Petition for Writ of Certiorari — Combs v. United States

‘i a RIL LED

Sle13e% ce 13 1992

SFRIGE OF THE CLE

CASE NO.

in the

Supreme Court

of the

United States

October Term 1991

ERNEST FRANZ COMBS, JR. and

PATRICIA ANN HAYES,

Petitioners,

Us.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ADORNO & ZEDER, P.A.

FRED A. SCHWARTZ, ESQ.

2601 South Bayshore Drive

Suite 1600

Miami, Florida 33133

(305) 858-5555

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER THE FIFTH AMENDMENT RIGHTS

OF ERNEST FRANZ COMBS, JR. WERE

VIOLATED WHERE HE GAVE IMMUNIZED

TESTIMONY BEFORE A FEDERAL GRAND JURY;

WAS SUBSEQUENTLY INDICTED FOR CRIMES

ABOUT WHICH HE TESTIFIED; WAS DENIED A

KASTIGAR HEARING; AND THE GOVERNMENT

NEVER PROVED THAT ALL ITS EVIDENCE WAS

DERIVED FROM SOURCES INDEPENDENT OF

COMBS’S GRAND JURY TESTIMONY.

Il. WHETHER THE FOURTH AMENDMENT RIGHTS

OF ERNEST FRANZ COMBS, JR. AND PATRICIA

ANN HAYES WERE VIOLATED BY THE

INTERCEPTION OF THEIR TELEPHONE

CONVERSATIONS PURSUANT TO A WIRETAP

THAT WAS THE PRODUCT OF A _ JOINT

VENTURE BETWEEN THE SPANISH POLICE

AND DEA.

ny

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .....

TABLE OF CONTENTS.............0.00cc00000: ii

TABLE OF AUTHORITIES ..............2..0.-- iii-iv

ONO MOE «5s v

JURISDICTION ..........2.0ccceceeceeceeceeceees y |

RELEVANT CONSTITUTIONAL |

PROVISIONS. .............0.c0ccecceceeeceeceeceee vi

STATEMENT OF THE CASE...............---- 2

REASONS FOR ALLOWANCE OF WRIT....... 7

AMONIIET oid nn 8

I. THE GOVERNMENT FAILED TO MEET

ITS BURDEN OF ESTABLISHING THAT

ITS EVIDENCE WAS DERIVED FROM

SOURCES INDEPENDENT OF COMBS’S

IMMUNIZED TESTIMONY ................ 8

Il. THE FOURTH AMENDMENT RIGHTS OF

COMBS AND HAYES WERE VIOLATED

AS A RESULT OF THE JOINT VENTURE

BETWEEN DEA AND THE SPANISH

FS Fo RE err rer Tre 11

CAIDC NEE 0b: ses csknnarepnagaaentenapayceneee 14

CERTIFICATE OF SERVICE.................... 15

il

TABLE OF AUTHORITIES

Cases Page(s)

Bynum v. United States,

423 U.S. 952 (1975) (cert. denied)

(Brennan, J., dissenting)...................... 13

Kastigar v. United States,

I ME COPED o ovccccccndsacicncsavacevees passim

Lustig v. United States,

ee 11

Reid v. Covert,

ee nn cnn dun ddeceunecoere, 11

United States v. Callaway,

446 F.2d 753 (3rd Cir. 1971),

cert. denied, 404 U.S. 1021 (1972) ............ 11

United States v. Hampton,

775 F.2d 1479 (11th Cir. 1985)................ 8, 10

United States v. Hensel,

699 F.2d 18 (1st Cir.),

cert. denied, 461 U.S. 958 (1983) ............. 11

United States v. North,

910 F.2d 843 (D.C. Cir.), reh’g granted in

part ond denied in part, 920 F.2d 940 (1990),

cert. denied, ____ U.S. , 111 S.Ct. 2235

United States v. Peterson,

812 F.2d 486 (9th Cir. 1987) .................. 11

lll

TABLE OF AUTHORITIES—(Continued)

Cases Page(s)

