Opposition Brief — Tocco v. United States

. ; on

Cases—Continued

United States v, Harris, 403 U:S. 573 .

United States v. Robinson, 406 F. 2d 64,

certiorari denied, 395 U.S. 926...

United States v. Williams, 436 F. 2d 1168,

... certiorari denied, 402 U.S. 912. ~~.

United States v. Zeiler, 427 F. 2d 1306. ae

Constitution, statutes and rules: :

Constitation. of the United States:

7 . Fifth: Amendment ..........°.....

Sixth Ame ndment

IS USC. 2113 (a) and (4d) . eae

“18 U.S.C. 5010(b) ee

err

Federal Rules of Criminal ‘Procedure, y

an

A.

‘Iu the Supreme Court of the Yuited States

3 OCTOBER TERM, 1971 4! :

No. 71-702 |

PRANK JAMES TOCCO, PETITIONER

- vr.

UNITED STATES oF AMERICA

»

No. 71-5916 -

CHARLES RICHMOND, JR., PETITIONER

vy.

UNJTED STATES oF AMERICA

.

.

-* No. 71-5924

Norgis Lee SMITH, PETITIONER —

v..

» UNITED STaTes oF AMERICA

No. 71-5925 , .

RALPH LONG, PETITIONER

m-*? :

Unrrep STATES oF AMERICA

ON PETITIONS FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT . :

BRIEF FOR THE UNITED STATES IN OPPOSITION

‘1s

ener

ow .. OPINION BELOW

The opinion of: the court of appeals (Pet. in No.

- 71-702, .A1-A25) is reported at 449 F. 2d 288.

4

JURISDICTION

The judgment of the court of appeals was entered

on October 4, 1971. Petitions for rehearing en bane

were denied on October 28, 1971. Tocco's petition

for a writ of certiorari (No. 71-702) was filed qn No-

vember 26, 1971. As to the other petitioners, Mr.

Justice Blackmun, extended the time for filing the

petitions for writs of certiorari to and including De-

cember 27,-1971. On December 25 and 27, 1971,

the petitions were filed. * The jurisdiction’ of- this

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

- QUESTIONS PRESENTED

All petitioners: :

1. Whether petitioners were improperly dented ac-

— cess to accomplice Neal. ° |

2. Whether pétitioners were deprived of their

Sixth Amendmem right to et process for a,

witness.- — » : .

3. Whether a remote family relationship between

‘ one of the jurors and petitioner Richmond, of which

the juror was unav are during the trial, denied peti-

tioners a trial before an impartial jury.

' The petition of Richmond was filéd on December 25, 1971;

Smith and Long fited petitions on December 27, 1971.

‘s

Mi

~

- was based on probable cause.

3

4. Whether a search warrant, under which items —

’ were seized from a trash barrel and admitted into evi-

nee, was pr’ operly issued and executed.

Petiilaaee Richmond: s os

5. Whether the trial court erred in refusing to

make available the complete grand- jury testimony of

an individual -who did not testify at the trial.

6. Whether petitioner was: deprived of his rights

under the Sixth Amendment where an in-court identi-

fication was based on pretrial photographic ideritifica-

tion conducted after his arrest without the presence

of counsel.

Petitioner Long:

7. Whether petitioner's arrest without-a-warrant

STATEMENT

After a jury trial in the United States District

Court for the Eastern District of Missouri, petitioners

were convicted on two counts of an indictment. charg-

ing them, together with one Willie Neal,’ with bank

robbery (Count I), in violatjon of 18 U.S.C. 2113(a)

_and (d), and conspiracy to rob the bank (Count Il).

Petitioners were each sentenced to twenty years’ im-

prisonme nt on count one and to a concurrent five-

year term on count two. The court of _appeals af-

firmed in a comprehensive opinion (Pet. in* No: A1-°

702, Al1- A2 25). . @t bs)

- Neal had entered a guilty plea prior to trial.

..

