# Petition for Writ of Certiorari — Ortega v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0093%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1973 - **Citation:** 411 U.S. 948 ## Text + Ore eee Tt S) ene te |B! FEB 8 197 MICRAEL RODAK, nop IN THE Supreme Court of the United States October Term, 1972 No. 9 Q-1 0 9 S LUIS GOMEZ ORTEGA, Petitioner, a e . Vs. we THE UNITED STATES OF AMERICA. ce PETITION FOR WRIT OF CERTIORARI TO THE ir: UNITED STATES COURT OF APPEALS a FOR THE SECOND CIRCUIT Heratp Price Faurincer, Esq., Attorney for Petitioner, One Niagara Square, Buffalo, New York 14202, (716) 856-8490. Lipsitz, GREEN, FAHRINGER, Rott, ScHULLER & JAMES, of Counsel. February, 1973. BATAVIA TIMES, LAW PRINTERS, ap BATAVIA, &. Y. F PAGE Opinions Below .............-eeee eee e cece reer tenes 1 Gets tcceaetsuaealakbenneebaakesnven 2 Questions Presented ............-..seeeeeeeeeeeees 2 rr ey os a cace cenbabnwebenenes 3 I SEER ete le Ba Oy RP 3 Reasons for Granting the Writ ..................... 7 I. The petitioner’s Constitutional right of Confron- tation was violated by the government’s refusal to disclose the identity of an informer who par- ticipated in the event to the extent that he ac- quired, transported and actually delivered the narcotics to other defendants ................. 7 : Il. Where the police for three days had known of the narcotics in the car and had ample time to secure a search warrant, there were no exigent circumstances justifying the warrantless search 3 of the car. : The search of the apartment in New Jersey : was unlawful because no facts were set forth in : the supporting affidavit connecting those prem- j a Co eda gia eae 15 3 a Appendix “A”—Opinion of Court of Appeals........ TI. TABLE oF CASES. PAGE Aguilar v. Texas, 378 U.S. | rrr rs te 20 Brinegar v. United States, 338 U.S. 160 (1949) ........ 18 Carroll v. U. S., 267 U.S. 132 (1925) .........-----.. 18, 19 Chambers v. Maroney, 399 U.S. 42 (1970) ........-. 18, 19 Chimel v. California, 395 U.S. 752 (1969) ........... 16, 18 Clingan v. U. S., 400 F.2d 849 (5th es ae 10 Coolidge v. New Hampshire, 403 U.S. 443 (1971) . .16, 19, 21 Ferrara v. State of Florida, 101 So.2d 797 (1958)...... 10 Gilmore v. United States, 256 F.2d 565 (5th Cir. 1958).. 10 Johnson v. U. S., 333 U.S. 10 (1948), .........-.---05. 18 Jones v. U. S., 362 U.S. 247, 272 (1960) .............. 7 Katz v. U. S., 389 U.S. 347 (1967) .......--- 2 eee eee 19 Lopez-Hernandez v. U.S., 394 F.2d 820 (9th Cir. 1968). 10 McCray v. Illinois, 386 U.S. 300 (1967) .....-..-.---- 7 Morss v. Forbes, 24 N.J. 341, 132 A.2d 1 (1957)...... 10 Peters v. Hobby, 349 U.S. 331, 352 (1955) .......... 7 People v. Castro, 29 N.Y.2¢ 324, 277 N.B.2d 654 (1971). 10 People v. Cerrato, 24 N.Y.21, 246 N.E.2d 501 (1961).. 10 People v. Clifton, 42 Tl.2d 526, 250. N.B.2d 649 (1969)... 10 People v. Garcia, 67 Cal.2d 830, 64 Cai, Rptr. 110, 434 Bead BOS (IDGT) ..w. cc cccccccccccccccccccccccaces 10 People v. Hunt, 4 Cal.3d 231, 93 Cal.Rptr. 197, 481 P.2d SE GIIIED ov cok cack dae ccctcnsccceccenaceessess 10 People v. Mack, 12 Ill.2d 151, 145 N.B.2d 609 (1957).... 10 People v. MeShann, 50 Cal.2d 802, 330 P.2d 33 (1958).. 10 People v. Pena, 18 N.Y.2d 837, 222 N.E.2d 604 (1966).. 10 People v. Strong, 21 II].2d 320, 172 N .2d 765 (1961)... 12 Portomene v. U.S., 221 F.2d 582 (5th Cir. 1955)....... 10 Preston v. U. S., 376 U.S. 364 (1964) ............... 16, 21 Price v. Superior Court, 83 Cal.Rptr. 369, 463 P.2d 721 SUE sarc ccbku rer nbe see nin sicsseneese naw ndens 10, 11 Rivera v. Superior Court, 6 Ariz. App. 117, 4380 P.2d eo aaePeererrrrrrere ree eee 10 Roviaro v. U. S., 353 U.S. 53 (1957) ...........06 9, 10, 14 — TI. PAGE Sherman v. U.S., 356 U.S. 369 (1958) ................ 12 Sorrentino v. U. S., 163 F.2d 627 (9th Cir. 1947)...... 10 State v. Godwin, 106 Ariz. 252, 475 P.2d 236 (1970).... 10 State v. Martinez, 15 Ariz. App. 430, 489 P.2d 277 SORE cissnytcovensu ein. meee Ge. 10 U.S. v. Andolschek, 142 F.2d 503 (2d Cir. 1944)....... 10 U.S. v. Anthony, 444 F.2d 484 (9th Cir. 1971) ........ 9 U.S. v. Bailey, 458 F.2d 408 (9th Cir. 1972)........... 21 U.S. v. Barnett, 418 F.2d 309 (6th Cir. 1969) ......... 10 U.S. v. Bueno, 447 F.2d 903 (5th Cir. 1971) .......... 12 U.S. v. Chisum, 312 F.Supp. 1307 (C.D.Cal. 1970)..... 12 U.S. v. Coke, 339 F.2d 183 (2d Cir. 1964) ............ ) U.S. v. Collins, 439 F.2d 610 (D.C.Cir. 1971).......... 16 U.S. v. Conforti, 200 F.2d 365 (7th Cir. 1952)......... 10 U.S. v. Coplon, 185 F.2d 629 (2d Cir. 1950) .......... 10 U.S. v. D’Angiolillo, 340 F.2d 453 (2d Cir. 1965) ...... 10 U.S. v. Kelly, 449 F.2d 329 (9th Cir. 1971) ........... 9 U.S. v. Li Fat Tong, 152 F.2d 650 (2d Cir. 1945) ...... 9 U.S. v. Nugent, 346 U.S. 1, 14 (1953) ................ 7 U.S. v. Payne, 429 F.2d 169 (9th Cir. 1970) .......... 16 U.S. v. Rabinowitz, 339 U.S. 56 (1950) .............. 16 U.S. v. Roberts, 388 F.2d 646 (2d Cir. 1968) ......... 10 U.S. v. Russ, 362 F.2d 843 (2d Cir. 1966) ............ 9 U.S. v. Russell, 459 F.2d 671, 11 Cr.L. 2108 (9th Cir. ee ._, SRE Pe Sa eh Ne Eee a 12, 13 U.S. v. Van Leeuwen, 397 U.S. 249 (1970) .......... 16, 17 U.S. ea rel. Knauff vy. Shaughnessy, 338 U.S. 537 (1950) Velarde-Villarreal v. U. S., 354 F.2d 9 (9th Cir. 1965).. 10 Warden v. Hayden, 387 U.S. 294 (1967) ............. 19 PWT HEP P RMRESEE BME IESE NTS RE aT Vay A PN 4 ALP OAS NN POE RZ SET IV. Sta ’ PAGE American Law Institute Model Penal Code, § 2.13[1] [6]; Proposed Official Draft, 1962 ................ 13 Title 21, United States Code: §§ 812, 841, 952, 957 and 960 ..........----e ee eens 9 , pis ToS)! ' |) errr eee eee 2 ConSTITUTION. United States Constitution: Os dt ee aa eae 3 aa bebcd (bees ud hue vawe 14 MISCELLANEOUS. Anno. 76 A.L.R.2d 262 (19G1) ......cccccccccccseces 10 Rules of Practice and Procedure of the Judicial Con- aes OO. a errr eer rere ll BLEED THROUGH POOR COPY IN THE Supreme Court of the United States October Term, 1972 UI -ShasdoshoiatSiaccchaactvin LUIS GOMEZ ORTEGA, Petitioner, V8. THE UNITED STATES OF AMERICA. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioner Luis Gomez Ortega prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Second Circuit entered in this case on December 11, 1972. Opinions Below The opinion of the Court of Appeals dated December 11, 1972 is not yet reported. It is reprinted in the Appen- dix at page A-1, infra. The District Court of the Southern District of New York did not write an opinion. COPY BOUND CLOSE IN CENTER 2 Jurisdiction Following a jury trial, the petitioner was found guilty of conspiracy to import, distribute and possess heroin and the substantive offense of possessing with intent to distri- bute a dangerous drug in violation of §§ 812, 841, 952, 957, and 960 of Title 21 of the United States Code. On April 14, 1972 the petitioner Ortega was sentenced to ten years and fined $10,000 on count one, and to fifteen years and $25,000 on count two, the prison terms to run consecutively. On December 11, 1972 the United State Court of Appeals for the Second Circuit affirmed the petitioner’s judgment of conviction. This petition for writ of certiorari is filed in a timely fashion, an extension of time having been granted by Mr. Justice Marshall by an order dated Decem- ber 29, 1972. