Memorandum — Levine v. United States

dn the Supreme Court of the United States

OcTOBER TERM, 1973

No. 73-757

STUART LEVINE, PETITIONER

vV.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MEMORANDUM FOR THE UNITED STATES IN OPPOSITION

Petitioner contends that he was denied effective assis-

tance of counsel; that the evidence was insufficient to

support his conviction; that the court failed to instruct on

an essential element of one offense; and that the method

of selection of grand and petit juries in the Southern Dis-

trict of Florida is unconstitutional.

Following a jury trial in the United States District

Court for the Southern District of Florida, petitioner

was convicted of conspiracy to import, possess, and dis-

tribute marihuana, and of aiding and abetting another in

carrying a firearm unlawfully during the commission of

a felony, in violation of 21 U.S.C. 846 and 963,

and 18 U.S.C. 2 and 924(c)(2).' He was sentenced to im-

'Co-defendants Robert DJrsay and Louis H. Chippas were also

convicted in the joint trial. See petitions for writs of ceritorari

in D’Orsay vy. United States, No. 73-5288, certiorari denied, Decem-

ber 3, 1973, and Chippas y. United States, No. 73-761 (filed

November 12, 1973), in which we have filed a brief in opposition.

(1)

2

prisonment for concurrent terms of four years and one

year, to be followed by two years’ special parole; he

was also fined $15,000. The court of appeals affirmed

without opinion (Pet. App. A).

In 1972, agent John Stevenson of the Bureau of Nar-

cotics and Dangerous Drugs and Juan Ortiz, an infor-

mant, worked undercover in the investigation of narcotics

traffic by making themselves available as pilots (Tr. 72,

73). On May 20, 1972, Ortiz and co-defendant Chippas

met at the Miami International Airport and looked over

some DC-3 and Lockheed Lodestar airplanes (Tr. 79-80).

Three days later, Ortiz and agent Stevenson met co-defen-

dant D’Orsay at the airport motel coffee shop. After Ortiz

introduced Stevenson as his co-pilot on the trip, they dis-

cussed in detail the use of a Lockheed Lodestar to

transport a load of marihuana from Jamaica to Lees-

burg, Florida (Tr. 84, 85).

D’Orsay said that Ortiz and Stevenson would not be

able to make contact with Chippas in Jamaica, but that

Chippas would recognize their yellow Lockheed Lode-

star when it landed in Jamaica. He also said that some-

time after 6:30+p.m. that evening Chippas would call

petitioner, who would advise Stevenson, through D’Orsay

and Ortiz, when and where to go in Jamaica (Tr. 90-

91). D’Orsay would then meet Ortiz and Stevenson and

give them final instructions and the money to rent the

airplane and to pay for gas and expenses (Tr. 91-92).

Petitioner had gone to the bank that day to cash

checks so the money would be available when Ortiz and

Stevenson got the word to go (Tr. 92). D’Orsay said

that he would give them a package containing a Beretta

pistol which belonged to petitioner and which petitioner

would want back at the end of the transactions (Tr.

3

89-90, 92-93).2 After the discussion, the three men left

the coffee shop and D’Orsay went to a car and got out

a paper bag containing a Beretta pistol and a number of

garbage bags, and gave them to Ortiz (Tr. 92-93).

On May 24, 1972, Ortiz and Stevenson met with

D’Orsay and petitioner at the same coffee shop and Ste-

venson was introduced to petitioner as John, the co-

pilot. D’Orsay stated that Chippas had called him that

morning and expected Ortiz and Stevenson to fly to King-

ston, Jamaica at 1:00 p.m. that day to pick up the load

(Tr. 125-127). On the way out of the coffee shop, peti-

tioner called Ortiz aside and they went into the bar for

a few minutes. Ortiz had been searched before the meet-

ing and found to have only $50. He was not out of Ste-

venson’s sight after the search except when he went into

the bar with petitioner. After the meeting broke up,

Ortiz took 19 $100 bills out of his pocket and gave them

to Stevenson. (Tr. 128-132).

Ortiz and Stevenson flew to Kingston that day, arriving

about 11:30 p.m. (Tr. 135). The next day Chippas

approached Stevenson and Ortiz at the airport and the

men went to Chippas’ motel room (Tr. 136, 140). While

there, Chippas spoke of future narcotics deals, and

stated that petitioner was in another business and that he

used petitioner’s clean name to front for his activities,

that he paid petitioner very well for this and that peti-

tioner liked the money (Tr. 144-147). Arrangements were

made to load the marihuana at the Kingston Inter-

national Airport.