United States v. Rose,

570 F.2d 1358 (9th Cir. 1978).............00.. 11

United States v. Rosenthal,

793 F.2d 1214 (11th Cir.), modified,

801 F.2d 378 (1986), cert. denied,

erica tuctcskasedsdaes 11

United States v. Seiffert,

463 F.2d 1089 (5th Cir. 1972)................. 9 |

United States v. Verdugo-Urquidez,

——_—_ US. __., 110 3.Ct. 1066 (1980)......... 11

United States v. Williams,

817 F.2d 1136 (5th Cir.),

cert. denied, 484 U.S. 896 (1987) ............. 10

Statutes

Be ees Oe END So vinns cudcesdnwauensvenescans 13

Be Sd: OF hae bnnkcdaavetbacteecsssentenns 12

iv

ORDER BELOW

The United States Court of Appeals for the Eleventh

Circuit affirmed, per curiam, the trial court’s refusal to hold

a Kastigar hearing and its denial of Petitioners’ motion to

suppress wiretap evidence. The per curiam affirmed decision

of the Eleventh Circuit is reprinted in the Appendix.

JURISDICTION

This Petition arises from a criminal indictment filed

against Ernest Franz Combs, Jr. and Patricia Ann Hayes in

the United States District Court for the Southern District of

Florida. The indictment charged Ernest Franz Combs, Jr.

and Patricia Ann Hayes, inter alia, with substantive RICO

and conspiracy to commit RICO in violation of 18 U.S.C.

§ 1962(c) and (d), respectively. In addition, HAYES was

charged with one count, and COMBS with two counts, of

conspiring to import hashish in violation of 21 U.S.C. §§ 959,

952 and 963.

Ernest Franz Combs, Jr. and Patricia Ann Hayes were

convicted on all counts. They appealed the judgment of

conviction to the United States Court of Appeals for the

Eleventh Circuit, pursuant to 28 U.S.C. § 1291.

On September 9, 1991, the Eleventh Circuit issued a

decision affirming the trial court, per curiam. COMBS and

HAYES filed a petition for rehearing and/or suggestion for

rehearing in banc. On November 15, 1991, the Eleventh

Circuit denied the petition for rehearing and suggestion of

rehearing in banc.

This Court has jurisdiction over this appeal pursuant to

28 U.S.C. § 1254.

ie

RELEVANT CONSTITUTIONAL PROVISIONS

AMENDMENT IV

The right of the people to be secure in their persons,

houses, papers, and effects, against the unreasonable

searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

AMENDMENT V |

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to be

a witness against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall private

property be taken for public use, without just compensation.

CASE NO.

in the

Supreme Court

of the

United States

October Term 1991

ERNEST FRANZ COMBS, JR. and

PATRICIA ANN HAYES’,

Petitioners,

US.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioners, Ernest Franz Combs, Jr. (“COMBS”)

and Patricia Ann Hayes (“HAYES”), petition for a writ of

certiorari to review the judgment of the United States Court

of Appeals for the Eleventh Circuit.

‘The Appellants in the Eleventh Circuit were COMBS and HAYES.

The government was the Appellee. There were 20 defendants named in

the original indictment. COMBS and HAYES were tried with three other

co-defendants. At the time of trial, most of the remaining defendants were

either in the process of being extradited or were fugitives.

STATEMENT OF THE CASE

This case involves an international conspiracy for the

importation of hashish and marijuana into the United States

allegedly involving an organization headed by Dennis

Howard Marks (the “Marks Organization”). COMBS and

HAYES were alleged to have participated in the activities of

the Marks Organization.

I. The Kastigar Violation

In November, 1987, federal agents served a subpoena

upon COMBS directing him to appear before a federal grand

jury in the Northern District of California. Special agents of

the Federal Bureau of Investigation and attorneys from the

United States Department of Justice interviewed COMBS in

advance of his grand jury appearance.

On December 15, 1987, the government, by letter

agreement, gave COMBS use immunity. The government

also agreed that none of the evidence COMBS provided

would be used against HAYES, who is COMBS’s common

law wife. COMBS then went into the grand jury and

testified.

COMBS’s grand jury testimony included his role in a

shipment of hashish seized at the Naval Air Reworks facility

in Alameda, California on December 12, 1984 (the “Alameda

Shipment”). He testified he was approached to arrange “a

connection” to obtain hashish to ship to Alameda,

California; that Dennis Howard Marks supplied the hashish

and arranged for delivery to Alameda; and that Marks and

COMBS were to have received 1,000 pounds of hashish, but

never received anything.

