384 F.

2d 889

UNITED STATES of America, Appellee,

v.
Samuel DESIST, Frank Dioguardi, Jean Claude LeFranc, Jean
Nebbia and Anthony Sutera, Appellants.
No. 313.
Docket 30849.

United States Court of Appeals Second Circuit.

Originally Argued January 19, 1967.
Remanded for Further Limited Hearing May 29, 1967.
Decided October 13, 1967.

Irving Younger, New York City, for appellant Desist.

Fred A. Jones, Jr., Miami, Fla., for appellants Dioguardi, Sutera, LeFranc
and Nebbia.
David M. Markowitz, New York City, for appellant LeFranc.
Arnold C. Stream, New York City, for appellant Nebbia.
Abraham Glasser, New York City, of counsel for appellants Dioguardi,
Sutera, LeFranc and Nebbia.
Otto G. Obermaier, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty.,
for the Southern District of New York, Michael W. Mitchell, William M.
Tendy, John R. Bartels, Jr., John R. Wing, Asst. U. S. Attys., on the
brief), for appellee.
Before MEDINA, ANDERSON and FEINBERG, Circuit Judges.
FEINBERG, Circuit Judge:

The five appellants were convicted under a one-count indictment charging them
with a conspiracy to import narcotic drugs into the United States from France.
21 U.S.C. 173, 174. The case involved what is alleged to be the largest

single seizure of pure heroin in the United States, valued at sums as high as
$100,000,000, and totalling some 209 pounds. The trial, lasting four weeks,
was in the Southern District of New York before Judge Palmieri and a jury. We
affirm all five convictions for the reasons stated below.1
I. The Facts
2

The following statement of facts is what the jury could have found, viewing the
evidence in the light most favorable to the Government. Glasser v. United
States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It was presented to
the jury primarily through the testimony of co-defendant Herman Conder 2 and
various government agents.

Early in 1963, Conder, a United States Army Warrant Officer, met appellant
Samuel Desist, a Major; Conder was then looking for accommodations for his
wife and children, who were soon to join him in France. Conder rented one of
Desist's apartments, and thereafter the two became friendly. In July 1965, when
Conder was preparing to return to the United States, Desist offered to pay him
$10,000 if Conder would ship a food freezer as part of his household goods.
Desist told Conder not to tell the latter's wife because "women can't keep a
secret." Conder agreed, and a used freezer was delivered to Conder, according
to plan. At Desist's instruction, Conder took the freezer apart one day, left it in
the storage area of his apartment, and found it completely reassembled the next
day. Secreted into it were 190 plastic bags, each holding an average of a halfkilogram (1.1 pounds) of pure heroin.

In September 1965, the freezer was shipped by Conder, along with his other
goods, to Fort Benning, Georgia; ten days later Conder and his family left for
the United States. Once at Fort Benning, which is in the Columbus, Georgia
area, Conder moved into a house trailer. The freezer arrived in the third week of
November; Conder immediately communicated this fact to Desist. On
December 12, Desist flew from Paris to New York and called Conder,
arranging a visit at the end of the week. Thus, the initial phase of the
conspiracy importing heroin was successfully accomplished. There
remained the efforts of Desist, with two other French exporters Jean Claude
LeFranc and Jean Nebbia to dispose of the narcotics in this country.

On December 11, appellant Nebbia had left Paris on a plane bound for New
York; five days later he went, together with appellant LeFranc, to an airline
ticket counter in New York where LeFranc made a through reservation for
Nebbia for Columbus, Georgia. LeFranc said that a car rented in Columbus
would be used for driving to Miami. The night of December 16, Desist met

with Nebbia in the Waldorf-Astoria Hotel, Manhattan. Desist said he would fly
to Rochester "to see the boss" and from there by way of Atlanta to Columbus,
where he would pay his contact "20 bills" for the merchandise. Nebbia was
reassured that the contact was well-known to Desist; Desist said everything
would be ready for Nebbia so "the transfer can be made automatically." There
was an inquiry about suitcases, and Desist said it would take three or four hours
to make the "transfer." Desist referred to a trailer, and the "Black Angus," a
motel at which Conder had made a reservation for Desist; Nebbia said he would
meet Desist in Columbus and cautioned about risks. On December 17, Nebbia
and LeFranc went to buy a map together. Back at the hotel room LeFranc said
he would go to Columbus from Atlanta and told Nebbia to get a car; they would
purchase the suitcases. A trailer was mentioned in this conversation also.
6

While thus making sure of obtaining the heroin, Nebbia and LeFranc were
simultaneously arranging to dispose of it. Also on December 17, appellants
Frank Dioguardi and Anthony Sutera flew up to New York from Miami; in the
afternoon they registered under false names at a Manhattan motel. That night
LeFranc came out of a Manhattan bar and stood on the sidewalk, and Dioguardi
and Sutera pulled up in a rented car and double-parked. LeFranc approached
the car, had a short conversation, and entered it; the car was parked and the
three went to Adano's Restaurant a few blocks away.

