Petitioners Reply — Evola v. United States

if ae Pace ‘iad , | uince-supreiive Wur, Ud.

LE-COPY .. .. =]. PILEO

‘ : ey a

JAMES R. BROWNING, Clerk

—}

IN THE

Supreme Court of the Buited States

Ocroser TiRM, 1959

Vito Gexovese, Petitioner

rs ve

Untrep States oF AMERICA

PETITIONER'S REPLY

Bennett? Boskey,

- 1701 K Street, N. W.

Washington 6, D. OC.

Wiurrep L. Davis,

149 Broadway

New York, New York .

Bot ‘Attorneys for Petitioner

: May 5, 1960 :

Panes or Brnon S. Apams, Wasuiwaron, D C.

F a ghe | Pye

J a deca

iiwigtant PIS

“a a

Dt A TO in Me my,

EN a

-™

es

OM, Re eer

SRE Re MOU RIT) Wim we ETN me o.

© he be z 4

°

INDEX

Cases: : Page .

Briggs v. United ‘Slates, 221 F. 24 636 (6th Cir. 1955) 3

Clapp v. State, 94 Tenn. 186, 30 S.W. 214 (1895) AT 8

Coppedge Vv. United States, 272 F. 2d 504 (D.C. Cir..

71959) NDR AIIM SEA Fe

1957) seuss Poursdigecestiasessuee Srrrertiee

Mesarosh ‘v. United ge OS ey Ee 16,18

Needelman v. United States, No. 278 ..5...0.6sseeves 12

People v. MacEwing, 45 Cal. 2d 218, 288 P. 2d 257

EE. uelvavcesuevees oN shswbad geese eee peaenee 5°

People v. Malizia, 4 N.Y. 2d 22, 148 N.E. 2d 897 (1958) 6

People v. Wallin, 32 Cal. 2d 803, 197 P. 2d 734 (1948) 5.

Stanley v. State, 189 Tenn. 110, 222 S:W. 2d 384 (1949) 8

State v. McLavghlin, 250 Minn. 309, 84 N.W: 2d 664 ©

(TBST) ola ieee cecccceveccssccccevenvecnsoes 6

United Brotherhood; C. & J. v. United States, 330 U.S. -

999 STE YE PETE TO CE Ee Tee ee ee EB

bi ca v. State, 208. Md. 210, 117 A. 2d 549 (1955) .. 7 |

Wi ham v. State, 194 Tenn. 115, 232 S.W. 2d 3 (1950) 7

Wright v. State, 219 Md. 643, 150 A. 2d 733 (1959)... 7

| Orner AUTHORITIES:

California Penal Code, Section 1111 .......:..... .. 5-6

Minnesota Statutes Annotated, Section 634.04 ........ 6

_New York Code of Criminal Procedure, Se tion 399-.. 6.

Texas Code of Criminal. Procedure, Article 718....... 6.

INTHE

_frapeeme Court of the Hnited States =

OctToser TERM, 1959 - a

No. 817

: Pee

Vito GENOVESE, Petitioner

; ce ;

Unitep States or AMERICA

f~

PETITIONER'S REPLY

Several matters are submitted in reply, following

the same order as in the Petition.

I

The first question: presented by the Vetition (pages .

2, 30-34) is whether petitioner Genovese’s right to a

fair trial was violated by the severely prejudicial pub- ~

licity which occurred before and during the trial; and

whether any of the numerous requests for relief on that

account should have been grauted. As to this funda-.

mental question the Brief in Opposition (pages 52-53) —

does not deny that the publicity both ‘before the trial

2

and during the trial was of a severely adverse nature,

containing many prejudicial items which could not

properly have been placed before the jury as*evidence

in open court. ‘‘Had they been offered as evidence in ©

court they would not have been admissible”. Copipedge

‘v. United States, 272 *. 2d 504, 508 (D.C. Cir. 1959).

The Brief in Opposition (pages 52-53) systematic-

ally ignores all the points of difficulty for the Govern-

‘ ment’s position. For example, the Brief in Opposition -

does.not deny—and does not comment on—the impor-

tant role of the then United States Attorney in generat-

ing some of the severely prejudicial publicity which

- oceurred before the trial.

