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

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. Supreme Court, U.S...

FILED

No. #852 |! sowav of ag,

3 a ~ | E. ROBERT seaver a :

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| Qa the

Supreme Court of the United States.

OcroBerR TERM, 1970

A ea eit

5

JOSEPH AIUPPA,

Petitioner,

VS. . . .

THE UNITED STATES OF AMERICA,

| Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE ‘

UNITED STATES COURT OF APPEALS _ &

FOR THE TENTH CIRCUIT. ° | ae |.

%

MAURICE J. WALSH

CARL M. WALSH

29 South LaSalle Street

Chicago, Illinois 60603

(312) 332-7374

Attorneys for Petitioner.

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

INDEX

| PAGE

Opinions Below _ ............ Senin eT aE A eae cere 1.

POEM ainesnsvenncaineicsccsiossapes Dace es eee een Ree 2

Questions Presented .................. segesongposadsczin meee Le me 2

Statement of the Case ............. NESE ODAC Penn U MRD a Roe 3

Reasons for Granting the Writ) _......... Gata at 12

‘Conchusion Sestak O Seiler trestnal eee tole nk pind fee 17

Appendices:

Appendix ** A’’—QOpinion ot Court of Appeals ...App. 1

-Appendix ‘‘ B’’—J udgment of Court of Appeals App. 7

Appendix *‘C’’—Order Denying Rehearing eae App. 8

Appendix ‘*D’’—@rder Denying Stay: of Mandate App. 9

Appendix **. )’’—Order affirming judgment es

Eeereee COME ice .......-App. 10

Appendix ‘*F’’—Opinion __.......... seabnarptantenclsalsckes _.. App. 21

- 'PABLE OF AUTHORITIES CITED ,

: Cases .

Aiuppa v. United States, 10 Cir., 393 F.2d 097 _00....... 2

Aiuppa v. United States, 10 Cir, 338 F.2d 146 ............ 2,4

Chapman v. California, 386 U.S. 18 ......... waco tae 16

| Cimiliee v. United States, ata FO SOE 12, 15

Giordano v. URited States, 394 U.S. 310 Su eoennarey 2,10

Griffin v. California, 380 U.S. 609 ......... Pe Oe MECN SS 3, 16

5 es . aad

ii

| PAGE

‘Henslee v. United States, 246 F.2d 190 cece 12,15

Janko v. United States, 366 U.S. 716 0.00.12, 14

Marshall v. United States, 360 U.S. 310 o.oo. . 14

Marson v. United: States, 203 F.2d 904 200... 12,15

Sheppard v. Maxwell, 384 U.S. 333 0222220. z. i. 12

: United States v. Accardo, 298 F.2d 133 on nnnnene 15°

United States v. D’Antonio, 342 F.2d 667 (7th Cir. ’.

AEN eR Ne: Sea epee. 5 SM bed eS ROR SNES oe

United States v. Largo, 346 F.2d 253.2 .. dasa 2,13

United States v. Palermo, 410 F.2d 468 oj. 12, 15°

United States v. Panezko, 3538 F.2d 676 ‘(7th Cir”

1966) .......: eee Se ert en leh pores 15

Other Authorities _ :

28 U.S.C. $1254 (1) cocccccccecescececeeesseee Sone see -

URC. RE oa 47

In the

Supreme Court of the United States.

Py a

OctToBER TERM, 1970

_No.

JOSEPH AIUPPA, eee ;

. Petitioner,

VS. ss

THE UNITED STATES OF AMERICA,

/ auld

>

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT. -

Petitioner,. Joseph Aiuppa, prays that a: Writ of Certi-

orari issue to review the Judgment of the United States

~ Court of Appeals for the Tenth Circuit affirming a judg-

_ ment of conviction entered by the United States District

Court for, the Distr ict of Kansas.

| OPINIONS BELOW

The opinion of the Court of Appeals is not yet reported,

but is printed in the appendix to this petition (Appendix

‘*A’?). The judgment of the Court of Appeals is printed

e*

2

as Appendix ‘‘B’’. The order denying rehearing entered

May 10, 1971, is printed as Appendix ‘‘C’*. The order

denying a stay of mandate entered May 18, 1971, is pr inted

as Appendix ‘‘D’’,

Since this is a Petition fora Writ of Certiorari to re-

view the third opinion of the Court of Appeals in this

. cause, the prior opinions of the Court of Appeals which

are reported as Aiuppa vy. United States, 10 Cir., 393 F.2d

d97, and Atuppa v. United States, 10 Cir., 338 F.2d 146, are

reprinted as Appendices ‘*E’? and “EF”, respectively. *

This Court granted the Petitioner’s Petition for Writ

of Certiorari to review the second opinion of the Gourt of

Appeals and remanded the cause for a hearing on the effect

of illegal electronic eavesdropping (Aiuppa vy. United

States, Oct. Term 1968, No. 124; see Giordano v. United

States, 394 U.S. 310). This petition is to review the opinion

of the Court of Appeals in the. appeal from that hearing.

J URISDICTION

The judgment of the Court of Appeals was entered on—

Mareh 31, 1971. (Appendix ‘‘A’’ and ‘‘B*’). A. timely

Petifion for Rehearing was denied on May 10, 1971 (Ap-

pendix ‘*C’’),

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. In a criminal trial which had been transferred to a

Judicial Division other: than that in which the informa-

tion was filed, because of prejudicial publicity, prevalent

throughout the State, and where ten prospective jurors

had been excused for opinien or bias obtained from pub-

licity, may a District Judge properly refuse to interrogate

Varun. CN \ s

3

the trial jury concerning exposure to admittedly. preju-

dicial accounts appearing in ne wspapers of general cir-

culation in the State of Kansas in. both days of the trial,

and brought to the attention of. the Court eel to the

jury’s retirement and deliberation? _

-

2. In a criminal trial which had been transferred from

another District.in the same State because of publicity,

and ten prospective. jurors had been exeuséd for opinion:

or bias arising from publicity, may the jurors be.allowed to

separate during deliberations with likely: exposure to ad-

inittedly prejudicial publicity?

3. In light of Griffin v. California, 380 US. 609, may

the Court, over specific objections, instruct the jury that

a defendant cannot be ‘‘compelled’’ to testify, and no

presumption.of guilt and no inference of any kind may be

drawn, from fhe “failure”? of a defendant to testify?

STATEMENT OF THE CASE

This is the second Petition for a Writ of Certiorari in

this case. While the first Petition was: pending, the Solici-

tor General in his brief advised this Court of électroniec -

eavesdropping, and the Petition for a Writ of Certiorari

was granted and the case remanded to consider this mat-

ter which “proved irrelevant on disclosure to the extent

made. .

The petitioner at this hearing on remand, introduced

evidence, which was uncontradicted and uncontroverted

~ by the government, concerning Circulation of The Kansas

City Star'and The Kansas City Times in Fort Scott, Kan-

as, the place of trial. This evidence, offered to prevent a

miscarriage of justice on an obvious mistake of fact, was

not considered by the trial court on remand or the Court

of Appeals on review.

ee

This evidence. showed The Kansas City Star had a daily

circulation during the period of the trial of 852 copies,

and The Kansas City Times had.a circulation of 962 copies

in Fort Scott, Kansas, the place of trial. The population

of Fort Seott was 9, 786 people including men, women and

children.

The petitioner was convicted ‘in a trial which lasted’

two days, by jury, of a third amended information .con-

taining two Counts, Count 1 charging the petitioner with

unlawful possession of approximately 300 mourning doves,

all but 48 of which were in excess of the legal limit in vio-

lation of Section 703, T. 16, U.S.C.; Count 2 charged the

petitioner, Joseph Aiuppa, without being: permitted by

regulation, with the transportation of the same mourning

doves, also in violation of the same statute.

