Petition for a Writ of Certiorari — Aloisio v. United States

Supreme Court brief1971

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MUP RE MS. ¢ © URT, U.S. | ee .

Isa APR 28 1971

Geminis 2, CLERK |

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Pn eng ee yt

| Bn the |

| Supreme Court of the United States

OcrToBER — 197 Joa ae

7o- 137

WILLIAM ALOISIO: and STANLEY , JASINSKI

Petitioners,

VS.

- UNITED STATES OF AMERICA,

| Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS ..

_ FOR THE SEVENTH CIRCUIT

JULIUS LUCIUS ECHELES

. FREDERICK F. COHN

WILLIAM E. LASKO, II

30 North ‘LaSalle Street ~

- Chicago, Illinois 60602

Attorneys for Petitioners

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

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INDEX

: | ee a amma’: om

- Opinions below... oF = RR A a FD TRY res oe |

_ Jurisdiction 2... ce

. Questions presented.

Constitutional -provisions involved %.............

Statement of the ease ... 5

’ Reasons for granting writ

: The conviction of , petitioner Aloisio was boned al-

most exclusively upon evidence admitted under the

corspiracy exception to the hearsay rule and there-

by violates the Sixth &mendment Confrontation |

Clause as interpreted in Douglas v. Alabama, 380 -

U.S. 415: ‘and Bruton v. United States, 391 US..

ccs OR TOES TS OE CLO ideas oe

‘2. Petitioners were denied their Sixth Amendment

\ right to confront the witness Kay, by the- Court

holding that such witness could invoke his Fifth

Amendment right against self incrimination to

limit cross-examination concerning his interest,

; bias, and whether he had at a prior time purposely

. committed perjury 2. iscanaiiieasappendeelnsiacapechonnsccs 8

“

3. The conviction of petitioner J asinski Was in viola- —

tion of his Sixth Amendment right of confronta- «

tion as a result of accusations admitted pursuant

to the conspiracy ——- of _ hearsay rule ... 15

: . PAGE

4. The detersnination of probable cause to arrest by |

the Court of Appeals, absent a full determination

of this issue at-a trial evidentiary hearing, the

_ issue of the constitutionality of defendant’s arrest

becoming relevant only after trial due to an inter-

ceding opinion of the Court in Davis v. Mississippi

— 394 U.S. 721, is in violation of the principles an-

nounced in “Morales v. New York 396 US. - eas

I le Bloke daar . 15

Conclusion _...... piictibas ats Soli ee Pehla le aaa _

Appendix k-Opinton of the United States Court -

€ Bw 5. Me ele PE _ App. 1

oe B—Order denying petition f for rehearing App. 15

_ AUTHORITIES CITED. -

: a Cases

Alford v. United States; 282 U.S. 687, 51 S.Ct. 218, 75

fe ag Meek eine oO

tks tk $19 WS. 89 a ienigeneen tienen _. 18..

Bostic v. United States, No, 5250-0. 70 VOUT eae,

Bruton v. United States, 391 U.S. 123 ©. 5,6

Crosso v. United States, 390 U.S. 62. occ eco “16

Curtis v. Butts, 388 US. 130 2..2.. aber rene are 16—

Davis v. Mississippi, 394 U. TI ohecorsdanntnccincnd 15, 16 _

“Douglas v. Alabama, 380 U.S. 415 0 Rie

Gordon v. United States, 344 U. S. 414, 423 . Re Seer 10.

Jackson v. Denno, 378 U.S. 368, 12 L. ed. 2d 908 ......... 6, 19.

: 2

: ~ PAGE

| Leary Vv. United States, 395 U.S. 6, 23 L. ed. 2d of .. 6.

Morales v. New York, 396 US. 102 Ce ae | re

Napue v. Illinois, 360 U.S. 264, 3 L.Ed. 2a 1217 7 13

O’Conner v. pee, 200 UB. 08 16,18

. Sibron v. New York, 392 tA 4 .... . 18

, Spinelli v. United States; 393 U.S. 410, 21 L Ed 637 .. A 18

United States v. Henry, 301 U.S. 96.12: «18

United States v. Lawinski, 7 Cir. 195 F.2d at p.7....... 10

’-“Uaiited: States vy. Varelli, 7 Cir. 407 F.2d 735 2... 10

Miscellaneous |

Fourth Amendment to the United States. Constitution -. 16 ;

Fifth Amendment to the United States Constitution .. . 8,18

Sixth Amendment to’ the United States Constitution .. 5

Fourteenth Amendmepit to the United States Constitu- |

tion ..... Bicone ssdecgeiaiais adel ead as ose te siesiee 1D Spe

| Ie the oe

Supreme Court of the United States

Ocroper TR, 19100.

WILLIAM ALOISIO and STANLEY JASINSKI

’ Petitioners,

UNITED STATES OF AMERICA,

. ' ' Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE:

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioners, William Aloisio and Stanley Jasinski, re-

spectfully pray that a writ of certiorari issue to review the

_ Judgment of the United States Court of Appeals for the

tenes Cireuit: entered i in thisgrase on March 10, 1971..

OPINIONS BELOW:

‘The judgment of conviction and sentence of the United |

‘States District Court for the Northern District of Illinois

‘is not officially reported. The opinion of the United States .

_ ° Court of Appeals. for the Seventh oor entered on

_ Mareh 10, 1971, has not ‘yet been official

reported. It

is atached as an appendix to this Petition.

eee

JURISDICTION

The judgment of the Court of Appeals affirming the

judgment of-conviction and sentence of the district court

was entered on March 10, 1971. A Petition for Rehearing

en Bane was timely and denied on April 9, 1971. he ©

. jurisdiction of this Court is. invoked under and pursuant

to 28 U.S.C. 1254 (4).

QUESTIONS PRESENTED...

1. Does the conspiracy exception to the hearsay rule

_as heretofore applied in federal courts violate the Sixth

Amendment’s Confrontation Clause as interpreted in Doug-

las v. Alabama, 380 U.S. 415 (1965), and Bruton v. United

States, 391 U.S. 123 (1968) ?.

2. Does the judicial presumption implicit ‘within’ the

limiting instructions pursuant to }he conspiracy exception

to the hearsay rule fail to meet the constitution standard

for such presumption as announced by the Court in Leary

v. United States, 395 U.S. 6 (1970)?

3. Can a Government witness, as distingidabed from a

defendant (Cf. Harris v. New York, ....... U.S. ....- ,8 CRL

3139) invoke his Fifth Amendment pr. vilege ageinss self

incrimination to limit a defendant’s Sixth Amendment | _

right to confrontation as interpreted by Alford v. Umted

States, 282 U.S. 687? ;

4. Where the’ constitutionality - of defendant’ s arrest

first becomes an issue on appeal due to an interceding

United States Supreme Court opinion (Davis v. Missis-

sippi, 394 U.S. 72) can the court of review determine the

constitutionality of such arrest, absent an evidentiary

hearing, in violation of the principles announced in Morales

v. New, York, 396 U.S. 102 (1969), or must this be a re-

‘versal pursuant to Jackson v. Denno, 378 .U.S. 368 for a

hearing.on the constitutionality of defendant’s arrest?