_ Instead, the Brief in ‘Opposition (page 53) advances

an assertion, not established or supported by the record,

that in this present case ‘‘the jurors never read any

‘_ of the prejudicial publicity”’. As tothe prejudicial pub-

licity during the trial, the Brief in Opposition (page

_ 52) further says ‘‘on February 16 and 17, 1959, in re-

sponse to questioning, the jurors indicated that they.

‘ did not read any articles concerning the case (Tr. 2705, --

2861).’’ But.as has-been shown by the Petition (see

page 16 and note on pages A-35 and A-36), in both of

these two instances, which oecurred about half -wuy

’ through the trial, the trial court’s question to the jurors

was confined to. asking whether the jurors had read any

article ‘‘since. we last recéssed’’—thus covering mefely ~

several days' in the course of a three-month trial dv -" -

ing which the barrage of prejudicial publicity we +

continuing phenomvnon.

r 1 The trial hs conten on Pebvuney 21. and then recessed until

Monday, F 16 (App. 31a; Tr. 2693-A).

3

The Brief in Opposition .(pages 52-53) likewise

seeks some support from’a contention that ‘‘Two days

before the case was submitted to the jury, petitioners

refused the Court’s offer to inquire of the jury again

(Tr. 6681).’’ This is a transcript reference to a collo- -

quy which occurred during the course of the summa-

tions, and was occasioned by the appearance of certain

prejudicial n wspaper articles just as the trial was end-

ing. Inspection of the reesrd (Tr. 6680-6683; App.

1030a-1032a) will show that the Government’s. char-

acterization of the transcript is inaccurate ; contrary to

the Government’s ¢laim, the defendants did not' then

‘refuse the Court’s offer to inquire of the jury again”’. .

In any event, by the time this occurred the pgejudice to

petitioner was irreparable, and could hardly have been

eured by interrogation of the jury.

As was stated by the Court of Appeals in Briggs v.

United States, 221 F. 2d 636, 639 (6th Cir. 1955), on |

which the Petition (page 32) relies:

“Although there was no direct evidence in this .

case that the newspaper articles were read by any

juror, it is obvious that one or more of the jurors

‘probably did. In this connection the following

statement from the opinion in» Meyer v. Cad-

walader, supra [49 F. 36], is much in point... ‘It is

idle to say that there is no direct evidence to show —

_-that-the-jury read these articles. They appeared

' _ in the daily issues of leading journals, and were

scattered broadcast over the community. The jury

separated at the close of each session of the court,

and it is incredible that, going out into the eom-

munity, they did not see and read these newspaper

ptblications That these published statements — :%

- were well calculated to prejudice the jury against

the plaintiffs and deprive them of a fair trial is a

proposition so plain that it would be a sheer waste

of time to discuss it.’... eo

=

4 ‘

‘The Government contends that any. prejudice

that might have resulted to the appellant was

waived by him when the trial judge asked his coun-

. sel if he serv the Court to question the jurors as ©

to whether they read the articles and as to whether -

it might have prejudiced them in the case, to which

counsel replied: that he did not believe that ‘that

would be. compatible to the proper interest of the

defendant.’ The trial judge theretipon overruled

the motion for a.mistrial and er with the .

evidence.

&:

“ Any prejudice to the appellant that existed at:

_ that tine was not caused by any aet of the appel,

* Jant.. It eould very well be that questioning the ‘

jury would be more prejudicial than helpful. We ~*

do not believe that appellant was required to agree

to such questioning in order:to preserve his con-

tention that the — was entitled to 4 mis-

trial...

| It =

The Petition (pages 34-39) has presented ‘the strong .

reasons for an examination by this Court, in this ease,

of the question whether i in the federal courts a convic-

tion can be based solely on accomplice testimony in

the total absence of corroboration connecting the de-

fendant with the offense. To this the Government’ 8

only answer is (Brief in Opposition, pages 27-28):

‘*There is no oceasion to consider petitioner Genovese’s”

claim (Pet. No: 817, 34-39) that this Court should re-

examine the rule:in the federal courts that. corrob-

oration of an accomplice’s testimony is not required,

for Cantellops, although not omen pa as to Geno-

vese, was directly or circumstantially corroborated on

so.-many material particulars that the claim must fall

' for want of a predicate.”’ | :

a

\

'

f

' 6

Thus the Government acknowledges—as it must on”

this record—that. Cantellops’ testimony had absolutely

no corroboration connecting Genovese with the alleged

- offense. The Government then says this does not mat-

ter, because there was some corroboration of other —

portions of Cantellops’ testimony.

