shown by clear and convincing: evidence. ‘In the present ease, as in Curiale, the Court. of Appeals - found that the ‘‘consent’’ to a search was given as a ruse _intended to divert the suspicions of the a rities. The unacceptable catalyst m this type of rationale is the refer- ence to the seized evidence which subsequently served to - convict the defendant. That reference was employed by the Court of Appeals to justify the search. In its opinion in the present case, the Court concluded its discussion of the search and seizure question by pointing out the relevance of . the rubber band-seized from Callahan. (A-17) It should be obvious that such ‘‘hootstrap”’ reasoning 7 " seriously threatens the basic purposes of the Fourth o Amendment, .namely ‘to protect citizens from lawless - searches and seizures under color of authority and to dis- suade the authorities from repeating such conduct. As the Court of Appeals:for the Tenth Circuit has phrased it, sé . . certain it is that an unlawful search, conceived in ‘ evil, is not baptized in maturity by the success of search.”’ Villano v. United States, 310 F. 2d 680, 684. This Court has determined that consent toa soil, may be implied only under certain-narrow circumstances. Thus, in Frazier. v. Cupp, 394 U. S. 731°(1969), the Courtheld that 28 the seizure of clothing from a duffel bag ‘tad with another individual -was ‘yeasonable where the consent was furnished by. the other individual. In Stoner v. California, 376 U.S. 488 (1964),, came, | ’ the Court refused. to find implicit i in an individual’s use of a ~ hotel room the authority on the part of a hotel clerk to consent to-a ‘search of the individual’s room. The Court. of Appeals dismissed the question of consent - as one of fact, ‘‘better left to the trial judge, ‘who,must pass upon the credibility of the witnesses.’’ Abandoning ‘its - duty to act slow ly and with restraint in finding a waiver of the fundamental protection afforded by the Fourth Amend- ment, the court below unjustifiably concluded that Callahan consented to the search believing he could dispel. all sus- _ picion by cooperating. ‘By some extraordinary logic, the court determined: that the. Petitioner, believing that he had “> no incriminating evidence on his person, f reely —— to ; ‘the search by the FBI agents, : . A conclusion of this sort :is virtually a ssniaeiasinaihian of. be guilt, which has not been demonstrated by the credible evi- dence adduced at the suppression hearing. Of critical sig- nificance is the manner _in which the Court of Appeals has ©.. ~ “ignored the dictates of thi Court to ‘‘indulge every reason- . i able presumption ‘against the waiver of fundamental consti- tutional rights... .”? Johnson v: Zerbst, 304 U.S. 458, a — 464 °(1938 ; silighaisis supplied). | In reaching this ‘conclusion, which is teconslakenit with Po ~ the testimony of the FBI agents themselves, the Court failed to implement the crucial second part .of the two- -_pronged test as to. voluntary consent to the search and seizure. The Court neglected to consider, as a question of law, whether the eredible evidence clearly and convincingly 96) _ showed an unequivocal, specific and intelligent waiver of the Fourth Amendment right against Sernagonenes: senrenes ‘ ty . and seizures. 2. > The uncontroverted evidence in this case reeked of the » ‘usual, and all-too-commonplace, practice of ‘bringing people in’’ to*question them. Consequently, it was urged — _ in the court below that where the police have neither war- . rant nor sufficient cause for obtaining one, and so: seek | . permission to search one’s person, he is entitled to be. radyised of his rights under the Fourth Amendment, i. é. that he need not submit to such a search. Certainly,. the reasoning in Miranda, supra, pertaining to the right to. remain silent, applies with equal force to one who is about. . to be searched. For in the absence of these neutralizing _ warnings, custodial pressures weigh ‘heavily against waiver of the right to remain free, from a search and invalidate any consent to conduct such: a search which is based upon a person’s lack of knowledge of his rights. At the very least, when a person is placed in such a cus- - todial situation, he should be’ advised that if he refuses permission, the police will respect his decision. Wren v. -’ United States, 352 F. 2d 617 (10th. Cir., 1965). See United States v. Nikrasch, 367 F. 2d 740 (7th Cir., 1966) holding that since defendant was ‘then in custody’’ and ‘‘had not ‘been apprised of his Fourth Amendment rights . ... no _ true consent had been given.’’ United States v. Blalock, « : 255 F. Supp. 268 (E. D. Pa., 1966), holding that a failure. to ' warn the defendant of his right to refuse a search rendered. -- waiver unintelligent, and United States v. Moderacki, 280 - F. 2d 633 (D. Del., 1968). In United States v. Jardan, 399 ° F. 2d 610. (2nd° Cir., 1968), such advice was ied given - by the FBI agents. ) | EA ae ° | . ae Se ik \ rs . 30 - It only remains to be said that no member of this Court _ can be other than unhappy‘ about the unleashing of this raw police power on Thomas Callahan and the brazen FBI testimony in the trial court contrived to sustain this search. This Court has pointed out before that decisions condemn- ing these irregular police practices, act to protect the secur- ity of the entire community. For they serve as a safeguard _, against the most terrifying symbol of a police state, the ominous rap upon a householder’s door in the middle of the night and the subjecting of citizens to unheralded searches by policemen who have become masters rather than ser-_ vants of the law. When courts beconie indifferent to the abuse of these constitutional rights, we are well on our _way to losing them. For lurking in the dark shadows of ‘these low visibility searches is a threat to everyman’s ~ security and peeved . For all of these reasons the petition for certiorari should | be granted. ; é' Iil. ‘The decision below raises anew the unresolved con- stitutional question concerning the use of hearsay evidence before a grand jury. | No less than 48 witnesses were called by the Govern- ; ment in this case to supply evidence relevant to the tob- bery charges against each of these petitioners. None of . them were ever produced before the Federal grand jury which. dicted “the petitioners, although virtually all of them were available (430a). Instead, all of this evidence was strained through the appealing voice of an FBI agent, who merely summarized — hearsay proof before the —_ jury. ‘ 31 Defense counsel understandably complained about these ‘ ‘inexcusible Government tactics and asked that the indiet- ~ ment be dismissed (430a).. The Court denied the motion, but marked the grand jury minutes as a court exhibit. Certainly, if the grand jury had known that the witnesses Devita (T. 178), Masciuloi (T. 203), Pascucci (T.: 2%), McGowan (T. 232) and Sister Olympia, who were all pres- ent at the robbery, could not identify the petitioners or if they had been able to hear and see Charles Roberts say that the petitioner Callahan did not participate in stealing he car in the robbery, nor did he transport it to New Jersey, there is a high probability that the petitioners would not have been indicted. Surely this conclusion is confirmed by the length of time the jury deliberated in. | this case and its repeated requests to have the testimony of Sister Olympia read. on | This Court’s decision in United States v. Costello, 350 U. S. 359 (1956), which approved the use of hearsay evi- dence before a grand jury to prove the complicated details of an income case has been distorted beyond recognition by prosecutors throughout the country. Here the Govern- ment’s tactic of not calling before the grand jury the four priests, the caretaker, the two guards, and all the other | witnesses at the scene of the robbery or the expert wit- — nesses who testified about the rubber band found on Calla- han, is indefensible. The Court of Appeals ‘startling stutatnent concerning the Government’s failure to produce any factual witnesses before the grand jury on the grounds” ‘Cit would have “served no useful purpose to have produced this array of . witnesses or any of them before the grand‘jury” because “the only result would have been needless expense to the . _Government and great ineonvenience to the witnesses, 32 many of whom lived at a considerable distance from the - Federal. Courthouse in New York City” is indeed disap- pointing (A- 17). It is