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

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MEMEO EE Ie CPN?

nov i2 1971

FE. ROS Unf ScAYER, CLERK

IN THE

Supreme Comt of the United States

Octoser TrRM, 1971

No. ..

a @W1- 656 :

Joun AnTHONY MASIELLO,

Joun A. Mastct1o, JR.,

Petitioners,

—V.—

Unrrep States oF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SamvueEL DasH

Georgetown University

Law Center

600 New Jersey Ave., N.W.

Washington, D. C. 20001

Attorney for Petitioners

Opinions Below ....... ...

Jurisdiction ...

Constitutionai and Statutory Provisions Involved ........ 2

Questions Presented ...................-. 2

Statement of the Case ................... a ce

Reasons for Granting the Writ ........... on 12

I. Where the Government Conducted a Half-Year’s

Investigation of the Accused, Resulting in a De-

tailed 19 Count Indictment, Providing Specific

and Particular Information Concerning the Few

Checks Relevant to the Indictment Charges, the

Government’s Subsequent Warrantless General

Seizure of a Mass of Nearly 20,000 Cancelled

Business Checks From the Accused’s Business

Offices as an Incident to the Arrest of an Indicted

Defendant Found on the Premises Violated the

Accused’s Fourth Amendment Rights, Especially

When the Government Prearranged at the Time

of the Indictment to Not Obtain a Search War-

rant, But to Obtain Arrest Warrants, Instead,

and Make a Search and Seizure of the Accused’s

Business Records Incident to Any Arrest of an

Indicted Defendant They Might Be Able to Make

at the Business Premises a 13

If.

ITI.

CoNCLUSION

PAGE

a

Under Fourth Amendment Requirements, in a ~

Warrantless Search Incident to a Lawful Arrest,

Government Agents May Only Seize Evidence of

Crime and Not Likely Sources of Admissible

Evidence as Held by the Court of Appeals ........

he Court of Appeals Denied Petitioners Due

Process and the Effective Assistance of Counsel

When, After Ordering a Remand Hearing on the

Principal Appellate Issue of the Denial of Peti-

tioners’ Pre-Trial Motion to Suppress Evidence,

It Failed to Review the New and Relevant Evi-

dence Produced at the Remand Hearing and

When It Failed to Give Petitioners’ Counsel the

Opportunity to Expand the Record on Appeal

on the Basis of the Remand Evidentiary Hearing

and Present Additional Argument Relevant to

the New Record Before Making Its Decision

on the Merits of the Appeal ...

Appenpix A—Opinion of the United States Court of

Appeals Dated October 28, 1970 -..........

Appenpix B—Opinion of the United States Court of

Appeals Dated July 21, 1971

Appenpix C—Order of the United States Court of

Appeals

Appenpix D—Constitutional and Statutory Provisions

Involved. ............-..---

23

27

32

la

5a

8a

ili

TABLE OF AUTHORITIES

PAGE

Cases:

Agnello v. United States, 269 U.S. 20 (1925) —.000. 15

Barnard v. United States, 342 F.2d 309 (9 Cir. 1965) .. 29

Berger v. New York, 388 U.S. 4i (1967) 20

Boyd v. United States, 116 U.S. 616 (1886) ; 24

Caroll v. United States, 267 U.S. 132 (1925) 15

Chimel v. California, 395 U.S. 752 (1969) ........ 13, 15, 16, 18

Clarke v. Neil, 427 F.2d 1322 (6 Cir. 1970) 0... 26

Cole v. Arkansas, 333 U.S. 196 (1947) 30

Coolidge v. New Hampshire, U.S. ——, 29 L. Ed.

2d 564, 91 S. Ct. 2022 (1971) 14, 15, 18

Douglas v. United States, 239 F.2d 52 (D.C. Cir. 1957) 29

Draper v. United States, 358 U.S. 307 (1959) _...... 16-17

Escobedo vy. Illinois, 378 U.S. 478 (1964) -....00.... 16

Frank v. Mangum, 237 U.S. 309 (1914) —...022 30

Frazier v. Cupp, Warden, 394 U.S. 731 (1968) -............. 26

Fuller v. United States, 407 F.2d 1199 (D.C. Cir. 1967) 26

Gouled v. United States, 255 U.S. 298 (1921) —2... 24, 25

Harris v. United States, 331 U.S. 145 (1947) —...2.. 16

Hemphill v. United States, 402 F.2d 187 (D.C. Cir.

a pr eromnen nn ixeeente? ‘ 29

Henderson v. United States, 425 F.2d 134 (5 Cir. 1970) 29

Hill v. California, U.S. ——, 28 L. Ed. 2d 484, 91

S. Ct. 1106 (1971) on 14, 16, 26

\

iv

PAGE

Katz v. United States, 389 U.S. 347 (1967) -....-..------------ 14

Kremen v. United States, 353 U.S. 346 (1957) -........--- 14

Marron v. United States, 275 U.S. 192 (1927) .........--- 15, 16

Massiah v. United States, 377 U.S. 201 IIE sanrsckcsiccsnii 16

McDonald v. United States, 335 U.S. 451 (1948) ........ 14

McKnight v. United States, 183 F.2d 977 (D.C. Cir.

1950) ..n.eesescsccscesesceeesesseenessnsseceseneessnsesensnecseatesensnsnsenanatesectnes 21

Schmerber v. United States, 384 U.S. 757 (1966) ........ 17

Shorey v. Warden, 401 F.2d 474 (4 Cir. NI cctisckcsioia 26

Stanley v. Georgia, 394 U.S. 557 (1968) -......-..------------- 26

Stone v. United States, 385 F.2d 713 (10 Cir. 1967) .... 26

United States v. Alloway, 397 F.2d 105 (6 Cir: 1968) .. 26

United States v. Bennett, 409 F.2d 885 (2 Cir. 1969) ..25, 26

United States v. Lefkowitz, 285 U.S. 452 (1931) -....... 22

United States v. MeKendrick, 409 F.2d 181 (2 Cir.

1969) ........- set igsedt pus enscraceeinaaneannnies 26

United States v. Rabinowitz, 339 U.S. 56 (1949) ........ 17, 18

Vale v. Louisiana, 399 U.S. 30 (1970) ........-----------------++ 17,18

Warden v. Hayd2n, 387 U.S. 294 (1967) ...........----. 14, 15, 20,

24, 25, 27

William. v. United States, —— U.S. ——, 28 L. Ed.

2d 388, 91 S. Ct. 1148 (1971) -.. ‘a 14

Constitutional Provisions:

United States Constitution

Fourth Amendment .... pecenenntaivins 2, 3, 12, 13, 14, 16,

20, 23, 24, 28, 30

Fifth Amendment ..... eee 2, 3, 12, 16, 31

Sixth Amendment spisabeeasauaal 2, 3, 12, 16, 30, 31

_v

PAGE

Statutes:

18 U.S.C. §201(b) ........... ae 2, 4

18 U.S.C. $371 Ss

18 U.S.C. $3231 2

28 U.S.C. §$1254(1) ...... 9

Rule:

Federal Rules of Appellate Procedure, Rule 11 ............ 30

|

IN THE

Supreme Court of the United States

Ocroser Term, 1971

A miedibesadaass

Joun Antony MAsIrEL1o,

Jouy A. Maste1o, Jr.,

Petitioners,

—V. -=

Usrrep States or America,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for

the Second Circuit affirming their criminal convictions.

OPINIONS BELOW

The first opiniun of the Court of Appeals remanding to

the United States District Court for the Southern District

of Nev, Yorx is reported at 434 F.2d 33. The second opin-

ion of the Court of Appeals affirming the judgment of the

District Court is reported at 445 F.2d 1324.

JURISDICTION

The first opinion of the Court of Appeals remanding

to the District Court was filed October 28, 1970, and is set

forth in Appendix A. The second opinion of the Court of

Appeals, affirming the judgment of the District Court, was

filed July 21, 1971. This opinion is set forth in Appendix B.

The Court of Appeals denied a petition for rehearing and

rehearing en bane on September 16, 1971; its orders are set

forth in Appendix C. The time for filing of this petition

was extended until November 15, 1971 by order of Justice

Marshall, entered October 13, 1971.