But as the Petition makes clear, the rule which peti-

tioner urges that this Court:should enforce in the fed-

eral courts ‘is the salutary rule which is carefully :

followed in a large number of the States—namely, that

an accomplice’s testimony must be supported by cor-

. roboration which actually connects the particular de-

fendant with the offense. It is not, as the Government.

seems to assume, a rule that there be merely .corrobo-

‘ration in some other respects, but not tending to

connect the particular defendant with the offense.

The Petition (page 35) cited typical authorities from

. six of the States by way of illustration; the full list of

States enforcing a. similar requirement of corrcobora-

tion is much larger. Examination of the illystrative

decisions cited from those six States, and of the stat-

utes (many of them of long standing) on which some

of tltem rest, shows how firm is the requirement that

. the corroboration must tend to. connect the particular

defendant with th: commission of the offense. Thus

the California decisions, of which People v. Wallin,

32 Cal. 2d 803, 808-809, 197 P. 2d 734, 737 (1948), is ©

typical, compare People v. MacEwing, 45 Cal. 2d: 218,

223-225, .288 P. 2d 257, 260-261 .(1955), embody the -

application of Section 1111 of the. ne Penal

Code, which provides:

“A conviction can not be had upon the testimony

of an accomplice unless it is corroborated by such —

other evidence as shall tend to connect the defend-

Sess.

o o ~

, i: . : E

- a . Yt Ee eld oe, P - “4 »

Jad ae “ant with the mmission of the offense; and. the .

me oe Yi corrobor ation. 18 not sufficient if it merely shows

— &ithe cotamission of the offense or the cireumstances

a: thereof”? . Ricks ae ;

The rinanillbecicicine, of which State v. McLaughlin,

€ 20 90 Mitn. 309, 84 N.W. 2d 664 (1957), is tepid

volve the application of the almost identical Seggion

— 04 of Minnesota Statutes ee mir

{2

that at , corroboration ar ai? tend

to conviet the person charged, and it is not enough if it

¢ ir Guinistances the ‘reof.”’, and that ‘‘The reqtiirement

of § 634.04 ‘that the testimony of an accomplice in crime,

-must find support in and be bolstered by other corrobo-

‘ative evidence is based upon. the theory that such tes-

“timony has been given by one admittedly corrupt and |

o that it is likely to have beer submitted i in the hope of

cle ee ’

ae er Sishilarly, the New York rule india’ in “People \X.

Malizia; 4.N.Y. 2d 22, 148 N.E. 2d 897 (1958), rests. on-

New Yorke Code of Criminal, Procedure, Section 399,

-. une ‘hanged since’ 1852, providing. that **A conviction

cannot he had upon the testimony: ofan aecomplice,

; unless he be corrgborated, by such other evidence as

‘tends to connect the defendant with the commission of

‘the erinie.”’ : d the Texas rule invoked in Goodwin

v. State, 3078 b> 2d.264 (Rex. Cr. App. 1957), applies

en ‘compare ible. Article 718, — Code of Criminal

~ Proe edture.

_ 2

~ . Sunilar provisions will be Sinai in other States!

. which have:a statutory basis for their corroboration

requirement. In most of these States, corroboration

, “A

: a. a v

merely shows the commission of the offense or the’

in- |

e

.

i , ‘ che 4 a 3 a

» which does ‘not tend 40 connect the wattle ular defendant

with the offense will not ‘suffice.

-, Similar results obtain in the two States, Maryland Ps

and Tennessee, which were cited (Petition, pagé $5)

- as. enforcing the corroboration: “rule without the aid

of. statute. —Fhe reasons for. Maryland’s s policy were »

set for thin Watson v. State, 208 Md. 210, 217, 117 A. 24.

"549, 592 (1955) :

ft - “Tt | is a firmly established rule in this State that

| a person accused of crime may not be convicted

-on the uncorroborated testimony of an accomplice.