At approximately 8:10 A.M. on May 22, 1970, °

three armed men robbed the Jefferson Bank and Trust

“Company in St. Louis, Missouri of $27,710.00 (Tr. -

- 157, 164). While one of the robbers disarmed the

‘bank guard and put a gun to his head (Tr, 368), the

other two accésted two bank tellers and seized money

from them at gunpoint (Tr. 391, 401). During the

robbery one ‘to three shots were fired, but no one was’

injurea (Tr. 347, 368, 390, 401). While the tellers

were being robbed, a messenger fyom Brink’s, Inc. en-

tered the bank carrying a bag” containing $71,675.08,

most of which was in checks, for deposit (Tr. 417-

420, 438). Qne of the robbers placed his gun against

the messenger’s head and took the bag (Tr. 419-420).

_ All three men then fled the bank and disappeared. -

_ Accomplice Neal’ was ealled as a government wit-

ness and testified substantially as follows: he, Long, °

Richmond and Smith met at Tocco’s place of business

' from 5:30 to 6:30 P.M. on May 20, 1970‘ where

Tocco outlined the plan for the holdup (Tr. 203-205).

Tocco then took all of theni in his station wagon to

view the bank (Tr. 205-206). They met again the

- following day at about.5:30 P.M. at, Tocco’s ‘place of.

‘business, and drove to the bank again for the pur-

agg of further observation (Tr. 198-200). On May

22, 1970, at approximately 7 7:45 A.M. Neal met Smith

and Toceo behind Tocco’s business establishment (Tr.

206-207). Smith and Neal were picked up by Long

and Richmond in a stolen ear, and the four 6f them

ditove to the bank (Tr. 208-209). Tocco met thern

near the bank in his station wagon (Tr. 209). Neal,

ie /

“Smith ‘and pina’ “ae the bank thr eines the

rear door (Tr. 210). Smith held the bank’ guard at

gunpoint while Neal and Richmond went to. the tell-

_ ers’ windows (Tr. 211-212). After the three men left

the bank, Long drove the stolen car a few blocks. Aft-

er they stopped, they were picked up by Tocco (Tr.

213-215), wha then dropped them off. Tocco retained

the money, guns and gloves used in the robbery (Tr.

216).-At about 6:00 P.M. Neal met Long, Tocco,

Tocco’s brother Pete, and Richmond at Toeco’s place --

of business (Tr. 217, 279-280). Toccoy,said there was .

$18,000 on the desk and each would\receive $3,000 -

(Tr. 219). Tocco also said that there was another

" $80,000 to $90,000 in checks, which he would ‘burn

- together with the Brink’s bag (Tr. 220-221).

ARGUMENT

1. Before trial, on July 31, 1970, counsel for the |

various petitioners stated that they wished to inter-

view Néal who had been sentenced for study and eval-

uation under the Youth Corrections Act, 18 U.S.C.

5010(b) (Tr. 1092110). The court said that they

‘should consult Neal’s-attorney and that, if Neal was

going to be used as.a witness, the defense would be

given an opportunity to interview him in the presence

of his maaps fp 111). The motion was. renewed |

on August 10, 1970; and the court painted out that .

petitioners should -have contacted Neal’s. attorney

(Tr. 125-126). The United States Attorriey reported:

-that Neal’s attorney had called him to inquire about’

‘the status of the motions and that the attorney had

6

said he did not wk Neal to talk to’ anyone (Tr. 127).

‘The trial judge ‘said that, if Neal’s attorney wished

to permit Neal to be interrogated by the ‘defense out

of the presence of the jury; he would permit him to do

SQ, but not otherwise (Tr \127- -128),

At trial, petitioners renewed their request to talk

with Neal; the trial court again indicated that the

- decision of Nedl’s counsel would govern (Tr. 186-

187). The United States Attorney left the courtroom .