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254(1). The jurisdiction of the District Court was based

on 18 U.S.C. $3231.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

(1) The Fourth, Fifth, and Sixth Amendments to the

United States Constitution.

(2) 18 U.S.C. §$§371 and 201(b).

These provisions are set forth in Appendix D to this

Petition.

QUESTIONS PRESENTED

1. Whether a warrantless general seizure by federal

government agents of nearly 20,000 cancelled corporation

checks from an accused’s corporation offices on the basis

of a search incident to the lawful arrest of a corporation

employee found on the premises is violative of accused’s

Fourth Amendment rights when:

3

(a) prior to the search and seizure the government has

completed a half-year’s investigation of the accused and

obtained a detailed 19-count indictment against the accused

and others, including the arrested corporation employee,

providing the government with particular descriptions of

the five or six specifie checks constituting the principal

evidence supporting the charges in the indictment involv-

ing check payments, and when

(b) after the indictment is returned, despite their ability

to particularly describe the few checks supporting the

charges in the indictment, federal agents, acting under the

supervision of an assistant United States attorney, choose

not to apply for a search warrant, but obtain only arrest

warrants and go to accused’s business offices with a pre-

arranged plan to conduct a search as an incident to any

lawful arrest they might be able to make within the

premises?

2. Whether an accused’s Fourth Amendment rights are

violated when a mass of 20,000 cancelled corporation

checks, not identified on inspection by government agents

as evidence of crime, are seized without a search warrant

in aceused’s corporation offices by the agents a3 a likely

source of admissible evidence of crime, incident to a lawful

arrest of a corporation employee made on the premises?

3. Whether an accused’s Fifth and Sixth Amendment

rights are violated when a Court of Appeals after ordering

a remand evidentiary hearing on the government’s conduct

in a search and seizure of accused’s records, which pro-

duces an extensive new record of relevant credible evi-

dence, fails to review this new evidence and does not afford

defense an opportunity to expand the record on appeal,

4

based on the remand evidentiary hearing, and to present

additional argument, orally or by brief, before making its

decision on the appeal and filing its opinion affirming the

conviction based solely on a misleading and incomplete re-

port of the remand hearing judge?

STATEMENT OF THE CASE

Petitioners, father and son, were each convicted of

one count of conspiracy to violate 18 U.S.C. §201(b)

which prohibits bribery of public officials. Petitioner John

Anthony Masiello was also convicted of six counts of

violating 18 U.S.C. §201(b) and Petitioner John A. Masi-

ello, Jr. was corvicted of three counts of violating 18 U.S.C.

§201(b). Petitioner John Anthony Masiello was sentenced

to terms of five years imprisonment on each count to run

concurrently and to pay a fine in the sum of $15,000.00.

Petitioner John A. Masiello, Jr. was sentenced to terms

of imprisonment of 3 years on each count to run concur-

rently and to pay a fine in the sum of $5,000.00. Petitioners

were tried jointly with the A.N.R. Leasing Corporation,

in which they were stockholders, severances having been

granted to Thomas A. McKeever, Isadore Kihl, Joseph A.

Maisto and Michael Albanese, listed as defendants in the

indictment. Another defendant named in the indictment,

Andrew Daly, withdrew his plea of not guilty, and entered

a plea of guilty to one count of conspiracy, and was sen-

tenced to two years probation and a fine in the sum of

$1,050.00.

Defendants Kihl, Daly, Maisto and Albanese were fed-

eral postal officials holding various supervisory positions

in the Motor Vehicle Operations Unit which concerned

itself with the movement of the mails by vehicle services

5

to various areas of the City of New York. (Tr. 28, 64, 71)?

The Petitioners and defendant McKeever through the

A.N.R. Corporation held contracts with the Motor Vehicle

Operations Unit for the leasing of trucks and trailers to

this unit. In essence the prosecution alleged a conspiracy

by these seven men and the corporation to give and re-

ceive bribes in the form of cash payments, free Floridag,

hotel vacations and other gifts for the purpose of assuring

that Petitioners’ corporation would receive special favors

and keep its leasing contracts with the post office.

The most significant documented evidence relating to

the conspiracy and bribery charges against Petitioners in-

volved the payment of Florida hotel bills for Kihl, Maisto

and Albanese by checks of the A.N.R. Corporation and

another related corporation at the instance of Petitioners

and a downpayment on an automobile for another postal

official of the Motor Vehicle Operations Unit, Michael

Dimasi,? by means of a check of the A.N.R. Corporation

signed by John A. Masiello, Jr These cancelled checks

(Gov. Exs. 8, 9, 10, 11 and 12; Tr. 173, 185) were intro-

duced in evidence against Petitioners over defense objec-

‘In this Statement of the Case references to the trial transcript

are cited as “Tr. __”. References to the first opinion of the

Court of Appeals are cited as“OA. ” and to the second opinion

of the Court of Appeals as “OR. ”. References to the remand

evidentiary hearing in the Distriet Court are cited as |

* Dimasi was not named in the indictment as a defendant and

the indictment included no reference to this payment.

* The government relied principally on the testimony of Michael

Daley and representatives from the Florida hotel and the auto-

mobile agency which sold Dimasi's ear. Daley was indicted as a

co-conspirator and had pled guilty, receiving a sentence of two

years probation. Thus, he was a corrupt source of evidence and

hichly suspect as a reliable witness. The other Witnesses could pro-

duce only circumstantial evidence. The checks, themselves, how-

ever, were the most damaging evidence against Petitioners since

they directly established the payments charged in the indictment.

6

tion on the ground that they were the subject of an illegal

search and seizure. (Tr. 174). They had been included

among 20,000 cancelled business checks seized en mass

without a warrant, on March 19, 1969, and carried away

by government agents from the offices of A.N.R. Corpo-

ration (Tr. 174; R.H. 34-36, 108). This seizure was made

es an incident to the lawful arrest of McKeever, an

employee of A.N.R. Corporation, who had entered the

business premises shortly before the government agents

conducted their raid (R.H. 200).

A pre-trial motion to suppress the seized evidence was

denied by District Judge Palmieri without a hearing on

July 1, 1969 (OA. 3a). On the basis of an affidavit pre-

sented by Petitioners describing the nature and scope of

the search and seizure to the Court of Appeals, on appeal

from the conviction, the Court of Appeals remanded the

ease to the District Court for an evidentiary hearing on

the motion to suppress and a report back to it, while it

continued to retain jurisdiction over the appeal. (OA. 4a)

On February 19 and 22, 1971 the remand hearing on

the motion to suppress was held by the District Court

trial judge producing a transcript of 245 typewritten

pages. After the hearing the District trial judge filed a

report opinion which in effect reaffirmed the denial of

Petitioners’ motion to suppress the evidence. United States

v. Masiello, et al., 330 F. Supp. 1269 (S.D.N.Y. 1971).

This report was filed, June 22, 1971, in the Court of Ap-

peals. The Court of Appeals affirmed Petitioners’ convic-

tions on July 21, 1971 on the basis of the report (OB. 5a-7a)

without affording defense counsel an opportunity to file

with it the expanded record created by the remand evi-

dentiary hearing and to present arguments, either orally

7

or by brief, against the position taken by the District Court

based on the expanded record.

The Court of Appeals acted unilaterally upon the receipt

of the report of the District Court, without having before

it the new factual record provided by the remand hearing

it, itself, had ordered.* Yet the facts uncovered by this re-

mand hearing are the very crux of this Petition.

On the basis solely of the testimony of the government

witnesses, who were credited by the District trial judge,°

the remand hearing revealed the following pertinent facts

which were substantially ignored in the report which the

District Court filed with the Court of Appeals.

The arrest of McKeever in the offices of the A.N.R. Leas-

ing Corporation, which was used by the government agents

as a basis -¢ seize without a warrant the 20,000 cancelled

checks, took place after a lengthy and careful government

investigation of Petitioners, McKeever, and a number of

federal postal officials, lasting at least six months, and after

the United States Attorney, as a result of this investigation,

had accumulated sufficient evidence, both testimonial and

documentary, to obtain on March 19, 1969, a 19-count de-

tailed indictment charging Petitioners and others with con-

spiracy and bribery.* (R.H. 7, 8, 17, 28).

