# Petition for a Writ of Certiorari — Aloisio v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1219%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 824 ## Text : . : s oe ‘ ry roe ‘ , TRARY - Sucfame Court, WAR Hn Sao to ) Rite MUP RE MS. ¢ © URT, U.S. | ee . Isa APR 28 1971 = Geminis 2, CLERK | ————s ne 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 ° ¢ misage ne } \ \ £ Fi . . ". : . . . a Ce \ : . \ | . : . ; F : , \ | . . « . 2 * . a on fe - ‘ ‘3 ‘ —— , . ; ze : aa . *. suid 7. ‘ , au ‘ . , , > = , . . ; ; ‘ ° 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 aa “ 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 ra : . 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. a : 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, oe 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 2 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? 3 _ 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 a. 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. 4 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.) * 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. —— T 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) 9 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). a ; 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. 12 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 14 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 " * , : e 45 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 a 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-: Ry v ‘ wae 18 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 . ey x oy ‘ * 2 te fe y ° tow By 4) a " ; ® ? “Ay : ® : + ’ ney. 4 . ‘ . - : . y ¥ i * ’ . é Cyst ee ete + rns * enna CI o Pe ee ay nae AE SET LCE ERED SNS ee TE - ss APPENDIX Muited States Court uf Appeals For the Seventh Cirenit SEPTEMBER TERM, 1970 January Session, 1971 é “Nos. 17799-17802 ie ere Unirep States oy AMERICA, see ; 3 Plaintiff-A ppellee, v. Wiuiam. Avoisio, et al., a Mk | Defendants-A ppellants. Appeal from the United States District Court for the Northern District of IHinois, Eastern ‘Division. ri a: 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 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 — ee “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). iS 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. . cy J! a | 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 — --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1219%3A1. Public record. Not legal advice.