Petition for Writ of Certiorari — Weintraub v. California

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IN THE ;

SUPREME COURT OF THE UNITED STATES

October Term 1975

No.

or ase f

MATTHEW DAVID WEINTRAUB,

Petitioner,

Vv.

THE PEOPLE OF THE STATE

OF CALIFORNIA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SECOND DISTRICT COURT OF APPEAL

FOR THE STATE OF CALIFORNIA

LUKE McKISSACK

6430 Sunset Boulevard

Suite 521

Hollywood, California 90028

[213] 466-7331

Attorney for Petitioner

eR SEAR NRT SRE

SEES A OT A ENS ROR TON Spee

OF SO NE RN Res ten tae

TOPICAL INDEX

Table of Authorities

OPINION BELOW

GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED

QUESTIONS PRESENTED FOR REVIEW

STATEMENT OF THE CASE

STATEMENT OF FACTS

REASONS FOR GRANTING THE WRIT AND

AMPLIFYING THE SAME

I PETITIONER WEINTRAUB'S CONVICTION

FOR POSSESSION OF MARIJUANA SHOULD

BE REVERSED BECAUSE THERE IS NO

PROOF THAT THE CRIME CHARGED (A)

WAS COMMITTED AT ALL AND, (B) IF

COMMITTED, WAS COMMITTED WITHIN

THE STATE OF CALIFORNIA AS

REQUIRED BY THE UNITED STATES

CONSTITUTION

CONCLUSION

APPENDIX A

Opinion of Court of Appeal of

State of California, Second

Appellate District, Division

Four, affirming judgment of

trial court

EDEL ATMOS TAT LNG BLO ATO EI I RE FON PL CNS ge TONE AD Ba SO oo eam

Page

APPENDIX B

Notice of Order denying hearing

in Supreme Court of the State

of California

APPENDIX C

California Health §& Safety

Code, Section 11530.5

camenaal “e

TABLE OF AUTHORITIES

Cases Page

Foley Bros. v. Filardo,

336 U.S. 281,

$9 $.Ct. S75

Garner v. Louisiana,

386 U.S. 157

82 S.Ct. 248 (1961) 9,

People v. Buffum,

40 Cal.2d 709

286 P.2d 317 (1953) 18, 39, @1,

People v. Francis,

71 Cal.2d 66

75 Cal.Rptr. 199

450 P.2d 591 (1969)

People v. Groom,

60 Cal.2d 694,

36 Cal.Rptr. 327

388 P.2d 359 (1964) 9,

People v. Kosoff,

34 C.A.3d 920,

110 Cal.Rptr. 391 (1973) ll,

People v. MacDonald,

24 C.A.2d 703

76 P.2d 121 (1938) 18,

People v. Newman,

5S Cal.3d 48

95 Cal.Rptr. 12

48 P.2d 132 (1971) a.

iii

18

17

27

10

10

12

21

10

ed a |

Cases

People v. Redrick,

5S Cal.2d 282

10 Cal.Rptr. 823 (1961)

People v. Showers,

68 Cal.2d 639

68 Cal.Rptr. 459

440 P.2d 939 (1968)

People v. Sloss,

34 C.A.3d 74

102 Cal.Rptr. 538 (1973)

People v. Superior Court (Marcil),

27 C.A.3d 404

103 Cal.Rptr. 874 (1972)

People v. Utter,

24 C.A.36 325

101 Cal.Rptr. 214 (1972)

People v. White,

71 Cal.2d 80

75 Cal.Rptr. 208

450 P.2d 600 (1969)

Reass v. United States,

(4th Cir. 1938)

99 F.2d 752

Thompson v. Louisiana,

oe2 U.S. 199

80 S.Ct. 624 (1960)

United States v. Volpe,

113 Conn. 288

t535-A. 225

70 Ash BES

iv

ARAN WEIS RTL PS IN TS AME LOH FAW ETS

Page

1]

13

9

17-18

17

RRM eRe

WAR OM er,Auhet = ame

Mayet s Ame

Cases

Weber v. Superior Court,

37 C.A.3d 404

103 Cal.Rptr. 874 (1972)

Statutes

26 U.8.¢. Bee. 3297 ¢3)

California Health §& Safety Code

Section 11530.5

Section 11910

California Penal Code

Section 995

Section 1538.5

Restatement of Conflict of Laws,

Section 428, Comment e

17

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1975

No.

