Brief for the Respondents in Opposition — Javor v. United States

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Cases: \

| Briuton v. United States, 1 US. 18 one _ 9

" California Vv. Green, 399 U.S. 149... eeeceecenneeennns 9

Fabian v. United States, 358. F. 2d 187, certiorari

~~ Wel: SOG TR ORF ee a

Harris v. New .York, No. 206; this. Term,. decided

- @ Foeotiary 34, R071. ...:................4.. 10, °

| Loux Vv. United States, 389 F. Dd 911; certiorari

MOE, TE TT GE sects ccctentisncincctceeees ee |

’ Nelson v. O’Neil, No. 336, this ai decided June

|, | pe eee RAUNT OL SC ne oe .9

“United States v. Ballentine, 410 od 375, certio a

rari denied, 397 U.S. 928 ....... sa ctceiaiamsioyeiarisbecensinian -9,10 -

United States v. Boone, 401 F. 2d 659, canal

denied’ sub nom. Jackson V. United States, 394

A nn ee / 9

United States v. Guajardo-Melendez, 401 F. 2435. 10

United States v. Sims, 430 F. 2d 1089 - 9

. United States v. Socony-Vacuum Oil Co., Inc., 310

‘US. 150 inesnckcedaas neste iaaba | | 7

Wade v. United. States, 426 F. 2d a 2,10

Statutes:

18 U.S.C! 4208 (Db) esscccoeene | ae

18 U.S.C. 4208 (c) sstiaiceiinisanalantananprnattmabetssnnnistashtties : 3

2h Wee, Ore oa... es er E Nie LLG EEOT ON RI 2

21 U.S.C. bbe sn eas lnnasnece aul heinsccissachilicmashacsaes 2

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Iu the Supreme Court of the United States.

. OCTOBER TERM, 1970

j-

No. 1512 |

Pe

_ Eppie Javor, ALAN H. Rice and

* LAWRENCE S. TOROKER, PETITIONERS

4s

Vv.

UNITED STATES OF AMERICA =}.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR -

- - THE NINTH ee, ie tes

BRIEF FOR THE UNITED STATES IN OPPOSITION

at IONS BELOW

The first opinion of the court of asieiia’ is reported

at 403 F. 2d 507 (Pet. App. B). The second opinion

of the court of appéals is reported at 435 F. 2d ‘a :

. (Pet. ae A). ; | |

JURISDICTION

The pile ont of the court of appeals was entered

_ on October 29, 1970, and a petition for: rehearing 4

(1), ”

2

was denied on January 25, 1971. The petition for

a writ of certiorari was. not filed until March 26,

1971, and is therefore out of time ynder Rule 22 (2)

- of the Rules of this Court. The jfisdietion of of this

Court is invoked under 28 U.S.C. 1254(1). :

QUESTIONS PRESENTED ©

1. Whether voir dire evidence, presented oat of

the jury’s hearing, supports the trial judge’s finding

that the confessions made by petitioners Rice and

Toroker Were voluntary.

2. Whether it was error to permit the confessions,

_which implicated petitioner Javor, to be introduced

under limiting instructions on cross-examination of

Rice and Toroker, who had exculpated Javor on, direct

examination.

3. Whether the court of appeals erred in- donin.

ing to apply its subsequent decision in Wade v. United

States, 426 F. 2d 64 (C.A. 9), to the instructions

on the insanity defense given in this case.

STATEMENT .

In a thirteen count indictment returned in- the

United States District Court for the Southern Dis-

‘trict of California, petitioners. were charged with

- Yeceipt, concealment and sale of various quantities

of heroin, cocaine, and marijuana, in violation of 21 .

U.S.C. ° 174 and 176(a).* After a jury trial, each

"hk Rice was charged in all thirteen counts, but two were dis-

' missed prior to trial. Toroker was charged in nine counts and

Javor was charged in two. A -fourth defendant, Michael

_ -DeCristo, was charged in four counts of the indictment, but

3

“was taerid guilty as to all counts in which he. was.

charged. On December 17, 1965, Javor was sentenced:

‘ to concurrent terms of seven years’ imprisonment. -

On May 16, 1966, after’ having been committed for

study pursuant to 18 U.S.C. 4208(b) and (c), Rice

and Toroker were each sentenced to concurrent terms

of five years’ imprisonment. On appeal, the court of |

appeals remanded the case for further proceedings

to determine the voluntariness of confessions given

‘by Rice and Toroker. 403 F. 2d 507. The district,

court then stated that the court of appeals had mis- .

