Opposition Brief — Rossi v. United States

INDEX

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CITATIONS

Cases:

Ayers v. Ratshesky, 213 Mass. 589, 101 N.E. 78... 7

Boyd v. State, 150 Ala. 101, 32 So. 204........... 8

Colbert v. State, 125 Wis. 423, 104 N.W. 61...... 7

Fire Ass’n. of Phila. et al. v. Weathered, 62 F. 2d

Saw hunan tek wa hekkcbeacwad kG ok ewe ee 9

Graham v. West Virigina, 224 U.S. 616.......... 8

Hefferman v. United States, 50 F. 2d 554.......... 7,8

Henderson v. United States, 202 F. 2d 400...... 9

Michelson v. United States, 335 U.S. 469.......... 9

People v. Schanda, 352 Ill. 36, 185 N.E. 183...... 7

State v. Taylor (S. Ct. Mo.), 274 SW 47.......... 8

United States v. Pisano, et al., 193 F. 2d 355...... 7

United States v. Provoo, 215 F. 2d 531............ 10

Miscellaneous:

1 Greenleaf on Evidence, sec. 43a............... 7

3 Wigmore, Evidence (3rd ed.), secs. 981-982.... 10

9 Wigmore, Evidence (3rd ed.), sec. 2529........ 7

(1)

Inthe Supreme Court of the United States

OcToBER TERM, 1954

No. 702

Uao Rossl, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEC-

OND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. 41-49)

is reported at 219 F. 2d 612.

JURISDICTION

The judgment of the court of appeals was en-

tered on February 18, 1955. On March 7, the time

for filing a petition for a writ of certiorari was ex-

tended to April 6, 1955, and the petition was filed

(1)

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on that day. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether the evidence was sufficient to sup-

port the verdict.

2. Whether the trial court erred in submitting

to the jury, for its consideration in determining

petitioner’s credibility as a witness, the question

of petitioner’s identity with the ‘‘Ugo Rossi’’

named in Italian records of conviction dating back

some 25 to 35 years prior to trial.

3. Whether petitioner’s perjurious statements in

immigration and naturalization documents regard-

ing criminal convictions could be inquired into for

impeachment purposes after the subject had been

opened up by petitioner himself on direct examina-

tion.

4, Whether the trial court’s interrogation of pe-

titioner and his witnesses deprived him of a fair

trial.

STATEMENT

Petitioner was convicted of conspiracy to violate

various laws relating to narcotics (count 1, R. 7-9)

and of selling, concealing and facilitating the trans-

portation of one kilo of heroin (count 6, R. 12,577).

He was sentenced to imprisonment for five years on

each count, the sentences to run concurrently

(R. 590). On appeal the judgment was affirmed.

The facts adduced at trial may be summarized as

follows:

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On four occasions between January 2 and April

23, 1953, undercover agents of the Federal Bureau

of Narcotics purchased large quantities of opium

and heroin from Laget, Sauzet, and Doe, named as

codefendants in the indictment (R. 19, 26, 29-31,

34-36). During this period Laget was observed

entering petitioner’s apartment on one occasion

and was met at the door by petitioner (R. 151, 152).

Laget was also seen entering petitioner’s apart-

ment building on four other occasions (R. 150,

152-154).

Agent Zurlo testified that he met defendant Laget

at a restaurant on the evening of April 23, 1953, for

the purpose of purchasing a kilo of heroin (R. 37).

They drove in Laget’s car by a circuitous route to

a point where, after circling the block, Laget saw

another car in front of him. Laget said ‘‘There

he is now”’ as the car, a green DeSoto bearing li-

cense number QC5689, whose sole occupant was the

driver, pulled up on the west side of the avenue

and parked. Laget parked his car, went over to

the DeSoto, opened the door, leaned in and then

emerged carrying a brown paper bag. He returned

to his car, delivered the bag to the narcoties agent

and received $6,500 therefor. (R. 37-40, 65-69.)

The package contained one kilo of heroin (R. 39-40,

68, 220-222). Laget was taken into custody shortly

thereafter (R. 115).

Government agents in the immediate vicinity at

the time of the incident positively identified peti-

tioner as the driver of the green DeSoto bearing

license plates number QC5689 (R. 114, 115, 178,

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179). One of them had seen petitioner twice be-

fore (R. 179, 180). About an hour later petitioner

was found in front of his apartment house in the

same automobile (R. 181, 192).

The defense was alibi (R. 300-444).

