Petition for Writ of Certiorari — Abramo v. United States

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IN THE

Supreme Cowt of the United States

Octobe: Term, 1973

FRANK D’AMATO and RICHARD ZITO,

Petitioners,

VY,

UNITED STATES OF AMERICA,

Respondent.

i

JOINT PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

———

FRANK A. LOPEZ

Attorney for Petitioners

33 Smith Street

Brooklyn, New York 11201

(212) 237-9500

|

LEO IE REELED SEITE ITLL TOE A aS CHI SEG CR MP 2 NIT OOO LILLE GIL LED PCN FOAL GAS Ae EOL LF irae weyae ee -

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PAGE

Opinion Below ............. ee eee ee eee e eect eee eees 1

ee POPP OUC OT CT TTT LETET ELLE LLL 2

Questions Presented for Review ..........--++++e5- 2

Constitutional and Statutory Provisions Involved .... 3

Statement of the Case ........ ccc ccccccccceccccccecs

no ck scene cee eeeesecreneaeeners

1.

2.

-, ee Sy... SaPPePTererrreTrrererir cs

Critical facts as to the missing informant and

the Burdieri statements ................46- nee

Critical facts concerning the claustrophobic

JUPOP 2... cc cece cece cence cece cee cccccnnns 9

Reasons for granting the writ ............+-ee2+++6- 14

I

II.

Ill.

. Petitioners were deprived of a fair trial and

of their constitutional right to secure the at-

tendance of witnesses by the refusal of the

trial court to compel the Government to reveal

the identity of the paid informant. At least,

the trial court should have conducted an in

camera hearing to determine whether the in-

formant possessed information which would

have been of value to the defense ... ...... 14

The Government failed to establish beyond a

reasonable doubt that petitioners conspired

with anyone to traffic in narcotics .......... 15

The Court of Appeals has reduced the stan-

dards of proof in conspiracy cases below

proper evidentiary and constitutional require-

NS Ug she MR WARD ROAR ARES ERRASE RR KR ROC RA 16

BR IF eT EEE ELE PE LIOR ALITY EMI PIE MN ON LITT PTE ENE ERNIE ERI

ii

PAGE

IV. Petitioners were deprived of a fair trial by

virtue of the fact that one of the jurors ap-

parently suffered from claustrophobia through-

out the trial and had an acute and hysterical

attack of claustrophobia during the course of

deliberations. The shadow thus cast upon the

integrity of the jury’s deliberations required a

new trial merely by virtue of what was re-

vealed. In any event, the defense was, at

least, entitled to a full hearing with regard to

the nature and effect of the juror’s illness 17

COOMETEMNON nc ccc cen cncecsneaseesnesssctoseness 18

AUTHORITIES

Cases:

Abramo y. United States, Supreme Court Docket No.

73-1509, October Term, 1973 .......--0+++++- 1,4 fn.