[citing cases] The reason, for the rule requiring

the testimony of an accomplice to be corroborated |

jis that it is the testimon® »f a person : admittedly

contaminated with guilt, who ‘admits his partici- :

pation in the “crime for which he “particularly

blames the defendant, and it should be regarded

with great suspicion and caution, because other-

wise the life or liberty of an innocent person might

be taken away by a witness who makes the accusa-

tion either to gratify his malice or to shield him-,

self from punishment, or in the hoye of —s 3

clemeney ‘by turning State’ s evidence. “(citing

cases ]’ ” ae

And i in Wrigh it v. State, oP itd, 643, 650, 150 A.2d 733,

737 (1959), which -reaffir ms Maryland’ s corroboration

requirement, the court & Said that ‘*the corroborative - -

evidencé must support the testimony of the accomplice

as to some of the material facts tending to show that

the. accused was either identified with the perpetrators

of the crime or had participated in the commission of

Rak” the crime itself.’ The Tennessee case’ cited (Petition,

page 35), Witham v. State, 191 Tenn. ¥95, 122, 232

S.W: 2d 3, 6 (1950), refers back to twheerlier Ten-

“nessee decisions which define the degree of corrobora-

e ee +d

*

ees ce

» 2 ee ‘ . —_ > . *

, }

fe os g- fF

es eer, ; ° : “ oe

tion required in that jurisdiction as ‘‘some’ other evi-

dence fairly tending to connect the defendant with the

_ commission of the crime, so that his’ conviction will

"not rest entirely upon the evidence-of the aecomplice.”’

Clapp v. State, 94 Tenn. 186, 195, 30 S.W. 214, 217

~ (1895) ;, Stanley v. State, 189 Tenn. 110, 115-116, 222

S:W. 2¢.284, 386 (1949), met

The record in this case squareiy presents the ques-

‘tion whether such a rule, requiring corroboration ac-

_ tually cénnecting the particular defendant with the»

.# ¢ffense, should be the rule enforced in the federal

‘courts. For the reasons ‘stated, this is a question ‘of

widespread signifieance, which warrants review by this

ourt. The Government nowhere disputes that it is an

inYortant and recurring question. The record in the

present case brimgs.to the Court an unusually eom-

_pelling situation for such a review to be made, and ini

any event, for applying such a rule in the exceptional

circumstances of this case as described in the Petition...

ake ITI — a

As to the “Jencks” issues (Petition, pages 26-29, 39-

41), the Brief in Opposition (page 43) argues: ‘‘Aectu-_

ally, petitioner was given all that was due. him under

18 U.S.C, 3590". But that is a question on which, as

x the Petition shows, petitioner is seeking to have’ the

f- ~: trial court’ s, in camera determination subjected to —

‘some appellate review, as contemplated both by the

‘statute and by orderly judicial procedure. The Peti-

- . tionrhas made evident that there appears to have been

a complete absenée of appellate review of whether the —

trial judge’ s rulings-were unduly restrictive.t

The Brief in Opposition (page 43) seeks to justify

: this prmeoe situation by arguing: ‘Since neither

e ; 3 4

. « ’

e ,

a.

the petitioner nor his codefendants raised this issue in“.

the court below, petitioner’s argument: falls with his

_ predicate.” First, as to at least two important reports.

by Agent-Enright, the. issue. was raised sufficiently ex-

“pressly in the Court of Appeals. Portions of ‘the En-

right report of April 14, 1958 and all of the Enright .-

- reports of May 5 and June 30, 1938, were withheld by

the trial judge from the defense (see Petition,

pages 25-27). Petitioner’s Brief in the Court, of Ap-

peals (paggs 26-28 ‘See also pages 10-12 thereof ), refer-

ring to Caritellops’ much controverted changes in testi-

mony in Cantellops’ suceéssive gtand jury appearances, |

expressly complained of the action taken when the trial

court, “‘impounded the above reports [the two. Enright

reports of April 14 and May 5, 1958] and marked them

as Court exhibits without permitting appellant to in-

spect them’; and also argued that the suppression of -

those’ two. reports had: restricted what the. defense on

cross-examination of Cantellops could develop as to the

‘circumstances surrounding Cantéllops’ return to the

grand jury. The point was reiterated in forceful detail

in, petitioner’s Petition for Rehearing in the Court of

. Appeals (pages 2-9).? Since Cantelldps was the prose-

_ eution’s principal witness on whom the whole case

‘turned,’ certainly petitioner is entitled to have’ appel-

The Petition for Rehearing is wet forth in Vol. IV, pages 1-18,

of Certified Record of Proceedings in the Court of Appeals. A

copy of petitioner’s Brief in the Court of Appeals has been lodged

* with the Clerk. : . ;