On direct examination, petitioner testified that

in Italy in 1926, he, together with 200 other per-

sons, had been convicted of a ‘‘conspiracy against

the Fascist Regime’’, sentenced to five years’ im-

prisonment and thereafter to confinement as a

political prisoner (R. 413, 414). On cross-ex-

amination, he denied he had ever been convicted of

any other crimes in Italy (R. 456). He admitted

that his father’s name was Roberto Rossi, that his

mother’s name Matilde Paterno Rossi, and that be

had been born in Palermo, Italy, on December 13,

1901 (R. 466). Government counsel then intro-

duced, over objection, petitioner’s application for

an immigration visa on which he had sworn that he

had never been in prison (R. 458, 459). His peti-

tion for naturalization was also introduced, over

objection, revealing that he had sworn that neither

in the United States or any other country had he

ever been arrested, summoned into court as a de-

fendant, or ‘‘convicted, fined, imprisoned, or placed

on probation’’ for any felony, misdemeanor or

other breach of law or ordinance (R. 459-466). Pe-

tioner explained by saying that ‘‘In my conscience |

I felt that I had not committed any crime”

(R. 463), and by insisting that he had relied on the

advice of his lawyer at the time (R. 469),

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Thereafter government counsel produced cer- ,

tified copies and translations of four records of

convictions in Italy of one Ugo Rossi. The records

were admitted into evidence over the objection of

petitioner that having been denied by him, they

had not been properly identified as relating to

crimes committed by him (R. 479). The records

were to the following effect (R. 488-492) :

Kerhibit 16a.

1. Ugo Rossi, the ‘‘son of the late Roberto’’,

“17 years of age, from Palermo’? was found

guilty of doubly qualified theft for stealing

chickens on the night of March 25, 1919. He

was sentenced on May 28, 1919, to one year of

‘continuous cellular segregation’? the execu-

tion of which was suspended by the Court of

Appeals of the District of Palermo. (R. 491-

492.)

Exhibit 17a.

2. Ugo Rossi, ‘‘son of Roberto, 17 years of age,

from Palermo’’ was convicted in May, 1920, of

breaking into a home on June 6, 1919, and

stealing personal property. He was sentenced

to two years and six months. (R. 492.)

Barhibit 15a,

3. On May 22, 1925, Ugo Rossi, ‘‘son of the

late Roberto, 25 vears of age, from Palermo”’

was convicted of ‘complicity corresponding to

lesions with weapons”’ after being involved in

a brawl in a restaurant on January 17-18,

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6

1925. He was sentenced ‘‘to imprisonment

for eight months and four days with the in-

crease of one-sixth of the duration of the con-

tinous cellular segregation’’, reduced on ap-

peal (Aug. 19, 1925) to four months. (R. 490-

491.)

Erhibi’ ta.

4. Uo Reesi, ‘‘son of the late Roberto and

son of Matilde Paterno, born at Palermo, De-

ee aber 10, 1901" was convicted in February

19 for “complicity in qualified homicide”’

with premeditation (R. 488-489.)

With respect to these records, the judge instructed

the jury that if it found that petitioner was the

defendant named therein, it would go to his credi-

bility as a witness (R. 567).

ARGUMENT

1. Petitioner argues that the evidence was in-

sufficient to support his conviction since he was not

seen to have handed the package to Laget (Pet.

20-22). The evidence, though in part circumstan-

tial, was more than ample. There was direct evi-

dence that petitioner had been in contact with the

seller, Laget. prior to April 23rd, the date of the

narcotic sale. (R. 151, 152.) As to the events of

April 25rd, petitioner was positively identified by

federal agents as the man driving the ear and as

the person contacted by Laget immediately prior

to the sale (R. 114, 115, 178, 179). The place and

manner of meeting suggested pre-arrangement

————

justifying an inference of an illegal purpose. (R.

37, 38.) Although Laget had not been searched

prior to the meeting, he had been in the presence of

the federal agent for quite some time and there

was no sign of the narcotics and no transfer to the

agent until after contact with petitioner. The

package delivered to the agent after Laget re-

turned from the car was too large to have been con-

eealed on Laget’s person before (see R. 67). As

the court below pointed out (Pet. 43):

Here the evidence far exceeded the mini-

mum required by the application of the rule

of circumstantial evidence and the instrue-

tions of the trial court on the subject were if

anything too favorable to the defendant, whose

defense was alibi.

See also United States v. Pisano, et al., 193 F. 2d

366 (C. A. 9).

2. Petitioner contends ( Pet. 24-31) that the trial

eourt committed reversible error in admitting in

evidence for impeachment purposes records of con-

victions in Italy of one ‘‘ Ugo Rossi”’ after he (peti-

tioner) had denied that he was the same person

named in three of such records. Yet petitioner

concedes (Pet. 25), as he must in view of the au-

thorities,’ that the fact that his name is identical

with that appearing on the records is prima facie

'See Hefferman v. United States, 50 F. 2d 554, 557 (C.A. 3);

People v. Schanda, 352 Ill. 36, 185 N.E. 183; Ayers v. Rat-

shesky, 213 Mass. 589, 101 N.F. 78; Colbert v. State, 125 Wis.

423, 104 N.W. 61; 1 Greenleaf on Evidence, sec. 43a; 9 Wig-

more, Evidence (3rd ed.), sec. 2529.

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evidence of identity. The evidence further showed

that petitioner was born and lived in Palermo,

Sicily, the residence of the person described

in the records, that his father’s name, Roberto, was

the same as the parent listed in the records, and

that his age at the time of each conviction was the

same as that listed. (R. 466, 488-492.)