* The docket entries in the Court of Appeals record only the filing

of the report of the District Court judge and not the transcript of

the remand hearing.

* This Petition relies only on the government’s testimony at the

remand hearing consistent with the District Court’s finding only

the government witnesses to be eredille and the reliance of the

Court of Appeals on the District Court's determination of the

credibility of witnesses. In the one exception where defense testi-

mony is referred to, this testimony only supplemented the govern-

ment testimony and is not in conflict with it.

® Petitioners were actually tried on another indictrent obtained

subsequent to the search of Petitioners’ business offices. Although

8

During the course of the six month investigation leading

up to the indictment, -sovernment agents had obtained com-

plete and particular knowledge of all the check payments

from Petitioners’ business operation made for the benefit

of specific...iy identified federal postal officials. These par-

ticular check payments were the subject of individual counts

in the indictment and constituted the only evidence of check

payments presented at the trial. These payments, which

constituted the most damaging evidence against Petitioners,

related to the Miami Beach, Florida hotel bills for three

postal officers, defendants Kihl, Maisto, and Albanese and

to the downpayment for an automobile for another postal

official, Michael Dimasi.

Concerning the hotel bills, government agents had ob-

tained, prior to the indictment, records of these transactions

from the Montmartre Hotel in Miami Beach, Florida, the

location of the vacation visits of the three postal officials.

The government’s principal witness at the remand hearing,

Postal Inspector O’Neil, specifically admitted this fact in

replying to the Assistant United States Attorney’s ques-

tions on direct examination:

“Q. And prior to March 19, 1969 [the date of the

first indictment], had you checked with the Mont-

martre Hotel in Florida with respect to any such

payments? A. Yes.

“Q. And had you obtained records from them relat-

ing to visits by people named Kihl, Maisto and Alba-

nese to the Montmartre Hotel, which had been paid

by A.N.R. or a related company? A. Yes.” (R.H. 17,

18) |

this indictment contained additional counts, it was not the product

of any new evidence obtained as a result of the search. The first

indictment was just as specific concerning the information pos-

sessed by the government prior to the search and seizure challenged

by Petitioners. (R.H. 67, 68)

9

As early as January, 1969, two months before the indici-

ment, government investigators had visited the Montmartre

Hote! in Florida and had inspected the exact hotel records

concerning the visits of Kihl, Maisto and Albanese and

the payments of their hotel bills. They had arranged for

the hotel to send xerox copies of these records to the postai

authorities in New York conducting the investigation.

Postal Inspector O’Neil supplied this information during

his cross examination as follows:

“Q. Somebody from your department had gone and

visited the Montmartre Hotel, right? A. Yes, sir.

“Q. And they came back with xerox copies of the

records of the Montmartre Hotel? A. No. I think

they mailed them back to me.

“Q. When were they in your possession prior to

March 19, 1969? A. Definitely prior to March 19, 1969.

I can’t give the exact date but several months prior

to that time.

I really think we had them in January of 1969

because there was a great commotion about inspectors

going to llorida in the winter time, so I am pretty

sure it was January 1969, that we got them back.”

(R.H. 62, 63)

These xeroxed copies of records, of which the originals

of some were admitted in evidence at the trial as govern-

ment exhibits 5, 6, and 7 (Tr. 138) contained detailed

information as to hotel visits by the postal official defen-

dants, including the dates of reservation, the check in and

check out dates and the dates the bills were paid out and

who paid them (Tr. 138-147). Indeed, the testimony of

Postal Inspector O’Neil at the remand hearing, established

that the government had even obtained a photostatic copy

of at least one of the specific corporation checks sent by

10

Petitioners to the Montmartre Hotel in payment of one of

the bills specified in the indictment. (R.H. 18).

With regard to Dimasi’s car, the government investiga-

tors had learned prior to the indictment that Dimasi had

put up a $1,000.00 downpayment on a new car and that

after the A.N.h. postal contract had been cancelled one of

the LTetitioners was overheard telling the other to “stop

payment on Dimasi’s car.” (R.H. 20).

Thus, when the indictment of March 19, 1969, was re-

turned by the grand jury, the only documentary evidence

in Petitioners’ posscssion that the government needed to

support the charges in the indictment were the few checks

referred to above. It is clear fiom the remand hearing that

the government agents had specific information as to the

date and payee of each check to the Florida hotel. From

the thoroughness of the investigation, there can be little

doubt that the agents also had such knowledge concerning

the Dimasi car payment. Having questioned Dimasi (R.H.

20), they must have known when the car was purchased

and from what automobile agency, and would have had

access to the records they needed to pinpoint the check.

This, then, is the posture of the government’s position

on the basis of its own testimony with regar/ to its knowl-

edge of the relevant documentary evidence in Petitioners’

possession on March 19, 1969 before they raided Peti-

tioners’ corporation offices on the basis of arrest warrants.

Moreover, government testimony at the remand hearing

reveals additional critical information relevant to the issues

raised by this Petition which is not found in the report of

the District trial judge and which therefore could not have

been considered by the Court of Appeals.

Postal Inspector O’Neil, who was in charge of the investi-

gation of Petitioners, testified that based on discussions

11

he had on the day the indictment was returned and possibly

two or three days before that day, with the assistant U.S.

Attorney who secured the indictment, it was planned that

postal agents would obtain arrest warrants and go to the

business offices of Petitioners for the purpose of searching

for the checks and other records related to the indictment,

and “whatever else might have been involved”, as an inci-

dent to any arrest they might be able to make on the busi-

ness premises. Postal Inspector O’Neil’s testimony, on

direct examination, concerning this prearrangement was

as follows:

“Q. Did you have any conversation with Assistant

United States Attorney Zirin before the arrest on the

subject uf whether or not, were anyone arrested at

A.N.R., any documents could be seized? A. Yes.

“@. And specifically what did you discuss with

Assistant United States Attorney Zirin on that sub-

ject? A. The discussion was concerned with the prob-

ability, or if somecue in the indictment was at 149th

Street, that we would look for and search for A.N.R.

records relative to automotive payments, or motor

vehicle payments, and ary checks which would indicate

payments for postal employees on trips or vacations,

or whatever else may have heen involved.

“Q. When had you had such discussions with. United

States Attorney Zirin? A. Some of it on the morning

that the indictment was returned, possibly two or three

days before that, at or about our last conference.”

(R.H. 21, 22) (emphasis supplied). ;

Indeed, Inspector MeFadden, who was under the super-

vision of Postal Inspector O’Neil, testified at the remand

hearing that on March 19, 1971, prior to the return of the

indictment, O’Neil had instructed him to drive his ear to

Petitioners’ corporation offices in advance of the other

agents and to wait there until the others arrived (R.H.

12

105). McFadden testified that he expected to engage in a

search of the business offices and seize records at the time

of any arrest and that he carried with him three large

empty cartons in his ear in case they would be needed (R.H.

115). According to the government testimony at the re-

mand hearing, these cartons were in fact needed and were

used to carry away large quantities of Petitioners’ busi-

ness records. With regard to the quantity of records seized,

the remand hearing revealed that the government agents

(who had arrived at the A.N.R. offices in three cars (R.H.

231)) called for a station wagon to carry away the papers

seized—the post office sent a truck. (R.H. 45, 46).

Postal Inspector O'Neil testified at the remand hearing

that he either did not discuss or could not recall discussing

with the assistant U.S. Attorney in charge of the grand

jury the question of obtaining a search warrant and that,

in fact, he did not seek to obtain one. (R.H. 70-73).