_ Constitutional Provisions Involved

Fourth Amendment provides that ‘“‘The right of -the

people to be secure in their persons .. . against unreason- -.

able searches and, seizures, shall not be violated.

Fifth Amendment provides that “No person shall... be

Beis ae in‘a criminal case to be a witness against ia.

self .

The Sixth: Amendment provides that ‘In all criminal

prosecutions, the accused shall enjoy_the right “ea L

confronted with the witnesses —— Me ike

Statement of the Case

- An 8-count indictment. was returned on July 3, 1968,

charging defendant®nd 7 others w ith conspiracy to make, -

forge and counterfeit U.S. treasury notes, and with con-

spiracy to possess, pass and sell the -coutterfeit notes

(J.A. 1-3).* Of the 7 remaining substantive counts, defen-

dant was charged in count 3 with possessing 1 counterfeit. —

$10,000 note on January 16, 1968, in violation of 18 U.S.

_ Code 474°(J.A. 1); in count 4, along with William Aloisio,

» &

Grace Cosentino and Nimrod T. Solomon, with possessing

99 $10, 000 counterfeit notes on January 22, 1968 (J.A. 1-2) ;

count 5 charged Jasinski, with Aloisio, Cosentino and

Solomon with buying, selling, receiving and delivering 99

counterfeit $10,000 notes on January -22, 1968 (J.A. 2),

_and’count 6 charged that he with Aloisio, Cosentino and

Solomon possessed 99 counterfeit $10, 000 notes on Janu-

cary 22, 1968, with intent to sell (J. A. 6).

Count 1 charged defendants Clinton Davison and Kd- |

ward Murray with possession of 1 $10,000 counterfeit note

7 es refers to Joint Appendix of Record filed herein.

on January 15, 1968 (J.A. 1); count 2 charged Bartoli,

Davison, Murray and Norman P. Carter with falsely mak-

ing and forging 99 counterfeit $10,000 notes‘on January 19,

-1968 (J.A. 1) and count 7: charged defendant Charles

Bartoli with possessing 1 counterfeit $10, 000 note on Janu-

~sid 20, 1968. (J.A. 2): ,

Of the defendants, Cosentino’ s trial was severed, Clinton

Davison: entered his plea, of guilty on the day of. trial

_(J.A. 5), and he became the first government witness

(Tr. 103).* Carter was found not guilty. All of the other

defendants were found guilty as charged in the indictment.

Solomon, Bartoli and Murray were sentenced to 10 years

(J.A. 7-8). Aloisio and Jasinski were sentenced to 5 years

(J.A. 8). Davison was placed on probation (J.A- 8).

By appropriate motions Jasifski moved for directed

verdicts of not guilty. (J.A. 6, Tr. 1765). Various motions’

for mistrial and for severance were denied..

(The facts generally ’ are set out in full in the opinion

of the Court, which is sought to be reviewed, and those facts

specifically relevant to the Constitutional violations al-

leged are set out in detail within the reasons for grant: -

ing the writ, and are incorporated herein.)

*<“Tr” refers to original ——— of “Proceedings as ‘filed —

herein.

Reasons For Granting Writ | |

1. The conviction of petitioner Aloisio was based almost

exclusively upon evidence admitted under the con-

spiracy exception to the) hearsay rule and thereby

violates the Sixth Amendment Confrontation Clause

as interpreted in Douglas v. Alabama, 380 U.S. 415

and Bruton v. United States, 391 U.S. 123. .

The Governient’s evidence as demonstrated’ by ihe opin-

ion of the Court of Appeals is totally devoid of any sub-

"stantial evidence of any Criminal conduct on the part of

defendant Aloisio, other than statements of ‘one Grace :

Cosentino implicating defendant, which were held to be ad-

missible against defendant upon the special rules of evi-

dence applicable to conspiracy prosecutions. This court

has granted certiorari in Bostic v. United States, No.

5250 O.T. 70. One issue there is:

‘** Does the conspiracy, exception to the hearsay ruleas |

heretofore applied in federal courts violate the Sixth-

Amendment’s Confrontation Clause as interpreted in

Douglas v. Alabama, 380 U.S. 415 (1965), and Bruton

v. U.S., 391 U.S. 123, 3 CrL 3085 (1968) ?”’

Here: as in Bostic, the conviction was based upon the

admission of evidence normally inadmissible because ‘of

its being highly prejudicial and being in violation of the

right of confrontation. It was admitted based’ upon the

exception permitted in conspiracy prosecutions.

The special: evidentiary rules in conspiracy cases are un-

constitutional. Essential to the conviction. where other-

wise inadmissible evidence -is admitted under the ¢éon-

spiracy exception, is the ‘‘judicial presumption’’ that the

jury can abide by certain limiting instructions. Intro-

duced in evidence were statements of alleged co-conspira-_

tors. Except for the unique rules governing conspiracy,

such hearsay evidence would not be admissible. Bruton v.

_ United States, 391 U.S. 123. The court attempted to re-

move the normal prejudice flowing from the admission

of such #‘hearsay”’’ by giving to the jury instructions which’

attempted to limit the jury’s consideration of such evi-

dence. (Tr. 2136-7)

These instructions require the jury to lear the ‘evi- —

dence damaging to defendant,. but. remove it from ‘their

minds in | regard to certain determinations, and then con-

sider the evidence for other determinations. Permitting

the introduction of such evidence. and then attempting

to’remove theeffect of sich prejudicial evidence by in-.

structions, is based on the presumption that the jury can

‘follow .such instructions. In Leary v: United States, 395 -

U.S. 6, 23 L. ed. 2d 57 the court considered the constitu-

tionality of ‘‘criminal statutory presumptions. ’> No sound

reason exists that ‘‘judicial criminal presumptions’’ should

not’ be judged by the same standard. In Leary, the court

stated ‘‘that a criminal statutory presumption must be

‘regarded as ‘irrational or arbitrary’ and hence unconsti-

tutional unless it can at least be said with substantial

. assurance that the presumed fact is more likely than not

to flow from the proved fact on which it is made to de-

pend.’’ Similarly, the’ presumption that the jury’ will

abide by the limiting instruction. is arbitrary unless it

can be said with substantial assurance that the presumed

fact, ie., that. the jury will and can abide by such instruc-

tion in conspiracy cases, is more likely than the recog-

nized fact, that a jury cannot departmentalize its mind,

and will in all probability consider evidence highly preju-

dicial.to defendant when such evidence is statements of

co-defendants. Bruton v. United States, 391 U.S. 123, 20.

L. ed. 2d 476; see also Jackson v. Denno, 378 US. 368,

- 121. ed. 2d 908.

——

In Bruton, the court held that the jury cannot abide

by an instruction not. to consider against ‘defendant a

co-defendant’s statement implicating defendant. The court

relied upon its prior findings in Jackson v. Denno, that

juries can not wipe from their mind, or limit their | con-

sideration, of highly prejudicial evidence, .

