Petition for Writ of Certiorari — Ortega v. United States
Supreme Court brief1973
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FEB 8 1973
IN THE
MIC@AEL RODAK, JR.CLE
——_
Supreme Court of the United States
a October Term, 1972
: =
No. y Q- ] 0 9 “
ae LUIS GOMEZ ORTEGA,
* Petitioner,
x! Vs.
> THE UNITED STATES OF AMERICA.
PETITION FOR WRIT OF CERTIORARI TO THE
vy UNITED STATES COURT OF APPEALS
. FOR THE SECOND CIRCUIT
Heratp Price Faurricer, EKsq.,
> Attorney for Petitioner,
One Niagara Square,
. Buffalo, New York
ik (716) 856-8400.
is Lipsitz, GREEN, F'AHRINGER,
Rott, SCHULLER & JAMES,
of Counsel.
February, 1973.
BATAVIA, N.Y.
BATAVIA TIMES, LAW PRINTERS,
INDEX.
PAGE
IE OI occas isesnseesirencsnecesessces 1
ee ed ea any sepa 2
I SI neice ids cesccdesvcsesseres 2
IE TUUOIIUNOD 5 osc cic di ciccecccdcvercececcs 3
es aa arate 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 .................
~1
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
of the ear.
The search of the apartment in New Jersey
was unlawful because no facts were set forth in
| the supporting affidavit connecting those prem-
ee eet ig alan Ges 4 dw wins 15
SONATA 4! OREN RON EE PEOLS OED SAE A AA PENN I LA AE OEE IB bey
ie
TABLE OF CasEs.
PAGE
Aguilar v. Texas, 378 i) &. 25. ) Sree ee A)
Brinegar v. United States, 338 U.S. 160 (1949) ........ 18
Carroll v. U. S., 267 U.S. 132 (1925) .......-- ee eee 18,19
Chambers v. Maroney, 399 U.S. 42 .. GRrcera 18, 19
Chimel v. California, 395 U.S. 752 (1969) .........-. 16, 18
Clingan v. U. S., 400 F.2d 849 (6th Cir. 1968)......... 10
Coolidge v. New Hampshire, 403 U.S. 443 (1971). .16, 19, 21
Ferrara v. State of Florida, 101 So0.2d 797 (1958)...... 10
Gilmore v. United States, 256 F.2d 565 (Sth Cir. 1958)... 10
Johnson v. U. S., 333 U.S. 10 (1948) .........--.. ee, 18
Jones v. U. S., 362 U.S. 247, 272 (1960) .............. 7
Katz v. U. S., 389 U.S. 347 (1967) ......- eee eee eee 19
Lopez-Hernandez v. U.S., 394 F.2d 820 (9th Cir. 1968). 10
McCray v. Illinois, 886 U.S. 300 (1967) .....-..-+ +55: 7
Morss v. Forbes, 24 N.J. 341, 182 A.2d 1 (1957)...... 10
Peters v. Hobby, 349 U.S. 231, 352 (1955) .......... 7
People v. Castro, 29 N.Y.2d 324, 277 N.K.2d 654 (1971). 10
People v. Cerrato, 24 N.Y.2d 1, 246 N.K.2d 501 (1961)... 10
People v. Clifton, 42 Tl.2d 526, 250 N.16.2d 649 (1969)... 10
People v. Garcia, 67 Cal.2d 880, 64 Cal.Rptr. 110, 434
POR FOG CUBIST) oo vc cesses ccneee sc tateeses onset 10
People v. Hunt, 4 Cal.3d 231, 98 Cal. Rptr. 197, 481 P.2d
2) eee eee eS eee errr aN ee ee 10
People v. Mack, 12 Ill.2d 151, 145 N.K.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 [12d 320, 172 N.B.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) .......0-ceeees 16, 21
Price y. Superior Court, 88 Cal.Rptr. 369, 463 P.2d 721
UN 2a vidas ca vex wke ea KES Ode Re Tae kape ee ed 10, 11
Rivera v. Superior Court, 6 Ariz, App. 117, 480 P.2d
s,s ei rrr arrears pare ery et 10
Roviaro v. U. S., 353 US. 53 (1957) ......cececess 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
SU hearse ace a ee c) ov, 10
U.S. v. Andolschek, 142 F.2d 503 (2d Cir. 1944)....... 10
U.S. v. Anthony, 444 F.2d 484 (9th Cir. 1971) ........ )
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. 1807 (C.D.Cal. 1970)... .. 12
U.S. v. Coke, 339 F.2d 183 (2d Cir. 1964) ............ 9
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, 366 U.S. 1, 14 (1968) ................ 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) ............ 4)
U.S. v. Russell, 459 F.2d 671, 11 Cr.L. 2108 (9th Cir.
MAREE ee Pa Na 12,13
U.S. v. Van Leeuwen, 397 U.S. 249 (1970) .......... 16, 17
U.S. ea rel. Knauff v. Shaughnessy, 338 U.S. 537
PR his Sind cay cia cu Pe ie ee 7
Velarde-Villarreal v. U.S., 354 F.2d 9 (9th Cir. 1965)... 10
Warden vy. Hayden, 387 U.S. 294 (1967) ............. 19
TV.
STATUTES.
PAGE
American Law Institute Model Penal Code, § 2.13[1]
[6]; Proposed Official Draft, 1962 ................ 13
Title 21, United States Code:
eR ee ee 9
SN, SN ee wey C4 v0'k gd R04. 40 6-00 0008 Uo 9
CONSTITUTION.
United States Constitution:
EE Doha s5.5006 or eras ees edeenae 2, 3, 14, 21
NO is aa alec wu eae 3
a a ig oa wig en ei 14
MISCELLANEOUS.
Meme. TE A:EsT3e BER (1OGL) wn ccavcssccseccceces 10
Rules of Practice and Procedure of the Judicial Con-
PN I IONOEDD ois nv oc cacabocnorccescevacee ll
IN THE
Supreme Court of the United States
October Term, 1972
LUIS GOMEZ ORTEGA,
Petitioner,
VS.