Passim

Alford vy. United States, 282 U.S. 687 (1931) ....-- 14

Branzburg v. Hayes, — U.S. —, 92 8. Ct. 2646 (1972) 14

California v. Green, 399 U.S. 149 (1970) 2.6.6 eee eee 17

Dutton vy. Erans, 400 U.S. T4 (1970) 20... eee eee eee 17

Gilmore y. United States, 256 F.2d 565 (Sth Cir.,

SN. cua Wa caedh pans Reeedee sana ekencunes 14-15

Ingram vy. United States, 360 U.S. 672 ( ISSO) 22.0. 16

Krulewitch y. United States, 386 U.S. 440 (1949) .... 16

Lopez-Hernandez v. United States, 394 F.2d 820 (9th

Ce, POU acc ca ncncececncscceevsunsntaseses 14

McCray v. Illinois, 886 U.S, 800 (1967) ..-..----+-s 14

Morrison v. United States, 291 U.S. 82 (1934) .......- 16

Parker y. Gladden, 385 U.S. 383 (1966) ...---.-+++- 18

People v. Kurth, 216 N.E. 2d 154 (Sup. Ct. Ill, 1966) 18

PROPELLERS YOR LEIEP E F So ej ESLER IB ERCP PIL OR ee

PAGB

Roviaro v. United States, 858 US. 55 (1967) 2... ee if

Scales vy. United States, 367 U.S. 203 (1961) ........ 16

Smith vy. [linois, 390 Uss. 129 (1968) 2.2... ee eee 14

United States vy. Barnett, 418 F.2d 309 (6th Cir, 1969) 15

United States vy. Calarco, 425 F.2d 657 (2d Cir, 1970) 17

United States vy. D'Amato, — F.2d — (2d Cir.,

BEGD son vasheresventhenesvvevent® 1, Appendix A

United States vy. Falcone, 311 UsS. 205 (1940) ....-. 16

United States vy. Geaney, 417 F.2d 1116 (2d Cir., 1969),

cert. denied, 397 U.S. 1028 (1970) .......... 16, 17

United States vy. Miramon, 443 F.2d 361 (9th Cir.,

he ee en reese rer rrr ee ee Tt 15

United States vy. Pleca, 66 F.2d 529 (2d Cir., 1933) .. 18

United States vy. Roberts, 388 F.2d 646 (2d Cir., 1968) 14

United Ntates vy. Skeens, 449 F.2d 1066 (D.C. Cir,

| nese eae ee rary eran Teer rede rary 14

UNITED STATES CONSTITUTION

Fifth Amendment ..........-2 eee ee cee ceerececces 3

Sixth Amendment ........--000ee eee e eee eeee 3, 14, 16, 18

Ntatutes: —

21 U.S.C. Sec. 841(a) (1) & (D)(LICA) ooo. e eee eee 3,4

ee eee es use ug desunn saan cence 3, 14

eT ek | errr re rr ry 2

erates. Mae MN lo. Conus tentaanaesene es 3, 4,17

OTHER AUTHORITIES

Proposed Rules of Evidence for United States Courts

and Magistrates, Rule 510(c) OR) scavesencesene 15

BEM Patt EEE LIS EMG COIR

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a a a

IN THE

| Suprene Court of the Yuited States

October Term, 1973

FRANK D’AMATO and RICHARD ZITO,

Petitioners,

—V,—

UNITED STATES OF AMERICA,

Respondent.

———

JOINT PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

i Frank D'Amato and Richard Zito pray that a writ of

certiorari issue to review a judgment of the United States

Court of Appeals for the Second Circuit, entered on March

14, 1974, which affirmed judgments of conviction pre-

viously entered against the petitioners in the United States

District Court for the Southern District of New York.

eect 6 eee RN BE

Opinion Below

| The Court of Appeals affirmed in an opinion dated

March 14, 1874, United States vy. D’Amato, — F.2d —.

The opinion of the Court of Appeals is reproduced as

Appendix A to the Petition for a Writ of Certiorari which

has already been filed by the co-defendant-co-appellant

Philip Abramo, Abramo vy. United States, No. 73-1509,

October Term, 1973.*

* This Petition follows closely, but more concisely, the Abramo

petition. No different facts are set forth and no different issues

are raised.

Picinenianisenenneen APE RLSE REALM EAT SOODAIEL WEA RS AIIM IES TE RPPSANEIEC

AP LIE OD: Leen

Jurisdiction

The jurisdiction of this Court is invoked under 238

U.S.C. § 1254(1). The judgment of the Court of Appeals

was filed on March 14, 1974.

Questions Presented for Review

1. Were petitioners deprived of a fair trial and their

right to secure the attendance of witnesses by the

refusal of the trial court to compel the government to

‘produce or reveal the identity of a paid, registered

informant where:

a)

b)

¢c)

d)

The informant was intricately involved in the

transactions which formed the basis for the gov-

ernment’s trial proof;

The bulk of the government’s trial proof con-

sisted of alleged acts and declarations of an un-

availatle co-conspirator in the absence of peti-

tioners, but in the joint presence of the informant

and an undercover narcotics agent;

Certain of the alleged statements made by the

informant at a number of such meetings were re-

peated to the jury by the direct testimony of the

narcotics agent;

Portions of one such meeting, including state-

ments of the informant, were tape recorded and

played for the jury as part of the government’s

case.

Should the trial court, at least, have convened an in

camera hearing, as alternatively requested by the de-

fense, to determine whether the informant possessed

information which would have been of value to the

defense?

