Petition for Writ of Certiorari — Smith v. United States

Supreme Court of the United States ms $6

” October Term 197]

DALTON CARL SMITH,

- Petitioner.

Vv.

_UNITED STATES OF AMERICA.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth ——

ARTHUR J. CROWLEY’

1680 North Vine Street,

Suite 515,

Hollywood, Calif. 90028,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angéles. Phone 724-6622

2 Re aE y EE BER RR AP GER ALTe

oo |

SUBJECT INDEX

Court of Appeals Holding the Bruton. Rule

and the Sixth Amendment Right of Con-

frontation Not to Be Violated by the Admis- ~

sion Into Evidence of Extra-Judicial State-

ments of Alleged Co-Conspirators Not Avail-

able for Cross-Examination, Is .in Conflict

With the Decisions of Other Courts of Ap-

peals on the ‘Same Contitutional Issue; and Is

an Important Question of Federal Constitu-

tional Law Which Has Not Been, but Should

Be Specifically Determined by This Honor-

re eR ee aes

The Decision Below by the Ninth Circuit

Court of Appeals Upholding the Procedure.

of the=Trial ‘Court Which Permitted Extra-.

Judicial Statements of Alleged Co-Conspira-

- tors to Be Admitted Into Evidence and

‘Heard by the Jury Prior to the Government's

Proving Prima Facie the Existence of a Con-

spiracy Violated Petitioner's. Rights -Under

the Fifth Amendment Due Process Clause:

ae Page

Opinions Below _...... Paper enon Te So Or AR eee

Jurisdiction oo... eee Pelee oe a

Questions Presented icsabbiacesahasabebsnse cou sc eneiapeninnatees ce 2

Constitutional sid ene Provisions Involved .

| Statement of the Case Va 5

Statement of ice eee el pea | RE Seon 6

’ Reasons for Granting the Writ -.............0........ ignsnag. AE

1. The ‘Decisions Below by the Ninth Circuit

11.

Rage

and Is an Important Question of Federal:

Constitutional Law Which Has Not Been,

but Should Be Specifically Determined by

This Honorable Court) ....00000..000000000200000022-.-

The Failure of the Trial Court to Order the

Government to Produce the Minutes of the

Prior Grand Jury Testimony of the Witness)

Jerry Millican, After Repeated Requests by

_ the Defense That Said Minutes Be Pro-

duced, Violated the Jencks Act, 18° U.S.C.

3500, and Constituted © Reversible Error ......

The Failure of the Trial. Court to Give Peti-

tioner Smith’s Counsel Reasonable Time to

Examine::the Material Produced Pursuant to

18 U.S.C. .3500 and to Properly Prepare for

Its Use, Constituted Reversible Error ..........

24.

30.

Various Errors Occurred at Trial Which Prej- |

udiced Petitioner’s Right to a Fair Trial, as

Well as His Right to Due Process Under the

Fifth Amendment to the United States Con-

WON ico Bae,

A. Inflammatory and Prejudicial Conduct

of the Government .....:...0...0000000...

B. Bias and Hostility of the Trial Court ..

@ There Was Insufficient Competent Evi-

dence to Sustain. Petitioner’s Judgment

“of Conviction .......... Act MIA Re it Mae

ee: | There Was Insufficient Competent

Evidence to Prove That the Stock

Certificates in Question Had Been~

WN Suenos au

34

34

42

45 .

iii,

Page

(ii) There Was Insufficient Competent

Evidence te Prove That There

‘Was a Conspiracy and That Peti:

ttoner Participated Therein; or

‘That in Fact - Any = Had

nes Committed 0.0.0.2. as 50

Conclusion .......... Seon RS Se anne eu 52

Appendix A. Opinion of the Court of Appeal for

the .Ninth Circuit. ........... ptbnehs chahendaasacoanh App. p. |

. Appendix B. Judgment and Commitment of the.

District Court ........ PTS AER ee ----App. p. 2

iv.

- TABLE OF AUTHORITIES CITED

Cases Page

— v. United States, 391 U.S. 123 . wit, 24

Pe a, LOO CT -14, 15, 16, 17, 18, 19, 20, 22, 23.

Butler v. U.S., 408 F.2d 1103 51

Campbell v. United States, 415 F.2d 356... 19

Carbo v. United States, 314 F.2d 718, cert. denied

df SS. SEAN ONT aE .. 20

Della Paoli V. United States, 352 US. 232, 1 L.

Ed. 2d 278, 77 S.Ct. 294 liseatleec Giannis 13, 15

Fitzpatrick v. ‘United States, 410 F. EM cckiticsecs 52

Gay v. United States, oe Wane Wee sick 45

Glasser v. United States, 315 U.S. 60+... 20

Hale v, United States, 410 F.2d 1472000 52

Jackson v. “Denno, 378 U.S. 368 _....... 21, 22, 23, 24

Migliore v. United States, 409 F. FO ieee, 19

Nolan v. United States, 423 F.2d 1031 nats 18

Parness.v. United States, 415 F.2d 346... 19

Pittsburgh Plate Glass Co. v. United States, 360

U.S. 395 «..........2... Niicidodtucncsepisbeidaaieniadiccille ate co 24

Scales. v. United ‘States, 367 US. 203, 81 S.Ct.

1469, 6 °L.Ed.2d 782 vaseesenenee pausannnidaditeeaetueiiaces 28

United States v. Bozza, 365 F.2d 206 ....... 18

United. States v. Braico, 422 F.2d 543, cert. denied

398 U S& iniidinpicenib init bicewmidiannetaenaiiandacctsancec ise. 46

United State v. Castello, 426 F. 2d er - 18

United Giayés v. Echeles, 22 F.2d 144 0 45

‘United States -v. _ Guajardo-Melendez, 401 F.2d 35

naeeneesencecannnnnnnconnccnccpennencnsecepeccccecacececens 19, 37, 39, 40

—_~ |

V.

? Page

United States v. Meisch, 370 F. 24 168 TAD EASY 28

United ‘States v. Missler, 414 OM stein “shasescscccnns = asc,

United States v. Schroeder, -433 F.2d O06 19

Vote v. United States, 156 F.2d _ Bis De PO PO 45

: Rules

Federal. Rules of Criminal Procedure, Rule 14 ..... 15

a | Statutes

- United States Code, Title 18, Sec. 371 ~ ae

* United States Code, Title 18, ‘Sec. 2314 . IRE Mis 5. 4

United States Code, Title 18, Sec: 2315 Cee 45

United States Code, Title 18, Sec. 3500 . & 3, 24, 30

dncesanepanquinestyeseeqpensasbantsssssanseonasensoscnahes ante" 32, 33

United States Code, Title 18, Sec. 4208(b) _...... 5

United States Code, Title 28, Sec. (408(1) ........., |

United States Constitution, ‘Fifth Amendment . 2, a

seunlbeptineinanMibaidanetbtnerbuteindlvescc =) Saeeme 42

~ United States Constitution, Sixth Amendmeni i ae

-spuledebinshadnbatpnsdannsnasaabhnemisdstusweapaiseslaseccssacisia.2 18, 19, 20

. Textbook

38 Nebraska Law Review (1959), p. 744 ow. 16

9

or"

IN THE

_ Spree Court of the United States

October Tern | 97 |

eee

DALTON CARL SMITH,

_ Petitioner.

Vv.

UNITED STATES OF AMERICA.

Petition for a Writ of Certiorari to the’ United States

Court of Appeals for the Ninth Circuit.

The petitioner, Dalton Carl Smith, prays that a writ

of certiorari issue to review the opinion and judgment

of the United States Court of Appeals for the Ninth

Circuit rendered in this proceeding on aioe. he 20, 1971.

Opinions Below. |

_ The opinion of the Court: of Appeals, as yet un-

reported, appears at Appendix A, infra, p. 1.

A copy of the District Court Judgment and Com:

mitment, filed on March 1, 1971, appears at Appendix

BD, ifra, 2,

Jurisdiction.

The judgment of the Court of Appeals was -entered

on July 20; 1971. See Appendix A, p. 1, infra. - This

petition for certiorari was filed less than 30 days from

the aforesaid date. The Loon ig of this Court is

invoked under 28 U.S.C. § 1254(1). |

cos

ae

Questions Presented.

1. Whether the Bruton rale and ihe Sixth Amend-

ment right of confrontation are violated by admission

into evidence of exira- judicial stat cements of alleged co-

conspirators not available for cross-examination.

a Whether che, procedure of the trial court in ad-

mitting and permitiing the jury to hear ihe extra-

judicial statements of alleged co-conspirators prior to the

Government’s proving, at least prima facie, the ex- |

‘istence of -2 conspiracy, violated Petitioner's right-to

Due Process under the Fifth Amendment.

3. Whether the failure of the trial court lo order

the Government to produce the minutes of the prior

Grand Jury testimony of the witness Jerry Millican,

after repeaied requests by ‘the defense that the said

minutes be. produced, vidlated. the Jencks Act, 18

U.S.C. 3500, and constituted reversible error. .

4. Whether the failure of the trial court to give

Petitioner’s counsel. reasonable time to examine the

material produced pursuant to 18 U.S.C. 3500 and to

properly prepare for its use, constituted yversible error.

5. Whether various errors occurred at trial which

prejudiced Petitioner's right to a fair trial, as well as

his right to Due Process under the Fifth Amendment: :

A. Whether there was inflammatory and preju-

dicial conduct by the Government.

B.. Whether there was bias and hostility exhib-

ited by ‘the trial court.

C. Whether there was_ insufficient competent

evidence to sustain Petitioner's judgment of con-

we

viction. eal .

, GR ‘ ls peat ah the TREES REE hl Danas,

Constitutional and Statutory Provisions Involved.

Constitution of the United States, Amendment V:

“No person shall . . . be deprived of life, liberty,

or property, without due process of law. . .”

~ Constitution of the United States, Amendment VI:

“In all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the

witnesses against him’. . .”

Section 3500, Title 18 of the United States Code

(Jencks Act):

“DEMANDS FOR PRODUCTION OF. STATE-

MENTS AND REPORTS OF WITNESSES:

“(a) In any criminal prosecution brought by

the United States, no statement or report in the

possession of the United States which was made

by a Government witness or prospective Govern-

ment witness (other than the defendant) “shall be

the subject of subpena, discovery, or inspection

_until said witness has oo on direct examina-

tion in the trial of the case.’

“(b) After witness called by the United

States has testified on direct. examination, the

court shall, on motion of the defendant, order the -

United States to produce apy statement (as here-

. inafter defined) of the witness in the Possession

of the United States’ which relates to the subject

‘matter as to which the witness has testified. If the

. entire contents of any such. statement relate to the

subject matter of the testimony of the witness. the

court shall order it to be delivered orden! to the

defendant for his examination and use.’

rea

“(c) If the United States claims that any Sstate-

ment ordered to be produced tnder this section

contains matter which does not relate to the sub-

ject matter of the testimony of the witness, the

court shall order the United States to deliver

Such statement for the inspection of the court in

camera. Upon such delivery the court shall excise-

the portions of such statement which do -not

relate to the subject matter of the testimony of

the witness. With such material- —excise, the -

_court-shall“then direct delivery of such statement |

to the defendant for his use. If, pursuant to such.

procedure, any portion of such statement is with-

held from the defendant and the defendant objects ,

to such withholding, and the trial is continued to

an adjudication of the guilt of the defendant, the

entire text of such statement shall be preserved by

the United States and, in the event the defendant

appeals, shall be made available to the appellate

court for the purpose of determining the correctness

of the ruling of the trial judge. Whenever any state- -

ment is delivered to a defendant pursuant to this

section, the court in its discretion, upon applica- |

tion of said defendant, may recess proceedings in

the trial for such time as it may determine. to be’

“reasonably required for the examination of: ‘such —

statement by said defendant and his preparation _

for its use in the trial.”