LeFranc told his companions he was looking forward to Atlanta, which was a
cleaner place than New York, and said he would enjoy Miami; Sutera agreed
with this observation and said he was also looking forward to returning to
Miami. Dioguardi made a telephone call, during which he said that he was
"with the man now and they were leaving for Atlanta in the morning," and that
he expected to see him Monday or Tuesday the following week. Rejoining his
companions, Dioguardi said everything was "o. k. * * * on my end," but there
were several problems. Sutera said he and Dioguardi had not yet seen anything,
and LeFranc replied that he had explained this to his friend who had assured
him that "it is here already." LeFranc said that all that remained was to go down
there, pick it up, and make the transfer to Dioguardi and Sutera. Dioguardi said
that LeFranc's "friend" apparently didn't trust anyone; they too wanted to be
careful, but at the same time wanted to know more about how the deal would
come off. Sutera proposed that he and Dioguardi go to Atlanta with LeFranc to
pick up the "merchandise" and save LeFranc an extra trip.

LeFranc said that was impossible; only he and his friend were to go to Atlanta
and pick up the merchandise and then he would call Dioguardi and Sutera in
Miami and arrange for the transfer to them. There was some more discussion
about the mechanics of the transfer, LeFranc stating at one point that "in the

past people have been betrayed, and everything has been lost, even the people."
During dinner Dioguardi made another telephone call during which he stated
that "this was a once-a-year deal and it takes time to iron out the problems." A
day later, Dioguardi and Sutera flew back to Miami.
9

On the same day that LeFranc was meeting with the potential buyers, Desist
flew to Rochester and thence to Georgia to get the heroin. That night Conder
met him at the Columbus airport; Desist registered in the Black Angus Motel,
and they both went to Conder's trailer. Conder told Desist the freezer was in a
box adjacent to the trailer; Desist said certain persons would arrive the
following afternoon at 2:00 to pick up its contents, and that Conder should
arrange to have his wife away. Once at the trailer, Conder pointed out the
freezer. On the next morning, Nebbia and LeFranc boarded a plane in New
York bound for Atlanta; in Atlanta they changed planes for Columbus, and
Desist met them at the Columbus airport that afternoon. Nebbia rented a car,
and the three drove around and stopped at a restaurant. Desist was eventually
left in the Columbus shopping area.

10

Nebbia and LeFranc continued driving around, winding up in Opelika,

Alabama, about 4:00 P.M. There they purchased two suitcases, a foot locker
and a travel bag. Arriving back in Columbus, they met Desist at the Black
Angus; after a short while in Desist's room, Nebbia and LeFranc resumed their
driving. Eventually, they registered at a motel under a fictitious name.
Repeatedly that day they drove in a way that would make it difficult to follow
them unnoticed.

11

After Nebbia and LeFranc had left his motel room, Desist called Conder, and
they met at a restaurant. Desist explained that the project would take longer
than anticipated because the people who were to pick up the merchandise had
returned to Atlanta to rent another car because they thought they had been
followed. The pickup would be the following day; the people would be
Frenchmen. (Nebbia and LeFranc spoke to each other in French.) Desist
surreptitiously handed Condor $2,000, and pointed out that Conder could buy
suitcases in the morning if necessary. Conder rejected an offer of several
hundred dollars or a car for taking the contents of the freezer to Atlanta.

12

On Sunday morning, December 19, Desist went to Conder's trailer camp and
told Conder to buy the suitcases. After driving Desist back to the motel, Conder
bought four large suitcases. Back at his trailer he removed all the plastic bags
from the freezer and put them in the suitcases he had bought; he had to use two
of his own as well. One suitcase was placed inside the trailer and five in a shed
near the trailer. This was about 1:00 in the afternoon. After Desist called and

checked, Conder waited for the Frenchmen, but they never arrived.
13

That same morning Nebbia and LeFranc had checked out of their motel, driven
to Atlanta and rented another car. They met Desist in his motel room, and saw
somebody as they were leaving who they thought might be watching them.
Desist then called Conder and told him that the two had become suspicious and
would wait several days before coming to pick up the suitcases. LeFranc and
Nebbia meanwhile headed for Atlanta and returned the second car they had
rented. They took a cab to where the first rented car was, and returned that car
too. Early Monday morning they boarded a plane for New York. A few hours
later Conder was arrested at his trailer and produced the six suitcases
containing the heroin.