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). Questions Presented 1. Whether the government in a drug case can refuse to disclose the name of an informant who actually partici- pated in the offense to the extent that he acquired, trans- ported and actually delivered the narcotics to other de- fendants. 2. Whether the seizure of the drugs in the automobile without a search warrant, three days after its entry into the United States while the car was under constant surveil- lance, violated the petitioner's rights under the Fourth Amendment. BLEED THROUGH POOR COPY REA oe 3 3. Whether the search of the apartment in New Jersey violated the petitioner’s Fourth Amendment rights because no facts were set forth in the supporting affidavit connect- ing those premises with the sale of narcotics. Constitutional Provisions AMENDMENT IV 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 probable cause, supported by Oath or affirmation, and particularly describing the place to he searched, and the persons or things to be seized. AMENDMENT V No person shall be held to answer for a capital, or other- wise infamous crime, unless on a presentment or indict- ment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he compelled in any criminal case to he a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Statement of Facts This case is the latest fallout to reach this Court from the government’s continued misuse of secret informers. The facets relevant to the informer issue can be introduced to the Court in a summary fashion. eee Peter ERR REISER PUIG, PAT hav BBP: COPY BOUND CLOSE IN CENTER 4 Sometime before August of 1971 a government informer, code named “Festus”, purchased a Jaguar car in France and, with the knowledge of the FBI, loaded it with 93 kilo- grams of heroin which he concealed within the car’s body- work (S-34, 164, 511, 927). On August 3, 1971 the car was registered in the informer’s name and on September 10 it was shipped to New York City under the name of the informer, accompanied by him and FBI agents (274-276, 339, 927). On September 16, 1971 the car was subjected to two searches upon its arrival at Pier 92 in New York City. One was conducted in the hold of the ship and the other while the car was on the pier (S-117). One package of heroin was seized while the car was at the pier, but the rest of the drugs were allowed to remain in the automobile (S-79, 270). The informer then drove the car to the Playboy Club in Manhattan and left it downstairs in the General Motors Building (332, 333). While the automobile was in the base- ment parking area of the General Motors Building, the FBI dismantled it and removed 178 bags of heroin, but left one bag, half of a kilogram, in the car? The confiscated hags were replaced with replica bags containing milk sugar and quinine (S-73, 164, 333, 375, 376, 496, 504, 934). That same day the informer took the Jaguar to the Madison Square Garden Garage twice and then to the Hotel Pierre. The next day he drove the car to a garage across the street from Madison Square Garden and left it there (339). 1 Numbers in parentheses refer to the pages of the original trial transcript and, where preceded by “S”, to the suppression hearing. 2 The informer executed a written consent authorizing the search and was never tried. wa 5 He then went into Madison Square Garden and, by pre- arrangement, met Etienne Gunther, to whom he delivered the parking ticket for the car (85). On September 18 Gunther met Jean Orsini at the Abbey- Victoria Hotel and passed the parking ticket on to him (95-97). Orsini said that he could not have the money until Monday or Tuesday (99). Gunther never had any contact with Ortega or Perez. That evening, George Warren Perez was seen driving the petitioner Ortega and Jean Orsini away from the Alrae Hotel in Manhattan in a Ford stationwagon which was located three days later at 608 82nd Street in North Bergen, New Jersey (559-560). In the early morning hours of September 19, Luis Ortega gave the parking ticket for the Jaguar to Winston Dyer, : who was employed as an attendant by the New Garden Garage in Manhattan. Another attendant went to get the 7 car but returned, stating the car would not start (61, 614). The attendant and petitioner Ortega went upstairs and coasted the car down the ramp to the main floor (614). Eventually the car was started and Ortega drove it down West 31st Street, while Perez and Orsini followed in a Chevrolet. When it reached 8th Avenue it stalled (763). Thirty FBI agents were swarming all over the area, keeping the car under surveillance, and Agent Devine asked if he could assist the petitioner Ortega in starting the car ; (S-197, 763). Devine was unable to start the car ( 763). Fifteen to twenty minutes after the car’s breakdown, the j petitioner Orsini and Perez were arrested and the narcotics were seized from the car without a search warrant (328). %On December 14, 1971 Gunther, defecting to the government, plead guilty and testified at the petitioner’s trial. His wife Raymonde, 3 who was originally charged with narcotics violations, received amnesty : of the Jaguar (Gov’t Ex. 4). : oe Federal agents, armed with search warrants, then searched Room 6-J in the Alrae Hotel, and the premises known as 608 82nd Street, North Bergen, New Jersey. In the North Bergen apartment the authorities seized a scale. Petitioner Ortega’s address was 597 Riverside Drive (529, 558, 594. 595). No incriminating evidence was found on his person or in his home. No conversations were ever overheard among Ortega, Orsini or Perez (S-40). Nothing was ever exchanged among any of these defendants (S-40). The only contaet among Luis Ortega, George Warren Perez and Jean Orsini was when they were in each other’s company outside the Alrae Hotel on the 19th of September (404). Appellant Orsini stated in an affidavit filed with the trial court that he entered this country for the purpose of picking up a 1971 Jaguar sedan but that he did not have a driver’s license permitting him to operate the vehicle in this country.* Orsini swore that he contacted appellant Ortega for social purposes and, since he could not operate the car, he asked him to assist in driving the vehicle from the New Madison Square Garden Garage. Orsini forthrightly stated that petitioner Ortega had absolutely no knowledge that the Jaguar contained heroin concealed in its bodywork. The only reason Ortega was with Jean Orsini on the night of September 19 was to assist him in driving the car to its ultimate destination. As previously stated, petitioner Ortega was convicted on March 7 as charged and sentenced on April 14, to 2% years imprisonment. The judgment of conviction was affirmed December 11, 1972 by the United States Court of Appeals for the Second Circuit. 4 These facts, and those that follow, are found in the supporting affidavits for Ortega’s motion requesting a severance. BLEED THROUGH POOR COPY — REASONS FOR GRANTING THE WRIT I. The petitioner’s Constitutional right of Confrontation was violated by the government’s refusal to disclose the identity of an informer who participated in the event to the extent that he acquired, transported and actually de- livered the narcotics to other defendants. 