Petition for Writ of Certiorari — Pacelli v. United States
Supreme Court brief1973
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Questions PRESENTED
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CoNSTITUTIONAL AMENDMENTS INVOLVED
STATEMENT OF THE CasE
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CoNCLUSION
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TABLE OF AUTHORITIES
CasEs :
Bridges v. Wixon, 326 U.S. 135 (1945)
Bruton v. United States, 391 U.S. 123 (1968) ........
Byrd v. United States, 342 F.2d 939 (D.C. Cir. 1965) ..
California v. Green, 399 U.S. 149 (1970)
Coolidge v. New Hampshire, 403 U.S. 43 (1971)
13, 30,
Doss v. United States, 431 F.2d 601 (9th Cir. 1970) ..
22
Brooks v. United States, 309 F.2d 580 (10th Cir. 1962) 24
20
RIP aE eT RT ee
. yet SP A ms patetaeataitemy OETA NS
5 SETI AD AKASH RLY DS ETE MIRE NEL GUE EPP BEI TON OSE NRE
a
ii Table of Authorities Continued
Page
Douglas v. Alabama, 380 U.S. 415 (1965) ............ |)
Dutton v. Evans, 400 WE, TO CORTE) one ccccnsace 15, 20
~~ a Co. v. United States, 282 U. §
DED Séncuaesedcapanatee scanned heancdeconeneen
Gouled’v. United States, 255 U.S. 298 (1921) ........ 28 bs
Harris v. United States, 331 U.S. 145 (1947) ..... 27, 28, 29
Kramer v. United States, 317 F.2d 114 (D.C. Cir. 1968) "99
Krulewitch v. United States, 336 U.S. 440 (1949) . 21
Lutwak v. United States, 344 U.S. 604 (1953) ........ 21
Marron v. United States, 275 U.S. 192 (1927)
28, 29, 30 o 33
hoe v. United States, 190 F.2d 749 (5th Cir. 1951) . 29
Nelson v. O’Neil, 402 U.S. 622 (1971) ............... 15
People v. Collins, 274 N.E.2d 77 (Til. 1971) .......... 24
Robinson v. California, 370 U.S. 660 (1962) .......... 22
Stanley v. Georgia, 394 U.S. 557 (1969) .............. 32
State v. Kietzke, 186 N.W.2d 551 (S.D. 1971) ........ 24
State v. Ray, 249 So.2d 540 (La. 1971) .............. 24
State v. Williams, 246 So.2d 4 (La. 1971) ............ 4
Steele v. United States, 267 U.S. 498 (1925) .......... 32
United States v. Adams, 446 F.2d 681 (9th Cir.), cert.
denied, 404 U.S. 943 (1971) ............ceceeeee 15
United States v. Addonizio, 451 F.2d 49 (3d Cir. 197 1),
cert. denied, 405 U.S. 936 (1972) ............... 15
ee States v. American Radiator & Standard Sani-
ry Corp., 433 F.2d 174 (3d Cir.), cert. denied,
401 1 US. 948 PE itech cnedanccshsdkmnonitcan 15
United States v. Barnes, 319 F.2d 290 (6th Cir. 1963) 24
United States v. Briggs, 457 F.2d 908 (2d Cir. 1972) .. 23
United States v. Cerone, 452 F.2d 274 (7th Cir. 1971).. 15
United States v. Clayton, 450 F.2d 16 (1st Cir. 1971),
cert. denied, 405 U.S. 975 (1972) ............... 15
United States v. Cunningham, 446 F.2d 194 (2d Cir.),
cert. denied, 404 U.S. 950 (1971) ................ 23
United States v. Duff, 332 F.2d 702 (6th Cir. 1964) .... 24
United States v. Dzialak, 441 F.2d 212 (2d Cir. 1971) 33
United States v. Gower, 447 F.2d 187 (5th Cir.), cert.
denied, 404 U.S. 850 (1971) ...............000e 15
United States v. LaVallee, 391 F.2d 123 (2d Cir. 1968) 33
United States v. Lefkowitz, 285 U.S. 452 (1932) .... 32
United States v. Lipscomb, 425 F.2d 226 (6th Cir. 1970)
United States v. Neal, 452 F.2d 1085 (10th Cir. 1971)
United States v. Nuccio, 373 F.2d 168 (2d Cir. 1967)
o3 R283
Table of Authorities Continued iii
Page
}
) United States v. Rainwater, 283 F.2d 386 (8th Cir.
) ge ee ee hE Dene an 24
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CoNSTITUTIONAL AMENDMENTs AND STATUTES:
Fourth Amendment to the United States Constiiution
3, 29, 30, 32
BE OO OG Sr OS a
Fifth Amendment to the United States Constitution 2, 4, 13
Sixth Amendment to the United States Constitution .. 14
21 U.S.C. §§ 812, 841 and 846 ...................... 1, 4
PU GHEY oa osn ocinscccccncacaccccss...s... 2
| MISCELLANEOUS:
L
t § |. Therapeutics 1041 (4th ed. 1970) ..............
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25, 26
IN THE
Supreme Court of the United States
OcrToBEr TreRM, 1972
oe
No.
VINCENT PacELui, JR., Petitioner
v.
Untrep States or AMERICA, Respondent
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
Petitioner Vincent Pacelli respectfully prays that a
Writ of Certiorari issue to review the opinion and
judgment entered in this case on N ovember 30, 1972,
by the Second Circuit Court of Appeals. Petitioner
was convicted in the United States District Court for
the Southern District of New York on February 15,
1972, after trial (Hon. Milton Pollack and a jury),
convicting him of violating Sections 812, 841 and 846 of
Title 21 of the United States Code and sentencing him
toa total of 20 years’ imprisonment and a $10,000 fine.
aK NLS EE a
Se CASTE a
See Pe a eRe AS Lee
EE A SEAT NRIOL ASE
2
OPINIONS BELOW
The opinion and judgment of the United States
Court of Appeals for the Second Circuit are not yet
reported and are printed as Appendix A hereto. There
was no opinion of the District Court.
JURISDICTION
The opinion of the Second Circuit was rendered on
November 30, 1972. The jurisdiction of this Court is
invoked under 28 U.S.C. § 1254(1).
QUESTIONS PRESENTED
1. Whether a criminal defendant is denied due pro-
cess of law under the Fifth Amendment by the admis-
sion into evidence against him of an out-of-court state-
ment by an alleged co-conspirator, where:
(a) the statement was not made under oath;
(b) the statement did not purport to reflect the
co-conspirator’s own words but only a ‘‘summary”
of what she said;
(c) the statement was taken immediately fol-
lowing the arrest of the co-conspirator, during
police interrogation at narcotics headquarters,
while she was under custodial control ;
(d) the co-conspirator swore at trial that she
never made the statement attributed to her, and
that the only document she signed, without read-
ing, was what she took to be a deportation docu-
ment ;
(e) the co-conspirator swore at trial that the
statement was untrue and that the defendant had
had no connection with her admitted narcotics
business, and
3
(f) the statement provided crucial and incrim-
inating evidence against the defendant.
2. Whether the presence in the record of other evi-
dence against the defendant justifies the affirmance of
a conviction in a federal court where an out-of-court
statement is used against the defendant in the circum-
stances described in Question 1, above.
3. (a) Whether a criminal defendant’s rights under
the Fourth Amendment were violated by the intro-
duction and use against him of a 12-ounce bottle of
boric acid (a common disinfectant available at any
drug store without prescription), which was taken
from his apartment under a post-arrest warrant au-
thorizing the seizure of 14 kilogram of heroin.
(b) Whether such a bottle of boric acid was either
“an instrumentality of the crime alleged’’ or seizable
under the so-called ‘‘plain view”’ doctrine.
(c) Even if it was an ‘‘instrumentality”, whether
it could be seized under such a warrant, when the seiz-
ure was not made incident to an arrest, in hot pursuit,
or under any other recognized exception to the consti-
tutional mandate against unreasonable searches and
seizures.
(d) Whether the boric acid should have been sup-
pressed because it was seized during a general search,
was but one of a large number of indiscriminate seiz-
ures, and clearly was not authorized by the warrant
under which it was ostensibly made.
CONSTITUTIONAL AMENDMENTS INVOLVED
Fourth Amendment: ‘The right of the people to be
secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not
be violated, and no Warrants shall issue, but upon
4
probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized.”
Fifth Amendment: ‘‘No person shall * * * be de-
prived of life, liberty, or property, without due proe-
ess of law * * *.”’
STATEMENT OF THE CASE
Petitioner Vincent Pacelli was indicted for con-
spiring to violate, and for violating, 21 U.S.C. §§ 812
and 841, and for using a telephone to facilitate the com-
mission of a felony.
Undercover Narcotics Agent John B. Lepore testi-
fied at Petitioner’s trial that on May 3, 1971, he went
to an informant’s apartment and picked up two pack-
ages of cocaine which the informant said he had re-
ceived from one Elisa Possas for delivery to Lepore.
Possas testified, freely admitting that she had delivered
cocaine to the informer on this date. She repeatedly
swore that her one and only source for drugs was a
man named Lorenzo Cancio (JA 301, 303, 317, 326,
354, 385-387, 393").
Agent Lepore recounted how he next met Possas on
May 5, paid her for the cocaine, received a new sample
from her, and waited while she left to obtain some
‘*dynamite’’ cocaine. She returned with the dynamite
cocaine, which she agreed to sell for $8,000. Accord-
ing to the agent, she identified her source as Cancio.
