United States v. Ceccolini – Oral Argument – December 05, 1977

Media for United States v. Ceccolini

Audio Transcription for Opinion Announcement – March 21, 1978 in United States v. Ceccolini

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Warren E. Burger:

We will hear arguments first this morning in 76-1151, United States versus Ceccolini, Mr. Allen.

Richard A. Allen:

Mr. Chief Justice, May it please the court.

This case presents two important issues concerning the scope of the exclusionary rule.

The facts in the case are not complicated.

Briefly respondent Mr. Ceccolini owned and operated a flower shop in Tarrytown, New York where he conducted a gambling business by taking bets on numbers and sporting events from customers and turning over the proceeds to one in man named Francis Millow.

In 1973 the FBI conducted a visual surveillance of respondent’s flower shop and concluded that the shop was being used as a drop spot or pick up spot for a numerous operation.

In December 1973 however the FBI surveillance was discontinued, a year later in December 1974 a local policeman officer Ronald Biro, took a break from his school patrol duties and went in to the shop for a cigarette break and went behind the counter and sat down and struck up a conversation with Lois Hennessey, a sales women who had been employed in the shop for about a year.

Respondent was not in the shop at that time.

While officer Biro was sitting down, taking a break and talking to Miss Hennessey, he noticed on top of the cash register an envelope, an unsealed envelope, it had some money sticking out it and apparently for no other reason than curiosity, he looked in the envelope and saw in the envelope money and what appeared to him to be gambling slips.

And he put the envelope back, he closed the envelope and put it back on top of the cash register.

Office Biro did not tell Miss Hennessey what he had seen in the envelope and she testified later that she did not know what was in the envelope.

He did however ask Miss Hennessey, who the envelope was for and she told that the respondent had given it to her to give to somebody later that day, but she did not say who and he did not ask her.

Officer Biro was unaware at that time that the respondent had been under investigation for gambling activities but the next day he did tell his fellow officers at the local police station what he had seen in this shop and they in turn informed one of the FBI agents who had conducted the earlier surveillance that officer Biro had seen some gambling slips in this shop and that apparently Miss Hennessey appeared to know something about it.

Four months later in April, 1975, the FBI agent interviewed Miss Hennessey at her home and the record is quite clear that she freely and willingly undertook to disclose to the FBI agent, her considerable knowledge about respondent’s gambling activities.

Does the record show what led down to interview her in her home?

Richard A. Allen:

No not, it is not entirely clear Your Honor but would appear to be simply the course of the gambling investigation.

I thought it was conceded at least for purposes of this argument that the –what led the FBI agents to interview Miss Hennessey at her home in the Spring of 1975 was a chain of events that stemmed from the officer’s finding that envelope with the money and gambling slips and during a cigarette break, is not that conceded arguendo?

Richard A. Allen:

It is conceded in the sense that we would not contend that he would inevitably have interviewed her but for that incident.

In other words the interrogation by the FBI agents was a fruit of the unlawful search by the officer—

Richard A. Allen:

Innocence, it crops with —

That the unlawfulness of the search is also is given in this case, is not that right?

Richard A. Allen:

That is right Your Honor, it is a fruit of the search in the sense that it is reasonable to conclude that he would not have interviewed but for the fact that the surveillance –

And that is conceded and that is not an issue in this case.

Richard A. Allen:

It is not an issue except that it is also reasonable to conclude that he may have interviewed her later and that reasonable, that conclusion that seems to us to indicate that despite of–-

He might have interviewed her later even when the search had not taken place.

Richard A. Allen:

That is right he might have.

Well, that is one of your arguments, is not it?

That is one of your arguments but—

Richard A. Allen:

Pardon me.

That he would have gotten around her anyway?

Richard A. Allen:

Well, we are not contending that he inevitably would have but that he might have.

Might have.

Richard A. Allen:

It is not unreasonable —

Thurgood Marshall:

But she was an employee of the– -she was one of his employee.

Richard A. Allen:

That is correct.

By the time —

Thurgood Marshall:

If she were driving the store and there is a possibility that somebody might have asked this question.

Richard A. Allen:

A very good possibility Your Honor but we can not prove it for with assertion, we do not know what would have happened if some different —

And by that time of the interview or at least by that time of the grand jury appearance, she was a former employee, was not she?

Richard A. Allen:

That is right, that is correct.

Did the FBI interview any other employees or any other former employees?

Richard A. Allen:

After respondent was indicted but not before.

But not before.

Richard A. Allen:

In May of 1970, four months later, the respondent was subpoena to appear before the grand jury and he unequivocally denied under oath that he had ever taken gambling bets from his customers either for himself or for Mr. Millow or that he ever had discussed gambling operations for Mr. Millow.

Respondent was then indicted for purgery before the grand jury and he waived his right to a jury trial, and he was tried before Judge Gagliardi.

The government’s principal evidence in this purgery trial was a testimony of Lois Hennessey who testified in some detailed about respondents gambling activities over the year of her employment with Mr. Millow.

At the end of the trial, Judge Gagliardi entered a finding of guilt on one count of the purgery indictment against Mr. Ceccolini.

Judge Gagliardi then considered the respondent’s motion to suppress the testimony of Miss Hennessey that respondent had made at the outset of the trial but that judge with respondent’s consent had deferred pending the trial.

The judge then granted respondent’s suppression motion on the grounds that the testimony of Miss Hennessey was the tainted fruit of officer Biro’s search and he then set aside his finding of guilt on the ground that without her testimony there was insufficient evidence to convict respondent of perjury.

Although the Court granted the government’s petition raising two exclusionary rule issues, respondent’s principal argument is that the government’s appeal in this case was barred by the Double Jeopardy Clause.

We believe that that argument, that the respondent’s Double Jeopardy argument is clearly foreclosed by the decisions of this Court in United States versus Wilson and United States versus Jenkins and United States versus Martin Lennon which hold that the Double Jeopardy Clause is not implicated unless there is a possibility of a retrial in the general issue of guilt or innocence.

And that possibility does not exist in this case; if the government prevails Judge Gagliardi’s finding of guilt may simply be reinstated.