5 Tn conriection with the question of denial. of access to reports

containing pre-trial statements of Cantellops, the Brief. in Opposi-

tion also contains a miner error which should be correeted. The

Brief. in Opposition says (page 43, note 25) that ‘‘ Petitioner mis-

States the record when he asserts (Pet. No. 817, 27-28)- that the °

trial judge ‘refused to make available to the defense’ six of |

Consoli’s reports, Enright’s April 14, 1958 report and Muglia’s

eeF s :

10

_late review of the: questien: whether under applicable

principles of law’the impounded Enright reports con-

tained material which was not, but should have been,

* disclosed to defense counsel, The appellate court, but

not petitioner's counsel, ‘hag access to the contents of *

the sealed exhibits; and as pointed out in the Petition,

there is no,way of knowing whether the Court of Ap-

-peals has éven looked at the conterts of the reports |

unlgss the Court.of Appeals so states in its opinion or

order. Thus at thé very least, as to two important En-

right reports, there has been a serious failure of the

— process of function properly,

* As to the other impounded reports; even n thou gh ques-

tions as to them may not have been specifically brought

to the attention of the Court of Appeals, the sealed -

exhibits themselves were there for-appellate review and

proper exercise of appellate responsibilities ealled for

, an examination of those reports too by the Court of

Appeals. In any event, in view of the nature of the

_ease, the thinness of the supposed evidence against peti-

tioner Genovese and its entire dependence on the testi- _

_mony of the Government’s principal witness Cante]- _

lops, the central importance of the issues concerning |

Cc antellops’ credibility and Cantel}ops’ various succes- |

.

° a e

two reports.’’ Inspection of the Peiition will show it was stated

there (and correctly so) that the trial judge refused to make

available ‘‘certain portions’’ of those reports. The question pre-

sented is whether, as to those portions which were not made avail-

able, the triai judge's ruling, after his in camera examivation and

the voir @ire,. was unduly restrictive—that is, whether all or part

of the withheld reports.and withheld portions -of-reports should

have been made available; and whether the Court of Appeals has

failed to give—and to: show that it has ee appellate

review toghat matter. i

-

— :

*

sive changes in his story, and the other exceptional cir-.

cumstances affecting the fairness of the trial, it is in the

‘interest of justice that all appellate review of ‘this -

matter should not be dispensed with. . Comparé United

Brotherhood, C. & J. v. United States, 330 U.S. 395, .

411-412... |

The Petition (page 26, note 8) noted that, apart from |

sstateinents by the witness Cantellops, there were also

——— os

See asians / % .

‘The Petition (pages 21-22)° pointed: out/ that on Mareh “18,

~1958—less than four.months before this indictment’ was found

i cn hens long after ‘Cantellops had become ‘‘eooperative’’—Can-

- "- tellops testified before the grand jury to the effect that he had

* never talked to Genovese and had only seen Genovese once -and

that by chance. - At the trial “antellops gave contrary testimony.

The Brief in Opposition, (pages -21-22) says: **Cantellops ex-

plainéd his ‘misstatements’ as to Gigante and Genovese to the

grand jury-as follows (G.J.. 290-291)°’, and then it quotes a tong

passage from Cantellops’ June 25, 1958 grand jury testimony, in

which Cantellops testified he had now decided to ‘‘gq ahead.and

help to the full ®xtent, even knowing the risk that is invélved’’.

The quoted passage was not offered in evidence. at the trial; the:

Government, however,‘has nuw lodged with the Clerk of this Court.

_ the minutes of .Canteilops’ testimoniy before the grand jury (see

Brief_in Opposition, page 3, note 1). In any event, the ‘Brief in

Opposition is inaccurate in suggesting that the quoted ‘*explana-

tion’? was put*forward-by—-Cantellops as an ‘‘explanation’’ of his.

_ change in testimony concerning Genovese. Actually, after making

the statement quoted by the Brief in Opposition, Cantellops in

the entire remainder of this June 25, 1958 grand jury testimony,

then proceeded to deal with Cantellops’ alleged trip to ‘Cleveland

_with Gigante, and various: other matters (G.1. 291-300), without

“a singfe reference whatsoever being made by Cantellops to

Genovese ; and Cantellops was then excused as a.witness (G.J. 300).