“(d) If the United States elects not to re

‘ with an order of the court under ‘subsection (b)

or (c) hereof to deliver to the defendant any such

statement, or such portion thereof as the. court

may. direct, the court shall strike from the record

the testimony of the witness, and the trial Shall

«

oe

proceed unless the court in its discretion shall de-

termine that the interests ‘of justice’ require that

a mistrial be declared.”

“(e) The term ‘statement’, as used in subsec-

tions (b), (c), and (d) of this section in relation

to sai witness called by the United States, means—

ok * sfc

“(3):a statement,’ however, taken or recorded.

or a transcription mereot, if any, made by said

witness to a.grand jury.” :

Statement of the Case.

In September of 1970 Petitioner Dalton Carl Smith,

Emil Tucker, Leo Meyer Ogul and Maurice Medlevine

were indicted by the Federal Grand Jury for the Cen- -

tral District of California for: conspiracy, interstate

transportation of stolen and forged securities and the re-

ceiving and sale of stolen and forged securities in.

violation of Title 18 U.S.C. $$ 374, 2314, and 2315.

Jury trial of Petitioner Smith and co-defendant Tuck:

er was commenced on January 5, 1971 before the Hon-

orable, Manuel L. Real, United States District Judge

Presiding. Petitioner-was found guilty on eighteen of —

the nineteen counts charged, while co-defendant Tucker

was found guilty of all nineteen counts charged. Peti-

tioner was sentenced to the maximum period prescribed

by law and for a 90 day study under the provisions of

18 U.S.C. § 4208(b). Petitioner was released on bail

pending appeal on condition that he file an expedited

appeal. |

On March 1, 197] Petitioner filed a Notice of Ap-

peal from the Judgment of Conviction and thereafter

prosecuted an expedited appeal.

,

eo ae

canted ;

In a per curiam opinion, the United States Court

of Appeals for the Ninth Circuit, on July 20, 1971

affirmed Petitioner’s judgment of conviction (Appendix

A, infra, p. 1.) '

Statement of Facts.

The facts relevant to the questions presen: ‘ed by this

Petition are as follows: v

One Glen Harding Fildes had in his possession cer-

~tain stock certificates some of which were in the names

of himself, his mother and his brother. Said stock certif-

icates were issued from four companies, among them

Coca Cola Bottling of Los Angeles. After Fildes’ death,

on September 21, 1968, a search was conduct of his

house, car and effects in Alhambra, California in an

attempt to locate the said stock certificates. None were >

found.

On Sepiember 27, 1968 Jerry Millican, an attorney,

was registered at the Palmer House in Chicago, IIli-

nois. Petitioner Smith introduced Ogul and Medlevine

to Millican and a: conversation ensued in Millican’s

room. There were also some stock certificates which

' were spread out on the bed. At trial Millican was per-

mitted to testify to certain statements made to him by

Ogul. Ogul told Millican that he had obtained: the

stock from an attorney in Los Angeles. Ogul further

told him that there were two brothers and a mother

involved with the stock certificates, that one of them

had died and that the surviving brother. wanted to sell -

the stock for his own benefit-without going through an

estate. Millican in looking at one of the stock certi-

ficates, a Coca Cola Boitling of Los Angeles certificate.

noted that it was in blank with no signature on the

reverse side. Petitioner Smith asked “Millican if this

yee

.

stock was suitable for acquisition by the company that

Petitioner was then working for, State Fire and Casualty

Company of Miami, Florida. Millican told Petitioner

that the certificates could only be transferred by the

signature of the owner guaranteed by a bank officer or

member of the stock exchange, or by execution of a

stock power, or by the judgment of a court of com-

petent jurisdiction. Millican then advised Petitioner that

unless the transfer was effected by one of the foregoing

methods, Petitioner should have nothing to do with the. .

stock certificates. Petitioner stated that he did not want

the stock unless it was a “legal situation.”

In October, 1968 Petitioner. Smith visited Benjamin

Dobson, president of State Fire and Casualty Com-

pany, in the latter’s home in Miami, Florida. At that

time Petitioner showed Dobson a Coes Cola Bottling

Company stock certificates which was in blank, ie.,

neither signed nor guaranteed: Petitioner explained to

Dobson that the said stock. was tied up in-an estate

which had not been settled and which involved two

brothers. Dobson told Petitioner that he would like to

have stock of that caliber in the company’s investment

portfolio, but until it could be transferred into the com-

“- pany’s name, the company could ‘hot use it. Petitioner

then stated that: “Then, if we can’t use the stock in the

company, well I'll give it back to the people I got it

from.” . ;

On October: 14, 1968 Dobson flew to New York

City, where he stayed with Petitioner at the City Squire

Hotel. Petitioner introduced Dobson to Ogu! and Med-

levine. Smith stated they were in New York to see co-

defendant Tucker on business.

Also on October 14, 1968 een Henry observed

Petitioner and two other — in the offices of co-

e

se aa | °

defendant Emil Tucker. After: the foregoing meeting,

_. Tucker handed Henry a list containing shares. of stock.’

At the top of the aforesaid list was written in Tucker's

handwriting “Dalton S. 10-14-68”.

On October 15, 1968 one Louis Greenberg came to—

Tucker's office for a meeting. Tucker then went into

-Henry’s office with ceriain stock certificates and asked

Henry to prepare a receipt for them for Greenberg's

signature. Henry prepared: the ‘receipt in his own

handwriting and checked it against the stock list Tucker

had given him the previous day. When Henry examined.

the stock certificates at-the time of- preparing the

receipt, all of them were signed on the reverse side but

none of the signatures were guaranteed.

Greenberg signed the receipt” prepared by Henry and

received from Tucker all of the stock certificates, listed

‘thereon. Greenberg then sold the said stock piecemeal

over a period of time through Koss & Company, a stock ”

brokerage -house_ in Brooklyn, New York. Greenberg

paid Tucker in cash approximately $130,000.00 during

the: course of the stock sales, retaining approximately

$20, 000.00 for himself.

At one point during the ie. Koss became con-

cerned about having guaranteed signatures on the cer-

tificates when the signers were unknown to him. Koss

therefore demanded that Greenberg produce some proof.

of ownership of the securities. Greenberg notified

Tucker and advised him that he needed, some docu-

mentary proof of ownership as to the certificates. A

bill of sale was typed in Tucker’s office. and Tucker ©

informed Geenberg that he was sending it to Los An- ©

geles to have it notarized.

/

Pa .

t

ce “Se pe

Throughout this period of time Ogul and Medlevine

were going to Tucker’s office frequently. ‘Also about

that time, Ogul informed his business associate, Mor-

ton Gorman, ‘in Los. Angeles that a man would .be

coming to see him. A man did come to see Gorman

-and asked Gorman to obtain a Notary stamp on a bill

of sale. Gorman contacted a ‘Richard .Sherrill and to- -

gether they obtained a Notary seal on the aforesaid

‘document. The Notary stamp used was that of Allen

C. Woodard, III who testified that he had observed

‘Sherill using his stamp on November 11, 1968 and

warned him against it. + |

Thereafter Greenberg went to Fucker’s office and

_ Tucker gave him the executed bill of sale. Tucker took

the said document to Koss who thereafter continued

. the sale of the securities.

During the same period of time, Petitioner also visit-

ed Tucker's: office on several occasiony and called

Tucker on the telephone. Tucker stated to Henry that’

the monies from the stock sale were distributed to Ogul.

Medlevine, Petitioner, Greenberg and himself.

During the course of the stock sale, Tucker in-’

formed Henry that Greenberg was retaining a sizable

portion of the proceeds for himself and that this

created a problem for Tucker because he was obligated

to pay the money to others. Tucker informed Henry

_ that Ogul and Medlevine were pressuring him for the

money. Subsequently, Tucker informed Henry that: he

had asked one Joe DiCiccio to help him collect the -

stock . proceeds from Greenberg, and‘ also’ resolve his

problems with Ogul and Medlevine. Tucker~described

DiCiccio as a former bodyguard of John Masiell

; and also referred to DiCiccio as his, ( Tucker’ s).? ‘um-

brella”.

—10— - |

In January 1969, Janet Vincent, the attorney for the

Fildes’ estate who had been attem ting to locate the

missing stocks, discovered’ that ne

sold through the various stock transfer agents in Los

Angeles. Through one of these agents; Vincent learned

that the stocks had been sold through Koss & Com-

pany. Thereafter Vincent had telephone conversations

with’ both ‘Koss and Greenberg. After the aforesaid

telephone eonversations, Greenberg contacted Tucker

-in. George Henry's presence and told Tucker to get the

money back’ fast because the ‘certificates were stolen |

and forged. Tucker assured. Greenberg that the stocks

were good, the signatures were. genuine and that he

should not worry.

Subsequently “ Greenberg had numerous -Gonversa:

tions with Tucker about straightening out the stock

situation. Tucker always told Greenberg that the situa-

tion would be straightened é6ut, and demanded’ that

Greenberg pay him the balance due him (Tucker)

*. which was approximately $60:000. Henry and Green-

berg were Permitted to testify to various conversations

in which Tucker and DiCiccio attempted to get Green-.

berg ‘to pay the balance due and also there was talk of

bribing a district attorney. in Brooklyn, as well as .

bribing’ a detective, Throughout all of these numerous

conversations. however, both Henry and Greenberg.

testified that Petitioner's name was never once men-

tioned, :

The Government also introduced records of various

telephone conversations allegedly made between Peti-

tioner, and the various other cq-conspirators. However,

many of the telephone calls were to-or from hotels and

there was no showing whatsoever. as to which person at

the hotels said calls were addressed.

stocks had beén-

s.

. 4 “asain a a ee eee fe a fr

; | a ee

3 scar SRN Se |

REASONS FOR GRANTING THE WRIT.

1. The Decision Below by the Ninth Circuit Court

of Appeals Holding the Bruton Rule and the Sixth

Amendment: Right of Confrontation. Not to Be

Violated by the Admission Into Evidence of Extrae 2 -

Judicial Statements of Alleged Co-Conspirators

Not Available for Cross-Examination, Is in Con-

flict With the Decisions of Other Courts of Appeals

‘on the Same Constitutional Issue; and Is an Im-

portant Question of Federal Constitutional Law

Which Has Not Been, but Should Be Specifically

- Determined by This Honorabie Court.

_ As the Statement of Facts indicates, the vast bik ‘of

the evidence’ introduced y the Government at Peii-

tioner’s trial ear extra-judicial statements of

alleged co-conspirator Tucker, as well as extra-judicial

statements of Medlevine and Ogul also alleged co-

conspirators. - Co-defendant Tucker did not take th

~ witness stand, and Medlevine and Ogul were ab-

sent from the jurisdiction and thus. did not testify. As‘a

result, no cross-examination of these individuals was *

possible by Petitioner. After the Goyernment’s opening

statement, Petitioner’s counsel pointed out to the Trial-

Court that the joint trial of Petitioner and co-defendant

Tucker would present a Bruton problem because of the

likelihood of having incriminating extra-judicial state-

ments of co- -defendant Tucker introduced into evidence

_ with the consequent prejudice to Petitioner. The Trial

Court stated that “. . . Bruton does not apply to some-

thing that happened ‘denlae the crime. during the con-

spiracy.. We still have the conspiracy rule.” |R.T. pp.