At this same time, the agent asked her whether she
had any excess heroin, and, according to him, she said
1“ JA" refers to the Joint Appendix filed by both parties in
the Court of Appeals. A certified copy of the Joint Appendix
has been filed with the Clerk of this Court.
—
her source for heroin was her boyfriend Jimmy
“Pappas’’ (whose formal name was Papadakos).
on cocaine for a week and that in addition she was
taking marijuana, Librium and Valium (JA 375, 387,
390). (Agent Lepore conceded that he knew Possas
“snorted’’ cocaine; see JA 103.) Possas said she was
upset because her boyfriend, Pappas, had been going
out with other girls along with a friend of his, Peti-
tioner Pacelli (JA 375-376, 378, 380). On one occa-
sion she had tried to kill herself because of her boy-
friend’s conduct (JA 384).
Agent Lepore testified that the next day, May 6, he
paid Possas $8,000 for the previous day’s cocaine, and
she again discussed heroin and Pappas, her boyfriend.
Cancio swore that on this day Possas paid him part
of what she owed him for cocaine.
Two weeks later, on May 20, Possas showed Agent
Lepore heroin for the first time, according to his tes-
timony, and they agreed on a price. According to the
agent, Possas discussed the possibility of becoming
partners with him in the drug business. She also told
him for the first time (see JA 102) that her source
for heroin was ‘‘Vinnie the Italian’, who was to be
married on June 6 to a friend of hers, Beverly Jalaba
(ibid.). She did not know Vinnie’s name, but it was
on a wedding invitation in her apartment. Agent
Lepore testified that Possas dialed a number later
identified as that of Beverly Jalaba (see JA 559), hung
up, dialed again, and told “‘Vinnie’”’ that “‘my man
will take the half’’ (JA 80-81). Later in the after.
noon, the agent said he called Possas at her apartment,
and she identified Vinnie as Vincent Pacelli, Jr. (Peti-
tioner) after looking at her wedding invitation
(JA 82).
Agent Lepore said that that same evening, he picked
up Possas and told her that the heroin she had given
him was extremely poor and that they should give it
back to Vinnie. She declined, saying Vinnie would not
meet strangers. Armed agents closed in and arrested
Possas and, ostensibly, Agent Lepore.
Possas was taken to the sixth floor of Narcotics Head-
quarters. After about 20 minutes, Agent Lepore, now
identified as an agent, saw her and told her that if she
cooperated, this would be made known to the court
(JA 83, 115-116, 414, 532-533). According to Lepore
and two other agents who testified, Possas signed a
form entitled “‘Statement of Rights and Waiver” at
11:30 p.m? An agent, Thomas Devine, conceded that
at this time Possas was crying and upset (JA 412)—
a fact confirmed in part by another agent (JA 270).
Agent Devine also conceded that he was aware Possas
was from Brazil and that deportation was discussed
with her (JA 413-414).
According to the agents, Possas then told what she
knew about narcotics, and Agent Devine attempted to
take down a statement on the typewriter. However,
since Agent Devine was a “‘slow typist’’ and Possas
was speaking quickly, what she said could not be taken
2 JA 266, 399-400, 439. This ‘‘Statement of Rights and Waiver”,
Govt. Ex. 9, has been reproduced as Appendix B to this Petition.
7
down word-for-word (JA 408). Instead, as Agent
Devine repeatedly testified, he only attempted to “‘sum-
marize’’ what she said (JA 402) ; these were not “‘ver-
batim the words she used’”’ (JA 416). After he typed
the statement, Agent Devine read it back and asked
her “‘if that was the substance”’ (JA 402). He claimed
that she read it and made several changes, which she
initialed (JA 402-403, 437-440). She then signed the
Possas, who had never before been arrested (JA
537), testified that at this time she was upset, shaking,
erying, afraid and seared (JA 357-358, 380-382, 384).
She was handeuffed (JA 356). She had taken cocaine
and Librium earlier, and she now took 25 milligrams of
Librium with the permission of the agents (JA 357,
381). (The agents did not deny this; see JA 419,
429-430. )
She swore the agents promised her that if she would
sign what they had written, they would get her back to
Brazil, where she was from, under an American flag
“without no troubles at all” (JA 357, 382-383). She
said she stayed with the agents 12 hours, she was never
fed, she never slept, and during this time she told them
“erazy and wild” things (JA 358, 382). “They
seared me so much, so many men” (JA 380-381) ; “I
*Her alleged statement, Govt. Ex. 9A, has been reproduced as
Appendix C to this Petition.
8
almost want to kill myself’? (JA 384). She admitted
signing some documents, but she thought she was sign-
ing deportation papers (JA 382-383). She flatly de-
nied that she told the agents what was in her “‘state-
ment’’, Govt. Ex. 9A (JA 308, 309), even though she
may have answered a few questions admitting her
connection with narcotics (JA 360-362). She never
read the statement, nor was it read to her, before she
signed it (JA 309-310, 311, 357, 362-363). She signed
it while sick, under the influence of cocaine, and under
the pressure of threats (JA 305-3-7, 312, 320, 376-
378), and as she now read it, it was ‘‘a bunch of lies”
(JA 308). The agents even told her where and what
changes to make in the statement and where to put
her initials (J A 363-367, 383-384, 427). She was told
she could not have a lawyer (JA 311).
At trial she freely admitted having lived with
Pappas, knowing Jalaba for some time, being invited
to the Jalaba wedding, delivering cocaine to the in-
former on May 3, giving heroin to Agent Lepore on
May 5, possessing heroin on May 20, and delivering
heroin to Agent Lepore on May 21. But she flatly,
unequivocally, and repeatedly denied receiving drugs
from Petitioner; her one and only source of drugs had
been Cancio (JA 297-298, 301-304, 316-318, 324, 327,
354, 385-387, 393). As a matter of fact, she did not
even know Petitioner personally, had never spoken to
him, and remembered his name only from the Jalaba
wedding invitation and as a friend of Pappas who re-
portedly had gone out with him and other girls on
oceasion (J A 286, 318-319, 325-326, 347, 350, 376, 380).
She did not recognize Petitioner in the courtroom (JA
287). She conceded having pleaded guilty of con-
spiring with Petitioner and Pappas in this case but
9
said that in fact they had had nothing to do with her
narcotics activities and that the only person she had
conspired with was Cancio (JA 287, 303-305, 327-328).
The Government claimed surprise at Possas’ testi-
mony, although it contemporaneously submitted an
eight-page memorandum citing 12 cases and i
that her statement should be admitted into evidence
despite her testimony (JA 329-344). (The court de-
nied a defense request for a hearing on the issue of
surprise; JA 345.) The Government made clear that
it was offering Possas’ statement, Govt. Ex. 9A, not
only on the issue of credibility but for its substance as :
well (JA 331-332). Over strenuous objection from
Petitioner’s attorney (JA 329-344, 405), the statement
was received and read to the jury after Possas left the .
stand (JA 405). Both in the court’s instructions (JA
618-619, 631-632) and in the prosecutor’s summation,‘
it was made clear that even though Possas denied hav-
‘E.g., ‘‘Miss Possas has to somehow explain away this early
statement, if she is going to give her testimony here in court. She
has to explain away Government Exhibit 9-A in evidence, because
this statement lays out every detail of the transactions and it was
witnessed by Devine and King, and you heard them say that it was
taken under relaxed circumstances, when they were having sand-
wiches and coffee and milk shakes, and Miss Possas wasn’t hopped
up on drugs, as she said.
‘This statement, the government submits to you, is the truth but
Miss Possas has to explain it away, somehow”? (JA 604-605).
“Now, clearly, you may find * * * that this statement is the truth
in this case, and I urge you to request this exhibit, as you may
request any of the exhibits in this case, and also have any of the
evidence read back. I urge you to request this exhibit and take it
into the jury room with you because this statement alone could
convict these two defendants”’ (JA 607-608 ) .
“Now the truth in this case becomes evident, that it was the
agents, and the earlier statements of Miss Possas that are to be
relied upon here” (JA 610).
ere
le Ak in
RS SR SRY Me TIES NET OEE LOE MY ON SO
“9
Sh ees
10
ing made the statement, the statement was being of-
fered and could be used by the jury for the truth of its
contents. As the statement reveals on its face (see
Appendix C), it strongly implicated Petitioner.
According to Agent Devine, after Possas made her
“‘statement”’, she was taken to her apartment (about
3 a.m.), where the wedding invitation was found.
Early in the morning, agents went to Beverly Jalaba’s
apartment house—without a warrant of any kind.
One agent stood in the street and watched the 27th
floor where her apartment was located. Other agents
went to her apartment, knocked on the door, and said
they were there to arrest Petitioner. According to an
agent, there was the sound of venetian blinds and a
window opening, and then the door was opened from
the inside, revealing a man and a woman (Petitioner
and Jalaba) who were not dressed.* Petitioner was
5 The Court of Appeals referred to the sound of a toilet flushing.
The record shows that the agent, upon prompting, testified :
**Q. While you were waiting outside for the door to open,
was it possible that half kilo of heroin was flushed down the
toilet.
“Me. Rosner [Petitioner’s attorney]: Objection, your
Honor.
‘*Tue Court: Sustained.
**Q. Did you hear a toilet flush while you were outside in
the hallway.
**Mr. Rosner: Objection, your Honor.
‘‘Tue Court: Sustained as to form.
““Q. Did you hear anything while you were waiting outside
in the hall?