undisputed that some of these enniand lived in Newark, New Jersey, but surely the integrity of the grand jury process ‘must, of constitutional necessity, take prece- dence over a toll charge on the George Washington Bridge, and the seerecy of the grand jury room would have afford- ed the Government witness, whose life it is claimed was in jeopardy, ample protection. : This unseemly strategy on the part of the Government - has been repeatedly criticized by the Court of Appeals for the Second Circuit. See United States v. Umans, 368 F.2d 725 (2d Cir., 1966) ; United States v, Beltram, 388 F.2d 449 bs Cir., 1968) ; United States’. Payton, 363 F.2d. 996 (2d Cir., 1966) ; and Unfted States 0, Arcuri, 405 F.2d 691. (2d Cir, 1968). Although that court has never’ dismissed. . ~ an indictment where the Government presented their whole prosecution through a conduit witness in the ‘form of hear- say evidence, leading members. of that court have vigor- ously dissented in some of these cases. Despite the Second Cireuit’s repeated warnings to prose- cutors: that these ill-advised tacties will not be tolerated, the Government continues to exploit this unfair advantage’ as exemplified by this ease. To have deliberately with- _held from a grand jury the testimony of 48 witnesses, including - identification witnesses, experts, an accomplice . witness, and all. FBI agents in a case as close. as: this, is intolerable. We do not suggest that all 48 witnesses should have been , produced before the grand jury, but certainly, in a case of. this magnitude, the Government was abliged to produce 33 enough of them to satisfy a grand jury that there was. - probable cause for an indictment. Surely, if the grand jury could have heard Sister Olympia testify that she could not identify Kapatos, rather than hearing an agent who may have testified that she on some previous occasion ‘identified him, their judgment to indict might have been ~ quite different. | | Judge Friendly’s dissent in United States v. Payton, supra, is most relevant. here : | “Tf, in these narcotics peddling cases, the Government insists on pressing Costello to the point of offering _a Grand Jury only hearsay- testimony by a surveilling agent when that is no apparent reason save a trans- parently unworthy one for not producing the agent a _ with first-hand knowledge, it must make clear to the jurors: the .shoddy merchandise they are getting so they can seek something better if*they wish; thus pressing the prosecutor for more reliable evidence— , particularly important in these narcotics prosecutions, where there is often'a problem of the reliability of — an agent’s identification—is the Grand Jury’s historic » function.’ In the Costello case there was excellent rea- son for limiting the presentation to the three agents ‘who summarized financial evidence, proof of which required 141 other witnesses and 368 exhibits at the trial, and. the agent’s lack of direct knowledge must have been apparent. a4) ; * * «* Sane ; . I nevertheless think a. proper respect for the constitutional requirements of indictment and the ‘high place’ held by the Grand Jury ‘as an instrument of ' _ justice’ . . . forbids our sanctioning what happened in this case. 363 F. 2d at 1000.” | . For the Government to keep all of their vines trom the grand jury in a common bank robbery case is unpar- donable. Unless prosecutors are taught once and for all. \ ) au that these irregular practices will not be tolerated, the tra- ditional safeguards of a federal grand jury will continue . - to be imperiled. | We are compelled to question the scenaiaty of the Court of Appeals’ excusing constitutional deficiencies before a grand jury by acknowledging that the prosecutor explained to that body why the failure occurred. Telling the grand jury that. they are receiving some hearsay testimony or ‘explaining the unavailability of a particular witness might be permissible within certain limits, but surely the Govern- ment’s failure-to call any one of the 45 factual witnesses — * before the grand jury, under no circumstantes can be eured by an explanation. In making these constitutional claims, the petitioners — are terribly handicapfed in that they have no way of know- _ ing what was. said to the grand jury, since we have been denied access to those records. We are simply confronted with the Government’s gratuitous statements and the ~ Court’s disclosure that the grand jury was told of the hear- ‘say nature of the evidence presented to it. Certainly the . policy pronouncements made by this Court.in Alderman v. United States, 394 U. S. 165 (1968), require, at the very least, a remand so that a hearing can be conducted to fully investigate the constitutional propriety of the Govern- acer _. ment’s failure to present any of their 45 factual witnesses to the grand jury which returned the indictment in this ease. For surely, where there is a factual dispute of such | constitutional magnitude, an adversary hearing is required . to substantially reduce the incidence of error possibly made - ‘by the judicial officer because of a lack of familiarity with petitioners’ claims which cannot be fully made without ss to the grand jury testimony. : he ae wo _ If the Government’s actions here’are approved: by this Court, then surely the function of ‘a grand jury to provide some security to all men against unjust, hasty and oppres- sive prosecutions has been virtually emasculated. For all these reasons, .and because the Government’s corruption of the grand jury process in this case goes far beyond any previously sanctioned by ‘this Court, the petition for certiorari should ™ —. IV. Petitioner Callahan's mere participation-in the — overall conspiracy: to. roh a ‘money truck was insufficient to sustain a separate conviction of the substantive offense — of transporting in interstate commerce a stolen vehicle in which the Government concedes he in no way participated. . _ The petitioner Thomas Callahan was convicted under the Eighth Count of the indictment of the substantive offense of transporting i in interstate commerce a stolen 1962 Mer- cury station wagon in violation of ¢ 2312 of Title 18. He ‘was not charged with conspiring to transport that” stolen vehicle in ‘interstate commerce. No proof was _ offered by the Government that Thomas Callahan either transported or aided in the transportation of that stolen car in interstate commence. Thus, the facts relevant to the’ use of a 1962 Mercury station wagon in the two attempted ue robberies Should be reviewed. Once the plan to rob the New Jersey monéy truck was - . conceived, it was decided that a station wagon would be needed to implement that plan. Roberts testified that everyone was to keep on the look-out for a station ‘wagon (151la). However, before the petitioner Callahan, or any- one else, did anything about obtaining a station wagon, Roberts testified that he received a call from Kapatos, who told. him that he had “secured a station | wagon, and for us not té bother” (151a). __36 | kf: The morning after Roberts received this telephone call, . he met with Pierce and Kapatos outside Pier 90 in New York City, and he claimed Kapatos told them he had’ stolen the station wagon” . . . outside the: Copacabana in New. City” and that “. . . he was going to change. the plates on . the station wagon and ‘take it out to New Jersey” (151a). It is conceded by the’ Government that. Thomas Callahan was not present at this meeting, and it is not claimed that he had any knowledge of these conversations. 7 After changing the license plates on the station wagon in New York City, the station wagon was transported | from New York to Ft. Lee and then to Paterson, New Jersey, by Pierce, Roberts and Kapatos, where it: was stored (153a). It is undisputed that Thomas Callahan was not - with these other defendants when the stolen car was trans- ported to ‘New J ersey. ' After the station wagon had been taken to New J ersey and stored in the garage there, it was never returned to New York (171a). The Court will recall that the robbery plan consisted of * the money truck being intercepted by, the station wagon ~ which was supposed to have been driven by Campbell with ° Kapatos in it as a passenger (160a). On both of the occa- sions that Roberts claimed an attempt yas made to rob the | money truck, Callahan never rode in the stolen station wagon (169a). On each of these occasions Callahan rode in the Buick automobile, which was not charged as having been transported in interstate commerce /(160a). On each occasion when Roberts Gated the sthomphed robbery miscarried, all the defendants returned to New | York in Kapatos’ automobile, which was not stolen (171a). 