Brief for the United States — Breen v. United States (Nos. 74-1085, 74-11143)

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CITATIONS

Cases:

Beasley v. United States, 491 F.2d 687------

California v. Green, 399 U.S. 149_-.---.----

Glasser v. United States, 315 U.S. 60_---- Bow

Grunewald v. United States, 353 U.S. 391-----

Harris v. New York, 401 U.S. 222... -. -. -... 12,13

Lego v. Twomey, 404 U.S. 477... -- -- -- -- --

Lutwa’: v. United States, 344 U.S. 604-_- -- --

McMann v. Richardson, 397 U.S. 759--- - - --

Oregon v. Hass, No. 73-1452, decided March 19,

SR a sinus wheaed wb ae ah Riles deb enn bowen

Palermo v. United States, 360 U.S. 343_-- -- --

Scales v. United States, 367 U.S. 203_--- -- --

United States v. DeCoster, 487 F. 2d 1197--_- -

United States v. Fanning, 477 ¥. 2d 465,

certiorari denied, 414 U.S. 1006__--- -. -- --

United States v. Fench, 470 F. 2h 1234,

certiorari denied sub. nom. Blackwell v.

United States, 410 U.S. 909.---.-.-------

United States v. Gant, 487 I’. 2d 30, certiorari

a: A el en ka neers)

United States v. Geaney, 417 F. 2d 1116,

certiorari denied sub nom. Lynch v. United

A Be. Bae Se nk oie dccscenends

(1)

575-667—75-——1

18

15

15

12

19

19

14

19

13

13

bee

Cases—Continued Page

United States v. Gonzalez, 491 F. 2d 1202----- 13

United States v. Grant, 489 F, 2d 27. -. -- -- -- 14

United States v. Graves, 428 F. 2d 196 certiorari

denied, 400 U.S. 960. .... .. -- -- -------- 19

United States v. Insana, 423 F. 2d 11665, -

certiorari denied, 400 U.S. 841--.-- -- -- -- -- 10

United States v. Miramon, 470 F. 2d 1362,

certiorari denied, 411 U.S. 934.-.-------- 14

United States v. Perez, 491 F. 2d 167, certiorari

denied sub nom. Lombera v. United States,

October 15, 1974 (No. 73-6784) - --------- 12-13

United States v. Polizzi, 500 F. 2d 856, certi-

orari denied, January 20, 1975 (No. 74-

OBB) .....222-22-2--220----------------- 16

United States v. Robinson, 502 F’. 2d 894-.. -. -- 14

United States v. Santana, 503 F. 2d 710, certi-

orari denied, December 9, 1974 (No. 74-

$311) ERT Ei 15, 16

United States v. Thornton, 498 F. 2d 749... -- 16, 17

United States ex rel. Walker v. Henderson, 492

F. 2d 1311, certiorari denied, 417 U.S. 972_. 14

Walder v. United States, 347 U.S. 62_------- 12,13

Statutes and rule:

21 U.S.C. (1964 ed.) 173... .. -- -- -- -. -- -: -- 3

oo WAC. (1006 of.) 174... .. .. -. .. -. -.---- 3

. Oa) od) eee 3

1 U.BC. B4l(a)(1). .- -- -- -- -- --+- -- -+ --+- 3

21 U.S.C. eS re igen eben 3

21 U.S.C. 951(a)(1)- - ake ne iu token ee 3

21 U.S.C. 952. . case 3

Rule 801(d)(1), ‘Federal Rules ‘of “Evidence

(effective date, July 1, 1975).......-...-- 10

Miscellaneous:

III Wigmore, Evidence, § 841(2), pp. 489-493

(Chadbourn rev.) - -------------- -- ------ 18

Gu the Supreme Court of the Cnited States

OctoBER TERM, 1974

No. 74-1085

THomMas MATTEO, PETITIONER

v.

UNITED STaTES OF AMERICA

No. 74-1143

JOHN INDIVIGLIO, PETITIONER

Vv.

Unitep STaTES OF AMERICA

No. 74-6161

FRANK BREEN, PETITIONER

Vv.