MATTHEW DAVID WEINTRAUB,

Petitioner,

Vv.

THE PEOPLE OF THE STATE

OF CALIFORNIA,

Respondent.

PETIT JIN FOR WRIT OF CERTIORARI

TO THE SECOND DISTRICT COURT OF APPEAL

FOR THE STATE OF CALIFORNIA:

Petitioner Matthew David Weintraub

respectfully prays for a Writ of

Certiorari to the Second District Court

of Appeals of the State of California, to

review its judgment affirming his convict-

ion and the imposition of a prison

sentence with probation granted upon

condition that he serve time in the

County Jail.

OPINION BELOW

The trial was by court with the

defendant being found guilty of violating

California Health §& Safety Code Section

11530.5 (possession of marijuana for sale)

and not guilty of Health 4 Safety Code

Section 11910 (possession of dangerous

drugs). The California District Court of

Appeal affirmed the conviction in an un-

published opinion attached: as Appendix "A".

GROUNDS ON WHICH THE

JURISDICTION OF THIS

COURT IS INVOKED

The statutory provision believed to

confer on this Court jurisdiction to re-

iew the judgment in question by Writ of

Certiorari is 28 U.S.C. Section 1257(5).

QUESTION PRESENTED

FOR REVIEW

Can the State of California uphold

the conviction of petitioner where there

is no evidence to support the charge and

where the only crimes committed, if there

were any, were outside the United States

and therefore not within the jurisdiction

of the State of California?

STATEMENT OF THE CASE

Petitioner Weintraub was arrested on

March 6, 1973, and charged with violations

of Health and Safety Code Section 11530.5--

possession of marijuana for sale, and 11910--

possession of dangerous drugs. A prelimin-

ary examination was held before Judge

Antonio E. Chavez in Division 34 of the Los

Angeles Municipal Court on May 21, 1973,

and the defendant was held to answer on

those charges (C.T. 22). An Information

was filed on June 4, 1973 (C.T. 24, 25), and

petitioner was arraigned and entered a plea

of not guilty on June 12, 1973 (C.T. 27).

On November 28, 1973, motions pursuant

to Penal Code Sections 995 and 1538.5 were

argued before the Honorable WilliamP. Ritzi

in Department 115 of the Los Angeles Superior

References to the record are: (C.T.)

Clerk's Transcript No. A295241; (Supp. C.T.

3/22/74) Supplemental Clerk's Transcript of

March 22, 1974; (Supp. C.T. 5/9/74)

Supplemental Clerk's Transcript dated May 9,

1974; (R.T.) Reporter's Transcript on

Appeal; (Supp. R.T.) Reporter's Supple-

mental Transcript on Appeal; Affidavit

accompanying Search Warrant No. 10059.

3.

RAE BEWED ed BFR POE MET BOL he D

Court (R.T. 4-7). The @@t:sus were sub-

mitted on the basis of the ‘reliminary Hear-

ing Transcript and a Memorandum of Points

and Authorities by defense counsel (Supp.

C.T. 3/22/74,1-12). The motions were denied.

The case was ultimately submitted on

the transcript and the trial court found the

defendant not guilty of Count I and guilty

on Count II (Supp. R.T. 3; Supp. C.T. 1).

From this finding a Notice of Appeal

was filed April 30, 1974 (Supp. C.T.5), pro-

perly bringing the conviction before the

District Court of Appeal for review. On

July 31, 1975, that court affirmed the judg-

ment (see Appendix HAN). A Petition for

Hearing was then timely presented to the

California Supreme Court, which was denied

on September 24, 1974 (Appendix "B'). This

case is now properly before this Court

under 28 U.S.C. Section 1257(3).

The court's treatment was so embarrass-

ingly cavalier that it affirmed petitioner's

conviction for Calif. Health §& Safety Code

§11359 (Appx. "A", p. 1) with which he was

never charged and is clearly ex post facto

since it never existed at the time he 2

committed the acts for which he was tried,

becoming effective on Oct. 1, 1973, almost

seven months after petitioner's arrest.