The presumption that th the jury in conspiracy cases can

function differently from the jury selected in all other

cases is not based upon any scientific determination. It

is contrary to all other determinations by the court rela-

tive to similar areas. The presumption is therefore ‘‘ir-

rational and arbitrary and hence unconstitutional.’’ |

The ‘‘unfairness’’ of permitting the introduction of the

hearsay testimony is great in- the instant case due to.

certain unique facts, to-wit: (1) approximately -all of the -

testimony concerned acts and statements of Cosentino,

(2) Cosentino did not defend ow said facts, having been

severed due to incompetence, (3) Cosentino was not avail-

able for cross'examination. Hence, thére exists the very

circumstance held to be most prejudicial, i.e., defendant

being denied the right to cross examination relative to |

extremely damaging statements of co-defendant. In Bru-

ton, Justice. Stewart, in his concurring opinion, (391 U.S.

137, 138). states: |

. “JT join the opinion and judgment of the Court.

Rec I did not agree with the decision in Jackson

Denno, 378° U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct.

1774, 1 ALR 3d 1205 (see id., at 427, -12 L. Ed. 2d

at 945,.1 ALR 3d 1205), J accept its holding and

share the Court’s conclusion that it compels the over-

- ruling.of Della Paoli v. United States, 392 U.S. 232, 1

L. Ed. 2d°278, 77 S. Ct. 294. :

“Quite apart from Jackson vy. Denno, however, I

think it clear that the oe ee rationale of the Sixth

---Amendment’s Confrontation Clause, precludes reli-

ance upon cautionary instructions when the highly

damaging out-of-court statement of a co-defendant,

who is not subject to cross examination, is delib-

erately placed before the jury at a joint trial. A

basic premise of the Confrontation Clause, it seems

to me, is that certain kinds of hearsay (see, e.g.,

Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85

-S. Ct. 1065; Douglas v. Alabama, 380 U.S. 415, 13

L. Ed. 2d 934, 85 S. Ct. 1074) are at once so damag-

ing, so suspect, and yet so difficult to discount, that

jurors cannot be trusted to give such evidence the

minimal weight it logically deserves, whatever in-

structions the trial judge might give. See the Caurt’s

opinion, ante at 485, n. 12. It is for this very reason

that an out- of-court accusation is universally con-

+ ceded to be constitutionally inadmissible against the

accused, rather than admissible for the little it may.

be worth. Even if I did not consider Jackson v.

Denno. controlling, therefore, I would still agree that

Delli. Paoli must be overruled. a

There is no rational basis for distinguishing the mental

ability of jurors in conspiracy cases from their ability

in- other cases. The judicial presumption that the jury

could remove from its mind the highly prejudicial hear-

say is arbitrary and therefore unconstitutional.

The court should grant certiorari in accordance with the

grant of certiorari in Bostic v. United States, supra.

2. Petitioners were denied their Sixth Amendment right

to confront the witness Kay, by the Court holding that

- such witness could invoke his Fifth Amendment right

‘ against self incrimination to limit cross-examination

concerning his interest, bias, and whether le had at a

' prior time purposely committed perjury.

_Kay was the crucial government witness. The court

improperly limited defendant’s constitutional right to .

ae cross-examine government witness, Kay. The court (1)

prevented the defense from demonstrating that Kay was:

- willing to commit perjury and had in fact, committed

perjury ; @®) limited examination tending to Mow Kay’s

need to please the government, in order to avoid his

otherwise assured conviction’ of. crimes involving periods :

of substantial incareeration. e

At trial, counsel for defendants were prevented from

demonstrating that«Kay was a perjurer. aye?’

By Mr. Callaghan: : 3 os

_ Q. Now, Mr. Kaczinski (Kay), the case in which

you are indicted charges yeu in three counts, does it

‘not, the income tax violation?

oe ee | believe that’s correct.

Q. Sir? -

‘A. I said I believe that’s correct.

Q. And it charges you in each one of those counts -

with having, in three separate years, filed a false and

fraudulent income tax return, does it not? :

_ A. - It probably does. :

Q. Now, when. you signed those income. tax re- - cm

turns, you knew that any false. statements in those.

_returns was subject to the penalties of perjury, didn’t ©

you? :

Mr. Weber: “Objection.

The Court: I will sustain the objection

By Mr. Callaghan: .

Q. Did you are and Sidi file.a false

income tax return?

- Mr. Weber: Your Honor, I will object: The fact —

- that he has been indicted is brought out, and that’s.

as far as we. can go. (Tr. 1492).

; Yi , 10 ral: |

The Court: The. objection will be sustained. .

Mr. ‘Callaghan: Did he know he was subject to the |

penalties of perjury at the.time he signed them?

/The Court: The. objection is sustained, because it

assumes that he filed, and all we have here is a

/ charge ‘pending against this man, and.I will not per-

mit you to-go into it.

. Mr. Callaghan: This goes ‘to his motive for testi-

fying. (Tr. 1497) 3 ; |

The limitation of cross-examination was improper. In |

United States ‘v. Lawinski, 7 Cir. 195 F.2d at - “7, the

court said:

“We recognize that it is of, the essenee of a fair

_ trial that reasonable latitude be extended to the cross- ;

examiner, and that prejudice may ensue from a denial. .

of the opportunity to place a witness in his proper

setting and put the weight of his testimony and his

credibility to a test. Alford. v. United States, 282

U.S. 687, 51 S:.Ct. 218, 75 L.Ed. 624.”’

In Gordon v. United States, 344 U.S. 414,- 423, the court

held that while judges have a wide latitude in aad

.cross-examinations, > ‘

‘‘this principle cannot be expanded to justify the:

curtailment which keeps from the jury relevant -and

important facts bearing on the trustworthiness of

crucial testimony.’’.

That a witness is a willing perjurer is clearly very

material to the credence to be given ‘to his testimony.

That ‘a witness is a perjurer is the most important fact

- about the witness. Defense counsel has a right to demon-

strate that fact which is far more persuasive than that .

he has merely been indictedfor perjury. In United States.

v. Varelli, 7 Cir. 407 F.2d 735 the court. considered the

e 1l

limitations placed upon cross-examination of a govern- —

met witness relevant to his being a BE ons or a subor-

ner of perjury. ” The court stated :

‘‘Schang’s credibility may be attacked by extrinsic

evidence or by cross-examination. The. introduction

of extrinsic evidence has been limited to prior .con-

. victions for various reasons. However, such restric-

tion does not apply to the extraction of the facts of

misconduct from the witness himself upon’ cross-ex-

amination. 3 Wigmore on Evidence at 547 (3rd Ed.

1940), subject to. the exceptions for relevancy and .

self-incrimination. Since perjury would be relevant

to the witness’ veracity, cross- examination should be

allowed on retrial.’’

Preventing defendant’s counsel from: ‘demonstrating by

- eross- examination that’ Kay was a willing perjurer was ©

“error.

_ The cross-examiner also attempted to demonstrate that

the witness was guilty of trying to sell and transport

cértain government bonds for which the witness was’ in-

dicted. _The court held that counsel could demonstrate

the indictment, but. not his actual guilt. The following

occurred: . |

Q.. Well, did you transport in interstate commerce

a $100,000 stolen bond, knowing it to have been stolen?