This was the second trial of the defendant, the first

judgment of the District Court of Kansas, after a trial

without a-jury, having been reversed for the error. of

failing to suppress evidence. Aliuppa v. United States,

10 Cir., 338 F.2d 146.)

After the remand from ie first appeal (the opmion .

which appears in the appendix hereto as Appendix “‘F'”’ a

appendix pages 21 through .25), the United States ne

torney filed a third amended information on February

1, 1965. The original arrest of the petitioner occurred

on October 1, 1962. After post trial motions by the de-

fendant were denied in this second trial at Fort Scott,

Kansas, the petitiofer was sentenced to custody of the

Attorney General for a period of three montlis on October

1, and was fined $500.00 on each of Counts 1 and 2, making

a total of 3 months’ imprisonment and $1,000 -in fines,

plus the costs of prosecution.

After the reversal of the first trial, where the peti-

tioner received a similar sentence, Chief Judge Stanley of

By)

_the District of Kansas entered an order providing. as

follows: toeensd fF

“*Now on the 2nd day of September, 1965, the de-

fendant’s motion to suppress evidence comes on for

argument. After hearing arguments of counsel ... for

the defendant and being well-advised in the premises,

the court finds that ‘all conversations, records, iden-

tifications, researches and evidentiary leads emanat-

ing from said search and seizure complained of be

suppressed.’’ (App. 72)! |

On June 20, 1966, this cause came on for re-trial before

the Hon. ‘George Templar and a jury, at. Fort Scott,

Kansas. The first trial was at Kansas City, Kansas, and

the motion of the petitioner for removal to another Di-

vision was granted because of the prejudicial publicity

which attended the first trial, both before and during the

trial.

In voir dire conducted by Judge Templar, ten of the

prospective jurors were excused for cause because they

said that they had read of the case in newspapers or had

heard about it on radio and television, or had discussed

it, and.had a bias of an opinion concerning the guilt of the

petitioner. These prospective jurors were excused for

cause, since the petitioner had only three peremptory

challenges under the Federal’Rules of Criminal Procedure.

(App. 95-141)

After the selection’ of the jury and prior to the com-

mencement of the reception of evidence, an attorney named

Menghinie advised the court and the United States At-

torney that he represented a number of witnesses who had

been subpoenaed by the Government who felt that under

1 References to “App.” are to the certified Appendix prepared

for the Court below.

6

the circumstances that they should refuse to testify’ as

they might incriminate themselves. ‘He further told the

court that. he represented a Mr. Blink who at the. time

of the occurrence of the transaction, was a ward of the

court and was judged incompetent and that he had a state-

ment from the doctor stating that at the present time Mr.

Blunk was not fit to testify. (App. 146-147)

The first witness for the Government, Andrew Williams

(App. 101-167), was permitted to testify over the objec- .

tion of the petitioner (App. 151-2), that his testimony

was the result of a lead emanating from a search which

had been held to be illegal. On the hearing on the motion —

to suppress, Alfred Robinson, a United States Game man-

agement agent, testified that it was not until after the car

was searched that he knew it contained mourning doves

and it was only after he obtained this information that he.

interviewed Williams. (App. 27)

Andrew Williams testified (App. 151-169) that from

September 15 to October 1, 1962, he cleaned doves for

many people and stored them at Frontenac, Kansas in the

ice box at a Dairy Queen. He was paid by a man named

’ Harold MacMurray for cleaning’ doves and he imagined

that Mr. Aiuppa had paid him because he was keeping his

dog. He kept Mr. Aiuppa’s dog for four months: and he

paid him $150.00, on October 1, 1962. On approximately

October 1, 1962 at the request of the petitioner, Williams

obtained some dry ice at the ice plant at Pittsburg, Kansas

and took. it to the Dairy Queen in Frontenae where he

broke it into small pieces, and put the ice on top of coolers.

He further testified that he put dry ice on top of the ear-

tons and that there were packages in the cartons but that

* he had never seen the packages. opened. He testified that he

placed the mourning doves in a sack or‘plastie bag. He

-

(

further testified that he cleaned somewhere between 900

and 1400 doves. He also testified that he prepared a_

~ plastic bag full of giblets for the petitioner and that after

placing the bag in the freezer at the Dairy. Queen it was

broken and Mr. Aiuppa requested another bag. He fur-

ther testified that there were cartons that were filled

with plastic bags and he placed ice on top of these cartons .

and he placed one of the cartons in the: automobile of the

petitioner, but he did not know how many birds were in

the carton (App.. 161) and he could only assume that

other cartons were placed in the Cadillac. The witness did

not know how many birds were in the containers’ but he

assumed that there were four or five hundred (App. 164-

165).

- Mr. Williams testified that Agent Robinson and an-

other agent first contacted him about this case the day

‘after Mr. Aiuppa had left for Chicago and that he had

never discussed this matter with them or any’ one else

representing the Government prior to that day. (App. 166-

167). He further stated that he cleanpd and placed some-

where between 900 and 1400 birds in the ice box at the

Dairy Que en, but he did not know how many remained the

morning he went over to the Dairy Queen when Mr. Aiuppa

was leaving for Chicago but that there were many people

who had access to the birds including a Mr. MacMurry

who had removed some birds from the cooler. He did not

count any of the birds which he placed in the car of the

petitioner and he did not know how many there were re-

maining in the freezer after he had driven away. He also

‘testified that doves were hunted by large number of per-

sons and frequently they were cleaned and stored and were

used for ‘‘game feeds’? at which many people would at-

tend. (App. 168- >

8

Also, during the questioning. of this witness by the at-

torney for the Government, after the witness had been un-

able to give definite answers: to questions by the attorney

for the Government, the following occurred:

Q. Who-told you to have a ‘faulty memory?

A. Nobody told me to have a faulty memory.

Mr. Walsh: Object, and move to strike it. I ask

the jury be instructed not—to disregard that question

and answer. > -

The Court: Sustained, the jury will disregard it.

On the first trial, the prosecutor had the benefit of Wil-

liams’ testimony, but also that of the agents who conducted

the illegal search and seizure, and the evidence of an

ornithologist who established the subject birds as mourning

doves, subject to the migratory. bird treaties and Acts.

In the second trial, the only evidence offered on these

subjects was that of Andrew W illiams, because of course,

all of the other -evidence: was suppressed.

Williams testified to his being taken to the United States

Commissioner and there charged with a violation of the

Migratory Bird Act, and receiving a fine of $50.00 and giv-

ing statements to the Game Wardens—all after Aiuppa’s

arrest and the, illegal search and seizure had confirmed the

Warden’s suspicion that Aiuppa possessed and transported

mourning doves. .

During the trial-.of the case, Mr. Blunk was called to .

testify (App. 175) over the objection of the petitioner

(App. 174). He refused to answer questions on the grounds:

that he feared his testimony might tend to incriminate him.

« Hugo Farabi also was called to testify (App. 181-2), and

he exercised his privilege against, self-incrimination. He

y

further stated that he had advised the prosecutor, through

his counsel,-prior to being ealled to testify, that he intended

to claim his privilege (App. 181-2),

At the conelusion of the Government’s case, the defendant

moved for a mistrial based on the ground that he was un-

‘duly prejudiced by the prosecutor’s action in’ ealline Mr.:

. e . |

Farabi and Mr. Blunk to the witness stand when he knew

and had-been informed by their counsel, that they intended

to take the privilege granted to them under the Fifth

Amendment of the Constitution of the United States (App.

197).

Petitioner further moved for- judgment of acquittal at

the end of the Government’s evidence (App. 197); prior

to ruling on the motion for judgment-ot acquittal, the court

stated that it was having difficulty with reconciling the

number of doves that were in the possession of Mr. Aiuppa

from the evidence, and the court stated further that it

seemed somewhat speculative from the evidence as to the

number of doves in his possession, but overruled the mo-:

tion (App. 200-202). The petitioner then rested (App. 201-

202). During the conference on instructions, the petitioner

objected to the giving of court’s instruction 16 (App. 88-’

210) on the basis that the manner in which the instruction

was phrased that ‘‘the law does net compel a defendant in

a eriminal ease to take the Witness stand and testify’’

was ‘prejudicial comment on the failure of the petitioner

to testify and also implied that although he could not be

compelled to testify, his testimony would be desirable, The

petitioner further objected to giving any instruction on

the failure of the petitioner to testify in his own behalf

(App. 210-211).