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,
Opiniens 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 noi write an opinion.
ERE ETP CORTE GATE PONG AR te a sit Sates
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
vears 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-
her 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.
EIB CONTE AAEM NO ERA BONIS 2h PA ARR Te aa NS CS RE
3
3. Whether the search of the apartment in New J ersey
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 narcoties.
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 be
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 publie use, without just
compensation.
Statement of Facts
This ease is the latest fallout to reach this Court from
the government's continued misuse of secret informers.
The facts relevant to the informer issue ean be introduced
to the Court in a summary fashion.
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).1_ 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
bags 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 (335).
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.
5
He then went into Madison Square Garden and, by pre-
arrangement, met Etienne Gunther, to whom he delivered
the parking ticket for the ear (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
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 3lst 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
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,
who was originally charged with narcotics violations, received amnesty
of the Jaguar (Gov’t Ex. 4).
22a RTS ee eras te cctnee cemented
FA
SS RRR eel
6
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 ineriminating 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 25
years imprisonment. The judgment of conviction was
affirmed December 11, 1972 by the United States Court of
Appeals for the Second Circuit.
* These facts, and those that follow, are found in the supporting
affidavits for Ortega’s motion requesting a severance.
7
REASONS FOR GRANTING THE WRIT
I.
‘
|
j
|
'
a a ak SRN AO ond
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.
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 helow, 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.
°A 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 vy. 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 er 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).
ee nt
Oe Oe ee ee ee ee ee = — ll
EL AE AR 1 A ok fa
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
ot 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.
i
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 ease, 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
lo decide.” (353 U.S. at 64; emphasis added.)
"United States v. 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 vy. Coke, 339 F.2d
183 (2d Cir, 1964) ; United States vy. Li Fat Tong, 152 F.2d 650 (2d
Cir. 1945).
b. Seouaat
FSET NE EOSIN EYRE SE RYTON SED
eee . ENACT SN IAA —_—
10
marks the extent of that drift. On the other hand, other
circuit 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
v. United States, 400 F.2d 849 (Sth Cir. 1968) ; Lopez-Hernandez y.
United States, 394 F.2d at 820 (9th Cir. 1968); United States y.
Roberts, 388 F.2d 646 (2d Cir. 1968); Velarde-Villarreal y. United
States, 354 F.2d 9 (9th Cir. 1965) ; United States v. D’ Angiolillo, 340
F.2d 453 (2d Cir. 1965); Gilmore vy. United States, 256 F.2d 565
(5th Cir. 1958) ; Portomene vy. 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 vy.
United States, 163 F.2d 627 (%th Cir. 1947): United States y.
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. 450, 489 P.2d 277 (1971); Rivera v.
Superior Court, 6 Ariz, App. 117, 430 P.2d 696 (1967) ; People
v. 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 M.2d 526, 250 N.E.2d 649 (1969).
Whereas these courts have denied informer disclosure :
People vy. McShann, 50 Cal.2d 802, 330 P.2d 33 (1958) ; Ferrara
v. State of Florida, 101 So.2d 797 (1958): People v. Mack, 12
Il.2d 151, 145 N.E.2d 609 (1957); Morss v. Forbes, 24 Nd.
341, 132 A.2d 1 (1957). See Anno. 76 A.L.R.2d 262 (1961);
People v. Castro, 29 N.Y .2d 324, 277 N.K.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).
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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.2
Certainly no one could successfully argue to this Court
that there was not a reasonable probability that the in-
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
been helpful to the defense. Appellate Judges should resist the tempta-
tion of beoming trial strategists, a role for which they are ill-suited.
These judgments should be left to defense counsel who are hetter
equipped to act as advocates.
In discussing this very issue, the Supreme Court of California,
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
the informer would give testimony favorable to the defense in order
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
issue of guilt and that nondisclosure would deprive him of a fair trial.
Certainly that has been amply demonstrated here,
Rule 19(¢)(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
Meehan GT ERECT EA SIRE 2) ae MIRE
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 off-
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 vy. 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 Hl.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 so
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).
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. a eee {ORES OTST ER PERL MRI OL ERR OT RABY RIE IAL HY Be, ioe at:
13 :
E
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 2
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
to their cause.
The American Law Institute Model Penal Code provides that
eutrapment 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,
§#.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.
ob: SA ete ee Ret Soha Be ENED eerie Pe UN nD te ee -.
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14
The Second Circuit’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
bankruptey. 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 shorteuts not ordinarily sanctioned by law. Sueh
practices tend to lower the standards of criminal justice.
If only the fate of drug pushers were involved in cases sucli
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 aequired.
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 hears repeating that the government knew of the con-
cealment of the narcoties in the Jaguar ear from the time
the car left France until its ultimate seizure on September
1%. 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 beccuse
it Was without a warrant; it was not incident to an arrest;
it was without consent; there was no emergency; and the
> py
CODY ROTIND CI OSE IN CENTER
quae ome ee er rr tt
Dear mTOR RCA APARNA RUN OTA RoREnARVOReTINNTIOU RR VRENSS aD ENeERRA arenes
16
contraband was not in immediate danger of destruction,
Coolidge v. New Hampshire, 403 U.S. 443 (1971) ; Chimel y,
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). Accordingty, 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 Judges that:
“The Warrant requirement has been a valued part of
our constitutional law for decades, and it has ceter-
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 be enthroned into
the rule.” (403 U.S. at 481)"
15 In 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 y. Collins, 439 F.2d 610
(D. C, Cir, 1971); United States vy. Payne, 429 F.2d 169 (9th Cir.
1970).
United States v. Van Leeuwen, 397 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)
sen NORE
mar Kee Feria Aue) eo . a Ta Sa =~ a ol oe ot
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. llowever,
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. A search warrant could have
heen secured which, as pointed out by Judge Pierce,
may have constitutionalized the search.
It was unforgivable for the police not to obtain a warrant.
