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CITATIONS

Cases:

f Brown v. United States, 411 U.S. 223________ 13

Chambers v. Mississippi, 410 U.S. 284_______ 9, 10

Chapman v. California, 386 U.S. 18_________ 13

Dutton v. Evans, 400 U.S. 74._.-__________ 12

Harrington v. California, 395 U.S. 250__.____ 14

Hoffa v. United States, 385 U.S. 293_________ 14, 15

Kirby v. Illinois, 406 U.S. 682_...._.________ 14

Milton v. Wainwright, 407 U.S. 371_________ 15

United States v. Ash, 413 U.S. 300__________ 14

United States v. Thomas, 474 F. 2d 110,

certiorari denied, 412 U.S. 932____________ 15

Wallace v. United States, 412 F. 2d 1097,

certiorari denied, 402 U.S. 943____________ 14

Statutes:

United States Constitution:

Sixth Amendment. --_----...--...____- 12, 14

Fourteenth Amendment__.____________

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Gu the Supreme Gourt of the United States

QOcroBeR TERM, 1973

No. 73-779

MICHAEL LEMONAKIS, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A)

is reported at 485 F. 2d 941.

JURISDICTION

The judgment of the court of appeals was entered

on June 29, 1973. A petition for rehearing was denied

on October 15, 1973 (Pet. App. C). The petition for

a writ of certiorari was filed on November 14, 1973.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

QUESTIONS PRESENTED

1. Whether the exclusion from evidence as hearsay

of a suicide note, written by petitioner’s alleged ac-

complice, deprived petitioner of his constitutional

rights to a fair trial under the circumstances of this

case.

2. Whether the trial court erred in admitting into

evidence recordings of two conversations between the

accomplice and petitioner which were made after peti-

tioner had retained counsel.

STATEMENT

Following a jury trial in the United States District

Court for the District of Columbia, petitioner was

convicted on five counts of burglary (22 D.C. Code

1801); five counts of grand larceny (22 D.C. Code

2201); three counts of interstate transportation of

stolen property (18 U.S.C. 2314); and one count of

conspiracy to commit the above described offenses (18

U.S.C. 371).* He was sentenced to five to fifteen years’

imprisonment and a $10,000 fine. The court of appeals

affirmed in a lengthy opinion (Pet. App. A).

1The text of the lengthy indictment is set out in the trial

transcript (Tr. 3791-3817). Also charged in the indictment were

co-defendants Paul. Enten, Alfred Dolder and Harry Schmidt.

Dolder entered pleas of guilty to certain counts and testified

at trial as a government witness. Schmidt remained a fugitive

until his death in 1971 (Pet. App. 2a, n. 1). Enten was con-

victed with petitioner. He has also filed a certiorari petition,

No, 73-926, which presents one issue unrelated to the issues pre-

sented by this petition, and also objects to the recording of

Scouloukas’ conversations with him knowing he was represented

by counsel. We do not believe that the issues raised in the two

petitions are so similar that they must be considered together,

3

1. The facts are detailed in the opinion below (Pet.

App. 3a-7a). During police investigation into a series

of burglaries which had been committed in the George-

town section of Washington, D.C. in 1969, suspicion

began to turn toward James Scouloukas, a member of

the Metropolitan Police Department, who resigned

from the Department in December 1969 (Tr. 1956-

1957; Pet. App. 4a). During the next six months, the

investigation disclosed information implicating peti-

tioner’s co-defendant, Paul Enten, in the burglaries,

and the matter was presented to a grand jury on

June 3, 1970 (Tr. 1724; Pet. App. 4a). As the investi-

gation into the burglaries continued, Scouloukas pre-

sented himself at the United States Attorney’s office

seeking immunity from prosecution; he was promised

that his statements and their fruits would not be used

against him in any prosecution (Tr. 1436-1437; Pet.

App. 5a). Skouloukas died, apparently by suicide, one

week before the trial started (Pet. App. 7a).’

Although the statements that Scouloukas made to

the investigators were not admissible at trial and were

not offered, there was ample evidence before the jury

that Scouloukas was a principal participant in the

burglaries; some of it showed or suggested that he

had implicated petitioner in the crimes in his state-

ments to the police (Tr. 3596-3597). The evidence

included recordings of several telephone conversations

between Scouloukas and petitioner (Tr. 1727-1728,

1741-1779, 1789-1833; Pet. App. 6a-7a) ; these record-

® At the time of trial, an investigation of the possibility that

his death was a homicide was evidently being conducted (Tr. 7).