3

3. Did the government fail to adduce sufficient evidence

upon which petitioners could properly be convicted

beyond a reasonable doubt as having becn knowing

participants in the alleged conspiracy?

4. Has the Court of Appeals reduced the standards of

proof in conspiracy cases below proper evidentiary

and constitutional requirements dy:

a) permitting the declarations of a co-conspirator to

be used for the purpose ot determining whether a

defendant was a member of an aiieged con-

spiracy ;

b) permitting the concepts of “verbal act” and

“statements against penal interest” to practically

eliminate traditional requirements of confronta-

tion and cross-exemination?

5. Were petitioners deprived of their right to a jury

irial and were the jury qualification requirements of

28 U.S.C. § 1865 vio.ated by the refusal of the trial

court to declare a mistrial when, in the midst of

deliberations, it was revealed that one of tue jurors

was a chronic claustrophobic who had suffered acute

attacks of claustrophobia during deliberations, to the

point of requiring temporary hospitalization?

Constitutional and Statutory Provisions Involved

This case involves the Due Process clause of the Fifth

Amendment, as well as the rights of a defendant to an

impartial jury, to be confronted with th: witnesses against

him, and to have compulsory process for obtaining wit-

nesses in his favor, as guaranteed by the Sixth Amend-

ment to the United States Constitution.

This case also involves the following provisions of the

United States Code: 21 U.S.C. § 841(a) (1) and (b) (1) (A)

[prohibiting possession of controlled substances with intent

to distribute same], 21 U.S.C. § 846 {prohibiting attempt

4

or conspiracy to commit a drug offense], and 28 U.S.C.

§ 1865 [Qualifications for Jury Service].*

Statement of the Case

Introduction

Petitioners and Philip Abramo were named as defend-

ants in a two count indictment filed in the Southern Dis-

trict of New York. The first count charged a conspiracy,

commencing February 1, 1973, to possess and distribute

heroin in violation of 21 U.S.C. § 846. The second count

charged a sale of heroin to a Federal undercover agent on

February 20, 1973, in violation of 21 U.S.C. § 841(a) (1).

A fourth individual, Frank Burdieri, was named as a

conspirator. He met a violent death prior to indictment.

The bulk of the trial proof concerned Burdieri’s individual

dealings and conversations with a Federal undercover agent

and with a paid, registered informant of the Bureau of

Narcotics and Dangerous Drugs (BNDD).

The three defendants were tried together before a jury.

At the conclusion of the evidence, the trial Court dismissed

the substantive (sale) count against Abramo, and the jury

thereafter convicted him as to the conspiracy charge.

Petitioner D’Amato was convicted as to both counts.

Petitioner Zito was convicted as to the conspiracy. Due to

the indisposition of a juror, the trial was terminated before

the jury was able to reach a verdict as to the substantive

charge against Zito.

*The Constitutional and Statutory provisions are set forth

as Appendix B of the Petition for a writ of certiorari filed by the

co-defendant Abramo, Abramo v. United States, No. 78-1509,

October Term, 1973.

Een REL. DONS eT Se * BR me ¥

1. The Basic Facts *

Following three weeks of negotiations, one Frank Bur-

dieri sold a half kilogram of heroin to an undercover team

comprised of a paid, registered informant and a narcotics

agent. For a few minutes ahont an honr prior te, and then

immediately after the sale, Burdieri was observed to be in

the company of petitioners D’Amato and Zito. “ais was the

first time these two men were seen during the facts of this

case. Zito never again appears in the facts. No one over-

heard the conversation among the three men and nothing

was seen being transferred from D’Amato or Zito to Bur-

dieri. However, following the sale, D’Amato was seen dis-

carding an envelope which had contained the purchase

money given by the agent to Burdieri.

After several more meetings with the agent and the in-

formant, Burdieri was scheduled to make a second sale, a

month after the first. On the appointed day, he met briefly

with the agent, and then departed, promising to return

shortly with the heroin. In fact, he never returned, and, a

few days later he terminated his relationship with the agent

and the informant.

On the day of the allegedly aborted sale, upon leaving

the agent, Burdieri was followed by surveillance agents to a

coffee shop in uptown Manhattan where he had some pie

and coffee. (All of the other evots in the case had occurred

in lower Manhattan.) Meanwhile, an automobile in which

petitioner D’Amato was a passenger and Philip Abramo was

the owner-driver, pulled up outside the coffee shop. This

was D’Amato’s second and last appearance in the facts. It

was Abramo’s first and last appearance.