These arrangements could have been made when the auto-
mobile entered the United States. The unfounded fear
that the automobile might be removed from. the juris-
diction could have been easily accommodated.”
(Footnote continued from preceding page )
taining stolen coins, was detained for 29 hours so that a search war-
rant was obtained. The case is analogous in that the government’s
control of the car here probably was constitutionally permissible for
a limited period of time, but clearly under Van Leeuwen a search
Warrant Was ultimately required to breach the privacy of the auto-
mobile,
"Rule 41 merely limits the issuance of a warrant to the district in
which the property sought to be searched is located. Surely, once
execution of the process is started in the district of issuance, its
completion, in hot pursuit of the vehicle, could occur outside the dis-
trict. We can find no authority to the contrary and we are unable
0 imagine any court holding otherwise,
—_
M N84 Fhe vig —
: iL SoM
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- —.
18
Our situation is analogous to one where an informer
may have concealed narcotics in a hotel room leased
in his name. If thereafter the room were rented by another
person, by prearrangement, no one would argue for a
moment that the narcotics could be seized without a search
warrant, even though the suspect was arrested in the hotel
room. Johnson v. United States, 333 U.S. 10 (1948);
Chimel v. California, supra. Although the knowledge of
the narcoties in the hotel room, aequired over three days,
would undoubtedly supply ample probable cause, that fea-
ture could not be used to avoid traditional warrant pro-
cedures. The search of this Jaguar reeks of all the
evils which would surface in the warrantless search of the
hotel room.
It is true that an immediete search of an automobile
may be made without a warrent under emergency circum-
stances “where it is net praet-eable to secure a warrant
because the vehicle can be quiekiy moved out of the locality
or jurisdiction in which the warrant must be sought.”
Chambers v. Maroney, 399 U.S. 42 (1970); Chimel v. Cali-
fornia, 395 U.S. 752 (1969) ; Brinegar v. United States, 338
U.S. 160 (4949): Carroll vy. United States, 267 U.S. 132
{4925}.
However, the facts in Chambers are far different from
those here. There the police clearly had no time to get a
warrant, and if a search was to be effected, it had to be
made immediately. The Court then went on to point out:
“Only im eaigent cireumstances will the judgment of the
police es * probable cause serve as a sufficient authoriza-
tion for a search.” (399 U.S. at 51.) The Court then
stressed that only when a ear is stopped on the highway
and the contents may never be found again if a warrant
concen aA . See (APA leh IE ALEIN IAS
19
must be obtained, that an immediate search is constitu-
tionally permissible.”*
Here, in contradistinction to Chambers, the vehicle was
under the constructive control of the federal agents. It
was not by any stretch of the imagination being used to
flee from a crime, and more importantly, the government
knew they were eventually going to search the car and
thus cannot he excused from failing to obtain a search
warrant.
To extend Carroll and Chambers to every search for
evidence in any automobile, even when the car is under
direct surveillance for three days, would dangerously im-
pair the constitutional rule requiring law enforcement
officials to obtain a detached and neutral judgment on the
question of probable cause unless they can demonstrate
special need for the exemption. Chimel v. California,
supra; Katz v. United States, 389 U.S. 347 (1967): Warden
v. Hayden, 387 U.S. 294, 299 (1967).
Clearly, the extraordinary circumstances of this case
place the petitioner on the warrant side of the great divide
hetween Coolidge and Chambers. The longer promises of
Coolidge extend to this search, whereas the shorter com-
mitments of Chambers are completely inapplicable.
The petitioner Ortega also complains of the search of
the apartment located at 608 82nd Street, North Bergen,
New Jersey, as being constitutionally inadequate.
'T However, the Court in Chambers was careful to emphasize :
“Neither Carroll, supra, nor other cases in this court require or
suggest that in every conceivable circumstance a search of an auto,
even with probable cause, may be made without the extra pro-
tection for privacy which a warrant affords.” (399 U.S. at 50)
cia ete |
20
On September 19, 1971 a search warrant was issued by
United States Magistrate Jerome Schweitzer for a search
of those premises. The execution of that warrant on the
same day produced a Hanson scale, which was received in
evidence against all the defendants. It was argued that
this scale was a device usable for weighing and packaging
narcotics.
Counsel effectively complained about this search, urging
that there were absolutely no facts of probable cause sup-
plied to the magistrate in support of this warrant (401).
Nevertheless, despite counsel’s protestations, the court sus-
tained the warrant (454).
The affidavit in support of the search warrant merely
traced the history of the importation into the United
States of the drug-laden Jaguar and its ultimate delivery
to the defendants. Ilowever, these facts involving merely
Ortega’s driving the car out of the New Garden Garage
in no wavy inspired any probable cause for the search of
an apartment in New Jersey. The conclusory statements
that Ortega “is a major trafficker in narcoties” and that he
is the person believed to be making the downpayment pro-
vided no basis for the search of the premises in New Jer-
sey. For that matter, the government knew that all the
drugs imported, with the exception of one bag, had been
confiscated. Consequently, no drugs connected with this
importation scheme could possibly have been found in the
apartment in New Jersey allegedly rented by Ortega.
Aguilar v. Texas, 378 U.S. 108 (1964), is dispositive of
this issue and should compel the Court to suppress the
evidence. For there, no more was supplied to the magis-
trate than was furnished here, and the Court had no diffi-
eulty invalidating the warrant.
. . — TAS Slat Aa . ab ae eee
—— ee
21
In a case almost identical to ours, the Ninth Cirevit in
United States v. Bailey, 458 F.2d 408 (9th Cir. 1972) con-
demned a warrant for the search of a home despite
ample probable cause to arrest the occupants on the
ground that there was no reason to believe that evidence
of crime would be found in the home. The Bailey case
and the one at bar present a clear conflict in the circuits and
should compel a grant of certiorari.
Tt only remains to be said that this Court must reject
the government’s invitation to become their handmaiden
in lawlessness. Here the government plunged into these
protected precincts without regard for the consequences.