The petitioner then moved ’for a mistri:il based upon twe

newspaper articles, petitioner’s Exhibits ‘A’? and “*B”

.

et Sas a

ba

10:

ee

(App. 280-283).—The petitioner further moved in lieu of .

granting a mistrial on the basis of the publicity that- the

court query the jurors individually and separately out of

the presence of the others concerning What they knew about

these articles, and what they knew about other specific

articles, and whether. they had ever heard Mr. Aiuppa .

described as a gangland or syndicate hoodlum (App. 215-

216). , The court relied upon a presumption that the jurors

would do their duty and refused to conduct any voir dire

examination (App. 216). The case was argued and sub-

mitted to the jury, and the jurors were allowed to separate

during their deliberations. When they separated, no ad-

monition of any kind was given to them coneerning ex-

posure to publicity. They were told only that they were

not to talk about the case (App. 242-243). The jury re-

turned a verdict of guilty (App. 88). A timely motion for

acquittal notwithstanding the verdict or in the alternative

_for a new trial was filed on July 7, 1966 (App. 89). This .

motion was denied on August 19, 1966 (App. 91). On

August 19, 1966, the petitione r was sentenced to the eustody

of the Attorney General for a period of three: months on

Count One and was fined $500.00 on each of Counts One

and Two for a total fine of $1,000.00, and further assessed

the cost of prosecution. A timely notice of appeal was filed

(App. 93). On appeal the Court below affirmed the judg-

ment of the District: Court. ‘Aiuppa v. United States, 10

Cir. 393 F.2d 597. (Appendix ‘‘E’’ at appendix pages 10

through 20).

After this Court’s grant of a Writ of Bares (Gior-

dano v. United States, 394 U.S. 310), the cause was re-

manded for a hearing on the effect of certain illegal eaves-

dropping admitted to exist by the Solicitor General. The

eavesdropping, to extent disclosure was ‘made, proved to be

irrelevant. —

oak, Ste attest SNES Loo oa

11.

However, at the hearing, additional evidence was offered

as to the circulation figures of the admittedly prejudicial

hewspaper articles.

*on appeal from this hearing, the Court of Appeals again

affirmed the petitioner’s conviction. (Appendix ‘‘A’’). The

Court of Appeals then denied a Petition for Rehearing

(Appendix ‘‘C’’) and a motion for stay of mandate.

6 °

re

a o_ °

. /REASONS FOR GRANTING THE WRIT

‘This case presents a direct and substantial conflict,

which should be resolved, between the decisions of this

Court and the Court of Appeals below; and conflict be-

tween the Court of Appeals below and the decisions of

other Courts of Appeal, on the necessity for inquiry of

petit jurors by the trial judge: when probability. of ex-_

posure of the jury to ‘‘prejudicjal’’ publicity appears.

There is also a direct conflict between the Court of Ap-

peals below and the Court of Appeals for the Seventh

Cireuit on whether a jury in a criminal case should

separate after beginning to deliberate and before verdict.

This separation was, of course, more dangerous because of

possible exposure to news articles and headlines which the

Court of Appéals called “prejudicial”.

json below is also in conflict with the American

Bar Assgciation Standards for Fair Trial and Free Press.

(See Section 3.5(f) of Recommendations, (Tentative Draft

page 13)).

1. The decision of the Court below relating to the duty

of the District J udge to conduct an inquiry of the jurors

when newspaper articles, which are admittedly prejudicial,

appear is in conflict with the decisions of this Court in

Janko v. United States, 366 U.S. 716, Sheppard v. Maxwell,

384 U.S. 333, the Seventh Circuit in United States v.

Palermo, 410 F.2d 468, United States vy. Accardo, 298 F.2d

133 and United States v. Largo, 346 F.2d 253: the Dis-

trict of Columbia in Coppedqa v. United States, 272 F.2d

504, the Fifth Cireuit in Henslee v. United States, 246

F.24-190 and the Sixth Cireuit in arson v. United States,

13

203 F.2d 904. -The trial of this case, which had been

- transferred to Fort Scott, Kansas because of prejudicial

publicity conSumed a period of two days. In the selection .

of the jury, ten prospective veniremen were excused be;

cause they had formed opinions based upon their exposure

to publicity. At the conclusion of the evidence, counsel for

petitioner brought to the attention of the court two news-

paper articles which had appeared in the Kansas City

newspapers, which were purchased by counsel for the peti-

tioner, on the streets of Fort Scott, Kansas.’These articles

(App. 280-283) referred to the petitioner as a ‘‘gangland

figure’’ and related that his prior conviction for this offense

had been reversed by the United States Court of Appeals

for the Tenth Cireuit because of an illegal search and

seizure. Defendant’s Exhibit ‘*A’’ also reported that the

United States Attorney indicated that he had in his pos-

session evidence sufficient to convict. The second article

(Exhibit ‘‘B’?) again referred to the petitioner as ‘‘gang-

land figure’’ and again related that the petitioner had been

eonvicted on-these charges in a prior trial but the conviction

had been reversed because of an illegal search and seizure.

“This article also erroneously’ reported that the District

Judge had asked the witness Williams, ‘‘Who told yon to

have a faulty memory?”’

When these articles were called ‘to the attention of the

District Judge (App. 214-217), there was no contention .

made that these newspapers were not newspapers of gen-

eral circulation in the State of Kansas, nor was there any

contention made by the Government, and we do not antici-

pate any such contention here; that these newspapers: were

not available in Fort. Scott, Kansas. At the hearing in re-

mand. in fact, it was shown that The Kansas City Star

had a daily cireulation of 852 and the Kansas City Times

had a daily circulation of 962 in Fort Scott, the place of

[RP SO Sele RRS

ww

14

trial, a city of 9786, The Court, however, refused to in-

terrogate the jurors concerning their exposure to these

articles as requested by the petitioner and based his re-

fusal on the reasoning that to-so interrogate at this time’

would be prejudicial to both the Government and the

defendant (App. 216).

The Court of Appeals made an aflirmative finding that

the articles were in fact prejudicial (Appendix K, m/ra,

p. 20) but found no‘error in the failure of the District

- Court to conduct an inquiry, of the j jurors to determine their

exposure to these articles. :

We submit that this decision is in direct conflict with the

decision of this Court in Janko v. United States, 366 U.S.

716 where this Court, based upon a confession of error by

the Solicitor General, reversed a conviction on facts strik-

ingly similar to the case of the petitioner. The trial of

Janko lasted two days. During that two-day period, preju-

dicial articles appeared in the press describing Janko as a

‘‘former convict’? and stating that he had been convicted

of the same offense but was granted a new trial.. The Dis-

trict -Judge did not conduct an inquiry of the jurors. In

confessing that this procedure was in error, the Solicifor ’

General stated: : -

‘The nature of the newspaper article in question,

especially in its*reference to the outeome ‘of the prior.

trial and tg petitioner as a ‘former convict’ and a ‘for-

mer employee of East Side’ rackets boss Frank

(Buster) Wortman’—a recipient. of considerable ad-:

verse publicity in the St. Louis press—was such as to

raise substantial doubt as to whether if it did-in facet

reach the jurors the inadmissible prejudicial informa-

tion could be wiped’ out of a.juror’s mind. Marshall v.

United States, 360°U.S. 310.

‘*TIn the light of the character of the extraneous in-

formation contained in the article, we think that, be-

Hy)

fore the jury was finally discharged, the trial court

.should have assured itself as to whether the - “Jurors —

had in fact read the article’’ : °.

The procedure suggested by the Solicitor General is fol-

ot . . P ge ‘

lowed in the Seventh Circuit, United States v. Palermo,

410 F.2d 468; United States v. Accardo, 298 F.2d 133 and-

United States v. Largo, 346 F.2d 253; the District of

Columbia, Coppedge v. United States, 272 F.2d 504, the

Fifth Circuit, Henslec v. United States, 246 F.2d 190 and

the Sixth Cireuit, Marson v. ‘United States, 203 F.2d 904. .