As D'Amato and Abramo exited the car, Burdieri left

the coffee shop and joined them, and the three men entered

the car and drove off.

* Except where noted, these facts are set forth in the opinion

of the Court of Appeals, Appendix A, Abramo petition.

6

The car was then observed to “square” several blocks

in Manhattan at what were described as irregular speeds,

and then headed for Queens.

While on a Queens highway, the car, at one point, was

travelling at approximately 75 miles per hour, and sud-

denly exited the parkway. Burdieri was dropped off at a

Queens race track, and D’Amato was dropped off across the

street from a pizza shop, where he purchased a pizza, and

then walked a mile or so to his home (A. 393-6, 418).* In

the meanwhile, Abramo returned to Manhattan and parked

the car.

All of the prosecution’s trial testinpiony came from the

undercover agent and from visual surveillance agents.

Despite defense demands, the informant was never produced

or identified. Burdieri was not available to either side since

he had met a violent death prior to the instant indictment.

Petitioner D’Amato testified in his own behalf and gave

an innocent explanation for his meetings with Burdieri and

for his later possession of the envelope in which the pur-

chase money of the first sale had been contained.

Predicated upon the facts recited above, as well as cer-

tain statements made to the agent and to the informant

by Burdieri, the Government charged Abramo, D’Amato and

Zito with the first sale and with conspiracy.

2. Critical Facts as to The Missing Informant and the

Burdieri Statements.

As noted supra, the Government refused to produce or

identify the paid and registered informant. Additionally,

the trial Court refused to conduct a hearing, in camera

*The stop at the Pizza Shop is not noted in the Court of

Appeals’ opinion.

PMS NE AR BR CIS AAAI ha Powe . RN

7

or otherwise, as to what, if any value the informant might

have for the defense (A. 196, 363-7).

Although specified at length in our appellate brief, the

Court of Appeals opinion fails to properly articulate or set

forth the nature and extent of the informant’s involvement

in the facts of this case, particularly as concerns his rela-

tionship to Burdieri, his presence at each significant meet-

ing, his concededly purposeful introduction of misstate-

ments of fact in a tape recorded conversation, his private

meetings with Burdieri, and his witness to Burdieri’s so-

called “verbal acts”, “conspiratorial declarations” and

“statements against penal interest”’ which were used to make

the case against the defendants. Additionally, the Court

of Appeals fails to note that, during his conversations with

the agent and with the informant, Burdieri made statements

exculpatory of the defendants.

* * * * *

On January 31, 1973, the informant introduced the agent

to Burdieri, and the three men remained together for ap-

proximately two hours. The trial version of their conver-

sation came solely from the agent—no recording having

been made. During the course of that discussion, Burdieri

allegedly agreed to obtain heroin for the agent, and the

informant introduced the name of petitioner D’Amato

as a possible source. Burdieri allegedly responded that

D’Amato did not deal in the relatively small quantities

sought by the agent (A. 133). Burdieri continued that he

had other connections, including “a Cuban on West 81st

Street” (A. 133) and one “Joe Beck” (A. 134). The trio

then went in search of those two individuals, but met with

no success (A. 134-5).

On February 15, 1973, the agent not being present,

Burdieri gave a sample of heroin to the informant, who later

turned it over to the agent. We have no report as to the

conversation which transpired between Burdieri and the

IP Ee

8

informant at that time, except that this was a sample of

heroin which had become available to Burdieri (A. 138-40).

On February 16, 1973, the agevt and the informant

again met with Burdieri. Again, the conversation was un-

recorded, and again Burdieri allegedly discussed his sources

of supply, but made no reference to any of the defendants

in this case. The meeting concluded with an agreement

as to the terms of the first purchase (A. 138-40).