7 The judgment below, denying to the defense disclosure of the government informer’s identity, raises the gravest constitutional doubts. The awful spectre of the misuse of secret informers has stalked across the pages of this Court’s decisions for more than a deeade.® The melancholy forecast in the comments of members of this Court, noted below, has all too soon been fulfilled. This case, more than any other confirms the Court’s worst suspicions of how the use of informers can he treacherously abused. 5A few illustrative instances where members of this Court have revealed their misgivings about the use of secret informers are: “It is not unknown for the arresting officer to misrepresent his connection with the informant, his knowledge of the informer’s reliability, or the information allegedly obtained from the in- formant.” Mr. Justice Douglas’ dissent in McCray v. Illinois, 386 U.S. 300, 316, n. 2 (1967). “The plea that evidence of guilt must be secret is abhorrent to free men because it provides a cloak for the malevolent, the misin- formed, the meddlesome, and the corrupt to play the role of in- formant undetected and uncorrected.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 551 (1950). “When we relax our standards to accommodate the faceless in- former, we violate our basic constitutional guarantees and ape the tactics of those we despise.” Peters v. Hobby, 349 U.S. 331, 352 (1955). “The prejudicies, the credibility, the passions, the perjury of the informer are never known. If they were exposed, the whole charge might wither under the cross-examination.” United States v. Nugent, 346 U.S. 1, 14 (1953). “This is an age where faceless informers have been introduced in- to our society in alarming ways.” Jones vy. United States, 362 U.S, 257, 272 (1960). RRL ATT PEPE IN 8, 7: ssi da WW OTILGA TEN MY FIMO We he SN Tk Lt al a COPY BOUND CLOSE IN CENTER 8 The mishandling of secret informers in law enforcement today is reaching epidemic proportions. Consequently, no case deserves review by this Court more than the one at bar. The informant’s involvement in this prosecution is staggering and goes far beyond any other previously re- viewed by this Court. Here the informer purchased the Jaguar in his own name, loaded it with heroin, and shipped it under his name to the United States (34, 164, 339, 927). He brought the drugs through customs and drove the car around New York for three days (30, 79, 270). A consent form for the search of the car was executed by him, which the government claimed authorized the dismantling of the automobile at the General Motors garage, where 178 bags of heroin were seized (73, 174, 333, 339). He then delivered the car with one bag of heroin still concealed in it to the defendant Gunther (85). In the application for the search warrant this informant was referred to as a co-defendant (488). The informer was also named as one of the co- defendants in the original complaint filed before the United States Commissioner (486-487). When the trial and circuit courts stood by the govern- ment’s refusal to divulge the informer, this case was im- mediately destined to reach this Court. ® Stunned by the magnitude of the informant’s participation in this offense, Judge Pierce invited the government to revea! the in- former’s name by declaring: “On the question of the disclosure of the informant’s name, doesn’t it appear to you, Mr. Walker, that the in- volvement of the informer in this case at various important stages is so significant as to require disclosure of that name in order to insure or assure the defendants a fair trial?” (306) However, the govern- ment made a drastic choice when it declined the court's invitation and refused disclosure (415). This unfortunate decision turned out to be the government’s worst miscalcluation during the course of the trial. Daina Doe Bi nioatae tet hie BLEED THROUGH POOR COPY 9 In 1957, this Court concluded in Roviaro v. United States, 353 U. S. 53 (1957), that due process required the govern- ment to disclose an informant’s identity who had played a part in bringing about the possession of certain drugs by the accused and may have been a material witness on the issue of the defendant’s knowledge.’ Here defense counsel could easily have developed sig- nificant facts relating to the defense of entrapment, per- haps could have shown that both Ortega and Perez had ab- solutely no knowledge of the narcotics concealed in the car and, more importantly, were unknown to the importer- informant. The informer undoubtedly would have testified about the very minor role played by Ortega as a delivery man. In any event, defense counsel certainly was entitled to ex- amine the informant to determine for themselves what helpful testimony he could have supplied in their defense. Regrettably, cireuit courts, by denying disclosure, are beginning to drift away from the original moorings fixed by this Court in Roviaro.* This case, better than any other, "More particularly, the Court pointed out in language directly applicable to this case : “Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner’s identity or on the identity of the package. He was the only witness who might have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ from the tree to John Doe’s car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.” (353 U.S. at 64; emphasis added.) *United States vy. Kelly, 449 F.2d 329 (9th Cir. 1971); United States v. Anthony, 444 F.2d 484 (9th Cir. 1971); United States v. Russ, 362 F.2d 843 (2d Cir. 1966) ; United States v. Coke, 339 F.2d 183 (2d Cir. 1964) ; United States v. Li Fat Tong, 152 F.2d 650 (2d Cir. 1945). COPY BOUND CLOSE IN CENTER 10 marks the extent of that drift. On the other hand, other cireuit courts, obeying Roviaro’s mandate, have required ° disclosure where the informant was an active participant in the offense or was present at the scene of the crime.’ Clearly the circuit courts of this nation are dramatically divided over this critical issue. Consequently, a restate- ment of the informer disclosure rule is desperately needed to bring order to this area of the law. The despair and dis. order of these decisions has reached an intolerable state.” It bears repeating that here the informant launched the whole importation scheme and delivered the narcotics to ® United States v. Barnett, 418 F.2d 309 (6th Cir. 1969) ; Clingan vy. United States, 400 F.2d 849 (5th Cir. 1968) ; Lopez-H ernandez v. United States, 394 F.2d at 820 (9th Cir. 1968) ; United States v. Roberts, 388 F.2d 646 (2d Cir. 1968) ; Velarde-Villarreal vy. United States, 354 F.2d 9 (9th Cir. 1965) ; United States v. D’ Angiolillo, 340 F.2d 453 (2d Cir. 1965); Gilmore v. United States, 256 F.2d 565 (5th Cir. 1958) ; Portomene v. United States, 221 F.2d 582 (5th Cir. 1955); United States v. Conforti, 200 F.2d 365 (7th Cir. 1952); United States v. Coplon, 185 F.2d 629 (2d Cir. 1950) ; Sorrentino v. United States, 163 F.2d 627 (9th Cir. 1947); United States v. Andolschek, 142 F.2d 503 (2d Cir. 1944). 