By taking proper precautions, they could possibly have
saved this search. Failing to do so, they must now bear
the responsibility for that misadventure. For if these
gross violations are ignored, the deterrent effect of our
constitutional rules governing precipitous searches by both
police and prosecutors will be significantly undermined.
This Court simply cannot disregard the approach taken
in Preston and Coolidge, and create a special rule for
automobile searches which, under these circumstances,
does not comport with generally applied Fourth Amend-
ment principles. To allow the judgment below to stand
uncorrected will sound a requiem for Preston and Coolidge.
We are not unmindful that the safety of the community
is threatened by the sale and distribution of narcotics.
But in a much more vital sense, the safety of society is
protected by decisions which serve as a safeguard against
the most terrifying svmbol of a police state—the arbitrary
seizure and arrest of people in the streets and the confisca-
tion of their property by police officers who have become
masters rather than servants of the law. When we be-
come indifferent to these constitutional abuses. we are
well on our way to losing these rights. For lurking in the
dark shadows of these low-visibility car searches is a threat
to every man’s security and privacy. Such a case puts our
judicial system to its severest test—but that challenge
must be met if the privacy of all men is to remain safe.
For all these reasons, the petition for certiorari should
be granted.
Respectfully submitted,
HeraLp Price Fanrincer, Esgq.,
Attorney for Petitioner,
One Niagara Square,
Buffalo, New York 14202,
(716) 856-8400.
Liesitz, GREEN, FAHRINGER,
Roii, ScHuLuLeR & JAMEs,
Of Counsel.
A-1
APPENDIX “A”
Opinion of Court of Appeals
UNITED STATES COURT OF APPEALS
For THE Seconp Circuit
Nos. 221, 222—September Term, 1972.
(Argued October 13, 1972 Decided December 11, 1972.)
Docket Nos. 72-1479, 72-1482
Unrrep States or AMERICA,
Appellee,
—v—
Luis Gomez OrrreGa, GrorGe Warren Perez and
JEAN OrsIn1,
Defendants-Appellants.
Before:
FRIENDLY, Chief Judge,
Meprna and Anperson, Circuit Judges.
Appeal from judgments of conviction in the United
States District Court for the Southern District of New
York, Lawrence W. Pierce, Judge.
Luis Gomez Ortega, George Warren Perez and Jean
Orsini appeal from judgments entered on the verdict of
a jury, convicting them of conspiracy to import, distribute
A-2
Opinion of Court of Appeals
and possess with intent to distribute 934% kilograms of
heroin, in violation of 21 U.S.C., Section 846, and with
distribution and possession with intent to distribute of
one-half kilogram of heroin, in violation of 21 U.S.C,
Section 841(b)(1)(A) and 18 U.S.C., Section 2.
Affirmed.
ArtuHurR J. Vivian1, Assistant United States At-
torney, New York, N.Y., (Kenneth Feinberg,
John M. Walker, Jr., John W. Nields, Jr.
Assistant United States Attorneys, and
Whitney North Seymour, Jr., United States
Attorney for the Southern District of New
York, New York, N.Y., on the brief), for
Appellee.
Heratp Prick Fanrincer, Buffalo, New York,
(Lipsitz, Green, Fahringer, Roll, Schuller
and James, Buffalo, New York, on the brief),
for Defendant-Appellant Liais Gomez Or-
teqga.
Nancy Rosner, New York, N.Y., (Edmund Allen
Rosner and Rosner & Rosner, New York,
N.Y., on the brief), for Defendant-Appel-
lant George Warren Perez.
Ivan S. Fisner, New York, N.Y., (Albert J.
Krieger and Alan Scribner, New York, N.Y.
on the brief), for Defendant-A ppellant Jean
Orsini.
RPSL NEE EP ELLIE ELSE LEG DIN ESSE he SIRS Fan 82 YN EE SHIRTS 8D NT es ao
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A-3
Opinion of Court of Appeals
Mepina, Circuit Judge:
This is an appeal from judgments, entered upon the
verdict of a jury, after a trial before Judge Pierce, by
Ortega, Perez and Orsini, each of whom was found guilty
on both counts of an indictment charging them with con-
spiracy to import, distribute and possess with intent to
distribute 934% kilograms of heroin, in violation of 21 U.S.
Code, Section 846, and with distribution and possession
with intent to distribute a smaller quantity, about a half
kilogram, of heroin, in violation of 21 U.S. Code, Section
841(b)(1)(A), and aiding and abetting, in violation of
18 U.S. Code, Section 2. Ortega and Orsini were each
given heavy sentences of 10 and 15 years imprisonment
on the two counts, to be served consecutively, and fines of
$10,000 and $25,000, or an aggregate of $35,000 were im-
posed on each. Perez was sentenced to 7 years imprison-
ment on each count, to be served concurrently, and he was
fined a total of $7,000. These three appellants are now
serving their sentences.
Kach appellant claims that the evidence adduced by the
prosecution was far short of what was required to estab-
lish the commission of the crimes charged. Each of them
also asserts that the judgment of his conviction must be
reversed for a variety of other reasons which we can more
readily describe after stating in chronological order the
facts as the jury may have found them to be.