UnITEeD STATES OF AMERICA

ON PRTITIONS FOR WRITS OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The court of appeals affirmed without opinion.

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2

JURISDICTION

The judgment of the court of appeals (No. 74-1085,

Pet. App., pp. 36-37) was entered on February 11,

1975. The petitions for writs of certiorari in Nos. 74-

1085 and 74-1143 were filed on February 28, 1975, and

the petition in 74-6161 was filed on March 10, 1975.’

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTIONS PRESENTED

Petitioner in No. 74-1085 presents the following

questions:

1. Whether the grand jury testimony of a recalei-

trant government witness was properly ‘admitted for

impeachment purposes.

9. Whether a testifying defendant’s out-of-court

admission, made while in custody in the absence of

Miranda warnings, was properly used for impeach-

ment purposes upon cross-examination.

3 Whether the government’s rebuttal evidence

against petitioner Matteo was properly admitted.

4. Whether petitioner Matteo was denied the

effective assistance of counsel.

Petitioners in Nos. 74-1143 and 74-6161 present the

following questions: |

5, Whether there was sufficient evidence of partici-

pation in the conspiracy by petitioners Indiviglio and

Breen.

1 The petition in No, 74-1143 was originally filed in typescript

on February 28, 1975, and it was returned to counsel on that

date. Printed copies were filed on March -10, 1975, and the case

was then docketed as of the earlier date.

3

6. Whether the trial court abused its discretion in

rereading the government’s final argument to the jury.

Petitioner in No. 74-6161 additionally presents the

following questions:

7. Whether an out-of-court admission, made by peti-

tioner Breen while intoxicated, was admissible in

evidence.

8. Whether certain grand jury testimony and other

sealed reports should have been furnished to petitioner

Breen.

STATEMENT

Following two separate jury trials in the United

States District Court for the Eastern District of New

York, petitioners were convicted of conspiring to im-

port and distribute heroin, in violation of 21 U.S.C.

(1964 ed.) 173 and 174 (for transactions occurring

prior to May 1, 1971), and 21 U.S.C. 812, 841(a) (1),

841(b)(1)(A), 951(a) (1), and 952 (for transactions

occurring after May 1, 1971).’ Petitioners received the

following sentences: Matteo, ten years’ imprisonment

and a special parole term of five years; Indiviglio,

twelve years’ imprisonment and a special parole term

of five years; Breen, seven and one-half years’ impris-

onment and a special parole term of five years.

2 Petitioners were charged in a single-count indictment with

conspiring with unindicted co-conspirators Frank Aguiar and

James McCormack. Petitioner Indiviglio’s case was severed prior

to the first trial. Petitioner Breen’s case was severed during

the first trial. Accordingly, petitioner Matteo was tried alone and

convicted on June 14, 1974. Subsequently, petitioners Indiviglio

and Breen were tried together and convicted on August 16,

1974.

4

Briefly . summarized, the overlapping evidence

adduced at the two trials revealed the existence of a

conspiracy pursuant to which large quantities of

heroin were imported from France and distributed to

buyers in the United States. Although membership in

the conspiracy changed from time to time, the core

membership and the purpose of the conspiracy

remained intact. Petitioner Indiviglio’s role in the

conspiracy was that of the main importer of heroin

from French sources; petitioners Matteo and Breen

functioned as major distributors of heroin within the

United States.

A. THE TRIAL OF PETITIONER MATTEO

In the summer of 1968, Frank Aguiar, the govern-

ment’s principal witness, was in the business of selling

heroin. His source of supply was Tyler Somas.

Unhappy with the quality of heroin that he was

receiving, Aguiar met with Somas and petitioner

Matteo. At that time, Matteo promised Aguiar that he

would receive better heroin in the future. Thereafter,

Aguiar continued to receive small amounts of heroin

from Somas (Tr. I, 134-137).°

In the fall of 1969, Aguiar again met with petitioner

Matteo, who was accompanied by petitioner Breen.

Matteo asked Aguiar how much money he had made

from his narcotics dealings since their first mecting.

Aguiar stated that he had made approximately $67,000.