REASONS FOR GRANTING THE WRIT

This case raises novel, important and timely questions

concerning the Fourth Amendment requirement of prior

judicial authority for a search and seizure decided by the

Court of Appeals in a way in conflict with applicable de-

cisions of this Court; the compatability with the Fourth

Amendment of the Court of Appeals’ extending this Court’s

ruling permitting the warrantless seizure of “mere evi-

dence” of crime incident to a lawful arrest to include the

seizure of a “likely source of admissible evidence”; and

the incompatability with the Fifth and Sixth Amendments

of the Court of Appeal’s failure to review credible new and

crucial evidence produced at a remand hearing ordered by

the Court of Appeals on the issue of the denial without a

13

hearing of a pre-trial motion to suppress evidence and the

failure of the Court of Appeals to give defense the oppor-

tunity to present argument on the basis of this new record

before rendering its decision on the appeal over which it

had retained jurisdiction.

I,

of an Indicted Defendant They Might Be Able to Make

at the Business Premises.

This is a case of first impression before this Court in-

volving a warrantless search and seizure of a massive num-

ber of cancelled business checks as a likely source of ad-

missible wvidence of a federal crime under, the pretext of a

search incident to a lawfu! arrest, after the investigative

process had terminated and the Petitioners had been in-

dicted. That this case is governed by standards applicable

prior to the ruling in Chimel y. California, 395 U.S. 752

(1969) is not relevant. The questions presented by this

14

Petition are completely different from those resolved by

this Court in Williams v. United States, —— U.S. ——, 28

L. Ed. 2d 388, 91 S. Ct. 1148 (1971) and in Hill v. California,

— US. ——, 28 L. Ed. 2d 484, 91 S. Ct. 1106 (1971). The

basic question raised here is not the spacial scope of such a

search incident to lawful arrest, or the contents scope of

such a search under the ruling of this Court in Kremen v.

United States, 353 U.S. 346 (1957). Rather it is whether

under the factual circumstances of this case there could be

any search at all without a search warrant.

This court has repeatedly stated the rule mandated by

the history and language of the Fourth Amendment that a

search without prior judicial authority is unreasonable per

se unless it falls within certain carefully drawn exceptions

based on exigent circumstances. McDonald v. United

States, 335 U.S. 451 (1948); Warden v. Hayden, 387 U.S.

294 (1967) ; Katz v. United States, 389 U.S. 347 (1967). Re-

cently, in Coolidge v. New Hampshire, US. ——, 29

L. Ed. 2d 564, 91 S. Ct. 2022 (1971), the Court again em-

phasized this principle, stating:

“Thus the most basic constitutional rule in this area is

that ‘searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per

se unreasonable under the 4th Amendment—subject

only to a few specifically established and well delineated

exceptions.’ The exceptions are ‘jealously and carefully

drawn.’ and there must be ‘a showing by those who

seek exemption . . . that the exigencies of the situation

made the course imperative.’ ‘(T]he burden is on those

seeking the exemption to show the need for it.’ In times

of unrest, whether caused by crime or racial conflict

or fear of interna! subversion, this basic law and the

values it represents may appear unrealistic or ‘extrava-

gant’ to some. But the values were those of the authors

7 fg a aammuaaanc aaa eae naan meee

15

of our fundamental constitutional concepts. In times

not altogether unlike our own they won—by legal and

constitutional means in England, and by revolution on

this continent—a right of personal security against

arbitrary intrusions by official power. If times have

changed, reducing everyman’s scope to do as he pleases,

in an urban and industrial world, the changes have

made the values served by the 4th Amendment more,

not less, important.” (footnoted citation of authorities

omitted) 29 L. Ed. at 576, 91 S. Ct. at 2039.

As noted by this Court in Coolidge, the few exceptions to

the warrant requirement for a search recognized by this

Court have been based on exigent circumstances such as

(1) the probable cause search of a moving vehicle (Caroll

v. United States, 267 U.S. 132 (1925)); (2) the probable

cause search in hot pursuit of a felon (Warden v. Hayden,

387 U.S. 294 (1967)); and (3) a search incident to a lawful

arrest, (Agnello v. U.S., 269 U.S. 20 (1925); Marron v.

U.S., 275 U.S. 192 (1927)).

The instant ease confronts only one of the recognized

exceptions to the search warrant requirement—the search

incident to a lawful arrest. It is submitted that this ex-

ception rests on exigent circumstances no less than the

others. This was pointed out by Mr. Justice White in his

dissenting opinion in Chimel.

“The only issue is whether a search warrant was re-

quired as a pre-condition to that search. It is agreed

that such a warrant would be required absent exigent

circumstances. I would hold that the fact of an arrest

supplies such an exigent circumstance, since the police

have lawfully gained entry to the premises to effect

the arrest and since delaying the search to secure a

warrant would involve the risk of not recovering the

fruits of the crime.” 395 U.S. at 781.

16

Indeed, in the cases in which this Court has upheld a search

and seizure incident to a lawful arrest, exigent cireum-

stances were always present’ and they involved pre-indict-

ment searches and seizures, while the investigative process

was still underway. See Marron v. United States, supra

(crime committed in presence of officers and seizure made

to prevent destruction of evidence); Harris v. United

States, 331 U.S. 145 (1947) (to prevent destruction of evi-

dence and government property) ; Draper v. United States,

* The two basic exigencies often pointed to by this Court in its

decisions upholding a search incident to a lawful arrest in cases

prior to (himel are the safety of the arresting officer and the po-

tential destruction of evidence. This Court in Chimel found that

these two exigencies could be met by restricting the warrantless

search to the area within the physica! control of the person ar-

rested. Nevertheless, in a case judged by pre-Chimel standards,

such as the instant case, there still must be present these same

exigencies, even though the spacial scope allowed the officers to

meet them is much broader. See Hill v. California, —— U.S. .

91 S. Ct. 1106, 28 L. Ed. 2d 484 (1971).

* Of course, it is not suggested that searches incident to a lawful

arrest may not be made after the completion of the investigative

process and the return of an indictment. The obvious exigency in

such a case would be the protection of the officer's safety, allowing

the search for a weapon. Plain view seizures of contraband or

evidence of crime should also not be affected by the stage in which

the case is in at the time of arrest. But it is submitted that a

warrantless search for mere evidence aficr an indictment has been

returned would require some special exigency justification. which

was clearly not present in the instant case. This Court has pro-

vided different standards when the case has left the investigative

and reached the pest indictment stage. Massiah v. United States,

377 U.S. 201 (1964). Mr. Justice Stewart, dissenting in Escobedo

v. Illinois, 378 U.S. 478 (1964) stated that his position would have

been different if there had been an indictment because “under our

system of criminal justice the institution of indictment . . . marks

the point at which a criminal investization has ended and ad-

versary litigation proceedings have commenced.” Although thes:

eases dealt with Sixth and Fifth Amendment richts, their anplica-

tion to Fourth Amendment rights would appear valid under the

factual circumstances revealed at the remand evidentiary hearin -

in the instant case where the indictment did in fact wark the point

in which the criminal investigation ended.

17

358 U.S. 307 (1959) (to protect safety of officers and pre-

vent destruction of evidence) ; Schmerber v. United States,

384 U.S. 757 (1966) (to prevent the loss of ev idence) ;

United States v. Rabinowitz, 339 U.S. 56 (1949) (to permit

officers flexibility in a fast moving investigation as to when

and how to “close the trap” in an on-going criminal activity

and to prevent destruction of evidence).

Petitioners contend that the instant case is separate and

distinct from all of the cases in which this Court has upheld

a search incident to a lawful arrest. Absent completely here

are any exigent circumstances. ‘lo the contrary arrest

warrants used by the government agents were employed

primarily as search instruments in a calculated effort to

take advantage of an exception to the warrant requirement

narrowly drawn by this Court to provide “some flexibility

[for] law officers engaged in daily battle with criminals.”