14

The foregoing was the Government's case. The version of the facts offered by
appellants is, of course, radically different. Thus, the testimony of various
government agents was attacked as incredible; e. g., as to the account of
conversations overheard by agents at the bar in Adano's Restaurant, defendants
argued that conspirators would not conduct meetings there when strangers were
present because the bar was so small; Dioguardi introduced affirmative
evidence that he had been in New York on the day in question on business;
Desist offered an alibi for the night he had a supposed conversation with
Nebbia in the Waldorf-Astoria; LeFranc attempted to show that he was in this
country only for purposes connected with his membership in a secret French
political organization.3 But these are now fruitless gambits; the jury by its
verdict rejected them, and we are bound by that disposition.

II. Sufficiency of the Evidence

15

All appellants urge reversal on the ground of insufficient evidence to go to the

jury or for conviction under what they term "the rule of reasonable doubt."
Dioguardi and Sutera argue first that there was no proof that either of them had
the requisite knowledge that the narcotics were imported. There was no claim
that these appellants ever had possession of the narcotics, so that the inference
in 21 U.S.C. 174 could not aid the Government. See United States v.
Goldstein, 323 F.2d 753 (2d Cir. 1963) (per curiam), cert. denied, 376 U.S. 920,
84 S.Ct. 677, 11 L.Ed.2d, 615 (1964). Judge Palmieri charged the jury that as to
these two defendants "you must find actual knowledge that the drugs were
illegally imported from abroad"; the judge also observed that the Government
rested its case as to knowledge on LeFranc's statement to Dioguardi and Sutera
(in Adano's Restaurant) "it is here already," and on "other evidence."
Appellants contend that there was no "other evidence," and that "here" does not
necessarily refer to the United States, considered as a country, but could as

rationally mean one rather than another location within the United States.
However, the conversation also referred to going down and picking "it" up in
Atlanta. Hence, the jury could reasonably infer that "here," in a conversation
taking place in New York, did not refer to the specific location of the narcotics
in the United States, but rather to its arrival from overseas.
16

Dioguardi and Sutera also challenge the sufficiency of evidence that they
conspired to deal in narcotics. There clearly was enough evidence to allow the
inference that these two appellants were conspiring with LeFranc in Adano's
about something. Dioguardi and Sutera had registered in New York under
assumed names; while with LeFranc, Dioguardi told someone on the telephone
that this was a "once-a-year deal"; LeFranc warned of the dangers for all;
Dioguardi and Sutera sought to assure the transfer of "merchandise" to them,
even suggesting that they go to Atlanta to assist; and their stake in, and concern
over, the success of the venture was obvious. Cf. United States v. Cianchetti,
315 F.2d 584, 588 (2d Cir. 1963). What the insufficiency argument is reduced
to is that the word "narcotics" was not spoken at Adano's, so that the conspiracy
could have been to transfer something else. We pause to note that those who
buy and sell narcotics normally use vague euphemisms or jargon to describe
their contraband. See United States v. Llanes, 357 F.2d 119 (2d Cir. 1966)
("stuff"); United States v. Ramsey, 374 F.2d 192 (2d Cir. 1967) ("good
`treys'"). The basic defect of the argument is the assumption that the jury had to
base its verdict against these two appellants solely on this conversation in the
abstract. But, of course, this was not so. From the evidence of acts of other
defendants, "verbal" or otherwise, properly before the jury,4 it could have taken
into account that Conder shipped a freezer to Fort Benning, Georgia; Desist
knew Conder; Nebbia and LeFranc came to the United States; Nebbia knew
Desist; Desist flew down to Georgia to meet with Conder; Nebbia and LeFranc
shortly thereafter also flew down to Atlanta and met Desist; Conder transferred
heroin from the freezer to suitcases; and then Nebbia and LeFranc went back to
New York. These events happened within a short time (except for the initial
arrival of the freezer into the United States). While it could be by coincidence
that Dioguardi and Sutera were interested in other "merchandise" in Georgia
that LeFranc was to transfer to them so furtively, it was a much more
persuasive inference that the "merchandise" was to their knowledge narcotics.
If to this is added the evidence of "hearsay" declarations of co-conspirators,
there was obviously much more than enough to go to the jury, although we do
not mean to imply that the evidence was insufficient without these declarations.
Judge Palmieri had already decided that the declarations could be considered by
the jury and we find no error in that determination. United States v. Ross, 321
F.2d 61, 68 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123
(1963). Indeed, in allowing the jury again to make a preliminary determination