10 The rule of informer disclosure has fared no better in the States, for there the law is in an equally confused state. ‘The following courts have required disclosure : State v. Godwin, 106 Ariz. 252, 475 P.2d 236 (1970); State v. Martinez, 15 Ariz. App. 430, 489 P.2d 277 (1971); Rivera v. Superior Court, 6 Ariz. App. 117, 430 P.2d 696 (1967) ; People vy. Hunt, 4 Cal.3d 231, 93 Cal. Rptr. 197, 481 P.2d 205 (1971); People v. Garcia, 67 Cal.2d 830, 64 Cal, Rptr. 110, 434 P.2d 366 (1967) ; Price v. Superior Court, 83 Cal. Rptr. 369, 463 P.2d 721 (1970) ; People v. Clifton, 42 Il.2d 526, 250 N.E.2d 649 (1969). Whereas these courts have denied informer disclosure : People v. McShann, 50 Cal.2d 802, 330 P.2d 33 (1958) ; Ferrara v. State of Florida, 101 So.2d 797 (1958) ; People v. Mack, 12 [ll.2d 151, 145 N.E.2d 609 (1957); Morss v. Forbes, 24 Nd. 341, 132 A2d 1 (1957). See Anno. 76 A.L.R.2d 262 (1961); People v. Castro, 29 N LY.2d 324, 277 N.E.2d 654 (1971) ; People v. Cerrato, 24 N.Y.2d 1, 246 N.E.2d 501 (1961); People v. Pena, 18 N.Y.2d 837, 222 N.E.2d 604 (1966). BLEED THROUGH POOR COPY ll the defendants by leaving the car in the New Garden garage. Although the informant had no direct contact with the petitioner, that makes no difference. What is important is the fact that the informant’s activities here were revealed to the jury, as a participant in the offense. Consequently, it should have been left to defense counsel, as advocates, what use may have been made of the inform- ant’s testimony. Surely it was highly improper for the Second Circuit to preempt that function and to decide that disclosure would not have been advantageous." For, as in the Jencks Act cases, what use may be made of this form of evidence must, of constitutional necessity, be left to the single-mindedness of defense counsel.!” Certainly no one could successfully argue to this Court that there was not a reasonable probability that the in- t former here could have given testimony in some way helpful "The Second Circuit attempted to shore up the validity of its de- cision by suggesting that disclosure of the informant would not have 2 been helpful to the defense. Appellate Judges should resist the tempta- 4 tion of beoming trial strategists, a role for which they are ill-suited. ¢ These judgments should be left to defense counsel who are better : equipped to act as advocates. : 2 In discussing this very issue, the Supreme Court of California, E a court of great vision, in Price v. Superior Court, 83 Cal. Rptr. 369, : 463 P. 2d 721 (1970), held that the defendant need not prove that f the informer would give testimony favorable to the defense in order é to compel disclosure, nor need he prove that the informer was a partici- ; pant in the offense. The court there determined that the defendant & need only show that the informer would be a material witness on the 4 issue of guilt and that nondisclosure would deprive him of a fair trial. i Certainly that has been amply demonstrated here. Rule 19(c)(2) of the Rules of Practice and Procedure of the Judicial Conference has some bearing on this issue, for it provides: “If an election is made not to disclose the identity of an informer and the circumstances indicate a reasonable probability that the in- former can give testimony . . . necessary to a fair determina- tion of a material issue in the case, the judge shall . . . dismiss the proceedings.” (51 F.R.D. 378) COPY BOUND CLOSE IN CENTER SLPS SIER IIE” OME — 12 to the defense, either on the critical entrapment issue or on the petitioner’s lack of knowledge of the narcotics in the car. The use of the informant in confirming the defense of entrapment was of critical importance, for the magnitude of that defense cannot be underestimated. A vigorous examination of the informant would have most likely de- veloped facts showing the government’s participation in the drug smuggling scheme beyond what they would like us to believe. These facts would have borne critically on the defense of entrapment.” Entrapment occurs when the criminal conduct is “the product of the creative activity” of law enforcement offi cials. Sherman v. United States, 356 U.S. 369 (1958). Clearly the creative activity in this case was the govern- ment’s virtually underwriting of the importation of these narcotics and its insuring their safe passage through cus- toms to their ultimate destination. Their feeble efforts to 18 The past few years have seen a considerable change in the posture of legal institutions toward the defense of entrapment. Enlightened courts are beginning to reject prosecutors’ invitations to become accom- plices in their distasteful criminal conduct designed to catch offenders. United States y. Russell, 459 F.2d 671, (9th Cir. 1972) ; United States v. Bueno, 447 F.2d 903 (5th Cir. 1971) ; United States v. Chisum, 312 F, Supp. 1307 (C.D. Cal. 1970) ; People v. Strong, 21 I1l.2d 320, 172 N.E.2d 765 (1961). Even Judge Pierce was astonished by the government’s participation in this drug offense. He voiced his distress by stating: ‘This may be the key point in this matter, to take up the question of the heavy involvement of the informant. There is a question from the record 80 far that he is heavily involved, and I need not tell you that this in- volvement is so great, in fact, as to seriously raise questions as to whether or not, but for the participation and cooperation of the goven- ment agents and the informant, the crime might never have occurred” (291-292). 13 disclaim this responsibility could easily have been repudi- ated by the informer had he been called to the stand." On October 16, 1972, this Court granted certiorari in United States v. Russell, Docket No. 71-1585, opinion below, 459 F.2d 691 (9th Cir. 1972). In Russell, the Ninth Circuit held that the defendant could not be convicted for manufac- turing and possessing a drug where a necessary ingredient for its manufacture was supplied by an agent of the govern- ment. Since the issue in Russell is directly related to the one at bar, this Court may wish to consider this case at the same time it judges Russell. No member of this Court can be other than unhappy about the government’s participation and overreaching in this serious drug offense. It is frightening that in order to obtain evidence of the distribution of narcotics, our government must actually inspire and participate in the arrangement for the importation of dangerous drugs into this country. The spectacle of federal agents secretly mated with the underworld and using gangsters to gain its ends is indeed unwholesome. Use of these unbecoming tactics should rightly influence this Court’s grant of this petition. For if the Court ever gives in to the government here, there will be no end to the misuse of informers, who actually participate in the crime, but whose identity is con- cealed, thus, depriving the defense of information critical 1 to their cause. 