37 Consequently, it is uncontroverted that petitioner Calla- han was never present when the actual theft of the station wagon was discussed,did not accompany the other defend- ants when it was transported to New Jersey, and at ‘no _time was ever a passenger in the station wagon, either - when it was operated in New Jersey or New York. \ This total failure of proof undoubtedly accounts for the following -remarks made by the. prosecutor in his summa- tion: ane 7} = “There is no evidence presented that Callahan had _ . anything to do with the actual, driving across the state es "line of that Mercury station wagon, no evidence at all,. but the Government is proceeding on the theory that Callahan was an aider and abetter - 2. (459a).. ° ‘This wide void in the Government’s proof was respon- _ sible for the following remarks made by the Court: “. . . What troubles me-with regard to Count 8 is the defendant, Callahan, and I recall no testimony— . ‘probably it is my fault—that relates to Callahan inso- far as it.is alleged that he, together with Kapatos and others, transported the car” (T 1335). The Second Cireuit Court of Appeals affirmed the peti- _ tioner Callahan’s conviction of transporting a stolen car in interstate commerce on the theory that he aided and abet- ted that offense by merely being present when a statement was made by another co-conspirator that “. ... each and every one of us: was to be ‘on the alert in regard to steal- ing-a station wagon’’ (2103). The Court of Appeals con- cluded : i sade Site og ' 'Phis [the statement that Callahan acquiesced in]: was all that was-necessary to warrant a finding by the jury that he aided and abetted others, including Kapatos, who actually stole the ear (2103). ? : . ; “s 7 : ‘ : mes . : . ae ‘ hock a 2 : 6 - This new and unwarranted rule announced by the Second ‘Cireuit Court of Appeals is in direct conflict with this Court’s decision in Nye and Nissen v. United States, 336 U.S. 613 (1949), requiring this Court to take immediate - corrective action. = .. This Court in Nye and Nissen, quoting the language of. Judge Learned Hand, held: In. order to aid and abet another to commit a crime, it is necessary that a defendant “in some sort associate himself with the venture, that he participate in its as in something that he wishes to bring about, that he seek by his action to make it succeed” 336 U. Sat 619. In the two decades since Nye. and Nissen, a number of Circuit Courts have strayed from these moorings." This | . fthat:drift, for in reality the peti--. tioner Callahan convicted of aiding and abetting in . . the transporta ion of. a-stolen car and sentenced to five years in prison merely because he was present when’ one co-eénspirator said everyone should keep a look-out . for a __ ear to steal, It is conceded that Callahan died nothing more than hear’ that comment. He in no way participated in the theft of the Gar; wasn *t present when its theft was acknowd- edged by the other co-conspirators; ‘did not know that it was transported to New Jersey; and never rode in the car while it .was in New Jersey. : Al See, e.9., Davis w. United States, 362 F. 2d 964 (D. C. Cir. 1966), prt. denied, 386 U. S. 965, where Chief Justice Burger, as a Circuit - udge, sought to limit the amorphous development of the§law of aiding and abetting ;-Mack v. United States, 326 F. 2d 481 (8th Cir. 1964), cert. denied, 377 U. S. 947, where the appellant’s mere prés- ence at the scene of the crime, in ‘the company of the principal de- fendant, was held to be ‘sufficient evidence of committing the sub- stantive crime as an aider and abettor; Lambert. v. United States, "261 F. 2d 799 (5th Cir. 1958), where the appellant, convicted as an aider and abettor, merely acquiesced in the stealing of an automobile and accompanied the principal across state lines in the stolen vehicle. ey On, the éther ie eourts Hike ‘the Riehth Cirenit hare adhered rigidly to this Court’s rule i in Nyé and Nissen hold- ° ing that a person who actually rode in ,@ stolen car across .. state lines could not be considered to have aided and abetted: in its transportation since he did not by his action seek to make -it succeed. Baker v. United States, 395 F. 2d 368 ( 8th Cir. 1968). If the rule fabricated by the ‘Second Circuit. were to | become the law of this land,’it would open the way for the ~——— | - conviction of a conspirator more than once for the’ same conspiracy, by charging him with aiding and abetting i in the substantive counts committed by other co-conspirators, thus placing him twice in’ jeopardy’ for the same offense. ‘The petitioner Callahan was convicted of conspiring to commit - the robbery in New Jersey. . That conviction must, of con- _ stitutional necessity; include all aspects of the plans to com- : mit the robbery, including securing, automobiles, ‘weapons and any other.implements needed to effectuate the robbery. For his participation in that conspiracy he has been sen: tericed to prison for five years. However, under this “Court’s carefully delineated ruling in Nye and Nisset, he. cannot be charged with the a¢tual ‘theft and transportation : in interstate commerce of a stolen vehiclé which he did~ -not “. . ; bring,about or associate himself with.” If that - were: sa case, then in the case ‘at bar, if one of the co-con- spirators had killed a post office worker in- ‘Stealing the. - ear, all of the co-conspirators would share in the liability for that murder, as. aidets and abettors. Such a concept is _ : clearly repugnant to our more basic criminal disciplines. been held sufficient to constitute aiding and abetting, other cireuit courts have held that the words must amount “... . to counselling or other assistance ‘in the prohibited astiv- Even in those cases mt words, and not actions, have _ . ity.” Grimes v. United States, 379 F. 2d 791, 795 (5th Cir. - \ \ | me! “ 1967), Cert denied, 389 U. S. 846 ; United States v. Denes: | cutt, 311 F. 2d 660 (4th Cir. 1962). .However, in the case at _ ee 2 | ~bar, Callahan ‘certainly’ never counselled or in any way | pict induced ‘the theft ef the: Mereury or its transportation. | --There has ‘been an alarming increase’ in recent years of the use of the doctrines of conspiracy or aiding and abet~ — : ting by public prosecutors to draw peripheral defendants ~ into the wake of another man’s criminal conviction. This © \ - Court has ‘always recognized the dangers inherent in, these aig denna theories of criminal: justice, The Court of Appeal’s es opinion below niarks a new high i in unnecessarily expanding sot this dangerous doctrine, , : * For all of these reasons, this een shined ae this Petition to ensure compliancé by Cireuit Courts with the - rule of —— and aie emauiaaen in N’ ye and Ni issen. - “Cancieaden, a. It only'r remains to be said that no ‘member: of this Court | ean be other. than disappointed about the ruthless tactics used: in ‘searching and ‘identifying these petitioners. and ' presenting their case to the Grand Jury. If only the fate _ of men charged with bank robberies were involved ‘in in cases. e _ such’ as this, our courts might remain- indifferent to their ee bemg victimized. by the police: tactics exemblified by this oe case.. However, as this Court has said many times, deci- - sions. which condemn the-irregular police practices engaged. ite in here, act. to proteng, the security of the entire community. ee eee “What was done to these petitioners offers an ominous omen of things to come if some gonstitutional limits. are ' not placed on these prosecution tactics.. It is fair for Us © to assume that without some. intervention ‘by this Court, a . ‘ 3 PON TORE IR er 4 Dae see RR EE ie. Pk OLED . federal sa aletite will continue to = the unfair pro- cedures used here, and approved by the, Second Circuit, and thus the safety and security provided to all men by - these constitutional protections will be. lost and then no man - will be safe. . e \ + Reapeeltally submitted, oa ; eae na Coe aoe _ HERALD PRICE FAHRINGER, ~ ‘Attorney ‘for Fhomas Callahan, ‘LAWRENCE A. SCHULZ, On the Brief, , One Niagara. Square, : Buffalo, New York 14202, , .716- 856-8400. THEODORE ROSENBERG, oe _- 133 Schermerhorn Street, ° Brooklyn, New York, : Attarney for Thomas Kapatos. . Lipsirz, Green, ‘Fietiwam: Rout, ScHULLER and James, \ Of Counsel. _ Dated: April 27, 