NLR E SE LLG LILIES ML TPE ETL PEP ET TTI I BRI BET LIE TENE INL I PAN Hg

STATEMENT OF FACTS

Since petitioner was found not guilty

on Count Two of the Information (Supp. C.T.

dated 5/9/74), the constitutional

guarantee against double jeopardy requires

only that the facts relevant to the poss-

ession for sale conviction be set forth.

According to the testimony intro-

duced into the record at the Preliminary

Hearing, the package, containing the

hashish on which petitioner's conviction

rests was brought to the attention of the

police by customs authorities at some time

prior to its delivery to petitioner

Weintraub's residence (C.T. 11, 12). The

package--which the police knew to contain

hashish--was delivered to the Weintrauh

household at approximately noon on March 6,

1973. Petitioner was not home at that

time and the package, addressed to Kathy

Swanson, c/o Max Winthrop, at the Weintraub

address (C.T. 10) was signed for and

accepted by petitioner's mother (C.T. 14).

Approximately an hour later, she started

to leave the premises, was detained by

officers, and responded to their ques-

tions by saying that although she knew

5.

WORD MATE EOS T Denne eT Rk

neither of the named addressees, she had

signed for the package because her son's

name was Maxwell (Affidavit accompanying

search warrant No. 10059)(Exhibit "A").

An Officer Nichols testified that upon

his return, he was admitted to the house

by his partner, who was already inside and

had taken all the occupants--and the

package--into custody (C.T. 12). The

suspect package was in full view of the

officers on the hall table where it had

been brought previously by Mrs. Weintraub

(C.T. 13).

It was during the interim period--

after Customs Agent Hamm and an Officer

Sirk had entered the premises, but before

Officer Nichols returned with the warrant--

that petitioner arrived home. Agent Hamm

testified that upon his arrival, Weintraub

was arrested and read the Miranda warnings

(C.T. 15). At that time the petitioner

indicated his willingness to speak to the

officers (C.T. 16).

About 8:00 o'clock that evening,

after being taken to the police station

and reminded of his rights, petitioner

made a statement (C.T. 18). He explained

6.

ISN MLM NT Ni Nee BE og

that he had visited Amsterdam the previous

summer and met some people who said they

could get him some hashish. He thought

nothing more about this until he returned

and made the casual acquaintance of a

Steve Shapiro at U.C.L.A. They entered

into an agreement whereby Weintraub was to

pay Shapiro's transportation costs to

Amsterdam if he would send hashish back to

California. Towards that end, Weintraub

gave Shapiro $2,000.00, but stated that by

March 6 he had already written the money

off (C.f.-i9, 20).

REASONS FOR GRANTING THE WRIT AND

AMPLIFYING THE SAME

I

PETITIONER WEINTRAUB'S CONVICTION

FOR POSSESSION OF MARIJUANA SHOULD

BE REVERSED BECAUSE THERE IS NO

PROOF THAT THE CRIME CHARGED (A)

WAS COMMITTED AT ALL AND, (B) IF

COMMITTED, WAS COMMITTED WITHIN

THE STATE OF CALIFORNIA AS REQUIRED

BY THE UNITED STATES CONSTITUTION

(A) Taking every piece of evidence

appearing in the transcript of the Pre-

liminary Hearing as true, there was

un

ee a eee eee ore

insufficient showing that petitioner

Weintraub committed the crime of which he

stands convicted, namely, possession of

marijuana for purposes of sale. The

evidence, at best, showed only that

Weintraub visited Amsterdam, Holland, in

the summer of 1972 and it was suggested to

him that he might be able to purchase

hashish. Sometime during the school year

of 1972 or 1973, Weintraub gave $2,000.00

to a Steve Shapiro with whom he was

slightly acquainted, and asked him if he

would travel to Amsterdam and try to

purchase four pounds of hashish for

Weintraub. At the time of Weintraub's

arrest, on March 6, 1973, he had virtually

written off any hope he may have earlier

entertained that the marijuana could and

would be purchased and could and would be

transmitted to him. That, in sum and

substance, was the totality of the

evidence against petitioner on the possess-

ion for sale charge. This defect is a

serious violation of the Federal

Constitution in that no conviction may be

upheld without violating due process

absent evidence to sustain it. Garner v.

9

Louisiana, 386 U.S. 157, 82 S.Ct. 248

(1961); Thompson v. Louisville, 362 U.S.