COPY BOUND CLOSE IN CENTER
A4
Opinion of Court of Appeals
I
The Background and the Development of the Conspiracy
Somewhere in the world there must be persons of enor-
mous wealth and influence who individually or in groups
support and manage the gathering of the raw materials,
the processing of vast quantities of heroin and the sending
of this heroin to the United States. These unknown persons
operate in many countries and one of the characteristics of
their operations that help these master minds to avoid
detection is that their numerous agents often have no ae-
quaintance with one another until they converge and carry
out their secret orders with respect to the distribution of
a particular shipment and the receipt and return of the
money to those who had planned and supervised the ven-
ture. This record does not disclose the over-all operations
of this international narcotics ring, nor the identity of those
who plan its operations. Nor does the indictment contain
any such charge. But the record does disclose and the
indictment charges these particular appellants with the
crimes above stated with reference to a particular ship-
ment of a very large quantity of uncut and practically
pure heroin, amounting to 9314 kilograms and of a retail
value of $1,000,00, according to the evidence. This heroin
was hidden in a variety of open spaces in the construction
of the chassis of a tan colored Jaguar Sport Car, and these
180 bags of heroin could have been concealed in this auto-
mobile only after it had been dismantled by skilled mechan-
ies and then put together again. Of the individuals who
converged and met in New York City to carry out their
secret orders and to transport and deliver this heroin and
receive the money to be paid by the prospective purchasers,
A-5
Opinion of Court of Appeals
one was a Corsican who came from Barcelona, Spain, one
came from France and two were Cubans at least tempo-
rarily living in New York City or the vicinity. French and
Spanish interpreters were in attendance throughout the
trial. We do not know who supplied this large quantity
of heroin or who paid for it or who secreted the bags in
the Jaguar. Nor do we need to know. We do know that
upon arrival in New York the Jaguar contained the hidden
180 bags of heroin and we do know that each of these
appellants played his several role, working with the others
and that they were in possession and control of the Jaguar
at the time they were all taken into custody. As we shall
see, the evidence of the acts of these three conspirators
and their knowledge that heroin was concealed in the
Jaguar is overwhelming.
We give this brief description of the background because
the man who bought the Jaguar in England and who came
with it to New York on the Queen Elizabeth IT, and the
man who turned it over to those who were waiting here
to receive it was a government informer. The principal
point raised by appellants is that they claim the trial
judge should have forced the government not only to iden-
tify this informer but to describe his whereabouts and to
produce him for the alleged purpose of giving appellants
an opportunity to put him on the witness stand and support
what appellants choose to call their “defense” of entrap-
ment. It was stipulated that the informer purchased the
Jaguar in England in the presence of one of the U. S.
Narcotics Agents, that is to say that the agent saw him
buy it, and that the government did not furnish any money
to buy the Jaguar or give any instructions to the informer
to buy it. The informer had no contact whatever with any
Ab BE NLM ASN ON I NE (ale Bt APE SIN OR OE
A-6
Opinion of Court of Appeals
of these appellants and the so-called “defense” of entrap.
ment was not supported by any proof whatever, as none of
the appellants testified at the trial. Moreover, with such
a large shipment and the total absence of any showing that
the government paid for any part of the heroin or had
anything whatever to do with hiding the 180 bags of heroin
in the Jaguar, we think this wholly unsubstantiated “de.
fense” is absurd. We shall return to this subject later.
The events charged in the indictment commence in
August of 1971 when a Frenchman named Etienne Gunther,
who lived with his wife and young daughter in Paris, went
to Niolon, a small village near Marseilles, and spent the
weekend at the villa of Etienne Mosca, who had formerly
been the husband of Gunther's sister Georgette. Gunther
knew that Mosca was a trafficker in heroin and the upshot
of the visit was that Gunther agreed on September 7, 1971
to go to the United States and bring back a large quantity
of currency which he was to smuggle into France and de-
liver to Mosca. The arrangements made between Mosca
and Gunther, who pleaded guilty to one of the counts of the
indictment and later testified for the government at the
trial, give a clear blueprint of what was to take place. And
the cunning way in which Ortega, Perez and Orsini covered
their tracks and resorted to subterfuges, the use of false
names and a continual shuttling around to avoid detection,
form a web of direct and circumstantial proof from which
these appeallants could find no avenue of escape.
The basie plan was simple. One person, who, unknown to
the participants in the conspiracy, turned out to be the
government informer, was to bring the Jaguar and its
hidden 931% kilograms of heroin from England to the
eRe ote
PRM MRO Mea eR eA
Pa kt oe a a oe es ot Oe ae ee mnmAmrmpD Cmpoy
‘sail
A-7
Opinion of Court of Appeals
United States on the Queen Elizabeth II, leaving South-
ampton September 10, 1971. The schedule was tight. Gun-
ther and his wife were to arrive by plane in New York on
September 14; the Queen Elizabeth 11 docked in New York
on September 15, Although the persons involved in the
operation did not previously know one another, clandestine
means were planned by which the car and its contents could
be delivered to one of the conspirators, and by which the
conspirator who thus had control of the Jaguar and its
contents could make contact with the others who were to
distribute this large quantity of heroin and receive the
money to be paid for it. The final stage was to be the re-
turn of Gunther to France with the money, not later than
Monday, September 20th. The conspirators thought they
were operating successfully on schedule until Ortega, Perez
and Orsini were arrested in the early morning of Sunday,
September 19th, as they were attempting to drive off the
Jaguar to make the delivery and receive the money. They
had made the necessary contacts with one another, they
had provided the place where the heroin was to be weighed,
packed and delivered, and Gunther had started to build the
false hottums in the suitcases provided by Mosea to hide
the large quantity of currency to be smuggled back into
France by Gunther.
We may remark, parenthetically, that a combination of
customs agents and agents of the Bureau of Narcotics and
Dangerous Drugs made an examination of the Jaguar and
its contents in the hold of the Elizabeth IT as she came up
the harbor, and one of the 180 bags of heroin was removed
for testing. Late the next night while the Jaguar was in
a garage opposite the Playboy Club, where the informer
was disporting himself with a young lady, government
A-8
Opinion of Court of Appeals
mechanics dismantled the Jaguar, removed 178 bags of the
heroin and substituted a similar number of bags containing
a harmless loctose, and left hidden in the car bag number
179, with its original contents of pure, uncut heroin, A
final search of the Jaguar was made after the arrest and
this disclosed bag number 179 and its contents just where
the government agents had left it. In the meantime, how.
ever, Ortega, Perez and Orsini thought the Jaguar, now in
their possession and under their control, contained its
original load of 180 bags or 931% kilograms of heroin, Ap.
pellants claim that all these searches, or most of them, were
made without warrants and without probable cause in vio-
lation of their Fourth Amendment rights. Even the
searches made in execution of warrants are attacked as
made without probable cause and on the basis of insuflicient
affidavits.