‘““Mr. Rosner: Objection. Asked and answered.
‘‘Tue Court: Overruled.
**Q. You may answer.
‘‘A. Yes sir. I heard a venetian blind rattle, heard what
appeared to be a window open. I also heard a toilet flush” (JA
522-523). (Continued on next page)
11
placed under arrest (JA 470). When Petitioner asked
if the agents had a search warrant, he was told they
did not (JA 471). Appellant was warned of his rights
but not of his right to the presence of an attorney (JA
472, 505). In the meantime, the agent on the street
claimed he saw a white bag thrown out of a window
and land on a carport roof below. He could not see
who threw it (JA 463), and although he claimed to
identify the window as Jalaba’s, photographic evidence
introduced by Petitioner put this claim in serious
doubt (JA 459-463, 579-589; Def. Ex. E, J). The
agent retrieved the bag and went to Jalaba’s apartment,
and Jalaba was placed under arrest. The bag, which
contained cocaine, not heroin, was never tested for
fingerprints (JA 514).
At 1 p.m.—after the arrest of Petitioner and Jalaba
and after the agents had left Jalaba’s apartment—one
agent obtained a search warrant which was quite spe-
cifie: it authorized a search of this particular apart-
ment for % kilo of heroin (JA 479, 516-517; Def. Ex.
F). The application for the warrant revealed that it
was based upon Possas’ statement to the agents after
her arrest that 14 kilo of heroin could be found in this
apartment (JA 518). The apartment was thoroughly
searched by a number of agents, and no narcoties were
found (JA 517-519). As many as 26 items were seized,
such as clothing, suiteases and barbells,* but only one
Not only was the reference to the toilet flushing virtually put in
the witness’s mouth, but he never mentioned it for 44 pages of
testimony—nowhere in his direct or cross-examination and not
until his redirect examination. Following the exchange quoted
above, the incident was never referred to again.
* JA 479-480; Govt. Ex. 13C-G, 14C-F, 15D, 16D, 17C-I, 18C-J,
all for identification.
SLALOM PENI PERE ONE NLR AE HII AFT FOL FE
12
item was introduced as part of the Government’s case
as an ‘‘instrumentality of crime’? (JA 559). This
was a 12-ounce bottle of boric acid, which the Govern-
ment’s own witnesses conceded was a common house-
hold disinfectant available without prescription at any
drug store (Govt. Ex. 15D; JA 520-521, 556, 558, 560-
562, 566, 568). It was introduced on the theory that
boric acid was ‘‘the prime diluent for the drug co-
caine’’ (J A 563; see also JA 487, 519).”
Under count 1, which charged a conspiracy between
Petitioner, Papadakos, Jalaba and Possas between
January 1 and June 14, 1971, Possas pleaded guilty
and testified for the Government; the count was dis-
missed as to Jalaba, and Petitioner and Papadakos
were found guilty.
Under count 2, which charged that Possas and Peti-
tioner distributed cocaine on. May 3, 1971, Possas
pleaded guilty and Petitioner was found not guilty.
Under count 3, which charged that between May 10
and May 20, 1971, Petitioner, Possas and Papadakos
distributed heroin, Possas pleaded guilty, Papadakos
was found not guilty, and Petitioner was found guilty.
7™The agent who seized the one bottle claimed that there were
‘‘say 30 to 40 tins of boric acid, similar to this—labelled boric
acid’’—in a shopping bag in Jalaba’s apartment (JA 485; see also
JA 519). However, he did not seize these tins (JA 519-520), even
though the police themselves admitted it would have been good
police practice to do so (JA 565). He did not even photograph them
(JA 520) or show them to some other agent. Despite these facts,
the prosecutor in his summation relied not only on the one bottle
introduced in evidence but on ‘‘the 30 to 40 tins of boric acid’’ also
allegedly found in the apartment (Tr. 610, 611, 612, 631), and the
Court of Appeals treated the issue as if all 30 to 40 tins had been
seized and introduced.
13
Under count 4, which charged that Jalaba and Pe-
titioner possessed cocaine with intent to distribute on
May 21, 1971, the count was dismissed as to Jalaba and
Petitioner was found guilty.
Finally, under count 5, which charged that Possas
and Petitioner knowingly used the telephone on May
20, 1971, to facilitate the commission of a felony
(namely, the same act charged in count 3), Possas
pleaded guilty, and Petitioner was found guilty.
The Court of Appeals affirmed. It held that the
admission of Possas’ statement did not violate due
process, and that although it was error to have ad-
mitted it for the truth of its contents, the error was
“harmless’’ in view of (a) Agent Lepore’s testimony
as to what Possas had told him, (b) the telephone call
between Possas and ‘‘Vinnie’’, and (c) the cocaine
“found in Jalaba’s apartment’’.* The court also held
that the bottle of boric acid, whether viewed as incrim-
inating or mere evidence, was admissible under the
“plain-view”’ doctrine of Coolidge v. New Hampshire,
403 U.S. 43 (1971).
REASONS FOR GRANTING THE WRIT
I. The Possas Statement
We respectfully submit that the admission of
Possas’ alleged statement for the truth of its contents
violated (a) Petitioner’s right to due process of law
under the Fifth Amendment and (b) the hearsay rule
of evidence in effect in the federal courts. For here,
Petitioner was convicted by means of an unsworn
*Since no drugs were found in Jalaba’s apartment, we assume
the court was referring to the bag which the agent on the street
allegedly saw dropped from her 27th floor window.
ay
14
statement which even the police conceded was not in
the witness’ own words, which was taken during police
interrogation, and which the witness herself denied
under oath ever having made.
The use of such a statement was not only unconsti-
tutional but unprecedented. The case goes as far as
any we are aware of in allowing a defendant in a fed-
eral court to be convicted on the basis of a totally
repudiated but highly incriminating document which
even the Court of Appeals conceded was inadmissible
for the purpose for which it was used.
We recognize, of course, the more recent view of this
Court that a prior statement can be admitted into evi-
dence, so long as the person who made the statement
is available for cross-examination, without violating
the Confrontation Clause of the Sixth Amendment.
That is why we did not urge a Sixth Amendment vio-
lation before the Court of Appeals. But to carry this
Court’s recent decisions to the extreme allowed in the
instant case is not only a perversion of those rulings *
®In California v. Green, 399 U.S. 149 (1970), the Court did not
even imply that it would be constitutional, much less the better
rule, to allow the admission of an unsworn statement which was
made by an accused just subsequent to his arrest, which did not
purport to be his own words, and which he denied making and
totally repudiated at trial. By emphasizing that the Confrontation
Clause does not require excluding the prior statements of a witness
‘‘who concedes making the statements’’ (td. at 164), the Court
implied that where no such concession is made, the constitutional
problem is very real. And by casting doubt on whether the state-
ment made to the police officer in Green was constitutionally admis-
sible even though the witness admitted making it (id. at 168-170),
the Court pointed the way to the proper result here.
In Dutton v. Evans, 400 U.S. 74 (1970), an opinion for four
Justices held that the hearsay rule applicable in the federal courts
—which would have excluded the out-of-court statement in that case
15
but an extremely dangerous step backward in the
proper administration of criminal justice. For the
fact is that if a statement such as the one allegedly
made by Possas can be used in a criminal trial for the
truth of its contents without a reversal of the conviction,
there is literally nothing left of the traditional con-
cept that a defendant can only be convicted on the
basis of sworn testimony.
as well as in the instant one (id. at 79, 81)—was not identical with
the requirements of the Confrontation Clause. Since, among other
things, the particular statement at issue was not crucial (td. at 87),
it was not made ‘‘in the coercive atmosphere of official interroga-
tion’’ (tbid.), it did not involve prosecutorial negligence (ibid.),
it contained no express assertion about past fact (id. at 88), and the
speaker had no apparent reason to lie (id. at 89), the admission of
the statement was not unconstitutional. All of these elements, of
course, are present in the instant case.
Nelson v. O’Neil, 402 U.S. (1971), involving only a constitutional
question, amounted to no more than the traditional one of a confes-
sion being admissible against the co-defendant who made it but not
against the co-defendant who did not.
Many courts citing California v. Green have said that that
decision has no effect on the federal co-conspirator hearsay excep-
tion. See, e.g., United States v. Cerone, 452 F.2d 274 (7th Cir.
1971) ; United States v. Addonizio, 451 F.2d (3d Cir. 1971), cert.
denied, 405 U.S. 936 (1972) ; United States v. Clayton, 450 F.2d 16
(Ist Cir. 1971), cert. denied, 405 U.S. 975 (1972) ; United States v.
Gower, 447 F.2d 187 (5th Cir.), cert. denied, 404 U.S. 850 (1971) ;
United States v. Adams, 446 F.2d 681 (9th Cir.), cert. denied, 404
U.S. 943 (1971) ; United States v. American Radiator & Standard
Sanitary Corp, 433 F.2d 174 (3rd Cir.), cert. denied, 401 U.S. 948
(1970). Under that exception the hearsay declarations of a co-
conspirator may be admitted against an accomplice so long as the
statements were made in furtherance of the conspiracy. However,
as Mr. Justice Harlan noted in his concurring opinion in Dutton
(400 U.S. at 98), no such statement is admissible under this excep-
tion if the declarant was in custody at the time it was uttered.
Furthermore, no Cireuit Court has held that Green, Dutton or
Nelson allows the admission of a witness’ prior inconsistent post-
arrest statement as substantive evidence against a defendant.