‘yead its initial ruling on the issue, and that it had

indeed concluded beyond a reasonable doubt that the:

_ confessions were voluntary.-. (II R. 53).2 The court

of’ appeals . thereupon affirmed the convictions. 435.

F. 2d 836.

1. The evidence showed. that on May 18, 1965,

Federal narcotics Agent. Richard Salmi, acting in an

undercover capacity, went to the residence of peti-

tioners Rice and Toroker and asked if he eould obtain

an ounce of heroin.* | Toroker, told him that he was -

. failed to appear for trial. He was: a suibseaewtty pre ee Py

and pleaded guilty to two. counts, the remaining. two having

been dismissed. On January 3,- 1966, he was sentenced to

‘concurrent. terms of five al imprisonment.

. 2“R”, preceded by a Roman. numeral, refers to the three-.

- yolume Record of ‘Proceedings in the Kom of Appeals, filed

with the Clerk of this Court. |

8 Despite prolonged and ‘repeated efforts, we ‘Sees been ¢C

- unable to obtain a copy of the transcript of trial proceedings

' in the instant case. Accordingly, we have culled the facts

from the Brief for Appellee, filed on petitioners’ .initial —

ee ae!

: expecting delivery of an ounce shortly, and that the

price would be $500. Salmi agreéd to contact To-

roker at a later date. The following #ay, Toroker

asked Salmi if -he would be interested in buying

- cocaine, stating that he -had access to quantities

of the drug. Toroker said the sale of narcotics and

LSD was their sole source of -incéme.

‘On May 21, Salmi returned to the residence, and

in the presence of DeCristo, purchased one ounce of

heroin from Toroker for $500. Two days later, To- 7

roker offered Salmi cocaine at $1,000 per ounce and

_ five ounces of heroin, instructing Salmi to contact ao

Rice. On May. 24, Salmi. called Rice, who told the

agent that he-had a package of cocaine and “the

’ other.” The following day Salmi; accompanied ‘by

another narcotics agent, Sherman, went to Rice’s

residence where they were joined by DeCristo. The

agents bought 85.360 grams of heroin for $1,090.

The next day, Sherman returned for the sample and

was shown three condoms containing a white powder -

' which Rice identified as cocaine. Sherman received

a .350 gram sample of the powder and left. -

The agents met again with Rice and. Toroker on

June 2, 1965. At. this meeting, they were shown a

price list for heroin. On this occasion, Toroker of-_

fered, and :the agents accepted, ‘several marijuana

cigarettes. On June 5, Rice notified Salmi that his

“source of supply” would deliver a sample of heroin |

that night. Salmi arrived ‘that evening. He noticed —

ios appeal; the two opinians of the court below; and the “Hearing

Memorandum” filed by petitioners Rice and Toroker for the

hearing on remand in the district court. (I R. 8-12).

res | & :

ite

5

that. petitioner Javor’s car was parked in the: car-

port of the house. He entered the: home and, a short

while later, heard Javor’s car drive away. Soon -

thereafter, Rice and Toroker gave Salmi sia ae of

byth European and Mexican heroin.

"bes June 7, both Salmi and Sherman returned and.

were given ten ounces of heroin by Rice and Toroker. .

Rice then asked for. $7, 500 in payment. At this point,

the two were arrested. With the permission of Rice,

the agents later monitored a call from his “source of

supply” who identified himself as “Eddie.” “Eddie”

-. agreed to meet Rice that evening to pick up the

money Rice had supposedly collected from the agents,

and to discuss the delivery of the balance of. the

heroin order. The same evening, Javor drove. to the

residence and was arrested. | -

2. At trial, both Rice and Toroker took the stand

and denied that Javor was their supplier. . The gov-

ernment, in an effort to discredit their testimony,

sought to introduce their written confessions, made

shortly after their arrest. Rice and. Toroker objected

’ on the ground that the conféssions were involuntary ’

since they had both been under the influence of LSD.