4 Sonia at PY SH IO eer ¥ The American Law Institute Model Penal Code provides that entrapment may be established if it can be shown that a police officer encouraged another person to engage in the criminal offense by: “Employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.” (Model Penal Code, § 2.13[1][6]; Proposed Official Draft, 1962) Here the importa- tion of narcotics into this country by the government surely created a risk that others might become involved in its delivery who were not originally contemplated in the plan’s implementation. SEERA RIN pase tte NST ee ee ae ee ae. ee er eS TU 14 The Second Cireuit’s decision is in direct defiance of this Court’s mandate in Roviaro. In fact, the rule of in. former disclosure is being driven out of existence by such decisions and if this trend is not halted, Roviaro risks bankruptcy. This Court simply cannot afford to abandon a position it has maintained for over a decade. And finally it must be said that because of the horror surrounding heroin prosecutions courts are often tempted to relax constitutional standards and let the prosecution take shortcuts not ordinarily sanctioned by law. Such practices tend to lower the standards of criminal justice. If only the fate of drug pushers were involved in cases such as this, one might be indifferent to the way in which their convictions are obtained. But it is precisely because the appeal to the Fourth and Sixth Amendments is so often made by persons who are claimed to be unworthy that its infringements call for strenuous resistance. No court can give legal sanction to what was done in this case without accepting the full responsibility for the far-reaching conse- quences of such a precedent. For all these reasons, the petition for certiorari should be granted. 15 Where the police for three days had known of the narcotics in the car and had ample time to secure a search warrant, there were no exigent circumstances justifying the warrantless search of the car. The search of the apartment in New Jersey was un- lawful because no facts were set forth in the supporting affidavit connecting those premises with narcotics. The elusive search and seizure question presented here, involving the appropriation of the narcotics concealed in the Jaguar car, deserves this Court’s most careful atten- tion. For the narcotics seized while the car was in the possession of the defendants were introduced against the defendants over their objection that it had been uncon- stitutionally acquired. The searches of the car at the port of entry and in the (ieneral Motors Building were presumably authorized under appropriate customs regulations governing border searches. In any event, during those times the Jaguar car was in the possession of the informant and he apparent- ly consented to its search. However, when the car was ultimately transferred to Orsini by the delivery of the park- ing ticket, the authority to further search it under the customs law expired. It bears repeating that the government knew of the con- cealment of the narcotics in the Jaguar car from the time the car left France until its ultimate seizure on September 19. They could have easily obtained a search warrant for the automobile on the 16th, 17th or 18th of September. Consequently the last search was unconstitutional because it was without a warrant; it was not incident to an arrest: it was without consent; there was no emergency; and the ae ee ee ee Se ee ed oe 4 he ok oh = | i , % Ki " t * . y f a 16 contraband was not in immediate danger of destruction. Coolidge v. New Hampshire, 403 U.S. 443 (1971) ; Chimel vy, California, 395 U.S. 752 (1969); Preston v. United States, 376 U.S. 364 (1964); and United States v. Rabinowitz, 339 U.S. 56 (1950). Accordingly, there was no good reason why the police should not have secured a warrant for the search of the car. The decisions governing car searches are in a terrible state of turmoil. In sailing across this ocean of the law, the lawyer often finds himself steered by stars that are disturbingly in motion. Consequently, the colonization of the cases located in this legal environment is badly needed, warranting a review in this case. In Coolidge this Court, using passages of harsh strength, was careful to remind prosecutors and Circuit Jndges that: “The Warrant requirement has been a valued part of our constitutional law for decades, and it has deter- mined the result in scores and scores of cases in courts all over the country. It is not an inconvenience to be somehow ‘weighed’ against the claims of police eff. ciency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the ‘well-intentioned but mistakenly overzealous executive officers’ who are a part of any system of law enforcement. If it is to be a true guide to constitutional police action, rather than just a pious phrase, then ‘[t]he exceptions cannot he enthroned into the rule.” (403 U.S. at 481)” 15In keeping with the Supreme Court’s admonitions in Coolidge, circuit courts have insisted that warrant procedures be followed in cases less severe than our own. United States v. Collins, 439 F.2d 610 (D. C. Cir. 1971) ; United States v. Payne, 429 F.2d 169 (9th Cir. 1970). United States v. Van Leeuwen, 39% U.S. 249 (1970), deserves discussion because it has some bearing on the issues presented here. There a package sent through the mail, which was suspected of con- (Footnote continued on following page) 17 We repeat that the FBI had known about the role of the Jaguar in this importation scheme since its very incep- tion. The car had been kept under surveillance and was always subject to immediate capture. There was no oppor- tunity for the defendants to destroy the evidence concealed in the car’s body, nor was there time to do so. However, there was ample time for the FBI to secure a warrant authorizing the search and seizure of the automobile. There was no real danger of the automobile being removed from the jurisdiction, for on the night of the petitioner’s arrest, there was an army of over 30 FBI agents in the immediate vicinity of the automobile who ultimately stormed the ear. Thus, there was not the slightest excuse for what occurred in the zeal of the chase here. This police action represents a clear and untenable abuse of the limited authority con- ferred upon them by law. nn ee, ee, | | he || hl > A-17 Opinion of Court of Appeals over, it is clear beyond peradventure of doubt, as demon- strated by what each of these appellants did to effectuate the purposes of the conspiracy, as outlined in our state- ment of the evidence, that each of these appellants was ready, willing and able and had a prior propensity to en- gage in a heroin importation and distribution venture. So, we shall say no more of that phase of the entrapment claim. The more serious phase of the so-called entrapment “de- fense” was the endeavor to bring this case within the ambit of those decisions that hold that where the govern- ment provides not only the occasion for committing the offense but also the contraband necessary for its consum- mation there is entrapment as a matter of law, irrespective of the propensity of the accused to commit the crime, be- cause this is the only way to prevent such reprehensible and unworthy conduct on the part of the police. Thus in United States v. Chisum, 312 F.Supp. 1307 (C.D. Cal. 1970), the government informer received the counterfeit bills from the government, gave them to Chisum and then had him arrested for receiving counterfeit money with intent to pass the hills as genuine. In People v. Strong, 21 Tll.2d 320, 172 N.E.2d 765 (1961), the government supplied the very narcoties that gave rise to the alleged offense. Without the slightest seintilla of proof, and without any offer of proof, and despite the fanciful nature of the hy- pothesis in the context of the facts disclosed in this record. counsel for the defendants