COMBS also testified in great detail about his and

Marks’s involvement in a load of hashish imported into the

United States via the vessel “Axel-D” (the ‘“Axel-D

Shipment”). He testified he introduced Marks to one of the

alleged co-conspirators for the purpose of importing

marijuana on the Axel-D. COMBS also testified to having

invested money in the Axel-D Shipment.

After COMBS testified, a person named Robert

Stephenson learned COMBS had been cooperating with the

government. In May, 1988, Stephenson testified in the grand

jury in the Southern District of Florida that ultimately

indicted COMBS and HAYES. Stephenson testified about

COMBS’s role in the Alameda Shipment. Until COMBS

appeared before the grand jury in California, the case

surrounding the Alameda Shipment had reached a dead-end

with no leads. There is no indication the government had

any idea who Robert Stephenson was. Yet, within five

months after COMBS testified in California, Stephenson

was testifying against COMBS in Miami.

On July 12, 1988 (less than seven months after

COMBS’s grand jury testimony), COMBS and HAYES were

indicted for RICO. The the Alameda Shipment and the

Axel-D Shipment were the only predicate acts of the

substantive RICO count applicable to COMBS and HAYES.

In addition, COMBS and HAYES were both charged with

conspiracy to import hashish for their role in the Axel-D

Shipment, and COMBS was charged with conspiracy to

import hashish for his role in the Alameda Shipment.

COMBS moved to dismiss the indictment on the basis

of the government’s use of immunized testimony. HAYES

joined in the motion. The trial court ordered the magistrate

to await the government’s response and then hold a Kastigar

hearing. The assistant United States Attorney prosecuting

the case filed an unsworn response to the motion, in which

he stated that ali of the government’s evidence against

COMBS and HAYES was obtained prior to the time of

ne Te

COMBS’s Grand Jury testimony from an investigation

which began in January 1986. According to the prosecutor,

the investigation was both historical and pro-active. (The

pro-active aspect of the investigation involved only the

Axel-D Shipment.) Based on that response, the trial judge

denied the motion to dismiss, thus reversing his prior order

referring the motion to a magistrate. (A copy of the order is

reprinted in the Appendix).?

After his conviction, COMBS filed, and HAYES joined,

a post-trial motion for a Kastigar hearing. The trial judge

denied the motion. He found that the record revealed that

the government’s evidence was derived from a source

independent of the immunized testimony. (A copy of the

post-trial order is reprinted in the Appendix as well).

No Kastigar hearing has ever been held in this case. The

trial judge has never reviewed COMBS’s grand jury

testimony.

Il. The Wiretaps*

Beginning approximately July, 1985, the United States

Drug Enforcement Administration (“DEA’’) was involved in

a joint investigation with several European police

departments, coordinated through Interpol, regarding

Dennis Howard Marks and certain members of the Marks

Organization. In September, 1985, an informant notified the

Spanish Central Brigade in Madrid, Spain, that Marks had

plans to transport hashish to Spain and possibly on to

Europe and America. A Spanish agent then prepared and

*All motions, responses and orders relating to the Kastigar issue were

originally under seal. At oral argument, the Eleventh Circuit panel

unsealed them.

*The wiretaps were part of the pro-active investigation into the

Axel-D Shipment.

eee

filed a written request for authorization to wiretap three

telephones in Marks’s home in Palma de Mallorca, Spain.

Though the informant’s information was used in the

request for authorization, the Spanish judge was not advised

of the identity of the informant. Under Spanish law, a police

officer is not required to inform the Court as to how he

obtained his information. The officer is only required to

advise the Court of his conclusions. The Court will then

trust the officer.

On December 19, 1985, a judge in Palma de Mallorca

authorized the wiretap of Marks’s telephones for a period of

one month. The wiretap authorization was based solely on

the unidentified informant’s information and information

received from Interpol regarding a telephone conversation

between Marks and his wife regarding an intended shipment

of hashish (this information most likely originated from a

Dutch wiretap of two telephones used by Marks in

Amsterdam).

Meanwhile, on November 3, 1985, DEA had Marks

under surveillance at an airport in Karachi, Pakistan. In late

November, DEA had Marks and other members of the

Marks Organization under surveillance in Manila,

Philippines.