Therefore, this Court shbeld 3 issue its Writ of Certiorari

to resolve this important question in the administration of

criminal justice relatmg to the duty of District Judges

to ascertain the effect_of prejudicial publicity upon jurors.

2. The decision of the Tenth Circuit relating to Abe

separation of jurors during deliberations. is in direct con-

flict with the decision of , the Seventh Cireuit in United —

States v. D’Antonio, 349 F.2d 667 (7th Cir. 1965) and

United States v. Panczko, 353 F.2d 676 (7th Cir. 1966).

In D’ Antonio, with no showing of actual prejudice, the

Seventh Cireuit held:

At no time is it more essential that the jury should *

be immunized from outside influences than when it

is engaged in deliberating upon what its verdict is to

be. During that critic] period, when the jurors are

engaged in resolving vital issues between the govern-

ment and the defendant, the judge certamly should not -

relax the’ traditional safeguards: against outside in

tr usion.

In Pancezko, the Seventh Cireuit reiterated the decision

in D’Antonio, even though the jury had been instructed

not to read. anything or. listen to anything ahout the ease

or discuss it with anyone. 353 F.2d 676, 677, 678.

16 :

In this case, although direct reliance was placed on

D’ Antonio, and Patczko by the petitioner, the Tenth Cir-

cuit, without: mentioning’ these decisions, refused to find

prejudice in the separation. In so doing the Court stated |

that the trial court properly admonished the jury in re-

gard to their conduct during separation. (Appendix E,

infra, p. 20) An examination of the record however fails

to disclose the admonition. The Court only told the jurors

not to discuss the case during the luncheon recess. Noth-

ing was said about exposure to publieity. (App. 242- 243).

* Beeause of the conflict within the cireuits concerning

the propriety of separation of jurors during deliberation

in criminal cases, this Court should issue its Writ of

Certiorari.

3. This court in Griffin v. California, 380 U.S. 609,

held that it was a-violation of a defendant’s’ privilege

against self-incrimination to allow comment by the. Court

and prosecutor concerning the failure of a defendant to

testify, and in Chapman v. California, 386 U.S. 18, -this

Court held that:such comment was reversible error unless

it was established beyond a reasonable doubt that such a

violation of the Fifth Amendment was harmless error.

In tlie case at bar the petitioner did not elect to become a

witness in his own behalf. Over the objection of the de-

fendant, the Court instructed the jury that the petitioner

could not be ‘‘ecompelled’’ to testify. Although this in-

~truction does-not allow the failure to elect to testify to

he considered as affirmative evidence of guilt, by its very

terms it implies that an innocent defendant. would testify

and as such is violative of the principles enunciated in

Griffin. Further, the petitioner objected to the giving of*

‘any instruetion relating to his failure to elect to become a

witness in his own behalf. We submit .that this Court

“47

should issue its Writ of Certiorari to settle the question

whether an instruction relating that a defendant cannot be

‘‘compelled”’ to testify and ‘*failure’’ to testify Constitutes

a prejudicial comment upon the decision of a defendant not

to testify ayhen he expressly objects to any charge on the

subject whatsoever, and thereby impinges upon the de-

fendant’s Fifth Amendment rights. (¢.f. 18 U.S.C. 3481)

CONCLUSION = ie

For the foregoing reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

re

~ Maurice J- Watsu

CarL M.: Wats

29 South LaSalle Street’

Chicago, Illinois 60603

(312) 332-7374

May 26, 1971 :

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APPENDIX “A”

(Filed Mar. 31, 1971)

(Filed May 20,..1971)

UNITED STATES COURT OF APPEALS |;

TENTH CIRCUIT

Marcu Term, 1971

UNITED STATES OF AMERICA, . )

Plaintiff-Appellee,. ) eS

| — ° ) No: 363-70 -

JOSEPH AIUPPA, )

Defendant-Appellant. — )

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF KANSAS

(D.C. No. W-CR-390) 7

Ki. Edward Johnson, Assistant United States Attorney

(Robert J. Roth, United States Attorney, on. the

brief) for Plaintiff-Appellee. i

Maurice J. Walsh (Carl M. Walsh, and Joseph JJ.

Poizner, Of counsel, on the brief) for Defendant-

Appellant.

Before Brerrexsters and Iu, Circuit Judges, and

Lanciey, District Judge. ;

BrReEITENSTEIN, Circuit Judge.

The case is here for the third time. Defendant Aiuppa

was charged by information with the possession and trans-

App. 2

portation of over 500 mourning doves on October 1, 1962,

\in violation of 16 U.S.C. § 703. We reversed his first con-

‘vietion’ because evidence was received of an unlawful

search and seizure. Aiuppa v. United States, 10 Cir., 338

F.2d 146. On retrial, the objectional evidence was ex-

eluded and the jury again found him guilty. The court

sentenced him tothree months imprisonment and fined him

$500 on the first count (possession). On the second count

‘ (transportation) a $500 fine was imposed. We affirmed

the conviction. Aiuppa v. United States, 10 Cir., 393 F.2d

597.

It appears from the uncontroverted statement of coun-

sel in the record that in response to the petition for cer-

tiorari to review our last mentioned decision, the Solicitor

General informed the Court that:

‘‘We have the duty however to advise the Court

that on December 5, 1961, prior to the commission of

the offense involved herein, the Petitioner was over-

heard by an electronic device installed by trespass in -

a commercial establishment.’’

The Supreme Court.granted certiorari, vacated our judg-

ment, and remanded the case to the district court for fur-

ther proceedings in conformity with Alderman v. United

States, Ivanov v. United States, and Butenko vy. United

States, 394 U.S. 165. See Giordano v. United States, 394

U.S. 310, which disposed of a number of cases including

Aiuppa v. United States.

On remand the defendant filed a motion for production

of material relating to electronic surveillance. The court

held a hearing and among other things ordered defen-

dant to file a list of places where he thought such surveil-

lance might have occurred. He did so. The government

responded with an affidavit of the Director of the Bureau

ee aes

App. 3

e

of Sport Fisheries and Wildlife stating that the defendant

‘was not direétly covered by electronic surveillance and

furthermore that none of his conversations were monitored

by electronic surveillance devices’? used by bureau agents.

The written response of the United States Attorney stated .

that the United States Department of Justice including the

Federal Bureau of Ivestigation had not conducted any sur-

veillance of the defendant, his premises, his agents, or his

employees since December 5, 1961, and that no surveillance

had been conducted by the United States Treasury Depart-

ment.

The government filed and furnished to defense counsel

a log or transcript of a conversation in which defendant

participated and which took place in the Armory Lounge,

Forest Park, Illinois, on December 5, 1961. The United

States Attorney said ‘‘that the log furitished is the only

such record of‘any such surveillance or monitoring made by

or in the possession of any government agency.’’ The log

is a part of the record and is described by defense counsel

in their brief as ‘‘apparently innocuous insofar as this

prosecution is concerned.’’

The court conducted a hearing at which no evidence

pertaining to surveillance was offered or received. There-

after it made findings of fact and conclusions of law and

held that all materials as to which the defendant had any

standing to object had been furnished him; that no evidence

adduced at the trial stemmed from electronic surveillance ;

that the conviction of the defendant was in no way tainted

by such surveillance; that all government evidence “had

an origin independent from any electronic surveillance”’:

and that there was ‘‘no relevaney in any of the material

‘from the electronic surveillance log to any evidence of-

fered at-the trial of the defendant’s case.’

NAT AI

App. 4

We agree with the trial court: A review of the tran-

script of the trial and of-the proceedings on remand con-

vinces us that the conviction of the defendant was not

tainted by any electronic surveillance. The record of the

December 5, 1961, conversation in an Illinois lounge has

no relevance to any violation of the migratory bird laws

some ten months later in Kansas.