+

ings were made in an attempt to gather evidence to

corroborate or refute the statements which Scouloukas

had given the investigators conce>ning petitioner (Tr.

1727-1728; Pet. App. 6a). A total of five telephone

conversations between petitioner and Scouloukas were

recorded without petitioner’s knowledge (Tr. 1727-

1728; 1741-1779; 1789-1833). Petitioner cites the fol-

lowing conversations as demonstrating the prejudicial

effect of the tapes (Pet. 7):

ScovutouKas. Now this is the story he tells me

that he told them—well, he got another piece

resembles the piece that he took down there and

that’s his cover the stuff that come out of the

big yellow house. Remember the big yellow

house up the hill.

Lemonakis. I don’t know, but anyhow go

ahead.

> = 7 7 *

ScovLoukas. Remember the first load of stuff

that we took out—me, you, and Dolder [unin-

telligible].

Operator. 3 minutes [unintelligible].

ScovutovKas. O.K. Operator. Remember the

first load of stuff we took out?

Lemonakis. What the hell do I know.’

Scouloukas purportedly left a suicide note which pe-

titioner attempted to introduce as exculpatory evi-

dence (Tr. 1440; Pet. App. 26a). The relevant portion

of the note read as follows (Pet. App. 26a) :

As far as [the U.S. Attorneys prosecuting the

ease] go—Mike Lemonakis had nothing to do

* Both of these conversations took place on August 20, 1970.

5

with any robberies that I know of. I lied to

them about Mike because even he hurt me with

my family. But he is innocent.

The trial court ruled that the note was hearsay and

unreliable, and excluded it from evidence (Tr. 2309-

2311; 1440-1476).

2. Other sources at trial implicating petitioner in

the crimes were as follows: co-conspirator Alfred

Dolder (who had pleaded guilty) testified that he met

Scouloukas and defendant Schmidt in February 1969,

and discussed a proposed burglary in Pittsburgh,

Pennsylvania (Tr. 284-D). The three men went to

Pittsburgh, where they met petitioner and enlisted

him in the proposed burglary (Tr. 295). Although

this burglary was not committed, Scouloukas subse-

quently informed Schmidt and Dolder that he had

obtained the “police list’? from the Precinct, which

contained the names of Georgetown residents whose

homes would be vacant for specified periods of time.

Schmidt called this list their “license to steal’? (Tr.

298).

In late March 1969, Dolder met with Schmidt,

Scouloukas, and petitioner at Scouloukas’ home. The

police list was discussed, and the home of Esther Lewis

was chosen as a target for burglary (Tr. 299-300).

Dolder related in detail the participation of the four

in the burglary of this home on March 26, 1969 (Tr.

301-303). Following the burglary, the four men trans-

ported the stolen goods to Scouloukas’ home in Mary-

land, where petitioner took a diamond engagement

ring that had been stolen as his “compensation” for

- ; —_—

his evening’s work (Tr. 303-305). Mrs. Lewis testified

that a diamond engagement ring was among the items

of property stolen from her home (Tr. 16).

By August of 1969, the base of operations of the

conspiracy was Schmidt’s apartment in Maryland. A

former girl friend of petitioner, Carole Corey, testified

that petitioner was in the Washington area for about

ten days prior to August 5, 1969. She joined him on

that day and stayed with him at the Schmidt apart-

ment for several days (Tr. 880, 934). After returning

to Pennsylvania, she frequently spoke with him by

telephone at the Schmidt apartment (Tr. 906-909).*

During the several days that she stayed at Schmidt’s,

she saw Scouloukas there on a regular basis (Tr. 895-

896).

Other persons observed the co-conspirators together

in the Schmidt apartment and elsewhere. Giovanni

Perelli saw Scouloukas and petitioner together in

Washington in the summer of 1969 as they examined

a list of addresses and talked about proposed bur-

gilaries (Tr. 1593). Perelli also saw them in the

Schmidt apartment when they had silverware and

items of jewelry on the floor of the bedroom (Tr.

1596). Jack Maynard, an associate of Schmidt, also

saw a bedroom in the apartment cluttered with clocks,

statuettes and silver (Tr. 999-1000). Another Schmidt

associate, Herbert Knight, identified photographs of

property stolen in the Georgetown burglaries which he

*The records of petitioner's employer, the McGraw-Edison

Company in Canonsburg, Pennsylvania, showed that petitioner

was not at work from July 25 through September 5, 1969 (Tr.