Mr. Weber: Objection. ;

~The Court: Again, Mr.’ Callaghan, it is the same ©

type of question I ruled upon in the side bar con-

ference, and I will sustain. the objection. (Tr. 1514-5)

Q. And is ce your testimony that you have

given in this lawsuit predicated upon helping your-

_ self in that situation with. the troubles ae you havet

A. No idea, sir.

Q. That is, you‘are not testifying in this lawsuit

with any ‘desire to get yourself out of. your income

tax case or this ‘stoleri bond case? —

A. That is correct.

Q. Did you ever try to sell that $100, 000 bond?

Mr.-Weber: Objection. °

‘The Court: The sienna is sustained. (Tr. 1516)

"e e * e

—-Q. Well, did you ever ask atiybody to tell an un-

truth about that bond. to the agents of the Federal

Bureau of Investigation?

Mr. Weber: Objection, your Honor. ,

The Court: The objection ‘is sustained. (Tr. 1517) |

| Showing interest or bias on the part.of a witness is an

accepted method-of impeachment, and even in jurisdictions

where, evidence of arrest or indictment is not ordinarily.

admissible to impeach credibility generally, the fact that

a witness has been arrested or charged with a crime may

-. be shown or inguired into where it would reasonably tend

\ to show that his testimony might be influenced by interest,

bias or a motive to testify falsely.

In Alford v. United States, 282 U.S. 687,-51 §.Ct. 218,

75 L.Ed. 624, it was held that a witness for the govern-

ment might properly he asked on cross-examination, -

‘‘Where do .you live,’’ even though the purpose’ of the

inquiry was to bring out the fact that he was in court in

. ,, custody of Federal authorities. The. -question was held

was biased because given under ‘promise or expectation

of immunity or under the..coercive effect of his detention

by such authorities.’ In holding that the defendant has

the right to inquire into the. matter of the witness’ de-

tention for the purpose of showing bias the Supreme

Court stated P 693 :

', proper as bearing on. the question whether his testimony. _

° 13

“The purpose’ obviously was not, as the trial court

seemed to think, to discredit the witness by showing

_ that he was charged with crime, but to show by such

facts as proper cross-examination might develap that

his testimony was biased because given under promi e

or expectation of ‘immunity or under the coercive ef--

- fect of his detention.”” © ay

Such evidence is so crucial that permitting a witness to

a" mislead the jury as to his bias has been held to violate due

process. In Napue v. Illinois, 360 U.S. 264, 3 L.Ed. 2d 1217,

the court said, p. 268, that it_was established that the.

Fourteenth Amendmerit to the Federal Constitution nulli-

' fies a.criminal conviction obtained in whole or in part by

testimony ‘of a-witness whose interest in the outcome of —

the trial has been falsely represented to the-jury where

‘- such interest may affect his credibility.

‘The Court of Appeals held that such limitation of cross-

examination was proper because the witness was able‘to

-’ invoke his Fifth Amendment privileges’ against self-in-

crimination in regard -fo his criminal — ‘The court

wptee::

* First, the distriet sade sustained the Government Ss

objection as to whether Kay was guilty of filing false

income tax returns. The defense was permitted to show -

that. there was a pending indictment. against Kay with

respect to filing a false inconie tax return, thus permit-

ting defendant to attack his credibility. As we noted in

United States v. Varelli, 407 F.2d 735, 751 (7th Cir.

1969), cross-examination‘on such matters ts subject to.

a self-incrimination exception, so that ine court’ Ss rul-

ing was correct. ;

° * e * :

Kay denied that he was testifying in ‘the Rein

lawsuit in order to be freed of the income tax and’.

stolen bond charges, and the jury was entitled to credit

his denial. The ‘strictures of Varelli and similar

cases dealing with the scope of cross-examination were

abundantly satisfied; .

This ruling -of the Coart of Apowais is in direct con-

flict with the court’s holding in Harris v. New York,

nae US. ....... 8 Cr L 3139. There the court held that

the 5th ‘hiceiadiiaisad cannot protect a witness from being

impeached upon cross-examination. The court stated:

: r, 3 '_ * © :

‘«* * * Every criminal defendant is privileged to tes-

tify in his own defense, or to'refuse to do so. But that

privilege cannot be construed to include the right to.

commit perjury. See United States v. Knox, 396 U.S. 77

(1969); ef. Dennis v. United States, 384 U. S. 855°

(1966)... Having voluntarily taken the stand, petitioner

was under an obligation to speak truthfully and ac-

- eurately, and the prosecution here did no more than

x utilize the traditional truth- ae ‘deviees of the ad-_

versary process.”’

- The rule of this court announced in Harris is that a

' witness having once subjected hiinself to cross examination —

by choosing to testify cannot use the 5th Amendment pro-

_ tection as a shield against his perjury. © ‘‘ Having volun-

tarily taken the “stand [the witness] Kay, was under an

obligation to speak truthfully and accurately and the [de- .

fense had the right to] utilize the traditional truth test-

‘img process,’’ by showing the interest of the wituess. The

limitation of cross examination was in violation of the.

right of confrontation as regulated by this court’s opin-

ions ‘in Alford v. United States, 282 U.S. 687 and Harris

v. New York, supra.

ete uae ae

: ty

" *

, :

3. The conviction of petitioner Jasinski was in violation

of his Sixth Amendment right of confrontation as a re-_

sult of accusations admitted pursuant to the —-

» exception of the hearsay rule. : |

As with defendant: Aloisio, the jury was permitted to

convict upon evidence which normally would not be admis-

sible (and the basis for reversible error, if admitted). but

here deemed appropriate pursuant to the unique rules of

evidence applicable in conspiracy prosecutions. The eon-—

vietion was therefore in violation of defendant’s consti-

tutional right of confrontation. (Point lof this petition

_is hereby adopted as to this argument). :

4, The determination of probable ‘cause to arrest by the

Court of Appeals, absent a full determination of this

_issue.at a trial evidentiary hearing, the issue of -the

_constitutionality of defendant’s arrest becoming rele-.

vant only after trial due to an interceding opinion ”

of the Court in Davis.v. Mississippi 394 U.S. 721, is in

violation of the principles announced in -Morales v.

New York 396 U.S. 102 (1969). |

The most crucial, persuasive oe nce . against defendant

Jasinski was that his thumb. print was on the back ofa

magazine used to carry a counterfeit bond. (Tr, 399). The

print on the magazine, Exhibit 16-A, was compared to a —

print Exhibit 17B taken from defendant. as a result, of

his arrest on January 22, 1968. (Tr. 531, 561).

His arrest at that time was without probable cause. He’

- was merely sitting in a car parked in a lot outside a motel:

The lack of probable cause for his arrest is evident from

the fact that the complaint against him hefore the com-

missioner was eta ( Tr. 1287).

“16

-“

' The fingerprints obtained from defendant as a result —

of his arrest-on January 22, were the direct fruits of the

illégal arrest. (Tr. 531).. The use of such prints for com-

‘parison to a print found on the magazine was a violation

of defendant’s constitutional rights, protected by the

Fourth Amendment to the Constitution.

In Davis v. Mississippi, 394 U.S. 721, the Supreme’

Court rejected the contention that prints taken from a de-

fendant are not subject to. the Fourth Amendment pro-

tection and reversed a conviction where testimony com-

paring prints found at the scene of a crime were identi- _

fied as being from the defendant where such comparison

was based_on prints obtained from defendant while he was

arrested without probable cause. The court reversed, even

_ though there existed other substantial evidence of de-

fendant’s guilt, i.e. the identification testimony of the vic-

tim and the confession of the defendant.