made repeated statements that the million dollars worth of pure, uncut heroin had been purchased hy the government, that the government had caused it to he placed in the Jaguar that had in turn heen : : z oY REOW MM OTT A-18 Opinion of Court of Appeals purchased with government funds, all for purposes of en. trapment. It was at first in vain that the prosecutor in. sisted there could be no issue in the case without some proof to back up these statements of counsel; that the record was bare of proof that the informant ever saw any heroin, that he ever put any heroin in the Jaguar, or any proof that this extensive international scheme of bringing heroin into the United States originated with either the informer or the government. Finally, as already indicate in our summary of the evidence, a stipulation was entered into between the prosecutor and counsel for all defendants that the government did not furnish any money to buy the Jaguar or give any instructions to the informer to buy it. One might have supposed that this would dispose of the matter. But no, counsel kept repeating their claims that the government had manufactured the crime and that they could prove it if only they could put their hands on the informer and get him into court as a witness. This led to almost interminable argument and discussion. Exer- cising meticulous care in seeing to it that appellants’ rights should not be infringed, the judge listened and listened, and read and analyzed numerous cases cited to him. With this and the numerous suppression hearings during the trial, the members of the jury were sitting in the jury room twiddling their thumbs far more time than they spent in the courtroom listening to the evidence. While such interruptions of a trial are regrettable, the judge’s patience had the salutary result of avoidance of error. The informer issue was brought to a head by an intima- tion or suggestion by Mr. Fisher, counsel for Orsini, that perhaps progress could he made if, in the words of the awe = -_ wwe ——— +s '- — | hh - —-— & ® A-19 Opinion of Court of Appeals trial judge, “the government may choose to share with me in camera information which has bearing” on the role of the informer and the questions that had been raised by counsel for appellants. This met with general approval by counsel for all defendants, except that Mr. Fisher main- tained that in the im camera proceeding, in the absence of counsel for appellants, the trial judge should be afforded an opportunity to question the informant. This led to a statement by the prosecutor that he could not produce the informant and that the Second Circuit decisions? made it perfectly plain that the government was not under any circumstances required to produce the informant. After everyone seemed to agree on this, the prosecutor said he objected to the in camera proceeding but would go ahead with it if the court so ruled, and the prosecutor requested aruling, which was granted, to the effect that what occurred in the in camera proceeding should not be revealed to de- fense counsel. So, it was ordered that the transcript of the in camera proceeding by the court reporter be sealed and only unsealed upon proper showing to the court. After all these preliminaries, and over the government’s objection, the in camera proceeding took place, after it had heen brought about at appellants’ request. The prosecutor ? The rule in this Circuit was articulated in United States v. D’Angi- olillo, 340 F.2d 453, 455 (2d Cir.), cert. denied 380 U.S. 955 (1965), where this Court wrote: “where the informer’s testimony may be rele- vant to the defense, the defendant is entitled to his name, to such infor- mation as the government may have concerning his whereabouts, and to reasonable cooperation in securing his appearance.” The government is not required to actually produce the informer. See also, United States v. Roberts, 388 F.2d 646, 649 (2d Cir. 1968) ; United States v. Russ, 362 F.2d 843 (2d Cir. 1966) ; United States v. Jones, 360 F.2d 92 (2d Cir. 1966); United States vy. Coke, 339 F.2d 183 (2d Cir. 1964). * 7 E = a a » 3 4 & 5. é z E : e J 5 & ‘4 ye a & § : TNE LAS A-20 Opinion of Court of Appeals with his files of documents went into the trial judge’s cham. bers with the court reporter. After this was over, Judge Pierce returned to the courtroom and said: The Court: Gentlemen, Mr. Walker has made avail. able to me, in camera, material which causes me to be familiar with the role of the informant in this case. On the basis of that familiarization, I can find no ground for supporting your requests for either reveal. ing his identity or asking the government’s cooperation in producing him here. I have had in mind, as I reviewed this material, the specific matters which you have called to my atten- tion, your specific concerns, your specific assertions, and I nevertheless find none of these to be supported in any way by the material I have reviewed. In fact, I find that the situation is quite to the con- trary. On the basis of this in camera proceeding, with the cooperation of the government having made this pos- sible, | rule on your motions at this time and deny them with respect to the informant. We cannot consider as an objection Mr. Fisher's remark, subsequent to this ruling, that informers are generally unreliable and that one cannot pay much attention to what they say. There were no motions and no further rulings. The position taken by the prosecutor from the beginning was correct. The record is completely bare of anything to show that the informer could give testimony relevant to or essential to a fair determination of any of the issues in ) ) A-21 Opinion of Court of Appeals the ease. Thus the teaching of Roviaro has no application and all of the motions of defense counsel concerning the identification, the disclosure of the whereabouts or the pro- duction of the informer should have been denied without any in camera proceeding. The references to the trial and in the briefs to United States v. Jones, 360 F.2d 92 (2d Cir. 1966) and United States v. D’ Angiolillo, 340 F.2d 453 (2d Cir.), cert. denied 380 U.S. 955 (1965), show nothing contrary to what we have above stated. What is meant by “may” or “might” as the same thing as saying that if it does appear in the record that the testimony of the informer is shown by rea- sonable probability to be relevant or essential to a fair determination of any of the issues in the case, the govern- ment’s privilege against disclosure is not available. This we think disposes of the question of identifying, disclosing the whereabouts of and producing the informer. III The Trial Judge Properly Refused to Suppress Any of the Objects Found on the Persons of Ortega, Orsini and Perez at the Time of the Arrest or at the Vacant Premises Stated by Perez to be his Ilome or in Orsini’s Room at the Hotel Alrae or the Heroin left in the Jaguar When one is once familiar with the interrelation of the separate bits of evidence in this complicated case, as sketched in our summary, it is difficult to imagine how there could have been any lack of probable cause for the arrests or any insufficiency in the affidavits upon the basis SE IRE OTL NS LOLLY LIMIT SOIL RO, — | A-22 Opinion of Court of Appeals of which the