# Brief for the United States — Breen v. United States (Nos. 74-1085, 74-11143) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_0817%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States - **Published:** January 1, 1974 ## Text MPT ER TR BO SOL AI TE SOF NALLY FR RR DIAN YTS ATA CG OE EE Cais NS aa oo ein eeek po os eo nc eine xs oe ING cig ce cs as oe oe ok We ed ace Gusstions grammed. -. .. -- -- <2. oe on oe wn oe ce on, Sy Wa cl ce saan aelay 4b.0o a oe ae oe PIS nbs ner acm ou bh roan co dxng enwwcn stan ee NG ia Fs en deled su ogee deen on be ue re Go os => 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. (1) cin abe i RGaikchataat en ISA ah ro AS RRS nee wee Seb BC APA FResi ss atest BR RAI Ee ee Shy fa 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). oe ee ee Tt te tina wt MA tit a panels Tite Bd botnet Ue awa 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). | ; ‘ eed ee 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 / <>.