We shall now trace the covert operations of the conspira-
tors. On Friday, September 17, the Jaguar was parked in
the New Madison Square Graden public garage by the man
who had brought it from England. Gunther had never seen
this man but Mosca had shown Gunther a photograph of
him. They were to meet at #8 Bowling Alley in the New
Madison Square Garden at 12:00 to 12:30 P.M. or 6:00 to
6:30 P.M. and they were to recognize one another by the
identification of a folded newspaper and a pen-shaped key
ring that each was to carry. They met at the appointed time
and place, recognized one another and the parking ticket
was delivered to Gunther. At this point the informer steps
out of the picture and he has nothing to do with Gunther's
making contact with the second unknown, who turned out
to be Orsini, who had arrived by plane from Barcelona,
Spain one day hehind schedule.
TT RUN EN DIE TERN ae
A-9
Opinion of Court of Appeals
The meeting between Gunther and Orsini takes place.
This time the recognition signal is that each is to carry an
unfolded newspaper and a flashlight-shaped key ring and
(iunther was to use the code name Thomas. The parking
ticket for the Jaguar is now turned over to Orsini and
elaborate arrangements are made for a later meeting at
which Orsini was to hand over the money to Gunther to
he taken back to France. ,
In Orsini’s possession at the time he received the park-
ing ticket from Gunther were several documents written
in French, These were on Orsini’s person at the time
Ortega, Perez and Orsini were arrested. One of these
documents contains a description of how Orsini is to ree-
ognize Gunther and the code name “Thomas,” another is
adiagram of the Jaguar showing the 10 places where the
180 hags of heroin were concealed and still another doe-
ument containing instructions how to take the Jaguar apart
to get out the herion,
The government agents knew that the Jaguar and its
contents had arrived and they had taken the precaution
of seizing all but one bag of this very valuable cargo. But
they did not know to whom the Jaguar and its supposed
contents were to be delivered nor who the other cooperat-
ing members of the conspiracy might turn out to be. How
these people were located is the story of a very fine piece
of detective work. And, as this story unfolds, it hecomes
clearer at every step that each of these appellants knew
they were possessing and distributing an unusually large
shipment of herion and that their guilt of the charges eon-
tained in the indictment was established.
oY) 6444 Tue
ALN tO A te Be 2 ath ot
nid gb AE
ED GAD Nila
A-10
Opinion of Court of Appeals
So, on Saturday, September 18, the agents followed
Orsini from the Hotel Abbey Victoria, where he met
Gunther, to the Hotel Alrae where Orsini had registered
as a guest, using the false name of Jean Pierre Andre
Hluguen.' Now that he had in his pocket the parking ticket
and instructions how to dismantle the Jaguar and get out
the herion, we might expect him to make a beeline for the
people who were to help distribute the heroin and collect
the money, and that is precisely what Orsini did, with the
usual backing and filling and getting in and out of cabs
that indicate an effort to throw any government agents
off the scent. So, Orsini started off in a cab and went
straight to 587 Riverside Drive, where Ortega was to he
found. When a search warrant was executed and the con-
tents of Orsini’s room at the Hotel Alrae were seized, there
was found a memorandum containing the following:
476 Riverside Drive Apt 1D
New York—N.Y. 10031
13 ''—3738
The 1 in a cirele is a code indication that the real Riverside
Drive address is to be obtained by adding 1 to each of the
numbers in 476. Thus Orsini knew that the man he was
looking for was at 587. Certain numbers also appear on
this memorandum which is on Hotel Alrae notepaper. The
inference, of course, is that Orsini brought with him from
Barcelona the papers in French giving him instructions how
and where to identify Gunther, describing the hiding places
of the 180 hags of herion and how to take the car apart
to get them, but the memorandum giving Ortega’s address
1 The prosecution found out through the French police that his real
name was Jean Orsini.
A-11
Opinion of Court of Appeals
in code was made after some telephoning by Orsini in the
interval between his arrival at the Alrae after receiving
the parking ticket from Gunther and 3 P.M. when he started
to go up to 587 Riverside Drive. He stayed there only a
few minutes and then went back to the Alrae. There was
no time to lose if he was to effeet delivery of the heroin
and have the money representing the purchase price ready
to hand to Gunther on Monday, September 20, at the Sports
Bar on 1st Street between 8th and 9th Avenues, as agreed
hetween Gunther and Orsini at the time of delivery of the
parking ticket. What Orsini was to hand to Gunther at the
Sports Bar was the money.
This was a busy time for the conspirators. They must
prepare a place to unload the Jaguar, a place to weigh
and repack this huge quantity of heroin and get together
the pile of bills that Gunther was to hide in the false bot-
tems of the suitease given to him by Mosea. Gunther was
wasy constructing these false bottoms according to detailed
instructions from Mosca, but time ran out and he and
these three appellants were arrested when their plans mis-
carried and the Jaguar broke down just as they were on
their way to make delivery of the heroin and get the
money ready. More of this later.
Orsini left the Alrae again at 4 P.M. on Saturday, Sep-
tember 18. He handed the cab driver, who happened to be
a government agent, a slip of paper on which was written
the address 1021 Kennedy Boulevard, West New York, New
Jersey, In a conversation in part French and part broken
English Orsini displayed some knowledge of. the part of
New Jersey where they went. There was again the usual
going in and out of buildings, walking up and down the
A-12
Opinion of Court of Appeals
street and passing some time in a bar. Finally, Orsini re-
turned to the Alrae. He left the Alrae at 10 P.M. with Or.
tega and they both walked to the corner of 63rd Street
and Madison Avenue, where they got in a maroon 197()
Ford station wagon driven by Perez, and all three drove
off together.
Between 10:00 P.M. and 12:20 A.M. on Sunday, Sep.
tember 19, Orsini, Ortega and Perez managed to escape
the surveillance of the agents. But bits of evidence when
put together make it pretty clear that the three were busy
in New Jersey getting ready for delivery of the heroin.