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16
We look first at the circumstances surrounding the
‘“‘taking”’ of the statement, then at Possas’ repudiation
of it at trial, and finally at the key part the statement
played in the conviction.
(a) Circumstances surrounding the statement.
As shown in the Statement of the Case, even assum-
ing that Possas’ incriminating statement was in fact
taken from her—which she denied—it was taken under
the most harrowing and untrustworthy of circum-
stances. Possas, who had never before been arrested,
was suddenly taken into custody by a group of agents
about 11:00 o’clock at night. She was handcuffed and
transported to Narcotics Headquarters. Within 20 min-
utes of her arrest she was confronted by an undercover
agent to whem she had been selling cocaine and heroin
for some two weeks. Her condition was distraught—as
at least partially confirmed by two of the agents. She
was admittedly a cocaine ‘‘snorter’’ and by her own
account a taker of many pills. The agents not only
told her that her cooperation would be brought to the
attention of the court but also discussed deportation
back to her native Brazil, as one of them admitted,
Pressed to name her sources, whom did she name?
According to the statement, she never mentioned Can-
cio, who testified on the stand that he supplied her
with drugs, but only her boyfriend (Pappas) and Peti-
tioner. Yet she admitted at trial that she was furious
at Pappas for going out with Petitioner and other
girls. The incentive and motive for lying are obvious.
Under these circumstances, was every possible pre-
caution taken by the police to make certain that any
statement taken from Possas would be accurate, au-
17
thentie and not subject to attack? On the contrary,
although recording equipment was admittedly avail-
able, it was not used to record her statement. She was
not asked to write the statement in her own handwrit-
ing, although her English was excellent. The statement
was not taken down by a stenographer and transcribed
verbatim ; her thoughts were merely ‘“‘summarized”’ on
the typewriter by a man who was at one and the same
time a poor typist and the agent principally responsible
for arresting her. Her statement was not notarized or
otherwise sworn to; she simply signed it, supposedly
witnessed by two of the arresting agents.
Thus, even if we put to one side Possas’ testimony
at trial, we find a statement which not only fails to
bear the marks of reliability but which demonstrably
is unreliable and untrustworthy.
(b) Possas’ repudiation of the statement
When Possas took the stand at trial, she did not
admit making the statement and then claim that it
was false or that she did not remember the facts. In-
stead, she denied making the statement and also
claimed that it was false. She said that in her dis-
traught state she might have said some wild things
to the agents and may even have answered some ques-
tions about her narcotics connections, but she did not
tell the agents what was in the statement. She signed
the statement thinking it was a deportation document.
She was induced to do so by threats and fear. She
was told to make certain changes in the statement and
to initial them, and she complied, but not because the
statement was hers. She claimed not to have read it or
to have had it read to her.
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18
In addition, she testified that the statement was false,
that she dealt in narcotics with Cancio as her sole
source, and that Pappas and Petitioner had nothing to
do with her narcotics. The statement, in other
was utterly repudiated by the party who had allegedly
made it.
(c) Importance of the statement.
The importance of the statement to the Govern-
ment’s case can hardly be overstated.
It must be remembered that until Petitioner’s arrest
on May 21, no agent had had any direct contact with
him at all. Every contact had been with Possas or an
informer. Since Possas denied at trial that she even
knew Petitioner, and since Cancio never mentioned
Petitioner during his entire testimony, Petitioner's
conviction under four of the five counts” depended
entirely upon what the agents said Possas told them
Her alleged statements are surrounded by contra-
dictions, confusion and unreliability. Even Agent Le-
pore admitted, for example, that from May 5, when he
first met Possas, until May 20, when they had devel-
oped so close a relationship that she was proposing a
joint narcotics venture between them, she never men-
© The remaining count should also be reversed. Since Petitioner's
fingerprints were not found on the cocaine involved in this count;
there was serious doubt as to whether the cocaine was thrown from
Jalaba’s window; no one saw Petitioner with the cocaine, and the
count was dismissed as to Jalaba, this count can hardly stand
analysis on its own. Moreover, the search warrant involved in this
count was invalid (see Part II, infra), and there is no way of
knowing the extent to which the jury relied upon Possas’ state-
ment to implicate Petitioner as to all counts.
19
tioned Petitioner at all. It was only on the afternoon
of May 20 that Petitioner’s name first turned up in an
alleged conversation. Yet when the agent suggested
that they meet with Petitioner, Possas immediately de-
murred.”
There was one real test of the truthfulness of Pos-
sas’ alleged implication of Petitioner. In seeking a
search warrant, Agent Lepore swore that “‘ Possas told
me that [Petitioner] has a \% kilogram of heroin in
his apartment at the present time” (JA 19). Within
hours the apartment was thoroughly searched by
agents, and no heroin was found. Thus, the one real
test of Possas’ implication of Petitioner utterly failed.
When these facts are combined with the fact that none
of Petitioner's fingerprints appeared on any drugs
introduced in this case, including the drugs supposedly
thrown from Jalaba's apartment, proof of his partici-
pation in the drug ring comes to rest almost completely
upon the Possas “‘statement’’.
Certainly proof of Petitioner’s participation cannot
be said to rest, as the Court of Appeals assumed, upon
Agent Lepore’s testimony, for the jury demonstrated
that it did not fully believe him. He repeatedly testi-
™ Moreover, the Government would have us believe that (a)
Possas did not know the full name of this man who supposedly sold
her drugs, but (b) she was easily able to find it by simply looking
at the invitation she had received to his wedding. If Petitioner had
been attempting to hide his name from Possas, she would hardly
have received an invitation to his wedding, and if he was not
attempting to hide his name, it is difficult to understand why she
would not have remembered it, since according to the agents she was
constantly dealing with him in the narcotics business.
fied (JA 81, 107, 133) that according to Possas, Peti-
tioner and Pappas had been her source for the cocaine
sold to Agent Lepore on May 3, and yet the jury found
Petitioner not guilty under count 2, the count which
charged Petitioner with making that particular sale.
As for the rest of the evidence, virtually none of it
involved Petitioner.
It is in the light of all these facts that Possas’ in-
criminating statement must be judged. It is small won-
der that the prosecutor relied on it time and again in
his argument to the jury, not just to prove that Possas
lied at trial but to prove that Petitioner was guilty
(see n. 4, supra). In the light of the court’s instrue-
tions, which allowed the jury to use the statement for
the truth of its contents, there can be no question but
that the verdict should be reversed if the statement
was wrongfully admitted.
(d) Violation of due process and the federal rule.
In his concurring opinion in Dutton v. Evans, supra,
Mr. Justice Harlan wrote (400 U.S. at 98):
Alternatively, I would be prepared to hold as a
matter of due process that a confession of an ac-
eomplice resulting from formal police interroga-
tion cannot be introduced as evidence of the guilt
of an accused, absent some circumstance indicating
authorization or adoption. The exclusion of such
evidence dates at least from Tong’s Case, Kelyng
17, 18-19, he: Rep. 1061, 1062 (K. B. 1663),
and is uni y accepted. This theory would
be adequate to account for
Douglas v. Alabama, 380 U.S.
ton v. United States, 391 U.S. 123 (1968).
21
That is the rule we respectfully urge the Court to
the emotional stress inherent in the police interroga-
tion process, the opportunity for abuse is too great to
be ignored. Once that statement is obtained, it makes
no difference to the police that the witness will repu-
diate it at trial ; so long as the witness is produced and
the requirements of the Confrontation Clause are
was made in the course of and in furtherance of the conspiracy,
and not during a subsequent period. Lutwak v. United States,
344 US. 604 (1953); Krulewitch v. United States, 336 U.S. 440
(1949).
22
reasons like these that this country has never reverted
to trial-by-affidavit, much less trial-by-unsworn state-
ment.*
If the rule were adopted, it would require reversal
here. First, a violation of due process in the admission
of a statement as incriminating as this one cannot be
‘*harmless error’’, regardless of what other evidence is
introduced against the defendant. Secondly, it is blink-
ing reality to believe that the jury could be unpersuad-
ed by the Possas statement, and there is simply no way
of knowing the extent of the persuasion. As another
court has said in a comparable situation, ‘‘We cannot
say with fair assurance that the jury was not substan-
tially swayed by the use of Tangney’s confessions
against Mora.’’ Mora v. United States, 190 F.2d 749,
753 (5th Cir. 1951). See also Kramer v. United States,
317 F.2d 114, 117 (D.C. Cir. 1963) (and cases there
cited).™*
Finally, the evidence supporting guilt cited by the
Second Circuit is meager at best. (a) As we have
18 This Court recorded its disapproval of the use of prior incon-
sistent statements as direct evidence in Bridges v. Wizon, 326 US.
135 (1945).
*4 The situation is comparable to that faced by this Court in
Robinson v. California, 370 U.S. 660, 665 (1962), where it said:
Although there was evidence in the present case that the
appellant had used narcotics in Los Angeles, the jury were
instructed that they could convict him even if they disbelieved
that evidence. The appellant could be convicted, they were
told, if they found simply that the appellant’s ‘‘status’’ or
‘‘ehronie condition’’ was that of being ‘‘addicted to the use
of narcotics.’’ And it is impossible to know from the jury’s
verdict that the defendant was not convicted upon precisely
such a finding.