Mr. Allen would the Double Jeopardy argument be the same if there are possibility of the reversal and for further findings, for example, to determine whether the trial judge had relied at all on the testimony about the illegal search itself or something like that, would the Double Jeopardy clause — is that a problem then?

Richard A. Allen:

I do not believe so, Your Honor.

The trial judge in this case ruled that without the tainted evidence, there was insufficient evidence of guilt, if for the reversal—

But I am suggesting is, suppose we agreed with them as to some of the evidence being tainted but not all that he excluded.

I can not give you, for example, may be the portions of her testimony that did not relate to the illegal search itself, perhaps that should be received, but the testimony pertaining to the illegal search should have been excluded, may be he relied on that, just to give an example.

Would you then have a Double Jeopardy problem.

Richard A. Allen:

It is difficult to visualize Your Honor, I would not think so, I would think that in fact if it was appropriate if the Court concluded that some of her testimony was admissible but some was not, I should think if they would have be open to the District Court simply, for directions of the District Court simply to consider whether the admissible portion of her testimony as well as the other testimony in the case was sufficient to support a verdict of finding a guilt.

And it will be permissible in your view, to make additional findings as long as there were no more evidence to be heard and said.

Richard A. Allen:

That is correct.

Warren E. Burger:

Yes, you have done that once so with respect to the exclusion of the evidence, we have been talking about, has it not, because having made a decision in general then he reexamined it in light of the exclusion as part of the of the evidence.

Richard A. Allen:

That is correct Your Honor.

Warren E. Burger:

He came to a different conclusion.

Richard A. Allen:

That is right he concluded that the evidence without her testimony was insufficient.

Warren E. Burger:

So that if course — that Justice Steven was hypothesizing were followed for some reason, he would merely repeat that exercise applying it to a different set of the facts.

Richard A. Allen:

That is right, it would be a essentially a question of law for him though it is difficult for me to visualize what portion of her evidence might be admissible if some of that was not admissible but in any event –.

Potter Stewart:

So what did the trial judge precisely do during the course of the trial, he apparently came to the conclusion that the evidence was inadmissible but nonetheless it was a trial proceeding and at the end he found him, he said, I find you guilty on the basis of all the evidence but then he very — immediately thereafter he said however some of the evidence should be excluded and on the basis of the admissible evidence, there is not evidence to prove you guilty beyond a reasonable doubt and therefore I do what — what do he do?

Richard A. Allen:

He set aside the finding of guilt, but I think your recitation is some what inaccurate Mr. Justice Stewart, what he did was he, at the beginning of the trial, at the end he indicated that at the beginning of the trial he had concluded that the search was unlawful.

Potter Stewart:

Alright.

Richard A. Allen:

And that therefore the tangible evidence of the search that is the envelope and what it contained would not be considered by him but he made no ruling until after his finding with respect to whether Miss Hennessey’s testimony should be suppressed of the fruit.

Potter Stewart:

So after his ruling, finding of guilt?

Richard A. Allen:

After his finding of guilt—

Potter Stewart:

But then he said —

Richard A. Allen:

He then considered that point.

Potter Stewart:

However Miss Hennessey’s, very immediately thereafter, very soon thereafter, however I find that Miss Hennessey’s testimony was inadmissible and on the basis alone of the admissible evidence, I found there is insufficient evidence to sustain a verdict of guilt beyond a reasonable doubt and I therefore—

Richard A. Allen:

I therefore set aside the finding of guilt, his procedure in this—

Potter Stewart:

He did find, he did not enter a motion of acquittal.

Richard A. Allen:

He did not enter a formal motion of judgment of acquittal and it is therefore it would be inaccurate if the respondent tries to characterize it as a grant of a motion for judgment of acquittal.

It seems to us it is more equivalent to the procedure that was engaged in the United States versus Morrison where the trial judge after making a finding of guilt, then considered a suppression motion, granted the suppression motion and said I am going to take appropriate action depending on what the Appellate Courts do with my motion.

Supreme Court concluded that his grant on suppression motion was err and he simply then reinstated his finding of guilt, in that case it would not be judgment of acquittal, seems to me that this case is somewhat analogous to that.

Potter Stewart:

And what was the — where is the order appearing in the appendix or it does not?

Richard A. Allen:

There is no order, it was—

Potter Stewart:

What he said that apparently is in the appendix?

Richard A. Allen:

What he said appears in the Appendix of the petition.

Warren E. Burger:

If I were to say that judge was just doing his thinking out loud, his reasoning processes?

Richard A. Allen:

That would be very correct, Your Honor.

Warren E. Burger:

But with this evidence, I would find him guilty, without this evidence I can not find him guilty.

Richard A. Allen:

That is correct Your Honor.

Warren E. Burger:

But he did find him guilty first.

Richard A. Allen:

That is correct.

Warren E. Burger:

He did not say I would, he did find him guilty did he not?

Thurgood Marshall:

Did he release the man?

Richard A. Allen:

He did release the man.

On page 32A of the Appendix to our petition the judge says all of the collaborating evidence particularly the wire-tapped conversion is strong when coupled with Lois Hennessey’s testimony standing by itself it is insufficient to prove Ceccolini’s guilt beyond a reasonable doubt, and he goes on to say that the foregoing constitutes the Court’s conclusions of fact and findings of the fact and conclusions of law, and Mr. Ceccolini was released on his own recognizance.

Thurgood Marshall:

This is wire-taped — is Miss Hennessey involved in this wire-tapping?

Richard A. Allen:

No Your Honor.

Thurgood Marshall:

This is some different then.

Richard A. Allen:

The wire-tap I believe refers to a —

Thurgood Marshall:

This is particularly the wire-tapped conversation.

Richard A. Allen:

I believe that the wire-tapped conversation refers to a conversation, I may be wrong in this Your Honor, but I believe it refers to a conversation between Mr. Ceccolini and Mr. Millow in which Mr. Millow told Mr. Ceccolini that when he goes before the grand jury, just say he does not remember anything, I may be incorrect on that though Your Honor but there was additional wire-tapped evidence in the case which had nothing to do with Miss Hennessey.

You say there is no order in this case?

Richard A. Allen:

No Your Honor no formal written order, simply —

Then why that the Appellate—that the Court of Appeals have jurisdiction there was no order from the District Court.

Richard A. Allen:

Well there was — for purposes of — there was a ruling by the District Court, a grant of suppression motion, it appears orally no –

There is no order nor judgment, Courts of Appeals have jurisdiction to review judgments, orders not just the conversation by District Court.

You should have the content, it is a dismissal of an indictment for there will be a proper appeal.

It is an order of dismissal of indictment that you have to point us to to be a proper statutory appeal, is that not right?

Richard A. Allen:

Well there is no formal piece of paper which he enters a formal grant of suppression motion or motion for judgment, alright.

Thurgood Marshall:

Mr. Allen you told the Chief Justice that all the judge was doing, “ taking out loud” is that what you say?

Speaking out loud?

Richard A. Allen:

And more than that Your Honor, he made a rule —

Thurgood Marshall:

Well you got judgment, speaking out loud a judgment.

Richard A. Allen:

He made a ruling on the record.

Thurgood Marshall:

Where is the ruling, that is the — my brother Stewart is trying to find out.

Richard A. Allen:

Apparently Your Honor, there is no piece of paper.

William H. Rehnquist:

Well look at page of the Appendix which is closest, not the grey one, the brown one, and that which seems to me that may be the closer thing, but it looks like amended order, February 10th, 1976, Court finds a defendant guilty on count one and not guilt on count two. The guilty verdict on count one has set aside bail exonerated,Gagliardi J.

Richard A. Allen:

Thank you, Mr. Justice Rehnquist I think that is the piece of paper from what the government appeals, I apologize.

William H. Rehnquist:

That is the piece of paper that implements his statement, I take it. On page 32A, I find insufficient evidence to say beyond a reasonable doubt the Ceccolini was guilty of count one.

Richard A. Allen:

That is correct.

William H. Rehnquist:

First is his finding and on page 10 is something like a judgment if not a judgment, you say it is a judgment.

Thurgood Marshall:

If there is not a judgment you do not have a case.

Richard A. Allen:

Well, there is no question in this case that Judge Gagliardi gave a the suppression motion and set aside—

Thurgood Marshall:

If there is no judgment the Court of Appeal did not have jurisdiction and we do not have jurisdiction.

Richard A. Allen:

Well frankly, Your Honor, I have to confess ignorance but I do not know whether an appealable judgment requires a piece of paper.

In an ordinary criminal case the judgment is not entered until the defendant is is sentenced.

Thurgood Marshall:

I had not once said a piece of paper, I said a final judgment, and I am still looking for the final judgment.

Richard A. Allen:

There was a final judgment—

Thurgood Marshall:

Is there any case that you have this is a (Inaudible) is a final judgment?

Richard A. Allen:

Well, I may not be understanding Your Honor and I apologize but there was clearly, it was clearly a final judgment on respondent’s suppression motion granting that motion and the consequence of that was setting aside the finding of guilt and it is my understanding if that is an appealable ruling.

Warren E. Burger:

If Court of Appeals thought so did they make any reference to it specifically?

Richard A. Allen:

No Your Honor I do not believe, they had no question that what the District Court did was properly appealable.

Warren E. Burger:

Or at least they seemed to take it for granted.

Richard A. Allen:

That is correct Your Honor.

Unless, if Court has any further questions on this matter, to which I am afraid I can not elucidate you any further.

I have just one factual question Mr. Allen, is it correct that Miss Hennessey’s testimony included testimony describing what the Court assumed to be an illegal search itself , if the testimony on the merits says?

Richard A. Allen:

That is correct, it included testimony I believe about the events on December 18th that there was an envelope that Mr. Ceccolini left for her to give to Mr. Millow but it was not on the merits in the sense that she testified.

She did not know what was in the envelope.

So it was not direct evidence of respondent’s gambling activities, perhaps inferential evidence.

Well the thrust of her —

Well how is it relevant then, what was the relevance of that evidence on the merits?

Richard A. Allen:

It may not have been relevant, arguable it was relevant as creating an inference that it was simply an additional instance of respondent’s activities with Mr. Millow.

The thrust of her testimony was about other events and other activities by—

But the testimony did include the particular — I take it officer Biro, of course did not testify on the merits.

Richard A. Allen:

No Your Honor.

Thank you.

Warren E. Burger:

A note at page 21A before leave this subject, 21A of the Appendix to you petition for cert, United States Court of Appeals has said decreed that the judgment of said District Court being hereby has affirmed for the Second Circuit itself ,there is judgment in this case.

Richard A. Allen:

Apparently so Your Honor.

What precisely, the judgment was that they had in mind, I have to confess I do not know because the judge never did formal —

Mr. Allen, do you attach any significance to counsel statement in colloquy, it was trail judge at page 36 A in which he argued that what the Judge had done, court will provide my client with an acquittal on the merits, which would not be appealable, which would be as a matter of Double Jeopardy law a final?

Richard A. Allen:

Do I attach significance to your honor I understand his argument but I think it lacks merit because it is quite clear and the judge quite deliberately indicated that the procedure he followed was to enter first, a finding of guilt and then to set to aside, even if what he did is setting aside of the finding of guilt could be deemed be an acquittal which I do not believe, it is fair to characterize it.

Even if that were true the Double Jeopardy clause would not preclude the government’s appeal.

Why?

Richard A. Allen:

Because United States versus Martin Lennon, and those case have made quite clear that Double Jeopardy clause is not even implicated unless there is a possibility of a retrial and I think in United States versus Jenkins, the court quite expressly said that when there is a verdict of guilt and after that there is a judgment of acquittal the government may appeal.

Of course the other side I suppose Mr. Allen is a criminal appeals Act, provides if the appeal is from the order suppressing the evidence that has to before trail if that were the basis of appeal.

Richard A. Allen:

I do not believe your honor, in United States versus Morrison there was this motion for —

Well I understand the Morrison, but the statute says an by the United States, relied on the Court of Appeals from decision or order was District Court suppressing or excluding evidence, not made after the defendant has been put in jeopardy.

But it is not on that theory, your theory is it is an appeal from a dismissal of an indictment, that is a statutory basis for the appeal.

Richard A. Allen:

That is correct, Your Honor although, whether it may be deemed formerly a dismissal of the indictment or not I think the court is made clear that the Criminal Appeals Act was designed to give the government a right to appeal in every case where the Double Jeopardy clause was not permitted regardless of the formalism of the judgment.

Well, the Criminal Appeal Act does not go to that because it is just an ordinary general rule quite apart from the Criminal Appeals Act that Court of Appeals has jurisdiction to review a judgment or an order, a final order or a decision something that is decided and that is identifiable and that is the problem here but I think we pretty well exhausted the subject.

Richard A. Allen:

Well thank you, Your Honor.

The first issue that our petition raises is whether the exclusionary rule requires expression of evidence in connection with crimes committed after the evidence is obtained.

That issue is simply illustrated by the facts of this case.

Officer Biro’s excessive curiosity disclosed information about gambling activities incriminating to Mr. Ceccolini, that information was of two types.

First it was tangible evidence of gambling activities, and second it was information that Miss Hennessey appeared to know something about it. Now there is no question in this case that the information, at least the tangible evidence that officer Biro discovered could not be admitted in any prosecution of the respondent for crimes committed before that search took place.

Either gambling offenses or other crimes, the only question in this case is whether the exclusionary rule requires the information that he discovered to be suppressed in the prosecution of purgery that took place 5 months after his search took place and our position is very simple that it does not.

The purpose of the exclusionary rule is to deter police misconduct by taking away their incentives and it is very difficult to see how policemen would have much incentive to search for evidence of a crime that has not yet taken place and may never take place.

And even if a policeman did have much incentive in that respect it is doubtful that the exclusionary rule would provide much significant deterrence.

If a policeman is not going to be deterred from conducting an unlawful search by the prospect of jeopardizing the prosecution of a crime that is already been committed, it seems very unlikely that the prospect of suppressing evidence of a future crime would make him behave any differently.

And in any event, it is clear from the facts of this case we submit that officer Biro was not at all motivated by desire to find evidence of a crime that had not yet taken place or evidence upon his purgery 5 months later.

Officer Biro testified and there is no dispute that he was not even aware at that time the respondent was engaged in a gambling activity.

Well we think the Court of Appeals erred in applying the exclusionary rule to the subsequently committed crime.

The issue does not appear to arise and is not very frequently, where we have only three other cases discussed in our brief, in which the issue is arisen and in all of those decisions, the courts held evidence was admissible The issue that arises far more frequently is a second issue presented in this case which is whether the trial testimony of Lois Hennessey should be considered to be the tainted fruit of officer Biro’s search.

This court is expressly reserved the live witness testimony question in previous decisions and there has been considerable difference in the opinion among the Court of Appeals on the matter. That issue is separate and independent from the first subsequent crime issue, and if our position is sustained it would want a reversal to this case whatever the court decided on the subsequent crime issue.

In this case it appears as a result of the search of the envelope officer Biro learned that Hennessey might know something about respondent’s gambling activity.

He did not find that out for certain and he did not know what if anything she knew about it, but a follow up interview four months later disclosed that she had considerable knowledge about the matter and was perfectly willing to cooperate and testify about it.

The question very simply is whether her testimony, a trial about those matters is excludable as the fruit of officer Biro’s search.

Ever since Nardone versus United States, it has been accepted that at some point along the causal chain of evidence originating from some illegality, the connection between the evidence developed and the original illegality becomes so attenuated as to dissipate the original taint.

The attenuation doctrine is simply an application of the basic theory of the exclusionary rule.

At some point an item of evidence derived only remotely from the original illegality the exclusion of that evidence is not going to significantly deter a policeman.

Richard A. Allen:

So the question in each case is where in that causal chain the attenuation point occurs.

Mr. Justice Frankfurter in Nardone suggested that question be left to the good sense of judges but in close cases judges have equally good sense frequently disagree.

So this court has established a number of guidelines to guide Federal judges in that determination.

With respect to the question of verbal statements made after an arrest for example, this court in Wong Sun versus United States and Brown versus Illinois defined the inquiry as whether the statement is sufficiently a product of free will as to break the causal chain between that statement and the original illegality and is defined as relevant to that inquiry, a number of factors including the temporary proximity between the arrest and the illegality, the presence of intervening circumstances.

The degree to which the police exploited the original illegality and finally the flagrancy of that illegality.

The trouble is that those considerations just do not apply very well in case of considering — in considering whether the testimony of a witness should be deemed to be the fruit of an original illegality or if they did apply they would indicate, they would lead to the conclusion in almost every case we submit that the testimony ought to be admitted.

Whether the testimony of a witness like Lois Hennessey is more approximately the result of officer Biro’s search or is more approximately the result of intervening acts of free will by herself or by the FBI agent who decided to interview her or by the prosecutor who decided to subpoena her.

Those are basically philosophical questions that are un-resolveable and that have very little to do with the purpose of the exclusionary rule.

They do not have much to do with the purpose of the exclusionary rule because essentially they focus on the witness’s state of mind and the circumstances occurring after the police search took place, the policeman’s conduct took place, rather then on those things that might have motivated the police to engage in that conduct in the first place.

Furthermore and in almost every case the decision of a witness to testify is based on a very large complex of motivations and circumstance and an analysis that requires the court to try to figure out the role that free will plays in that decision permits court to come to almost any conclusion that they desire in any given case, as we thank the opinions of Court of Appeals in this area indicate.

Those reasons we think the live witness question ought to be decided as a policy matter.

A policy matter that looks to the purpose of the exclusionary rule and very simply, a question which inquires whether the exclusion of a witness’s trial testimony is likely to provide enough additional deterrents of police misconduct outweigh the social cost of exclusion.

And while there is not much empirical data on the matter, there really is in not in exclusionary rule cases.

We think it is reasonable to conclude that the police have significantly less incentive to engage in unconstitutional conduct, to discover the name of a possibly potential witness than to obtain tangible evidence or verbal fruits.

Would you be making the same argument that Miss Hennessey had told the officers about some tangible evidence or some other evidence that they went ahead and found and then introduced but never offered her testimony?

Richard A. Allen:

No your honor we would not.

You would not why?

Richard A. Allen:

Because what we are focusing on is.

Miss Hennessey voluntary told them about the evidence, the real question is whether they are permitted to use in any way the witness whose identity they have learned from an illegal search.

Richard A. Allen:

That is correct but the attenuation question is whether the evidence we seek to introduce is sufficiently attenuated from the primarily illegality.

Well it just as attenuated if instead of Miss Hennessey testifying she voluntarily tells them about some physical evidence?

Richard A. Allen:

No there are many intervening circumstances that make a difference between her ultimate testimony a trial and whatever she may say to a policeman who comes to talk to her.

Warren E. Burger:

Would there not be a difference the evidence that Mr. Justice White is speaking of, if he had been charged with a substantive offensive of gambling and the evidence that she had pointed to, if I understand this hypothetical where a number of lot of number slips.

Here you have made the point that the crime is a crime committed 5 months later, namely the crime of the committing purgery before a grand jury which no tangible evidences has any relationship.

Richard A. Allen:

Well, a tangible evidence could be used in proving that crime, if the gambling slips themselves were admissible, it would be relevant to proving that crime.

Our point is that apart from the question of whether exclusionary rule are applied to subsequent crimes, it should not apply to exclude the testimony of a witness and we think the testimony of a witness differs for attenuation purposes significantly from either physical evidence or the example of Mr. Justice White posed which is the statement of either the defendant or a witness made in the course of a police investigation.

And the difference is between — the statement problem is a difficult problem and it may be that statements made by witness that lead to further things that those ultimate things would be attenuated under traditional attenuation analysis but we think that there is a difference in kind between trial testimony and other kinds of evidence.

Including statements during interrogation.

Richard A. Allen:

Including statements during interrogation.

On this argument, your argument would be the same if he had been indicted for the substantive offense of gambling and not purgery.

Richard A. Allen:

That is correct your honor.

The record does not tell us whether he was indicted for gambling, was he?

Richard A. Allen:

I do not believe he was, in fact, I am fairly certain that he was not.

In summary we contend that there are two separate and independent grounds warning reversal of the judgment below and a reinstatement of the District Court finding of guilt.

First we think that the courts erred in applying the exclusionary rule to a crime committed 5 months after the search took place and second, we believe that they erred in suppressing the trial testimony of a witness as the fruit of an illegal search.

I would like to reserve whatever time remaining I have your honor.

Those are too quite independent and almost unrelated.

Richard A. Allen:

That is correct.

Warren E. Burger:

Mr. Greenspan.

Leon J. Greenspan:

Mr. Chief Justice and may it please the court.

We have before this court probably one of the most perplexing and intriguing questions.

It has been my privilege to ever come across.

Unfortunately like many simple things, there are very complex and like many complex things they are very simple.

To me it is simply illogical to differentiate between the fruit of the poison tree as being live witness testimony or being physical evidence or being documentary evidence.

To me the analysis is whether or not there was an intervening superseding cause of some vested nature, then there is attenuation, then the evidence whether be live witness testimony or whether it be documents or physical evidence may thus be used.

Warren E. Burger:

Do you think there is any difference?

With respect to the live witness, the live witness may not give any testimony at all even after taking the stand and taking the oath.

Leon J. Greenspan:

No your honor, it seems to me that every witness has an obligation to testify and the court is open to every man and every woman’s testimony.

Warren E. Burger:

No there was a never an obligation to testify but they may take certain steps that will put an absolute barrier, namely, the Fifth Amendment.

Leon J. Greenspan:

That would be the witness and that is where you differentiate perhaps your honor between a witness whose testimony —

Warren E. Burger:

A package of heroin for example.

Leon J. Greenspan:

Of course, a package of heroin is before the court and it can be examined and whether it says what it says what it says or it does not say anything is of course a matter of scientific determination.

Now, there is a question of compulsion, there is a question of abolition and when you have live witness testimony but I think the only differentiation that can be made is the one that has been made by this court and by the other.

Warren E. Burger:

Do not you think Miss Hennessey might conceivable have taken the Fifth Amendment here as at least a peripheral participant in (Inaudible) and better in the —

Leon J. Greenspan:

What matter would have been your honor, if that was the personal right that she had and that would have nothing to do with whether or not the evidence could or should be used against the witness, against the defendant your honor.

My position, I think that the position this court has taken and if it has not taken it should take it, simply that you cannot have any type of attenuation of a live witness testimony merely because that witness as the government would argue volunteers after the discovery.

Now, I do not believe that is a logical position and if the government argues it I should expect this court to reject it out of hand.

I would like the court to examine if it will, what it started out in the beginning to examine the question of appealablity of this so called Judgment or order.

If your honor, this court would please examine the question, I think that what the Second Circuit really had before it was a suppression order, there was no judgment entered, there was no order entered, there was merely a decision by the court.

Mr. Greenspan are you in any position to raise that question not having cross petition for certiorari?

Leon J. Greenspan:

Yes Mr. Justice and I believe I am able to raise it because I believe as I have argued in our brief that the government under any event should be stopped from even exercising this right of appeal because it is not an equitable conduct that created this technical right.

But we have fairly carefully set our rules as to when you have to cross petition in order to raise a point.

You conceivably you can raise a jurisdictional point at any time but ordinarily you can defend the result you obtained in the Court of Appeals on some other ground without cross-petitioning but here if you were prevail the Court of Appeals instead of affirming the judgment of the District Court would have dismissed the appeal which is not the same result.

Leon J. Greenspan:

I would agree your honor, however I think the question of jurisdiction well known is well before this court without any question of cross-petition, just as the doctrine of the inequitable conduct is always before this court or before any court.

Then you have to attack order that I have read your friend, before on page 21 A of the appendix to the petition for cert.

The order of the Court of Appeals it is now here by ordered, a Judge and decreed that the judgment of the said District Court be and hereby as affirmed.

I did not said it is judgment can you go behind that?

Leon J. Greenspan:

I believe we can your honor, if what they call a judgment was in fact not a judgment but even assuming it is a judgment I would not really want this court to —

Thurgood Marshall:

Mr. Greenspan, in the docket entry as which I assume you have a copy of?

Leon J. Greenspan:

Yes I do your honor.

Thurgood Marshall:

On 021976 “filed government notice of appeal from decisions of Judge Gagliardi setting aside verdict on count 1”

Leon J. Greenspan:

Yes, your honor, that is exactly what it says.

Thurgood Marshall:

Is that a judgment or not?

what is it, it is a docket entry?

Leon J. Greenspan:

Yes sir but a docket entry is not a judgment a judgment is a judgment, a judgment is a finding which —

Thurgood Marshall:

When you file a judgment do not you put that into docket entry?

Leon J. Greenspan:

Yes you do but you put it in as a judgment, you do not put it in as a decision if it was –.

Thurgood Marshall:

Then lets, well it says counts found the defendant gave the count one not guilty of verdict on count two, count one is set aside, bail exonerated, Gagliardi J?

Is that an order, is that a admitted order –.

Leon J. Greenspan:

I would say it is a decision your honor, I think that something.

Well, you say it is a decision?

Leon J. Greenspan:

I would say it was a decision whether or not.

You do not need a judgment because 1291 provides for appeal from a final decision not from the judgment.

Leon J. Greenspan:

I would assume your honor that if you want a treat a final decision as a judgment, if you want to find or treat.

Well, you do not have to, the statutes says, decision.

The Section 1291 has nothing to do with this appeal; this is taken under the Criminal Appeals Act is it not?

This had to be dismissal of an indictment.

Leon J. Greenspan:

I would say that it has to be a dismissal, an indictment or an appeal from the judgment of acquittal entered after a setting aside of a guilty verdict.

Well, that is a statutory language that describes that second category of verdict.

Leon J. Greenspan:

What I would like this court to consider is the interesting problem that arises and I suppose it comes into a cross rose between the double jeopardy provisions, the statutory provisions for how a suppression motion should be handled and other constitutional questions.

Leon J. Greenspan:

The simple answer to it is that this court should take the position that Judge Gagliardi was under an obligation to decide the motion for suppression before he decided that the guilt or innocence of the defendant.

Now, the practice requires, rule requires it and only for good cause shown should he have permitted this question of the illegality of the search or seizure to come before him along with the trial.

Are you saying he should have decided it during the trial or before the trial?

Leon J. Greenspan:

I say first he should have decided it before the trial, if he did not do it before the trial despite being urged to do so, he was obligated to find it before he made a finding of guilty.

Well, why would any judge having read Jenkins and Wilson decide a suppression motion during the trial which cuts off the government’s right to appeal.

I would not think he would decide either before the trial or after the trial since the government has the right to appeal on those cases and you have a right to seek whether the District Court was right on its decision.

Leon J. Greenspan:

I do not find any holy in the technique, anything holy in the technical right of the government to appeal where the government itself delays unduly giving the information to the defendant, so he can comply with rule 12 so he can make in a normal course of things, a suppression motion.

I think that if the government does this, goes to this delay in order to give itself a technical right of appeal and I think that if the district court judge goes along with this then you have inequitable conduct which should in my judgment stop the federal government from exercising its technical right of appeal but what is even more important is that there was a motion made to dismiss at the close of the prosecutions case.

At that point Judge Gagliardi in my judgment, was under an obligation to determine what evidence licitly was before him, if he was going to determine then that the only listed the evidence before him was insufficient to convict the defendant, then he should have it that time entered a judgment of acquittal, at that time jeopardy would have attached, at that time the government would have no right of appeal by merely through a nicety or technicality reserving this right, reserving it until after he has heard all of the evidence, reserving until he has weighed illegal evidence in determining a verdict of guilty, then determine to set it aside simply because.

Thurgood Marshall:

This was a court trial without a jury.

Leon J. Greenspan:

Yes but that was unfortunately.

Thurgood Marshall:

And that had no significance to —

Leon J. Greenspan:

No sir, because Judge Gagliardi himself said.

Thurgood Marshall:

You do not expect me to take the same position you do or not do?

Leon J. Greenspan:

Excuse me, no your honor.

Thurgood Marshall:

I recognized a difference between the judge trial and the jury trial.

Leon J. Greenspan:

But Judge Gagliardi –.

Thurgood Marshall:

Permit me if I May —

Leon J. Greenspan:

I am sorry excuse me your honor.

Your honor please I would say this Judge Gagliardi said he would have permitted the same illegal testimony, and go to the jury and then if the jury had convicted he then would have set it aside simply because he wanted to create or to preserve a right of appeal in the government, a right of appeal that the government could have and should have exercised pretrial, if it had done the right thing, the equitable thing, the fair thing, that is to inform this defendant that there was a possibility of an illegal search and seizure, so he could raise it before trial so that the court could determine it before trial, so that the defendant would not be put in a position, we had away the jury trial because of the specter of having, a lot of prejudicial evidence come before a jury, before he would have had an opportunity to examine in to witnesses, before he would have an opportunity to determine just how and what matter he should properly defend his client.

Now, I don’t believe that the government should take advantage of its own wrong doing, this court has many times said that a wrong doer should not profit by its wrong doing and this case it is the government who was the wrong doer and in this case it is the government that seeks the profit by its wrong doing and it will if this court will permit it.

Now, I would like to ask this court to consider another issue here, and that is the question of the other side of attenuation.

In other words, should an individual who finds himself in a position of knowing that the government has illegally obtained evidence, should he be with impunity able to fly in the face of that that evidence and commit subsequent crimes, I believe not and I do not intend to argue that point; what I would argue is simply this and I think all of the cases that have been considered have held this.

That where a defendant has no knowledge of the illegality and then he goes before a grand jury and then the prosecutor does not tell him that he is a target and then the prosecutor does not tell him that he has any kind of illegal evidence and then this defendant is not placed in the same position as the individual who is aware of the fact there was an illegal search and seizure, then despite that such as in the income tax cases files a fraudulent return or in the other fraud cases commits a fraudulent act relying of course, erroneously, on the fact of that the government can not use that testimony or that illegal evidence in order to convict him.

Here you had a man who was ingenuously advised by the United States Attorney against all the rules at a Second Circuit that he was not a target when in fact he was, he was never told that they had seen Mrs. Hennessey and had this illegal evidence when in fact they had that illegal evidence.

Thurgood Marshall:

Well, if he could have solved all of it by sealing up the envelope.

Leon J. Greenspan:

Yes your honor, they could have solved all of that by sealing up the evidence.

Thurgood Marshall:

I mean he could have, your client.

Leon J. Greenspan:

Your honor he could have solved it by not being involved in anything.

Thurgood Marshall:

That’s right.

Leon J. Greenspan:

But the fact is he was.

Thurgood Marshall:

Or by telling the truth.

Leon J. Greenspan:

Or by telling the truth but the fact is that he did not tell the truth because the question is what did he know or when did not he know as to what the truth was or what the evidence was.

Now, I am not trying to justify or excuse purgery but what I am saying is that there is a certain amount of due process, fair play inequity in our court procedures and if the United States Attorney who is not only the prosecutor but the protector of the innocent, does not the follow the rules then who will.

I believe that the government is here to protect us from each other and the courts are here and should be here to protect us from the government and in this case it is the defendant who needs protection from the government because the government in this case is erred.

What rule did the prosecutor not follow?

Leon J. Greenspan:

He did not follow the time honored rule in the Second Circuit which said that when an individual is called before a grand jury, he is given the information as to whether or not he is a target.

But that is the Second Circuit rule.

Leon J. Greenspan:

This is the Second Circuit rule, I am not saying, it is a constitutional rule I am saying that is the rule that was followed and has been time honored in the Second Circuit.

I know this court has had a difficult time in its decision and Mandujano, I hope I am pronouncing it correctly, where as to whether or not these questions should rise to constitutional issues, I am not reaching that point, I am merely saying that as far as the rules that we were operating under, as far as the Second Circuit was concerned that was there obligation, the Second Circuit recognizes in US v. Jacobs and whatever this court did or would do with that case, I am not arguing as the law, I am merely arguing that if there is a procedure it should be followed in order that the government is just as fair as it can possibly can be.

You referred that, that is a time honor rule, is that a rule of the United States Attorneys office or rule of the Court of Appeals or what?

Leon J. Greenspan:

I believe It is a rule of the United States Attorney’s office which has been approved by the Second Circuit.

Why did not the Court of Appeals go off on that ground here?

Leon J. Greenspan:

Because I do not think it was even argued.

You did not argue it.

Leon J. Greenspan:

No, I did not have the privilege of arguing that case.

Do you think you have the privilege of arguing it here then?

Leon J. Greenspan:

I do not know but I am going to argue it and if this court will accept it then I have the privilege.

Now, there was a couple of errors that my brother, the solicitor general made to this court and I would like to point them out first of all, officer Biro did testify.

And did not the judge say he was not considering his testimony on the merits?

Leon J. Greenspan:

No, he did not say that at all.

What he did say is that when you take away Lois Hennessey’s testimony, officer Biro’s testimony coupled with all the other evidence was insufficient to convict the defendant.

The other point, I would like to bring out to the court is that there was a wiretap in this case and it was incorrectly pointed out to this court by the solicitor general, I know was innocent because he said he was not aware of that; the wiretap was one that was conducted by the Westchester County District Attorney’s office as a result of a wiretap order by the Honorable Isa Gruben (ph) who is the Administrative Judge now in Westchester County and there was a intercepted conversation between Millow and Mr. Ceccolini concerning a conversation which could be and probably would be interpreted as a inculpatory.

However, that wiretap was not brought into the case before the Mr. Justice Gagliardi or before the Second Circuit.

Thurgood Marshall:

It was before Justice Gagliardi; Judge Gagliardi mentioned it in his order.

Leon J. Greenspan:

He mentioned it but I do not think he relied on that sir.

Thurgood Marshall:

How could he mention if he did not about it?

Leon J. Greenspan:

Excuse me, I did not mean to imply he did not know about, I just did not believe it was relevant in the issue.

Now, we turn to a question of double jeopardy, I heard the Solicitor General argue quite strenuously for the fact that you can at any time appeal from any type of an order which — the effect of which will be if you win the appeal merely to reinstate a guilty verdict and he says that even if the court would make further findings that still that is all right because all you are going to do reinstate a guilty verdict.

If that would be the rule that this court sets, I would disagree with it wholeheartedly.

Leon J. Greenspan:

I would argue and I would ask this court to adopt a rule which says that if the court whether it is this court, the Second Circuit or the lower court whoever is given the task of making further findings is obligated to make factual determinations of any kind and it defends the rule against double jeopardy and I would not permit, if I had the power to allow the court to make further findings, I believe and that the solicitor general is accurate when he says that if all the court has to do without making any further findings of any kind is to reinstate a guilty verdict then of course that the order is appealable or the judgment is appealable without further to do when this court has said so but if It is going to add on or wander away from, melt away the question of do you or should you make further findings then I would strenuously argue that it should not be permitted, no further findings otherwise its double jeopardy I believe that is what the case is saying.

I would like just a moment to address something which I do not believe has ever then fully argued before this court if it has been argued at all and that is I believe this court should adopt the Doctrine of Equitable Estoppel.

I believe that the foundation of every exclusionary rule, the foundation of every rule which says evidence can or cannot be admitted and that one can or cannot exercise a privilege or a right is based upon the Doctrine of Clean Hands that the wrong doer should not profit by his wrong doing that one should not walk into court with unclean hands.

I believe this court in Harris v. New York which was argued unsuccessfully unfortunately by my former partner and it is a matter of the interest argued successfully by the District Attorney who later became my partner is simply that one who does come into court with unclean hands, that is one who is perjurer, that can not take advantage of that purgery by getting on the stand and perjuring himself a no, that you can use illegal evidence to impeach him, if that be the case I would argue more strenuously that where the government is a wrong doer, where the government makes a mistake where the government does something to create something which it really has no right to then under that set of circumstances the government should be estopped, the government has been estopped in civil cases involving aliens and the tax cases and other situations.

I believe it to be the foundation of all of your doctrine of exclusionary rules and I would ask this court to adopt it in this case to prevent or estopp the government from exercising any technical right of appeal and saying that from this moment on the government has to act is a civilized human being just as everyone else.