93-94.| The Trial Court subsequently admitted into

. evidence’ all of the extra- judicial statements of alleged

_ CO- “conspirators with a cautionary instruc tion to the jury

‘Sa

ee

that the jury was not to consider the said statements

against Petitioner unless the jury first found that a con-

spiracy existed, Petitioner was part thereof and the

statements were made during the course and in fur-

therance of the conspiracy.’

The’ Ninth Circuit Court of Appeals in affirming

Petitioner's judgment of conviction held that “There

is a point about Bruton v. United States, 391 U.S. 123.

This is not a Bruton case. United States v. Griffin (9th:

Cir., 1970), 434 F.2d 978, is applicable.” The Ninth

Circuit held in the Griffin case, supra, that Bruton

rule is not. applicable to a ‘conspiracy ‘prosecution in

that extra-judicial statements. of cg-conspirators not

available for cross-examination are exceptions to the

hearsay rule and as such are not affected by Bruton. —

'The full text of the Court’s instructions to the jury was as

follows: — , |

“Ladies and gentlemen, before hearing this conversation,

_ I do want to-instruct you with reference to the charged co-

conspirators and conversations and statements. of co-con-

spirators. A ? ; So oe

“Whenever it appears beyond a reasonable doubt from

the evidence in the case that a conspiracy existed and that

a defendant was one of the members, then the statements

thereafter knowingly made. and the acts thereafter knowingly

. done by any person likewise found to be a member, may be

considered by the jury as evidence in the case as to the

defendant found to have been a member. even though the

statements and acts may have occurred in the absence and

without the knowledge of the defendant. provided ‘such

statements and. acts were, knowingly made and done during -

the continuance of,such conspiracy and in the furtherance”

-of some object or puxpose of the conspiracy. Otherwise, any

admission or incriminatory’ statement made or act done

outside of court by one person may not be considered as

evidence against any person who was not present and did

not hear the statement made or see the act done.

“Therefore, statements of any ‘conspirator which are not

in the furtherance of the conspiracy or made: before its

existence or after its termination may be considered as

. evidence only against the person making them.” |R.T. pp.

175-176. |

.

Pie : .

/

4

ERAT AYP Se TS ei aie CeRemtes ROR,

po, Ta

_ Petitioner believes, and other Circuit Courts of Ap-

‘peals have held (see infra) that the Bruton rule and the

Sixth Amendment right of confrontation are applicable

_ to conspiracy prosecutions. . ae

In Bruton—v. United States (1968) 391 U.S. 123.

this Honorable Court held thaf an accused’s right of

_ Cross-examination secured by the’ Confroniation Clause

of the Sixth Amendment is violated at his joint trial

with a co-defendant who does not testify by the-adimis-

sion of the co-defendant’s confession inculpating the ac-

cused; notwithstanding jury instructions that the co-

defendant’s confession must be: disregardéd in deter-

mining the accused’s guilt or innocence.

Prior to the Bruton case, the cases held that an in-

struction to. the jury to disregard extra-judicial state-

ments of a co-defendant inculpating. the defendant in

determining ‘the defendant's ‘guilt: or innocence, ‘was |

sufficient because juries could be relied upon to fol-

low the Court’s instruction to disregard the testimony.

The last United States Supreme Court ruling that.

juries could be relied upon to follow such .a Court in-

struction was Della Paoli vy. United States, 352 US.

232, 1 L.Ed. .2d.278, 77 S.Ct. 294 (a five to four

decision).

That case was expressly overruled by the Bruton

case in which this Honorable Court stated:

“We hold that beeause of the stebstantiol risk

that the jury, despite instructions 10 the contrary,

looked to the incriminating * extra-judicial slate-

ments in determining Petitioner's guilt. admission

. of Evan’s confession in this joint trial violated

Petitioner's’ right of cross-examination secured by

the Confrontation Clause. of the Sixth Anvend.

ment.” (Emphasis Added. )

EG ORATOR TRE I

14:

In ‘challenging the: basic premise that a properly in-

‘structed jury would ignore the co-defendant’s inculpa-

tion of the defendant in determining the latter's guil’.

this Honorable Court stated:

“The fact of the matter is that too often such

admonition against misuse is intrinsically ineffec-

tive in that the effect of such a non-admissible

declaration cannot ‘be wiped from the brains of

the jurors. The admonition, therefore, becomes a

futile collocation ¥ words and fails of its purpose

as a legal protection to defendants against whom

- such a declaration should not tell. (Citing from

_ the dissent in the Della Paoli case, which disseni

.was adopted by the majority in the Bruton case.)

The Government should not have the windfall of

having the jury be influenced by evidence against

the defendant which, as-a matter of law, they

should not consider but which they cannot put out

of their minds (Citation omitted). To the same

effect afd also cited in the Jackson note, is the

statement of Mr. Justice Jackson in his concur-

ring opinion in Krulewitch v. United States, 336

» U.S. 440, 453, 93 L.Ed. 790, 799, 69 S.Ct. 716:

‘The naive assumption that prejudicial effects can

be overcome by instructions to the jury :. . all

practicing lawyers know to be unmitigated fic-

tion... .’”” (Emphasis added. )

The Bruton case, citing from the leading California

case of People - Aranda, 63 Cal.2d 518, 407 P.2d

265, also pointed out that thegfogic of its ruling is not

limited to unconstitutionally obtained confessions. but

extends to “obviating the risks that the jury may rely

upon any inadmissible statements”. (Emphasis added. )

e '

e

itn

The Bruton case then poinied out, that “our action

in 1966 in amending Rule 14 of.the Federal Rules of

Criminal Procedure also evidences our repudiation of

Della Paoli’s basic premise. Rule 14 authorizes a sever-

ance where a defendant Might be prejudiced by a

joint trial.” (Emphasis added. )

This Honorable Court in Bruton went on to point out

that it isn’t just a confession of a co-defendant that is

covered by the ruling, but it embraces a confession or

a statement of a co-defendant. It states-as follows with

reference to the 1966 amendment of Rule 14:

“The Advisory Committee on Rules .said in ex- -

planation of the amendment: ‘A defendant may

be prejudiced .by the admission in evidence against

a co-defendant of a statement or confession made

by that co-defendant. This prejudice cannot be

dispelled by cross-examination if the co-defendant

does not take the stand. Limiting. instructions to -

the jury may not, in fact, erase the prejudice . . .

The purpose of the amendment is to provide

a procedure whereby the issue of possible preju-

dice -can be- resolved on the motion for sever-

ance...” (Emphasis added. )

The Bruton case is replete with footnotes citing au-

thorities that refute the ridiculous notion that a jury

can be relied upon to put this type of prejudicial evi-

dence out of its mind simply because the trial Court

instructed them to do so. These footnotes state. inter

alia, as follows:

- “Tt has been suggested that the limiting instruc

tion actually compounds the jury’s difficulty -in

disregarding the inadmissible hearsay.” See. Broe-

der, The University of Chicago Jury Project, 38.

—16—

Nebraska Law Review, 744 (1959). (Bruton, p.

482 footnote 4): |

“Judge’ Hand addressed the subject several

times. The limiting instruction, he said, is a ‘rec-

ommendation to the jury of a mental gymnastic

_ which is beyond, not only their powers, but every-

body else’s (Citation omitted). Nobody can in-

deed fail to doubt whether the action is effec-

tive, or whether usually the practical result-is not

to let in hearsay ( Citation omitted). 71 is. indeed

very hard to bélieve that a jury will, or for that

matter can, in. practice observe the admonition.’ .

Judge Hand referred to the instruction as a ‘pla:

cebo’, medically defined as ‘a medicinal lie’. Judge

Jerome Frank suggested that its legal equivalent

‘is a kind of ‘judicial lie’. It- undermines a moral

relationship between the Courts, the jurors, and

the public; like any other judicial deception, it

meer: the decent judicial administration of jus-

tice.” (Citations omitted.) (Bruton, p. 483, foot-

note 8.)

“Compare E. Morgan, SOME PROBLEMS

OF PROOF UNDER’ THE ANGLO-AMERI-

CAN SYSTEM OF LITIGATION 105 (1956),

who suggests that the use of limiting instructions ©

fosters an inconsistent attitude towards juries by

‘treating them at times as a group of low-grade

morons, and at other times as men endowed with

super- -human ability to control their emotions and

intellects.’ * (Burton, p. 483, footnote 8) .

Is suggested that because the evidence is so un-

reliable the need for cross-examination is ob-

viated. This would certainly seem contrary to the

acceptance of the Rule of Evidence which would

a |, ae

require exclusion ‘of the confession as to Bruton

as ‘inadmissible hearsay, a presumptively unre-

liable out- of-court statement of a non-party who

‘was hot a witness subject to cross-examination.’

Post, at p. 486. The theory of the hearsay rule is

that the many possible déficiencties. suppressions,

sources of error, and untrustworthiness, which lie

underneath the/ bare untésted assertion of a wit-

ness, may be best brought to light and exposed by

the test of cfoss-examination. 5» Wigmore, Evi-

,, at 3. The reason for excluding

as an evidentiary matter also re-

quires its ¢xclusion as a constitutional matter.

(Emphasis the Courts). Surely the sugg estion is

not that Pointer v. Texas, for example, .be repudi-

ated, and that all hearsay evidence be admissible

: so long as the jury is properly instructed to weigh

it in light of ‘all the dangers of inaccuracy which

characterize hearsay generally.’ Post, at 488.”

(Bruton, p. 485, footnote 12.) (Emphasis added.) —

Mr. Justice Stewart, in a concurring opinion in the

Bruton case, stated as follows: . ;

“Quite ‘apart from Jackson V. Denno, however,

_ I think it clear that the underlying rationale of the

Sixth Amendment's - atti shiaon, Clause pre-

cludes reliance upon cautionary “instructions when ~

the highly damaging out-of-court ‘statement of a

co-defendant, who is not subject. 10 cross-exam-

ination, is deliberately placed before the jury ata

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 USS.

400, 13 L.Ed. 2d 923. 85 S: Ct. 1065: Douglas

>

cohen.

v. Alabama, 380 U.S. 400; 13 L.Ed. 2d 934, 85

S.Ct. 1074) are at once so damaging, so suspect,

and yet so difficult to discount, that juros cannot

be trusted to give such evidence the minimal:

weight it logically deserves, whatever instructions

the trial Judge may give. (Emphasis in Courts).