N.. until five days later, on June 30, 1958, when Cantellops was

once more recalled to testify again before the grand jury (G.J.

301), did Cantellops for the first time allege to the grand jury

that Genovess had any connection with this alleged narcotics con-

spiracy ; aig Kis grand jury testimony on that date does not show .

any ‘‘explanation’’ by Cantellops as to this last-minute chang

(G.J. 301-312). ra ; | /

2%

..,

‘certain other Government witnesses as to whom there.

‘had been no appellate review of whether portions of

their statements had been: improperly withheld from --

defense counsel. Items withhe@ included three por--

tions of Agent Schrier’s case report concerning this

alleged narcotics conspiracy. . Schrier. was a Federal

Burean. of Narcotics agent. who testified as a-Goyern- -

mént wituess (Tr. 628-751); the three withheld por-’

tions of his case report were marked *for identification

as sealed Court Exhibit Q-1 after the prosecution sug-

gested this should be done ‘‘for-possible appellate re-

view” (Tr. 775-776). As noted in the Petition, there is

‘no indication that any appellate review has been given -

_ to such’ “questions by the Court of Appeals. In any

event, the Government's Brief filed in this Court on

April 4, 1960, in No. 278, N cedelman v. Enited States—

recently argued and now awaiting decision—has made

a concession as to interpretation of the Jencks ‘Act.

which has a bearing on this aspect of the present case.

_ For in’its Needelman Brief (page 12, see also page 20)

the Gov ernment has conceded: ‘Tn our view, when an

agent makes a report to his superiors or fellow agents

Of: what he sees or hears, he. makes a ¢ ommunicatien ta

an “agent of the government, and his regitdl is within

the reach of 18. U.S.C; 3500 if he bee overnment .

witness’. Though counsel do not knw the contents of

the three withheld portions of Agent Schrier’s case re-

port, this would indicite that--even if the Government

sheuld. ultimately prevail in Neédelman on its argu-

ment that. uncommuniec: _— notes of a ig

required to be produce dt ae the agent in become : a

58 Agent Schrier’s testimony, while not in. any way. implicating

Genovese, was an important segmen® in the prosecution ’s effort

to prove the existence of the alleged. conspiracy y.

ee

2 \ | v » So : %

ae Pee ia \l. 1? NY

Se q .

"Government )tiieas=-neverthelehi the withheld ‘por- -

_° tions of agent-Schrier’s case report should not have . |

been withheld here. And at the very least, this matter ~

should be given some appellate review. ' 6 :

3 i 2a ear ine

The Petition’ (pages 43-45).showed how the prose-

~-eutor in his summation. had helped to deprive the de-

fendants of a fair trial, asto a most vital aspect of

Cantellops’ credibility, by telling. the jury that once

‘Cantellops had been sentenced .in the New York State:

court “nobody could get him off of that’’; and accerd-

ingly that Cantéllops could have no motive “to come in

here and make up a story’’—whereas in fact, shortly

after the trial, and “‘at the requespof the United States’.

_ Attorney”? the Governor of New York did commute’

Cantellops’ minimum sentence so that Cantellops could

hbé released on parole.” The Petition urged that the

prosecutor; When he made this argument to. the jury,

must have known that there existed the definite possi-

. bility of executive action. to reduce Cantellops’ sen-

tence; and that the prosecutor nevertheless had effec-

tively diverted ‘the jury from considering this factor

when making their assessment of. Cantellops’ motives

and credibility. es

- The Brief in Opposition (pagés 51-52) asserts. that

The closing argument of the United States Attorney,

- When read in context, ‘does not carry the implications

petitioners place on it.’’ But thee c si

_._aboundantly-elearthat this is exactly what the prose- —

~ - eutor told the jury; the “implications” were. placed.

there by the prosecutor himself: i ;

fo: Vv ° -

“ aa >

As éddition al grounds for vacating the conviction.

er Petition (pages: 47-50 and Appendix D) set forth .

the substance of certain information recently furnished

ta the Government concerning unreliability and pér-—

juriousness of Cantellops’ trialtestimony. “The itenss

related to (1) a major recantation by Cantellops, which

occurred on January 27, 1960, of testimony Canteéllops

had givAn at this trial; and (2) independent new evi-

dence in refutation of important segments of Catitel-

“Jops’ trial testimony—partic wlayly in refutation of

Cantellops’ trial testimony concerning the Las Vegas

matter which, as has been shown (Petition, pages 1-6

through D- -19) gplayed a moet significant roms at the ~

trial.