The defendant now argues that the remand order was

not satisfied because the government made no attempt to

support by~¢vidence the statements made in the govern-

ment’s response to the motion to produce. He says that

the full extent of the electronic eavesdropping cannot be

known without evidence of the source, or the disposition

of the original or other records of the material. We be-

lieve that the district court correctly interpreted and ap-

plied the rationale of Alderman and Giordano. The govern-

ment conceded the Fourth. Amendment violation and the

only question was the relevancy of the material obtained.

After a disclosure by the government, an examination of

that material by the defense, and an adversary hearing,

the court, held that the material was not relevant to, and

did ‘not taint, the trial. In the circumstances we see no

reason for the defense to be given an opportunity to cross-

examine the agents who made the tapes. or the custodians

thereof, or to inspect the original tapes. The trial court

was convinced, and we are also, of the competence and

trustworthiness of the government’s response and disclo-

sure. .

Our decision in United States v. Alderisio, 10 Cir., 424

F.2d 20, is not contrary to the views expréssed heyein. In

that ease there was surveillance before and during the

trial: Defense counsel were furnished logs and airtels. An

airtel is an interoffice memorandum compiled from original

App. 5

tapes. The airtels showed conversations not noted in the

corresponding logs. We remanded for the trial court to

check the completeness of the logs against the airtels. In

the case at bar nothing indicates any logs or airtels which

were not farnished to defense counsel. The single moni-

tored conversation took place, many’ months before the

trial. .

United States v. Schipani, 2 Cir., 362 F.2d 825, reversed.

380 U.S. 372, is not in point. That was a prosecution un-

der the internal revenue laws and a screenitig of certain

materials under the Jencks Act, 18° U.S.C. § 3500. In

camera procecdings were held by the trial court with ‘the

prosecutor, but not defense counsel, present. The court

of appeals criticized the procedure but found no prejudice

to the defendant. The Supreme Court summarily reversed.

In the case at bar the court made no in camera inspection.

The log of the conversation was turned over to defense

counse] and an adversary hearing was held thereafter.

In affirming the conviction of Aiuppa after the second

trial we. rejected the claim that the jury was influenced by

newspaper publicity unfavorable to the defendant. Aijuppa |

-y. United States, 10 Cir., 393. F.2d 597, 603-604. Thai

trial took place in Fort Scott, Kansas, and the claimed

adverse articles were in Kansas City newspapers. At the

second hearing on remand, defendant counsel made an

oraf motion for new trial on the basis that, in considering

the prejudicial. publicity issue, both the trial and appellate

courts were misled by. lack of knowledge of the circulation

of the Kansas City papers in the Fort Scott area. Aq

offer was made of an unauthenticated statement of the

circulation of two Kansas City newspapers in Fort Scot!

and Bourbon County, Kansas. The court rejected the

offer and. denied the motion for new trial.

App. 6

We decline to review the matter again. United States

_v. Seardino, 5 Cir., 414. F.2d 925, is not in point.. We have -

wig change in fact or law. That is not.

here no superve

a case of newly liscovered ‘evidence. No showing, is made

that the facts as to newspaper circulation in the area were

unavailable at the time of the trial. We adhere to our

statement that ‘‘there is nothing in the record to indicate

that the jurors were exposed to the newspaper articles in

question.’’ 393 F.2d 604. |

Affirmed.

SAARI Ty “RSE AR MRO CONS: BN

App. 7

APPENDIX “B”

(Filed May 20, 1971):

MARCH ‘TERM—MARCH 31, 1971

Before Honorable Jean S: Breitenstein and Honorable Del-

mas C. Hil,-Cireuit J udges; and Honorable Edwin Lang-

ley, District Judge. .

2

Ps !

UNITED STATES OF AMERICA, ee ‘

Plaintiff-Appellee, ) ..

V. ) No. 363-70

; )

Defendant-A ppellant. )

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Kansas, and was. argued by counsel. On consideration

whereof, it is ordered that the judgment of said court is

affirmed. It is further ordered by this court that JOSEPH

AIUPPA, appellant, surrender himself to the custody of |

the United States Marshal] for the District of Kansas, - in.

execution of the judgment and sentence imposed upon him

within ten days from and after the date of the filing of |

the mandate of this court in said district court.

HOWARD K. PHILLIPS, Clerk:

By Helen R. Bartha >

° : Deputy Clerk.

A true copy ss : we

Teste | MS iat elaaee

Howard K. Phillips

Glerk, U. S. Court of - ee

Appeals, Tenth Circuit Cn ere —

Helen R. Bartha

Deputy Clerk

App. 8

APPENDIX “C” ©

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

. Office of the Clerk

‘Denver, Colorado 80202

May 10, 1971

iloward K. Phillips . Telephone

Clerk re he © 808-297-3157

Mr. Maurice J. Walsh

Mr. Carl M. Walsh

Suite 327-— 29 S. LaSalle Street

Chicago, Illinois 60603

Mr. Joseph J. Poizner

Finigan, Poizner & Tucker

288 New Brotherhood Bldg.

Kansas City, Kansas 66101

Mr. Robert J. Roth, U. S. Attorney

Mr. E. Edward Johnson, Asst. U.S. Attorney

P.O. Box 1537

Topeka, Kansas _66601

‘Re: No. 363-70

U:S.A. v. Joseph Aiuppa

.

Gentlemen:

~ An order has been entered today denying the pe tition

for rehearing filed in the captioned case.

‘ Yours -very truly,

Hloward K. Phillips

HOWARD K. PHILLIPS

Clerk -

amc

App. 9

ARTEROE #D”

UNITED STATES (¢ OURT OF APPEALS

: ‘TENTH CIRCUIT

Office of the Clexk:

Denver, Colorado 80202 |

Howard K. Phillips May-18, 1971 ” "Pelephone

Clerk Ate | , 303-297-3157

Mr. Maurice J. Walsh _

Mr. Carl M. Walsh

- Attorneys at Law

Suite 327 — 29 S. LaSalle. Street

Chicago,- Illinois 60603

Mr. Joseph J. Poizner Mr. E. Edward Johnson -

Finigan, Poizner & Tucker Asst. U.S. Attorney

288 New Brotherhood Bldg. . P.O. Box 1537

dKansas City, Kansas 66101 | Topeka, Kansas 66601

‘

~——"2

. Re: No. 363-7050 |

U.S.A. v. Joseph Aiuppa

Gentlemen:

An order has been entered today:denying the appellant’ s

motion for stay of mandate i in the captioned case.

There is no showing as required by our rule adopted on _

November 18, 1970, and amended on March 22, 1971,"

‘ that the: petition for certiorari is not friv olous and is not

filed merely for delay.

‘Fropi a consideration of the record, the Court believes

that the petition is frivolous and is filed for delay.

Yours very truly,

Howard K. Phillips -

HOWARD K: PHILLIPS

Clerk

1%]

ame

App. 10 :

? APPENDIX “E”

UNITED STATES COURT OF APPEALS

, TENTH CIRCUIT °

MARCH TERM 1968

~

JOSEPH Atiprs, )

} )

r Appellant, —)

)

vs. ° a No, 9245

Uxrrep Srares or AMERICA, )

)

Appellee.)

(Reported af 3985 F.2d 597) ;

APPEATZ FROM THE: UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF KANSAS

Maurice J. Walsh (John Powers Crowley with, him on

brief) for Appellant.

Newell A. George for Appellee. | | |

Before MURRAH, Chief: Judge, LEWIS, Circuit: Judge,

“and CHRISTENSEN, District Judge. |

. MURRAH, Chief Judge—_ gr

On first appeal from a jury-waived trial anid conviction -

for unlawful possession and transportation of migratory

App. 1]

birds, 16 U.S.C. $703, we remanded this. case for a new

trial. with directions to suppress, as evidence, contraband

[560 frozen mourning doves | seized as the fruits of an

unlawful search, Aiuppa vy. United States, 388 F.2d 146. On

this appealfrom a jury convietion and sentence on the same

counts Aluppa asserts mumerous other grounds for re.

versal. After careful consideration of each point raised,

We affirm the judgment.