See the Court's opinion, ante, at 485, note 12. It

is for this very reason that out-of-court accusa-

--—tion is universally conceded to be constitutionally

inadmissible against the accused, rather tlian ‘ad-

missible for the little it may be worih. ee

the Court)”

In the instant case the Trial Court gave and relied

on the same type of cautionary instruction which was

so criticized in Bruton, when it simply instructed the —

jury to disregard the extra-judicial statements of al-

leged co-conspirators which implicated Petitioner, un-

less a conspiracy was first found. Thus the Trial Court

assumed that the jury was capable of putting this hear-

Say completely out of its collective -minds, and totally

ignoring it, while it deliberated first on the question of

whether a conspiracy existed. This procedure supposes

that “not one juror succumbed to the nigh irresistible

temptation” to resort to this evidence in determining |

whether a conspiracy existed. (See Bruton, Footnote

4, p. 481, citing United States v. Bozza, 365 F.2d

206. )

The Second Circuit Court of deities in United

States v. Castello, 426 F.2d 905 (1970)-and the Tenth

Circuit Court of Appeals in Nolan v. United States,

423 F.2d. 1031 (1970) ‘have held in very recent cases

that the Bruton rule and the Sixth Amendment right of

confrontation are applicable to conspiracy prosecu-

tions. The Seventh Circuit Court of. Appeals’ so held in

ee |

the case of United States v. Guajado-Melendez, 401 |

F.2d 35 (1968).

On the other hand, the Third, Fifth, Sixth and

Eighth Circuit Courts of Appeals havé taken a position ~

in conformity with the Ninth Circuit Court of Appeals _

and have held that the Bruion rule is not appliable to

a conspiracy prosecution in that extra-judicial state-

ments of co-conspirators not available for cross-examin-

ation are exceptions to the hearsay rule and as such

are not affected by Bruton or the Sixth: Amendment

right of confrontation. See Parness v.. United States,

415 F.2d 346 (3rd Cir. 1969); Migliore v. United

States, 409 F.2d 786 (Sth Cir. 1969); Campbell v.

United States, 415 F.2d 356 (6th Cir. 1969): United

States v. Schroeder, 433 F.2d 846 (8th Cir. 1970).

Because of the above stated conflicts in the recent:

decisions of the Circuit Courts. of Appeals on this fun- .

damental Contitutional . issue, i.e., the right of con-

frontation, this Honorable Court ought to review the -

. decision and judgment of the Ninth Circuit -Court of

Appeals in-the instant case, and determine whether or

not the Bruton rule and the Sixth Amendment right of

confrontation are a to conspiracy | Eevee

tions.

In. this connection Pet diame urges that by failing to

reverse the decisions of those Circuit Courts of Appeals

which have held the Bruon rule and the Sixth Amend-

ment right of confrontation not to be applicable to con-

spiracy prosecutions, this Honorable Court would be ‘

condoning the unjustifiable denial of the protections

of the Sixth Amendment to a particular class of ac-

cused, i.¢., those charged with conspiracy. Such an .un-

* warranted classification. i.e., arbitrarily denying Sixth

| ——

Amendment rights to those charged with conspiracy,

would ‘most surely be a denial of due process as to

those charged with conspiracy, and would doubtless

encourage the Government to add a conspiracy count

to any substantive offenses charged, thereby effectively.

circumventing the Bruton rule and the Sixth Amend- |

ment guarantee of the right of confrontation.

_2. . The Decision Below by the Ninth Circuit Court

of Appeals Upholding the Procedure of thé Trial .

Court Which Permitted Extra-Judicial Statements

of Alleged Co-Conspirators to Be Admitted Into

Evidence and Heard by the Jury Prior to the

Government’s Proving Prima Facie the Existence

of a Conspiracy Violated Petitioner’s Rights Under

the Fifth Amendment Due Process ‘Clause; and

Is an Important Question of Federal Constitutional

Law Which Has Not Been, but Should Be Specif-

* ically Determined by This’ Honorable Court.

It is well established that before the extra-judicial

declarations of conversations of a co-conspirator are:

admissible against a defendant, there must be independ-

ent evidence of the conspiracy’ and deféndant’s con-

‘nection with it and that the declaration wag made in

furtherance of and during the pendency of the- alleged

conspiracy. Glasser v. United States (1942) 315 US.

60, 75; Carbo v. United States (9th Cir. 1963) 314

_ F.2¢718, 735, cert. denied 377 U.S. 953. :

In the instant case, the trial court used the generally .

accepted procedure of permitting the Government to —

introduce ,and the jury to hear extra-judicial statements

of alleged co-conspirators prior to the Governmént’s-es=~

tablishing, primta facie, that a conspiracy existed and

that an accused was connected therewith. In the instant

Sod on ” , . 2 pe Ron gan east anene =

Bsofoes tina NE eb? wht HED se RE A the OS neh RANT Gi PEO eS ge Mn = =

1,

—21—

case, the trial court admonised the jury that is should

‘not consider the -extra-judicial statements of alleged co-

-conspira‘ors unless it first found a conspiracy and that

. defendant was connected therewith, and further that

_~ “the statements were made in furtherance of and during

the course of the conspiracy. |

i

4

The Ninth Circuit Court of Appeals in affirming Pe: -

titioner’s judgment of conviction-upheld the procedure

utilized by the trial court and simply stated:

“Objection is madé that when certain statements

of co-conspirators were admitted in evidence the

conspiracy hadn’t been proved. In this case we

find this to be only a question of order of proof .

within the trial court’s discretion.”

Petitioner respectfully argues that his: objection to.

. the. procedure utilized by the trial court relates not

merely to‘ “the “order of proof” ‘but is a much more

fundamental objection: ‘j.e:, Petitioner urges. that the

procedure utilized by the Trial Court and upheld by

the Ninth Circuit Court of Appeals, violated Petition-.

er’s right. to Due Process under the Fifth. Amendment

to the United States Constitution.

In the procedure utilized by the trial court in the

instant case, the jury was instructed to totally disregard

¢ ‘the extra-judicial statements of Co-conspirators which jt

had heard until it had first determined from. independ- ;

' ent evidence that a conspiracy in fact existed, and that

the defendant was connected with it. This is a strikingly

similar situation to that which existed with respect to

the voluntariness of a confession prior tothe case-of .

Jackson v. Denno (1964) 378 U.S. 368. Prior to

‘Jackson v. Denno.a jury was permitted to hear an out

of court confession ofa defendant prior to any de-

poe, |, oe

termination by the trial court that the said’ out of court

; confession was not coerced. The jury was then instruct-

ed, that,. after having heard the confession, it should

not consider the confession until it had first determined

_ that the confession had been voluntarjly made. In re-’

jecting this rationale in Jackson. Vv. Denno, supra, this

—- Court stated:

“é

. Due process of law requires that a coerced

- confession be excluded from consideration by

the jury. It also requires that the issue of coercion

be tried by an unprejudiced trier, and, regardless of

the pious fictions indulged in by the Courts, it is

useless to contend that a juror who has heard

the confession can be uninfluenced by his opinion °

as to the truth or falsity of it... And the rule

- Of exclusion ought not to be emasculated by admit-

ting. the evidence Land giving to the jury an in-

struction which as every. judge and lawyer knows,

cannot be obeyed.. (Cite Omitted )’.” (Emphasis

added.) Jackson v. Denno, ee, footnote 10 at -

pp. 382-383.

That such. a limiting instruction as-is now currently

given in a conspiracy case is totally ineffective when

given to a jury of laymen, is further borne out ‘by: the ©

decision of this Honorable Court in Bruton v. United .

States (1968) 391 U.S. 123. With respect to the in-

effectiveness of limiting instructions to juries, that case

stated: 7 | |

“The fact-of the matter is that too often such

admonition against misuse is intrinsically ineffec-.

tive.in that the effect of such a non-admissible dec-

laration cannot-be wiped from the brains of the

jurors. The admonition, therefore, becomes a futile

+ oe -—

pt ie

collocation of words,and fails of its purpose as a

. legal protection to:#efendants against whom such.

a declaration Should not tell. (Citing from the

dissent in the Della Paoli case, which dissent was

‘adopted by the majority in the Bruton case.) The

Government should not. have the windfall of .

_-having the jury be influenced by evidence against

_-the defendant which, as a matter of law, they

should not consider but which they cannot put,

out of their - minds (Citation omitted). To the.

same effect and also cited-in the Jackson note, |

?

is the statement of Mr. Justice Jackson in his con- :

curring opinion in Krulewitch v. United .States,

336 U.S. 440, 453, 93 L.Ed. 790, 799, 69 S.Ct.

716: ‘The. naive assumption. that prejudicial effects

can.be overcome by instructions to the jury... all

ape lawyers know to be ae iis

Pies Emphasis added.)

Therefore with respect to the present procedures

employed in conspiracy prosecutions, we have a situ-

ation in which the jury is permitted to hear the. extra-

judicial statements of alleged co-conspirators and then

it is told to. disregard these very same statements ‘until |

it has first determined from independent evidence that

a conspiracy, in fact, existed. Clearly this is asking .

the jury. to do what this Honorable Court found it

‘could not do in the cases of Jackson v: Denno, supra

and Bruton v. United States, supra.

- Therefore, Petitioner urges that this Honorable Court.

review the entire procedure with respect to conspiracy

trials, and make a determination that Due Process is

violated when the Government is permitted to introduce

extra-judicial statements of © alleged co-conspirators

BEA, eS

prior to the establishment prima facie of the existence

of a conspiracy from independent evidence. Petitioner

respectfully urges therefore that with respect. tosconspir-

“acy prosecutions, gis Court adopt a procedure simi-

lar to that employed under its decision in Jackson vy.

Denno, supra with respect to coerced confessions, i.e.,

that the trial court in camera hold a hearing out of

the presence of the’ jury in which the Government. will

- submit the independent evidence which it has to prove

the existence of a. conspiracy and that the trial court

will make a preliminary determination that there is suf-

ficient independent evidence of the conspiracy to per-

mit the ~ Jury to hear any extra-judicial statements of

alleged co- ae ae ey

. The Failure of the Trial Court to Order the Gov-

ernment to Produce the Minutes of the Prior

Grand Jury Testimony of the Witness Jerry Mil-

lican, After Repeated Requests by the Defense

That Said Minutes Be Produced, Violated the

Jencks Act, 18 U.S.C. 3500, and Constituted Re-

versible Error. ee

a

By. the October iD; 1970 Aimendment to the Jencks

Act, 18 U.S.C. $3500, Congress specifically added to

its definition of the term ‘ statement”, (3) a statement,’

however taken or recorded. or:a .transcription thereof,

if any, made by said witness to a grand jury” (emphasis

added); thus superseding case law which ‘had. held that

- grand jury testimony was not within the scope of the

Jencks Act: Pittsburgh Plate Glass Co._y. , United States

(1959) 360 USS. 395. |

A current reading of the Jencks Act. therefore would |’

require that in -a criminal prosecution, once a witness

— by the United States has testified on direct exam-

. ) ‘ Le

a,

ination, “. . . the court shall, on motion of the de-

fendant, order the United. States" or produce any state-

ment (as hereinafter defined ) of the witness in the pos-

session of the United States which relates to the subject

matter as ta which the witness has testified.” (Em-

phasis added.) When the United States fails to make

such a “statement” available to the defense as .re-

quired by the Jencks Act, then “the court shall strike

from the record the testimony of the witness, and the

trial shall proceed. unless the court in its discreetion |

shall determine that the interests of justice require that

a mistrial be declared.” (Emphasis added.)

In the instant case, Jerry Millican - was “called as

one of the three key Government witnesses against

'- Petitioner. After Mr. Millican’s direct testimony, de-

fense. counsel requested a copy of the minutes of prior

Grand Jury testimony of Mr. Millican in Nashville in

1969 (the Grand Jury testimony of Millican in Cali-

fornia was made available). to defense counsel which

was related to the same facts and events as his direct ”

testimony at Petitioner’s trial.