2“Tp, I” refers to the transcript of petitioner Matteo’s trial ;

“Tr, II” refers to the transcript of the trial of petitioners

Indiviglio and Breen.

5

Matteo was puzzled at this response because he had

received only $2,000 from Somas. Matteo said that he

would get to the bottom of the matter of payments

and also indicated that thereafter Aguiar would be

dealing directly with him and Breen (Tr. I, 141-143).

In November 1969, petitioners Matteo and Breen went

to Aguiar’s apartment and asked to borrow $16,000

in order to finance a heroin business dealing in larger

quantities. They offered Aguiar a partnership in

exchange for a loan. Aguiar stated, however, that he

would lend the money only if they agreed to furnish

him with uncut heroin at cost (Tr. I, 147-150, 353-

354). A few days later, Aguiar gave $16,000 to Matteo

and Breen (Tr. I, 150).

Several days later, Matteo and Breen brought a

kilogram of heroin to Aguiar’s apartment, where it

was divided into eight packages. Thereafter, Matteo

and Breen took the heroin and left (Tr. I, 150-151,

355-356). A few days later, Breen returned to

Aguiar’s apartment and asked Aguiar to store the

packages of heroin. Subsequently, either Matteo or

Breen picked up the heroin (Tr. I, 152-154).

Throughout 1970, Aguiar purchased progressively

larger quantities of heroin from Matteo; in the latter

part of the year, he was purchasing three kilograms

at a time (Tr. I, 158-159). Between November 1970

and January 1971, Aguiar and Matteo conducted their

heroin dealings as partners; they earned $170,000 in

profits during those months. Following dissolution of

that partnership, Matteo continued to supply heroin

to Aguiar (Tr. I, 161-163).

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6

Aguiar made increasingly larger purchases, cul-

minating in a series of ten-kilogram transactions (Tr.

I, 163-164). In September 1972, Aguiar arranged to

buy another ten kilograms of heroin through Matteo,

for a total price of $270,000. Matteo was to make the

purchase by using $190,000 of his own money (repre-

senting a debt that he owned Aguiar) and additional

monies to be supplied by Aguiar. Aguiar was to de-

liver $60,000 in cash to Matteo in advance and an addi-

tional $20,000 when the narcotics were received.

Aguiar delivered the $60,000 (Tr. I, 172-174) ; how-

ever, the following day, Matteo was found shot (not

fatally) in the home of petitioner Indivigilo (Tr. I,

520-521). The police also found an attache case near

Matteo’s body, containing $350,000 in cash (Tr. I, 524).

B. THE TRIAL OF PETITIONERS INDIVIGLIO AND BREEN

Tn the spring of 1968, Matteo approached Somas to

-arrange a business deal whereby Somas would manage

Matteo’s heroin business (Tr. II, 26). At that time,

Matteo was living in an apartment building owned by

petitioner Indiviglio, the basement of which contained

a laboratory (Tr. II, 27-28). On one oceasion, Matteo

and Somas picked up some dark brown heroin samples

that had been left in the laboratory and delivered them

to James McCormack, who tested the samples (Tr. I,

29, 31, 35-36). MeCormack told Aguiar that he was

dealing in heroin supplied by Indiviglio (Tr. IT, 236),

and he explained that the heroin was brown because it

had been damaged in shipment and then treated by

Indiviglio (Tr. IT, 238).

7

Matteo instructed Somas to provide petitioner Indi-

viglio with any funds he might need in order to travel

to France to arrange a source of heroin (Tr. II, 37-38,

40). Thereafter, Matteo, Somas, and Indiviglio held a

meeting during which Indiviglio said that he was plan-

ning a trip to Europe (Tr. II, 41-42). Several months

later, Indiviglio asked Somas for $5,000 for a trip;

however, Somas was only able to give him $3,000 ( Tr.

Il, 43-44). Upon his return, Indiviglio said that some-

ove in Newburgh, New York, had “taken his connec-

tion away”. Indiviglio stated that a letter relating to a

shipment was being sent to the person in Newburgh

and asked Somas to go to Newburgh and steal the let-

ter (Tr. II, 4445).