Petitioner did not rebut this presumption of

identity. Rather, his recollection on redirect

examination of being involved at age fifteen or six-

teen with a group of boys when a chicken was taken

(R. 483), served to buttress the presumption that

he was the ‘‘Ugo Rossi’’, ‘‘17 years of age, from

Palermo”? found guilty of doubly qualified theft

for stealing chickens. Since identity is a question

of fact? the court properly left the evidence before

the jury to use or discount in determining peti-

tioner’s credibility as a witness. See Hefferman

v. United States, 50 F.2d 554, 557 (C. A. 3); Boyd

v. State, 150 Ala. 101, 43 So. 204; State v. Taylor

(S. Ct. Mo.), 274 SW 47.

Petitioner’s argument directed at inconsistencies

on the face of the records (Pet. 27-29) is uncon-

vincing. Since the Ugo Rossi named in Exhibit 16

was given a suspended sentence in May, 1919, it

was not impossible for him to have committed in

June 1919, the offense mentioned in Exhibit 17, for

which he was convicted in 1920. There is nothing

to show that an appellate court would, as petitioner

argues (Pet. 27-28), necessarily refer to prior con-

2 Graham v. West Virginia, 224 US. 616.

9

victions in deciding a case before it. As for the

contention (No. 5, Pet. 28-29) that petitioner could

not have committed the offense charged in Exhibit

17 because he was in the army at the time, or the

offense charged in Exhibit 15 because he was in

prison at that time (No. 7, Pet. 29), the dates of

petitioner’s military service are not documented by

competent proof and the actual time served in

prison does not appear on the face of the record.

These records were not inadmissible because the

convictions occurred some twenty-five to thirty-five

years before trial. Such evidence is remote only if

it cannot reasonably bear on the present character

of the witness. The record here was not introduced

solely as evidence per se of petitioner’s general

character but more particularly to question his

veracity in presently denying having been so con-

victed. The question of remoteness is discretionary

and depends of the facts of the particular case. See

Michelson vy. United States, 335 U.S. 469; Fire

Ass'n. of Phila, et al. v. Weathered, 62 F. 2d 78, 79

(C, A, 5).”

3. Petitioner, in an effort to show that it was

error to probe into statements made in his visa and

naturalization applications, relies on the general

proposition that acts of misconduct not resulting

in conviction are not the proper subject of cross-

examination (Pet. 31-33). However, there can be

* Henderson v. United States, 202 F. 2d 400, 405 (C.A. 6),

cited by petitioner, is inapposite as the question raised there

Was not one of remoteness but whether the conviction involved

moral turpitude.

10

no doubt that perjurious statements indicating a

lack of veracity may properly be inquired into on

cross-examination when the subject has been

opened up by the witness himself on direct exami-

nation. This is made clear by the very decision

upon which petitioner relies, [’nited States Vv.

Provoo, 215 F. 2d 531, 537, in which the Court of

Appeals for the Second Circuit makes a distinction

between misconduct cited to inflame or prejudice

and misconduct showing a propensity to disregard

the obligation of an oath. See 3 Wigmore, Evidence

(3rd ed.), secs. 981-982.

4, It is further contended that the trial court’s

interrogation of petitioner and his witnesses de-

prived petitioner of a fair trial (Pet. 33-37). The

record, including the references cited by petitioner,

refutes that contention. The court acted, as it had

the duty to do, to elicit the facts it deemed neces-

sary to a clear presentation of the evidence. The

trial was long, the witnesses numerous and the testi-

mony lengthy, sometimes unresponsive, and given

in both Italian and English. The nature of the

crime charged and the defense offered necessitated

eare in the fixing of time, dates, and identifying

factors. In the light of this and in view of counsel’s

objections, failure of the court to interrupt and

clarify would have resulted in utter confusion. The

impartiality of the trial judge is reflected in his

charge to the jury (R.568, 569) :

I have sought to avoid any comment which

might suggest my personal views on the weight

of the evidence, the credibility of witnesses,

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the inferences to be drawn, or the importance

of one phase or segment of the testimony as

compared to another, and no comment made by

me was intended to suggest my personal views.

You are not to assume that I have any view

as to the guilt or innocence of the defendants.

The determination of that question is your sole

and exclusive responsibility.

* * * * *

During the course of the trial I had occasion

to ask questions of some of the witnesses. You

are to draw no inference from my questioning

of the witnesses or that I had any point of view

as to their credibility. The Judge has the

right—and, indeed, it is his duty—to see to it

that the facts are clearly presented, and the

purpose was to clarify certain matters in the

case.

CONCLUSION

It is respectfully submitted that the petition for

a writ of certiorari should be denied.

Simon E. Sosevorr,

Solicitor General.

WarkEN OLNEY ITI,

Assistant Attorney General.

BEATRICE ROSENBERG,

JuLia P. Cooper,

Attorneys.

May, 1955.

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