As to Cantellops’ recantation, ‘the Solic ‘itor General

states in the Brief in Opposition (page 55) that “the -

partial recantation relied upon has been repudiated by

Cantellops as the prodict of duress and bribery”’.*,

' The Solicitor General: having furnished information °

that Cantellops has repudiated the recantation, it would

now appear that, before determining whether the C an,

tellops’ recantation would by itself. be a proper basis

for setting. aside the eénviction in this case, the courts

should examine into the facts relating both to the events ;

pre ceding C antellops’ recantation and to _Cantellops:

repudiation of his recantation. For examination of.

such facets, the appropriate tribunal wouhl be the dis-

a?

® For the Court's information: In a- letter to ‘counsel, dated

April 26, 1960, replying to counsel's letter dated March 23, 1960, -

“the Solicitor General has stated that ¢ ‘antellops’ recantation ‘‘has

been the subject of an extensive investigation. Tf is our belief that

“the recantation, which has been repudiated by Cantellops himself,

‘was entirely false and was procured through duress or bribery”’

cy

= “trict court jn the first instance, as the Sofigitor General —

va

eee ; 15 eek , a

ie)

has indic ated. : r

Ont the other hand, it is submitted that the iindepe nd-

ent new ev idence in refutation of important segments

of ¢ ‘antellops’ trial testimony does constitute a preper

“basis for this Court to vacate the conviction, with:

out requiring the matter to be. first examined by.

sthe district court. The information contained in the

various items constitutes a fore ‘eful refutation of Can-

_tellops’ trial testimony’ concerning ‘a most significant

“phase of the case—a refutation independent’ of any

_ changes, or series of changes, whic h Cantellops mizht

. have made in his story. -_—*

The. Brief in ‘Opposition ( page 59) does not analy ze, f

or comme nt on this independent 1 new evidence, exe ¢

to say by: ray of cone ‘lusion that the Solicitor Gen al

’ is satisfied. ‘that the new materials do. not warrant his

- a

consent to a motion for a new trial”

.

he si ificance of these. itdnhis, which are independ-

i of C anteliops” recantation, has been surfimarized at.

pages D-6 thYough D-19 and D-35 through D-57 of the

Petition, +o which reference is made; / As is there set

forth, the record af this case clearlyestablishes that at

the trial the Las \Vegas matter Aceupied a role of

great importance e, TF ¢ ‘antéllops fied at the trial in his

-. testimony coneerieine the oy Vegas matter,'then this

‘the Las Vegas trip, to w

oy

e

7 For the Court’ s informatioy( In the. letters to cannsel dated

April. 26, 1960 (see note 6, supfa) the,Solicitor General has stated :

“The alfeged discrepancies in the Cantellops’ testimony regarding

¥h I do not in ‘any event aftribute great

significance, can for the most part be satisfactorily . explained.

That explanation will he forthcoming when the matter is properly

presented’ for detepfiination by a motion for a new trial under is

: Rule 33 of the C iminal Rules.”

? :

_

a“

‘ —”

*

et

a

| “Court should | take~ ihe carlicat idienitg” to.

_ set aside the conv iction.. Mesarosh v. United States, °

352 US. 1, 14. .

According to nstattnigs trial testimony, bis March.

oe 1955 trip to Las Vegas and the events immediately pre-

ceding it marked his own entrance into the alleged mgr- _

_ cotics eonspiracy and led to the various other activities

which he claimed he carried on subsequently: on behalf

of the alleged conspiracy. . Moreover, Las Vegas was .

the one trip away from New: York among all. those

Cantellops claimed to pave nmiade—for which ‘there ,

~ existed solid documentary evidence that Cantellops-at

least had actually been physically in the city he claimed $s

to have gone to, Las Vegas, at the time when he claimed.

to have been there on behalf of the alleged narcotics

conspiracy. Accordingly, at the trial the prosecution

used the Las Vegas matter in a vigorous effort to estab-.

lish plausibility for Cantellops’ whole trial testimony.

Likewise, considerable time at the trial was spent cross-

examining Cantellops, seeking to get at the real facts as

‘to the circumstances under whith 1 Cantellops had gone .