. The trial judge thereupon excused the jury i in order

to hear evidence on the issue. 7 |

- The government © introduced Federal Narcotics:

. » Agent Voll, who had taken the confessions. He ‘tes-

tified that before Rice confessed, the agent had asked —

him if he used any narcotic or was an a GPR ice

replied that he.did not, but that he occasionally

~ smoked marijuana and used LSD. Asked: if he was

‘ then under the influence of either, Rice answered

6 | B

that he was not. Toroker also denied being an ‘ad-

dict, although, -like ‘Rice, he admitted using .mari-_

' juana and LSD occasionally. Toroker also denied °

being then under the influence of either marijuana

or LSD. The agent testified that both appeared nor-

- thal, . The defense introduced the report¢ of two ‘psy-

“chiatrists; Tweed and Von Hagen, who had examined

both Rice and Toroker. On Rice, Tweed’s report re-

. vealed that Rice had told the doctor that he had been

using LSD since 1959 and that, on the day: of: the

‘offense and’ confession, he was under the influence -

of LSD. Toroker told the doctor that: he had been

using LSD for the, past several years and, on that

“day, had taken a 500 microgram dose. He said @hat:

he had used the. drug extensively in the weeks Prior

to his arrest and was under the influence of LSD

when he confessed. these . admissions, Dr... *

Tweed concluded that the two were suffering from a

- schizophrenic-like reaction induced by LSD consump-

tion and were insane at ‘the time of commission of

the offense (henge, the defense argued, at the time |

of confessing shortly thereafter).- No other evidence

was presented. The trial judge found the confes-

sions to be voluntary and permitted their admission

(435 F. 2d 836; II R. 58).

ARGUMENT

1. While petitioners Rice and Toroker now con-

- tend that the trial judge should have held a “sanity

hearing” concerning their.state of mind ‘at: the time”

they confessed,* they present ; no. siete which the -

court should have ‘considered in addition to that al-

ready before it. Indeed, this issue’ was before the

court when it heard the evidence and determined the.

confessions were voluntary and that Rice and To-

_ roker were sane at’the time. The court had before

_ it the reports of two psychiatrists, both of whom

were dealing with the questien—petitioners now raise

_ and one of whom, Dr. Tweed, had interviewed. them

_ at their own request. The doctors’ conclusions were

necessarily premised upon the self-serving admis- .

sions of Rice and Toroker that.they were under the

influence of LSD at the time they confessed. Yet

‘the two had denied this fact when asked by Agent

Voll. This presented a basic, evidentiary conflict

which the trial. judge. could rightfully resolve against

petitioners.

The reports further indicated—and this was later.

corroborated. by the testimony of petitioners (see II -

R. 51)—that usage of LSD manifests itself in bizarre

or irrational behavior. But the evidence of the crime,

* Petitioners additionally argue that the jury was deprived |

of pertinent evidence of the issue of voluntariness by the _.-

court’s decision to limit evidence of their usage, of LSD gen-

‘ erally. That fact was, however, already in evidence. The:

receipt of cumulative evidence on the subject was within’

the sound discretion of thé trial judge. United States v:

‘Socony-Vacuum Oil Co., Inc., 310 U:S. 150; Loux v. United

States, 389 F. 2d 911 (C.A. 9), certiorari denied, 393 Ua .

867; Fabian v. United States, 358-F. 2d 187 (C.A. 8), cer-

tiorari denied, 385 U.S. 821. Since the proposed testimony

bore only tangentially on petitioners’ state of mind at the time

of the confessions, the trial“judge acted well within his dis- .

cretion. :

« 8 ; : z

which had already been heard at the time of the

hearing, indicates that, in the month preceding their ~

arrest, both petitioners exhibited rational attitudes —

in the conduct of a major nareotics enterprise. In a

period when the two had told the psychiatrists they

were using LSD in substantial quantity, they were

able to carry on their trafficking in narcotics in a>

very businesslike mapner, to the point of offering a

price list and heroin samples to the agents in order .

_to induce. future sales. Moreover, Agent .Voll. testi-

fied that the two appeared normal, a statement which .

does not, contrary to petitioner’ s asgertions, - require

expert opinion. |

The sole evidence of insanity was-the psychiatric

reports showing that, if Rice fand Toroker were

laboring under the influence of LSD, as they asserted,

thén. they would have been insane: at, the time. In

light of the other evidence which the judge had: be-.

fore him, he could reliably: have concluded that peti-

tioners were sane and that the confessions, therefore, ~

were voluntary.® | —

2. Counsel for petitioners stipulated hefore the

jury that Rice and Toroker had previously admitted — -

committing the offenses charged. Although the ‘con-—

fessions identified Javor as the source of the nar-

cotics, the government made no reference to this in

presenting its case-in-chief. During the presentation .

of the defense, both Rice and Toroker testified that .