7

had seen at the Schmidt apartment in 1969 (Tr.

1020-1029).

About August 9, 1969, the Georgetown residence of

Thomas Blake was burglarized and $18,000 worth of

his possessions were stolen. Mr. Blake had personally

informed Scouloukas that his home would be vacant

(Tr. 75). One of the stolen articles was an elaborate

“Geisha Doll” in a glass case (Tr. 76-77). A doll

exactly fitting the description of the Blake doll was

given by petitioner to Carole Corey before she re-

turned to Pennsylvania from Washington on August 9.

The home of Lady Norma Lewis was also burglar-

ized in late August, after she had informed the

Seventh Precinct that she would be away from her

home (Tr. 127). During the trial, petitioner’s co-

defendant, Paul Enten, returned a large amount of

Lady Lewis’ stolen property, including a painting

which bore petitioner’s fingerprint (Tr. 3452-3458,

3476). Emten testified that he obtained the painting

in a transaction at the Schmidt apartment in Mary-

land (Tr. 2764-2766).

Jack Maynard testified that Scouloukas, in the pres-

ence of petitioner, gave him two pieces of antique

poreelain which had been stolen from the Charles

home in late August 1969 (Tr. 1001).

In the fall of 1969, petitioner, together with

Seouloukas and Perelli, went to the antique store of

Harold Schreiber in New York, where they offered

to sell him a collection of framed documents, including

a framed picture signed by George Washington (Tr.

1490-1496). Schreiber suspected that the items had

530-898—74——-2

8

been stolen (Tr. 1506), and they had in fact been

stolen on September 6, 1969, from the home of the

late George Marshall (Tr. 169-170, 3465).

3. Petitioner’s defense consisted of evidence tending

to show Scouloukas’ animosity to him, and suggesting

that, as a result, Scouloukas had falsely accused him

(Tr. 3096, 3114-3115).

To refute the direct testimony of Dolder regarding f

his participaticn in the Esther Lewis burglary on

March 26, 1969, petitioner introduced the stipulated

testimony of one of Mrs. Lewis’ neighbors, who looked

at the back porch of Mrs. Lewis’ home each morning

as she walked her dog along the canal and did not

notice any damage or break-in until March 26 (Tr.

2402-2403). It was also shown through representatives

of petitioner’s employer that petitioner was at work

in Pennsylvania on March 25 and 26 (Tr. 663).

To meet the evidence on the tape recordings, peti-

tioner’s counsel tried to show on cross-examination

' (Tr. 2009-2010) and in his final argument (Tr. 3657-

3660) that nothing incriminating was said by peti-

tioner.

ARGUMENT

1. The court below held that ‘‘once [the recordings

of conversations between petitioner and Scouloukas]

were introduced in support of the Government’s case, |

we believe it error for the trial judge to have con- ;

sidered only the technical hearsay grounds in deter-

mining the admissibility of the suicide note” (Pet.

App. 28a). The court was of the opinion that, in these

unique circumstances, ‘“‘fairness to both sides’’ re-

9

quired that the note should have been presented to

the jury (Pet. App. 28a). Having said that, however,

the court concluded that exclusion of the note was

harmless error because ‘‘(1) the probative value of

the recordings was of a limited nature, their effect on

the jury thereby capable of being offset by (2)

Lemonakis’ impeachment, without use of the note, of

whatever part of Scouloukas’ recorded statements

were taken by the jury as true and implicating him,

both reasons to be considered in light of (3) the sub-

stantial independent evidence of Lemonakis’ guilt in-

troduced by the Government” (Pet. App. 28a-29a).

Although we agree with the court that any error was

clearly harmless, we submit that no error was in fact

committed and that the suicide note was properly

excluded from evidence.

a. As the court below recognized, the note did not

have indicia of trustworthiness and reliability justify-

ing its admission (see Pet. App. 26a-27a, n. 24). It

was hardly comparable to the hearsay deemed admissi-

ble in Chambers v. Mississippi, 410 U.S. 284.° As the

Court there pointed out, 410 U.S. at 300-302:

The hearsay statements involved in this case

were originally made and subsequently offered

at trial under circumstances that provided con-

5In Chambers, this Court was faced with the issue whether

the defendant in a state trial was deprived of due process

under the Fourteenth Amendment by the exclusion of exculpa-

tory hearsay evidence (as well as by state rules of evidence

which prevented a party from impeaching the testimony of his

own witness). The defendant, Chambers, who was being tried

for the murder of a policeman, attempted to elicit the testi-

mony of witnesses that a person named McDonald had told

them that he, not Chambers, shot the policeman. The trial court

had excluded the testimony on the grounds that it was hearsay.