At some point Special Agent Craig Lovato of the DEA

began to assist the Spanish police in the investigation of

Marks. (One DEA report reflects he too was involved as early

as November.) Lovato listened to four reel-to-reel tapes

containing conversations intercepted from Marks’s

telephones since the first week of January, 1986. He selected

the conversations he believed were inculpatory, and copied

onto cassette tapes any “drug related” conversations. He

then returned the four tapes to the Spanish authorities, who

erased them.

Lovato informed the Spanish authorities of the

information he learned from the tapes, and then notified

DEA of what he had learned. He returned to Madrid with

the cassette tapes he made from the reel-to-reels. While in

Madrid, at the request of the Spanish authorities Lovato ran

a check on Marks.

Lovato recommended to his superiors that DEA send

someone to assist the Spanish police to help them from

drawing on their manpower. DEA sent a temporary

assignment agent to Palma de Mallorca. This agent

remained there for two weeks, working full-time on the

wiretaps. He briefed Lovato on a daily basis.

When Lovato returned to Palma de Mallorca, the

wiretaps became his primary responsibility. He remained in

Palma for most of the duration of the wiretaps (about four-

and-a-half months.)

Although the wire room was locked, Lovato had a key

and access to the room to work at his leisure. He would listen

to the entire reel-to-reel tape. He did not mininimize, i.e., he

listened to conversations unrelated to illegal activities and

not otherwise subject to interception. When the Spanish

authorities created the reel-to-reels they did not minimize

either. Rather, they recorded the intercepted conversations

in their entirety and simply checked the tapes once a day or

once every other day.

Lovato continued to copy onto cassettes those

conversations he believed were inculpatory. He maintained

the only copy of the cassettes in his briefcase.

By March, 1986, DEA had a “vested interest” in the

wiretaps. Lovato’s role changed once he learned there was a

load of hashish headed for the United States: “[T]hat aspect

of it became a U.S. based investigation.”

Lovato began to make operational decisions concerning

the wiretaps. He selected which conversations were to be

preserved and which were to be erased. He used the

information he learned from the wiretaps to determine

where to conduct surveillances. Then, based on that

information, he directed DEA surveillances in places such as

Bangkok, Manila, Hong Kong, Singapore, Canada, England

and the United States.

Lovato gave the Spanish authorities information on the

translations on a daily basis. He also provided information

about the identities and activities of those individuals

appearing in the intercepted conversations. Lovato provided

the Spanish with the information necessary to obtain

extensions of the wiretaps.

Both COMBS and HAYES were parties to

conversations regarding the Alameda Shipment intercepted

as a result of the wiretaps. These intercepted conversations

were introduced into evidence during trial and played to the

jury.

REASONS FOR ALLOWANCE OF WRIT

This Court should grant this Petition because the

Eleventh Circuit Court of Appeals has sanctioned so far a

departure from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s power of

supervision. The Petitioners submit the following argument

in support of their Petition.

ARGUMENT

i.

THE GOVERNMENT FAILED TO MEET ITS

BURDEN OF ESTABLISHING THAT

ITS EVIDENCE WAS DERIVED FROM

SOURCES INDEPENDENT OF COMBS’S

IMMUNIZED TESTIMONY

Once COMBS established he testified under a grant of

immunity, the government had “the heavy burden of

proving all of the evidence it propose[d] to use was derived

from legitimate independent sources.” Kastigar v. United

States, 406 U.S. 441, 461-62 (1972). The government had to

prove that none of the evidence presented to the grand jury

or at trial was derived directly or indirectly from COMBS’s

immunized testimony. United States v. Hampton, 775 F.2d

1479, 1485-86 (11th Cir. 1985). The government did not meet

its burden of proof.

The only response to the initial motion was an unsworn,

unsubstantiated statement from an assistant United States

Attorney that all of the government’s evidence against

COMBS was obtained prior to his immunized testimony.

Based solely on that assertion, the trial judge reversed his

prior order referring COMBS’s motion to dismiss to a

magistrate for a Kastigar hearing, and denied COMBS’s

motion. The potential consequences of such a ruling are

frightening. The Fifth Amendment becomes meaningless.

“‘{T]he very purpose of the Fifth Amendment under these

circumstances is to prevent the prosecutor from

transmogrifying into the inquisitor, complete with that

officer’s most pernicious tool — the power of the state to

force a person to incriminate himself.” United States v.