23
noted, the jury itself did not accept all of Agent Le-
pore’s testimony, and the very fact that the Govern-
ment sought so diligently to bolster that testimony
with the Possas pre-trial statement is mute evidence
that the Government itself did not believe the agent’s
testimony could convict without that statement.” (b)
The telephone call to ‘‘Vinnie’’, where a few words
were heard from Possas’ end of the line and nothing
whatever was heard of the other end of the line, can
hardly reach to the dignity of incriminating evidence.
So far this record shows, the person on the other end
of the line, whoever it was, could have replied, ‘‘ What
in the world are you talking about ?”’ (ec) The incident
in Beverly Jalaba’s apartment involved not only a
questionable event in itself but a different date, a dif-
ferent drug, and a total absence of the drug sought by
the warrant.
Even if the Court disagrees with us as to the applic-
ability of a due process standard, we respectfully sub-
mit that since the Possas statement violated the federal
hearsay rule and should never have been used for the
truth of its contents **—as even the Second Circuit
® The Government told the Court of Appeals that ‘‘ * * * Possas
gave testimony on direct examination which, if believed, was fatal
to the Government’s case * * * *’ (Govt. Brief at 13).
'* This would be true whether the ‘‘orthodox”’ rule as to hearsay
is applicable or whether the Second Circuit exception to that rule
applies. See United States v. Cunningham, 446 F.2d 194 (2d
Cir.), cert. denied, 404 U.S. 950 (1971) ; United States v. Briggs,
457 F.2d 908 (2d Cir. 1972).
Recent Cireuit Court decisions prior to Green were unanimous
in upholding the orthodox rule. E.g., Byrd v. United States, 342
F.2d 939 (D.C. Cir. 1965) ; United States v. Nuccio, supra; United
States v. Schwartz, 390 F.2d 1 (3d Cir. 1968) ; Valentine v. United
States, 272 F.2d 777 (5th Cir. 1959) ; United States v. Lipscomb,
(Continued on Page 24)
Pe ae ee eee ee
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24
conceded—the conviction should not be allowed to
stand. Not only was the other evidence cited by the
Court of Appeals extremely meager, but the impact
of the statement must have been enormous.
The indications to date are that the Circuits are
converting this Court’s rulings under the Confronta-
tion Clause into an evidentiary rule applicable gener-
ally to hearsay in the federal courts. It is time that
the distinction be clearly drawn and that the reliance
on out-of-court statements, even when denied and re-
pudiated in court, be brought under some semblance of
control. This is particularly vital at a time when the
new Federal Rules allow so much leeway in the use
of such statements, and the danger thus increases that
a proper rule in a proper case will be increasingly
converted into an improper basis for criminal con-
viction.
Il. ILLEGAL SEARCH AND SEIZURE
Subsequent to Petitioner’s arrest, narcotics agents
obtained a warrant to search for 14 kilogram of heroin.
They conducted the search but found no heroin. They
did, however, find some 26 other items, all of which
425 F.2d 226 (6th Cir. 1970) ; United States v. Duff, 332 F.2d 702
(6th Cir. 1964); United States v. Barnes, 319 F.2d 290 (6th Cir.
1963); United States v. Rainwater, 283 F.2d 386 (8th Cir. 1960);
Brooks v United States, 309 F.2d 580 (10th Cir. 1962).
Since Green, at least three federal courts have upheld the efficacy
of the orthodox rule. Doss v. United States, 431 F.2d 601 (9th
Cir. 1970) ; United States v. Small, 443 F.2d 497 (3d Cir. 1971);
United States v. Neal, 452 F.2d 1085 (10th Cir. 1971). Im addi-
tion, the supreme courts of Louisiana, Illinois and South Dakota
have all reaffirmed their adherence to the orthodox rule State v.
Ray, 249 So.2d 540, 543 (La. 1971) ; State v. Williams, 246 So.2d
4, 5 (La. 1971) ; People v. Collins, 274 N.E.2d 77, 86-87 (Ill. 1971);
State v. Kietzke, 186 N.W.2d 551, 554 (S.D. 1971).
25
they seized. One of these items was a 12-ounce bottle
of boric acid, a common household disinfectant (JA
32-33). The rest apparently consisted of clothes and
miscellaneous other items from all parts of the apart-
ment. The boric acid was later used as evidence against
Petitioner, whereas the other seized items were stipu-
lated to have been irrelevant to the case against him.
At trial, an agent testified as an expert on narcotics
paraphernalia that boric acid was the “prime diluent
for the drug cocaine’’ (JA 563). Another agent testi-
fied that although he had seized only one bottle of boric
acid, he had seen ‘‘30 or 40” such “‘tins.”? The agent
had taken no photographs or other measures to sup-
port his assertion that the additional bottles existed.
In overruling Petitioner’s motion for a new trial
based on an illegal seizure under the Fourth Amend-
ment, the trial court ruled that ‘“‘instrumentalities of
erime”’ could be seized under the authority of a search
warrant even though not described in the warrant.
That position will not stand analysis, but we deal with
it only in a footnote,” since the Court of Appeals
adopted a broader, ‘‘plain-view”’ test.
The experienced agents involved in this case could not possibly
have ‘“‘reasonably believed’’—the test used by the trial court—
that a 12-ounce bottle of boric acid was being used, or was reason-
ably capable of being used, as a diluent, much less as the prime
diluent, for narcoties, or they would have seized all of the alleged
30 or more bottles.
If they were experienced and sophisticated enough to recognize
a common household item as a ‘‘prime’’ instrumentality of nar-
coties crime, then they were also experienced and sophisticated
enough to know that in fact boric acid is not and could not be used
as such—that its toxicity makes it highly inappropriate as a
diluent for intravenously taken narcotics. See Valdes-Dapena and
Arey, Boric Acid Poisoning, 61 J. Pediatrics 531 ( 1962); L. Wong
(Continued on Page 26)
eye
EMILE LORIE LR BID LEN
LEAS LSD IIE IED BO TE HT HI
18) A AMO RAME RASS
PRON AF Sy Sete
7
26
The Court of Appeals relied on Coolidge v. New
Hampshire, 403 U.S. 443 (1971), which was decided
one month after the search and seizure at issue in this
case. We submit that the ‘‘plain view’’ rule as enun-
ciated in Coolidge is an appropriate formulation of the
law in cases where the justification for the search is
and Others, Boric Acid Poisoning: Report of Eleven Cases, 90
Canad. Med. Ass. J. 1018 (1964); Krantz, Carr and LaDu, The
Pharmacological Basis of Medical Practice 780 (7th ed. 1969);
Goodman and Gilman, The Pharmacological Basis of Therapeutics
1041 (4th ed. 1970).
If, on the other hand, the agents are not expected to have been
expert enough to know the common pharmacological properties of
an everyday substance such as boric acid, surely they would be
expected to have knowledge common among narcotics agents. Yet
it is interesting to note that neither the Narcotic Bureau’s public-
ly-issued fact sheets nor its three-day seminar on drug abuse even
mention boric acid, the alleged ‘‘prime diluent’’. It is further
enlightening that during 29 pages of exhaustive testimony on nar-
eotics paraphernalia before a committee of Congress, the very agent
who testified in this case that boric acid is the ‘‘prime diluent”’
never once mentioned boric acid as a diluent at all. See Hearings
pursuant to H. Res. 17 before the Select Committee on Crime,
House of Representatives, at New York, N.Y. on June 25-30, 1970,
91st Cong., 2nd Sess., at 9-19, 77-95.
The trial court’s test for admissibility further required that the
item seized be an instrumentality of the crime ‘‘alleged’’. It is
clear that at the time the agents searched Petitioner’s apartment,
the only crime ‘‘alleged’’ in the warrant was possession of heroin
(JA 19). Thus, regardless of boric acid’s supposed relationship
to the drug cocaine, at officers must have reasonably considered it
as a diluent for heroin. Extensive hearings before the Select Com-
mittee on Crime into the heroin paraphernalia trade disclose that
while numerous substances such as quinine, lactose, dextrose and
mannite are commonly known as diluents among the law enforece-
ment community, boric acid is not. See Hearings pursuant to H.
Res. 17 before the Select Committee on Crime, House of Represent-
atives, at New York, N.Y. on June 25-30, 1970, and at Washington,
D.C. on October 5-6, 1970, 91st Cong., 2nd Sess.
Thus, by both the ‘‘reasonable belief’’ and the ‘‘crime alleged”’
elements of the trial court’s test, the seizure in this case cannot be
supported as a seizure of an instrumentality.
27
something other than a warrant. It has been and
should be used to test warrantless seizures for reason-
ableness. In cases where the search and seizure justifi-
eation is a warrant, however, the “‘plain view” rule is
inappropriate. There the test for reasonableness is
embodied in the probable cause and particularly re-
quirements of the warrant, and any seizure which has
not met those constitutional requirements cannot be
said to have been authorized under the warrant wheth-
er it meets the plain-view rationale or not.
The confusion in this area began with Harris v.
United States, 331 U.S. 145 (1947). In that case, FBI
agents arrested Harris in his apartment on charges
of mail fraud and transportation of a stolen check.
While searching the apartment subsequent to the ar-
rest and without a warrant, they tame upon and seized
a packet of stolen draft cards and later convicted
Harris of possessing them. On appeal, the Court (5 to
4) held that the draft cards had been properly admitted
into evidence since (1) they were property the posses-
sion of which was a crime, and (2) they were seized
during a proper search incident to a lawful arrest.