The agents had the license number and a description of
the Ford station wagon. This was found abandoned in
Hackensack, N.J. It was registered in the name of Rafael
Rivera who gave his address as 608-82nd Street, North
Bergen, N.J., which was not far from West New York and
not a great distance from Hackensack. And it turned out
that, when searehed after his arrest, Perez had in his
pocket the keys of the maroon Ford station wagon and a
driver’s license, a Social Security ecard, and a Selective
Service Draft Certificate, all in the false name of Rafael
Rivera. Perez gave the North Bergen residence as his
address. It also turned out, as disclosed by the execution
of a search warrant on this same September 19, also after
the arrest, that 608-82nd Street, North Bergen, NJ. con-
tained a vacant apartment, on the ground floor of a two-
family house, with the name Rivera on or near the en-
trance door, and that hidden under the sink in a closed
compartment, covered by newspapers, was a_ flexible hal-
sam hoard and a Hanson 25 pound scale appropriate for
the weighing and measuring of large quantities of heroin.
SAA Me RE AE ARES TINT A ON IRR ALIEN Ahad INL LIL IPT BR I 8 OEE ODA AAG LIEBE GE —-
A-13
Opinion of Court of Appeals
It also appeared that Ortega at the time of his arrest was
carrying a driver’s license in the name of Santos Her-
nandez who was supposed to live at the same address,
608-82nd Street, North Bergen, N.J. So two of these three
appellants were tied in together at this vacant dwelling,
which seemed to be a perfect choice for the conduct of
such an illegal enterprise as the weighing and packaging
of 9314 kilograms of heroin for delivery. And the third
of these appellants, Orsini, had been seen crusing around
the vicinity. It is significant that on September 16, 1971
the New Jersey Division of Motor Vehicles issued the
registration of a Chevrolet to the supposed Santos Her-
nadez, or Ortega. This is the very day that Jaguar was
parked at the New Madison Square Garden Garage. And
it is in the same Chevrolet that we find Perez and Orsini
escorting Ortega, who was driving the Jaguar, at the time
of the arrest, as will appear shortly.
| In any event, having made the necessary arrangements
| for delivery and payment, to their satisfaction, the trio
now present themselves at the New Madison Square Gar-
den Garage to pick up the Jaguar and its contents. Tt is
now after midnight. The abandonment of the Ford sta-
tion wagon in Hackensack is explained hy the fact that
Perez was now driving the Chevrolet. The trio had
switched cars to put any possible followers off the scent.
| Ortega marched in with the parking ticket; the Jaguar is
| turned over to him by the garage attendant: but, to the
dismay of the conspirators, the Jaguar will not. start.
The car is coasted down the ramp to the street floor:
Perez comes in to help. Finally, the engine is started,
with Ortega in the driver’s seat. After going a block or
ee) Pe Se,
A-14
Opinion of Court of Appeals
two, immediately followed by the Chevrolet, driven by
Perez with Orsini beside him, the Jaguar, which the cop.
spirators believe is filled with a million dollars worth of
pure, uncut heroin, comes to a final stop at the intersee.
tion of 8th Avenue and 31st Street. What happens then
is interesting. Each of the trio, Ortega, Perez and Orsini,
makes a desperate effort to start the car. They are liter.
ally surrounded by government agents who appeared to
he bystanders. When one of these, diagnosing the sitna-
tion as carburetor trouble, takes off the air filter, Perez
pushes him away, fearing that perhaps some of the precious
heroin might be disclosed if people began taking the ear
apart. Perez finally got a cab driver to come and help
while Orsini and Ortega in the Jaguar were trying to get
the engine going. At this point the three appellants were
arrested, and a search of their persons, incidental to the
arrest, and a search of the premises at GOS-82nd Street,
North Bergen, N.J., and of Orsini’s room at the Alrae
pursuant to search warrants produced the incriminating
documents above referred to and other items that we pass
over as we think what has already heen written shows
that there was ample evidence to sustain the findings of
guilt on both counts as against each appellant. There is
much additional incriminating evidence. At least Ortega
and Orsini were old hands at the business. False. state-
ments of one kind and another were made. But the essen
tial facts are as above stated.
The testimonial and documentary proofs taken as a
whole plainly justified, if they did not. indeend, compel a
finding that Perez as well as Orsini and Ortega knew they
were trafficking in heroin. The eonspiraey and the know-
A-15
Opinion of Court of Appeals
ing participation of each of these appellants were estab-
lished beyond any deubt. There was ample proof that the
three conspirators, Perez as well as Ortega and Orsini,
were in joint possession and control of the Jaguar, which
they thought contained the entire shipment of 180 bags of
heroin, hut which in fact only contained the 1% kilogram
hag of heroin left in the car by the agents at the time they
dismantled the Jaguar in the middle of the night at the
garage opposite the Playboy Club. Moreover, the proofs
were more than ample to establish aiding and abetting by
Perez as charged in Count 2. So, we shall not discuss fur-
ther the claim by each appellant that the evidence was in-
sufficient to support the verdict and the judgments of con-
viction entered upon this verdict; and we turn to the other
rulings that are alleged to call for a reversal of the judg-
ments.
I]
There Was no Error in the Series of Rulings
concerning the Identification, the Disclosure
of the Whereabouts or the Production of the
Government Informer
From the beginning of the trial counsel for the defen-
dants tried their best to manufacture some basis for re-
versal by their demands for the identification, disclosure
of the whereabouts of and the production of the govern-
ment informer who bought the Jaguar, brought it with its
contents to New York, turned the Jaguar over to Gunther
and then, without having seen or had any contact what-
ever with any of these appellants, disappeared from the
seene of operations.