1971. ° ae ee APPENDIX UNITED STATES COURT OF APPEALS For tHe Seconp Circurr. ' Nos. 444 and 462—September Term, 1970. (Argued January 20, 1971.) + (Decided March 22, 1971.) _ UNITED STATES OF AMERICA, | 2 | | te tee v. | THOMAS CALLAHAN and ‘THOMAS KAPATOS, _ Appellants. ——_——_~ —\. Docket Nos. 35231 and 35642, , Before: Medina’ Hays and Desai: Circuit Judges. Appeals from judgments of the United States District Court for the Southern District of New York, Thomas F. _ Murphy, Judge. Thomas Callahan par Thomas eis: aoe from judgments of -conviction, entered upon the verdict of ‘a jury, for conspiracy-fo violate the Federal Bank Robbery Law, 18 U..S. C. Section 2113, in. violation of 18 U. S&C. Section 371 and for transportation of a stolen motor vehicle - in interstate commerce in vielation of 18 U. S. a Section 2312. Affirmed. re anes . y v A-2 ' John. R. Wing, Assistant United States ‘Attorney, New York, N. Y. (Richard Davis and Jack Kaplan, ‘Assistant United States Attorneys, and Whitney North Seymour, JT., United States Attorney for the Southern District of — Now York, New York, N. Y., on the brief), for appellee: Herald Price Fahringer, Buffalo, New York (Herald Price Fahringer, Buffalo, New York, for appellant Thomas . . Callahan, Theodore Rosenberg, Brooklyn, New York, for appellant Thomas Kapatos, and Lipsitz, Green, Fahrin- ‘ger, Roll, Schuller & James, Buffalo, New York, on the brief), for appellants. - | MEDINA, Cirenit Judge: Thomas Callahan and Thomas ‘Kapatos appeal from - convictions for conspiring to rob a bank money ‘truck in violation of 18 U. S. C. Section 371 (1964) and for trans- porting.a stolen automobile in ‘interstate commerce in vio-~ _ lation of 18 U. S. C. Section 2312 (1964). Each of the _ appellants was sentenced to consecutive five-year terms on each count. The grand jury had returned.a nine-count indictment against Callahan and Kapatos, but most of the chatges were dismissed for lack of venue and one for a: ‘lure of proof. - | 46 On December .21,. 1964 at. ogee a Jersey, four ee men’ made off with over $500,000 in United States eurrency that. was being. transported in a panel truck of the First National Bank of Passaic County, the deposits > of which ‘were insured by the Federal Deposit Insurance Corporation. Nota penny of this large sum has ever been recovered. The robbery was planned with such meticulous attention to detail that the robbers made their escape leav- _ing behind only the handeuffs and pieces of cord used to - truss up the guards and others. The task of solving this A-3 crime was one of unusual. difficulty but, as a result.of sev- eral years of persevering ‘investigation, the bits of evidence pieced together at the trial furnished a firm basis for the ‘finding of the jury that both Callahan and Kapatos. were beyond a reasonable doubt guilty of the crimes charged. We are asked to reverse-and to dismiss the indictment _or.to remand the case because of. numerous errors alleged to have been committed by Judge Murphy i in his rulings at the trial. _ Some of these claims of error we pass over as clearly lacking in-merit. Others can only be understood when viewed against the background of a most complicated ’ aggregate of various detailed proofs, to which. appellants’ - - briefs make only | passing reference, and-which are woefully scrambled in the Government’s answering brief. After these items of proof have been pieced together in proper perspective, we believe the points of law will be more . ,Teadily understood. Callahan is enlarged on $100,000 bail pending the dis- position of this appeal. Kapatos -is serving a seven ahd. ° one-half year ‘sentence on an earlier conviction in the . Southern District of New York for. armed theft of an. interstate jewelry shipment, to which further réference will be made later. 1. ‘The Development of the Conspiracy and’ How It Resulted in the Robbery at St. Anthony’s Rectory | on December 21, 1964 The Market Diner near Pier:90 at West Blst Street in’ - New York City was a sort of gathéring place for men who more or less worked in the neighborhood. ‘The individuals , jvith whom we are concerned in this case are Thomas Callahan, Frank eer Thomas Kapatos, John Pierce, OS * ‘A-4 e ; % : Henry Speditz—all named as defendants in the indictment —and Charles Roberts, a member of the conspiracy to rob the bank’s money truck, who testified for the Government. | ‘ Most or all of these men had served terms of imprisonment — - for the-commission of crimes’ of violence, possession of - firearms:and the stealing of automobiles. Roberts, who had known Callahan, Campbell, Kapatos, ~ Pierce and Speditz for many years, testified that Pierce, who worked on Pier 90, came to him in January or Febru- ary, 1964, and said he had discovered a “score” or oppor- tunity to obtain a large sum of money by robbing a bank money truck in Paterson, The two men then proceeded to.. Paterson in Pierce’s cay, which was “clean.” This meant _it was not stolen but wag legally owned by Pierce. They . - surveyed: the terrain, became familiar with the route taken ‘by the money truck on Moridays as it delivered bags of currency from the main office to the various branch banks, | ‘and returned confident that the scheme to rob the money - truck was feasible. They had looked in the money truck and had seen the bags. Pierce even went right into the main office of the bank and saw the bundles of currency put in~ _ the bags. So they knew money was in the bags. It was _ noted that a simple panel truck, rather than an armored car; was used, and there were only two guards. Then Campbell joined the others in the venture, and Pierce ‘ sug- — - gested they bring in his friend Kapatos who was said to possess several garages in New Jersey, in one of which he had a stolen car loaded with all the equipment and para- phernalia that would be needed in the robbery,.such as a machine-gun, pistols, Army clothes and field jackets and so on. There were several further trips in Pierce’s car to reconnoiter the Paterson area and Kapatos liked what he saw. It was he who suggested the plan originally. adopted. . : ‘ . ° . o* ‘ = ° , 2 “ é . - A-5 This first plan was to intercept the money ‘truck as it followed its regular Monday route on a street with an open lot on one side and a long factory with high dingy windows on the other. There were intersecting streets before and after passing the factory block. Kapatos’s plan was to. have a’‘stolen station wagon drive. in front of: the money | truck, ‘Slow it down, and then Kapatos, lying on the floor. - of the station wagon, was to drop the rear window and point his machine gun at the guards in the money truck a ~ few feet behind. Another stolen car with a driver was to lie in wait in one‘of the side streets while the two other men approached the money truck from either side and - overpowered the guards. Then the’ driver of the second car was to come up behind the money truck to take the loot. It was apparent that this scheme required a fifth man, and Kapatos brought in his.friend Callahan, who said “If Kapatos likes it, I like it.” This was in late March or early April of 1964. After further driving around Paterson in Pierce’s car, renting a store which they could-use as a place. - of refuge if things went wrong and a small private garage “underneath a house” in which to keep a stolen‘ car, the five men met in New York to discuss: what to do next. After some talk it was agreed by all that it was necessary, to steal a station wagon and “each and every one of us was to ap on the alert in regards to stealing a station wagon.” Within a week Kapatos phoned Roberts at his - home in* Astoria and said he had stolen a station—wagon outside of the ee night. club in New York City, - | and for “the rest of us” not to bother about it. He de- © . seribed it to Roberts as long, having lots of windows, a light blue. or light green Oldsmobile, with an air ¢ondition- ing unit in it. It turned ont to be a 1962 Mercury. So Kapatos brought the stolen station wagon to Pier 90, and he. and Roberts, together with. Campbell. and Pierce, —— me erent NSE EE NIT & , .