Rabinowitz, supra 339 U.S. at 65. In two ree: ut analogous

cases in a different context, this Court has insisted that

search warrant procedures be followed in situations where

the officers planned in advance to make a search for evi-

dence and had appeared or had ample time to appear before

a judge to obtain arrest warrants. In Vale vy. Louisiana,

399 U.S. 30 (1970), the arrest was made outside the prem-

ises which were subsequently searched. Holding that these

circumstances precluded a warrantless search of the prem-

ises, this Court in its opinion emphasized the officers’ pre-

arrangement to conduct a search as a basis for their finding

tiiat a search warrant was required. The Court stated:

“The officers were able to procure two arrest warrants

for the appellant’s arrest. They also had information

that he was residing at the address where they found

him. There is no reason, so far as anything before

us appears, to suppose that it was impractical for

18

them to obtain a search warrant as well.” 399 U.S.

at 35

In Coolidge v. New Hampshire, supra, the police had

reason to believe that a specific automobile had been used

in the rape-murder of a 14-year old girl. After a careful

and extended investigation, the police decided to arrest

the owner of the automobile and to seize the automobile.

They obtained an arrest warrant for Coolidge and a search

warrant for the automobile. However this Court found

the search warrant illegal, because it had not been issued

by an independent judicial officer

Reviewing the seizure of the automobile as a warrantless

one, where no exigent circumstances existed, Mr. Justice

Stewart, for the majority of the Court restated the legal

principle so pertinent to the instant case:

“But where the discovery is anticipated, where the

police know in advance the location of the evidence

and intend to seize it . . . [t]he requirement of a

warrant to seize imposes no inconvenience whatever,

or at least none which is constitutionally cognizable

in a legal system that regards warrantless searches

as “per se unreasonable’ in the absence of ‘exigent

circumstances.’” 29 L. Ed. at 585, 91 S. Ct. at 2040

Thus, this is not a case of passing on whether law offi-

cers made the right decision in proceeding by an arrest

warrant rather than a search warrant to “close the trap”

in a quickly developing investigation of “a criminal com-

mitting a crime in their presence or who they have rea-

sonable cause to believe is committing a felony” as in

Rabinowitz. Nor is it an example of the exigent circum-

stances supplied by the fact of the arrest referred to by

Mr. Justice White in his dissenting opinion in Chimel,

supra.

—-2

19

The instant case, to the contrary, involved an investiga-

tion lasting a half year, resulting in a detailed 19 count

indictment (R.H. 7, 8, 17, 28), where the government agents

had acquired all of the particular knowledge they needed

to specifically identify in an affidavit for a search warrant,

the few checks relevant to support specific and detailed

charges in the indictment months before they raided Peti-

tioners’ business offices under the pretuxt of making an

arrest (R.H. 17, 18, 62, 63). Prior to that raid, the prin-

cipal government witness at the remand hearing admitted

he had the pre-planned intention to make an exploratory

search of Petitioners’ business premises without a search

warrant, and as an incident to any arrest they might be

able to make on the premises with arrest warrants issued

on the basis of the indictment. (R.H. 21, 22)

The government agents sought to explain their proceed-

ing by arrest warrants afte: the indictment had been re-

turned on the ground that one of the Petitioners had been

convicted some years ago of smuggling and that the other

was under indictment on a charge of assault. (R.H. 11,

12)° However, they surely had this information months

before the indictment when they had already accumulated

more than sufficient evidence from their investigation to

obtain arrest warrants for Petitioners. If they believed it

was necessary to arrest Petitioners for the purpose of

placing them under some constraints, they could have easily

done so at least two months prior to their raid of Peti-

tioners’ business offices, and at the same time could have

obtained a search warrant to seize the specific checks of

which they had detailed kno .,ledge.

*This explanation avoids the main question—it provides no

reason why the officers could not have also obtained a search war-

rant when they were before the judge obtaining arrest warrants.

20

It is submitted that the government agent’s explanation

for proceeding by arrest warrant after the indictment was

nothing more than a sham, and that what the government

planned to do, as the principal government witness so tes-

tified at the remand hearing, was to engage in a search

of Petitioners’ business premises upon receipt of the in-

dictment using an arrest warrant as the vehicle for such

a search, rather than comply with the Fourth Amendment

requirement of obtaining a search warrant. One need not

speculate as to the government’s strategy. Under the

charges of the indictment, and the information they had

from their investigation, they could particularly describe

only five or six checks which were the subject of the perti-

nent indictment charges. A search warrant for such checks

would, of course, be restricted and would be confined, as

it properly should, to the particular things to be seized

under the charges in the indictment. See Berger v. New

York, 388 U.S. 41 (1967).

However it is clear from the testimony of the govern-

ment witnesses at the remand hearing, that they preferred

to engage in an exploratory search of all of the cancelled

business checks possessed by Petitioners covering the four-

year period of the conspiracy charge for the purpose of

engaging in a fishing expedition to learn whether Peti-

tioners had been involved in any other criminal conduct

with postal officers. (R.H. 21, 22). This they were not

entitled to do. Cf. Warden v. Hayden, supra.

Further insight into the government’s strategy in its

raid of Petitioners’ business offices based solely on arrest

warrants is provided by Postal Inspector O’Neil’s instruc-

tion to Inspector McFadden to “go up to 149th Street

[Petitioners’ offices] and wait for them [the other agents]

to come”, given prior to the return of the indictment and

21

the securing of arrest warrants. (R.H. 105) O’Neil’s in-

struction to McFadden is unexplainable, unless McFadden

was to act as a “spotter” for any indicted defendant en-

tering the offices. That he may have served this purpose

is indicated by his informing O’Neil, when O’Neil arrived,

that he had “seen John Masiello, Sr. at the window of a

restaurant across the street from the Masiello offices”

(R.H. 23), and the testimony at the remand hearing

that the raiding party entered the offices shortly after

McKeever, the defendant actually arrested on the prem-

ises, had arrived in the office (R.H. 200).

A timed arrest of an accused for the purpose of appre-

hending him when he is in the premises the law enforce-

ment officers wish to search, when the acensed could have

readily been apprehended at a different time and place,

presents a constitutional bar to a search incident to such

an arrest. McKnight v. U.S., 183 F.2d 977 (CA DC 1950).

Speaking directly to the use of such a timed arrest as a

means of making a search of the premises incident to it,

Judge Edgerton stated in McKnight:

“We think this a plain violation of the prohibition in

the Fourth Amendment of the Constitution against un-

reasonable searches and seizures. The government ar-

gues that what it aptly calls a ‘police strategem’, wait-

ing until McKnight was in the locked house before

arresting him justified the police in breaking into the

house in order to arrest him and seize evidence. We

think this untenable.” 183 F.2d at 978

Postal Inspector O’Neil testified that when he arrived at

the .Petitioners’ offices ke did not know who was inside.

(R.H. 23) Had the Court of Appeals reviewed the testi-

mony produced at the remand hearing it may have decided

that the record did not support O’Neil’s statement, despite

22

its adherence, in gereral, to the rule that the credibility of

the witnesses is a matter for the hearing judge to determine.

The Court has clearly indicated that a search incident to

an arrest may not be broader than that which would be

permitted L; a search warrant based on the knowledge in

the possession of the government agents. United States v.

Lefkowitz, 285 U.S. 452 (1931). The resultant seizure by

the government agents of 20,000 checks when they could

only lawfully search for and seize five or six checks that

were relevant to the charges ecvered by the indictment

makes the intention of the raiding government agents abun-

dantly clear. The deception perpetrated by the government

agents is manifestly demonstrated by the testimony of

Postal Inspector O’Neil at the remand hearing where he

testified that he seized the 20,000 cheeks after he had begun

to look through some of them and decided “there were so

many checks that I just gave up.” (R.H. 58).

In light of the fact that the same gover:ment agent had

testified at the same hearing that months before the indiet-

ment he had obtained xerox copies of the exact Florida

hotel records relating to the hotel bill payments which were

the basis of the principal charges against Petitioners (R.H.

17, 18, 62), and that he had even obtained at least one photo-

static copy of one of the checks (R.H. 18), his statement

that he had to seize the entire 20,000 checks because of any

difficulty in finding what he was lookin« for is incredible on

its face. He need not have bothered with 20,000 checks—he

could have readily gone directly to the checks of the specific

dates in his possession, made out to the particular payee

hotel he krew about from his investigation. Indeed as to

one of the checks, he could have quickly found it by means

of its number, since he had a photostatie copy of the check

(R.H. 18).