‘An objection at trial based on the aiaeiiatiieblenality of

defendant’s arrest was not raised to the admission of such

prints. In the Court of Appeals it was asserted that the

failure to raise such argument in‘pfétrial motions to sup-

press does not waive defendant’s constitutional right where

the decision upon which defendant relies, namely Davis

v. Mississippi, 394 U.S. 721, was not rendered until April

22, 1969, the date of argument to the jury in said cause (Tr.

(1893). Counsel in the Court of Appeals relied upon this

court’s prior rulings in O’Conner v. Ohio, 385 U.S. 92;

Curtis v. Butts, 388 U.S. 130; Crosso v. ‘United States, 390

. U.S. 62, all of which held that a defendant may raise, subse- .

quent to trial, a denial of a constitutional right which

was not raised due to reliance on prior constitutional de-

cisions, deviated from, since the trial. The gourt of

appeals .considered the ‘constitutionality . of defendant’s.

arrest, thereby adopting the position of — that no.

waiver occurred.

The court of appeals held that enibatls cause to arrest

defendant existed. The court stated:

“Even though the complaint against Jasinski was dis-

missed before his indictment, this record shows that

there was probable cause for his January 22nd arrest.

On the morning of January 22, in Agent Gibbs’ room

at the Chicago Airway Motel, Solomon and Mrs. Cosen-

tino told Gibbs that they had two “‘partners’’ across

the street covering the action, and. Gibbs shortly

thereafter so advised Agent Cozza. In turn, he. com-

municated by radio to Agent Tucker on- ‘the street.

Tucker told Cozza that Jasinski and Aloisio had

‘been in the parking lot for half an hour seated in a .

_ ear with the motor running and observing the m

Theirs was the only car in the parking lot with anyone

inside. Because of the information communicated to

Gibbs by Mrs. Cosentino and Solomon, and because

of Aloisio’s and Jasinski’s suspicious behavior on the

motel parking let, Tucker had probable cause to ar- —

rest them that morning. Therefore Davig v. Missis-

sippi, 394 U.S. 291, and Bynum v. United/ States, 262

F.2d 465 (D.C. Cir. 1958), do not resuireth suppres-

siéni’of the fingerprints.’’

The opinion of the court of appeals is errbneous.

’ As the record stands and as the Government once ad-

mitted by having the complaint before the commissioner

dismissed, no probable cause for Jasinski’s arrest existed.

Defendant was merely in a car and although this was some-

what a verification of Cosentino’s statement, the verifica-

tion of such innocuous details of innocent, conduct does not:

rise to the level of probable cause. ‘Certainly no arrest

-warrant could have been obtained based on agents’ obser-:

v ‘

wae

vation of Jasinski in a car. In Spinelli v. United States,

393 U.S. 410, 21 L Ed 637; the court stated that the facts

verified contained ‘‘no suggestion of criminal conduct

when taken by themselves and they are not endowed with

an. aura of suspicion by virtue of the informer’s tip.” 21

L Ed 2d 637 at 645. Here too, Jasinski’s innocent conduct

was not ‘‘endowed with an aura of suspicion by virtue of

. the Cosentino’ s unspecific reference to “two partners.’’

. (It should be noted that no prior references to. Jasinski

were made by either, Cosentino or any witness at trial ;

indeed, not even Cosentino mentioned Jasinski’s name.) ©

Although agents may have been acting in good faith, upon

their suspicions, such good faith suspicion not based upon

3 facts sufficient to obtain a: warrant or support a com-

plaint and does not rise to the level of probable cause.

Beck v. Ohio, 379 U.S. 89, United States v. Henry, 361 U.S.

98; Sibron v. New York, 392 U. S. 41.

Even assuming the court may deem the facts of record

‘to be sufficient probable cause, prior to any affirmance,

this cause must be reversed for a full evidentiary hearing

.on such issue. Here, no motion to suppress was filed

due to the status of the law prior to this court’s decision

in Davis v. Mississippi and. due to the. change caused by.

Davis, no waiver of 4th Amendment rights occurred. O’Con-

ner v. Ohio, 385 U.S. 92.. Herice, prior to the admission

of such evidence, where there exists at least a prima facia

indication that the arrest was without probable cause, to-

wit: the government caused the complaint against defen-

dant to be dismissed before the commissioner, there should

be a full evidentiary hearing on the constitutionality of

the arrest pursuant to this court’s* decision. Morales v.

New York,.396 U.S. 102. In Morales, as here, the unconsti-

tutionality of defendant’s arrest became an issue only sub-

° 19

sequent to trial and a full evidentiary hearing was not

held in the trial court. The court remanded for a hear-

ing, finding the facts of the record insufficient upon which

to make a decision. So in this case, there was no hearing

on the probable cause for the arrest of defendant and, as in

Morales, there should be.a full evidentiary hearing, This

~ cause should therefore be reversed for such a limited hear-

ing, pursuant to Jackson v. Denno, 378 U.S. 368.

| Conclusion

For the reasons urged herein, it is-respectfully requested

that Petitioners’ request for a writ of certiorari be granted.

a Respectfully submitted, «

Juttus Lucius Ecuenes » |

Frevertck F, Conn

Wii E. Lasko, II

Attorneys for Petitioners

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- ss APPENDIX

Muited States Court uf Appeals

For the Seventh Cirenit

SEPTEMBER TERM, 1970 January Session, 1971

“Nos. 17799-17802 ie ere

Unirep States oy AMERICA, see ;

3 Plaintiff-A ppellee,

Wiuiam. Avoisio, et al., a Mk

| Defendants-A ppellants.

Appeal from the United States District Court for the

Northern District of IHinois, Eastern ‘Division.

March 10, 197},

Before Swycert, Chief Judge, Hastines, Senior Circuit

Judge, and Cummings, Cirenit Judge. iss

* Cummines, Circuit Judge. In July 1968 the four appel-

lants and. four others - were indicted for conspiring to

counterfeit United States Treasury Notes in the_northern

district .of Ilinois, commencing on September 1967, - in :

violation of the general conspiracy provision found in 18 ee

App. 2

U. Ss C. § 371. Bartoli was also dindaead i in Count Two with

forging 99 counterfeit United States Treasury Notes in

Rockford, IUinois, in January 1968, in violation of 18

U.S.C. § 471. In Count Seven, he was charged with having

a counterfeit $10,000 Treasury Note in his possession ,

on January 20, 1968, in Chicago, intending to sell it, in

violation of 18 U.S.C. § 474. Jasinski was also charged

with having the same Treasury Note in his possession

in Chicago on January 16, intending to sell it, in violation

of the same provision. Aloisio, Jasinski, and Solomon.

were named in three other counts concerning actions with

respect to. the 99 counterfeit $10,000 Treasury Notes,

allegedly violating 18 U.S.C. §§ 472, 473, and 474. After

a jury trial, the four appellants were found guilty as

charged. Solomon and Bartoli: received 10-year concurrent ©

sentences on the substantive counts and five-year con-

eurrent sentences onthe conspiracy count; Aloisio and

Jasinski received 5-year concurrent sentences. Having

considered the — grounds urged for reversal, we

. affirm. | . : 7 |

% The Validity of the Iniiebinest,

A... Use of Hearsay Evidence.