- A-6 changed the plates in the street and the four men started _ for New Jersey. Kapatos drove the station wagon and the others followed in Pierce’s car. The time of this is - given by Roberts as “some time in April of 1964.” On the way out.to Paterson they stopped at Fort Lée where — Kapatos lived in an apartment’ house. ’. Upon arrival in Paterson the stolen station wagon was placed in the little one-car garage they had previously rented, and all four returned to New York in Pierce’s ear. i We pause for a brief digression, as this station wagon will become one’ of the important links in, the chain of proof corroborating the testimony of Roberts. We shall — in a moment review Roberts’s description of two abortive attempts to rob the money truck‘in the street alongside of the factory. . Roberts participated in these two abortive - attempts and then he and Campbell retired from the con- spiracy. Until Roberts told his story to the FBI several . years after the spectacular robbery ‘at St. Anthony’s Church Rectory on December 21, 1964, neither the FBT nor anyone in the prosecutot’s office investigating the erime had ever heard of any station wagon, as no ‘station wagon played any part in the robbery. at the Rectory. Roberts’s ~ recital of the facts concerning the. first. two abortive at-. aie tempts, however, gave the FBI for the first time his state- ment that “some time in April” 1964 Kapatos had stolen a station wagon, containing an air conditioning unit, from the. street near the Copacabana in New York. So, upon-further ' investigation it was. discovered the police record indicated - that such a station wagon had -been reported as having been stolen at the Copacabana on April 18, 1964. And a ° member of the police force-of East Paterson testified this "station wagon was found abandoned in the extreme west- erly corner.of a parking. lot at the Elmwood . Shopping : Center, near Paterson jon Route 4, on July 25, 1964.. The _ | | y ; ‘es j 4 + 4 | 3 : 3 i j ; rete BAAN RONEN TT ON © ‘A-7 owner, Edward Lebowitz, was | located and he confirmed the fact that the car-was stolen at'the Copacabana on April 18, 1964. -And this-very parking lot at the Elmwood Shop- ping Center was the place where Roberts had said the. robbers switched cars at the time of the two abortive at- . tempts.to rob the money truck. That Roberts could have manufactured .out of whole’ cloth the story about ‘the sta- tion wagon with an air conditioning unit stolen from‘ the Copacabana and then have it all fortuitously come true’. strainsegredibility far beyond the brpaking point. It requires no ‘more than a few sentences to deseribe the . two abortive attempts in the Spring of 1964. Five men | participated in each of these two attempts, including Roberts. They drove*out to Paterson in ’ Kapatos’s “clean” . Oldsmobile after picking up Kapatos’s stolen Buick at his garage in West New York, N. J. with all the equipment. At the Elmwood Shopping Center they left the “clean” car, then in the stolen Buick they proceeded to the garage “underneath the house”, where Campbell and’ Kapatos ‘picked up the stolen Mercury station wagon. Callahan and Roberts were at their respective stations in the factory street, while Pierce at waiting -in the stolen Buick, but the money truck went by and no Campbell and Kapatos in the stolen station wagon. They arrived in a minute. or two and said Kapatos:thought a police officer was observing them and he called the deal off. On the next abortive at- tempt two weeks later they did thé same thing but Camp- hell.made a wrong turn and the money truck went by. This led to an explosive scene with Kapatos heaping abuse upon “Campbell amd generally making himself objectionable. So _ Roberts and Campbell pulled out of ‘the. conspiracy. , Se the others.urged thetn from time to time to return, which: they refused to do. Another incident that might have con- — / tributed fo. this split-up was a conversation about four p Q ie ‘ | % “A-8 ie oe _* new hand guns Kapatos had received from Boston. He _ gaid they were of superior quality and should be used in the robbery in Paterson. Callahan: violently disagreed on the ground that if any of them was picked up with one . of these guns in his possession it might be identified as’ having been used in some robbery*in Massachusetts’ and. then they would be in real trouble: The rest agreed with Callahan. Campbell died of a-heart attack on October 4, 1964. | | a - We must reconstruct the-actual robbery on December 21, 1964 from the proofs of what occurred and by piecing together the testimony of various witnesses. A change in the regular. Monday route;of the money truck now called for a few stops to pick up the receptacles containing the Sunday collections of several churches, and then stops at vanious branch banks to drop off the bags of curréney that had been requisitioned: from the main office. The robbers ‘no longer needed the machine gun or the Mercury station © wagon, and so this car was abandoned in the parking lot: _ at the shopping center in July. But the robbers still needed" two stolen cars, as we shall sée. The plan of St. Anthony’s Church Rectory (Gov't Ex- hibit 1) shows the entrance door ‘from the street leading tia group of small waiting rooms and an office. There is a os passage .on the left providing access to and from the. Church. As the Church was open to the public, it was a simple ‘matter for. these professionals, even with their equipment, to enter the Church, zo up ‘the passage and “ congregate. in the vestibule behind the entrance door at . about 8:50 A. M., precisely the time they expected the — money truck to arrive. Several priests and a caretaker, who was the father of one of the priests, arrived there: too, - . but they were quickly handeuffed, their legs tied and a -A-9 I . ; strip of tape placed over the mouth of a priest who cried out. Each of the three robbers in the vestibule had a pistol. The panel truck pulled into the driveway of the Rectory, the two guards came to the door and rang the bell. The doors .were flung back and the guards were handcuffed, their legs tied and they were pushed to the floor with'their faces to the ‘wall in less.time than it takes to tell about it. One of the robbers pointed his pistol at the-guard who. had the key to the back and only entranée to the body of the panel truck, and the robber said “Give me the key or © T’ll blow your brains out.’ » The key was forthcoming and the robbers rushed out. In the meantime, the fourth rob-' ‘ ber, who had been driving nearby in a black Chevrolet sedan, pulled up alongside tlie money truck and the trans- -fer of the money bags from the panel truck to the black |. Chevrolet sedan was quickly effected.. Nor were the re- ceptacles containing the Sunday collections at St. John’s © - Catledral, St. Boniface Church and that of St. Anthony’s Church itself left behind by the robbers. These collections. brought the total loot to $517,721.49. The men who had ~ been handeuffed and-tied up said the robbers wore face masks, cloth gloves, shiny rubbers, two pairs of trousers each and Army jackets. Sister Olympia, one of the nuns © who lived in the Convent on the other side of the Church, : was slowly passing in.a car with Mrs. Bice Mascuilli and “they first thought it was a faneral. Sister Olympia ob-'_ served a man who wore a mask carrying a bag from the © truck to the Chevrolet. ‘The pieces of white cord used to tries up the priests and the guards were destiried ‘to be of great significance in ° the investigation that followed. - Two stolen ears: were destined to connect Callahan, Kapatos, Pierce and Speditz _ with the robbery of December21, 1964. And a variety of: more ordess fortuitous occurrences contributed to the solu- tion of the crime. ._ ‘A-10 e ¢ That each and every one aa ise professional ‘robbers was skilled in the art of stealing cars, locked or not, may — be inferred from the joint decision, participated in by Callahan and his four confederates, to the effect that each ys would be on the alert to steal a station wagon at the first ’ available opportunity. And each of the robberies or at- tempted robberies described in the proofs required the use of a number of stolen cars, so that any identifications by - bystanders of the make, description and licensesnumbers of cars participating in the robbery could not be connected up with’the perpetrators of the crime. All. this,. susie “proved unavailing to Callahar* and, Kapatos. . - The black Chevrolet i in which the four robbers ae _ with the loot was found a few days after the robbery in a parking lot 6 or 7 miles from the Rectory, in nearby Hack- _ ensack.