_Millican admitted that at the time of his testimony

at Petitioner’s trial as to these facts and events at the

Nashville Grand Jury that his recollection and mem-

ory of these’ facts and.events was much better than at

the present time because his testimony in Nashville took

place i in March, 1969. |

The witness also stated that he was interviewed by

F.B.I. agents: members of the. Justice Department and

U.S. attorneys from other parts of the country as to

details of this case, None ofthese statements were. ever

produced by the: Government for the defense nor was.

any reason ever given by the Government for this fail-

ure to so produce them. — - - ;

X

Pn ae

At- Petitioner's. trial,, the prosecutor admitted - that

several weeks before the trial, he noticed Mr. Millican’s

reference to the Nashville Grand Jury testimony and

called people in the Department of Justice, in particu-

lar, one Mike Epstein who was familiar with the miat-

ter; that he asked Mr. Epstein f6r the transcript of the

Grand Jury; that he had further communications with

Mr. Epstein since that time and that he had “the latest

one today”. The Government stated that a Grand Jury

transcript of the Nashville testimony had been prepared,

and sent to Washington but that the file was missing’

with the transcript. The Government then Stated that

an effort “is being made” to see if the Court Reporter

~ could be located.

Defense counsel then pointed out that “we have an

absolute right to: this” and that effor's should have

been’ made long ago (after the California Grand Jury

hearing) to get this material and he then requested

that the material- should be -submitted to the Court

in camera for a determination. - 4

The Court then stated that it was not going to delay

‘ the trial for this purpose and that “they have made

every search”.

However, the Government explanation as to the un-

availability of the Nashville Grand Jury transcript at

the tinte of trial. i.e., Justice Depariment lost file, ete.,

is totally inadequate. It must be remembered that the .

‘Los Angeles Grand: Jury indictment against Petitioner.

was returned in September of 1970’ and that his trial:

did not begin until January 5, 1971. It is hard to un-

derstand the difficulty-in obtaining a Grand Jury tran-

script for over 4 months. Furthermore. a re-transcrip-

~ tion a have and should have been ordered in

/

oy Se

time for trial so that it could havé been properly utilized

_ by the defense. In this connection it must be noted that

a re- -transcription was ultimately ordered. and received °

by the Government, not unfortunately in time for Peti-

tioner’s trial (where it could have been utilized by. the

defense), but fortuitously enough, in time to be utilized

by the Government in opposition to Petitioner’s Motions

for New Trial and/or Judgment of Acquittal. -

Furthermore, there were several major inconsistencies

in the testimony which Millican gave before the

Nashville Grand Jury as opposed to his testimony at

Petiioner’s trial. In his Nashville Grand J ury testimony,

Millican stated, “Of course, I took the stock and put

it in my briefcase, but I never tried to do anything

‘with it. I took it back to him.” The foregoing was in.

direct contrast to Millican’s testimony at Petitioner’s

trial where Millican testified ‘that he simply left the ©

meeting at the Palmer House because he had a dinner

engagement, with no mention of this taking the stocks.

In his Nashville Grand Jury testimony, Millican also

stated that “J am certain that some of the stock is now

in the portfolio of the State Fire and Casualty of Miami

. [| am certain that Mr- Dobson has 3 this stock

into the portfolio of that corporation . . * (Emphasis

added.) That testimony was confrary not pay to the

testimony Millican. gave at trial, but also to the testi-

mony. of Benjamin. Dobson. At this point it must be

emphasized that Millican and Dobson were two of the

three key Government witnesses against Petitioner Smith

(the other being George Henry). \

The tact that Millican’s Grand har les: ainsi varied

substantially from his trial testimony would have en-

abled the defense, had the Government made the Nash-

LOE ESLER EID

a,

ville Grand Jury testimony available to: the defense,

to impeach not only Millican but also Dobson. Milli-

can’s Nashville Grand Jury testimony therefore would

have been extremely valuable:to the defense. In this:

- connection the language found in the casé of United

States v. Meisch, 370 F.2d: 768, 772 (3d Cir. 1966)

_is applicable to the instant case.

“The fact that Szpak’s testimony: was ‘more re-

vealing than the case report is not a valid reason

for refusing to permit the defense, to see it. This

is not the test under the statute. The purpose of -

requiring the delivery to a defendant of a_ prier

statement ‘which relates to the subject matter as

to which a witness has testified’ is ‘not ‘solely to

provide him a means of obtaining. information

divulged by the witness’s testimony, but to give

him an opportunity to use it as he deems fit for.

trial purposes. ‘|W |hether the statements may be

useful purposes of impeachment is a_ decision

which rests, of course, with the defendant him-

self.” Scales v. United States, 367 U.S. 203, 258,

81 S.Ct.. 1469, 1501, 6 L.Ed.2d 782 (1961).

(Emphasis addeé& ) cen

_ Since Millican and Dobson were two of the three

key and only Government witnesses against Petitioner

Smith. (the other being George Henry) the possibility

of impeaching either or both of them undoubtedly

~would have affected the outcome of the trial. Further-

_ more, as was stated in United States v. Missler, 414°

F.2d .... (4th Cir. 1969): |

| “The requirements of the Jencks Act are in-

tended. to provide defendants in federal prosecu-

tions with an opportunity for thorough cross-

/ @

A EEE DD eas SC nar atin

ee

examination of government witnesses, making the

constitutionally guaranteed right of confronta-

tion more meaningful. Violations of the statute

are necessarily attended: by the danger: that this

precious right will be impaired. For this reason,

and also because it is ordinarily diffic ult “upon

review of a cold record to ascertain the value to

the defense of a statement withheld, violation of

the Act is excused only in extraordinary cir--

cumstances, See Killian v. United States, 368 U.S. .

231, 82 S.Ct. 302, 7 L.Ed.2d 256 (1961):

Rosenberg vy. United States, 360 US. 367, 79

-§.Ct. 1231, 3 L-Ed.2d 1304 (1959). Unless. it is

perfectly clear that the defense was not prejudiced

by the omission, reversal is indicated.” (Emphasis

added.) Jd. at PP. 303-304.

In the instant case, it most surely cannot be said’

that “it is perfectly ‘clear that the defense Was not

prejudiced by the omission” of the Government to sup-

ply Millican’s Grand Jury testimony; hence a “reversal

~ is indicated.” -

The failure of the Trial Court to pre the Gov-

ernment to produce’ this prior testimony of Mr. Milli-

can, or-in the alternative, the failure of the Trial Court

to strike the testimony of Mr, Millican from the record.

or in the alternative, the failure of the court to de-

clare -a mistrial at that point was, in and of itself, such

prejudicial error. as.to Tequire reversal of Petitioner's

judgment of conviction.

In spite of extensive briefing on this very point. the

Ninth Circuit Court of Appeals in- its.decision below

(see Appendix A, infra p..1) did not even discuss

—30—. ko.

this issue, but dismissed Petitioner's ee Wigbmen re

violation of the Jencks Act, 18 U:S.C. $ 3500, ‘ge the

phrase “Other points raised we find ee ig’

Petitigner believes that this ‘point is” “substantial

enough to warrant consideration by this | Honorable

Court and therefore prays that this Honofable * Court »

will grant this Petition and review what was most

clearly a violation of the express intention of Congress,

ie., that prior Grand Jury testimony. of. a’ witness-

called-by the Government in a criminal prosecution be-

made available to the defense for impeaci.ment pur-

poses. - < |

4. The Failure of the Trial Court to Give Petitioner

Smith's. Counsel Reasonable Time to Examine the

Material Produced Pursuant .to 18 U.S.C. 3500

and to Properly vy, vale for Its Use, Constituted

Reversible Error. ‘

Section 3500, Title 18 U.S.C. provides that the .

Court may recess proceedings in a- trial for such time

aS may reasonably be required for the defendant to

examine and prepare for the use of the material ‘Pro-

duced pursuant thereto.

It is obvious that unless the defendant has sufficient

time to Properly prepare for the. use of such material,

the mere. production of it becomes a futile -geSture. In

the instant case, the 3500 material is in excess of Sev-

eral hundred pages. . ;

In passing, it should be noted that in most state

jurisdictions, including the ‘States of California since -

1956. the defendant is afforded the right to have copies

of this material long prior to the trial i‘self. This is

likewise true in England.

i:

The restriction, contained in Section 3500 to the

effect that it is not necessary to produce the material

until gfter the particular witness has testified at the

trial is, in itself, an unreasonable restriction (and in

the. opinion of the writer fiereof, an _unconstitutional

denial of Due Process).

Any trial lawyer knows that much advance prepara-

tion-is required for the .proper cross-examination of a

witness. Otherwise, ihe Confrontation ‘Clause of the

Sixth Amendment becomes emasculated.

In view of the foregoing, the provision in. in statute

“las to giving the Defendant reasonable time to examine

and prepare for the use of this material becomes ex-

; tremely significant. _This is particularly true in the in-

stant case where a* Motion for:a Bill of Particulars

was made prior to the trial, but said motion was never

ruled upon prior to the first day of trial.

When the matter was called to trial, the defense

pointed out to the Court that no Tuling had ever been

made. in connection with a Motion for a Bill of Par-

ticulars, and the Court then denied the motion without

comment. Fi

Thus. the defense was in a position where it had no

Bill of Particulars to assist: them in preparation for a

cross-examination, which made it even more necessary

to receive sufficient time for them to examine and pre-

pare for the use of the 3500 material. ;

The affidavit of Jeremiah Casselman. trial attorney

’ for Petitioner. pointed out that:

(1) He was promised copies of exhibits by the

- Government prior to trial:

(2) He never received ‘sald copies prior to trial:

~~:

e

—32—~

Q) He uuesied the 3500 material. | sige) to ?

trial and this request was refused:

(4) That i: was an “almost impossible task”

. to read and prepare for the use of the 3500 ma-

terial in the time he was permitted and to prepare ‘

for the cross-examination of the wiinesses; |

(5) That as a result, he could: not effectively

cross-examine the Government witnesses.

At’ differnt times during the trial, defense counsel

complained that they did not have .sufficient time to .

read the 3500 mat erial and. prepare for its use in

cross-examination. - , -

The following’ goto oquy took place at a side-bar con-

ference as set forth on pages 459-460 of the R.T.:

“MR. LaROSSA: I have not had an opportunity

to complete this 3500 material.

“THE COURT: I’m sorry, gentlemen. You have.

had long enough to complete this. You haven't

had that many witnesses to go over. Proceed with

your cross examination.

“MR. LAROSSA: Would your Honor pie me

to make a record of this

- “THE‘COURT: Make a record of it—

“MR. LAROSSA: I don’t know whether. you

know how much 3500 material we received. J

“THE COURT: I = what you have

received...

“MR. LAROSSA: . We’ received Yesterday é

would estimate somewhere in the area of seven:

hundred pages. I know from my own viewpoint I

; worked late into the evening until T could work

. no more. until this morning. as a matter of fact,

until this morning. going over everything and T

did not expect this witness to be on till the end.

WE UR rei Lo yr PR a eae FE PER ater aA sd

:

—33—

“THE COURT: Don’t you have. a witness left?