Defendants first challenge the validity of the indictment

against them on the: ground that it was based Bhasin J

if not wholly’? upon’ hearsay testimony.

In Costello v. United States, 350 U.S. 359, the Supreme.’

Court categorically refused to invalidate an indictment

based upon hearsay evidence under either the Fifth Amend-

ment or its supervisory powers over federal courts. This

Court has repeatedly rejected similar attacks upon the

- quality of evidence . relied upon: by grand juries. See,

2 e.9.; United States v. Daddano, 432 F.2d 1119, 1125 A7th.

‘

Nan :

App. 3

Cir. 1970); United States v. Braico, 422 F.2d 543, 545

(7th Cir. 1970): Nor is there any suggestion in this case

_ that the ‘‘integrity of the judicial process’? is jeopardized

by the manner in which the Grand: Jury reached ‘its de- |

_ termination. . See U ated States. v. pemONNte, 420 F.2d _

39, 42 (2d Cir. 19 |

B. Failure to Preserve Testimony. -

‘Defendants next ask that the indictment be disinissed.

because the Government failed to record and. preserve —

the testimony of witnesses. before the Grand Jury? They.

argue that such a requirement is necessary in order to

implement the right of a defendant to access to a witness’

grand jury testimony on subjects about which he subse-

quéntly testifies at trial. See United States. v. Amabile,

395 F.2d 47, 53 (7th Cir. 1968), certiorari | denied, 39

U.S.L.W. 3361. 3 :

The basic rules relating to federal grand juries are set

forth in Rule 6 of the Federal Rules of Criminal Pro-.

’ eedure. Rule 6(d) presently permits, but does not:demand,.

the presence of a stenographer for the purpose of record- —

ing evidence. This approach, though justifiably criticized

‘on several grounds, has nevertheless .been uniformly ob-

served by other Circuits. See Schlinsky v. United States,

379 F.2d 735, 740 (1st Cir. 1967); United States v. Cian-'

chetti, 315 F.2d 584, 591 (2d Cir. 1963); United States

v. Kind, 433 F.2d 339, 340 (4th Cir, 1970) ; Baker’v. United’ ,

- States, 412 F.2d 1069, 1073 (5th Cir. 1969), certiorari

. denied, 396 U.S. 1018; United States v. Hensley,’ 374 F.2d

841, 352 (6th Cir. 1967); United States v. Franklin, 429 ©

\ F.2d 274, 276 (8th Cir. 1970); United States v. ¥ barra,

480 F.2d 1230, 1233 (9th Cir. 1970); McCaffrey v. United -

_ States; 872 F.2d 482, 484 .(10th Cir. 1967), certiorari

App. 4 |

. ° denied, 387 U.S. 945.1 While we agree that the preserva-

tion of grand jury testimony is the wise practice, we are.

presently unwilling. to bind the various district courts .

‘of this Circuit to such a practice. Rather, we will rely upon

_the individual district courts to exercise their local rule-

making powers in this area pending any amendment: tq

Rule 6(e) of the Federal Rules of Criminal Procedure.”

IL. Sufficiency of the Evidence as to Aloisio and Jasinski.

A. Aloisio

At the inception of the conspiracy in August 1967,

“ defendant Grace. Cosentino, whose trial was severed, told °

informer Ted’ Kay that she and her partners were plan-

ning to counterfeit United States government securities, .

1The American Bar Association’s Special Committee on Fed- ~

eral Rules of Procedure has, for the second time, recommended

' to the Supreme Court's Advisory Committee an amendment to —

Rule 6(e) of the Federal Rules of Criminal Procedure, ‘which

would mandate recording of all testimony before an accusatorial j

grand jury. 51 F.R.D. .......:, ..... .; see also 38 F.R.D. 95, 106.

-2Commendably, the United States District Court for the. North-

ern District of Illinois ans already adopted an appropriate rule

to that effect: ae

-Locu] Rule 1.04(c). Official Repcrter to Attend Sessions of

the Grand Jury. An official, Reporter of this Coutt shal]

attend and record all testimony of witnesses appearing be-

fore every Grand Jury. Such record shall be filed with

the Clerk of-the Court and transcribed and released to the

. Court upon order or to the United States ‘Attorney upon re-

_.. quest and payment of the Kei cinaas fees to the Official

Reporter.

See United States v. Gramolini, 301 F.Supp. 30 (D. RI. 1969),

for a - Pereeptive study of. this problem.

App. 5d a

and that she and her boy-friend “Smokes, * later identified |

as Aloisio, were going-to supply an unidentified banker

friend with $1,500, 000 worth of such securities On Janu-

ary 11, 1968, she told Kay that she ands Smokes” were

_ all set with such securities for their_banker friend. Kay

agreed to supply her with’ a purchaser for some of thé

counterfeit Treasury Notes, Mrs. Cosentino’ agreed to

_. have ‘‘Smokes’’ or Solomon present at the time of delivery

to protect the proposed deal. Five days later, she re-

iterated to Kay and Agent Gibbs* that Solomon or

‘‘Smokes’’ would be present at the closing ‘to protect all

' parties. Gibbs expressed some suspicion of. ‘‘Smokes,’’

but Mrs. Cosentino assured him that ‘‘Smokes’’ knew of

. the counterfeiting venture and could be trusted.

On the evening of January 17, Aloisio ‘iia Mrs.

Cosenting’s home from a restaurant and lounge at 1202

- West Grand Avenue, Chicago. He told Mrs. Cosentino’s

oe daughter, Antonia, to call. her mother and have her call

him at HA 1-8760.° Antonia relayed this message to her

-° mother who was then in Agent Gibbs’ room in the Chi-

- cago Airways Motel. Mrs. Cosentino told Gibbs that her

close friend-““Smokes’’ was concerned about her and had

just asked her, through Antonia, to call him at HA 1-8760.

Mrs. Cosentino’ tried that number and received a busy

signal. Thereafter, Aloisio again telephoned Antonia and

~ told her that he had not yet heard from Mrs. Cosentirias

Antonia then called her ‘mother again, and Mrs. Cosen%

- tino told Gibbs that ‘*Smokes’’ had called again and was

eoncerned about her. :

Thereafter, Mrs. rrr se called HA 1-8760 from

| Gibbs’ room. He overheard her say that ‘‘she was with .

the man [Gibbs] at the: motel room at that time, and was

\ . ; oe

* :

o 5

. -

App6 are,

talking to him about the deal, and told.this individual

[Aloisio] that he. had nothing to worry about; that 1

[Gibbs] was a gentleman, and she didn’t see where any- |

thing could go wrong and told him- not to worry.’’ She .