- White paint scrapings on the right-front fender upon laboratory examination were found to be identical with the white paint on the door frame and door of Pierce’s garage. On January 22, 1965 the right door frame of this garage had black scrape. marks at about the same height as the black Chevrolet’s right front fender. The car belonged to William Rubin. It was a 1964 four- door Impala black’ Chevrolet sedan and was stolen on Oc- tober 21, 1964, almost right under Rubin’s nose, from the place he had parked it on the Brooklyn side of the Verra- zano Bridge. Rubin testified the Chevrolet’was practically anew car and there was no white. paint on the right front fender re it was stolen. An electrician’s knife which did not belong to Rubin was found. on the front seat, and it was of-a type that would have been useful in cutting off lengths of rope or cord such as those used to truss up the priests, the caretaker and the guards in tk@ Rectory. Rubin also testified there were two beach chairs and a red quilt.in the Chevrolet when ‘it was stolen. These were GI SOR BS 6h oan itd A-11 found after the robbery in the apartment of Speditz in.the Bronx, where he and Callahan were living, and Rubin - identified these as the same articles that had been i in his ear when it was stolen. S Another stolen car was ee eee he 21, 1964, the very day of the robbery, a short distance from the Rectory _ on the same block where the original group of five had planted to intercept the money truck as it passed the fac-: - tory. This was an Aqua Blue Bel Air 1964 Chevrolet four- door sedan. It belonged to Eugene Tacovella. Mrs. . Tacovella testified it had been stolen from the parking lot - _of Alexander’s on Route 4 at Paramus .on November A 1964. When the ear was stolen a pair.of slacks belonging to Iacovella’s daughter was in the trunk of the car. These slacks were being taken back to' the store because the zip- _. per was defective. There also was in the trunk of the car something less than 100 feet of white nylon cord, such as is used for Venetian blinds. When Iacovella opened. the trunk of the car at the police garage, he found his daugh- ter’s’slacks were gone and 44 feet of the nylon cord were also missing. He found a black leather pistol holster that | “ did not belong to him and was not in the car when. it was . ‘stolen. It, requires little imagination to deduce that the . pistol holster was left there by the robbers. There was expert. testimony to the effect that the portion of Tacovel- la’s cord left in the ear was identical in diameter, color, composition and in every observable respect with the piecés of cord that had been used to tie up the priests, the. caretaker and the guards; and the girl’s slacks, defeetive zipper and all, were found in the Speditz apartment while © he and Callahan were living there together. ‘The. various articles taken from the Speditz apartment were discovered pursuant to the authority of a search warrant. * ’ So, sibilant the crime, we think it hi y probable _ that Callalian, Kapatos, Pierce and Speditz 1ved at the . switching place on December 21, 1964 in at ears, that _ . they left Pierce’s “clean”’ car in some parking lot and pro- ceeded with the two stolen Chevrolets, Rubin’s black Im-.: ‘ pala, and Iacovella’s Aqua Blue Bel Air, to the vicinity of. the Rectory. The Iacovella car was used to take three of the robbers close ta_the Church so they could get in to the vestibule of the Rectory at just the right time, Then, if anything went wrong, this. same ear could be used for a “ getaway. As-it-happened, the-scheme succeeded beyond their expectations and they all departed in the black car. and left the Aqua Blue Bel Air in the street: = What Occurred After the Robbery The details of the identification procedures,. which are attacked’ by appellants as lacking compliance with -consti- tutional standards, and the alleged. illegal search of. the person of Callahan in Miami Beach on January 22, 1965, will be discussed later in this opinion when we come to the © law points. : On Jan ary 1, 1965 Callahan was dudecrs thes an un- identified man driving off in Kapatos’ s new 1965 green Oldsmobile with clothing and packages from the Speditz apartment. ‘Speditz and Callahan also bought new cars. . Both Speditz and Callahan were seen in Miami Beaeh, Fla., in January, 1965. ‘In March, 1965 Roberts had sev- eral significant conversations with Kapatos and with Cal- lahan.. Indeed, Kapatos spoke to Roberts often about the robbery, telling Roberts that his share of the loot was over $100,000 and asking his cooperation in putting a portion of this sum-out at loansharking: interest or in gambling. at 4 aie par ee pena es the waterfront. But Roberta: held off. In one of these | post-robbery conversations with. Callahan, the latter re- , marked “*Aren’t you —_ that _ didn’t have a ats of that score.” Neither Callahan nor Kapatos testified i in hie own de- > fense; and Kapatos’ s weak alibi was pretty well: battered by the evidence produced by the Government i in rebuttal. It is worthy of comment that the prosecutor, Assistant - _ United States Attorney John R- Wing, conducted the Gov- ernment’s case with singular poise and composure, in the face of what must have seemed to him to, be provocative dilatory tactics, and his masterful summation pulled all . the threads together. We have been at.some pains, after a study of every page of the transcript, and a view of all the exhibits, to - set forth a summary of the proofs, not-only-to-make plain . tie undoubted guilt of Callahan and Kapatos, but, hope- - fully, to forestall some of the usual applications for post- conviction remedies, which now have so increased in vol-. ume as to constitute’ a serious problem of administration in the federal courts ; q | We turn to the law points. co | STL Hearsay Before the Grand Jury We are ask to reverse: the: judgments of conviction of . Callahan and Kapatos and to dismiss the indictment be- - cause none of the forty-odd witnesses who testified: at the - trial was called before the Grand J ury. But the situation _ here is for all practical purposes the same as in United _ States v. Costello, 221 F.2d 668 (2d Cir. 1955), affirmed, 350 U.S. 359 (1956), with the difference that. the ‘Intricate ~ — A-14 and complicated details of Costello involved an alleged in- come tax fraud, whereas here the intricate and complicated ~ details have to do not “only with the four priests, the - earetaker and the two guards who were trussed up and other witnesses at tlie scene of the robbery, which no one disputed, but also with expert witnesses on the subject of. the rubber band found on Callahan, the paint particles and wood fragments connecting the stolen black Impala Chevrolet with Pierce’ S garage and the comparison of the cord used to bind the victims -with the remaining feet of the identical cord found in thie abandoned Aqua Blue Bel Air Chevrolet. A ‘dozen or more witnesses contributelt - - small individual details which in the aggregate .unfolded the story of the four stolen automobiles. And so on. It _would have servéd no useful ‘purpose to have produced.this array of witnesses or any of them before the Grand Jury. The only result would have been needless expense to the Government and great inconvenience to the witnesses, many of whom lived at eonsiderable distances from the federal ‘courthouse in New York City. he Grand Jury miriutes | were unsealed'so that we might see them, although these minutes, were not shown to counsel for Callahan. and Kapatos. We have read these minutes and there is no doubt the Grand Jury knew and was told that what was placed before it was hearsay. 