199, 80 S.Ct. 624 (1960).

The defense strongly contends that

this evidence recited above was insuffic-

ient to support a conviction for the

offense of possession of marijuana for

purposes of sale. There is absolutely no

proof that Weintraub ever had possession

of the marijuana.

The elements of illegal possession of

marijuana are: (1) physical or co: struct-

ive possession thereof, and (2) knowledge

of the presence and narcotic character of

the drug. People v. Newman, 5 Cal.3d 48,

95 Cal. Retr. 12, 48 %.26 T3z (1971);

People v. White, 71 Cal.2d 80, 75 Cal.

Rptr. 208, 450 P.2d 600 (1969); People v.

Groom, 60 Cal.2d 694, 36 Cal.Rptr. 327,

388 P.2d 359 (1964); People v. Redrick,

$5 Cal.zd 282,.10 Cal.&ptr. 823, 399 P.2¢

253 (2961).

From the record it is quite clear

that the petitioner was never in physical

possession of the package containing the

hashish. The mail delivery was at noon,

the officers entered the residence at

i REID cence |

EP AIAPA TIE PSL EEDA ES AT SEITE LER IES SPAT OPTRA Se PTS OL EIN ORIN URL ES OL a Oe

approximately 1:00 o'clock, and petitioner

Weintraub did not arrive on the scene until

around 3:00 P.M. Since the petitioner had

not been present when the package was

delivered, and since the officers had

taken custody of the premises prior to

petitioner's return, it is hard to see how

it could be concluded that he had

exercised any dominion or control over the

hashish.

Although it is conceded that the

state may rely on circumstantial evicience

to infer possession, People v. Newman,

supra; People v. Groom, supra; People v.

Francis, 71 Cal.2d 66, 75 Cal.Rptr. 199,

450 P.2d 591 (1969), the facts will not

support even a finding of constructive

possession. The great majority of the

cases reaching the constructive possession

issue deal with contraband recovered

either from the premises of the accused or

a vehicle in which he was a passenger.

These situations differ from the present

circumstances in that they support an

inference that a defendant had previously

been in actual possession, Groom, supra,

or at the very least, was in a position

10.

SS RE RIES MN I LY RE EI TE IS OT LONE TEE DA OEE IEA TIE Ye ORY A pe kf

to assert an immediate right to control.

People v. Showers, 68 Cal.2d 639, 68 Cal.

Rptr. 459, 440 P.2d 939 (1968). Since the

officers took custody of petitioner Wein-

traub immediately upon his appearance at

the scene, and since at the time he was

last present at his home the package was

still in the possession of the authorities

and unknown to him, to argue that he even

constructively, or inferentially possessed

the contraband is inconsistent with the

facts.

There are relatively few reported

decisions dealing with the exact fact

Situation of a defendant being charged

with possession of contraband intercepted

in the mails before delivery to him, but

those petitioner has discovered, are not

inconsistent with his position.

In People v. Kosoff, 34 C.A.3d 920,

110 Cal.Rptr. 391 (1973), the court, in

reversing and remanding, denied a motion

to suppress evidence, but was cognizant of

the problem which troubled the Florida

courts--to wit, the propriety of inferring

the essential knowledge element from the

mere receipt of an unopened package.

tl.

"The delivery of the packages

to the defendant did not relieve

the People of the burden of proving

at trial that the defendant knew

of the narcotic content and in-

tended to exercise dominion and

control over it."

34 C.A.3d at 933, 110 Cal.Rptr.

at 399-400.

The decision left open the possibility

that in a proper case, a court would hold

insufficient the prosecution's proof of

possession from the mere fact of being the

recipient of mailed contraband. The

instant case presents just such a set of

circumstances.

In People v. Superior Court (Marcil),

27 C.A.3d 404, 103 Cal.Rptr. 874 (1972)

and Weber v. Superior Court, 30 C.A.3d 814,

106 Cal.Rptr. 593 (1973), the appellants'

convictions were affirmed, but both cases

are distinguishable from the case at bar

in two very important particulars. First,

the suspect packages in those cases had

been personally received by the defendants

in question, which fact made out a much

stronger case for the knowing possession

12.

PY TE SRS PRE CE TE DEERE LE a TERE OKI yoo hn aI

a

of the packages. Since the hashish at

issue in this case was delivered during the

time of Weintraub's absence, he could not

be said to knowingly have possessed it.