This holding would appear to have virtually no bear-
ing on the instant case, since boric acid is clearly not
property the possession of which is a crime, and the
search in question was concededly not conducted ‘‘inci-
dent to an arrest’’. In the majority opinion in Harris,
however, appeared a much misunderstood dictum:
This court has frequently recognized the distine-
tion between merely evidentiary materials, on the
one hand, which may not be seized either under the
authority of a search warrant or during the course
of a search incident to an arrest, and on the other
hand, those objects which may validly be seized
28
including the instrumentalities and means by
which a crime is committed, the fruits of crime
such as stolen property, weapons by which escape
of the person arrested may be effected, and prop-
— sa} possession of which is a crime. [331 US,
a ;
Any idea that this dictum may be said to stand
for the proposition that the various categories of items
listed may be seized under the authority of a warrant
which does not particularly describe the item seized
is negated by the statement on its face, and by the case
history from which it arose. On its face, the statement
concerned a distinction between items which could or
could not be seized with or without a proper warrant.
The distinction, commonly known as the ‘‘mere evi-
dence’’ rule, was first enunciated in Gouled v. United
States, 255 U.S. 298 (1921). This rule did not reach
the question whether an item could be seized under
the authority of a warrant if it had not been particu-
larly described in the warrant.
The Court met that issue in Marron v. United States,
275 U.S. 192 (1927), combined with an ‘‘incident to
arrest’’ issue such as was the basis of the Harris deci-
sion. In Marron, officers searching under a warrant
to seize intoxicating liquor and articles for its manu-
facture seized a ledger and several utilities bills which
were later used to convict Marron of conspiracy to
violate the Prohibition Act. While holding that the
seizure was authorized regardless of the warrant be-
cause it occurred incident to arrests taking place on
the premises, the Court in no uncertain terms set forth
its view as to what could be seized under the authority
of a warrant:
The requirement that warrants shall particu-
larly describe the things to be seized makes gen-
29
eral searches under them impossible and prevents
the seizure of one thing under a warrant describing
another. As to what is to be taken, nothing is left
to the discretion of the officer executing the war-
rant. [275 U.S. at 196."*]
A statement of relevant Fourth Amendment law
after Harris would thus be that although mere evidence
could never be seized, instrumentalities, fruits of crime
and contraband could be seized under a properly par-
ticular warrant or where the search was otherwise
authorized, such as by incidence to an arrest.
A further seizure justification had been suggested
in Harris. This was the idea that an item the posses-
sion of which was itself a crime could be seized irres-
pective of whether it was described in a warrant or
seized incident to an arrest. The rationale behind this
justification was similar to the rationale behind the
“mere evidence’”’ rule of Gouled, which had been
based on concepts of English property and forfeiture
law. See Kaplan, Search and Seizure: A No Man’s
Land in the Criminal Law, 49 Calif. L. Rev. 474, 475
(1961).
In Warden v. Hayden, 387 U.S. 294 (1967), the
Court re-evaluated the “‘mere evidence”’ rule and de-
8 This oft-quoted passage from Marron was cited by Mr. Justice
Frankfurter when he dissented in Harris. Although his dissent
was based on his belief that warrantless searches should be limited
in physical seope, he observed that the holding of the case had not
affected Marron:
But even if the search was reasonable, it does not follow that
the seizure was lawful. If the agents had obtained a warrant
to look for the cancelled checks, they would not be entitled
to seize other items discovered in the process. [275 U.S. at
165.]
30
cided that the ancient common law property and for-
feiture concepts upon which it was based no longer
obtained in the field of Fourth Amendment law. The
State, it said, could have as legitimate an interest in
competent criminal evidence as it had in fruits and
instrumentalities of crime. In Warden, the justifica-
tion for the search was “‘hot pursuit’’, which was
thereby added to ‘‘incidence to arrest’’ as an alterna-
tive to a properly issued warrant. Holding that under
such circumstances ‘‘mere evidence”’ could be seized
for use in a criminal prosecution, the Court noted
that its ruling still fell within the Fourth Amendment's
requirements.”
After Warden did away with the ‘‘mere evidence”
rule, officers could seize any item of competent evidence
if they met the other requirements of the Fourth
Amendment—.e., probable cause and particularity in
the case of warrants and reasonableness in the case of
other search justifications. It is apparent that this
change in the law had no bearing on the particularity
requirement expressed in Marron, because it dealt with
the question of what could be seized with a properly
particular warrant or under some warrant alternative.
It is in this context that we come to Coolidge v. New
Hampshire. There, where the seizure was made under
1” The Court said (387 U.S. at 309) :
The ‘‘mere evidence’’ limitation has spawned exceptions s0
numerous and confusion so great, in fact, that it is question-
able whether it affords meaningful protection. But if its
rejection does enlarge the area of permissible searches, the
intrusions are nevertheless made after fulfilling the probable
cause and particularity requirements of the Fourth Amend-
ment * ® ®,
31
the authority of an invalid warrant, the court dealt
with several alternative rationales advanced to uphold
the search independently of the warrant, one of which
was that the automobile seized was an ‘‘instrumental-
ity” of crime, and thus could be seized because it was
in plain view. Mr. Justice Stewart, in a plurality opin-
ion upon this particular issue, held that there was in
fact a ‘plain view”’ rule implicit in the law of search
and seizure—t.e., that ‘‘under certain circumstances
the police may seize evidence in plain view without a
warrant’’ (403 U.S. at 465). In order for a seizure to
be valid under the ‘‘plain view”’ rule, he said, (1) there
must be a prior justification for the intrusion (the
search), and (2) the seizure must be inadvertent. These
elements may be seen as formalizations of the case law
which had established (1) that no search would be con-
sidered valid which was neither authorized by warrant
nor justified as reasonable by incidence to arrest, hot
pursuit, consent, mobility or some other ‘exigent cir-
cumstance”’, and (2) that if the searching official had
knowledge of the place to be searched and the thing
to be seized, he must, in the absence of some emergency,
obtain a warrant.
In Coolidge, the plurality opinion found that the
seizure of the automobile in question did not satisfy
the inadvertence requirement, since the police knew
the car was there and intended to seize it all along. In
Petitioner’s case, the same lack of inadvertence exists.
The officers undoubtedly suspected the presence of nar-
cotics paraphernalia, intended to seize any they found,
and could have gotten a warrant for it had they asked
for one. Thus, the seizure in this case no more meets
the ‘‘inadvertence’’ requiren.cut than did that in Cool.
tdge.™
In summary, Marron established that in order for
a seizure under the authority of a warrant to meet the
particularity requirement of the Fourth
the item seized must be described in the warrant. Later
eases have elaborated on which descriptions will be
considered particular enough, and have established
other rationales such as the “‘plain view” and “dis.
covery of crime”’ tests to examine warrantless seizures,
But no valid later rationale has arisen to support the
i
i
;
ns
7
scription in the warrant, and the Court was careful to distinguish
situations where property seized was not described in the warrant.
aun aut
any item
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a a SS eee
Nos. 288, 328—September Term, 1972.
(Argued October 20,1972 Decided November 30, 1972.)
Docket Nos. 72-1709, 72-2088
Unrrep States or America,
Appellee,
Vv.
Vincent Pacetii and Demernios Parapaxos,
Appellants.
Before:
Waterman, Smiro and Kavrmay,
Circuit Judges.
Appeal from a judgment of conviction of Vincent Pacelli
and Demetrios Papadakos on trial to the jury in the United
States District Court for the Southern District of New
York, Milton Pollack, Judge, on charges of conspiracy to
violate §§ 812 and 841 of Title 21 of the United States Code,
and Pacelli also on substantive charges of violation of
§§ 812, 841(a)(1), 841(b)(1)(A) and 846 of Title 21 of the
United States Code and use of a telephone to facilitate a
felony.
Affirmed.
2a
E. Barrett Prerrrmax, Jz., Washington, DC,
for Appellant Pacelli.
Evusor A. Tarxerr, New York, N.Y., for Appel.
lant Papadakos.
Jouxs M. Watxen, Jn, Asst. US. A
(Whitney North Seymour, Jr., U.S. Attor.
ney for the Southern District of New York,
Kenneth Feinberg and John W. Nields, Jr.
Asst. U.S. Attorneys, of counsel), for Ap.
pellee.
Surru, Circuit Judge:
Appellants Vincent Pacelli and Demetrios Papadakos
were found guilty after a jury trial in the United States
District Court for the Southern District of New York,
Milton Pollack, Judge, of conspiring to distribute narcotic
controlled substances in violation of 21 U.S.C. $§ 812, 841.
Pacelli was also found guilty on three substantive counts
of a five-count indictment.’
Appellants claim that Rule 4 of the Second Circuit's
3a
On May 5, 1971, Agent John Lepore of the Bureau of
Narcotics and Dangerous Drugs first met Elisa Possas, a
trafficker in drugs and appellant Jimmy Papadakos’ girl-
friend. Possas gave Lepore cocaine to sample and pro-
cured for him a quantity of better quality. Possas assured
Lepore that she could obtain pure heroin from her boyfriend
and source, Papadakos. She refused, however, to introduce
the agent to Papadakos until she knew him better and had
completed the cocaine deal with him.
On May 20, Lepore again met Possas. She showed him
a sample % kilo of heroin. They agreed upon a purchase
price of $14,000. That night Lepore met Possas ostensibly
for a dinner date and to pay her for the heroin.When she
indicated that Pacelli would not allow her to take Lepore
to see him to complain about the quality of heroin sold to
the agent, Lepore signaled other agents and Possas was
arrested.