-“MR. NISSEN: Your Honor, counsel” has re-

ceived a list of witnesses Stating in order of their

appearance. I have advised: them that they will —

be appearing in that order, and they have been,

Sir, so they have been informed on the order of

witnesses, exhibit witnesses. “

“THE COURT: All right. You have made. your

- record. Proceed with your cross examination of

this witness.

“MR. CASSELMAN: Your Honor, may I also

point out that I.have had the same problem. I

_ worked’ until ei Diana 2:30 - last night on

the .3500 statement. | ey

“THE COURT: All right.”

| Despite these complaints of defense counsel,. the

| Court then required counsel to forthwith proceed with

their cross-examination of the next witness, Mr. Gor-

‘man.

Again at R.T. p. 582, Defendant Smith's ‘ome’

points out to the Court that he had to. stay .up until

2:30 a.m. that day reading the 3500 material.

It has often been stated: by Courts with respect to

discovery procedures that a lawsuit is not a game, and

that fairness to both sides is required to assure jus-

tice. To permit the Government. to withhold 3500 ma-

terial until the last possible moment, when it could have

‘been produced earlier, with the result that the defense

is unable to properly prepare for cross-examination.

results in an unconscionable advantage for the prose-

cution and correspondingly | results in a lack of Due

Process for the defense. and constitu'es reversible .

error.

me sae

5. Various. Errors Occurred at Trial Which Prejudiced

Petitioner’s. Right to a Fair Trial, as Well as His

Right to Due Process’ Under the Fifth ae

to the United. States Constitution.

* - A, Stine wile Prejudicial Conduct ~

j of the Government.

Considerations of time and space do not permit the

detailing of each and every example of misconduct

‘on the ‘part of the prosecution, Suffice it to say that a

simple | reading of the opening statement ‘and of the

argument to the jury by the prosecution shows many

illustrations of totally improper. remarks.

In the first instance, the record is replete with in-

stances in the Prosecutor's argument to the jury in

which alleged statements of fact and testimony of wit-

e nesses are totally unsupported by the evidence. In fact,

7 ~ in many instances the evidence is directly contrary to

that alleged by the Prosecutor in his argument. °

ai

The following, because of the pressures of time and

space, is necessarily only a partial (but Petitioner. be-

lieves more than. sufficient) list of instances in which

the Prosecutor argued alleged Statements of fact .and

testimony. of witnesses which was totally unsupported

by the evidence: | - |

1. Prosecutor alleged that George Henry testified

Tucker related a conversation to him in which Smith

told Tucker that. “they want me to sell it [ie., the

stock] because it is not guaranteed.” [R.T. p. 1028.]

In fact. Henry never so testified.

2. -Prosecutor alleged that George’ Henry testified

“Tucker says also to Henry that Smith is demanding

more money from the stock.” [R.T. p. 968. |

‘

tog » “e 2 GP fenton Re a ea ee AO SONG Rang inte tec

In fact, the only reference by Henry to Tucker’s tell-

ing him that anyone was demanding more money from. ,

the stock ‘sale, was to Leonard Frenchie, the repre-

sentatives of the People in California. [R.T. PP. 254-.

> 8

3. Prosecutor alleged that Benjamin Dodson testi-

fied Tucker told him, “I <haven’t collected at all. J

have this much from Greenberg and | gave Smith this

‘much and I haven't got the rest of it.” [R. T. P. 964.|°-

- In fact, Dobson never so testified. In the conversa-

tian that the Prosecutor had’ reference to, Tucker’ did

“not mention Smith; or even GreenbergDobson testified

that Tucker told him, “Well, he said that he paid every-

~ body everything he owed them, that he didn’t owe any-

body any money, that he hadn’t collected some money,

and he was waiving his arms about th e had paid

‘them all that he owed them.” |R. T. pp. 212-213. :.

4. Prosecutor argued to the jury that “It is not a

question of Leo and Frenchie having the stock and

“coming to New York with it. Dalton Smith came to New

York with it [i. e., the stock |.” [R.T. p. 1026. |

In fact, there was no evidence in the record ‘to: Sup-

port that statement.

5. Prosecutor asserted on ‘When Tucker carne out

_ with that piece of paper, the stock listed on it, and

gave it to Henry, he also later told Henry, as you will

rec that he had received the stock’ frem Tucker

[sic., Smith].” (Emphasis added.) bR.T. -pp. 1025: .

1026.]

While: the prosecutor mistakenly referred to Ticker .

receiving the stock certificates from “Tucker”, instead

\. of from Smith, there can-be litth doubt that within

the context of his argument on pages 1025- 1026 of ‘the

Beek, ee ; «

Reporter’s Transcript the Prosecutor meant, and the

jury understood. him to, mean, that Henry testified that.

Tucker told ‘him that he had just received ang stocks

from Defendant Smith. .

. In fact, that was a point covered rather carefully ‘in |

the testimony of George Henry. In this respect sages

teStified: . |

“@. “You do” sot.’ know whether or not Mr.

Smith was present at that point; isn’t that correct?

A. ‘Now, at which time?

Q. <When the stock was, brought to Mr. Tuck-

er. Sea |

‘A. I-did not see the stock physically .delivered

to Mr. Tucker. 7 saw Mr. Smith in the office im-

_= mediately prior to the time that Mr. Tucker told’

“me ‘that the’ stock was delivered to him.” (Em-

phasis added. ) Lae p. 409.] »

Again at R.T. p. 368, Henry testified:. |

“Q. When the stock was delivered, _ who

was present? :

A." The only—1 saw Mr. Dalton Smith shbough

Mr. Tucker’s: office door, ,and as I recall it, there

were. two, individuals whose bacKs were to me,

and I did aot know who they were, one of which ©

'. 1 said was identified by Mr. Tucker subsequent

to the meeting as an attorney -from New Orleans.

Q. Do you know as a matter of fact that that

stock was delivered at that time? |

A. I couldn’t swear to it. I wasn’t present at —

the meeting.

Q. You wre. not present when it was deliver-

ed?

A..2 No, sir.” ( Bmiphasis-added,)

ae

In short, Henry never testified that Tucker told him:

_ that Smith delivered the stocks to him.

6. Beosscasor also repeatedly alleged in his argu-

ment that the stock was “. . . forged while it was in

Dalton Smith’s possession.” |R.T. PP. 960, 1027. |

In faci, there was no evidence in: the record to sup-

port that assertion.

7. Prosecutor alleged that Ogul and Medlevine

called Smith on November 12, 1968 and told Smith,

“We got it.” And that on November 13, 1968 Smith

called Tucker ahd told him, “It is coming.” [R.T. pp.

966-967. |

Again, there was no evidence tO support such as-

sertions by the Prosecutor.

In spite of the foregoing, the United States govern-

ment asserted that in its. brief to the Ninth Circuit

Court of Appeals. the Trial Court's instructions to the

jury that the statements of counsel are not evidence, :

corrected the matter; and. even if they. didn’t, Defend-

ant Smith by failing. to object, waived his right’ to as-

sert these errors on appeal. (App. Br. p. 46.) Avstrik-

ingly similar arguinent was made by the U.S. Govern-

ment but rejected by the Circuit Court of Appeals in

the case of United. States v. Guajardo- Melendez, 401

F.2d 35 (7th Cir. 1968).

In that, case, the Court rejected the Government’s

contention that a statement by the Prosecutor. if his ,

_ argument which was totally unsupported by any evi-

dence to the effect that a co- -conspirator had -told ;

police agent that. defendant had been supplying a

with narcotics,, was obviated by the Trial Court’s in- .

"structions to the jury about the argument we counsel,

TORE NR ee

2"

band

a aa

and further that defendant’s failure to object consti-

tuted a waiver. The Court in reversing defendant's con-

viction stated in pertinent part: ,

“During his closing argument, an. advocate. is

permitted to make any comments which are sup-

ported by the evidence of record in the case. An

advocate is likewise within the bounds of pro-

priety in replying to an argument raised by his

Opposing advocate. United States v. Doyle, 234

F.2d 788 (7th Cir.) cert. denied, 352 U.S. 893,

77 S.Ct. 132, 1 L.Ed.2d 87 (1956).

. * *

“Neither a basis in the evidence nor appropriate

reply justified the assistant’ United States At-.

torney’s other comment., There was no evidence

that Soto had told Agent Jordan: that Hernandez

(and Santoya) were his source of narcotics supply.

Thus, the assistant United States Attorney's gratui-

tous statement that Agent Jordan had so testified

was untrue. Although the Government concedes

that the agent did not so testify,-it attempts to dis-

miss the import of counsel's Statement on the

grounds that it was inadvertent, that Soto did in

fact bring Jordan to Hernandex (and Santoya) to

consummate the transaction, and that the+ court

instructed the jury on four occasions to trust their

own recollection and not that of counsel. -

“We believe .that this statement was sufficient-

ly prejudicial to necessitate a new trial. What the

statement amounted to was ‘testimony’ of an al-

leged hearsay statement of a .guilty participant,

Soto, that incriminated Henandez (and Santoya)

in illegal activities. This gratuitous statement was

particularly damaging in that it conflicted with

a oe

Hernandez’ (and Santoya’s) testimony that they

were ‘innocent dupes’ who were doing Soto a

favor and were ignorant of the contents of the

_package which contained hereoin. Since Soto

did not testify at the trial neither Hernandez (nor ~

Santoya) could: cross-examine him about the al-

leged statement attributed’ to him. As a conse-

quence. Hernandez (and Santoya) were subjected

to a denial of their amendment right of

tion which could not be cured by instructions

jury. Bruton v. United States, got US. t23;

S.Ct. 1620, 20 L.Ed.2d 476 (May 20, 1968).

Moreover, the. asistant United States Attorney's

statement, coming as it did during his closing argu-

ment and lacking any evidentiary foundation. in

the testimony at the trial, made any attempt at

confrontation or argumentative reply impossible.

The Government argues that Hernandez (and

Santoya) neither objected nor moved for a mis- -

trial when the statement was made, thereby waiv-

ing - their objection. The Governmegnt’s waiver

point is not well’ taken because th _ Statement

amounted to plain error ‘affecting ' substantial

rights’ under Fed. R. Crim. P. 52 (b).” (Emphasis

added.) ‘United States y. Guajardo-Melendez,

supra at 39-41. -

In the instant case, unlike the Guajardo-Melendez ;

‘case, there was not Just “one “instance in which the

Prosecutor’s statements lacked any evidentiary founda--

tion in the testimony, but rather a a plethora of such in-

stances. In, all other respects, including the fact, that

most of these statements related to extra-judicial decla:

rations of co-conspirators who were: unavailable for

eS RC OE

oe, Ve

cross-examination,. the instant case is identical to the

situation in the Guajardo-Melendez case, and as such

required the reversal of Petitioner's judgment of con-—

viction. |

In addition to the aforesaid statements in the prose-

cutor’s argument which were totally unsupported by

any evidence, the prosecutor also made. highly. preju-

dicial and needlessly inflammatory remarks in his argu-

ment to the jury. The prosecutor made repeated refer-

ences to Joe DiCiccio, Johnny Masiello and thugs,

hoodlums and the like, even though he had previously

been admonished by the Trial Court that if he asked

one more question concerning Joe DiCiccio the Court

would declare a mistrial.