In early 1969, Somas began purchasing small

amounts of heroin from petitioner Breen (Tr. II,

49-50). Somas was in turn supplying heroin to Aguiar.

After Aguiar complained to petitioner Matteo about

the quality of heroin that he was receiving from

Somas, Breen undertook to supply Aguiar directly

and did so on two oecasions (Tr. I], 241-244).

In the fall of 1969, Aguiar agreed to lend Matteo

and Breen $16,000 to be used in their heroin dealings,

provided that he be given an option to purchase uncut

heroin at cost (Tr. II, 247-248). Soon thereafter,

Matteo and Breen brought a kilogram of heroin to

Aguiar’s apartment to be divided into 4-kilogram

packages (Tr. I1, 88, 249-250). A few days later Breen

returned to the apartment and asked Aguiar to store

three packages of heroin, which Breen and Mattes

subsequently picked up (Tr. TT, 250-251, 254).

|

;

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8

In 1970, Breen told Aguiar that he and Matteo were

no longer in partnership (Tr. II, 255). Nonetheless,

Breen continued to supply heroin to Somas on at least

seven occasions, the last of which involved delivery of

one pound of heroin (Tr. LI, 167-168, 173-179).

During this time, petitioner Indiviglio told Somas’s

wife that he had made ‘millions’? in the narcotics

business by importing foreign cars containing caches

of heroin (Tr. II, 180-181. 183-184, 219-220).

In September 1972, Matteo was found in I ndiviglio’s

home. He had been shot five times in the back but was

still alive. Next te Matteo was an attache case con-

taining $350,050 in cash (Tr. II, 364, 369). Police

officers also found laboratory equipment used in the

processing of heroin (Tr. IT, 382-384).

ARGUMENT

1. James McCormack, an unindicted co-conspirator,

was called as a government witness. After testifying

that he knew petitioner Matteo and had met with him

in 1967 or 1968 (‘Tr. I, 460-463), McCormack claimed

that he was unable to remember any events that would

incriminate Matteo.’ Thereafter, the government was

permitted to use MeCormack’s detailed gr and jury

testimony in an attempt to refresh his memory and, in

the alternative, for the purpose of impeachment (Tr.

‘ Before he testified, MeCormack was examined by the court.

MeCormack claimed at that time that he could not recall his

dealings with Matteo. The court then }» ‘1d MeCormack in con-

tempt (Tr. T. 440), ruling that he was willfully refusing to

answer questions (Tr. 1, 457-438, 444).

I, 468-497).’ For the most part, McCormack testified

that he could not recall whether or not he had given

the testimony set forth in the grand jury record.

Petitioner Matteo incorrectly contends (Pet. 15-24)

that the trial court erred in allowing the government

to use MeCormack’s grand jury testimony for im-

peachment purposes. A court may properly admit a

witness’s prior statement as impeachment evidence if

it is inconsistent with his testimony at trial. Grune-

wald vy. United States, 353 U.S. 391, 418. In this case,

it was clear that McCormack was merely feigning a

faulty memory in order to protect Matteo. As the

trial judge observed (Tr. I, 514):

Not once did [McCormack] complain of be-

ing sick while he was under cross examination.

On cross examination he answered every ques-

tion asked by [petitioner's trial counsel}. He

remembered matters that occurred at a tine

earlier to [sic] the time he appeared before the

Grand Jury.

He was quite articulate in describing the pro-

grams that he received in State custody.

It is clear to me that this witness never

intended to testify directly or give testimony

that was required of him; that he answered

* Petitioner Matteo mistakenly intimates that the grand jury

testimony was introduced as substantive evidence. Following the

objection of petitioner's trial counsel (Tr. I. 539-540), the court

stated: “[T]o the extent that [McCormak] refused to admit

any of the statements, I would say that it is not admissible

under the substantive crime” (Tr. I, 541). Thereafter, the court's

jury instruction on prior inconsistent statements limited their

consideration to “judging the credibility of the witness” (Tr. I,

742-743).