North, 910 F.2d 843, 861 (D.C. Cir.), reh’g granted in part

and denied in part, 920 F.2d 940 (1990), cert. denied,

___ USS. , 111 S.Ct. 2235 (1991). Under the trial judge’s

ruling, a prosecutor has the power of Tomas de Torquemada.

The unethical prosecutor can give use immunity to the

target of an investigation, thus forcing the target to

incriminate himself; he can then use the compelled

testimony to indict the target, and later simply claim in

cursory fashion that ali of the government’s evidence was

obtained prior to the target’s testimony or through other

sources.

COMBS testified under use immunity about matters

directly related to the prosecution at hand. Upon being

indicted, COMBS was “not dependent for the preservation

of his rights upon the integrity and good faith of the

prosecuting authorities.” Kastigar, 406 U.S. at 460. COMBS

did not have to take the prosecutor at his word. The

government was required to come forward with some proof

that its evidence was derived from a legitimate independent

source. It came forward with none. The prosecutor’s

unsworn conclusory response was insufficient to meet the

government’s heavy burden under Kastigar. United States

v. Seiffert, 463 F.2d 1089, 1092 (5th Cir. 1972) (“The

prosecutor, the FBI agent who investigated the case, and the

FDIC attorney all testified that they did not make direct nor

indirect use of Seiffert’s testimony. These conclusory

statements are simply not enough to carry the burden.”’)

The Kastigar violation ultimately manifested in

connection with the matter of Robert Stephenson.

Stephenson was the only witness at trial who could link

COMBS to the Alameda Shipment.‘ Yet, there is no

evidence whatsoever in the record as to how the government

came to learn of Stephenson. None of the agents who

investigated the Alameda Shipment testified about him. In

‘A link that was tentative at best. Stephenson testified that a person

named “‘Scooby-doo” was involved; that he had met Scooby-doo twice;

and that COMBS was Scooby-doo. However, Stephenson did not know

the extent of COMBS’s involvement.

fact, none of them testified about COMBS either. Therefore,

the government had to have learned about both COMBS’s

and Stephenson’s involvement through some other source. It

is apparent that source was COMBS.

After COMBS testified in the grand jury, Stephenson

learned COMBS was cooperating. It is intuitively obvious to

the most casual observer that Stephenson was approached

by the government and told of COMBS’s cooperation.

Stephenson then told the government about COMBS’s role

in the Alameda Shipment, and soon afterwards testified to

the grand jury that indicted COMBS and HAYES.

The government has never explained away the problem

of Robert Stephenson. It is an evidentiary hole that the

government has never filled. A hole that should have been

fatal to the indictment. Hampton, 775 F.2d at 1489.

COMBS and HAYES were entitled to their day in court.

They were entitled to have the government prove the source

of its evidence. The trial judge should never have based his

decision on the prosecutor’s conclusory assertion, but rather

should have held an evidentiary hearing. At the very least,

he should have reviewed COMBS’s immunized testimony,

United States v. Williams, 817 F.2d 1136, 1138 (5th Cir.),

cert. denied, 484 U.S. 896 (1987), which he never did, before,

during or after the trial.

The trial court departed from the strictures of Kastigar.

The Eleventh Circuit sanctioned that departure. It ignored

the issue. Its decision consisted of three words: “Per curiam:

Affirmed.” This Court should exercise its power of

supervision and reverse the Eleventh Circuit. The district

court should be ordered to hold a hearing in which the

government shall offer whatever proof it may have as to the

source of its evidence.

10

Il.

THE FOURTH AMENDMENT RIGHTS OF COMBS

AND HAYES WERE VIOLATED AS A RESULT OF

THE JOINT VENTURE BETWEEN DEA AND THE

SPANISH POLICE FORCE

The United States Constitution provides

extraterritorial protection to United States citizens from the

actions of the United States government. Reid v. Covert, 354

U.S. 1, 6 (1957); Cf. United States v. Verdugo-Urquidez,

U.S , 110 S.Ct. 1056, 1063 (1990) (“Since respondent

is not a United States citizen, he can derive no comfort from

the Reid holding.”). Consequently, while the Fourth

Amendment does not apply to foreign searches by foreign

Officials of American citizens, United States v. Rose, 570

F.2d 1358, 1361 (9th Cir. 1978); United States v. Rosenthal,

793 F.2d 1214, 1230 (11th Cir.), modified, 801 F.2d 378

(1986), cert. denied, 480 U.S. 919 (1987), it does apply when

American law enforcement participates to the extent that

such a search is converted into a joint venture. United

States v. Peterson, 812 F.2d 486, 490 (9th Cir. 1987);