23

It is especially significant that the District trial] judge,

who presided over the remand hearing aad heard the testi-_

mony velating to the government investigation and the in-

formation the government agents had, omitted any refer- .

ence to this evidence in his report to the Court of Appeals.

Worse, even, he reinforced the argument of the government

that it needed to seize all of the 20,000 checks by quoting

in his report opinion to the Court of Appeals Postal In-

spector O’Neil’s patently incredible excuse for not seizing

the specific checks of which he had particular knowledge.

(330 F. Supp. at 1271). This distortion of the evidence by

the District trial judge in his report becomes especially

cruciai to this Petition, again because the Court of Appeals

did not have the transcript of the evidentiary remand hear-

ing before it when it affirmed the convictions on the basis

of the District Court’s report.

Il.

Under Fourth Amendment Kequirements, in a War-

rantless Search Incident to a Lawful Arrest, Government

Agents May Only Seize Evidence of Crime and Not

Likely Sources of Admissible Evidence as Held by the

Court of Appeals.

Kven on the basis cf the government’s theory that the

government agents in the instant case could make a war-

rantless search of Petitioners’ business premises incident to

the lawful arrest of McKeever, under no valid application

of the rulings of this Court could they seize the rass of

20,000 checks. When inspected by the agents at the time

of seizure, this large quantity of cancelled business checks

contained in 12 cartons was not recognized or determined

by the agents to be evidence of any federal crime.

The Court of Appeals justified the seizure of these checks

and the other business records on the ground that they were

“likely sources of admissible evidence of crime.” (OB. Ga)

(emphasis suppiied). In so holding, it is respectfully sub-

mitted that the Court below misapplied the rulings of this

Court relating to a warrantless seizure of “mere evidence”

incident to a lawful arrest. This Court has stressed that

all that can be seized in such a case is evidence of crime,

not “likely sources” of evidence. C/. Warden v. Hayden,

supra.

Indeed, prior to Warden v. Hayden, 387 U.S. 294 (1967),

it was the consistent position of this Court that the only

items that covld be validly seized under a search warrant,

or in the exceptional case of a warrantless search incident

to a lawful arrest, were those things which the government

had a paramount right to possess, such as contraband in-

struments of the crime, or stolen goods. Boyd v. United

Stotes, 116 U.S. 616 (1850); Gouled v. United States, 255

U.S. 298 (1921).

In Warden this Court abandoned the property concept

of search anc seizure supported by Gouled and emphasized

that the Fourth Amendment protects privacy rather than

property. Thus, the Court authorized the seizure of “mere

evidence” of crime provided the other requirements of the

Fourth Amendment are met.

But this Court in Wer.’en, in expanding the right of law

enforcement officers to seize “mere evidence” of crime, did

not permit the much broader search and seizure of likely

sources of admissible evidence of crime which was ex-

pressly approved by the Court of Appeals in affirming Peti-

tioners’ convictions. Indeed, in Warden, the permitted

seizure was only of the clothes which matched the descrip-

tion of those worn by the fleeing robber, not of a mass of

clothes which woul be a “likely source” of finding the

clothes worn by thé@ 2.

In rejecting the “instrumentality” concept, the Court in

Warden recognized that its new “mere evidence” rule pre-

sented the problems of a broader search involving greater

invasions of privacy thar were possible under the Gouled

rule. But since the Court’s ruling applied only to actual

evidence of crime the Court considered this not to be of

real concern, stating:

“The requirements of the 4th Amendment can secure

the same protection of privacy whether the search is

for ‘mere evidence’ or for fruits, instrumentalities or

contraband. There must of course be a nexus—auto-

matically provided in the case of fruits, instrumentali-

ties or contraband--between the item to be seized and

criminal behavior. Thus in the case of ‘mere evidence’

probable cause must be examined in terms of cause

to believe that the evidence sought will aid in a par-

ticular apprehension or conviction.” 387 U.S. at 306”

Subsequent to Warden in cases involving the seizure of

mere evidentiary items, as distinguished from contraband,

instrumentalities or the fruits of crime, this Court and

lower federal courts have only upheld the seizure of items

identifiable as evidence of crime. A number of these cases,

similar to Warden involved the warrantless seizure incident

to a lawful arrest of specific items or clothing which had

been described or identified prior to or at the time of the

seizure and which directly related to identifying the ac-

cused as being involved in the crime charged. See eg.

nett, 409 F 2d 885, 897 (CA. 2 1969), per J Friendly, at least

that the boundary of the “mere ” rule set forth

in Warder awaited “elaboration by the Court.

Frazier v. Cupp, Warden, 394 U.S. 731 (1968); Stone v.

United States, 385 F.2d 713 (CA. 10 1967); United States

v. Alloway, 397 F.2d 105 (CA. 6 1968); Shorey v. Warden,

401 F.2d 474 (CA. 4 1968); Fuller v. United States, 407

F.2d 1199 (CA. DC 1967); United States v. McKendrick,

409 F.2d 181 (CA. 2 1969); Clarke v. Neil, 427 F.2d 1322

(CA. 6 1970). It is noteworthy that in the recent case of

Hill v. California, supra, the seizure of “mere evidence”

approved by this Court involved 2 pages of a diary which

the officers recognized as evidence of the crime charged.

They did not seize the entire diary."

Of special significance is the language in a concurring

opinion in Stanley +. Georgia, 394 US. 557, 569 (1968).

The item seized was a role of film—analogous in the instant

case to the mass of 20,000 checks. Rejecting the validity of

the seizure of this film as evidence of crime, Justice Stewart

joined by Justices White and Brennen, stated:

“This is not a case where agents in the course of a

27

time of their seizure, could not be seized under the “mere

evidence” rule of Warden v. Hayden, supra. The effort of

the Court below to extend Warden to seizures of “likely

sources of admissible evidence” is not supported by any

ruling of this Court, but on the contrary directly conflicts

with this court’s stated purpose in Warden to restrict the

seizures to only reievant evidence of the crime charged.

and the Effective Assistance of Counsel When, After

Ordering a Remand Hearing on the Principal Appellate

Issue of the Denial of Petitioners’ Pre-Trial Motion to

Suppress Evidence, It Failed to Review the New and

Relevant Evidence Produced at the Remand Hearing and

When It Failed to Give Petitioners’ Counsel the Oppor-

tunity to Expand the Record on Appeal on the Basis of

the Remand Evidentiary Hearing and Present Addi-

tional Argument Relevant to the New Record Before

Making Its Decision on the Merits of the Appeal.

The principal issue raised by Petitioners on appeal was

the denial without a hearing of their pre-trial motion to

suppress, chailenging the warrantless seizure of a mass of

20,000 cancelled corporation checks and other business

records from their corporation offices. Unaware of the

factual background of this search and seizure because of

the denial of a hearing, Petitioners’ counsel restricted their

argument on appeal to the spacial and content scope of the

warrantless search of the offices and the massive seizure of

business records. On the basis of an affidavit submitted

by an employee of Petitioners concerning the scope of the

search and seizure, the Court of Appeals ordered a remand

28

evidentiary hearing on the search and seizure issue to be

conducted by the trial judge. The Court of Appeals re-

tained jurisdiction over the appeal and ordered the District

trial judge to report back to it after the hearizg. (OA.

4a).

On the basis of the testimony of the government wit-

nesses, which the trial judge found credible, new and

crucial evidence was produced raising the issues discussed

in Argument I of this Petition (p. 13). Of course, the

Court of Appeals had not had an opportunity prior to

the remand hearing to review these new facts and issues

any more than did Petitioners’ counsel.

Despite this new evidence, the trial judge found no vio-

lation of Fourth Amendment rights in the search and

seizure conducted by the government agents and wrote

a report opinion to the Court of Appeals which excluded

any reference to the extensive evidence produced at the

hearing which Petitioners consider essential to their Fourth

Amendment question on appeal. To the contrary, the trial

judge in his report opinion endorsed the reasons presented

by the government agents concerning why they proceeded

by arrest warrants alone, despite the patent sham of their

action (330 F. Supp. at 1270). The trial judge also re-

inforced the government’s chief witnesses’ explanation of

why he found it necessary to seize the mass of 20,000

checks by quoting this explanation with approval in his

opinion even though he had heard other testimony of this

same witness which made that explanation incredible on

its face (330 F. Supp. at 1271).