- to Las Vegas, the length of time he was there, and what ~

’ he did while-he was there, the location of the rooming

house where he stayed, his. finan ancial. situation .at the »

time, and the cireumstane ander whieh and person

with whom he left ‘Las Vegas and returned to New

York..

According to the information i in the items furnished,

it now would appear that Cantellops’ trial testimony

concerning these matters was filled with falsehoods.

For a more detailed analysis of the refutation, refer-

ence is made to the portions of Appendix D to the

Petition just cited. _AS is summarizett at pages D-17

_and D-18, according to. the informatfon in the items .

\ 7

aa ig

e ee , - 2

‘furnished, it is clear that during the portion of March

1955 which immediately preceded his leaving’ New

York for Las’ Vegas, there were numerous évents in |

e Cantellops’ life—some of ‘them lovadhented: by official

~ court: records—having aff éntirely different nature

from the activities. which he described at the trial; and

throughout the entire trial, these activities were neither

‘= disclosed nor hinted at. ‘More than that, according to

the anformation in’ the items furnished, Cantellops’

" trial testimony concerning the important Las Vegas -

_ Matter was fundamentally~false in -a number of re-

spectSs" the independent, refutation in the ‘items -fur- ”,

* nished now shows that Cantellops was in Las Vegas for.

a period far exceeding. the period he repeatedly testi- ° -

fied to at the trial; and-that, contrary to his trial testi-

mony to the effeet that he had money when he was in

Las. Vegas and also when he left’ Las Vegas and came

back to New York, Cantellops actually. was “broke”

and unable even to pay his very modest. room rent at

the rooming hoitse. Further, Cantellops in’ his trial

testimony told a-very elaborate story abqut how he met

a complete stranger at the Golden Nugget in Las Vegas -

with whom he shared expenses on a drive back to New

* York; and according to the information in the items

' furnished, that story “was fundamentally false, and -

Cantellops was found: at the rooming house in Las

Vegas by Linares, whom he knew perfectly well, and

Linares (together with Stella) then brought Cantellops

back to New York. $5 Ss eens

In addition; according to the information in the items .

furnished, it appears that a considerable amount of .

this reftiting-information concerning Cantellops’ stay

in Las Vegas had been made available before the trial

to the Federal Bureau of Narcotics, in response to in-—

one | eae Oooo ae

, quiries-and ‘requests for doctiments. whieh the Dates

"of Narcoti¢s had made as a part of its official investi-

‘gation. Such information ‘ele: uly stood in refutation of

important segnipnts of Cantellops’ trial testimony a 1d

‘would, have shattered Cantellops’ credibility if dis- .

elosed at the trial. + ¥et, no hint: was given at the trial

that any such information existed.

_ ‘that the information iti the items furnished cannot,

with reason, be considered. as uncovering there: ‘‘dis-

ctepanéies” (see note 7, supra) in Cantellops’ trial

-. testimony. -The record in this case shows unmistake-

* ably that this was a most vital part of the trial, and that

- false testimony. by Cantellops on thege matters should

require in justice that the conviction. be set aside by

this Court. Mesarosh v. United States, supra, 352 US

at 13-14. Indeed, in the present trial this testimony by |

* Cantellops had a far greater impact, and played a far .

:more important role; than could be said in the Mesarosh

case concerning the testimony of the discredited wit-

‘On the basis of the record i in this ease it is submitted

o

ness Mazzei, which there led this Court to set aside the”.

conviction. Comparable: action should be taken here:

CONCLUSION

For the various reasons set forth in the Petition and.

in this ‘Reply, the Petition for Certiorari should be

granted; the judgment of conviction should be re-

versed ; because of the insufficiency ofthe evidence, :

judgment of aequittal should be directad to be entered;

a *

a

: : Cf pit ig . . & ¢

if oes Oates

and the Court should order: such other ‘action, as may

be just under the circumstances.” pea Me

; Respectfully stibmitted,

ea Bennett Boskry,

i * . 1701 K Street, N. W..

; a Washington 6, D.€. —

agi 7 7 Warreb L.- Davis, .1 a=

ies 149 Broadway ae)

‘New York, New’ York

iP ; } ns Attorneys for Petitioner

‘May 5,1960-"" | ‘ ee

ae |

; / :

°° . / - i *. ca

: = . 5 . .

. *.

. ‘ b

Yy