Rosenthal, 793 F.2d at 1231; United States v. Hensel, 699

F.2d 18, 25 (1st Cir.), cert. denied, 461 U.S. 958 (1983);

United States v. Callaway, 446 F.2d 753, 755 (3rd Cir. 1971),

cert. denied, 404 U.S. 1021 (1972).

The wiretaps installed on Marks’s telephones in Palma

de Mallorca, Spain, were the product of a joint venture

between DEA and the Spanish police. It is immaterial

whether the joint venture existed from the outset, or

whether it was created after the wiretap was already in

progress. Lustig v. United States, 338 U.S. 74, 79 (1949).

DEA was investigating Marks before the wiretaps began.

and DEA records reveal Lovato’s involvement from the

outset. The wiretaps were thus arguably a joint venture from

the beginning. That notwithstanding, after Lovato listened

to the first group of tapes, he became so intertwined in the

11

wiretaps that it was unquestionably converted into a joint

venture.

Without Lovato, the wiretaps would have been useless

to the Spanish police, and would have ceased. He translated

the conversations for the Spanish police on a daily basis.

These translations, along with the information he gave about

the identities and activities of the various players, enabled

the Spanish police to obtain extension orders.

Lovato aided the investigation by using information

obtained from the wiretaps to direct surveillances of the

Marks Organization throughout the world. Lovato made key

operational decisions. He selected which conversations

would be copied onto cassettes and preserved for later use,

and which would be erased. He also had possession of the

only copy of the cassettes. Lovato’s involvement thus

increased and the role of the Spanish police decreased.

Eventually the Spanish police became Lovato’s lackeys,

responsible for nothing more than providing the equipment

for the wiretaps and preparing the paperwork for the

extension orders. The wiretaps were thus a _ textbook

example of a joint venture, and COMBS and HAYES were

entitled to Fourth Amendment protection with respect to

their conversations intercepted by the wiretaps.

The wiretaps violated the Fourth Amendment rights of

COMBS and HAYES. The affidavit in support of the

wiretap authorization lacked any semblance of probable

cause; Lovato did not minimize’; other investigative

‘Title III of the Omnibus Crime Control and Safe Streets Act of 1968

mandates that a wiretap be “conducted in such a way as to minimize the

interception of communications not otherwise subject to

interception. . . .” 18 U.S.C. § 2518(5). This “minimization” provision,

along with other Title III safeguards, “constitutes the congressionally

designed bulwark against conduct of authorized electronic surveillance in

a manner that violates the constitutional guidelines announced in Berger

(Footnote continued on next page)

12

techniques were not exhausted‘; and Lovato did not preserve

all the taped conversations, but rather allowed potentially

exculpatory conversations to be erased.

The district court departed from the accepted and usual

course of proceedings by refusing to suppress the

conversations of COMBS and HAYES intercepted from the

wiretaps. The Eleventh Circuit sanctioned that departure.

This Court should exercise its power of supervision and

reverse the Eleventh Circuit’s decision affirming the district

court. The wiretap evidence should be suppressed.

(Footnote continued from previous page)

v. New York and Katz v. United States.” Bynum v. United States, 423

US. 952 (1975) (cert. denied) (Brennan, J., dissenting) (citations

omitted). Minimization thus protects Fourth Amendment rights.

*Title III also requires that before a wiretap order may issue “normal

investigative procedures have been tried and failed or reasonably appear

to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C.

§ 2518(3)(c). This too is part of the congressional bulwark designed to

protect Fourth Amendment rights. Bynum, 423 US. at 952 (Brennan, J.,

dissenting).

13

CONCLUSION

For the foregoing reasons, this Court should grant the

Petition for Writ of Certiorari.

FRED A. SCHWARTZ

ADORNO & ZEDER, P.A.