TRAN

10

questions that inculpated himself, but refused

to answer questions that inculpated [petitioner |

Accordingly, the court was well within its discretion

in allowing the use of McCormack’s prior inconsistent

grand jury testimony for impeachment purposes.

As the Second Cireuit held in the similar case of

United States v. Insana, 423 F, 2d 1165, 1170 (C.A. 2),

certiorari denied, 400 U.S. 841: °

Where * * * a recalcitrant witness who has

testified to one or more relevant facts indicates

by his conduct that the reason for his failure to

continue to so testify is not a lack of memory

but a desire “‘not to hurt anyone,” then the

court has discretionary latitude in the search

for truth, to admit a prior sworn statement

* * * (T]he trial judge’s hands should [not]

be tied where a witness does not deny making

the statements nor the truth thereof but merely

em

°

falsifies a lack of memory

“In Jnsana, the witness responded “If he says I said it, I guess

I did: and “I don’t remember”; and “If he has it on the record

I guess I must have”; and finally, “I don’t recall” (423 F. 2d

at 1168). In the instant trial, MeCorinack’s responses included,

“J :ecall the conversation, but not that question and not that

answer” (Tr. 1, 470): “That sounds familiar. 1 am not posi-

tive’ (Tr. I, 471); “It may be down there, but I don’t remem-

ber those questions at all” (Tr. 1, 476); “At the moment I can't

think at all” (Tr. I, 484): and “I am not sure at this time” (Tr.

I, 487). ;

? The court in /nsana held that such statements were admnis-

sible as substantive evidence. See also ( ‘alifornia v. Green, 399

U.S. 149: Rule 801(d)(1) of the Federal Rules of Evidence

(effective date. July 1, 1975). A fortiori, the district court

here had discretion to admit MeCormack’s prior statements for

impeachment purposes.

FOOT

i

—7

11

2. Following his arrest, petitioner Matteo made in-

culpatory statements to a government agent, At a pre-

trial hearing, these statements were suppressed on the

eround that they had been made in the absence of

Miranda warnings. The statements were, however, used

for impeachment during the course of the cross-

examination of Matteo. Petitioner Matteo claims (Pet.

24-27) that that use was improper. © | '

‘At trial, Matteo testified in his own behalf. He ad-

mitted that he was involved in illegal gambling opera-

tions but denied that he had been trafficking in nar-

cotics (Tr. 1, 575-578). On cross-exunination, Matteo

again ‘denied involvement in the drug trade, stating

that he had never purchased ov sold heroin at any time

(Tr. I, 593). Although Matteo admitted knowing of

petitioner Indiviglio’s involvement in the narcotics

trade, he said that this knowledge came from a single’

conversation in which Indiviglio had acknowledged

that he was once involved with narcoties (Tr. I, 605-

606). Thereafter, the trial court allowed Matteo to be

cross-examined concernins the inclupatory statements °

that he made while in custody (Tr. 1, 612-615):

Q. In that conversation, do yor recall that

Agent Schnepper said to you that he was aware

that you had done [five] to [ten] kilograms of

heroin at a time but wanted to, know what Indi-

viglifo] was doing, and that you responded that

Indiviglifo] was doing 30 to 40 kilograms at a

time. Do you recall that conversation ?

A. Yes.

Q. Is that what you said?

A. Yes, that’s right.

TAD EONS DESPRE RIES |

‘ 12

Q. Did you also state that Indviglifo] had

lost his European connection a while ago, be-

eause the connection had gotten jammed up

with the police in France?

| A. Right.

Petitioner voluntarily elected to take the stand in

his own defense and was, therefore, properly subjected

to “the traditional truth-testing devices of the adver-

sary process.” Harris V. New York, 401 U.S. 222, 225.

The impeachment, use of his’ prior admission was

proper. Oregon V. Huss, No. 73-1452, decided March

19, 1975; Harris v. New York, supra. See also Walder

v. United States, 347 U.S. 62.