—
Ee
a
SADR PRE IESE OL I TIO DS Se FBR: mS ig
A-16
Opinion of Court of Appeals
In their effort to show that the informer’s testimony
would be “relevant and helpful to the defense” or “essentia]
to a fair determination” of the issues in the ease, and thus
bring the facts of this particular informer situation within
the ruling of the Supreme Court in Roviaro v. United
States, 353 U.S. 53 (1957), the arguments of counsel for
these appellants were presented in a double aspect. In the
first place, they claimed that the informer, if his identity
and whereabouts were disclosed, might be called by them
to testify in support of a conventional entrapment defense,
or, if interviewed, that he might lead counsel to the dis.
covery of leads that might be helpful in the establishment
of such a defense by other proof. But this is not a case
where a government undercover agent plays an active part
in the carrying out of the transaction that is charged in
the indictment against the defendant, as was the case in
Roviaro. This is no buying or selling of a few $5 glassine
bags of diluted heroin in which heroin peddlers and addicts
play their parts. This is not a case in which the informer
is the only person who could testify to a version of the
single, simple narcoties transaction in such manner as to
establish the innocence of the defendant. This is a large
undertaking by a ring of international heroin exporters
and it involves a million dollar shipment of pure, undiluted
heroin. The notion that the government planned and cre-
ated this venture to entrap the unknown individuals who
might ultimately appear in the United States and receive
the 9314 kilograms of heroin, weigh and package it for
delivery and remit the proceeds to those in charge of the
complex international venture is on the very face of the
matter quite beyond the stretch of any probability. More.
Se a Se —
_ oe CBN R SONI SOTO AVP IAAL AYE, PPM Gil 9
ae ™
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 Tl.2d
320, 172 N.E.2d 765 (1961), the government supplied the
very narcoties that gave rise to the alleged offense.
Without the slightest scintilla 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, uneut heroin had been
purchased by the government, that the government had
eansed it to he placed in the Jaguar that had in turn heen
io |
A-18
Opinion of Court of Appeals
purchased with government funds, all for purposes of ep.
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 indicated
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 eases 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
ex i BORE earths eegem IRR ~ 3 PR ADIN SSS REE ASE ILE RIES 7
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 in 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 Seeond 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 tx 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 tx 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 4538, 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
W (2d Cir, 1966); United States vy. Coke, 339 F.2d 183 (2d Cir.
1964).
€
+
SORE SN
EPI EYAL AINE FI ROR T Eo 0 A RRANSD PON 6 AI abe v 5 $< Coal —7
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, | can find no
ground for supporting your requests for either reveal.
ing his identity or asking the government’s cooperation
in producing him here.
| have had in mind, as | reviewed this material,
the specific matters which you have called to my atten-
tion, your specific concerns, your specific assertions,
{ and | nevertheless find none of these to be supported
in any way by the material I have reviewed.
; In fact, | 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
F or essential to a fair determination of any of the issues in
Ses ARE OCA a Sarat
A-21
Opimon of Court of Appeals
the case. 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 heen 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'Angtolillo, 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.
Il
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 Orsin’’s Room at the Hotel Alvae 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
eed re PARDO TD Os NT Le ns arvew eine ee ——
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 Il 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 seareh.
At this time the shipment of hero:zn 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 he 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 mischance.
And it was equally proper to leave some of the heroin in
the car for purposes of proof of the violations of the nar-
coties laws by those who might be expected to drive off
3 See United States vy. Canieso, Slip Op. Docket No, 72-1789, ad
Cir., November 22, 1972. and cases cited.
NOEL IG TIT LI EIGER LGM FRG ORE LNA Bh CLINE LT sre, MR OS
A-23
Opinion 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 931% kilograms of heroin.
Appellants make much of the fact that, for some period
after the one bag of heroin was left concealed in the ear,
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., Seetion 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
(170), 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 deetrine of Carroll vy.
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, 36% F.2d 1013 (2d Cir. 1966), cert,
denied 386 U.S. 960 (1967),
* See Collidge vy. New Hampshire, 403 U, 8. 443, 463 (1971).
EP PY LIER MEET LS GR SOS = Ea MET ASS ate ‘ Cre oA > slaty ls ees ERROR DAM aT
A-24
Opinion of Court of Appeals
B
The Search of Orsini’s Room 6J at the
Hlotel 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 occupied 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-
f 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
Praca. ¢
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
“teint” hearing was properly denied. It would have been
error to rule that any such hearing should be had, under
the circumstances of this ease.
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.
Moreover, what is supposed to be illegal about the con-
duct of this agent in the next room? It is conceded that
no electronie surveillance was in any way involved. What
can 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 by 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 kevhole.
A-26
Opinion of Court of Appeals
C
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 Ilis 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 Wiranda warnings had been 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 Com-
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. Tle was told to
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OSGI I ET EE LENO EE APE IE OO GOEL. BAIL LENE Loh EEN 9 FE BOREL
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 been 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 been properly given.
We are now asked to hold that the answers should have
heen 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 before 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. 382 (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
SAI MEMO T EAI C18 BALLAD Ter BOLD ABM yO te it Se Cats acta Et REL ay
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.
V
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 lawver 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 been caused by a
desire on the part of Orsini “to exculpate” Ortega, “hut
he is not prepared to do it before the jury that will decide
the question of his (Orsini’s) guilt or innocence.” No
eredible explanation of how Orsini is to do this exeulpat-
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 been severed, he would have taken the witness
stand and his exoneration of Ortega would he so convine-
ing and persuasive that Ortega would he aequitted. 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
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BLEED THROUGH POOR COPY
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.
We are solemnly told that Ortega was going to call
upon Orsini as his witness in defense but failed to do so
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.”
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
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
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
ABE LL PEON E ROR GORY Be ELE ER OTN IL BRAS ho
A-30
. Opinion of Court of Appeals
evidence taken as a whole, it is highly improbable that
the jury took any interest in the passport or in Orsini’s
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 been 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
country.
i i hi aa
We eannot conclude this opinion without a word of com-
ment on the wholly admirable way in which the prosecv-
tion of this complicated and difficult case was conducted by
Assistant United States Attorney John M. Walker, Jr.
Affirmed.
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