2It was stipulated at trial that petitioner was the registered owner

of the gun and that prior to coming into the hands of peti-

tioner, this gun had been shipped by the J.A. Galif Co. of New

York to the Tamiami Gun Shop in Miami in September 1967

(Tr. 217-218).

The following day, Chippas obtained the marihuana

and headed back to the airport (Tr. 154-155, 342,

316-317, 347). Jamaican police seized the truck which

contained 27 burlap bags (Tr. 299-302), including two

which contained marihuana (Tr. 330, 334-335, 338),

and arrested Chippas (Tr. 159).

1. Petitioner’s contention that he was denied effective

assistance of counsel was raised for the first time in

an untimely petition for rehearing which the court of

appeals denied (Pet. App. D). Since the issue was not

timely raised and the facts alleged have not been devel-

oped on the record, petitioner’s proper remedy is a motion

in the district court under 28 U.S.C. 2255. Cf. Lawn vy.

United States, 355 U.S. 339, 362, n. 16.

In any event, petitioner’s contention is without merit.

Petitioner retained Mr. Grusmark to represent him short-

ly after the indictment was returned on June 22, 1972;

he had ample time to engage other separate counsel

prior to the trial date of August 21, 1972. He subse-

quently retained Mr. Kessler to represent him at trial,

and Kessler alone was his attorney during trial (Tr.

44-45; Pet. App. E, paragraph 3; Pet. App. F, paragraph

3). Grusmark did not enter an appearance for petitioner

at trial (Tr. 45). Kessler had available to him the re-

sults of all the pre-trial motions which Grusmark had

made on petitioner’s behalf. Kessler did not request

a continuance, and there is no basis for concluding that

he was not able adequately to prepare for trial. See

United States y. Lacy, 446 F. 2d 511 (C.A. 5).

Petitioner argues that Kessler was in fact only an assis-

tant to Grusmark, and that the latter made the ultimate

decisions for petitioner as well as his two co-defendants.

He further argues that Grusmark could not adequately

5

represent him because of the conflict of interest result-

ing from his representation of the other two defendants.

But Grusmark was not petitioner’s attorney at trial, and

there is no showing that Kessler’s decisions at trial

reflected anything other than his best professional

judgment regarding the conduct of petitioner’s defense.

Since petitioner was represented by retained counsel, he

must make an especially strong showing before it could

be concluded that he had been denied effective assistance.

See United States ex rel. O’Brien y. Maroney, 423 F. 2d

865, 869-870 (C.A. 3).

Mr. Kessler’s representation of petitioner throughout

the trial was vigorous and knowledgeable. Contrary to

petitioner’s claim (Pet. 14), Mr. Kessler and Mr. Grus-

mark objected to the introduction of hearsay evidence

against their respective clients, and they requested and

were granted a cautionary instruction on the admissi-

bility of hearsay evidence in a conspiracy (Tr. 94-96,

108-109, 123-124). Also, contrary to petitioner’s claim,

both Mr. Kessler and Mr. Grusmark objected to the intro-

duction of co-defendant D’Orsay’s post-arrest statement

on a variety of grounds, and both counsel moved for a

severance and a mistrial (Tr. 236-241, 244-246). Even if

any of counsel’s trial tactics could be considered errors

of judgment, they are not sufficient to establish inef-

fective assistance of counsel. McMann y. Richardson,

397 U.S. 759, 770-771.

The trial record shows that Mr. Kessler had sole

responsibility for petitioner’s defense throughout the

trials (see, e.g. Tr. 45, 70, 147, 172-190, 237,

. 4Petitioner was represented by separate, private counsel at

trial, and there was thus no reason, contrary to petitioner’s con-

tention (Pet. 17), for the court to inquire, sua sponte, whether

counsel had a conflict of interest.

6

247-260, 386-393). Nevertheless, petitioner contends that

Mr. Kessler did not act independently in not allowing pe-

titioner to testify (Pet. Apps. E and F). Petitioner points

nothing in the record that supports this claim. The deci-

sion not to testify was, we submit, a tactical decision

of petitioner and his counsel Kessler, and, as such, does

not establish ineffective assistance of counsel. See

Uniied States vy. Marcello, 423 F. 2d 993, 1005 (C.A.

5), certiorari denied, 398 U.S. 959; Sims vy. Lane, 411 F.

2d 661, 664-665 (C.A. 7), certiorari denied, 396 U.S.

943, and cases cited therein.

2. Petitioner contends that the evidence was insuf-

ficient to show either that he was a part of the conspir-

acy to import marihuana or that he aided and abetted

another in the unlawful possession of a firearm during the

commission of a felony.

a. The court of appeals reviewed the evidence, and

found it sufficient to uphold the jury’s verdict. There

is no occasion for further review of this factual issue.