3. During his testimony, petitioner Matteo generally

denied trafficking in narcotics (Tr. 1, 576-578, 593)

and specifically denied meeting anyone at the Club

International for the purpose of arranging a purchase

of narcotics (Tr. I, 613). In rebuttal, the government

offered testimony that showed that Matteo had traded

in drugs (Tr. I, 630), that a meeting between a nar-

cotics dealer and Matteo had been arranged at the

— latter’s request (Tr. I, 630-631), that Matteo was in-

troduced to the narcotics dealer at the Club Inter-

national (Tr. 1, 631), and that Matteo effected a large

purchase of narcotics several days later (Tr. 1, 631-

632).

Petitioner Matteo’ claims (Pet. 28-31) that this

rebuttal testimony ‘was improperly received. But as

petitioner concedes (Pet. 29), the admissibility of

rebuttal evidence is within the broad discretion of the

trial court, and its determination will not be reversed

unless that discretion has been abused. See, ¢.g.,

i

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13

United States v. Perez, 491 F. 2d 167, 173 (C.A. 9),

October 15, 1974 (No. 73-6784) ; United States v.

Fenech, 470 F. 2d 1234 (C.A.D.C.), certiorari denied

sub nom. Blackwell vy. United States, 410 U.S. 909.

That discretion was not abused here. Matteo had flatly

denied ever dealing in narcotics; in the circumstances of

this case it was well within the court’s discretion to

allow the government to impeach Matteo’s credibility

by introducing evidence that contradicted his testi-

mony. Harris v. New York, supra; Walder v. United

States, supra. See, also, United States v. Gonzalez,

491 F. 2d 1202, 1204 (C.A. 5); United States v. Gant,

487 F. 2d 30, 33 (C.A. 10), certiorari denied, 416

US 941; United States v. Fench, supra.

4. Petitioner Matteo further argues (Pet. 31-34)

that he was denied the effective assistance of counsel

because his trial attorney failed to object to the admis-

sion of certain evidence that Matteo characterizes as

irrelevant and prejudicial. Specifically, he points to

the use for impeachment purposes of McCormack’s

grand jury testimony and his own admissions to Agent

Schnepper and to the introduction of evidence about

his near-fatal shooting. But as we have shown above,

the impeaching evidence was properly admitted. And

the evidence of the circumstances surrounding Mat-

teo’s shooting was relevant and admissible. The dis-

covery of narcotics paraphernalia and a large amount

of cash in co-conspirator Indiviglio’s home, at the

time of Matteo’s shooting in that home, tended to

corroborate Aguiar’s testimony that, on the day before

the shooting, he had given Matteo $60,000 for the

AN nn lap ainda A

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:

;

14

purchase of a large quantity of heroin, Any objection

to the introduction of that evidence presumably would

have been unavailing.

The tactical and strategie decisions made by an

attorney during the course of a trial are not ordi-

narily subject to scrutiny on review. See, e.g., United

States ce vel. Walker v. Henderson, 492 F, 2d 13811

(C.A, 2), certiorari denied, 417 U.S. 972; United

States v. Grant, 489 F. 2d 27 (C.A. 8). However, under

any applicable standard of appellate review, the record

supports the conclusion that petitioner Matteo was,

in fact, afforded adequate assistance of counsel. Com-

pare United Slates V. Robinson, 502 F. 2d 894, 896

(CLA, 7), Cuited States ox rel. Walker, v. Henderson,

supra, and United Slates Vv. Miramon, 470 F. 2d 1362

(CLA. 9), certiorari denied, 411 U.S. 934 (ineffective

representation consists of conduct that shocks the

eonseience of the court and makes the proceedings a

faree and mockery of justice) with United States v.

DeCoster, AST F.2d 1197, 1202 (C.A.D.C.) (defendant

entitled te “the reasonably competent assistance of an

attorney acting as his diligent conscientious advo-

cate”).

torney conducted an extensive cross-

examinationeabebhiaewgovernnent’s witnesses, presented

a plausible theory of defense in his opening statement, ,

explored that defense through Matteo’s own testimony,

and summarized the evidence and his theory during

final arguments. The record fails to disclose (and peti-

tioner Matteo does not allege) any potentially exon-

erating defenses that were not considered by defense

counsel or any exculpatory evidence that was not

SO NN ce IF AEE MR

15

introduced. Throughout the trial, defense counsel

rendered the reasonably effective assistance demanded

of an attorney of ordinary skill and training in erim-

inal law. See McMann v. Richardson, 397 U.S. 739,

770-771; Beasley v. United States, 491 F. 2d 687, 696

(C.A. 6).