search warrants were issued or of the proofs of probable cause adduced at the trial. But the pattem of scraps and phrases culled from the mass of dicta and wide ranging observations found in the hundreds of court opinions in search and seizure cases gives an appearance of substance to what are mostly frivolous claims. They merit no more than brief discussion. A The Jaguar and Its Contents The search by a Customs Agent and others helping him, in the hold of the Elizabeth II while still in midstream, was clearly proper as a border search. So was the cursory examination on the pier and the removal of a one-half kilogram bag of heroin from the car after the vessel was made fast. Under the circumstances of this case the search without a warrant in the midnight dismantling and re- assembling of the Jaguar in the garage opposite the Play- boy Club was a mere continuation of the border search. At this time the shipment of heroin was removed and placed in government custody, except for one-half kilogram bag that was left concealed under the driver’s seat in such fashion that it could be disclosed and secured only by the use of tools. Surely the government was entitled to make it impossible for this large importation of dangerous drugs to slip through the fingers of its agents by some mischanee. And it was equally proper to leave some of the heroin in the car for purposes of proof of the violations of the nar- _ cotics laws by those who might be expected to drive off 3 See United States y. Canieso, Slip Op. Docket No. 72-1789, 2d Cir., November 22, 1972, and cases cited. Laie PE a Waar, A et A-23 Opimon of Court of Appeals the Jaguar in consummation of their illegal purposes, believing that still hidden in the inner recesses of the frame- work of the car was the entire 9314 kilograms of heroin. Appellants make much of the fact that, for some period after the one bag of heroin was left concealed in the car, there was ample time to get a search warrant. They stress the fact that this search was conducted some two hours after Ortega, Orsini and Perez were arrested. There are several answers to this. We prefer to support the final search at the Headquarters of the Narcotics Squad, after the arrests of appellants, by the ruling of the Supreme Court in Cooper v. California, 386 U.S. 58 (1967) relative to the search of an automobile that is liable to forfeiture.’ Here the Jaguar was clearly subject to forfeiture, pursuant to the provisions of 21 U.S.C., Section 881, applicable to the search of vehicles “which are used, or are intended for use, to transport or in any manner facilitate the transporta- tion” of a narcotic drug. It would seem that the search could also be sustained under the principle of Chambers v. Maroney, 399 U.S. 42 (1970), applicable to automobiles, when there is probable cause to search the car as distinguished from mere probable cause to arrest the defendants. Chambers seemingly sup- ports the proposition that where the police may stop and search an automobile under the doctrine of Carroll v. United States, 267 U.S. 132 (1925), they may also seize it and conduct the search at a later time.® *The continued validity of Cooper was reaffirmed by the Supreme Court in Collidge v. New Hampshire, 403 U.S. 443, 482 (1971). See also United States v. Francolino, 367% F.2d 1013 (2d Cir. 1966), cert. denied 386 U.S. 960 (1967). ® See Collidge v. New Hampshire, 403 U. S. 443, 463 (1971). ET SCERE ERNIE — A-24 Opinion of Court of Appeals B The Search of Orsini’s Room 6J at the Hotel Alrae Pursuant to a Warrant The claim that the affidavit in support of the issuance of the search warrant of Orsini’s room was insufficient js frivolous. So is the claim that it was error to refuse to conduct a hearing to ascertain whether the warrant was “tainted” by the alleged unlawful eavesdropping by one of the agents who oceupied Room 61, adjoining Orsini’s Room 6J, who might have heard come conversations through the wall with his naked ear, or might have seen some. thing by peeping through the keyhole of the door between the two rooms. It was discovered that an agent had heen in this room when the prosecutor handed over to defense counsel the mass of what is called 3500 material. Of all the speculations of counsel with which the briefs of the appellants are replete this one is the most farfetched and fanciful. How any information obtained in the adjoin- ing room could be “related to the allegations establishing probable cause in the warrant” is far from clear to us. The almost compelling inference is that there was more than enough probable cause to be found: in Gunther's testimony that he gave the parking ticket to Orsini and arranged to receive the money from him at the Sports Bar the follow- ing Monday; the sketch of the places where the heroin was concealed in the framework of the car, the directions con- cerning how to get the heroin out of the car and the method to he followed in identifying and meeting Gunther, all of which documents were found in Orsini’s possession at the time of his arrest: his riding around with Ortega and A-25 Opinion of Court of Appeals Perez, and the final joint possession of the Jaguar and its one bag of heroin; all this convinces us that the so-called “taint” hearing was properly denied. It would have been error to rule that any such hearing should be had, under the circumstances of this case. ' ) PRL PEP ON LIC POW HIN TAPP * ai a —_ Besides, there had already been one suppression hearing on the subject of the search of Orsini’s room before the trial commenced. The affidavit supporting the warrant, which made no reference to anything observed by the agent in the room next to Orsini’s, had been found constitu- tionally sufficient; and no evidence of anything seen or heard by this agent was offered at the trial. See dl be i od aati al a a Moreover, what is supposed to be illegal about the con- duct of this agent in the next room? It is conceded that no electronic surveillance was in any way involved. What ean be heard by the naked ear is not protected by the Fourth Amendment, United States v. Llanes, 398 F.2d 880 (2d Cir. 1968), cert. denied 393 U.S. 1032 (1969). The Supreme Court had already noted that “The risk of being overheard hy an eavesdropper * * * is probably inherent in the conditions of human society. Tt is the kind of risk we necessarily assume whenever we speak.” Hoffa v. United States, 385 U.S. 293, 303 (1966), quoting with approval from Justice Brennan's dissent in Lopez v. United States, 373 U.S. 427, 465 (1963). We would suppose that the same rule applied to what can he seen by the naked eve, even through a keyhole. ‘ SRR IER KONE PR SES a A-26 Opinion of Court of Appeals Cc The Search at 608-82nd Street, North Bergen, N.J. We find the affidavit supporting the warrant to search these premises, and the evidence adduced at the trial, made a more than sufficient showing of probable cause. The mere fact that no money or narcotics were found is of no mo. ment. The claim of insufficiency is just as frivolous as the one made in connection with the search of Orsini’s Room 6J at the Hotel Alrae. Iv The False Statements by Orsini in his brief In- terrogation before His Arraignment Were Prop- erly Received The arrests took place at about 2:20 