Thus the Court of Appeals was only made aware of the

Government's testimony concerning the scope of their

search and seizure through the report opinion and was

29

left in the dark concerning the new and critical facts rais-

ing issues which could not have been presented to it during

the appeal preceding the remand hearing. In reviewing

the report opinion of the trial judge, the Court of Appeals

‘is quite right in stating that the issue of credibility of

the witnesses is for the trial judge to determine. But the

Court of Appeals cannot avoid the responsibility of de-

ciding whether the credible evidence supported the findings

of the trial judge on the facts and the law. Cf. Douglas v.

United States, 239 F.2d 52 (CA D.C. 1957); Barnard

v. United States, 342 F.2d 309 (CA 9 1965); Hemphill v.

United States, 402 F.2d 187 (CA D.C. 1968); Henderson

v. United States, 425 F.2d 134 (CA 5 1970).

Because of the extent of the new evidence, producing

a transcript of 245 typewritten pages, Petitioners’ counsel

was fully confident they would have an opportunity to

file a supplemental appendix, additiona: briefs and present

oral argument to the Court of Appeals after it received

the remand report. Counsel stated to the Court of Ap-

peals in the Petition for a Rehearing and for a Hearing

en Banc that he had been informed by a clerk of the Court

of Appeals that “in view of the fact that additional evi-

dence had been adduced pursuant to the mandate of this

Court at an evidentiary hearing upon a motion to suppress

evidence, that a brief and record of such evidentiary hear-

ing could be submitted to this Court and that no decision

would be rendered until such an opportunity had been

afforded.” (Appellants’ Petition for Rehearing, p. 2)

Indeed, Petitioners’ counsel and an assistant United States

Attorney were in the midst of discussing the content of

the supplemental appendix, when the Court of Appeals

filed its opinion affirming the conviction on the basis of

the remand report alone.

30

Thus Petitioners have been denied their due process

rights to a full appellate review of their principal issue

on appeal and the effective assistance of counsel to pre-

sent the fundamental questions raised by the remand evi-

dentiary hearing concerning the violation of Petitioners’

Fourth Amendment rights.

It is untenable that a remand evidentiary hearing be-

lieved necessary by the Court of Appeals to resolve an

important appellate issue, which produces an extensive

new record, is of no relevance to the Court of Appeals in

making its final decision. Certainiy, where a Court of

Appeals has taken jurisdiction over an appeal involving

a substantial issue of law, and finds that it lacks a suffi-

cient evidentiary record to resolve that issue, requiring

it to remand the case for an evidentiary hearing, basic

concepts of due process and Sixth Amendment rights

should impose a duty on the Court of Appeals to have

the expanded record brought before it and to afford coun-

sel the opportunity to argue any new issues or facts which

were produced by the remand hearing. Cf. Frank v.

Mangum, 237 U.S. 309, 327 (1914); Cole v. Arkansas,

333 U.S. 196, 201 (1947).

There appears to be no federal decisional or statutory

law or rule of court providing any guidelines for the pro-

tection of these rights today. A random inquiry made of

a number of clerks of Courts of Appeals in different cir-

cuits indicates that in some cirenits Rule 11 of the Federal

Rules of Appellate Procedure has been informally applied

for the purpose of having the remand hearing record

certified up to the Court of Appeals. It appears to be

the general practice that where substantial issues are in-

volved and the remand hearing produces an extensive

record of new evidence, as occurred in the instant case,

31

the Court of Appeals makes some provision for the ex-

pansion of the record on appeal based on the remand hear-

ing and affords counsel the opportunity to argue the new

facts and issues.

This should clearly be the rule generally consistent with

Fifth and Sixth Amendment rights. The present abseace

of any rules dealing with procedures following the order-

ing by a Court of Appeals of a remand evidentiary hear-

ing leaves the protection of an appellant’s right to effective

assistance of counsel up to the whim of an individual panel

of a Court of Appeals. It also results in a lack of uni-

formity throughout the circuits on a matter that should

be treated the same way by every circuit, regardless of

its size or particular needs and problems.

It is respectfully submitted that, in the instant case,

this Court should at least remand this case to the Court

of Appeals for the purpose of permitting a full appellate

review of the issues raised by Petitioners’ which are based

on the Government’s testimony adduced at the remand

hearing. Such a remand should include an expansion of

the record on appeal to include the relevant portions of

the transcript of the remand hearing and the opportunity

for counsel to present argument, either orally or by brief,

on the new facts and issues.

Since the Federal Rules provide no guidelines concern-

ing the procedures which should follow a remand eviden-

tiary hearing, this Court might consider for the purpose

of future cases, and the achievement of uniformity, the

reference of this matter to the Judicial Conference for

the development of appropriate rules to aid the Courts

of Appeals in each of the circuits.

SS Ne en Lt SE

"32

CONCLUSION

For these reasons, a writ of certiorari should be

granted.

Respectfully submitted,

SaMveEL DasH

Georgetown University

Law Center

600 New Jersey Ave., N.W.

Washington, D. C. 20001

Attorney for Petitioners

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APPENDIX A

Opinion of the United States Court of Appeals

Dated October 28, 1970

UNITED STATES COURT OF APPEALS

For THE Seconp Circuit

—

~

No. 97—September Term, 1970.

(Argued September 15, 1970 Decided October 28, 1970.)

Docket No 34769

7

_

Unitep States or AMERICA,

Appellee,

v.

JOHN ANTHONY MASIELLO, JoHN A. MasIELLo, JR.,

Defendant-A ppellants,

Tuomas A. McKesver, Istoore Kiuu, a/k/a Grorce Kraut,

Anprew Dany, JosepH A. Maisto, MicHarL ALBANESE

and A.N.R. Leastne Corporation,

Defendants.

a>.

a

Before:

FRIENDLY, SmitH and Hays,

Circuit Judges.

~ we.

—

Appeal from judgment and sentence following conviction

on trial to the jury in the United States District Court for

the Southern District of New York, Morris Lasker, Judge,

on charges of conspiracy and bribery of public officials in

violation of 18 U.S.C. §§371 and 201(b). Remanded for

hearing on the reasonableness of a search and seizure.

i.

e

LLL ay

Invixc Awouix, New York, N.¥. (Abraham H.

Brodsky, New York, N.Y. of counsel), for

Defendant-A ppellants.

Eowanp M. Suaw, Assistant U.S. Attorney

(Whitney North Seymour, Jr. United

States Attorney for the Southern District

of New York and Robert G. Morvillo, Asx-

sistant U.S. Attorney, of counsel), for Ap-

pellee.

—>-

Per Curiam:

Defendant appellants, John Anthony Masiello and John

A. Masiello, Jr., father and son, are shareholders in A.N.R.

Leasing Corporation, an organization which leased trucks

and trailers to both private corporations and the Post

Office Department. They were convicted in the District

Court for the Southern District of New York before Morris

Lasker, Judge, and a jury, of conspiracy and bribery of

public officials, in violation of 18 U.S.C. §§371 and 201(b).

We remand to the District Court for a hearing on the rea-

sonableness of the search and seizure involved in this case,

retaining jurisdiction of the appeal.

The Masiellos, one McKeever, also an officer of A.N.R.

Leasing Corporation, the corporation itself and a number

of postal officials were indicted on charges of conspiring to

defraud the United States, giving and accepting bribes and

giving and accepting gratuities. Although the Masie!los

were arrested away from the corporate headquarters, Me-

Keever was taken into enstody by federal officers pos-

sessing a warrant for his arrest while at the offices of

A.N._R. In » search and seizure incident to that arrest.

the officers seized a quantity of records, including canceled

Ba

checks introduced in evidence on the trial of appellants

a * A.N.R. Leasing Corporation to establish payments to

or for postal officials. A pre-trial motion to suppress was

denied by Ju‘ige Palmieri without a hearing. The checks

were introduced into evidence over appellants’ objection.