On February 20, 1973, Burdieri met with the agent and

the informant prior to, and then, of course, during the

transfer. Again the conversation was not recorded. Ac-

cording to the agent, during the pre-transfer meeting,

Burdieri claimed he was going “to meet his people” in

order to obtain the heroin (A. 144-5, 149). At that point,

other agents observed Burdieri briefly meet with D’Amato

and Zito. Thereafter, Burdieri went off alone and disap-

peared for 45 minutes, returning at the end of that time

carrying a bag of heroin (A. 216-7, 308, 374-6). The trial

proof does not indicate where he had obtained it. During

the transfer, itself, Burdieri allegedly responded affirma-

tively to the agent's question: “Io you have to meet your

people right away to give the money back to them?” (A.

157). It was thereafter that Burdieri went to again meet

Abramo and Zito.

On February 23, 1973, a telephone conversation between

the informant and Burdieri was recorded. The purpose of

the call was to set up a meeting later in the day. The

transcript of the conversation was introduced into evidence,

and, although it sheds no light as to the identity of Bur-

dieri’s suppliers, it does show the close relationship which

existed between Burdieri and the informant (Gov. X. 20;

A. 817a).

A meeting among Burdieri, the informant and the agent

on the afternoon of February 23rd produced the only sub-

stantive conversation which was recorded—the agent was

wearing e kel transmitter, but only a portion of the record-

ing was decipherable (Gov. Ex. 24; A. 819). The trial evi-

dence as to the remainder of the conversation comes only

from the agent’s testimony. The transcript shows that the

agent introduced the name of petitioner D’Amato into the

conversation, and Burdieri denied knowing whether

D’Amato was dealing in narcotics, e.g., “Yeah; I don’t

know if he’s in the business any more to be honest with

you” (A. 280-1; see also A. 221, 223). Additionally, Burdieri

agreed with the agent that his source, in fact, was one Joe

Beck (A. 820-1; see also, A. 199). There is no other evi-

dence in the case further identifying Beck or linking him

in any way to the defendants.

The conversation of February 23rd continued with the

agent recorded as stating to Burdieri: “The way they

work is beautiful. You went right there, you gave them

the money, and you came back—" Burdieri’s response is

indicated on the Government transcript as “inaudible” (A.

828). The agent testified that the question was posed as

a surmise to Burdieri, and that Burdieri responded affirma-

tively (A. 168).

Finally, during the same conversation, the informant

introduced petitioner Zito’s name into the conversation, but

the effort came to naught (A. 829; see also, A. 236, 241).

3. Critical Facts Concerning the Claustrophobic Juror

The opinion of the Court of Appeals unfortunately sum-

marizes the facts concerning the claustrophobic juror to

the point of excising the tenor and substance of what

occurred (13a). We are left with no recourse but to set

forth those facts at length.

The jury commenced its deliberations at 3:40 P.M. on

July 30, 1973 (A. 734). At 3:55 P.M. (A. 735-736), the

Court received the following note from the jury: “Are we

FTES a ne ae he DO ee ele

10

being impounded until we arrive at a decision or go home

tonight * * *?” The court responded that the jury would

deliberate until 10 P.M., at which time they would be

sequestered (A. 736). Shortly after 9:20 P.M., while con-

sidering another jury request (A. 741), the court inquired

as to whether the jury bad reached any verdict, and the

foreman announced that verdicts of guilty as to both counts

had been found as to the petitioner D’Amato (A. 744).

Then, on its own motion, the Court shifted jury delibera-

tions to an air-conditioned room (A. 745).

At 10:10 P.M., following the reading of various items

of testimony to the jury (A. 748), they were sent back to

the jury room to continue their deliberations; however, at

10:15 P.M. (A. 751), the following occurred:

“The Court: Taking them in the order in which

they are marked, this juror here feels ill enougk to

want to see a doctor, so I am going to suspend the

proceedings at this time so that juror No. 2 can see

the doctor, and I will answer your question when we

are able to proceed.

“Under the circumstances, I don’t see anything

to be guined by further discussing this tonight here

in the courthouse, so I am going te direct the Mar-

shal to take you to a convenient hotel, and in the

meantime, I want to get medical treatment for the

juror who doesn’t feel well, and then we will con-

tinue our deliberations tomorrow.”

However, the court then decided to discuss a legal

issue which had been raised by the jury, and inquired of

the afflicted juror as follows, “Mr. Killeen, does it bother

you if we discuss this question?” (A. 752). The record

does not reveal any response on the part of the juror, and

the court went on to discuss the legal issue. Thereafter,

the record notes the court as suddenly stating, “All right.