5. Petitioner Indiviglio contends (Pet. 49, 7-8)

that there was insufficient non-hearsay evidence to

establish his participation in the conspiracy.’ We

disagree. The direct evidence showed that petitioner

Matteo lived in an apartment building owned by

Indiviglio and that he picked up samples of heroin

from a laboratory located in that building ; that Matteo

and Somas had paid for Indiviglio’s trip to France

out of their narcotics earnings; that following Indi-

viglio’s trip to France he reported to Somas that

someone in Newburgh, New York, had taken away his

connection, and Somas was sent to steal a letter relat-

ing to this lost connection; and that a large quantity

of laboratory equipment suitable for processing heroin

was found in Indiviglio’s home. Moreover, Fay Somas

testified to a conversation with Indiviglio during which

the latter stated that he had made ‘‘millions’’ by

importing heroin secreted in foreign ears.” Accord-

‘ Petitioner Breen also incorporates this contention in his peti-

tion. but there was ample direct evidence of Breen’s involvement

in narcotics transactions to warrant the admission against him

of the declarations of co-conspirators. See Glasser v. United

States. 315 U.S. 60, 80; United States v. Santana, 503 F, 2d 710

(C.A. 2), certiorari denied, December 9, 1974 (No. 74-5311).

* That testimony was of course admissible against the declar-

ant, Indiviglio, as an admission without regard to the admissi-

hility of the declarations of his co-conspirators. Cf. Lutwak v.

United States, 344 U.S. 604, 618.

16

ingly, MeCormack’s declaration to Aguiar that Indi-

viglio supplied heroin to him was properly considered

by the jury. United States v. Santana, supra; United

States v. Geaney, 417 F. 2d 1116, 1121 (C.A. 2), cer-

tiorari denied sub nom. Lynch v. United States, 397

U.S. 1028.

6. Petitioners Indiviglio and Breen contend (No.

74-1143, Pet. 5-7; No. 74-6161, Pet. 15) that the trial

court erred in allowing a portion of the government’s

summation to be read to the jury. It is well recognized,

however, that the trial court has wide discretion in

evaluating the consequences of reading portions of the

transcript to the jury.” See, e.g., United States v.

Thornton, 498 F. 2d 749, 753 (C.A.D.C.). Although

petitioners allege that prejudice resulted, neither they

nor the record substantiates that claim.

During its deliberations, the jury requested that the

government’s summation be read to them. Prior to the

reading of the requested transcript the court admon-

ished (Tr. II, 865):

- Now, again understand that summation is not

testimony. It’s just the argument of counsel and

don’t lose sight of the other summations by the

other lawyers * * *.

Thereafter, the court reporter read back a portion of

the government’s summation. After the jury was satis-

fied that they had heard enough of the summation, the

court again instructed (Tr. II, 868):

1° The court’s discretion is not limited to the reading of evi-

dentiary portions of the transcript. See, ¢.g., United States v.

Polizzi, 500 F. 2d 856, 876 (C.A. 9), certiorari denied, Janu-

ary 20, 1975 (No. 74-322).

7% OE Lg OE AAP IEL ELENA A TOOL AE

17

The portion of the summation was a discussion

by Mr. Weintraub of the evidence. Of course,

that isn’t evidence, it’s only what he says, what

he finds from the evidence.