There exist considerable discrepancies in the affidavits of

the government officers and an A.N.R. official as to what

took place in the course of the search and seizure. Since

a hearing was denied in the District Court, all factual as-

sertions of the afidavit submitted on behalf of appellants

must be assumed to be correct for the purpose of this ap-

peal. It is apparently not disputed that A.N.R.’s office

consisted of more than one room and that files were

searched and records seized in one or more rooms other

than the one in which MeKeeyer was arrested. Although

this search would be clearly unlawful under the standards

established by the Supreme Court in Chimel v. California,

395 U.S. 352 (1969) the search took place before Chime!

and therefore the applicab:« fourth amendment standards

are those existing prior to that decision. United States v.

Bennett, 415 F.2d 1113 (2d Cir. 1969).

If the facts are as alleged by the affidavit in support

of appellants’ motion to suppress those standards have

been violated. It has been claimed that extensive portions

of the enormous amounts of material seized have no pos-

sible relevance to the case at hand. It was further alleged

that the federal officers conducted “a general rummage of

the suite and a wholesale seizure of the files and records

contained therein.” If these characterizations of the facts

are accurate the activities of the federal officers could

hardly be considered consistent with the requirements of

the fourth amendment. See Von Cleef v. New Jersey, 395

US. 814 (1969) (per curiam); Kremen v. United States,

353 U.S. 346 (1957) (per curiam).

ta

We therefore conclude that a hearing should be held and

findings be made below on the extent ani reasonableness

of the search and seizure and remand to request that Judge

Lasker conduct such a hearing and report. We meanwhile

retain jurisdiction of the appeal.

qe

Hays, Circwit Judge (concurring in the result) :

I concur in the result but I do not subseribe to the opinion

that “the search would be clearly unlawful under the stand-

ards established by the Supreme Court in Chimel v. Cali-

fornia...” See United states . Pino, F.2d (2d Cir.

1970) [Slip Op. No. 4141 Aug. 17, 1970]: United States v.

Lovaw, 427 F.2d 911 (2d Cir. 1970).

| etait neieanme came

5a

APPENDIX B

Opinion of the United States Court of Appeals

Dated July 21, 1971

UNITED STATES COURT OF APPEALS

For true Seconp Ciecurr

—

No. 97—September Term, 1970.

(Submitted June 22, 1971 Decided July 21, 1971.)

Docket No. 34769

—

Usrrep Stares or AMERICA,

Appellee,

ee

Joux Awtuowy Masie.1o, Jonn A. Masie.ia, Je.,

Appellants.

—o—

Before:

Parnoiy, Chief Judge,

Serra and Hays, Circuit Judges.

ss

Appeal from judgment and sentence following conviction

on trial to the jury in the United States District Court for

the Southern District of New York, Morris Lasker, Judge,

on charges of conspiracy and bribery of public officials, in

violation of 18 U.S.C. §§371 and 201(b). Affirmed.

+>—

Invewe Awotrx, New York, N. Y. (Abraham H.

Brodsky, New York, N. Y., of counsel), for

Appellants.

6a

Epwarp M. Suaw, Assistant U. S. Attorney

(Whitney North Seymour, Jr., United States

Attorney for the Southern District of New

York and Robert G. Morvillo, Assistant

U. S. Attorney, of counsel), for Appellee.

~

Per Curio:

Defendant appellants, John Anthony Masiello and John

A. Masiello, Jr., father and son, are shareholders in

A.N.R. Leasing Corporation, an organization which leased

trucks and trailers to both private corporations and the

Post Office Department. They were convicted in the Dis-

trict Court for the Southern District of New York before

Morris Lasker, Judge, and a jury, of conspiracy and bribery

of public officials, in violation of 18 U.S.C. §§371 and 201(b).

They were acquitted on “gratuity” counts. We find no error

We remanded this case to the District Court with a re-

quest that Judge Lasker conduct a hearing on the reasona-

bleness of the search and report thereon. 434 F.2d 33. The

hearing was held and report made.

Judge Lasker made findings as to the extent of the search

and found the search reasonable under the standards pre-

vailing prior to Chimel v. California, 395 U.S. 752 (1969).

While the area searched involved several office rooms and a

large quantity of material was seized, it was confined to a

search for and seizure of likely sources of admissible evi-

dence of the crime, consisting of canceled checks and check

stubs, a cash receipts and disbursements book for the period

in question, truck and vehicle payment records and a pur-

chase order book. Judge Lasker credited the government

agents and the detailed inventory given and properly de-

a ae een ic

7a

clined to credit conflicting testimony that a great amount

of additional material was taken. Credibility was of course

a matter for the judge to determine, and his conclusion that

the search and seizure were reasonable on the facts found

was clearly correct.

We find no merit in the other issues raised on appeal.

There was sufficient evidence for the jury to infer a corrupt

intent to obtain special advantage from the payments to

officials in charge of the government end of the Masiello

contracts.

We have considered the “gratuity” count a lesser included

offense of the bribery count; there was therefore no incon-

sistency in the charges. United States v. Irvin, 354 F.2d

192, 196 (2d Cir. 1965) ; United States v. Polansky, 418 F.2d

444, 446 (2d Cir. 1969).

The charge that the corporation could not be found guilty

unless one of the Masiellos was guilty is properly inter-

preted as reference to the necessity of the corporation act-

ing through a natural person, here on the facts necessarily

one of the Masiellos. Even if there was a possible agent in

McKeever, no harm to the appellants is shown.

The judgment is affirmed.

8a

APPENDIX C

Order of the United States Court of Appeals

34769

UNITED STATES COURT OF APPEALS

Seconp Circurr

Unrrep States or America,

Plaintiff-Appellee,

Vv.

JouN AntHoNy Masic.1o, et al,

Defendants,

Joun AnTHony Masietto and Joun A. MasiEL1e, Jr.,

Defendants-App_llants.

A petition for a rehearing or in the alternative a motion

to stay the issuance of the mandate having been filed herein

by counsel for the appellants,

Upon consideration thereof, it is

Ordered that said petition for rehearing be and it hereby

is denied. Mandate is stayed pending application for cer-

tiorari subject to the provisions of Rule 41 (b) Federal

Rules of Appellate Procedure.

Hewry J. Frienpiy

J. Josepx Situ

Paut R. Hays

Circuit Judges

September 16, 1971

Se Ahn g: (ales 4 te seer

9a

APPENDIX D

Constitutional and Statutory Provisions Involved

The Fourth Amendment of the United States Constitu-

tion provides:

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, end particularly de-

scribing the place to be searched, and the persons or

things to be seized.”

The Fifth Amendment to the United States Constitution

provides in pertinent part:

“nor shall any person . . . be deprived of life, liberty,

or property, without due process of law.”

The Sixth Amendment to the United States Constitution

provides in pertinent part:

“in all criminal prosecutions the accused shall enjoy the

right . . . to be confronted with the witnesses against

him; ... and to have the assistance of counsel for his

defense.”

18 U.S.C. §201(b) provides in pertinent part:

“(b) Whoever, directly or indirectly gives, offers or

promises anything of value to any public official or

person who has been selected to be a public official, or

offers or promises any public official or any person

who has been selected to be a public official to give any-

thing of value to any other person or entity, with in-

tent—

10a

(1) to influence any official act; or

(2) to influence such public official or person who

has been selected to be a public official to commit or aid

in committing or collude in, or allow, any fraud, or

make opportunity for the commission of any fraud,

on the United States; or

(3) to induce such public official or such person who

has been selected to be a public official to do or omit

to do any act in violation of his lawful duty, or...

[S]jhall be fined not more than $20,000 or three times

the monetary equivalent of the thing in value, which-

ever is greater, or imprisoned for not more than fif-

teen years, or both, and may be disqualified from hold-

ing any office of honor, trust or profit under the United

States.”

18 U.S.C. §371 provides in pertinent part:

“If two or more persons conspire either to commit any

offense against the United States ... and one or more

of such persons do any act to effect the object of the

conspiracy, each shall be fined not more than $10,000

or imprisoned not more than five years, or both.”