And secondly, petitioner, not being aware

of the existence of the package prior to

his being taken into custody, could hardly

be held accountable for a knowledge of

the illegality of its contents. Neither

was the package in question opened--as it

was in Weber and Marcil--nor did petiti-

oner Weintraub make the kind of inferably

incriminating references to the packages

that defendants Weber and Marcil made.

How could he when he was unaware of the

very existence of the packages containing

the marijuana at the time he was taken

into custody? Another recent California

decision upholding a possession conviction

in the postal context is even more readily

distinguishable since the defendants

opened the package and were overheard by

the concealed officers to make incriminat-

ing statements prior to their arrest.

People v. Sloss, 34 C.A.3d 74, 102 Cal.

Rotr. $83. (1973).

pat ae |

The logic of petitioner's position is

inescapable. He was charged with and

convicted of possession of marijuana for

sale. But the prosecution has never made

out a prima facie case on this charge,

since at the time of his arrest, Weintraub

was unaware of the very presence of the

parcel in his home--much less the narcotic

character of its contents. Even when

supplemented by petitioner's extra-judicial

statements, no case for possession can be

made out.

Rather, the evidence merely showed

a desire at one time on his part to obtain

marijuana from Amsterdam, Holland, if it

was available. The question of whether a

Federal offense was committed having to

do with smuggling or the wrongful import-

ation of contraband or whether there was

a conspiracy or attempt to do so is beside

the point. What is precisely the point

here is that the record does not contain

facts sufficient to uphold a conviction

for possession of marijuana for sale--

the offense charged. Although the

petitioner's extra-judicial statements may

make out some sort of case against

14.

petitioner, it is patently obvious that the

prosecution has failed to establish two

essential elements of the possession for

sale offense charged--namely, knowing

possession and knowledge that the thing

possessed is contraband. The conviction

must be reversed. Garner v. Louisiana,

supra and Thompson v. Louisville, supra.

(B) The petitioner's conviction

should be reversed for the additional

reason that the petitioner's acts within

the State of California were insufficient

for California courts to have jurisdiction

over the offense for which he was con-

victed.

"It is a general rule of

universal acceptation that one

State or sovereignty cannot

enforce the penal laws of

another, nor punish offenses

committed in and against

another state or sovereignty.

United States v. Volpe, 113 Conn. 288,

155 A. 223, 226, 76 A.L.R. 1083; Rest. of

Conflict of Laws, Section 428, Comment e;

Reass v. United States (4th Cir. 1938),

15.

99 F.2d 752, 755. California, in the

instant case, has upheld the penal regula-

tion of conduct beyond its own territorial

jurisdiction and without even so much as

the benefit of statute. This it cannot

do. Cf. Foley Bros. v. Filardo, 336 U.S.

281, 284-286, 69 S.Ct. 575. Although the

Foley Bros. case was willing to concede

that Congress, through its constitutional

authorization, could legislate in such a

way as to effect behavior in and with

foreign countries, the State of California

has no such constitutional calling card.

In California, at least as early as People

v. MacDonald, 24 C.A.2d 703, 76 P.2d 121

(1938), it has been clear that even if the

charge were as non-substantive as conspir-

ing to or contracting to do an illegal

deed, a sufficient quantum of substantive

effort must have been committed within the

jurisdiction of California for its courts

to apply the California Penal statutes to

anyone. In People v. Buffum, 40 Cal.2d

709, 256 P.2d 317 (1953), the Supreme

Court of the state upset the convictions

of Dr. Buffum, a physician and surgeon,

and Reginald L. Rankin, his cohort, both

16.

of whom had been convicted on various

counts of conspiring to commit abortions.

First, let us note that the crimes in

Buffum, involving a conspiracy as opposed

to a completed misdeed, require far less

proof than in the present case. Bearing

that in mind, let us scrutinize the Buffum

case in order to ascertain whether it

assists in analyzing the present predica-

ment, and whether any attempted distinction

which can be proffered is whimsical. Dr.

Buffum interviewed four pregnant women in

his Long Beach office who sought his aid

in inducing miscarriages. He took the

telephone numbers of three of the women,

telling each that she would receive a call.

In the fourth case, the woman was given co-

defendant Rankin's telephone number.

Rankin later telephoned the three, made

arrangements for the amount they must pay

for the abortion, arranged to meet them at

a designated intersection in Long Beach,

indicated he would transport them to the

place where the abortions were to be per-

formed, met them at the appointed place,

drove them in his automobile from Long

Beach, California to the Mexican border

17.

and across to Tijuana, Mexico. There,

Rankin and another committed the abortions

on the women. While in the operating room,

three of the women paid Rankin for the

performance of the abortion. Later, on

the same day, Rankin returned the women to

Long Beach. In the case of the fourth

woman, she utilized the telephone number of

Rankin, given to her by Dr. Buffum for the

express purpose of calling Rankin and

arranging the abortion, and subsequently,

it was consummated in the same fashion as

described above. After the four women

returned to Long Beach, three of them

required hospitalization and were treated

by Dr. Buffum without any preliminary exam-

ination or inquiry as to the nature of

their illnesses. Parenthetically, he

reimbursed the families for the hospital

bills, which, while an act of wisdom under

the circumstances, hardly voided a con-

Spiracy, if there was one. Needless to

say, the activities of Buffum and Rankin,

both of whose cases were reversed, although

charged with a conspiracy rather than the

completed crime, were far more incrimin-

atory and complete than the activities

18.

of petitioner Weintraub. It is hard to

conceive of how Weintraub's hope based upon

information given him while visiting

Amsterdam in the summer of 1972 and his

subsequent investment of $2,000.00 to a

casual acquaintance for purposes of seeking

to carry out that chore, without more, can

measure up to the offense of possession of

marijuana for sale within the jurisdiction

of the State of California.

Not only have Buffum and MacDonald

and other cases stood the test of time,

but as recently as two years ago, the Distr-

ict Court of Appeal in People v. Utter,

24 C.A.3d 525, 101 Cal.Rptr. 214 (1972)

(and with a hearing denied by the Calif-

ornia Supreme Court on July 5, 1973),

voided a conviction of murder where the

defendant induced the victim in the State

of California to undertake a fatal trip

abroad, purchased tickets for her trans-

portation, acquired the murder weapon,

because the acts committed within the

jurisdiction of California were insuffic-

ient to justify the conviction of murder.

There, the victim was a married woman in

her fifties, who enjoyed a substantial

19.

income from various investment properties

in Los Angeles County. The defendant had

known her for a number of years and had,

in fact, been the salesman who handled one

or more of her significant transactions.

He subsequently became a real estate broker

and occupied space in the victim's build-

ing. (The defendant for about fourteen

years had used the alias Thomas Devins. )

Utter, or Devins, and Mrs. Wilson in-

tensively discussed the trading of certain

properties and his involvement in her

business. Mrs. Wilson's attorney became

concerned about the shady nature of the

transactions and so advised her. The

defendant, Utter, was supposed to meet

with her attorney and, although there

were numerous meetings scheduled, he never

appeared. He later claimed a property

transaction favorable to himself had

already been consummated. In a subsequent

lawsuit, the defendant was due to appear

and again failed to show. Finally, a

meeting ensued between the defendant and

the victim and the victim's attorney in

which the attorney suggested to the

defendant that he refund a $5,000.00

20.

nencetifiiiimeemnnen ie ate = ———eS

oe 2

3 Pee

deposit and terminate the litigation on one

case. The defendant agreed to cooperate

and return a number of deeds used in a

sequence of transfers of property. He

did neither, however. At a later time,

the defendant apparently scheduled a

meeting in Montreal with Biafra refugees

whom he claimed had funds to invest. The

victim's attorney was skeptical in that he

wondered why the refugees couldn't come to

the United States. On at least a couple

of occasions, and perhaps more, he

advised the victim that she was dealing

with a man who was obviously dishonest.

The defendant's associate gave testimony

verifying that dishonesy and a plethora

of other misrepresentations concerning

his dealing with the properties affecting

the victim. A Dr. Samuel Abraham added

to this assessment in detail. Finally,

Mr. Wilson, the victim's husband, visited

Dr. Abraham to report that his wife was

missing. The defendant stated that the

victim had left him in Switzerland. He

thought she might have gone to Hawaii be-

cause she liked the Orient and was not

getting along with her husband. Although

21.

Sere

LER

90 ARAL IB IL BE HOLST

writeggecy tm

ELORELE PIES OY LIT Pe

+ AAEM

there are many, many more details showing

the defendant's wily schemes and his intent

to have her leave the country for a purpose

subsequently made manifest, we mention only

several. It was learned that the victim's

airline ticket was made out from Los

Angeles to Montreal to New York to Madrid

to Lisbon and paid all the way through.

There were two other similar tickets for

this itinerary--one for Robert Forget, and

the other for the defendant. The defendant

told the victim's husband that he had re-

turned to Los Angeles and that the victim

had received a large quantity of cash and

was intending to leave Geneva, where he

last saw her, and was intending to visit a

health spa in Sweden. As to the real

estate shenanigans, the defendant declined

to discuss the matters, claiming they were

confidential. The defendant was invited to

attend a meeting of the family and friends

to assist them in ascertaining what could

have happened to the victim. He did not

appear and all private efforts to locate

her proved futile. Forget, who had the

same paid airline itinerary, testified

against the defendant and among other

22.

things, pointed out that after November,

1968, the defendant continued to inquire as

to whether Forget was interested in parti-

cipating in a plan to liberate Moise

Tshombe in a plan involving millions of

dollars. The defendant agreed to send for

Forget immediately, told Forget to bring

his .38 automatic and shoulder holster, and

meet at the Los Angeles airport. They did.

Utter then, for the first time, mentioned

that the victim would meet with them in

Montreal to complete a real estate trans-

action, and cautioned Forget (that's his

name for real), not to mention the Tshombe

affair to the victim. The trio travelled

from Montreal to New York to Madrid. Ina

hotel in Madrid, the defendant discussed

with Forget "killing Mrs. Wilson," suggest-

ing that Forget should do it. Defendant

discussed in detail shady financial trans-

actions, getting rid of her body, and

ultimately Forget became fearful that he

might be shot. Forget's .38 automatic

was confiscated by Spanish authorities but

the defendant's Browning automatic was

not discovered. The three left Spain for

Tangiers and a little later the defendant

23.

paid Forget to return to the United

States. A few days later, the defendant

called Forget from Los Angeles and invited

him to come get his money, $25,000.00,

which shocked Forget, since he had done

nothing for Tshomhe. Forget did receive

$10,000.00 and was driven around town by

the defendant in his 280SL Mercedes Benz.

During one of these around-the-town trips,

Forget asked about the victim. The defend-

and then opened the glove compartment of

his Mercedes and exhibited the defendant's

passport and her jewelry wrapped in a

handkerchief. The defendant told Forget

that merely one of the gems, a green stone,

was worth $30,000.00. Later, the defendant

looked at Forget and pointed his right hand

at Forget's temple, saying, "She never felt

a thing, it's amazing what a 9 millimeter

will do. The whole side of her head came

off."" He further disclosed that he had

disposed of her coat in a locker at a bus

or railroad depot. The defendant devised

a number of other inconsistent explanat-

ions for his activities which are too

numerous to recount without the writing of

a book. Subsequently, bloodstained

24.

LIEN LL MEI EAUN TE SIULD OS RE SEATS ae DESL LETRAS ABE POOR PTR EO Md Te ge

clothes of the same blood type as the

victim were found in a box at a railway

station in Geneva, Switzerland. The

+ oot

Browning 9 millimeter was purchased by the

defendant under his alias as Devins in a

Hollywood gun shop shortly before the trip

abroad. The Utter court followed the

Buffum decision, voided the murder con- :

viction, and the Supreme Court denied a

hearing. Clearly, the Utter case involved

more activity in the State of California

than does the present one and obviously

more grievous misdeeds. Therefore, the

case before the court should be reversed

and dismissed.

%

a NA iM a ar

DLE: TREE ASE IOLA BOLI SEER STORET LEE EE oon ay

co

PAROISSE RRR TG

*

The District Court of Appeal

opinion (see Appendix "A'') does not cite

any of these cases or discuss them. In ;

fact, the entire opinion cites only one G

decision. é

25.

CONCLUSION

For the aforegoing reasons, the

Petition for a Writ of Certiorari should

be granted.

Respectfully submitted,

LUKE McKISSACK

Attorney for Petitioner

Matthew David Weintraub

26.