Moreover, the evidence summarized at pages 2-4,

supra, shows the existence of a conspiracy and petitioner’s

participation therein.

b. The evidence was also sufficient to support peti-

tioner’s conviction for aiding and abetting D’Orsay in

carrying a firearm unlawfully during the commission of

a felony. D’Orsay was carrying the firearm while

engaged in a conspiracy to import marihuana, which

is a federal felony (Tr. 89-90, 92-93). The gun belonged

*Petitioner received a one-year sentence for this offense, con-

current with the four-year sentence for violation of 21 U.S.C.

846 and 963. Consequently, if the conviction under the latter

charge is valid, the Court need not consider the contentions with

regard to the former charge. See Benton vy. Maryland, 395 U.S.

784, 791; Barnes y. United States, 412 U.S. 837, 848, n. 16.

—s

— eZ

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to petitioner (Tr. 217-218), who wanted it back at the

completion of the illegal venture (Tr. 90). In light of

these facts and the fact that petitioner was also a part

of the conspiracy to import marihuana, the inference is

overwhelming that petitioner gave D’Orsay the gun sole-

ly at the time of, and for use in, the conspiracy.

Petitioner’s knowledge of the illegal purpose for which

D'Orsay intended to use the gun may be inferred from

such circumstances. See United States y. Calabro, 467

F. 2d 973, 982 (C.A. 2), certiorari denied, 410 U.S.

926.

3. Petitioner contends that the trial court erred in failing

to instruct the jury as to the meaning of “unlawfully”

in the crime of carrying a gun unlawfully during the

conspiracy. Petitioner, however, did not object to this

failure to instruct at the trial, as required by Rule 30,

Fed. R. Crim. P., and he may not now be heard to com-

plain that the trial court's instructions were erroneous.

United States y. Atkinson, 297 U.S. 157.

Furthermore, the alleged error is not so fundamental

as to constitute plain error which may be considered even

though not raised in the trial court. At least one Cir-

cuit has interpreted 18 U.S.C. 924 (c)(2) to require proof

that carrying the firearm in itself was unlawful and to

require an instruction so stating, at least where there

was no evidence as to the lawfulness of the carrying.

United States vy. Ramirez, 482 F. 2d 807, 814 (C.A. 2).

Here, however, the uncontradicted evidence showed that

the carrying of the firearm by the principal, D’Orsay,

was unlawful in itself, as a violation of 18 U.S.C. App.

1202(a)(1), since D’Orsay was a previously convicted

felon (Tr. 292).

In order to convict for aiding and abetting, the evi-

dence need show only that the principal committed an of-

fense and that the defendant aided and abetted him in

doing so. United States y. Deutsch, 451 F. 2d 98,

118-119 (C.A. 2), certiorari denied, 404 U.S. 1019. The

evidence showed that the principal, D’Orsay, carried the

gun unlawfully during the conspiracy (Tr. 89-90, 92-93,

217-218, 292), which is an offense under 18 U.S.C.

924(c)(2). As previously shown, petitioner aided and

abetted the commission of this crime by providing D’Orsay

with the gun, which he knew would be carried in the

conspiracy.

4. Petitioner attacks the composition of the grand and

petit juries which indicted and convicted him, contending

that they were improperly selected in that they excluded

naturalized Cubans and young adults. These contentions

were raised and fully answered in our memoranda in

opposition in the companion case of D’Orsay v.

United States, No. 73-5288, certiorari denied, December

3, 1973, and in Crews vy. United States, No. 72-6021,

certiorari denied, 411 U.S. 908, upon which we rely

here.5

Petitioner also contends that he was denied due pro-

cess because the composition of his juries was affected

by 28 U.S.C. 1865(b)(1), which he contends is uncon-

stitutional (Pet. 31). That provision requires federal

jurors to have resided for one year within the judicial

district in which they are to serve. In order to inval-

idate a jury selection plan, it must be shown that it

excludes a “cognizable group” of persons, and not merely

that it excludes some persons. See United States v. Gast,

969; Grimes v. United States, 391 F. 2d 709 (C.A. 5).

Persons with less than one year’s residence in a judicial

district are no more cognizable as a group than are per-

‘We are providing petitioner’s counsel with these memoranda.

treme (Ft

9

sons who choose not to register to vote, or persons be-

tween the ages of 18 and 21. The exclusion of such

persons has been upheld. See Grimes y. United States,

supra; United States vy. McVean, 436 F. 2d 1120, 1122

(C.A. 5), and cases there cited.

It is therefore respectfully submitted that the peti-

tion for a writ of certiorari should be denied.

RoBeERT H. Bork,

Solicitor General.

MARCH 1974,

%y

CERTIORARI DENIED