* Petitioners assume that the appropriate standard for the

trial judge would be to find the confession voluntary “beyond

a reasonable: Aoubt. ” The trial judge made this determination

(II R. 58).

- one “Nick” was their supplier, not Javor, and that

Javor had been. present at their residence during the ..

relevant period to transact: other business. Upon

cross-examination, the trial judge permitted the gov-

ernment to impeach this testimony. by confronting

both with portions of their confessions: which impli-

cated Javor. The court then carefully -instructed 9

_ the jury to consider the confessions only for pur-

poses of impeachment and not as evidence against

Javor.®: 403 F. 2d-at 512, °° a

The introduction of the confessions under these

circumstances did not, as petitioner Javor contends,

violate the rule of Bruton v. United States, 391 U.S.

. 123. Each confessing co-defendant was available for

| _ Fetlirected-examination by Javor, thus. preserving the —

a. of confrontation. Nelson v. O’Neil, No. 336,

\ is Term, decided, June 1, 1971; United States v.

. Ballentine, 410 F. 2d 375 (C.A. 2), certiorari denied,

- .897 U.S. 928+ United States v. Boone, 401 F. 2d

659 (C.A, 3),certiorari denied sub nom. Jackson v.

United States, 394 U.S. 933. The fact. that both

confessors testified that the confessions were untrue

did .not. affect their admissibility, but merely ‘ pre-

sented a question’ of credibility for the jury ‘to re-

solve.’ United States v. Sims, 430 F. 2a 1089 (C.A.

&Under California v. Green, 399 U.S. 149, petitioner thus -

received more than was required ‘constitutionally. Green

makes clear that, within constitutional limits, the ‘confessions

could be- considered as substantive proof of J avor’s involve- _

ment. | . ena: *

’ Petitioner suggests (Pet. 13-14) that the’ decision below. )

is in conflict with those of other courts of appeal, particularly

10

6); United States v. Daiatine, ‘supra. The ejury.>:

hdd a right to know that Rice and Toroker, who

were.testifying for Javor, had made contrary state-

ments. See Harris v. New York, No. 206, this Term,

decided February 24, 1971.

8: Petitioners requested the instructions on in-

sanity given’ by the court. In its first opinion, the

court of appeals-gejected petitioner’s claim that these

- instructions were nonetheless erroneous, noting only

that the insanity defense did not “merit discussion.”

403 F. 2d at 508. While the present case was on

remand, the court of appeals decided: Wade v. United

States, 426 F. 2d 64 (C.A:; 9), which ruled that in-

structions on insanity similar to those given..at peti- —

tioner’s trial would no longer be considered sufficient.

The court said that the rule announced in Wade was

to have “limited retroactivity” to those cases where

‘the conviction had not become final on the date of

decision (426 F. 2d at 74). In its decision affirming

petitioners’ conviction, the court. of appeals declined

to apply Wade. It ruled that the judgments of con-

‘United States v. Guajardo-Melendez, 401 F. 2d 35 (C.A. 7).

In that case, a narcotics agent testified that a co-defendant had

admitted to him that the appellant was his partner. Although

the co -defendant later took the stand, the court expressed

doubt as to whether he could properly have been cross-

examined on the statement. 401 F. 2d at 38, n. 5. The court,

in Guajardo-Melendez, did not purport to deal with the issue

presented’ in the instant petition, whether such statements

could have been admitted to impeach the co-defendant, but

rather held that they had been improperly admitted=as evi-

dence of the truth contained therein, despite the trial court’s

instructions to the contrary.

i

viction had been final as to. every issue—including

that of the insanity instruction—which had been

presented, except’ for the -voluntariness of ‘the con-

fessions (435 F. 2d at 837). - er

The issue presented by the instruction was wholly. .

independent from those concerning the confessions,

_ and the resolution of the former in no way affected

the disposition of the latter. In light of the insub-

stanjiality of the defense of insanity in this case, and

the fact that petitioners affirmatively requested the

instructions given, the ruling of the court of appeals ..

was appropriate. 3 _

| ‘CONCLUSION

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied. .

. ERWIN N. GRIswoLp,

_ Solicitor General.

WILL WILSON, Fe ae

Assistant Attorney General.

BEATRICE ROSENBERG, —

RONALD G. SCHERAGA,

Attorneys.

-JUNE 1971.

oa

wWiou.s. GOVERNNENT PRINTING OFFICE; 1971 428806°* ed