The ‘prosecutor also made reference to Joe DiCiccio’s

_ bribing the district attorney in New York, references to’

“threats”, “demands” and “crooks cutting up the pic”

and then in the ‘very next sentence makes reference to

Petitioner. as being “just what the evidence showed him

to be.” Nowhere did anyone in this trial ever ‘testify

that Petitioner Had anything to do with or even knew

Joe DeCiccio or anything to do with any attempt at

bribing any district attorney. The only “evidence” with

reference to Joe DeCiccio and the reference to bribing

the district attorney in’ New York had to do with the

dispute that arose between Tucker. and Greenberg. It

is respectfully submitted. that anyone who reads the

argument of the Government to the jury with reference -

to Petitioner will come’ to. the conclqsion that these

inflammatory, highly prejudicial and highly incorrect

Statements inflamed the passions and prejudice of. the

jury. For example, at page 969 of the R.T. the pros-

ecutor stated:

Fy

poner ees

“What did he do? Remember Joe DeCiccio, the

bodyguard of John Masiello, -according to Tucker.

Tucker tells people that ‘This is the bodyguard of

John Masiello.’ ” - |

What possible legitimate reason did the Government

have in referring to Joe DeCiccio at all, particularly

in view of the Court’s prior admonition in this connec-

tion, let alone referring to him twice in that one sen-

tence as being the bodyguard of John Masiello. a-no-

torious hoodlum. On that same page 969, the Govern-

ment stated: | at

“Mr. Henry, ‘by the way, is present with Tucker

and Joe D. when he hears Mr. DeCiccio tell

Tucker that he has obliga‘ed himself to a Brooklyn

detective to stall off the-investigation for the sum

of $8000 and he is complaining that that no good

Greenberg won’t pay the $8000, an Outrage.”

On the very-next page, |R.T. p. 970] the Government

quoted Tucker, according .to Mr. Lerner. as saying Joe

DeCiccio was “his umbrella”. -

What in the world could this possibly have.to do °

with this case or the charges against. Petitioner? It is

hearsay piled upon hearsay coming from people that

Petitioner had never met in his life. . . ,

The Ninth Circuit Court of Appeals in its decision *-

‘below did not make any reference whatsoever to Peti-

_tioner’s argument with respect to the prejudicial con-

duct of the Government, but evidentally rejected it out

of hand with the phrase “other points raised we find

insubstantial.” j

- Petitioner believes that the aforesaid point is sub- ”

-Stantial and that because of the aforesaid conduct of

the Government, Petitioner was denied his right to a

BSE Niet OIE

—42—

fair trial and to due process under the Fifth Amend-

ment. |

B. Bias and Hostility of the Trial Court.

~ The Trial Court throughout Petitioner's trial exhibited

an attitude of open hostility and obvious bias against

Petitioner's trial counsel, Mr. Jeremiah Casselman, and

unltimately, of course, against Petitioner himself.

' As every trial lawyer. knows, the open and continued

hostility of a Trial Court against a particular party’s

trial counsel (especially in a criminal case) is ulti-

mately accepted by an unsophisticated jury as some

reflection upon the merits of a party’s position. UI-

_timately, the hostility of the Trial Court is transferred

* in the jury’s minds, from the trial counsel to his client.

Because of the limitations of time and space, Peti-

tioner can only highlight the many instances of such

hostility at his trial.

Ll. Trial Court overruled Petitioner's objections. in

many instances without permitting counsel to even state F

the basis for his objections: i.e., Ss

(a) R.T. 299-301. Objection on redirect of Milli-

can. Casselman: “I don’t know whether the Court is

aware of what my grounds | for objection|: are.” Court:

“You have already stated them at the bench.” “This

is a completely cifferent objection.” Court: “Now, will.

you please sit down .

(b) R.T. 301. Redirect Millican. Casselman: “Does

the Court want to hear my grounds?” Court: I know

the grounds.. . . overruled.”

2. Trial Court overruled defense objections with-

out understanding them: i-e.. ee

(a) R.T. 113. Direct of Fildes. Objection re question

whether Fildes knew how Tucker apd Smith obtained

\

\ are

eo

—43—

stocks. Court : “Overruled. That is that you signed it.”

| sic | Witnesses: “No sir.”

3.. Trial Court failed to even ac cknowledge defense

objections at times: i.e,,

(a) R.T. 568. Direct of Greenberg. Casselman: “FE x-

Cuse me,: your Honor. I object to the word ‘they.’ ” No

ruling by Court 23 continued testimony and.by Green-

berg. Casselman: “My objection was overruled, sir?

Court: “Yes.” Testimony continued. |

4. Trial Court arbitrarily’ and erroneously tivattee

scope of defense counsel's examination of witnesses,

thereby limiting his effective conduct of the defense:

i.e., wis |

(a) On cross-examination. R.T. 316-317. Of Dob-

‘son. Casselman attempted to show Tucker involved in

. Obtaining guarantee bonds for State Fire and for which

Tucker received commission. Objection: by Government

as “irrelevant and outside scope of direct examination.”

~ Court:.“. ... sustained.” Casselman: “J will offer to con-

‘nect up. ” Court: “Objection sustained.” In spite of testi-

mony -of Dobson - that Smith said Tucker owed him

some money. /

.

(b) On direct examination. R.T. 862. 863. Of Bubis

Casselman: “Qn the 15th did you spend thetday with

Mr. Smith?” A. “I did.” Q..“. . . what were you

doing on. that date?” Objection, immaterial. Court:

“Sustained.” At the bench. Casselman: “J offer to prove .

that Mr: Smith was with Mr. Bubis. all. of. that day

where they went an hat they . did. That would pe

the 15th of Rea: .- . [I]t is critical testi-.

mony.” Court: “That is not ihe question you asked.”

Casselman: “What ‘did I ask him, your Honor?” “

Court: “I’m not going: to tell you | what you aoked J

Sustained the objection.”

*

5. + Trial Court by its comments and unwarranted

threats needlessly embarrassed and intimidated Cas-

selman, thereby seriously inhibiting* his effective. de-

fense of Petitioner: 1.e., at

(a) Bt. S71. Direct of Bubis., Court: “Are you

testifying, Mr. Casselman, or is this man testifying?” -

(b) R.T. 893. (Cross of Bubis) Trial Court took -

over in effect by cross-examination of only defense

wilness. Court: “Has that ever been the topic of con-

_versation as between you and Mr. Smith?” Casselman:

. Object to that . . . as to time and place . . .”

Court: “We can’t ask everything ‘all at once, Mr. Cas-

selman. (Emphasis added. ) a

~(c) R.T. 907. Cour: (To Casselman): “. . . |W |hen

I sustain an objection . . . I don’t want the next ques-

_ tion to ome back with axaatly the same question ex- |

cept in a different form . . » Don’t you ever do that

again in this courtroom oF yore are. going to end up

in jail~(Emphasis added.) ~

6. Trial Court committed reversible error when it,

in effect, told the jury to disregard the testimony of

the only defense witness (Bubis): i.e.,

(a) R.T. 876-877. Bubis direct. Court: “Mr. Céak

man, I have already.admonished you about repeating

the testimony of witnesses. The jury has heard it.

take it that, like the Court, it doesn’t impress them to:

hear it a second time.” (Emphasis added. ) |

The ultimate result of the Trial Court’s open hostility

-and obvious: bias.“ was to impede Mr. Casselman ‘jin

properly performing his duties as defense counsel, and

had the further effect of unjustifiably prejudicing the.

jury against Petitioner. All of which created an at-

cai FY ADRES Alin RR te ee lw Ss aT ALS. 8

—45—

mosphere in- which Petitioner could not, and did’ not,

receive a Fair Trial.

Again the Ninth Circuit did not touch upon ‘this

-.. issue in its, opinion ‘below, but merely stated that

“other points raised we find insubstantial.”

“Again Petitioner urges that this is not an insubstan-

tial issue and respectfully submits that. the aforesaid

bias and _hostitif¥ Of the Trial Court taken together |

‘with: the prejudicial conduct of the prosecutor, were

’ more than sufficient’ to deprive Petitioner of his right

to a fair trial and due process.

Cc. There Was Insufficient Competent Evidence to

Sustain Petitioner’s Judgment of Conviction.

It is, of course, elemental: that the Government must

prove: the COrpus -delicti of. a crime before there can

be a conviction. It is equally basic that the corpus’

delicti cannot be proven solely Ay the extra-judicial

statements of a defendant made after the commission

of the crime. There must be substantial independent

evidence that a crime has been committed without look-

ing to the defendant’s extra-judicial: statements. Gay v..

United States (1969) 408 F.2d 923: United States ¥.

Echeles (1955) 22°F.2d 144. The phrase “corpus de-

licti” includes first, the fact of an injury or a loss and

secondly, the fact of somebody’s criminality as to the

cause of, the injury or loss. United States v. Echeles.

supra. It also generally means that a specific crime. °

charged has actually been committed by someone.

Vote v: United States (1946) 156'F.2d 308.

There must be sufficient competent evidence to sus-

tain a judement of conviction for violating. 18 U.S.C. -

$§2314 and 2315; and if there. is not, such a judgment ;

—46—

must be reversed. United States v. Braico (1970) 422

F.2d 543, cert. denied 398 U.S.912, :

In the instant case, it is submitted, there is insuf-

ficient competent evidence to sustain Petitioner's judg-

.ment of conviction. . |

(i) There Was. Insufficient Competent Evidence to

Prove That the Stock cals ucasteal in Question

- Had Been Stolen.

- All of the counts of the indictment refer ‘to- “stolen”

stock certificates. /t: necessarily follows that it was in-

cumbent upon the Govérnment to prove that the certif-

icates were, in fact, stolen, or its case must fall on this

point alone and a jugdment of acquittal: should be

rendered. No such evidence was ever introduced. °

To prove that the stock certificates were in fact

stolen the Government called Roy Fildes, Janet Vincent,

Barbara McLain, Saeed Behshid, William Guckes, Wil-

liam Thompson and Mawrence Sloan.

Roy Fildes only testified as to the ‘dates ‘of death of .

his mother and brother, Glen Fildes; the-fact that

sometime “prior” to his brother’s death, his brother

was in possession of “certain” stock certificates of Coca

Cola Bottling Company, Farmers ‘Underwriting, Gen-

eral Telephone and Telegraph and Truck Underwrit-

ers; that after his brother's “death, he unsuccessfully —

searched for those stock certificates; and that the signa-

- tures on the reverse side of Exhibits 1. 2, 3 and 4

(stock certificates) were not his or his mother’s.

_ Fildes was then asked the following question:

“By Mr. Nissen: Q. Mr. Fildes. are you aware of

any agreement, document or oral understanding :

by which these. stocks could have come, into the

possession of Mr. Tucker or Mr. Smith?

o~

‘

a.

Mr. LaRossa: Objection.

The Court: The objection is overruled. * That is

that, you signed it. (me)

The Witness: No sir.’

It is urged that the question itself is highly objec-

tionable. It calls:for a conclusion of the witness and

calls for pure speculation. There was no foundation

laid. showing that the .witness was entitled to make

tenga ayes mn at

any such conclusion, ‘and therefore, the objection Should -

have been . sustained.