—Aluppa first contends here that the Government should

have been required to elect between Counts [ and If of

the Information, The argument is to the effect that since

Count PE charged -possession of the birds and Count |]

charged transportation, and since it is necessary to have

possession in order to transport, the two,counts are neces

sarily merged. Little need be said concerning this con

tention, for it is: conceded, as indeed it must be, that where

the same act or transaction constitutes a violation of two

distinet sti itutory provisions, the traditional test of identity .

of offenses is whether the same evidence js required to

sustain them. See Rawls vy. U nited eres 162 F.2d

Beacham vy. United States, 218 F.2d 528; and cases cited:

Robinson v, United States, 366 F.2d 575. We think the

charges here were sufficiently separate and distinet. Under

Count T proof was required” to show that Ainppe had tn

his possession migratory birds in, excess’ of the number

allowed hy statute (24 per persoh). Under Count Th i

Was necessary to prove that he did somesact in furtheraner

of the transportation of such birds, Moreover, no whe

the record before us ean. we find where the appellan:

raised such an objection at trial,

Objection is next raised to -the testimony of the Govern.

ment’s witness, Andrew Williams, on the grounds that snel

testimony was the result of an investigative lead obtained

App. 12

from the legal seareh. Lt is argued that. Williams was not

interviewed by the Government until after :the illegal

search and that the Government failed to sustain the

burden of establishing that the lead did not emanate from

that search: Suflice it to say that the record clearly re-

fleets that prior to the illegal search the Government re-

ceived information fram an informer to: the effect. that

Atuppa had been hunting in the Frontenac-Pittsburg, Kan-

sas, area with well-known people; that ‘tthey had killed

an enormous amount of doves’? and that Williams was

cleaning the doves, packaging: them and placing them. in

cold storage. Since knowledge of these facts was gained

prior to and independently from the illegal search, they

may be proved ‘like any other facts. See Wong Sun v.

~ Mnited States, 871 U.S. 471; Silverthorne y. United States,

251 U.S, 885. Such independently gained information does

not become tainted merely because the same information

is subsequently discovered during an illegal search. —See

Burke v. United States, 328 F.2d 399. |

It is also urged that even considering the testimony: of

Andrew Williams, the. evidence was insuflicient to prove

that Aiuppa either possessed or transported mourning

doves in excess of the statutory limit [24 per person or a

total of 48 for Aiuppa and his wife]. The argument is

that there. was no direet testimony that the birds in ques-

‘tion were mourning doves pr otected under the provisions

of $703 and that the only testimony as to how many birds

were placed in Aiuppa’s automobile consisted solely of

assumptions and guesses.

Many times we have. said that in determining the suf-

ficiency of the evidence to support a jury verdict, we are

constrained to view the evidence in the light most favorable

to the. Governme ‘nt and to examine such evidence only to

‘

App. 13

‘determine whether the jury was Justilied in finding beyoud

a reasonable doubt that the defendant was guilty of the

oltense charged. See Elbel vy. United States, 364 F.2d 1z7.

VanNattan v. United States, 357 F.2d 161; Reedy. Unite :

States, 377 F.2d 891. And, it is equally important to bear

in mind that in so viewing the evidence it is not our func-

tion to determine the weight of-the evidence or assess the

credibility of the witnesses. See Lucas v. United States, 355,

hd 245, and cases cited.. Applying these rules, we ean.

not say the evidence here did not support the verdict. An-

drew Williams téstified that during approximately a twoe

week period he cleaned between nine and fourteen hundred

mourning or turtle doves and placed them in plastic bags

for various hunters, including Aiuppa, in the Frontenac-

Pittsburg,. Kansas, area; that these doves were thén placed

in cold storage in the Dairy Land- Freezer in Frontenac:

that he placed approximately ten doves-in each plastic bag

and then filled ‘‘ordinary freezers’? with the plastic bags.

Without giving linear dimensions Andrews indicated by

hand motions to the jury the approximate size of the freez-

ers or cartons in which the bags of doves were placed.’ He

also testified that he placed one of these cartons in the rear

of Aiuppa’s car and theréafter saw where three others had

been placed in the rear of the car; that Mr. and Mrs. Aiuppa

were sitting in the ear and that he (Williams) directed

them as to the'best way to “get out of town to Missouri’’.

sv way of identifying the contraband game, Mrs. Williams

testified that she assisted her husband on at least one ocen-

sion in cleaning some mourning or turtle doves. Ronald

Tims also testified that-he assisted Mr. Williams in cleaning

turtle doves.. From all of this evidence we think the jury

'We think it ean safely be assumed that each ‘‘freezep” held

more, than one plastic bag of ten doves.

Nr OR er

App. 14

was justified in finding that Aiuppa possessed and trans-

ported more than 48 mourning doves in violation of $703.

Complaint is next made of the prosecutor’s commenting

on the memory of witness Williams and calling as witnesses

two other persons who had previously informed him they

would refuse to testify. During the trial, while Govern-

ment witness Williams was testifying on direct examination

and having difficulty recalling specific details, the prosecu-

tor asked him, ‘*‘Who told you to have a faulty memory?”’

Aiuppa’s counsel immediately objected and upon motion

the Court ordered the testimony stricken and direeted the

jury to disregard it.

We agree with appellant that the statement by the prose-:

cutor was unnecessary and improper. But, every slight ex--:

cess of the prosecutor does not require that a verdict be

overturned and a new trial ordered. United States v. Borda,

285 F.2d 405. And, such an error can generally be cured,

as indeed it was here, without harmful. effect upon a de-

fendant by the trial court’s striking the testimony or com-

. ment and admonishing the jury to disregard it. Lawrence

v. United States, 357 F.2d 434; Drew v. Lawrimore, 380

F.2d 477, and eases cited; and see Singer v. United States,

380 U.S. 24, 38. |

| t cue

As to the allegation that the Government prejudicially

called two witnesses who had advised the court they would

invoke the protection of the Fifth Amendment and refuse to

testify, both sides rely upon United States v. Compton,

(CA 6), 365 F.2d 1, 5, wherein the court stated:

witness whose attorney appears in court and advises

court and counsel that the witness will claim his priv-

elege and will not testify. However, to call such a wit-

ness, counsel must'have an honest belief that the wit-

‘Government counsel need not refrain from calling a

Apps lo

ness has information which is pertinent to the issues

in the case and which is admissible under applicable

rules of evidence, if no privilege were claimed. It is an

unfair trial tactic if it appears that counsel calls such

a witness merely to get him.to claim his privilege bes

fore the jury to a series of questions not pertinent to

the issues on trial or not admissible under applicable

rules of evidence.’’

It is argued that there was no shewing by the Government

that either of these witnesses had information pertinent

to the issues in the case, and that the only purpose for

calling them was to get them to olaim privilege before the

jury, leaving the inference they were hiding something.

The record indicates that a Kansas attorney appeared

son ing the trial and informed the court that he represented

‘a number of witnesses who feel that they should, under

the circumstances, refuse to. testify as they might inerim-

> No where can we find where the “‘num-

ber of clients’? were identified by name or that these two

witnesses were identified as being among those. represented

by the attorney. Moreover, both. of these witnesses had

testified in the first trial and in this trial were asked only

a few pertinent questions, such as whether they had hunted

with the accused. Immediately upon claiming the privilege

of the Fifth Amendment, eath was exeused from further

inate themselves.

testifying. We cannot say that the Government did no‘

honestly believe .the witnesses had pertinent information

not that under the circumstances it was prejudicial to at-

tempt to elicit such information from them.

The next allegation of error is directed at the court’s

permitting two government: agents each to testify to the .

effect that he is employed by the Department of Interior

and is custodian of the records in his respective region:

that he had searched the records in’ his region. and could

em

App. 16

lind no record of an application or permit for Aiuppa to

possess more than the statutory limit of mourning doves.