2601 South Bayshore Drive

Suite 1600

Miami, Florida 33133

(305) 858-5555

Attorneys for Petitioners

Ernest Franz Combs, Jr. and

Patricia Ann Hayes

14

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the preys sper for Writ of Certiorari was served by

mail the /2/day of February, 1992, upon:

Anne R. Schultz

155 So. Miami Ave.

Miami, Florida 33130

Solicitor General

Department of Justice

Washington, D.C. 20530

> OP i

oS

15

Appendix

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-5805

D. C. Docket No. 88-469-Cr-JCP

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PATRICIA ANN HAYES,

ERNEST FRANZ COMBS, JR.,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Florida

(September 9, 1991)

Before FAY and JOHNSON, Circuit Judges, and

MERHIGE*, Senior District Judge.

PER CURIAM: AFFIRMED. See 11th Circuit Rule 36-1.

Judgment Entered: September 9, 1991

For the Court: Miguel J. Cortez, Clerk

By: /s/ Karlus McNabb _

Deputy Clerk

ISSUED AS MANDATE: NOV 25 1991

“Honorable Robert R. Merhige, Jr., Senior U.S. District Judge for the

Eastern District of Virginia, sitting by designation.

App. A-1

[FILED DEC— 1 1988]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 88-469-Cr-Paine

UNITED STATES OF AMERICA

¥.

ERNEST FRANZ COMBS, JR.,

Defendant.

ORDER, UNDER SEAL,

DENYING DEFENDANT’S MOTION TO DISMISS

Before the Court is the motion of the defendant to

dismiss the indictment because of alleged government’s use

of immunized testimony and statements for pretrial hearing

and for discovery in advance of hearing. Having considered

the content of this motion and the government’s response

thereto, it is

ORDERED and ADJUDGED that the defendant’s

motion to dismiss and his request for discovery in advance of

the hearing be and the same are hereby denied. The motion

of the defendant, the response of the government and this

order are hereby sealed pending further order of the Court.

DONE and ORDERED at West Palm Beach, Florida

this 28th day of November, 1988.

/s/ James C. Paine

United States District Judge

cc: Robert E. O’Neill, AUSA

Bruce J. Kelton, Esq.

Michael H. Artan, Esq.

App. A-2

[FILED JUN 21 1989]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 88-0469-Cr-Paine

UNITED STATES OF AMERICA

v.

ERNEST FRANZ COMBS, JR.,

PATRICIA ANN HAYES,

Defendant.

ORDER ON PENDING MOTIONS

Before the Court are submissions by defendants, Ernest

Franz Combs, Jr. and Patricia Ann Hayes, briefly described

as follows. Defendants Combs and Hays [sic] have moved to

vacate this Court’s judgment following jury verdicts and to

dismiss the action based on alleged government’s use of

immunized testimony and statements. This motion contains

a prayer for a hearing pursuant to Kastigar v. United States,

406 U.S. 441 (1972) and for discovery in advance of the

Kastigar hearing. This motion was filed on May 18, 1989.

Defendants Combs and Hayes have supplemented the

motion described hereinabove by a submission filed June 12,

1989. Defendants Combs and Hayes have moved for a

continuance of sentencing presently scheduled for July 7,

1989 so as to postpone the same beyond the proposed

Kastigar hearing. This motion was filed June 6, 1989. The

United States has responded to these submissions by

pleading in opposition to the same.

The Court has reviewed these motions as well as the

evidence produced at trial which resulted in the convictions

of the moving defendants. It is the conclusion of the Court

App. A-3

that the record of this cause sufficiently shows that the

evidence produced by the government in the trial of the

defendant was obtained independently of information which

may have been received by other prosecutorial authorities in

the government in connection with a different investigation.

It is, therefore,

ORDERED and ADJUDGED that the motions of these

defendants which are the subject of this order, as noted

hereinabove, be and the same are hereby denied. It is further

ORDERED that the motions, the response of the

government and this order are to be sealed by the Clerk of

the Court, pending further order of this court.

DONE and ORDERED at West Palm Beach, Florida

this 20th day of June, 1989.

/s/_ James C. Paine

United States District Judge

cc: Robert E. O’Neill, AUSA

Michael Artan, Esq.

Bruce Kelton, Esq.

Gregory A. Prebish, AFPD

App. A-4