# Petition for Writ of Certiorari — Combs v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 909

## Text

‘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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0209%3A1. Public record. Not legal advice.