and, upon his return, reported that Neal had said he

would not talk to defense counsel without his counsel. —

being present (Tr. 187). After Neal had testified,

- counsel for Smith stated that, when he went to the cell

‘ta talk with his client, Neal approached him and said

he wanted to exonerate Sinith (Tr. 378-379). ° Coun-

sel for Tocco also reported that one of the three de-

fendants had told him that: Neal. wanted to. talk to

. hime (Tr, 381). The court stated that the marshal had

informed him that Neal wanted.“to get away” from

the defendants (Tr. 384). Neal was subsequently

_ brought into court, and 2’ he: aring was held out of the

presence of the jury. Neal testified that he told Smith

“he would change his story because he would say -any-

thing to get away from the defendants (Tyr. 453) but

denied talking to Smith’ s attorney (Tr. 4 53-457).. -He :

said he asked the marshal to call the pr osecuting ’ at-

torney .be@ause he wanted to’ be moved to a different —

cell (Tr, 461). .In the presence of the jury Neal tes-

* tified that. he told Smith that he would change his

story (Tr. 482) but then affirmed the truth of his

original testimony (Tr. 489),

,

he court of Gineie ruled that it would have been

better had the trial gourt permitted defense counsel :

to hear directly from Neal. whether he wished to tall

with them, but concluded thatthe error was harmless, 4

‘especially in ‘view of the extensive er Oss-examinaéion

of Neal (Pet.-in No. 71-702, Al A13). This ruling

wag correct. Neal was nineteen yfars-old at the time -

of petitioner’s trial. From his t timony it was obvi-

ous that he was fr ightened and did not want to talk to

petitioners’ attor neys; he had made clear in the mes-__ .

age he had given government counsel that he would

pce With them, only if his own lawyer were present. -

A. witness has the right to refuse to be interviewed .

or to dictate the circumstances under which he will

submit to an inter rview. ‘Byrnes v. United States, 327 :

F, 2d 825, 832 (CA. 9), certiorari denied, 377 US.

. 970; United/States v. Drydén, 423 F..2d 1175, 1177-

1178 (C.A. 5), certiorari denied, _398 U.S, 950.

.2. On August 10, 1970, petitioners aoaneil that

* they were ready for trial. On Augnist 18,.1970, the

next to the Jast.day of trial, petitioner Toeco’s attor- -

néy stated that on Saturday, August 15, he had inter- .

viewed Neal’S grandmother and -taken 2 statement

from her, but was unable to serve her with a sub-

poena. He stated ‘that he learned she had Jeft for

“Mississippi the folowing evening (Sunday) and ré~

quested that the trial be delayed until she could be

located and served.. The court ruled that the trial

would not.be delayed but that if the witrss appeared °

she would be allowed to testify (Tr. 1127-1130). At.

- this time. Tocco’s attorney: advised the: court: (Tr.

1129; that, if it had not been foy the policy of.the =

8

court not to issue subpoenas in blank, he would have

had one available to serve on the witness when he

inter viewed her. It is contendéd that this policy was

contrary to Rule 1% of the Federal Rules of Criminal

Procedure: The rule, however, contemplates that a

_ Subpoena be obtained for a particular proceeding since

it states that the subpoenas “shaJl state the name of

the court ang! the title, if any, of the proceeding.” As

the court below held, there is no . showing that petition-

er asked for a subpoena with re relation to this pro-

ceeding. Under these circumstances it’ was not an

abuse of the trial court’s discretion to deny petition-

ers’ request for a continuance. United States v. Bol-

“+ ton, 438 F.2d 1219, 1220 (CA. 5).

3. After’the trial, it-was learned that one of the

jurors s was the sister-in-law of the aunt of petitioner

: | Richmond. The juror testified that she was unaware

that she was indirectly related- by marriage to Rich-

mond oy that she had ever known him until after-‘the .

trial’ was over and it was brought to her attention

(Tr. 1300-1314). The matter is fully discussed jn the

opinion of the district court (Pet..in No. 71-702,

A29-A32) and of the -eourt of appeals (Pet. in No. -

71- 702, A19). There is nothing to indicate that peti-

meat were pr ejudiced by this undetected remote re-.

lationship.’ :

‘ \-

* Remmer V. United States, 347 U.S. 227; is wholly inap-

posite. In that case -a‘juror- was cick hp a third party. ~

who advised that-a verdict. favorable to the defendant could. -

- be -profitable to-himi.. This .information was conveyed to the

judge aad government counsel, but not to the defense, and the: -

: F.B.1. conducted an investigation. It was concladed- that the

, ° . hd .