‘The argument is to the effect that the best evidence would

have been the records themselves and that, failure of the -

witnesses to produce the records from which they made

their seareh deprived Aiuppa of his constitutional right

to cross-examine witnesses against him. Reliance is placed

upon United States ve Rohalla (C:A7), 369 F.2d 220, where-

in the court held it was prejudicial error to permit a-

l.B.b agent to testify that he had examined a license regis-

tration book published by the Seeretary of State’s’ office

and had determined that a certain license number was

issued to the defendant, Rohalla. The court in that ease

reasoned that “There was no way that defense counse!

could by eross-examination of agent Williams effectively

challenge the authenticity or aceuracy of a book that was

not produced in- court.’? Id. 224. “But, we think that case

is easily distinguished from ours. In Rohalla the Govern-

ment was attempting to prove an entry in an official book,

hut the agent testifying did not purport to be the official

custodian of the reeords he had examined, And, the court

was careful to note that ‘*‘The book which should have been

produced in open court was available to the governmen!

‘and was at that-time in-the same building where the trial

was being econducted.’’. In our case the Government was -

attempting to prove the absence of .an entry in an official

~et of records by the testimony of the official custodians. .

Rule 27 F.R.Cr.P. and Rule 44(b) F.R.C.P. specifically pro-

vide that ‘‘A written statement that after diligent search

no reeord or entry of a specified tenor is found to exist

in the records designated by the statement * * * is admis-

<ible as evidence that the records contain no such record

or entry.’? And, Rule 44(c) provides that ‘This rile does

not prevent the proof of * * * lack of entry theréin by any

s ED Ng NIE: Be ee Sn Fie eR,

App.17 - | ss

other method authorized by law.’’ Thus, ‘‘to establish the

fact that there is no record as to a particular matter oy.

thitig, parol evidence may be given.”? Jackson v. United

States, 250 F.2d 897, and authorities cited. We « an, there-

“fore, see no error in allowing the Government to negate

the issuance of a permit to Aiuppa without producing the

records. And, see also dissent in United States v. Rohalla,

supra. ¢

Aiuppa next urges that it was prejudicial error for the

trial court to instruct the jury .that

“The.law does not compel a defendant in a criminal

case to take the witness stand and testify, and no pre-°

sumption of guilt may be raised, and no inference of

any kind may bedrawn, froni the failure of a defendant

to testify.

“The legal theory for this rule is immaterial so far as

you are concerned, but the important. and vital point

for you, as jurors, is that a defendant has the un-

qualified right not to take the stand and you may not

_ i any.manner draw any inference against the defen-

dant because he did not take the stand.’’ —

It is argued.that the language of the instruction amounts

to a prejudicial comment on the failure of a defendant to

take the stand, prohibited in Griffin v. California, 380 U.S.

609." But, we cannot agree. We know, of course, that

such a instruction must be oo if requested, i.e. see

United States v. Schabert, 36 ak. 2d 369, and cases cited.

-* In Griffin the court was coneerned with tlie California ‘‘Com-

ment Statute” which provided that a defendant’s failure “to ex-

plain or to deny by his testimony any evidence or facts in the

case against him may be commented upon by the court and by

counsel, aud may be considered by the court or the jury.” The

Supreme Court held that this violated the Fifth Amendment pry-

hibition against self- inermination.

App. 18

While it may be the better practice not to charge on this

‘subject unless specifically requested by a non-testifying de-

fendant, it is not reversible error to do so. Id. 372. When

couched in such careful terms as used here, we do not think

the charge can be said to be more than ‘‘a faithful com-

pliance. with the ‘implied direction’ given district judges

by Congress to fulfill ‘their t ‘aditional duty in guiding the

- jury by indieating the consideration relevant to the latter’s

verdict on the facts.*’? Coleman v. United States, 367.

F.2d 388, citing and quoting from Bruno v. United States,

308 U.S. 287, 293. See also United States v. Tannuzzo,

174 F.2d 177; Affronti v. United States, 145 F.2d 3.

Lastly, Aiuppa contends that it was error: for the ‘trial

court to refuse to grant a mistrial based upon prejudicial

newspaper publicity, or, in the alternative, to at least voir

dire the jurors whether they had read the newspaper pub-’

licity and were prejudiced thereby. He further argues that

‘it was error for the court to permit the jury to separate for |

junch during their deliberations and prior to the verdict

so as to expose them to the prejudicial publicity and other

possible influencing factors.

- At the conclusion of all the evidence, and before the jury

had been instructed, Aiuppa’s counsel moved for mistrial

on the grounds that the jury could not “reasonably: give

us a fair trial’? due to two current newspaper stories. One

of these stories was published on the first day of trial in

the Kansas City Star and was headlined on page 4: ‘Jury

Selected in Aiuppa Case. Chicagoan’s Trial-in U.S. Dis-

trict Court in Fort Seott Kansas.’’ A > subheadline read

“Gangland Figure Found Guilty in 1963 but Won Appeal ul

The article went on to discuss, Aluppa’s first trial, convie-

tion and sentence and the suppression by this court of

‘more than 500 doves’? found ‘‘in the trunk of the Aiuppa

Cadillae.’? The second artiele was published on the second

App. 19

ee . te |

day of trial in the Kansas City Times and was headlined,

“Two Freeze Up in Aiuppa Case; Government Witnesse:

Refuse to Answer in Second Trial. Now Vague on De-

tails’, A subheadline erroneously read, ‘‘Judge Asks

.One ‘Who Told You’ to Forget Answers?’’ This article

then recited: various occurrences at the trial...

7*~

Judge Templar noted that ‘this has alway been a prob.

lem for the trial courts, and under the provisions of the

First Amendment I know of no way that this court can pre-.

vent an irresponsible newspaperman from publishing an.

thing he wishes to publish * * *. This is apparently pre-

senting some very serious problems for the courts * * *,”°

But, he determined that ‘‘in order to grant a-mis-trial in

this case [the Court] would have to assume that. the jurors

have read this article and that it had left an impression

and they believed what they read and took it into considera

tion. Now, the Court is specifically instructing them not to

do this, and the Court feels that to grant your request [for

voir dire of the jury] will not be proper. In fact it. would

have just the opposite effect in the establishment of a fair

trial because it would tlien call to their attention something

that may not have arrived at their attention.’’? Thereafter,

the court instructed the jury to the effect that ‘‘you are

to disregard any informatian about this case which may

have been received from sources outside of this trial. Tf

any of vou have read any newspaper articles ‘or heard anv

e

vaio broadeasts or telecasts related to this case, IT want to -

caution you particularly that vou are to put any such in-

formation entirely out of your consideration of this ence

and vou are to confine your consideration solely to. the evi-

denee addueed in this trial.’’

Kach case relating to a claim of jury prejudice based

on newspaper articles appearing during a trial must turn

on itseown special facts. See Marshall v. United: States,

App. 20 _ ve

360 U.S. 310, 312, We have very recently considered the

general problems confronting and principles applicable to,

the majority of cases of this type’ concluding that ‘The

right to publish a prejudicial article does not carry with it

the right of an accused to ‘an automatic mistrial.’ > “Mares

v. United States, Auk 15, 1967, 10-CA, i . We

cammot say, from the facts in this case, that the published

newspaper stores deprived’ Aiuppa of a fair trial. The

stories- were, to be sure, prejtdicial. But, they were pub-

‘lished in newspapers at least 100 miles from the scene of

the trial. And, there is nothing in. the record to indicate

that they were generally circulated, or for that matter ¢ir-

culated at all, in the vicinity of the trial.or that the jurors.

would likely be exposed to them outside of deliberately

seeking them-out. We will not presume either exposure or

prejudice, i.e. see Welch v. United States, 371 F.2d 287, nor

- will we, in a ease like this, impute- to a_jury a ducwatd

of its duty to confine its verdict to the evidence adduced —

cat the trial. And see Mares v. United States, supra. We

think the trial judge took reasonably precautionary steps

under the cireumstances by instructing the jury to disre-

Ail any such publicity it might encounter.

ee

ras

As to whether the jury should have been alleged to*sep-

arate for lunch, we have said that ‘sequestration imposes

a hardship on jurors and should be ordered only in un-

usual eases.’? Mares v. United States, supra. As we have

seen, there is nothing’ in the record to indicate that the

jurors were exposed to the newspaper articles in questions,

*\nd, we will not presume prejudice from sueh a separation

where, as here, the trial court properly admonished the

jury in regard to their conduct during separation. See’

Roth v. United States, 339 F.2d 863; and see Hines v.