Warned of her rights, Possas was taken to the station-
house where, according to the testimony of Agent Devine,
she agreed to cooperate. She signed a statement which
explained her rights and then gave a statement to the
officers identifying Pacelli and Papadakos as her suppliers.
The statement was typed by Agent Devine and represented
a summary of her information. She initialed the changes
she made in reading over the typed summary and signed
*In response to Lepore’s question about the source of the heroin,
Possas said it came from ‘‘ Vinnie the Italian.’ She did not know
his last name but said that she had been invited to his wedding and
could get his name from the wedding invitation. Possas explained
that Vinnie and her boyfriend Papadakos were partners in a
heroin distributing ring which supplied customers from Chicago
and Detroit. Upon Lepore’s request that she call Vinnie, Possas
dialed a number registered to Beverly Jalaba, Vinnie’s fiancee.
She said, ‘‘Hello, Vinnie, this is Lisa. My man will take the half,”
and “‘Okay, I will see you later.’ Lepore called Possas at home
later that day to get Vinnie’s last name. Possas checked the in-
Vitation and told Lepore that it was Pacelli.
4a
the statement. Possas and several agents then returned to
her apartment to make a call to Pacelli. The call wag
answered by Jalaba who spoke with Possas about a wed.
ding dress; Possas told the agents that ‘“‘wedding dress”
was a code word for heroin.
Several hours later, agents went to Jalaba’s apartment
to arrest Pacelli. Those in the apartment initially refused
to open the door upon the agents’ announcement of their
arrival and purpose. After a few minutes, during which
time the officers heard the rattle of the venetian blinds and
a toilet flushing, the door was finally opened. Pacelli was
placed under arrest and warned of his rights. An agent
outside the building saw a package thrown from the apart-
ment window. He reported to the arresting officer who,
after seeing the package which contained four bags of
cocaine, placed Jalaba under arrest and warned her of her
rights. Later that afternoon the apartment was searched
for heroin pursuant to a search warrant. Among the items
seized was a container of boric acid found in a shopping
bag in the kitchen which contained 30-40 other tins of the
acid.
Papadakos was arrested on May 27, 1971.
At trial, the government called Elisa Possas, who had
pleaded guilty to Counts I, II, III and V of the indictment.
She denied knowing Pacelli, denied that either Pacelli or
Papadakos was her source, and repudiated the statement
given to the police, claiming that she signed it thinking it
to be deportation papers. She testified that while at the
stationhouse she was high on drugs, that she was terribly
upset and talking wildly. The government then introduced
the content of the statement through the testimony of
Agent Devine.
After the government’s case, the court dismissed the
charge against defendant Jalaba for lack of evidence. The
jury returned a verdict of guilty against Pacelli on Counts
——
5a
I, III, IV and V, and innocent on Count II which charged
distribution of cocaine to West, a government informer
on May 3. Papadakos was found guilty on the conspiracy
count and acquitted on substantive Count ITI.
The government filed its notice of readiness on November
12, nine days before the six-month period allowed under
the Second Circuit’s Rules Regarding the Prompt Disposi-
tion of Criminal Cases expired, requesting ten days notice
of trial date. The court correctly held that the speedy
trial rules were not violated, since the government had
timely declared its readiness and the ten-day notice re-
quested by the government was not binding on the court.
The court could have called the parties to trial without the
ten-day notice.
The admission of Possas’ post-arrest statement was not
reversible error. Appellants make no claim that its admis-
sion violated their Sixth Amendment right to confront wit-
nesses against them, since Possas was on the stand ready
to testify. California v. Green, 399 U.S. 149, 158-159 (1970).
Nor was there any violation of due process in admitting
Possas’ unsworn statement into evidence. As in Green,
supra, breach of the evidentiary hearsay rule did not result
in a per se violation of due process. There was substan-
tially identical evidence in the record here to support
appellants’ conviction. The essence of the post-arrest
statement was introduced through Agent Lepore’s testi-
mony concerning Possas’ statement made to him during the
conspiracy. Possas’ telephone call to a number registered
to Pacelli’s financee with whom Pacelli was living, the state-
ment of Possas to Pacelli that her man wanted the “‘stuff’’
was some evidence connecting Pacelli with the conspiracy.
Evidence of the drugs seized at the time of appellant’s
arrest and the subsequent search of Jalaba’s apartment
furnished additional support for the statements made con-
cerning Pacelli’s involvement in the narcotics business.
Failure to prove infringement of his constitutional
rights, however, does not of itself dispose of Pacelli’s claim.
6a
Violation of the hearsay rule, if prejudicial, might also
support reversal. Admission of Possas’ statement without
instructions to the jury limiting its use to the issue of
credibility violated the hearsay rule as applied in this
circuit.’
The statement might properly have been admitted for a
limited purpose; Possas failed not only to help the prose.
cution but testified against the government’s case. In the
face of her testimony that she neither knew the defendant
nor received drugs from him, the government could use
her prior statement to impeach her as a witness. Taylor
v. Baltimore € Ohio R.R., 344 F.2d 281, 283-84 (2d Cir,),
cert. dented, 382 U.S. 831 (1965). The permissible effect
was merely to cancel out the unexpected contradictory tes-
timony made on the stand. Error therefore was made not
in the admission of the statement but in the court’s failure
to give proper limiting instructions.
Review of the record, however, leads us to conclude that
the error in this case was harmless beyond a reasonable
doubt. Chapman v. California, 386 U.S. 19, 26 (1967).
Agent Lepore had already testified as to the substance of
the statement incriminating the appellant made by Possas
prior to Possas’ arrest; these statements made in further-
ance of the conspiracy could be used substantively against
the defendant. The court was quite correct in thinking
futile and unnecessary an attempt to erase from the jury’s
mental slate one of two substantially identical pictures.
Moreover, the telephone call to Pacelli and the drugs found
in Jalaba’s apartment all strongly support conviction.‘
* This court expressly refused only last term to anticipate the
proposed Federal Rules of Evidence (801d) or to expand its
exception to the hearsay rule enunciated in Desisto as the gov-
ernment again asks us to do. United States v. Briggs, 457 F.2d
908, 910 (2d Cir. 1972) ; United States v. Cunningham, 446 F.2d
194, 198 (2d Cir), cert. denied, 404 U.S. 950 (1971).
* Appellant Papadakos adopted the arguments advanced on this
issue by Pacelli. Our ruling as to Pacelli apply as well to
Papadakos.
e_
7a
Relying on United States v. Dzialak, 441 F.2d 212 (2d
Cir.), cert. dented, 404 U.S. 883 (1971) and United States
v. LaVallee, 391 F.2d 123 (2d Cir. 1968), appellant Pacelli
argues that seizure of boric acid, a diluent for cocaine,
under a search warrant specifying only heroin, was viola-
tive of his Fourth Amendment rights. Appellant miscon-
ceives the import of the Supreme Court’s decision in Cool-
idge v. New Hampshire, 403 U.S. 43 (1971). Both the
majority and dissenters found that where a police officer
has a warrant to search a given area for specified objects,
and in the course of the search comes across some other—
article of incriminating character, the property is seizable
under the plain-view doctrine. 403 U.S. at 465, 514-516.
The determinative factor in all plain-view seizures is
“that the police officer .. . had a prior justification for an
intrusion in the course of which he came inadvertently
across a piece of evidence incriminating the accused. The
doctrine serves to supplement the prior justification—
whether it be a warrant for another object, hot pursuit,
search incident to lawful arrest, or some other legitimate
reason for being present unconnected with a search di-
rected against the accused—and permits the warrantless
seizure.”’ Coolidge, supra, at 446 (emphasis supplied).
Seizure of mere evidence as well as instrumentalities or
contraband is justified under the doctrine. Coolidge, supra,
at 464. In the case at bar narcotics agents entered appel-
lant’s fiancee’s apartment under the authority of a prop-
erly executed search warrant. The warrant specified the
% kilo of heroin Possas had informed Lepore would be
there. While searching for the heroin which was not found,
the officers came upon 30-40 tin containers of boric acid,
a diluent of cocaine, in a shopping bag in the kitchen. The
agents had entered looking for heroin; they found a large
quantity of boric acid—incriminating evidence of illegal
drug activity. There is no evidence to show prior knowl-
edge of the boric acid or its location, nor of any intent to
8a
seize such evidence prior to its being found. Under Cool.
idge the search was reasonable.® The boric acid, seized jn
a search for heroin, was obviously relevant evidence of g
closely related drug activity and properly subject to sej-
zure, especially in light of the cocaine found at the scene
of the arrest earlier that morning.
A more than four-hour ransacking search of appellant’s
apartment for any possible incriminating evidence required
reversal of United States v. Dzialak, 441 F.2d 212 (2d Cir.