The ambulance is going to come right away, Mr. Killeen”

(A. 753).

\

11

On the following morning, counsel and the court were

advised that the juror was suffering from claustrophobia

(A. 755), and the court stated that it had been arranged

for the jury to continue its deliberations in a courtroom,

rather than a normal jury room. Defense counsel requested

that the court inquire as to the qualifications of the juror

to continue (A. 755). The court then ascertained from the

jusor that the juror would “feel better” if deliberations

were conducted in a courtroom, and the questioning of the

juror continued as follows:

The Court: “Do you feel you could do it? It is

the same as this. You can walk around, you can do

whatever you want. It would be only for you jurors.

The Juror: “That isn’t the only thing that bothers

me. If I didn't have to ride on these elevators, if I

could just walk upstairs, because as soon as I got in

the elevator again this morning it all came back.

The Court: “This, of course, is the 6th floor. If

we take you up now to the 7th floor where there is

a big room like this one here, the marshals then could

stay at one end and the other end so that nobody

could get in there, and you could wander around as

you like up there. Do you feel you could perform

your duties then?

The Juror: “I will certainly try; your Honor.

The Court: “And if you have any difficulty at

all, I want you to report it immediately, and if dur-

ing the deliberations Mr. Killeen indicates any dis-

comfort or anything that in any way bothers him,

I want you to stop and then come down and have it

reported to me, and I will come up to the 7th floor.

The Juror: “All along I used to walk up and

down the 6 flights and I had no trouble when I did

that [*]. But now I feel like I am confined” (A.

756-757) [emphasis added].

*There is thus a clear statement that the juror’s claustro-

phobia was a problem that had afflicted him from the outset of

the trial and not merely one which arose during deliberations.

ES ae Tt ie a Ronen ae ett oe or et et ee ee eee

EOCENE TEE STOLE LON LE CATE EI Me ON

12

The judge permitted the juror to walk up the one flight

of stairs, and the jury retired to continue its deliberations

at 10:07 A.M. (A. 757-758). Once the jury had retired,

defense counsel moved for a mistrial based upon the juror’s

condition, but the application was denied and an exception

was noted (A. 759-761).

At 11:15 A.M., the jury was back in the courtroom to

report its verdict finding the co-defendant Abramo and

petitioner Zito guilty as to Count 1. It had not yet agreed

as to the petitioner Zito on Count 2 (A. 761-762). The

court then inquired as follows:

The Court: “All right? Now, Mr. Killeen, how

do you feel during the course of your deliberations up

here in this room?

The Juror: “Nothing seems to make me feel any

better. I just feel confined.

The Court: “Do you feel that it interfered with

your judgment in any way?

The Juror: “I do, your Honor. To be honest, I

would vote either way just in order to get out.

The Court: “Well, I am afraid you have a mis-

trial here” (A. 762) [emphasis added].*

When the prosecutor sought to probe the matter further,

the Court responded, inter alia:

“The juror has clearly indicated unequivocally

that the pressure on him was so much that he would

have voted either way.

* That the juror’s state of desperation was even worse than

revealed by the transcript is shown by the colloquy at the time of

sentence in which it was agreed that the stenographer had failed

to record certain of the vital aspects of the incident (A. 780,

et seq.).

COLLEEN LO, SEI Ry IPN OED es

ee ie see

13

“I wouldn’t care less who you consult with, and

even if you come up and tell me that they objected to

this violently, I wouldn’t be moved at all. The juror

has clearly indicated, and eren observing him, and if

you observe him you will sce that he is in a state

of mind that he had to be nudged to direct his at-

tention to me, and last night I noticed his demeanor

also. The man is in an uncomfortable position and

he has indicated clearly that he would vote any way

in order to get out of here today. He just can’t

stand this any longer. Is that a fair statement?

Juror No. 2: “It is the God’s truth, your Honor”

(A. 762-763) [emphasis added].

It was only after it was inadvertently indicated to the

juror that he could still save the guilty verdicts by stating

that he was of sound mind when he rendered them, that

he shifted his position by stating, in response to an inquiry

of the court, that “. . . it [the verdicts] happened earlier,

and the feeling wasn't as strong in me as it is now” (A.