However, ‘whether the objection was Sustained or not,

“it is really moot. The witness was never asked if he

knew if. there was any document or. understanding

-by which the stock certificates’ could have come into

the possession’ of Mr. Ogul or Mr. Medlevine. The

‘question. quoted above only referred to Tucker and

Smith. The witness was -never asked if he. knew

how the certificates came into the posséssion of Ogul or

Medlevine. It is this possession that goes to the heart,

of the’ case. since the Government at all times argued

to. the. jury that Ogul and Medlevine . had stolen the .

stock. ; Z

Nor. was he ever asked if Exhibits i, 2, 3, and 4

were the same stock certificates that the witness was

referring to When he was asked if his brother had “cer-

tain certificates” in his possession “prior” to his death.

For all we know, they may have been totally - different

Certificates. For all we know. Mr. Ogul or Mr. Medle-

vine may have come into possession of these certificatés

in a perfectly legitixfate manner. There is certainly no

evidence that cither Ogul or Medlevine stole the stock

certificates despite the Opening statement of the Gov-

IY ALB

—14g—

ernment to this effect, and the argument of the Govern- |

ment to the jury to this effect.

Janet Vincent merely tesiified to the fact thai she was

the attorney representing the Estate of .Glen Fildes,

made a search for “certain stock certificates” and

failed to find them; wrote tothe transfer agents and

was informed that “these stocks”. had been trans-

+ ferred. | :

Aas. it must be noted that she never identified.any

particular stock certificates. She never identified Ex-

‘hibits 1, 2, 3, or 4 as being in the possession of the

decedent. She never testified that decedent had owned

ary particular stock or any stock at all. The essence

of her testimony was simply that she participated in a |

search for “certain stock certificates”, which certificates

were never identified.

William Thompson nied test stified that he partici-

pated in a search of Glen Fildes’ ( his cousin) house,

car and effects and that he did not come across any

stock certificates in that search. :

Again, this witness never identified any certificates

and the essence of his testimony was simply that he

searched the house and car and found no certificates.

Barbara McLain, Saeed Behshid and William Guckes

merely testified that they were transfer agents for the .

various stocks contained in Exhibits 1, 2, 3, and 4;

and that they_received said ‘stocks in the ordinary

course of their busifess as transfer agents.

Again, there was no testimony by any of these wit-

nesses that the said stocks were stolen.

Laurence Sloan. the examiner of questioned docu-

ments merely testified that he had compared the sig-

*

é

a oe

nature of Mrs. Fildes and her two sons on the backs

of “the various stock certificates” with the signatures

on the check _exemplars, which are Exhibits 6, 7 ‘and

8. That the person who wrote the signature of Mr.

Fildes on fp reverse side of the stock certificates, Ex-

hibits 1, , and 4, was not the, maker of the check

which is plod 7. That the person who wrote -Roy

Fildes on: Exhibits’ 1, 2, and 4, was not the same per-

son who wrote the name on the checks in Exhibit 6.

That the person who wrote the name Glen Fildes on

Exhibits 1, 2, 3 and 4, is not the person who wrote

the checks as maker in Exhibit 8. That it appeared

that whoever wrote the signature of Glen Fildes on the

“various stock certificates” appeared to have had at

her or his disposition «writing of Glen Fildes; and at-

temptéd to assume the general writing style and char-

_ acteristics of Glen Fildes. That there was a great deal

of similarity between the two groups of writings. That

it did not appear that the person who wrote the Glen

Fildes signature on Exhibit 8 is the same person who °

wrote the Mayme Fildes signatures on the exhibits

which are contained in the: stock certificates: that these

were two different kinds of writing.

- The foregoing testimony contains the entire effort by

the Government to prove that the stock certificates were |

stolen. Therefore, not only was the record completely .

devoid of any rears to show that the stock certifi-

cates, Exhibits 1, 3 and 4, were stolen. but there

wasn’t even any snopes identification that the stock

certificates referred to by Roy Fildes were the certifi-.

cates represented by Exhibits 1. 2..3 and 4.

Absent such proof that the certificates were stolen.

as alleged in the indictment. the entire case of the

Government fails.

—50—

(ii) There Was Insufficient Competent Evidence to

Prove That There Was a Conspiracy and That

Petitioner Participated Therein; or That in’ Fact

_ Any Crime Had Been -€ ommiited.

. It was incumbent upon the jury to find from inde-

pendent evidence (i.e. other than the extra-judicial

statements of alléged co-conspirators ) that there was 4

‘conspiracy and ‘that Petitioner participated therein prior

to its considering the extra-judicial statements of ‘alleged

co-conspirators.

In the ‘instant case, if you eliminate the _so-calied

statements or admissions of the alleged co-conspirators,

you simply do not have any substantial independent

evidence whatsoever as to the commission of any crime,

including conspiracy.

In this connection, it should be noted that the Court.

charged the jury, inter alia, as follows;

“The obiects of the conspiracy were as follows:

defendants would obtain securities which had been -

stolen’. . .” [R.T. pp. 1037-1038. |

In addition, the other charges to the jury, all had

reference to “stolen’ stock certificates, with reference to

the crimes being charged against the defendants.

Certainly, no One could look at the evidence in this

case and say that it showed beyond a reasonable doubt

that any stock certificates had been stolen. -

On page 1052, R.T. lines 12 through 15, the Court

charged the jury as follows: °

“That is to say, the membership of the defendant,,

or any other person, in a conspiracy, must be es-_

tablished by the evidence in the case as to his

own. conduct, what he himself wilfully said or

did.” | a

a:

Ts

ssi

It-is to be noted that- what, in effect, the Court is

telling the jury here is that the jury could find the per- -

son was part of a conspiracy based upon what that

particular person himself said. This completely. ignores

the rules set forth hereinabove that the corpus delecti _

of the crime of conspiracy must be proven by substan-

_ tial independent evidence and cannot be proved solely

by the extra-judicial statements of defendants.

On. page 1060 of R.T., lines 3 through 73 the Court |

charged the jury as follows:

~ “Unless otherwise instructed _ in i _deteripieing the

~~~ issue of the intent,<the jury is entitled to consider

any statements made and acts done or omitted by

the accused, and all facts and Circumstances in

the case which may aid. in determination of state

of mind.”

is instruction is extremely ambiguous and could

only

The- charge tells them they may consider any state-

ments made by - “the accused” which may very well

mean the four individuals accused i In the indictment.

Although the Court told the jury ‘they could consider

any of the statements made ly any of “the accused”,

‘the Court failed to give any ifstruction as to how the

testimony of an alleged accomplice should be consid-

ered and that it must be viewed with caution. The

Court must instruct as to how accomplice testimony

- should be considered.

Butler v. US., 408 F.2d 1103 (C.A. OKI. 1969).

On page 1059 of the R.T. lines 21 through 22. the *

Court charged the jury as follows: :

“In considering the proof of intent. circumstantial Sh

| evidence may be. used.”

ave caused confusion in the minds-of the- jury.

a.

Hdwever, the Court failed to instruct the jury that

where -a case is based upon circumstantial evidence,

as in the instant case, the inferences to be drawn’ from

the evidence must not only be consistent with guilt, but

must be inconsistent with every reasonable io alo

of innocence. f

Fitzpatrick v. United States, 410 Fae 513

(C.C. Ala. 1969);

Hale v. United States, 410 F.2d 147 — A. be

1969).

In spite of Petitioner's foregoing argument, the

Ninth Circuit Court of Appeals found that “[t|he evi-

‘dence was abundant and the jury: made no mistake.”

Petitioner believes that the Ninth Circuit erred in this .

' determination and, respectfully requests that this Hon-

orable Court grant this Petition and review the decision

of the Ninth Circuit Court of Appeals on this issue.

,

Conciusion. -

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Ninth

- Circuit Court of Appeals. Fateh

August 13, 1971.

Respectfully submitted,

ARTHUR J. CROWLEY

Attorney for Petitioner.

.

*

ao

‘ “«

e

j

a APPENDIX A.

Opinion of the Court of Appeal for the Ninth Circuit.

United States of America, Plaintiff and Appellee, VS.

Dalton Carl Smith, Appellant. No. 71-1389.

On Appeal from’ the United States District ee for

the Central District -of California.

Filed: July 20, 1971.

Before: -CHAMBERS and HUFSTEDLER, Circuit

Judges, ‘and SCHWARTZ, district saa

Per curiam:

° ae

The conviction in this case involving . stolen and

forged securities is affirmed.

It is said there should have been a severance of- the.

. Substantive and conspiracy counts. No motion for a sev-

erance is in the recoxd.

There is a point about Bruton v. United States, 391

“U.S. 123. This. is not a Bruton case. United States: v.

Griffin (9 Cir.. 1970), 434. F.2d 978, -is appli-

cable.”. . * ye . -

Objection is made that when certain statements of co-

conspirators: Were admitted in evidence the conspiracy

hadn’t been proved. In this case we find this to’ be only

a question of order of proof within the trial ‘court’s

discretion. See United States v. Knight’ (9 Cir. 1969).

416 F. 2d 1181.

There is no merit to the contention that there was.

- insufficient evidence. The evidence was abundant and

the j jury made no mistake.

Other points raised we find insubstantial.

The sence will issue now.

United States Court of Feige for ‘the Ninth Cir- .

Cuil.

— 8 eee

.

APPENDIX B.

Judgment and Commitment of the District Court.

United States District Court, for the Central District

of California.

United States of America v. Dalton Carl Smith. No.

_ 6573-Criminal.

On this Ist day of March-t97 came the attorney

for the government and the defendant appeared in

person by his retained counsel, Arthur Crowley.

, It Is Adjudged that the defendant upon his plea of

Not Guilty and verdicts of guilty, has been convicted -

of the offenses of Conspiracy, in violation of 18 USC

$371, as.charged in Count | of the indictment; Inter-

state Transportation and Receiving of Stolen. and

Forged Securities, in violation of 18 USC §2314, as

charged in Counts 2, 13° 14,°15, 16, 17, 18, 19, and

20 of. the indictment; and Sale or Receipt of Stolen

- Goods, in violation of 18 USC §2315, as charged in

. Counts 5, 6, 7, 8, 9, 10, 1, and 12 of the indictment,

and the court having «asked the defendant whether ke

has ‘anything to say why judgment should not be pro-

nounced, and no sufficient cause to ‘the contrary being

shown or appearing to the Caurt,

It Is Adjudged that the defendant is guilty =

charged and convicted.

It Is Adjudged that the defendant is ee com-

mitted te the custody of the Attorney General or his

authorized representative for imprisonment for the max-

imum period authorized by law) and for study pur- —

suant to 18 USC §$4208(c), the results of such study to

be furnished this Court within 3 months or any ad-

ditional time granted by the Court, whereup6n the de-

fendant shail be returned «to: this Court and the sen-

tence’ of impr’ isonmeni herein imposed shall be subject

to modification, pursuant io 18 USC $4208(b). fF

It is « Adjudg ed tha: ‘he sentence herein imposed is.

imposed. on each of Counts ‘1, 2 and .5 through 20,

such senienc: io run concurrenily.

It Is ‘Ordered , vat the Clerk deliver a certified copy

of: this judgmen: Ynd commitment to the United States

Marshal or other qualified officer and that the copy

Serve as the compitment « of the defendant. .

. #s/, Manuel L. Real

‘MANDEL.L. REAL,

United States District Judge

/s/ David-M. Homsy ..

By David M. Homs¢

>

Filed: March 1, 197k.

Emory G. Hatchier, Clerk.