3 c The insistence by. appellants that the failure to ‘babs Roberts and Sister Olympia before the Grand J ury con- - stitutes a fatal defect comes with exceedingly ill grace, as there had been two attempts ‘to murder Roberts, one in’ November. of 1965, when he ‘was shot in tHe, chest, but. * survived, ‘and another i in August, 1967 when he was blown up. by a bomb in his car but survived, minus one lég and. with his right arm crippled for life. ‘The FBI discovered . that. a third attempt. was being — “and managed to _ get him out of the way. ‘The Senin also represaiis A-15 that: the two remaining conspirators, Pier ierce and Speditz, were ‘« xecuted,” which we suppose means murdéred, in or about December, 1965. The record does not disclose the identity of the persons who mastermined the attempts to murder Roberts or whether the doing-away with Pierce * and Speditz was for the~purpose of forestalling some’ attempt to assist the Government in its prosecution. of - Callahan and Kapatos or to make off with the share of the loot. allotted to Pierce and Sepditz. In any event, NA -. ; word of any of these murders and attempted murders was > */ mentioned in the presence of the jury. As to Sister i _ Olympia, as we. shatl soon see, her recognition of Kapatos by: his voice when he complained in no uncertain terms at | having his pictute taken while in one of the rooms. of the federal courthouse in Newark, N. J., on January 25, 1965 _ Was not known to the FBI when the ease was presented y to the Grand Jury. The reason: it was not known was that’ : she was asked if she recognized anyone connected with the robbery and she thought this, referred only to’ ‘the masked man she saw carrying a bag ‘from the panel truck to the black Impala Chevrolet and not to the beggar who on two prior ‘occasions had come to the Convent asking for food. Even if this were not so, the Government was under no obligation to offer Sister Olympia, or any other partic. ular person, asa witness before the Grand Jury. This Court. has never dismissed an indictment because the indictment was supported only by hearsay,’ and this statement applies both before and after the classic state- ment by Judge Learned Hand in t Contorte,, va F.2d at ' page 679. ? The writer of this opinion still believes there was some merit in his dissent in United States v. Beltram, 388 F.2d 449, 451 (2d Cir.), cert. denied, 390.U.S. 1017. (1968) but that dissent” remains only a dissent from the prevailing view, and it was applicable only to a particular undesirable practice in narcotics cases which has long since been abandoned. , ‘ et z ‘A-16 a Callahan and the Rubber Band _ On January 22, 1965 at 9:30 in the morning, Sires FBI ‘ agents requested admission to Call: S room in the Ocean Haven Hotel in Miami Beach, Fla: He 1lét them i in. | and they told him they would like to have him come with them to the FBI office. . He was:told that they wanted to see’ him in regard to-the currency truck robbery in Paterson in December, 1964, that he did not hay¢ to consent .to the interview, that any. statements he made could be used against’ him in a court of law, and that he had a right to _ consult.an attorney before making any statement. This ~ was long prior to Miranda’? and was in accord with what had been for many years standard FBI procedure. He. was also told he was not under arrest and did not have to _ come with the agents. He readily agreed, however, and - went with them to the FBI office after putting on, his trousers, a T-shirt and his shoes. At the office he told the - agents he knew his rights and had no intention to answer any questions a Moreover, he refused to be finger- printed or to be photographed. When asked if they might — ‘*pat him down” he said ‘‘yes,” and in the process of pat- ‘ting down one of the agents felt a slight bulge in the. waist- ' band of the trousers. This turnéd out to be a slit in the waistband and in this slit, which formed a sort of small pocket, was a rubber band. Callahan made no protest or objection and said he didn’t know what it was. He pro- duced some bills and handed them over. * He took, off his trousers and they were examined without result. The rub- ber band, which at the time no one thought had any signi- ' ficance, was thrown on the table and he said they could have - : = After taking. apriaie eo by Callahan and re-. . 2 See n. 4, infra. idl + ag » @ ‘ A-17 prea Whe . turning an equivalent amount to him, the rubber band was put around the bills he produced, in the-sum of about $140, ~ - and the bills were sent to the FBI Laboratory in Washing- ton for examination, - eS fe Caflahan’s version of the incident, given at a hearing in the absence of the jury, was understandably quite different. He-said the agents rushed in guns in hand and that he was. considerably manhandled and pushed about . _ despite: his vigorous protests. His memory with respect ' - to the rubber band did not seem to be. very good..°He thought he took it out of his pocket and handed it to the agents: In one of his. affidavits used in Support of one of the numerous pre-trial motions *he gave the’ impression that the agents found it in the course of an allegedly illegal — _ search of his room, . 7 na ae _ In any event,.J udge 7 Murphy concluded that he believed the agents and did not believe Callahan, so.the motion to suppress, based upon an alleged violation of Callahan’s. constitutional rights, was denied. We find no error here. | . If an individual unequivocally, freely ‘and intelligently gives. his consent to a/ search of his person, there is no. violation of, his constitutional rights (United States v. _ Smith, 308 F.2d 657 (2d Cir. 1962), cert. denied, 372 U.S. . 906 (1963)), and whether -or not_such consent has been "given is primary a question of fact, better left to the trial judge, who must pass upon the credibility of the witnessés, United States v. Cachoiam, 364 F.2d 291 (2a Cir. 1966), cert. denied, 385 U.S. 1029 (1967) ; United States v. Thomp- af .. $m, 356 F.2d 216 (2d Cir. 1965), cert. denied, 384 U.S. 964°. (1966). ee Pa et SCRE ae : . * Although Kapatos joins Callahan in claiming the seareh was il- legal, he is without standing to object to a violation of Callahan’s Fourth Amendment rights. Jones v. United States, 362 U.S. 257 (1960). . A-18 - We infer-from Callahan’s complaisance that he really _ did know his rights, as*he answeréd no questions, . and refused to be either photographed or fingerprinted. But he had altogether forgotten about the rubber band and, feel- ing quite positive that the money in his pocket was no part of the loot and that his trousers contained nothing that -could possibly incriminate him, he was quite willing to have the FBI examine his trousers till the cows came home. _. This was, we think, a quite adequate explanation ef his con- duet. ‘United States v. Curiale, 414 F.2d 744, 747 (2a Cir), cert. denied, 396 US. 959 (1969). | | _ As the pA at the trial dincleeea, this was not an ordinary rubber band but one 3 inches long by 3, of an inch in width, of amber color, precisely the ‘same as the rubber bands used by the First National Bank of Passaic to bind ; the bundles of bills placed in the bags taken by the robbers from the panel truck at the Rectory on December 21, 1964. ~~ | V. The Theft and Interstate Transportation of the Mercury Station Wagon eT. Callahan claims that the proofs are not sufficient to connect him with the stealing of the. Lebowitz 1962 Mercury station wagon. He says he did not steal the car, that no . witness testified that he ever. rode in the car or that jhe _ knew it would be driven to New Jersey. - But all this is — ' beside the point and of no avail to Callahan. , We have already seen the part stolen cars shined i in the development of the conspiracy charged in this case. The ~ - jury had a right to infer that Callahan, as well-as Camp- bell, Kapatos, Pierce and .Roberts, was ready, willing and able to-steal the station wagon they needed for the machine’ a ae aren Uwe | I | | / This brings us to. the most in ; The disguises liad been so cleverly devised that of the A-l9 | a sa \ ~- operation, because the proof. i is they all agreed that ‘teach and every-one of us was to be on the alert jn regards | to stealing a station _wagon.’*. Callahan’s. acceptance of this .” ‘responsibility was an inducement and encouragement . to. the others. Each was relying on what each of the others had agreed to do. Callahan had committed himself to the doing of an act in f urtherance of the enterprise. This was all that was necessary to warrant a finding by the jury that he aided and abetted the others including Kapatos, who: actually stole the car. Nye ¢ Nissen v. United States, 336 U.S. 613 (1949) ; United States v. Peoni, 100. F.2d: 401 (2d Cir. 1938). And this was in accordance with the unexcep- tionable instructions given by Judge Murphy, which were deemed satisfactory by the defense. The requirement of interstate transportation was no more than a jurisdictional requirement: satisfied by proof that Kapatos drove the ear ~ from New York to New Jersey. United States v. Blassin- - game, 427 F.2d 329 (2d Cir. 1970). Sel er sete _CaNz was charged as an accessory befaie. the fact and a. principal, under 18 U.S.C. Section 2 (1964), United States v. Pritchard, 55 F. Supp. 201, 203 (W.D.S. C.), affirmed per curiam sub nom. Waters v. United States, 145 F.2d 240 (4th Cir. 1944). We find no insufficiency in — the proofs supporting Count 8 of the indictment as against ~ Callahan. RS: Egle oo) Mita aeee oe oo VI. | | Sister Olympia and the tapi Procedures’. | teresting phase of the case. ‘seven: victims