764). Based on that, and based upon a perfunctory ques-

tioning of the other jurors,* the Court reversed its position

and received their verdict.

* The Court: “All right. Now let me ask you this.

You jurors are better able to answer this question than

Iam. Did any of you, everyone except Mr. Killeen, coerce,

persuade, or in any way cause him to come to a verdict

on these counts as far as Abramo is concerned and Zito is

concerned—as to the first count? (no response)

The Court: “Mr. Foreman, did you discuss anything

with him or cause him to change or make up his mind?”

(A. 767)

All of the jurors merely replied, “No.”

ENG MIELE EUAN ENT RI Teac nenee = ors pea PE LEGON AL BLOAT PALO FE OTIS EA LAER GIG hy EDO cone HI Se aT

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Reasons for Granting the Writ

I.

Petitioners were deprived of a fair trial and of their

constitutional right to secure the attendance of witnesses

by the refusal of the trial court to compel the government

to reveal the identity of the paid informant. At least, the

trial court should have conducted an in camera hearing to

determine whether the informant possessed information

which would have been of value to the defense.

Repeated efforts by the defense to learn the identity of

the paid, registered informant were denied by the trial

court (A. 196, 362-367), as were efforts to secure an in

camera hearing on the issue (A. 363).

As shown supra, at pp. 7-9, the informant was in-

tricately involved in practically every aspect of this case.

He stood in a position to contradict, correct or supplement

the version of events given by the narcotics agent.

The decisions of this Court and of other Federal Courts

of Appeal make clear that, under these circumstances, the

petitioners were entitled to the production or, at least, iden-

tification of the informant as a matter of Sixth Amendment

constitutional right, and as a matter of sound administra-

tion of justice in the Federal Courts. Roviaro v. United

States, 353 U.S. 53, 59 (1957); Branzburg v. Hayes, — U.S.

—, 92 S.Ct. 2646, 2664 (1972) ; McCray v. Illinois, 386 U.S.

300, 309-310 (1967) ; Smith v. Illinois, 390 U.S. 129 (1968) ;

Alford v. United States, 282 U.S. 687 (1931) ; United States

v. Skeens, 449 F.2d 1066, 1071 (D.C. Cir., 1971). See, e.g.,

Lopez-Hernandez v. United States, 394 F.2d 820 (9th Cir.,

1968) ; United States v. Roberts, 388 F.2d 646, 648-649 (2d

Cir., 1968); Gilmore v. United States, 256 F.2d 565, 566-

oe ROB MBELIL Gi8 ADIN IA RR AER OM saec grt gs

a o Tage ome ieE:

15

567 (5th Cir., 1958); United Stetes v. Miramon, 443 F.2d

361 (9th Cir., 1971) ; United States v. Barnett, 418 F.2d 309

(6th Cir., 1969).

See also: Proposed Rules of Evidence for United States

Courts and Mayistrates, Rule 510 (c) (2).

A more extensive treatment of the author‘ties is set forth

in the petition for a writ of certiorari filed by the co-de-

fendant Philip Abramo, Abrimo v. United States, Docket

No. 73-1509 at pp. 15-19.

Il,

The Government failed to establish beyond a reasonable

doubt that petitioners conspired with anyone to traffic in

narcotics.

There is not an item of evidence in this case to the ef.

fect that the petitioner Zito saw, said, or did anything

evidencing that he knew that Burdieri was involved in a

plot to traffic in narcotics.

Although the petitioner D’Amato was seen discarding

the envelope which had been used by the undercover agent

to make the payment to Burdieri, D’Amato’s trial testimony

was that he had met Burdieri for the purpose of collecting

a gambling debt, that Burdier: produced an envelope from

which he removed an unspecified amount of cash, and then

gave the envelope to D’Amato with the remainder of the

cash which amounted to substantially less than the money

paid by the agent.

As regards petitioner Zito, guilt can only be predicated

upon a theory of guilt by association. As regards the peti-

tioner D’Amato, we respectfully submit that his possession

of the envelope was far from sufficient to convict him for

knowing participation in a heroin conspiracy.