: 7 g f

,

4. On June 10, 1970, approximately three weeks

after: the robbery, a search warrant was .issued to

search petitioner Tocco’s place of business. The affi-

davit' for the warrant (set forth in the. opinion below

Pet. in No, 71-702; A4-A6 n. 1), after stating the

facts-as to the robbery, detailed facts related. by an_

“admitted participant” in the robbery .(esséentially in

accordance with Neal’s trial testimony as outlined in

the Statement). The-affidavit alleged, ixter alic, that

. the participant reported that on May 22, 1970, Taeco

had in his possession at the premises to be searched,

a black suitcase containing a portion of* the- money

pbtained in the bank robbery and said he would dis-

tribute part of the proceeds: but keep. the rest and.

‘make it available to the participants at a later time:

The warrant specified the currency and checks taken |

in the robbery and certain other fruits and instru:

mentalities of the robbery as items being sought .{ Pet.

in No. 71-702, A7-A8 n. 2)..The warrant was exe- |

cuted the following day, ‘and the charred + ains of ©

" several items designated: in the warrant Were seized vi

from a trash -barrel located just outside the building

(Tr. 65-68, 523-525). fe ge cet

Petitioners-contend that the affidavit for the search

_ warrant was insufficient because it was based on the.

uncorroborated ‘statements of an.accomplice. As the >

court below held (Pet. in No.. 71-702, A4-A7), ! the

statement was made in jest and the trial went on. ‘Only ifter

he had been convicted did the defendant learn of the matter hy

reading about it in the newspapers. In the instant case, the.

iiformation only came to light after the trial and there had

never been any attempt to influence the juror.

-

stffidavit set forth what . the ‘accomplice, ‘reported | in

such precise detail ‘that the magistrate could deter-.

mine to cr edit his story and conclude that there was

probable cause to, believe the items sought were on the

premises te be searched. See Spinelli v. United States,

393 U.S.*410, 416; Aguilar v. Texas, 378-U.S. 108,

114. In addition to the detail and specificity of the

information, the informant was worthy of belief be-

cause his statement admitting that -he ras air ‘accom-

plice who participated in the robbery ° was against. his

penal interest. See United States v. Harris, 403 US

573, 583-584 (plurality of opinion of ‘the Chief ia:

tice).

It is further contended that the seizure. of the trash

barrel was unlawful in that its contents and location .

were not pai rticularly described in the warrant. The

/ ‘searay May ‘rant enumerated. the items being sought af.

iolediae United States currency taken from the bank,

* together with United States currency, checks and

other papers taken. frem the Brink’s messenger dur- .

jng the robbery, plus a white canvas bag used.to car-

ry the stolest currency. The items salted which were

admitted into evidence were the charred remains of a

check. taken from the Brink’s guard (Government’s

~“"Exhibit: 9, Tr. 325-328),- the ash from money straps

(Government’s Exhibit 11, Tr. 328-330), and the Goin.

bag ‘seals (Government’s Exhibit: 13, Tr. 340-343

They plinly fell within the reach of | the esters the.

fact that they w we > chi arved did not atter their iden-

Ty: ‘ pos Sige

Petitioners lastly contend that the pla ce from which

these items were seized w as not descr ibed in the search

- Warrant. As the court of appeals pointed out, dow

éver (Pet. in No. 71-702, A9), the trash barrel was

located just outside the building housing Tocco’s busi-

ness establishment and, fairly cohsidered, ‘was. located -

on the **premises” descr ibed_in the. warrant.”

5, On July 31, 1970, during hearings on ea

motions,” counsel] for the government informed the

_ defendant: Richmond that his employer, who had tes-

tified before the grand jury, possibly had infarmation

| Ww hick might be fav orable to him’ (Tr. H6+-+Petition-_

er. Toeco’s counsel represented this -indiv idual at the

time (Tr. 116). When couns | professed not to know -

the einployer’s-name, the government told him it wa

David Leisure. Er: 181). Counsel thereafter Bates ,

ie request for the: ‘grand jury, testimony, stating that --

Mr. Leisuge would not talk with him (Tr. 18¥). The

court stated it would look,at the grand jury testimony,

but suggested to ‘counsel that he could ‘subpoena the

records of the employer. on the day ofthe robbery and

thus. deter mine whether Richmond w as listed as wor ‘k-

ing at the time.of the robbery (Tr? 1832184).° The |

court Jater informed the defense that: Richmond's s em-

ployer) had testifiebefore the rand’ jury that Rich-

mond got to work on May 22, 1970; between 7:55 and*

8:05 A. M. (Tx, 387). -The court also nated the wit-

ness had heer. represented, at that. time by-tire attor-

ney for Toceo (Tr. 387). The r@quest to see the er and

jury minutes was not renewed. :