United States, 365 F.2d 649. a .

The judgment is affirmed.

App. Zi .

a»

APPENDIX “F” “2

| JOSEPH AIUPPA, Appellant, ~

v.

UNITED. STATES OF. AMERICA, hyde.

No. 7560.

United States Court -of Appeals, Tenth Circuit

‘November 9, 1964 *

(Reported at 338 F.2d 146)

Maurice J, Walsh, Chicago, Ill, tar @ vcilant.

Newell X. George, U. S. Atty., for appellee. iC

Before MURRAH, Chief Judge, and HILL. and SETIL

Circuit Judges.

MU RRAH, Chief Judge:

This i is an appeal ‘from a conviction and sentence by tie

Court, a jury having been waived, on a two-count Infor-

mation charging the appellant with unlawful possessiv:

and transpor tation of migratory birds (mourning doves), -

in violation of 16 U.S.C. § 703.

“116 USC. §$ 703 provides: °U wes any except as permitted by

regulations made as hereinafter provided in seetions 703-711 of

_ this title, it shall be unlawful at any time, by any means or in

any. manner, to pursue, hunt, take, capture, kill, attempt to take,

* capture, or kill, possess, offer for sale, sell, offer to barter, barter.

voffer to pureliase, purchase, deliver for shipment,-ship. export,

import, cause to be shipped, exported, or imported, deliyer fer

(Footnote 1 continued)

S

»)

~

App. :

On pre-trial the appellant moved, pursuant to Rule 41(e),

~~ FLR.Crim.P. that the seized property ‘to-wit, approxi-

mately 560 frozen birds * * * be returned to him and that

*? onthe

said property be-suppressed for use as evidence,

ground ‘that ‘¢[sJaid unlawful seareh and seizure was made

in the nighttime from an automobile belonging to the

[appellant] and located upon the premises *»* * which

constitute his home, ane the seizure was agaist his will

and without a seareh warrant.”

Pursuant. to a Hearing on the motion to suppress, the

trial, Court specifi ‘ally found ‘ * there was a search

of [appellant’s] effects, the automobile’ . that “there was

no consent to the search of the automobile, cithér voluntary

er otherwise’; that ‘‘the search was not incident to a

lawful arrest’?; and ‘‘there was:a seizure.’? The Court

a Po

then observed that the only question on the motion to

suppress was ‘whether there was probable e cause for this

search.?’ The -Government agreed, and the search and

_ seizure was fimilly sustaimed and the seized doves admitted

in evidence against the appellant, on the ground that the

Agents had probs ible cause for the search without a war-

rant. | -

a

The search and seizure of the mourning doves was con-

ducted by Federal Game Management Agents acting

(Footnote 1 PRET

transportation, transport or cause to be transported; earry or.

~vause to be carried, or receive. for shipment, transportation, car-

riage, or export, any migratory bird, or any part, nest, or egg,

of any such birds, including in the terms of the conventions be:

tween the United States and Great Britain for the protection of

Inigratory airds coneluded August 16, 1916 (39 Stat. 1702), and

the United States and the United Mexican States for the pro-

tectién of migratory’ birds and game mammals concluded Feb-

ruary 7, 1936.”

:

App..23

under authority of 16 U.S.C. § 706,?. which pertinently

provides that such Agents ‘ * * * shall have power, with-

out warrant, to arrest any person committing a violation of

said sections [16 U.S.C. $8 -703-711] in his presence or

view and to take such person immediately for examination

-or trial before an officer or court of competent jurisdiction ;

*** and shall have authority, with a search warrant, to

search any place.’? The statute also authorizes judges

and commissioners ‘* * *~ * upon proper oath or affirma-

tion showing probable cause {to}, issie warfants in all such

cases.’ ;

-On appeal the Government scems to admit, as indeed it

must, that the Agents were acting solely under authority

“On trial, one- of the Gove ‘rnment Agents testified as follows:

“Q. [By defense counsel] Now, are .you—that is the

total of your authority as an officer, isn’t it, you are a game

management officer for the government?- A. Yes. sir.

“Q. You don’t hold any commission or office as s any other

type of enforcement officer ? A. No, sir.

“Q. . Or civil officer? A.’ No, sir.

Q. And you know, do-you not, that these offenses you’

were investigating were misdemeanors? A: I know that, sir.

“Q. And are you familiar with Section 706 of. Title 16 of

the United States Code?

* * * * >

“A. Yes, Iam familiar with this section.

“Q. And that section outlines your authority in connec-

tion with the migratory game bird treaties and laws under, it? ©

“*A. . Yes, sir. ‘

““Q. And did you have in mind at the time that you made

-this search, this arrest and search. that vou should: have

authority with a search warrant. to search any place? A.

No, sir.

; -

“Q. You didn’t have a search warrant of course?

“A. - No, sir.” :

+ Dire

App. 24

of § 706, supra. Lt, does not contend that the search was

made as an incident to a lawful arrest or undér authorit y

vf a search warrant. In these circumstances, we do not

have the question of the power and authority of a private

person to search and seize as an incident to a lawful arrest

as in Wion v. United States (10 C.A.), 325 F.2d 420. Nor,

do we have the question of the authority of the Agents

to seize and then search a vehicle for. contrabafid, as in

Sirimareo. v. United States (10 CA), 315 F.2d 699. The

Govertiment secks to sustain the search and seizure sole ly

on the ground that its Agents, acting within the scope of

their statutory. authority, were impowered to search and

seize without a warrant for probable ¢ ‘ause., On this prem-

ise it contends that the evidence on the motion to. suppress

supports the trial Court’ s finding of probable cause,

The fallaey of this premise is that it assumes ‘the power

to make a warrantless search on probable cause—a .

which the statute (§ 706, supra) does not grant and,

plain implication, withholds from these special wwe

ment Agents. While the statute authorizes an arrest with-

out a warrant for violations committed in the Agent’s

presence or view, it does not authorize a warrantless

search. Instead, it expressly ‘delegates to judges and com-

missioners authority to issue warrants in all such cases,

upon a proper showing of probable cause. It is thus mani-

festly clear, we think, that Congress deliberately withheld

from these Agents the province of determining for them

selves the‘existence of probable cause and the exception:

circumstances which would justify an expeditious war.

rantless “'seareh. This. interpretation of the statute is

consonant with the highly restricted province of any en.

forcement officer to appraise the extraordinary cireum

-stanees under which a search without a warrant would

‘ I ME IIS EO SE AGS SAGE LEADERS EN APD LAR ! ALLS TEAL

. ~

App. 25

be justified. See: Aguilar v.Texas, 378 U.S. 108, 84 8.Ct.

1509, 12 L.Ed: 2d. 723; Brinegar v. United States, oot

U.S.-160, 69 S.Ct. "1302; 93 L.Ed. 1879; Johnson v. United

States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; Taylor

v. United States (10 CA), 333 F.2d 721; United States

v. One 1957 Ford Ranchero Pick-up Truck (10 CA), 265

F.2d 21; and Hart v. -United States (10 CA), 162 F.2d

74. a

The motion to suppress did not specifically refer to the

statutory limitation’ of the searching Age ‘nts, but it wa:

made pursuant to Rule 41(e) and followed the prescribed

Form 16, F.R.Crim.P. In this’ form, it was certainly

sufficient to challenge the lawfulness of the seizure anc

the supportive evidence was entirely sufficient to require

the Government to legally justify the search without it

warrant,-The Government does not now complain of appel-

lant’s failure to specifically invoke § 706, supra. Indeed,

it does not deny that the statute is the full measure of the

Agents authority in this ease. - We hold that the search

and seizure was conducted w ithout statutory authority and.

_ therefore, cannot be sustained for probable cause. The

motion to suppress should have been granted, and the

case is reversed, with directions to proceed accordingly: