# Petition for Writ of Certiorari — Weintraub v. California

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 914

## Text

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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1877%3A1. Public record. Not legal advice.