It is apparent that the jury’s verdicts resulted from

a careful evaluation of the evidence. At the same

time that the jury requested the reading of the sum-

mation, it also asked to see Exhibit 47 (a shipping

notice) (Tr. II, 359, 857). Thereafter, the jury asked

to examine Exhibit 52, consisting of several documents

found in petitioner Indiviglio’s home (Tr. II, 446, 667)

and all of the letters from ‘‘Bob” that were found in

Indiviglio’s home (Tr. II, 867). The jury then re-

quested Exhibit 46, a photograph of the money found

near Matteo’s body following his shooting (Tr. II, 359,

869). Finally, it requested and heard Aguiar’s testi-

mony on direct examination, on cross-examination by

Indiviglio’s counsel, on redirect examination, and on

recross-examination by Indiviglio’s counsel (Tr. I,

870-872). Certainly in these circumstances the reading

of a portion of the government’s summation, which the

jury used, at most, as a guide to the evidence, did not

cause substantial prejudice or constitute reversible

error. Cf. United States v. Thornton, supra.

7. Petitioner Breen contends (Pet. 9-14) that cer-

tain admissions to his friend, James Schmidt, were im-

properly admitted at trial because he had been intoxi-

cated at the time he made them.” The criterion for the

1 Schmidt was a police officer, but petitioner Breen concedes

(Pet. 10) that his statements were not the result of a custodial

interrogation.

SAT PPT OS oo

18

admissibility of confessons or admissions made while

in a state of self-induced intoxication is simply that of

trustworthiness. See III Wigmore, Evidence, § 841

(2), pp. 489-493 (Chadbourn rev.). There was ample

evidence here that Breen was not so intoxicated that

his admissions were inherently untrustworthy.

Breen had placed a telephone call to a Long Tsland

bar where Schmidt’s in-laws worked. Breen explained

that he was in a downtown Manhattan bar and needed

a ride to Long Island because the train was not run-

ning at that hour of the night (Tr. II, 424, 429-430,

460, 542). Breen gave Schmidt detailed directions on

how to reach the Manhattan bar; thereafter, Schmidt

drove to meet Breen (Tr. II, 430-431). Upon reaching

the bar, Schmidt played a game of pool with Breen

(Tr. II, 427) and also engaged in a discussion over

drinks. It was during this time that Breen made the

inculpatory statements. Subsequently, Schmidt drove

Breen back to Long Island. Schmidt characterized

Breen’s conversations that night as both coherent and

responsive (‘I'r. II, 462-463). Schmidt’s characteriza-

tion was corroborated in part by Breen, who was able

to reconstruct the events of the night in question (Tr.

IT, 529-532, 540-543), admitted that he remembered

the happenings of that night ‘fairly well” (Tr. 3a

542), and conceded that he could hold his liquor

‘fairly well’? (Tr. II, 541). Accordingly, there, was

ample basis for the trial court’s conclusion that

Breen’s statements were sufficiently trustworthy to be

admissible. Cf. Lego v. Twomey, 404 U.S. 477.

“~~ ee.)

19

8. Finally, petitioner Breen urges (Pet. 14-15) that

this Court further review certain sealed grand jury

transcripts and investigative reports to determine

whether all material relating to the testimony of the

government’s witnesses was produced. However, a

criminal defendant is not entitled to the production of

statements of witnesses “which do not relate to the

subject matter of their testimony” (Scales v. United

States, 367 U.S. 203, 258) or to investigative reports

that are “the product of the investigator’s selections,

interpretations, and interpolations” (Palermo v.

United States, 360 U.S. 343, 350) and were not the

subject of testimony at trial.

The trial court conducted an in camera inspection of

the material here in question, and it was then sealed

and forwarded to the court of appeals for an ‘‘appro-

priately limited review.” Palermo v. United States,

supra, 360 U.S. at 353. Petitioner Breen neither dem-

onstrates a “particularized need” for the material nor

does he show that the determinations of the courts

below were clearly erroneous. Further review by this

Court is unwarranted. See United States v. Fanning,

477 F. 2d 45, 49 (C.A. 5), certiorari denied, 414 U.S.

1006; United States v. Graves, 428 F. 2d 196, 200

(C.A. 5), certiorari denied, 400 U.S. 960.

20

CONCLUSION

The petitions for writs of certiorari should be

denied.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

JoHN C. KEENEY,

Acting Assistant Attorney General.

JEROME M. Fert,

Rosert J. ERICKSON,

Attorneys.

May 1975.

G.6. GOVERNMEET PRINTING OFFICE: 1978