. also asked him where he was going to be later and told

-him that she would see him later that day. After she

hung up, she told Gibbs ‘‘that was her. friend Smokes

who was very concerned about her.’’ She stated that ‘‘he—

felt that the.deal she was entering into with me [Gibbs]

- might be a’ setup, and that because he was :such a close

friend he was concerned about, her welfare and didn’t

want“her to. get into. any trouble. ’?+ Over objection the

foregoing. testimony. was admitted into evidence. It.in- -

_ dicates that Aloisio’ ,was involved in the conspiracy as

early as August 1967. - Moreover, his telephone conver-

sation with Mrs. Cosentino revealed his knowledge of. ~

conspiracy and his concern for its success. _

- "Through Antonia Cosentino and: the telephone number

testimony, the Gov ernment showed that Aloisio was‘ the_

person to whom Mrs. Cosentino was talking from spt

motel room. Accordingly, the testimony ‘of Mrs, €o-

‘sentino’s conversation with Aloisio was competent (United

_. States v, Bucur,.194.F.2d 297, 304 (7th Cir.“1952)) and ,

evidenced <a ebnspiracy in which Aloisio was involved.

The remainder of Mrs. Cosentino’s statement to. Gibbs —

‘was also admissible against Aloisio as a statement of a

: co-conspirator in furtherance of the conspiracy. Aloisio’s

January 22 appearance -with Jasinski otitside the motel;

surveying the motel for about 30 minutes with the car -

motor on, corroborated Mrs. Cosentino’s and’ Solomon’s «

statements to Gibbs +hat- morning that they had partners |

- aeross the street covering’ the deal. We conclude that .

is .

.: | e App.7

there was ample evidence to link. Aloisio with this con-

' spiracy and to make him an aider and: abettor as to the

three Substantive counts in, which he was named.

‘'B. Jasinski aT eed els od

On January 22, 1968, when Solomon and Mrs. Cosen-

tino were delivering $1,000,000 in counterfeit Treasury

Notes to Agent Gibbs in his motel room, they told Gibbs

that two of their partners were across .the street from

the motel in an automobile for the protection of ee

cerned.. At the same time, Agent Tucker had obs tTved

Jasinski and Aloisio watching the motel for about 30

minutes from their parked car with the motor on. Mrs.

Cosentino’s' and Solomon’s remarks. to Gibbs clearly-

linked Jasinski and Aloisio to the scheme. Jasinski was

also linked by his right thumbprint found on a ‘‘Saturday )

Evening Post’’ covering a sample of the counterfeit —

Treasury .Notes that Mrs. Cosentino delivered to Gibbs on

January 16. Since the conspiracy had already been es-

tablished, this evidence, viewed in. the light most favor-

able.to the Government, sufficed to connect Jasinski with |

the conspiracy. The evidence also established his culp-

ability as an aider and abettor of the commission of the

substantive offenses with which he was charged.

III. The Constitutionality of the Identification of Alboisio.

‘Ted Kay, an unindicted coconspirator, began to co-

operate with the Government in-this investigation in Sep-

- tember 1967. - He, Solomon, and Mrs. Cosentino weve ar-

rested in Agent Gibbs’ room at the Chicago: Airways

Motel on the morning of January 22, 1968. The Govern-

ment has advised us that informer Kay was taken to the

United States Marshal’s lockup along with the other de-

fendants for his own protection. ‘At 11:00 a.m. in the:

. App. 8

_ lockup, before being placed i in a cell; Kay was with lggeia

of the defendants’’ and John Varelli. In response to a

question as to what Varelli said to Aloisio, Kay replied:

‘*Well, the best as I can recall, I remember him

- [Varelli] saying, ‘Hi, Smokes.’ And Smokes spoke

back to him in Italian. I could understand a couple

of the words, but I didn’t recall the whole conver-

sation. In Italian, he en said not to dies any- -

: thing. ae

Relying upon Massiah v. United States, 377 U.S. 201,

defendant Aloisio now asserts that Kay’s-identification of

him as ‘‘Smokes’’ should not have been admitted because

the conversation occurred in the federal lockup after his

arrest without benefit of ova 8 We disagree.

The defendants did not show that the purpose of _plac-

- ing Kay in the cell in the Marshal’s' lockup was te obtain

‘information for this case. Kay himself testified that the

Secret Service did not tell him to overhear what might

‘be said in the Marshal’s office or in the lockip cells. He

was placed in a cell by himself and had no idea how many

' people were in the adjoining cell except that Varelli was

in it during part of the hour. that Kay remained in his

cell. The transcript does not reveal that Kay heard

any conversations from other ells. . Kay’s subterfuge of .

being a codefendant had already been ‘pierced, for,. while

standing in the lockup hallway with other apprehended

persons, Aloisio saw Solomon kick Kay in the groin and

later admonished Varelli in Italian ‘‘not to say anything.’’

nor was Varelli’s knowledge of Aloisio as ‘‘Smokes’’ de-

;

3This objection was net made at the trial but will be con-

sideréd in “view of its Soneeneenet nature. ' Silber v. United

States, 370 U.S. m7 _ curiam).

App. 9

liberately elicited. In these’ circumstances, the admission

into evidence of the’ volunteered statement of a non-de-

fendant clearly did not vitiate Aloisio’s conviction. United

States ex rel. Milani vy. Pate, 425 F.2d 6 (7th Gir. 1970);

’ United States ex rel. Baldwin v. Yeager, 421 F.2d 182,

184 (3d Cir. 1970); United States v. De Leo, 422 F.2d 487,

496 (1st Cir. 1970), certiorari denied, 397 U.S. 1037 ; United:

States v. Mitchell, 417 F.2d 1246, 1249 (7th Cir. 1969) ;

United States v. Fioravanti, 412 F.2d 407, 413. (3d Cir.

1969), certiorari denied, 396 U.S. 837; ef. Miller v. Carter, ;

434 F.2d 824, 825 (9th Cir. 1970). : ;

IV. The Suppression of Fingerprints.

Defendant Jasinski urges that the fingerprints obtained

from him after his January 22, 1968, arrest were subject ‘

to Fourth Amendment prishuction because his arrest was

without probable cause. This objection was not: made at

the ‘trial but may be considered here under Rule 52(b) ar

‘of the Federal Rules of Criminal Procedure.

Even though the coniplaint against Jasinski was dis-

missed before his indictment, this record shows that there

was probable cause for his January 22nd arrest. On the~ -

morning of January 22, in Agent Gibbs’ room ‘at the

Chicago Airway Motel, Solomon and Mrs. Cosentino told.

Gibbs that they had two ‘‘partners’’ across the street

covering the action, and Gibbs shortly thereafter so ad-

‘vised Agent Cozza. In turn, he communicated by -radio | . x

to Agent Tucker on the street.. Tucker told Cozza that

~ Jasinski and Aloisio had been itt the parking: lot for half

an hour seated in a car with the. motor running and ob-

serving the motel. Theirs was the only car in the. park-

ing lot with anyone inside. Because of the information .

communicated to Gibbs by Mrs. Cosentino and Solomon,

ei UN. GA eet i>

App. 10

and aeacas Aloisio’s and Jasinski’s suspicious be-

havior on the motel parking lot, Tucker had probable

eause to arrest them that morning. Therefore Davis v. -

‘Mississippi, 394 U.S. 291, and Bynum v. United States,

* 262 F.2d 465 (D.C. Cir.- 1958), do not require the sup-—

pression of the fingerprints. a

V. Improper Reference io Photogr oak

. Defendants Aloisio and Bartoli contend that they .y were

denied a fair. trial because references , to their ‘So-called

“mug shots’? informed the jury of their prior criminal

records. We have carefully studied the three brief pas-.

sages in the transcript concerning these photographs and

note that the: references were not elicited by the, Govern-

ment but occurred in cross-examination by defense counsel.