10

siderable assurance of their reliability. First,

each of McDonald’s confessions was made

aeeey to a close acquaintance shortl

r the murder had occurred. Second, eac

one was corroborated by some other evidence in

the case * * *. The sheer number of independent

confessions provided additional corroboration

for each. Third * * * each confession here was

in a very real sense self-incriminating and un-

questionably against interest. * * * Finally, if

there was any question about the truthfulness

of the extrajudicial statements, McDonald was

present in the courtroom and had been under

oath. He could have been cross-examined by the

State, and his demeanor and responses weighed

by the jury. * * * The availability of McDonald

significantly distinguishes this case from * * *

[similar cases where] the declarant was un-

available at the time of trial. [Emphasis added. ]

* * * * *

The testimony rejected by the trial court here

bore persuasive assurances of trustworthiness

and thus was well within the basic rationale of

the exception for declarations against interest.

That testimony also was critical to Chambers’

defense. In these circumstances, where constitu-

tional rights directly affecting the ascertain-

-ment of guilt are implicated, the hearsay rule

may not be applied mechanistically to defeat

the ends of justice.

The factors which this Court felt in Chambers ‘‘pro-

vided considerable assurance’”’ of the reliability of the

hearsay evidence are not present in this case. First,

Scouloukas’ declaration of Lemonakis’ innocence in

the suicide note did not occur until almost a year

after Scouloukas had commenced cooperating with the

investigators (Pet. App. 5a, 7a). Second, corroborat-

ing evidence of petitioner’s innocence was, to say the

puascestng emer SS

IL

least, very weak, while many witnesses testified at

trial concerning petitioner’s involvement in the bur-

glary ring, and much of “their testimony was uncon-

troverted. Third, there were several theories pro-

pounded to explain why Scouloukas might have

retracted his prior accusations against petitioner, all

of which raised serious questions as to the reliability

of the retraction (Tr. 1449-1450, 1463, 1465-1466,

1471). Finally, and most important, the declarant,

Scouloukas, was dead, and hence unavailable for cross-

examination.

b. Nor do we accept the proposition below that

‘fairness to both sides” (Pet. App. 28a) dictated the

admissibility of the suicide note. This conclusion stems

from the fact that since the recordings submitted by

the government were introduced, it became appropri-

ate, the court thought, that ‘‘the jury * * * be pre

sented with information favorable to the defense the

reliability of which, like that favorable to the Govern-

ment, had to be established without access to the source

of the information” (Pet. App. 28a). But this rationale

assumes that the recordings had a material impact in

the case; ° it also overlooks the basis of the admission

of the recordings, which turned, not on general con-

cepts of fairness, but on settled rules of evidence.

Petitioner challenged the admissibility of the tape

recordings in the court below on the ground that their

admission deprived him of his right to confront a

* That assumption is inconsistent with the court’s express find-

ing that the probative value of the recordings was limited and

“capable of being offset by [petitioner’s] impeachment, without

use of the note * * *” (Pet. App. 28a-29a).

. —_—

12

witness (Scouloukas) against him (Pet. App. 8a-13a).

The court below held that admission of the tapes did

not deprive petitioner of his Sixth Amendment right

for the following reason (Pet. App. 10a—1la) :

Scouloukas’ statements would accompany those

of Lemonakis not as evidence of the truth of

the former’s contents but, to the extent to which

the appellant’s responses constituted incriminat-

ing admissions of his own, to make those re-

sponses intelligible to the jury and recognizable

as admissions. That the statements were made

is all that is important, and the recordings

themselves suffice to establish that. The right to

cross-examine the absent informant under oath,

to test his recollection, prove his motives, and

permit the jury to consider his demeanor is

therefore inapplicable, and hearsay considera-

tions do not operate as a bar to admissibility.

United States v. Castro, 438 F. 2d 468, 473

(7th Cir.), cert. denied, 402 U.S. 977 (1971).

[Emphasis added. ]

Thus, the portion of the recordings containing Scou-

loukas’ remarks were not admitted for the truth of

their content but to explain petitioner’s responses.

