Desist v. United States

PETITIONER: Desist
RESPONDENT: United States
LOCATION: Washington Monument Grounds

DOCKET NO.: 12
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 394 US 244 (1969)
ARGUED: Nov 12, 1968
DECIDED: Mar 24, 1969

Facts of the case

Question

Media for Desist v. United States

Audio Transcription for Oral Argument - November 12, 1968 in Desist v. United States

Earl Warren:

Number 12, Samuel Desist et al., petitioners, versus United States.

Mr. Glasser.

Abraham Glasser:

Your Honor, this is my colleague, Mr. Markowitz.

Earl Warren:

Yes.

Abraham Glasser:

It's strong.

Earl Warren:

It's strong.

Abraham Glasser:

Mr. Chief Justice and associate justices and my -- Mr. Beytagh.

This is-- the grant of certiorari here is to review a judgment of the Second Circuit which affirmed a narcotics conviction, a rather notable narcotics conviction, as I think Your Honors know.

It involved the largest shipment of pure heroin ever captured in this country, familiarly known as the Trench Deep Freeze case.

The narcotics were brought over by whoever brought them, secreted in a hollowed out deep freeze structure.

Now, our men, our petitioners all have very heavy jail sentences.

The shortest sentence is 10 years, that's Sutera.

Dioguardi has 15 years, Desist has 18 years, and the two French defendants, Nebbia and LeFranc, have 20 years and a $5,000-fine.

I'm purposely emphasizing the sentences and another factor, which I will mention in a moment, at the outset.

I'm emphasizing at the outset for reasons that I will mention momentarily.

These men have now served about, let's see, Nebbia and LeFranc have been sitting in jail since about the end of December of 1965, the year that this situation was broken open.

So they're in now nearly three years, and the other-- the others, that is Dioguardi, Sutera, and Desist, were out on bale for awhile and then they've been in for a little over two years.

The Government has the heroin.

This heroin was not marketed.

The Government has the batch.

And, the Government now has, paid out by these men, a certain amount of jail service.

I'm mentioning that because we all know that, in the briefing over the question of retroactivity of Katz in this case, the government has expressed concern that there will be something alarming to the sense of law enforcement in giving this type of defendant the benefit of a case like the Katz case on retroactivity.

So, I'm saying that it isn't, all together, a dead loss in realistic down the earth day to day law enforcement policy terms.

The government has the heroin and the men have served-- well, they've all already served a good bit of jail time.

Abe Fortas:

Well, is none of this stuff marketed?

Abraham Glasser:

I beg your pardon?

Abe Fortas:

Was none of this heroin marketed at all?

Abraham Glasser:

No.

The entire-- in fact, Your Honor, the deep freeze-- this is according to the government's theory of the case, the deep freeze was received in the hands of a fellow name Condor, an army warrant officer in Georgia.

He, according to the government's theory, was told one night to unpack it and he had it unpacked and, in suitcases, and felt very gingerly about it and want to be rid of it, and he was rid of it pretty quickly -- the police came and got it.