Warren E. Burger:

If after the officer has left the florist shop that Mrs. Hennessey got a little bit nervous and thought she might be gone into this unlawful conduct of her boss, if then she had gone to the telephone, called the FBI and given them all the information that she gave the agent some months later.

Would you be making these arguments?

Leon J. Greenspan:

I do not believe so your honor because I believe what that would be then is that she went there before the agent who discovered her went to government and recorded her, I think then he would have truly your application of Doctrine of Intervening superseding clause.

But otherwise I say no, it is a close question I do not say that it is.

I also believe it to be a factual question and I do not think that there is any evidence on the record at this point either way.

Thurgood Marshall:

Imagine under your estoppel that once the policeman went in there, looked at an envelope your man could never be be prosecuted by anybody for anything?

Leon J. Greenspan:

No sir.

Thurgood Marshall:

I hope not.

Leon J. Greenspan:

No sir I would not even to try to argue that, only for what the fruit of this illegal search would produce in the way of evidence, I do not say he could not be prosecuted only that what they discovered could not be used against him.

Thurgood Marshall:

She was a science teacher, why is she studying police?

Leon J. Greenspan:

After the fact Sir, not doing, I do not believe she was studying there while she was working for him, she went to study that after she left this employer.

Thurgood Marshall:

Before she testified.

Leon J. Greenspan:

That is correct, that is correct.

Thurgood Marshall:

She was engaged in something that was bad and he was too.

Leon J. Greenspan:

Yes sir, could have been, but they had already reported it when the government knew all about her before she had this change of heart.

Thurgood Marshall:

What is that in the evidence to say that the government used that as basis for talking to her?

Leon J. Greenspan:

What sir, the fact that office Biro reported that to the authorities?

Thurgood Marshall:

What else?

Leon J. Greenspan:

That is all Sir, that then I know.

Thurgood Marshall:

And four months later they talked to her.

Leon J. Greenspan:

Yes sir.

Thurgood Marshall:

And you got a connection four months.

Leon J. Greenspan:

Yes sir because I think you are under the Silver Platter Doctrine, the left hand of government should know what the right hand is doing and if it does not, I do not think the defendant should suffer because of it.

It ’is not an easy decision.

Mr. Greenspan you started out on the merits by suggesting that the only test should be an intervening cause kind of test and in this case the trial judge said that it was not only possible but even probable that the FBI would have interviewed Mrs. Hennessey later in the course of the gambling investigation in any event. Would not probability that the evidence would have been disclosed any way be a sufficient intervening cause, should not be?

Leon J. Greenspan:

I am not saying that your honor; I think that doctrine has been rejected by courts before it is being speculated. I do not think you can determine or go off on hypothetical whether they would have or they should have or could have; the fact is that they did not in this case.

Besides, I believe the solicitor general has treated from the inevitable discovery of argument and it does not urge to this court.

Of course this court is not bound the fact that the solicitor general does not urge it but as a matter of logic I just don’t think it should be in this specific situation, not that it is an argument that could not be raised in a proper case, I do not believe this is the proper case.

But if it is not done in terms of degrees of probability how would you phrase the intervening cause, I mean you suggest intervening cause should be the test and I am just wondering if that is really any different in the kind of sort of probability test.

Leon J. Greenspan:

Well, I think the question of forceability the famous is case in New York decided many years ago in Palsgraf v. Long Island Railroads sets forth the question forceability, if its forceable then there is liability, if its unforceable then there is not liability.

I know its an over simplification but I think you have to make an analysis as to whether or not what happened, in the intervening time superseded what happened before hand so as to be independent and I do not think that is what happened here, I am not saying it can not happen or that you can not get a set of facts in which something like that will arise, I suppose it is a close time element that maybe that would be more persuasive but we do not have this type of analysis in this case.

Thank you.

Warren E. Burger:

You have just one minute left Mr. Allen.

Richard A. Allen:

Thank you, your honor.

I would like to address the point that Mr. Justice Stevens made that I did not answer very adequately with respect to the right of the government to appeal expression, motion and the requirement that there be a judgment.

18 U.S.C. Section 3731 appears to me to permit a government appeal from a decision granting a suppression motion even after a finding of guilt or a verdict of guilt has been entered.

The statute says an appeal by the United State shall lie to Court of Appeals from a decision in order of the – from a decision or order of a district court, suppressing or excluding evidence, not made after defendant has been put in jeopardy and before the verdict of finding on an indictment or information.

The language would seem to imply that if the suppression order is made after the verdict or finding of guilt, it may be appealed, if the decision is a made and there is not in the statute any requirement of that decision on a suppression motion being the form of a judgment.

Section 3731 of Title 18.

Richard A. Allen:

That is correct.

Your point being that if the Congress had intended only pretrial motions prior to jeopardy to be appealable they would not have gone ahead and added the phrase and before the verdict or finding of an indictment.

Richard A. Allen:

That is correct Your Honor and in Morrison (Inaudible) I do not believe that there was what you would call a judgment in the case, that was simply a decision granting a suppression motion.

Thurgood Marshall:

But you agree that he had admitted it was a judgment.

Richard A. Allen:

I would argue that it was.

Thurgood Marshall:

Second one on writ said that, that is what we are appealing.

Richard A. Allen:

Yes your honor I would argue that.

Well, Just so I am perfectly clear on the government theory, the theory then is that if the appeal is taken pursuant to the second paragraph of the 3731 rather than first paragraph.

It is the paragraph in which suppression motions are discussed rather than dismissal and indictment.

Richard A. Allen:

I would not want to limit it to the second paragraph your honor because I think it could be argued that the effect, if we needed to argue, I think we could argue that the effect of Judge Gagliardi’s decision was a dismissal of the indictment.

I understand you could but then this language you read to me would not be relevant under that theory.

Richard A. Allen:

Would not be necessary.

Need to rely on that.

Richard A. Allen:

Would not be necessary, I would rely primarily on the second paragraph and I believe that the language clearly gives us a right to appeal.

Warren E. Burger:

Unless you do not abandon what the Court of Appeals said that 21A of the appendix to your petitions, that this was a judgment.

Richard A. Allen:

I do not abandon that your honor, I think that they correctly determined that they were reviewing a judgment.

Warren E. Burger:

Thank you gentleman.

The case is submitted.