In Dutton v. Evans, 400 U.S. 74, 89, this Court

stated:

The decisions of this Court make it clear that

the mission of the Confrontation Clause is to

advance a practical concern for the accuracy

of the truth-determining process in criminal

trials by assuring that ‘‘the trier of fact [has]

a satisfactory basis for evaluating the truth

of the prior statement.” California v. Green,

399 U.S., at 161. * * *

13

Here, “the truth of the prior statement’”’—Scouloukas’

statements on the recording—was not at issue; there-

fore, the mission of the confrontation clause could

scarcely be advanced by admitting conceded hear-

say '—the suicide note—to refute an issue not before

the jury. In short, there is no reason to treat the two

items as comparable evidence, the admission of one

requiring the admission of the other. Moreover, even

if the jury may have improperly considered Scou-

loukas’ statements in the recordings on the issue of

petitioner’s guilt, a case is still not made out for ad-

mission of the note. The recordings themselves had

only marginal evidentiary value. Petitioner presented

evidence to show that Scouloukas had vowed to ‘‘get”’

him for intervening in Scouloukas’ domestic affairs

(Tr. 3100, 3114-3115); he was therefore sufficiently

enabled to impeach Scouloukas’ motive and intent in

implicating him in the crimes without reliance upon

the unreliable and hearsay suicide note (Pet. App.

28a-29a).

ce. At all events, even assuming arguendo that ‘‘fair-

ness to both sides’’ suggests that the note should have

been admitted, the opinion of the court below is suf-

ficient to withstand petitioner’s attack upon it as a

“substantial erosion” of the constitutional harmless

error rule (Pet. 12-13). The court below reviewed the

record summarized in the statement, supra, pp. 3-8,

and manifestly concluded ‘‘beyond a reasonable doubt

that the error complained of did not contribute to the

verdict obtained.”” Chapman v. California, 386 U.S.

18, 24; Brown v. United States, 411 U.S. 223, 230-

7 See Pet. App. 26a, n. 24.

14

232; Harrington v. California, 395 U.S. 250. It there-

fore found the error harmless. The court’s failure to

cite the relevant cases in this Court is not significant,

since it properly applied their teaching.

2. After having been served with a subpoena to

testify before the grand jury investigating the crimes,

petitioner consulted with counsel, who met with the

investigators on August 18, 1970. Petitioner’s coun-

sel was informed that his client was a suspect in possi-

ble offenses connected with the Georgetown burglaries,

whereupon he advised the government attorneys that

petitioner would refuse to testify before the grand

jury and would make no statement to the government

(Pet. App. 7a). It should be noted that three of the

five taped conversations introduced at trial had al-

ready been made, before petitioner’s counsel met with

the government attorneys; the fourth was recorded on

the day of that meeting and the last one two days

later, on August 20, 1970 (Pet. App. 7a). At no time

during the period was petitioner in custody, and he

~ was not formally indicted until five months later (Pet.

App. 2a, n. 1).

In these circumstances, no Sixth Amendment right

to counsel was violated. See Kirby v. Illinois, 406 U.S.

682; United States v. Ash, 413 U.S. 300; Hoffa v.

United States, 385 U.S. 298, 309-310; Wallace v.

United States, 412 F. 2d 1097 (C.A.D.C.), certiorari

denied, 402 U.S. 943. Petitioner argues, however, that

the admission of the recordings violated “constitu-

tional principles of Due Process and fair trial,’’ be-

cause the recordings were obtained in violation of “a

15

prosecutor’s professional ethics” (Pet. 13-14). As the

court below held (Pet. App. 23a-25a), there was no

violation of prosecutorial ethics which deprived peti-

tioner of his constitutional rights when Scouloukas

tried to elicit incriminating statements from him at a

time when his status was that of a suspect who had

not been indicted and was not in custody. Hoffa v.

United States, supra, 385 U.S. at 309-310; United

States v. Thomas, 474 F. 2d 110 (C.A. 10), certiorari

denied, 412 U.S. 932.

Furthermore, in light of the other overwhelming

evidence of petitioner’s guilt, as well as the limited

value of the tapes to the government’s case—peti-

tioner said little, if anything, on the tapes that was

incriminating (Pet. App. 28a-29a)—any error in ad-

mitting the two tapes was harmless beyond a reason-

able doubt. Milton v. Wainwright, 407 U.S. 371.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be denied.

Rosert H. Bork,

Solicitor General.

Henry E. PETERSEN,

Assistant Attorney General.

JEROME M. Fert,

RevBEN H. WALLACE, JR.,

Attorneys.

January 1974.

U.S. GOVERNMENT PRINTING OFFICE: 1974