A.M. of Sunday, September 19. There was a brief questioning at Narcoties Headquarters after the Miranda warnings had heen given. Neither then nor at any time was Orsini subjected to any prolonged interrogation, nor was he asked any other than the most perfunctory questions. But, as these events oe- eurred early in the morning of a Sunday, when no Con- missioner was available, and the following Monday was a Jewish Holiday and the office of the United States Attor- ney was understaffed, Orsini was not brought down to the Courthouse until about 1:30 P.M. although a Commis sioner was in attendance from 10:00 A.M. on. There was a brief interrogation by an Assistant United States Attor- ney prior to arraignment. What this amounted to, with the assistance of a French interpreter, was the submission to Orsini of a series of written questions. [le was told to A-27 Opinion of Court of Appeals answer the ones he wished to answer and not to answer the others. This was after the Miranda warnings had been repeated to him. The answers he gave were false in that he gave a false name, denied he had been in an automobile with other people on the preceding Saturday night, and he denied he had ever heen in the Abbey Victoria Hotel. : The trial judge overruled the objection to these admissions ; on the ground that they were clearly voluntary and that the Miranda warnings had heen properly given. Sy.) CRN HORTON! SOARS GRC (OMS ~ We are now asked to hold that the answers should have been excluded and the judgment of conviction against Orsini reversed, not because the statements were not vol- untarily made but solely because the lapse of time between the early morning of Sunday when the arrest was made and the arraignment hefore the Commissioner in the mid afternoon of Monday was more than 6 hours in excess of the time required for transportation. We agree with the holding of this Court in the similar case of United States v. Marrero, 450 F.2d 373 (2d Cir. 1971) to the effect that no violation of the principles of McNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 US. 449 (1957) is shown, nor any failure to comply with the requirements of Title TT of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C... Section 3501. We also refuse to accept the invitation by Orsini’s counsel to reexamine the holding of this Court in Marrero or to hold 18 U.S.C., Section 3501 unconstitutional. The writer of this opinion also wishes to state that he disagrees with the suggestion or intimation or whatever it may be ealled, in Chief Judge Friendly’s concurring opinion in Marrero at page 379 that there is something é FST Rt or er he eg A-28 Opinion of Court of Appeals improper, after overnight custody, in the traditional ens. tom of a “detour” for brief questioning in the office of the United States Attorney, as a person who has been arrested is being taken before a magistrate for arraignment. Vv The Bizarre Motion for a Severance and for a Mistrial on Behalf of Ortega After both sides had rested and the summations were about to begin, a new lawyer appeared on Ortega’s behalf and made a motion “for a mistrial as to Mr. Ortega and for a severance of his case from the trial of Mr. Orsini.” This turn of events is supposed to have heen caused by a desire on the part of Orsini “to exculpate” Ortega, “but he is not prepared to do it hefore the jury that will decide the question of his (Orsini’s) guilt or innocence.” No credible explanation of how Orsini is to do this exculpat- ing is proffered. The trial judge denied the motion, but with leave to renew it on written papers after the jury had rendered its verdict. So, the motion was renewed later on written papers and we are asked to give serious con- sideration to Orsini’s generous proposal that if his case is or had heen severed, he would have taken the witness stand and his exoneration of Ortega would he so convine- ing and persuasive that Ortega would he acquitted. Just what explanations Orsini was prepared to give for all the things he and Ortega had done together in furtherance of the conspiracy is left to conjecture. This is reminiscent of the statement by Orsini’s counsel during the trial that if the government informer was produced Orsini might recognize him as the man who solicited him to come from A-29 Opinion of Court of Appeals abroad but had concealed from him the fact that heroin was involved, and that Orsini would testify to this as a witness in his own defense. Of Course, Orsini did not testify to this or anything else. SAL ORLEANS RGN MIS Bet We are solemnly told that Ortega was going to call upon Orsini as his witness in defense but failed to do so f as he anticipated that Orsini would assert his Fifth Amend- ment privilege. We are also solemnly told that “Orsini forthrightly stated that Luis Ortega and George Perez had absolutely no knowledge that the Jaguar contained | heroin.” Vole DAMM BTW D ERIE Sot 9082 *b at We hold that there is no merit in this extraordinary and ) tardy maneuver. The trial judge properly denied the mo- : tion, and this ruling furnishes no basis for a reversal of any of the judgments appealed from. VI There Was No Impropriety on the Part of the Prosecutor in Making Reference During His Sum- mation to the Dates in the Passport Carried hy Orsini There was testimony by Gunther that Orsini had told him he had visited the United States on other occasions 7 on similar illicit business. This is to some extent corrob- ) orated hy other testimony. The brief and incidental ref- erence in the prosecutor’s summation to the dates in the 7 passport was of no consequence. The passport had been : received in evidence without objection and without limita- ) tion. The jury could if they chose examine any and all of the entries in the passport. However, in the light of the ‘ RO bapa MSDE Mt Lettre Sty Taner earperengg A-30 < Opinion of Court of Appeals evidence taken as a whole, it is highly improbable tha the jury took any interest in the passport or in Orsini’: other trips to the United States, except perhaps to take note of the fact that Orsini was using a passport issued to someone else, that he was masquerading under this other person’s name, and that he or some other person at his request had done an especially clever piece of forgery by substituting Orsini’s photograph for the photograph of the real Jean Pierre Andre Huguen. The prosecutor denied that he had orally agreed to make reference in his summation to the entries in the passport. As held by the trial judge, it would have heen a simple matter for counsel to insert this limitation in the written stipulation. The passport was received in evidence for all purposes; and the trial judge properly held that it must be presumed “that the stipulation embodies the full and complete agreement of counsel.” It would have been error to grant counsel’s request to instruct the jury that the passport was no proof of prior trips by Orsini to this eountry. We cannot conclude this opinion without a word of com. ment on the wholly admirable way in which the prosecu- tion of this complicated and difficult case was conducted by Assistant United States Attorney John M. Walker, Jr. Affirmed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_0093%3A1. Public record. Not legal advice.