United States of America Ex Rel. Francisco Castillo, Relator-Appellant v. Edward M. Fay, as Warden of Greenhaven State Prison, Stormville, New York
350 F.2d 400
2d Cir.
1965
Check Treatment

*1 ORR, ELY, Before MERRILL and Cir- Judges. cuit

PER CURIAM.

We find no error in the instructions

given charge when the is read as a whole.

Accordingly upon judgment appeals both

is affirmed. UNITED STATES of America ex rel. CASTILLO, Francisco Relator- Appellant, Polsky, City (An- Leon B. New York thony Marra, City, F. York New FAY, Edward M. as Warden of Green brief), appellant. for Prison, Stormville, haven State New York, Respondent-Appellee. Guggenheim, Malvina H. Asst. Dist. City (Frank Atty., Hogan, New York S. No. Docket 29185. Atty. County, Dist. for New York Appeals

United States Court of Uviller, Atty., H. Richard Asst. Dist. Second Circuit. City), appellee. New York Argued June 1965. KAUFMAN, MAR- Before HAYS July 28, Decided 1965. Judges. SHALL, Circuit Judge: HAYS, Circuit relator-appellant Castillo was tried and convicted in Newa York state court sale for the unlawful impris- of heroin. He was sentenced to period onment for a of from five six years. affirmed appeal. People Castillo, 16 A.D.2d (1st (3-to-2 Dep’t) N.Y.S.2d decision), mem., aff’d 12 N.Y.2d N.E.2d 233 N.Y.S.2d 938 State court remedies were exhausted the denial another New York petition corpus. for a writ of habeas A petition in the federal district court was *2 might transcript point, three to two on divided on the basis denied ordering af- a records. We well have been state court and other new trial. firm. rejected issues were raised Two But error the state whatever appeal: (1) are renewed on

below and failing may have committed in prosecutor’s conduct grant trial, the defect a new jury in the and his summation before proportions. did not attain constitutional deprived of a fair state court Castillo prosecutor’s not create The conduct did process clause trial in of the due violation prejudicial appellant so situation (2) Amendment; of Fourteenth trial within that he was denied a fair under whether Castillo’s meaning process of the due clause Amendments and Fourteenth Fourth of the Fourteenth Amendment. at his trial were violated reference speeches of counsel de- evidence found in course apparently provoked fendants state- which, claimed, Attorney ments the District Ohio, under the rule U.S. v. 367 petitioners complain. now 643, 1684, 81 6 L.Ed.2d 1081 S.Ct. process This does raise a due (1961). question. I. said, recently “As ‘it is we have points asking We have considered each of the too much that the burden showing appellant made conduct essential unfairness be weight- at the The trial. sustained him who such claims prose- injustice points iest of these concerns the re and seeks to have aside, cutor’s remark in his summation concern- set sult and that it be sustain witness; principal government speculation ed not as a matter of ” reality.’ but as a demonstrable very “The issue in im- York, Buchalter v. 319 New U.S. relatively portant, simple but it is a 427, 431, 1132, 1129, 63 L. S.Ct. 87 liar, issue: Is Schiano Detective (1943), quoting Ed. 1492 Adams v. telling is he or truthful? If he is McCann, 269, U. S. ex rel. 317 truth, your then it is sworn ob- 281, 236, 63 268 87 L.Ed. S.Ct. ligation liar, to convict. If he is a (1942).1 By acquit. your must ver- judge dict will whether Detec- prosecutors Conduct of state which it honest, faithful, tive Schiano is an preju was contended was unfair courageous public servant, wheth- consistently dicial has held col on perjurer er he is a and a cheat who lateral attack in the federal courts to fall belong does not force constituting proc short of of due lack belong any public or does not See, g., Teets, ess. e. Burwell 245 v. 237-238, service.” 16 A.D.2d 226 154, (9th Cir.), denied, F.2d 168 cert. N.Y.S.2d at 788. 896, 271, 355 U.S. 2 78 S.Ct. L.Ed.2d 194 language distorts (1957); the issues of United States ex rel. Burke v. the trial and is therefore to the Denno, offensive (2d Cir.), 243 F.2d 835 cert. proper conduct of the trial. It can hard- denied, 849, 76, 355 U.S. 78 2 L.Ed. ly excused, argued, by as is remarks affirming (S.D. F.Supp. 2d 58 498 of defendant’s counsel which called N.Y.1957); Sampsell People of State “provocative.” re- California, (9th Cir. marks should not have been made 1951), and the denied, 929, cert. 342 U.S. Appellate Division, New York 369, (1952). See, 1. For a (1942) discussion of the summation com (Lehman, J., concurring), plained People Buchalter, aff’d, see 1129, 319 U.S. 63 S.Ct. L. 181, 228-230, N.Y. 45 N.E.2d 249- Ed. 1492 Dickson, 856, hanger Pike stocking, and a silk instruments (9th 1963) 858 n. narcotics, cert. were found. 12 The ob- ruled defendant’s jection L.Ed.2d 179 “opened that defense counsel had by asking the door” whether narcotics

II. found. had been *3 argues appeal appellant point On this Petitioner’s second relates to the that, testimony concerning tactics since it was the admission of ma- necessary which made it terial found a search of Castillo’s question to ask the room. The not contest State does question open- did not claim that have effect the search was conducted in ing prosecution for intro- violation of the door Castillo’s Fourth and Four- ducing rights. further the search evidence on teenth Amendment is The issue whether, and that the introduction of such evi- where a state court rights collaterally appellant’s court, is dence violated under attacked a federal Mapp Mapp Ohio, supra, prop- the rule of the case. rule of is erly applicable to a situation in which Although very affirm on this we would admissibility vel non of the chal- door?”, narrow issue “who lenged question evidence is so close a States, 347 74 Walder v. United U.S. to render the correctness either an- (1954); United L.Ed. extremely swer doubtful. We believe Rivera, Cir. States upset that if we are a state conviction very 11, 1965), question June is a grounds ought on constitutional we strength one, close dissent’s as the be able to find a more robust basis arguments indicates. doing present so than the case affords. It the time of should be noted that at At the state court trial on direct exam- illegally April Castillo’s trial police following ination of a officer the seized could still be admitted evidence place: took Colorado, in the state court under Wolf v. “Q. [by prosecutor] Did bring prosecutor did not apartment? A. knowing up the violation of Yes, gave we it a search. rights, since Castillo’s constitutional “Q. anything? Did A. Ohio, supra, decided Yes. Indeed, Mapp rule until June 1961. applicable is be- Castillo’s *: Your “[Prosecutor] appeal cause the final decision of his witness.” postdated Mapp. the decision in argues exchange Relator Walker, 1731, p. Linkletter v. left the infer 1734 n. 5 incriminating evidence had been found purpose put We do not believe that the defense counsel in the difficult position is moving rule of v. Ohio of either to strike the holding eliciting well served in such a doubtful or from the witness attack, exculpatory case and on collateral that con- might allay rights infringed, jury’s suspicions. stitutional hold- when the contention on which the thereupon Defense counsel asked on rejected has been based cross-examination whether narcotics appellate courts, two state and the found, question were to which the an- the issue district court. Where negative. swer was illegal of whether or not fruits of an prosecutor, On redirect over de- search can be used turns brought objection, prosecutor overstepped fendant’s out the bounds subsequent decision, appellate the course of the search a wire clothes wheth- gave opposing counsel ex the tactics of See United rel. Townsend v. er States (7th so, Ogilvie, are not him leave to do taking likely the chance deterred to be finding useful Affirmed. search. duty Judge KAUFMAN, (concur- of the federal is the Circuit necessary vindicate, ring) courts to where : corpus relief, constitu habeas Hays fully agree brother rights; not, our tional summation, prosecution’s es- supervise function to state courts together pecially de- viewed when ju procedure those statements, provocatory fense counsel’s proce dicially unless administered funda- render Castillo’s trial did not applied in the state court dure and rules mentally Amend- Fourteenth unfair fundamentally to under are so unfair as I am also in Due Process terms. ment *4 guarantee.2 Where mine complete that the conclusion accord with highly error, any, case, if is a in this error, any, in refer- if committed practice, technical error of local trial it ring impermissible too search was inappropriate occasion would seem an propor- technical to rise to constitutional power Great of the of the the exercise tions, particularly considered when Writ. light objective the exclu- of the which My sionary con- Guerra, rule seeks to achieve. 334 F.2d In United States v. currence, on a (2d rests broader Cir.), cert. dynamics (1964), trial consideration of L.Ed.2d reviewing therefore, and, I deem we are we said: briefly my appropriate set forth in- it day certainly not come has terpretation of what occurred. when courts will a convicted set reason other criminal free for no direct exam- At the conclusion practice arresting detective, than some he that was ination of the prosecution wholly unrelated if he Castillo’s furnished asked searched — anything, meet apartment the conviction itself —did not re- if he found and approval. affirmatively questions. un- sponding with their If that to both day arrive, began happy immediately should ever his Defense counsel failing request cross-examination, that law and often-heard criticism lawyers only judge in ‘tech- not to are interested trial admonish the ring truth, have a nicalities’ will inferences from this draw may rightfully speculate be ac- found. courts or to what was about exalting Moreover, cused of form above a mistrial sub- he did not move for stance.” answers.1 or to strike the detective’s advantage short, 2. The standards which we determine im- rors. small compel properly review of criminal trials direct obtained does objection admissibility gross disadvantage whether an to the exaction improper particularly penaty, been waived has where a tarnished objectant’s prior use of similar testi- the inevitable result.” IMH. verdict is mony Wigmore, generally set forth United States 15§ Evidence Beno, (2d Supp.). Pocket ed. 1940 & 1964 said, reversing As we a federal Surprise criminal conviction: omissions 1. cannot excuse the prior “[I]t makes little sense to insist that for the same because Oastillo’s offense, trial incompetent represented errone- once evidence is which ously admitted, counsel, must of ne- error same was aborted when cessity compounded by ‘opening judge be declared a mistrial because rebutting collateral, testimony concerning door’ so un wide that what the search inflammatory prejudicial inflammatory, highly “irrelevant, evi- covered was may ju- prejudicial.” dence enter the minds of the general objects.2 Rather, after cross- It extended which the defendant now interesting dealing post-arrest only examination with the that at this belated ask, events, juncture he asked the detective did defense unsuccessfully, juror were found. answer was be with- narcotics negative. Finally, drawn. noted alluded, summation Subsequently, on re-direct examina- with the tac- accordance well-laid Attorney tion, in- the Assistant District tics, narcotics “no relating quired, anything “Did the fur- were found after a search of apartment?” to narcotics in actually room nished where Castillo and, responded affirmatively detective lived.” said, query, to a further “I found answer an instrument know b.e appeal, This others receive like ** in the of narcotics.” attention of this seems stage this late the de- strategic largely salvaging devoted to objection, fense saw fit to exercise an blunders committed in the moving to strike the last answer —and through inadvertence, indecision, or, as emphasize, not, I the whole series of instance, aspect in this questions and answers. The trial According principle party autonomy. motion, explaining open- denied the “You view, party, to this latter because ed the door. You asked him about nar- case, of his interest of his the conduct anything relating cotics. And I think right technique has a to decide to be it is now If admissible. hadn’t ask- employed exposition in the of his defense *5 question, ed the I would have sustained initiative, indeed, assume and must the objection.” Significantly, the assuring responsibility, the of that his rejoin prosecu- counsel did not the that appro- contentions are advanced the at door, had tor the as he now priate appropriate time and in man- the claims; rather, stating by only “I that practical impact ner. The this rule of any asked whether he had found nar- preclude parties is to the from burden- in apartment,” the cotics he revealed that ing appellate system the their sec- part carefully his course plan- was of a thoughts judg- ond when their calculated bring ned tactical maneuver to before proven the to ments at trial have be un- jury the evidence which he considered short, misguided wise. the efforts to favorable his client and to seek or deliberate tactics of counsel cannot refuge anything bring from which would appeal converted, attributed, on and to before that the balance of the cir- judge. Hazard, blunders cumstances. “After the Trial Court —The of Realities strategy Appellate Courts, This pursued Review,” was still in further (The Explosion” when Castillo took the and The stand his own Public Law defense, stating clearly Assembly, succinctly American Univer- and Columbia sity, ed., 1965). Here, that he had used, never Jones the fore- never sold and going anybody demonstrates, “never had help need to discussion we have else sell precipitated narcotics.” This of fur- clear counsel’s gamble ther cross-examination the the back- State to actions States, charged 2. As Walder v. crimes of United 347 U.S. tbe which he was 62, (1954), sweeping had claim and made testimony possessed any dealt in or narcot- elicited Castillo’s own never * * * justi- permitted hardly prosecution counsel ics. There is show, solely letting purpose impeach affirma- for for fication the defendant of testimony perjurious credibility, tively defendant’s tools resort disability of the narcotics in the Government’s trade were found reliance challenge credibility.” apartment, during his albeit unlawful 347 U.S. an States at 356. See also United search. Mr. Justice words 74 S.Ct. Frankfurter’s Rivera, precisely point: Cir. June “The defendant beyond complicity went a mere denial of miscalculation, and Fourteenth firing. the Fourth without anteed This sought. remedy violated admis- more, justify Amendments were does not grant testimony prosecution circumstances, of of a wit- sion Under these describing the fruits of upsetting the ness relief conviction mischievously writ of my opinion and believe that abuse would granted corpus tamper on this improperly should be habeas the Great Writ judg- ground. finality I therefore dissent. state grounds. upon ment non-constitutional Ohio, are, The Fourth contentions Amendment (1961), held that 6 L.Ed.2d 1081 us, extremely tenu- on the record before trials the Due Process Clause state aspect ous minor of and concern required Fourteenth Amendment strategy approach not that does obtained in of all evidence the exclusion necessary justify constitutional line provi- violation of the search and seizure Only in most interference. Amendment. Admit- sion