Although the testimony revealed that the photographs

were seen by Agents Sheriff.and Tucker in the Chicago

office of the Secret Service, they were merely described as

bust photos with their names written on the reverse -

sides. The evidence did not disclose that these were ‘‘mug

shots’’ or contained police numbers thereon, nor was there

- any mention of prior criminal activities of these two de-

' fendants. No reversible error resulted. from the innoc-

uous comments concerning the two photographs. United —

States v. Robinson, 406 F':2d 64, 66 (7th Cir. 1969) ; United

- States .. Schwartz, 398 F.2d 464, 470 (7th Cir. 1969).

“VIL Examination of Agent Tucker.

Aloisio urges that reversal is required because of the

following. question asked by an Assistant United States —

“By. Mr. Weber: | :

Q. Agent Tucker, going back to January 17th at

9:00 p.m., in the vicinity of Grace Cosentino’s house,

-what if any information did you have as to whether

Mr. Aloisio was there on business or on pleasure?

_ App. 11

~ Mr. Callaghan: Oh, objection.

ee *

The Court: The objection is sustained.

Mr. Weber: I have no further questions.”’

Aloisio’s defense was that he was merely a social friend -

‘of Mrs. Cosentino. However, the Government was enti-.

tled to question that defense by asking Agent Tucker

whether he had information that Aloisio’s visit was’ in-

deed for business purposes, and government counsel was

careful to phrase his question in the alternative. In any

event, Aloisio’s argument must fail, since the objection

was sustained and the jury was.instructed that it was

to consider only properly admitted evidence.

VI. Entrapment Instructions.

Solomon contends that the trial judge should haye given |

three proffered entrapment instructions. -However, the

evidence .does not reveal that any government agent in-

_ duced Solonion to commit this offense. In fact, on Janu-

ary 18, 1968, informer Kay offered Solomon an. ojipor-

tunity to avoid participation. The trial court was -cor-

rect in ruling that there was no evidence of entrapment,

so that entrapment instructions were inapposite.

+ Comment on Defendants’ Failure to Testify.

Solémon and. Aloisio assert that Agent Gibbs com-

mented on their failure to testify. During his ¢ross-

examination by defendant Solomon, Gibbs was asked .

whether he was wearing his ‘‘mickey mouse’’: watch when

-he met Solomon on January 18, and Gibbs replied, ‘*You

will have to put on one of your clients to determine that

conclusion. ”? .No objection was made to this answer. The

exchange occurred during the Government’s case, when

App. 12 ;

it was not known wheltiee or not Solomon would take the

‘stand. We do not view the remark as a comment on Solo-

mon’s failure to testify. Moreover, the. jury was prop-

erly instructed that a.defendant has the right not to testify

and not to draw any inference against him because of a

failure to do so. .

IX. Cross-Examination of Informed Kay.

Aloisio asserts that the defendants’ rights were denied |

’ by the -limitation of the cross-examination ‘of informer

Kay in three particular instances.

First, the district judge sustained the Government’ s

objection as to whether Kay was guilty of filing false

income tax returns.. The defense was permitted. to show

_. that there was a pending indictment against Kay with

respect to filing a false income tax return, thus permit-

‘ting defendant to attack his credibility. As we noted in

- United States v. Varelli, 407 F.2d 735, 751 (7th Cir. 1969),

cross-examination on such matters is subject to a self-

inerimination exception, ‘so’ that the court’s ruling was

correct. |

Because of Kay’s Fifth hain rights, the district

judge also properly sustained an objection as to whether

Kay had transported a $100,000 bond in interstate com-

merce. Again counsel was permitted to demonstrate Kay’s

indictment for that offense as affecting his credibility. |

In a belated attempt to ‘show that the ‘Government

‘posted the informer’s bond, Aloisio urges that Kay should.

have been permitted to say who put up his $50,000 qgbond.

In light of the extensive examination of the witnéee on

4 United States \ v. Blassick, 422 F.2d 652, 654 (7th Cir. 1970).

App. is

all’other possible links with the pesmi if still, ques-

_ tioned, the district court’s ruling that the question of the -

source of’ bond money was irrelevant was not an-abuse of

discretion. ‘Moreover, Aloisio’ s own counsel’s closjng ar-

gument indicated that Kay’s mother raised the money.

Our examination: of the voluminous cross-examination

‘of witness Kay convinces us that extremely broad lati-

tude was allowed defense counsel. They were*given great

freedom in their efforts to show that Kay was a biased

-perjuror -with obligations to the Government, and that

his testimony had been ‘‘bought’’ by the Secret Service. |

His unsavory background was thoroughly explored by de- |

fense counsel. Kay denied that he was testifying in the

present lawsuit in order to be freed of the income ,tax

and stolen bond charges, and the jury was entitled to

credit his denial. The strictures. of Varelli and similar - a

eases dealing with the scope of cross-examination were

abundantly satisfied. ;

x. The Prosecutor’s Cian dein,

Aloisio -and Bartoli assail the prosecutor’s closing

. argument to the effect that (1) Kay’s testimony was so

- wéll corroborated by Secret Service agents’ that the jury

would have to disbelieve the prosecutor and agents if it

disbelieved Kay, (2). it was not the Government’s inten-

tion to send innocent men to the penitentiary, and (3) the.

Government was standing by its agents.. These. remarks

are rather typical of the highflown rhetoric used in clos- —

ing arguments by both sides.. The prosecutor was_ not

impermissibly speaking of facts outside the record or

within his own personal knowledge. In the context of his

closing, he was referring to: what was in the record and

rebutting the attack of the defense on the integrity of

the prosecution, including ‘‘the manufacturing of crime.”’

App. 14

The comments of government counsel were quite clearly

_ provoked by the vigorous defense and do not merit re-

-versal. Long v. United States, 355 U.S. 339, 359-360, note

16; United States v. sisi aie 204 F. 2d 717, 719 —_ Cir.

1953).

The judgments are affirmed.

‘A ‘true Copy:

| “ Teste: \,

ete aes

os ae Clerk of the United States Court of

ae Appeals for the Seventh Circuit. .

| App. 13\. |

ee B.

UNITED STATES COURT OF APPEALS

For the Seventh Circuit”

' Chicago, Illinois 60604

April 9, 1971

| ; Before |

Hoy. Luruer M. Swycert, Chief Judge

. Hon\ Rocser J. Kitey, Circwt Judge

.\Txomas E. Farrcuip, Circuit Judge

. Watter J. Cummines, Circuit Judge

Hon. Orro Keryer, Cércuit Judge. a

- . Hon. Wieur F. PELL, Jn., Circuit Judge

Hon. Joun Pau Stevens, Circuit Judge

' Unirep Srates or AMERICA, | 3

| ) - Plaintiff-Appellee,

Nos. 17801, 17802 VS. : :

WILLiaAM ALoIsio and SraNuey Semis,

: Defendants- Appellant:

XN.

"Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

ORDER

On consideration of the petition for rehearing en banc,

and no judge in regular active service having’ requested

~ that-a vote be taken on the suggestion for an en banc re-_

hearing, IT Is ORDERED that said petition. be —

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