16

See: Ingram Vv. United States, 360 U.S. 672, 680 (1959) ;

Morrison v. United States, 291 U.S. 82, 93 (1934); United

States vy. Falcone, 311 U.S. 205, 210-211 (1940); Coneur-

ring opinion of Mr. Justice Jackson in Krulewitch v. United

States, 336 U.S. 440, 453-454 (1949); and Scales v. United

States, 367 U.S. 208, 224-225 (1961). See also, the more

extensive treatment set forth in che petition for a writ of

certiorari filed by the co-deferdant Abramo, Abramo vy.

United States, Docket No. 73-1509 at pp. 19-23.

Il.

The Court of Appeals has reduced the standards of proof

in conspiracy cases below proper evidentiary and constitu-

tional requirements.

The Count of Appeals found as admissible, as against

petitioners, Burdieri’s so-called “verbal acts” and hearsay

declarations for the purpose of establishing that Burdieri,

on both occasions, was going to meet them for the purpose

of consummating a heroin purchase, and for the purpose

of establishing that they were knowing participants with

him in these heroin transactions.

The bulk of the hearsay was admitted under the principle

established by the Court of Appeals in United States v.

Geaney, 417 F.2d 1116, 1120 (2nd Cir., 1969), cert. denied,

397 U.S. 1028 (1970), where it was held that, if the trial

Judge is satisfied that a preponderance of the independent

evidence tends to establish a defendant’s participation in a

conspiracy, then all evidence in the case, including conspira-

torial hearsay, is admissible for the purpose of establishing,

beyond a reasonable doubt, that the defendant was, in

fact, a member of the conspiracy.

This Court has never passed upon the Geaney principle,

and petitioners respectfully submit that the Geaney prin-

ciple is violative of the Sixth Amendment guarantee of

CNEL RIE FOP LI WS a tea kt ies sles ‘cl le

renee i a i a a

17

confrontation and cross-examination, and, additionally, vio-

Jates the hearsay rule. See the criticism of the Geaney

rationale in the dissenting opinion of District Judge

Dooling (sitting by designation), in United States v.

Calarco, 425 F.2d 657 at 661-665 (2nd Cir., 1970).

An analysis of this Court’s recent holdings in California

v. Green, 399 U.S. 149, 155 (1970), and Dutton v. Evans,

400 U.S. 74, 82, 89 (1970), leaves no doubt that the Geaney

principle is, at least, of highly questionable constitutional

and evidentiary validity.

See also the petition for a writ of certiorari filed by the

co-defendant Abramo, Abramo v. United States, Docket No.

73-1509, at pp. 24-28.

IV

Petitioners were deprived of a fair trial by virtue of the

fact that one of the jurors apparently suffered from claus-

trophobia throughout the trial and had an acute and hyster-

ical attack of claustrophobia during the course of delibera-

tions. The shadow thus cast upon the integrity of the jury’s

deliberations required a new trial merely by virtue of what

was revealed. In any event, the defense was, at least,

entitled to a full hearing with regard to the nature and

effect of the juror’s illness.

The facts are outlined in full, supra, at pp. 9-13.

Petitioners respectfully submit that the presence on the

jury of a clearly claustrophobic juror who suffered acute

attacks of claustrophobia during the course of delibera-

tions, certainly violates the requirement of 28 U.S.C. § 1865

that one may not serve as a juror if he or she “is incapable,

by reason of mental or physical infirmity, to render satis-

factory jury service.”

18

Moreover, the incapacity of the juror was such as to

deprive petitioners of their Sixth Amendment right to a

trial by jury. Parker v. Gladden, 385 U.S. 363 (1966) ;

United States v. Pleva, 66 F.2d 529 (2nd Cir., 1933) ; People

v. Kurth, 216 N.E. 2d 154 (Sup. Ct. Ill., 1966). See also,

the more extensive treatment of the issue found in the peti-

tion for a writ of certiorari filed by the co-defendant Philip

Abramo, Abramo v. United States, Docket No. 73-1509, at

pp. 28-31.

CONCLUSION

For all of the above reasons, this joint petition for a writ

of certiorari should be granted, the judgments of conviction

should be ordered reversed, and the Indictment should be

ordered dismissed; in the alternative, petitioners should be

granted a new trial.

Respectfully submitted,

FRANK A. LOPEZ,

Attorney for Petitioners

D’Amato and Zito

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