of Fourth unusual, extraordinary situation, which tedly, unconstitutional alleged here, we do not such can undisputed ad- is also evidentiary errors rise to constitutional describing of oral mission rulings Otherwise, dimension. made equivalent fruits of the search was judges open state court trial would be itself, especially fruit admission second-guessing only by the state characterized since n appellate systems by the but federal matter found as “an instrument * * * pro- corpus courts as well. In habeas nar- ceedings, the federal court seem, prima cotics.” as a would thus exclusionary possess matter, “does rule facie a residuum of power pro- Ohio was violated. record for involving cedural errors not consti- deny In a does not sense State tutional issue writ Instead, position this. it takes the corpus purpose habeas this violation of the rule providing a new trial the state counsel had because defense court. *6 “opened the door.” state acting A federal court this door-opening which con- introduced the super fashion would constitute a case, cept this into this did not make appellate upon tribunal and encroach judgment, was decided v. Ohio appellate prerogatives; state court completed. after the trial was Yet prin such action would affront the ques- even if that the court had reached ciples upon of federalism our tion, it the federal would foreclose juridic system oper federal-state coun- habeas court. Whether defense ates.” ex United States rel. Town conduct, state sel’s described the Ogilvie, send v. 843- justified “opening door,” court as the the (7 1964), cert. admission of evidence otherwise con- L.Ed.2d stitutionally required a to excluded question; it is for a federal independently to the suffi- Accordingly, affirming assess I concur in the ciency justification. purportéd denying of the petition order Castillo’s for a corpus. write of habeas I do not the believe conduct the defense the admis- counsel MARSHALL, Judge (dissent- Circuit prose- of this evidence. sion ing) : cutor, counsel, defense who agree my brought I pros- up with brothers that matter of the whole open though ecutor’s attempt statements to court were similar even inflammatory relating not so to to as render introduce constitutionally had, However, trial, unfair. on the first resulted search guar- rights trial, the accused’s constitutional In char- mistrial. relating Ohio rule. acterized my me, inflammatory not as brothers This seems to “irrelevant, search practice” suggest, perceive defer “to local trial to prejudicial” it is difficult principles party respect legitimate prosecutor or to “the interest what reintroducing autonomy,” deprive sought an accused satisfy by but to rights be- certain of his constitutional in the second trial. What search trap fell into the prosecutor cause defense counsel in concern for fairness lacked prosecutor. unconscionably by the up laid he made for in his shrewdness. course, de- Of find this intolerable. Q. apart- Did to strike fense counsel could have moved gave Yes, ment? A. we it questioning initiated line search. inquiring whether instead anything? A. Q. you Did “anything” narcotics. found was Yes. However, the accused’s constitutional Your wit- [Prosecutor]: hinge should not be made ness. retrospective of the tech- our evaluation carefully affirma- solicited The officer’s any nique trap, and, in used to avoid the high-lighted the immedi- answer, tive event, is not that an order it at all clear questioning, was termination ate granting a motion to strike would in- prominently pregnant adverse granted, or, granted, if whether counsel defense The door the ferences. allayed effectively could have the sus- opening charged subsequently deliberately picion prosecutor had open. Defense counsel was now jurors’ planted in minds. allay sought door, close the Thus the admission of officer’s tes- asking jury’s suspicion, he did so describing timony of an fruits found, narcotics were federal con- search violated the accused’s unusually meas- question received the he rights; stitutional there is a and since any answer, nar- “I not find ured did possibility that this reasonable apartment.” It was cotics in that verdict, upon contributed to the an issue exchange according my that, last agree, which we to all accused seem brothers, later1 the officer’s rendered constitutionally entitled to a new trial. description of his uncon- of the fruits Fahy Connecticut, 85, 84 constitutionally toler- stitutional 229, 11 It de- L.Ed.2d 171 able. deprive means the Great Writ assistance, accused of its brothers door-closing reality then, it is do, they opinion because are of the technique counsel and chosen sufficiently this error is not “robust.” doors not the fact justify violation I would reverse. is held to *7 strange testimony, passing brothers later 1. It tbe accused’s obliquely, selling using narcotics, though invoking, fell he denied somewhat States, exception Jus- within the set out Mr. Walder v. United ac accused tice Frankfurter Walder: deny subsequent all the elements to the testi “must be free to cused testified thereby against mony describing him without the fruit of the the case hardly giving intro- to the Government thus it could be said leave illegally by way in or of rebuttal evidence introduced duce ” * * * secured U.S. at rebut an untruthful statement der to Moreover, possible that at 356. it is the accused.