trussed up and the people pass by’ in the street not a single-one could"identify. any of the four — | ne in court or otherwise. One of the gs wand saw a eT ete - * ‘A-20 tuft of gray hair aula from under the mask of one of A eA the robbers-but no.one saw the face of any of them. The . “three inside robbers who trussed up the priests, the care- taker and the guards were described as one shorter than the two others, hut.ali the victims were so frightened that they had little to-6ffer that. would help the investigators. A few days after December 21, 1964 two FBI amen came to the Convent to see Sister Olympia, the nun who - had reported seeing a masked man carrying a bag from the panel truck to the. black Chevrolet. She was shown several photographs, including those of Callahan and Kapatos. The hope, of course, was she might recognize the . man. she had described. But she said she eould not‘say he was the man shown in any of the photographs. Just before ‘ December 30, 1964 she said she had been thinking the matter over and would like to see the photographs again. So she did see them again and repeated what she had said before, that she could not say the man she saw at the time: of the robbery was shown in any of the photographs. She — added, however, that the photograph of .Kapatos looked like that of a man who had twice come to the Convent a month _ or two. before,. begging or something to eat. And she. further told the FBI agent. that a slight growth of hair on the begger’s face. was turning white and that he was’ ‘dress- éd better than the usual alcoholic who comes to beg for . food. There the matter-rested for some-time, as this infor- mation did not at the time seem to be a4 any particular | significance. As a result of the service of a number of Grand Jury subpoenas, all or most of tle witnesses to the robbery and ‘a number of suspects, including Callahan and Kapatos, were present in the antechamber adjoining the Grand Jury A-21 room in the federal gourthouse in Newark, N. J., on Jan- — uary 25, 1965.. The record before us doés not disclose the names of those who testified before the Grand Jury, if any of them did, nor the subject matter of such testimony, if | any. But a number of the witnesses sitting on benches in _ the anteroom saw the people walking around. Father Kirk, who arrived at the Rectory a minute or two before the money truck, and who had been promptly yanked into the vestibule, hancuffed azid tied up, had noticed that one of the robbers whogad done this walked with a sort of limp or a characteristic manner of walking. He poinited,out Cal- lahan to the agents as the man who seemed to walk in this slightly unusual manner. No point seems to be made about this in agy of appellants’ briefs. | =a Adjoining the anteroom, however, was the. Library of the United States Attorney and through the spaces over and between the rows of books a person, without being ob- served, could look into the next room. Two or three people ‘were there, including a man sitting at a table. A number | of the witnesses,.including Sister Olympia, were placed be- hind thése-bookeases and they wete>told to look and see if any person appearing in the other room was recognized “fas being associated with the bank robbery.” No names were mentioned. Then, evidently as planned or directed by the FBI, Callahan, Kapatos and a man named Wilde - walked, one by one, through the room where the man was sitting at a table. This man was evidently trying. to take a photograph of Kapatos as he walked by and Kapatos "saw him. Immediately Kapatos began to complain and to object to having his picture taken. While Sister Ol had ‘not at first realized who he was, as soon. as she heard __his voice she knew it was the beggar who came to the Con- vent for food on the two occasions prior to the robbery. . = / A-22 : pt But she said nothing of this to the FBI agent who gave her the instructions as she had no reason to suppose the beggar _ was in any way ‘‘associated with thé bank robbery.’’ Much » . later, presumably in connéction with the preparation for the trial, she had further discussions with someone con- nécted with the prosecution and she did tell him she had recognized the beggar by his voice on January 25, 1965. At ‘the trial Sister Olympia, viewing those present at _the trial, cdyld not say that she recognized any6ffe. But A the FBI agents were permitted, over objection, to testify 7 TEE recognition, at the time of viewing: the photographs, "Welle Sede @ Sister Olympia of Kapatos. as the beggar and to sup- sd plement the testimony of Sister Olympia about recognizing ~ ‘he beggar by his voice at the courthouse in Newark by identifying as Kapatos the person to whom Sister Olympia - was referring as the beggar. ; » The main thrust of the attack on Sister Cia testi- mony by counsel for Kapatos is that at a critical juncture _ Kapatos was deprived of the benefit of counsel. We are told Kapatos and Callahan had retained counsel who were in. attendance to protect their rights in connection with the Grand Jury subpoenas. that had been, served on them, and that at the very least they should have been told that persons were looking at them from behind the bookcases , and that they were entitled to the presence of a lawyer to represent each of them. Reliance is placed on a whole series of cases, including not only ‘the trilogy of Wade, Gilbert and Stovall, but also Miranda and Escobedo.‘ | idee ‘United States v. Wade, 388 U.S. 318 (1967) Gilbert rv. Cali- -fornia, 388 U.S. 263 (1967) ; Stovall v. Denno, 388 U.S. 293 (1967) : ’ Miranda v. Arizona, 384 U.S. (436, (1966) ; Escobedo v. Illinois, 378 U.S. 478 (1964), } | j / / CaP NT Le CMTE RO yr ee A-23 _ In addition to the Sixth Amendment claim it is contend- ed that the lineup, if it can be called such Was unnecessari- ly suggestive and conductive to irreparable mistaken iden- tity in the light of the totality of surrounding circum- stances. we) | : By way of preliminary we. hold there is nothing what- ever in this record to indicate that there was any illegality _ or impropriety in serving these Grand Jury subpoenas re- 5 quiring the presence outside of the Grand J ury room of a considerable number of those who knew something about ° the robbery, including a number of suspects who might or % might not be willing to testify. We adhere to our ruling ‘on the same subject in United States * Corallo, 413 F.2d 1306 (2d Cir.), cert denied; 396 U. S. 958 (1969). 3 A. That showing the photographs to Sister Olympia was a permissible procedure was the precise holding in Simmons v. United States, 390 U.S. 377, 384 (1968) ; see also United States ex rel. Beyer v. Mancusi, __ F.2d aig. CO January 5, 1971). On the face of the evidence we have just summarized it is clear to us there was nothing sug-. gestive about the way in which Kapatos was brought within the view of those behind the bookcases. No names were mentioned and the result of the inquiry concerning those - connected with the robbery, including the masked man Sister Olympia had seen carrying the bag from the bank’s money truek to the black Chevrolet, was completely nega- tive. Neither the FBI agent in charge nor Sister Olympia was thinking of the beggar. It was only by a fortunate quirk of fate that Kapatos complained about having his picture taken, and Sister Olympia at once recognized the ‘2A ‘voia as that of the beggar. We reject’ the claim of sug- gestiveness as frivolous. And the same may be said of the objection to testimony by FBI agent James R. Laugh- “lin identifying Kapatos as the person referred to by Sister. — as the — : B . bd ‘ ae ~In answer to the contention that the réfusal to exclude the testimony of Sister Olympia constituted a deprivation of the right ‘to counsel under the Sixth Amendment we __ think it is sufficient to say: (1) The so-called lineup was not in any sense custodial; Kapatos was not under arrest nor was he subject to restraint of any kind; and he was not — indicted until August 5, 1968, more than three years after the incident of January 25, 1965. (2) The incident in ques- | tion occurred long prior to the decisions in Wade, Gilbert and Stovall, which were filed on June 12, 1967 and the new ruings changing the. pre- -existing law were held to have no “retroactive effect. Whether or not a similar procedure . under ” similar circumstances, occurring on a date subse- quent to June 12, 1967 would be held to be [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1200%3A1. Public record. Not legal advice.