1971). Police in that case had a search warrant for 27%
pairs of hosiery, a bicycle and a carton of binoculars, items
believed to have been stolen. They seized a bike, five boxes
of hosiery, twelve pieces of telescope equipment, twenty.
one Timex watches and five shipping papers to the watches,
While finding that the optical equipment was sufficiently
covered by ‘‘binoculars’’ in the warrant, the court held that
the Timex watches were the fruit of a general search pro-
scribed by the Fourth Amendment. 441 F.2d at 216-217,
There is no evidence of such a ransacking general search
5 Nor are our decisions in LaVallee and Dzialak to the contrary,
The question of the constitutionality of seizure of unspecified prop-
erty unexpectedly discovered in the course of a lawful search which
is reasonably related to the purpose of the search was expressly
left open in United States v. LaVallee, 391 F.2d at 127. In that
case, newspaper clippings concerning burglaries were seized under
authority of a warrant to search for various machines and para-
phernalia used by a licensed locksmith which property was in
violation of § 408 of the Penal Law. Reversing the conviction,
the court focused on the nature of the evidence seized, observing
that ‘‘[t]here is no evidence that anything which was mentioned
in the newspaper clippings concerned anything said or done by
[defendant] ; and they were certainly not contraband which would
show that another, different offense was being committed in the
presence of the police... The clippings are at best of dubious
evidential value and, standing by themselves, would be a highly
questionable subject for issuance of a search warrant.’’ 391 F.2d
at 127.
— — SS eh Um |
eS FF BESS eEeeeSeSllllet—C
9a
of Jalaba’s apartment; the boric acid was found in a shop-
ping bag in plain view in the kitchen.°
As the evidence seized was material and incriminating,
and found in plain view within the scope of a limited
search for heroin under authority of a properly executed
search warrant its seizure was reasonable and its admis-
sion into evidence proper.
Appellant Papadakos raises his earlier plea to a second
indictment before Judge Gurfein as a bar to prosecution
under the indictment in this case, claiming that the same
crime is the subject of both indictments. The earlier in-
dictment, the one now at issue, charged appellant with
conspiracy to possess for distribution and distribution of
narcotic substances; violation of the same law, §§ 812 and
841 of Title 21 of the United States Code, was charged in
the second indictment. Appellant relies on the identity of
the offense charged and an overlap of seventeen days in
the two charged conspiracies to show that the agreements
were not separate and distinct but rather one overall con-
spiracy. Offenses for the purposes of double jeopardy
must be the same in law and in fact. Dryden v. United
States, 403 F.2d 1008, 1009 (5th Cir. 1968). They were not
the same here. Although the times alleged in the indict-
®Both United States v. LaVallee and United States v. Dzialak
cite Marron v. United States, 275 U.S. 192 (1927) for the proposi-
tion that items not specified in a search warrant may not be seized
under its authority.
The Supreme Court’s decision in Coolidge casts doubt upon the
continuing validity of such reliance. In his dissent, Justice White
observes, ‘‘I have my doubts that ... Marron can survive later cases
in this Court.... Apparently the majority agrees, for it lumps
plain-sight seizures in such circumstances along with other situa-
tions where seizures are made after a legal entry.’’ 403 U.S. at 515.
The majority, however, while allowing seizures of unspecified
objects pursuant to a warrant, apparently does not consider Mar-
ron overruled. The Court uses Marron’s result upholding the seiz-
ure of ledgers not specified in a search warrant as an example of its
inadvertence rule.
a ee
10a
ment here overlapped, the facts proved occurred in two
separable periods, three months apart.
Offenses are not the same merely because they arise out
of the same general course of criminal conduct; ‘‘they are
the ‘same’ only when ‘the evidence required to support a
conviction upon one of them [the indictments] would have
been sufficient to warrant a conviction upon the other.’”
United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961).
While the two indictments charged the same type of crime,
the only common conspirator was the appellant, moreover
the overt acts charged in each indictment were entirely
different, some indication of lack of identity.”
Appellant urges that the proper test is that used in
Short v. United States, 91 F.2d 614, 621 (4th Cir. 1937),
in which the court rejected reliance on overt acts alleged
and focused instead on whether it appeared that the gov.
ernment had merely carved one larger conspiracy into
smaller, separate agreements. Even on this test, however,
the record clearly demonstrates that this was not the case
here. Arrest and charges under the first indictment were
made before the actions alleged in the second indictment
even took place. There is nothing indicating any connec.
tion between the parties or agreements of the May and
August transactions. At the time of his plea, appellant
himself did not consider the offenses the same under the
two indictments, pleading guilty to those crimes charged
in the second but steadfastly maintaining his innocence as
to those in the first. The court did not err in its refusal
to grant an evidentiary hearing on Papadakos’ claim of
double jeopardy.
Appellant Pacelli’s challenge to the admission of his
statement of ownership of the cocaine thrown from Ja-
laba’s window on the grounds that he was not informed of
his right to the presence of an attorney, is answered by
™Compare, Ferracone v. United States, 29 F.2d 691, 692 (7th
Cir. 1928); Henry v. United States, 15 F.2d 365 (1st Cir. 1926)
a ae J ovr Ff FF
sat. dental, Gb Uae Oot Con
aie det Camb teams tech mane oe
main silent, that he did not have to make any statements
to the officer, that he had a right to an attorney and that
if he couldn’t afford one the court would appoint an attor-
ney for him. The instructions fully informed appellant of
his rights.
Judgment affirmed.
za 17
Government's Exhibit §
STATEMENT OF RIGHTS AMD WAIVER quEameanene
Vt woe 90 Church Street, New Tock, New Yor‘
afr
A
Before we ask you any questions. you acst understand your rights You heve the
right (o remens sileat Asything you sey can be ued agsiast you is Court o other
proceedings You heve the right to talk toe lawyer far advice before we ask you
oy questions amd to hewe him with you ¢uring questioning You hewe this right
to the advice and presence of « lawyer ever if you ceanct afford to hire ome ie
sach « case you heve « right [o heve « court - eppouted etiormey present st the
iaterrogst ion E you wish (o enewer questions sow without « lawyer presest you
hove (he right lo Stop easwering questions sf any time You also have (he right to
Stop enewering st eey (ume until you talk tos lawyer
You may waive the right to advice of counse! and your right to remein silest and
ean wer QurSiioms of make @ statement withow consulting « lawyer if you so desu
TAIVER
1 heave coed (") had read to me the statement of my rights shows above.
SES tents ears
statement. | do not went « lawyer. | understand and know whet lem doing. No
prommes o threets heve been made fo me amd no pressure of ey kind hes beer
wed aguinat we. I was taken into custody st (time i@°CO >) am {ra
= tm, -20-2: and neve signed thus document of
(time) 3S) A. Ara. on (dte)__ SF - RO -2/
om Dae SUPERSEDES FORE FO-2008 (0 66) OHIC™ G OBSOLETE
13a
APPENDIX C
ma 18
Government's Exhibit 8A
STATEMENT OF ELISA MARIA C. PCSSAS SIVEN TO SPECIAL AGED TS THOMAS J. DSving
ASD @. JAMES KING III AT THE OPPICE F THE BNDD, 90 CHURCH! STREET, NEW Your
ON MAY 20,1971. THE POLLOWING STATEXENT IS TRUE ALD CORRECT TC TYS BEST o7
MY KNOWLEDGE. NC TREATS, PCRCE, O2 PU'SISES OF REWARDS WAVE SED MDE Tr
BE APO THIS S‘AT]’ENT IS PRIELY AD A'Ur TAVILY Gl va.
On May 20,1971 1 was arrested by Federal Agents after i delivered a half kiloge
of heroin to an undercover agent. The hercin that I zave to the agent had bess
hidden in the apartment of my girlfriend, Pat "ARKS without her knowledge for
about five days. On about “ay 15,1971 my boyfriend Jimmy PAPADAK(S told ae the
I would recieve a key to « subway locker with written instructions on exactly
where the locker and the heroin was located. Someone put these instructions ay
a key under ay apartment door and on the same day * went to the 14th Stree:
subway and picked up a half kiolgram of heroin from a locker.
4 few days later I went to Vinnie PACELLI and told him that I had picked up his
package. I told him that I knew that he was the one that had put the heroin is
the locker in the 14th Street subaway and he told me that I was correct and the
the hal@ kilogram of heroin belonged to him, I then t: 1d Vinnie that I wanted t
sell this heroin to my own customer without Jimmy PA°ADAKOS knowing about the
sale. 1 asked Vinnie if he could replace the heroin that I sold to ay customer
before Jimmy PAPADAKOS found out that it was missing. Vinnie PACELLI told m
that he would cive me another half kilo of heroin in exchange for $11,000.00
after I sold the first half kilogras.
After] geve the heroin to the agent I then went to VinmiePACEL.i's house at
. 30 &Cth Street apartment #27-S, New York. I then told Vinnie that I had
given his package to my customer and that / would recieve the money by 9:00m
that night. ( May 2(,1971). Vinnie told me that he would stop at my apartment
later in the night to see if 1 had recieved ay money and if so, he would take
the $11,000 that I owed him for his apcxage. He also told me that if 1 had th
money , he would then so and get ancther half kilogram of heroin to rephise the
one that I sold. After I was arrested I tried to get in touch with Vinnie tut
I c:uld not locate him. I called several places that 1 know he frequents but I
was still unable to reach hia.
I wet Jimmy PAPADAKCS about two years ago here in New York. I started to liv
- with him in apartment and shortly afterward he taught me the business of
dealing in cocafne and heroin. I sold $100.00 “spoons” of cocaine for Jimmy (Mm
in several clubs ard taverns througout New York City. I also delivered cocain
in ounce and fcur ounce quantities and «m accassion I delivered scoe quarter
kilograms of cocaine to some of Jicmy's c..stozers.
Vinnie PACI’.LI was Jimmy “APADAKOS' connection for all of the heroin and cccain
that Jimmy supplied to his customers. In addition, JIM‘Y “APADAK(S would deliver
cocaine and heroin to most of the custocers that Vif N1E PACSLLI sold his
‘ Cn
$,.4.3 Sade ius, we test En
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.