Petitioner Riehmond. now argues that, if- he’ iad

seen “other portibns af - the employer's, iestimony,* he

eguld have decided whether to subpoena the witness.

Hawever, all that petitioner vas entithed to under

* pes 8 ee 12 |

Berdy %, Mor ia 373 8. 83,

potsiliy favorable to the defense. -Th he was given

~-- + -fyrthe eyirt. “He was not entitled to ¢ ine all the

» ¢ grand AD ghamperad > to determine whether to call

. ts emplovgr as a witness. : *

wee * 6. About one week prior ts ‘trial, an F.BA. agent

.

‘ay ved Goternment Witness Sabol (one of thos pres-

at’ the robbery). ten to fiftten photographs, includ-

r the- ‘photograph of petitiorier Richmond - “(Tr ?361-

64). “At-the time of the showing, Richmond was, in

cugtady. and. Was, repre seiited i counsel. Relying ‘yn

teal States v: Ze iler, 127 F. 2d 1305 (C.A. 3), p-

*+ ttioner Richmond argues ‘that his Fifth and Sixth

— -Amtentiment rights were ‘violated since his counsel

_ was’ not prese nf at tine showing. ¥ ‘

(sha been limajeed to its particular” facts—i.e., where *

the phitegraphs were. shown jn a suggestive manner

®% -. which had the potentiality, - influeticing a scheduled

iutte-up. See United States vaWilliaws, 436 F. 2d

— 1166. ACA. 9), certiorari: denitd, ‘402 U.S. 912; Me- \

Gie Vv. United. Patex, 402 F. 2d 434 (C.A: 10), cer-

* tiorars denied, 394 U.S S. 108;-United States vy. Robin-

won, 406 F.2d 64 “C. A. 7), certiorari stenied, 395

fo < ptavty - Ugited NAitex v¥. Bennett, 409 F, 2d &88

A.. 2), certiorari denied sub wom, -Haywood +. -

United States. [5 ULS. 852! and United States v.

—

tame Pr] $28 F. 2d w7 CA. 5). In this case, ten to

°F

‘*, fteen photographs were used, and’ there is ‘nothing _

coe surirest th: at the peecedure was" Suggestivee. This

= (ourt has consistently refused to. review the holdings

that counsel need nét. be present” at pretrial photo-

— :

: .

was information F

*"Zeiler has been either rejected’ br other circuits, or *

. Sexe ow -? oe? : * “<

oan P

avalide ‘identifications: There is no reason to take a

" different approach in the present case, parti¢ularly in

view of the fact that there was ample other évidease

- of Richmond's participation in the robbery.

The further-contention that’ the prettial identtifica-

tion procedure violated dug process (see Simmons v

_ United States, 390 U.S, 377, 383-384) is based on *

_ the assumption that Sabol, because éf pretrial publici-

} ty, could have seen photographs of Richmond prior to

the photographic identification. Sabol testifigd, hosv-

‘ever, that he.had not\seen aly photographs of Rich-

‘mond from the time of ‘the ‘robbery to the time of*the -

pretrial identification (Tr. 361-362)..

7. Petitioner hong al that be was arrested .

without. probable cause. and that, . therefore, certain

items which were seized at the time of Ais arrest and

admitted into evidence should have been ‘sappressed.

The opipion below sets forth the facts and legal prin-

‘ciples relevant to this contenti8n and .préperly con-

cludes that there gas probable cause for Long’s ar- “ee

rest and incidental search Pet. in No. 71-702, A26-

A23). . ‘

. ‘ 7.