as to the competence of this evidence, the judge was too generous to appellants.
See United States v. Stadter, 336 F.2d 326, 329-330 (2d Cir. 1964), cert.
denied, 380 U.S. 945, 85 S.Ct. 1028, 13 L.Ed.2d 964 (1965); United States v.
Ragland, 375 F.2d 471 (2d Cir. 1967). We hold that there was sufficient
evidence to go to the jury on the role of Dioguardi and Sutera in the conspiracy.
Finally, the mass of evidence against LeFranc, Nebbia and Desist does not
warrant discussion as to its sufficiency.5
III. Reception into Evidence of the Narcotics
17

One of the most important items of evidence produced by the Government was
the vast amount of heroin seized from Conder in his trailer home in Georgia.
Appellants claim that it was error to admit the heroin into evidence because the
warrants authorizing the seizure were defective.6 The point was first raised by a
motion to suppress in the district court, which was denied by Judge Weinfeld; it
was pressed again equally unsuccessfully at trial before Judge Palmieri.

18

In support of warrants to search Conder's automobile and trailer and sheds,

identical sworn statements by a narcotics agent were submitted to the United
States Commissioner for the Middle District of Georgia. The statement is
imposing in its detail.7 It is claimed, however, that the affidavit does not affirm
personal knowledge of the facts, or the source of the affiant's belief, or the
reliability of that source. For example, the affidavit states that "Desist was
followed to his room"; appellants ask "By whom?" Appellants rely on Aguilar
v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and
United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

19

Aguilar involved an affidavit which merely stated that "Affiants have received
reliable information from a credible person and do believe that heroin * * * [is]
being kept at the above described premises for the purpose of sale and use
contrary to the provisions of the law." The Court noted that "[i]f the facts and
results of * * * a surveillance [on petitioner's house] had been appropriately
presented to the magistrate, this would, of course, present an entirely different
case." 378 U.S. at 109 n. 1, 84 S.Ct. at 1511. After discussing other similar
cases where the affidavit merely stated that the affiant "has cause to suspect and
does believe" certain merchandise was in a specified location,8 or where the
affidavit said simply that the suspect "did receive, conceal, etc., narcotic drugs
* * * with knowledge of unlawful importation,"9 the Court stated (378 U.S. at
113-115, 84 S.Ct. at 1513):

20

Here the "mere conclusion" that petitioner possessed narcotics was not even
that of the affiant himself; it was that of an unidentified informant. The affidavit

here not only "contains no affirmative allegation that the affiant spoke with
personal knowledge of the matters contained therein," it does not even contain
an "affirmative allegation" that the affiant's unidentified source "spoke with
personal knowledge." For all that appears, the source here merely suspected,
believed or concluded that there were narcotics in petitioner's possession. The
magistrate here certainly could not "judge for himself the persuasiveness of the
facts relied on * * * to show probable cause." He necessarily accepted "without
question" the informant's "suspicion," "belief" or "mere conclusion."
21

Although an affidavit may be based on hearsay information and need not reflect
the direct personal observations of the affiant, Jones v. United States, 362 U.S.
257, [80 S.Ct. 725, 4 L.Ed.2d 697] the magistrate must be informed of some of
the underlying circumstances from which the informant concluded that the
narcotics were where he claimed they were, and some of the underlying
circumstances from which the officer concluded that the informant, whose
identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528,
[84 S.Ct. 825, 11 L.Ed.2d 887], was "credible" or his information "reliable."
Otherwise, "the inferences from the facts which lead to the complaint" will be
drawn not "by a neutral and detached magistrate," as the Constitution requires,
but instead, by a police officer "engaged in the often competitive enterprise of
ferreting out crime," Giordenello v. United States, supra [357 U.S.] at 486 [78
S.Ct. at 1250]; Johnson v. United States, supra, [333 U.S.] at 14 [68 S.Ct. 367,
at 369, 92 L.Ed. 436], or, as in this case, by an unidentified informant.
[Footnotes omitted.]

22

In the present case, there was more than a "mere conclusion"; the affidavit
could only be reasonably read to mean that the signer conducted at least some
of the investigation or spoke to those who had investigated and watched; the
facts alleged show more than the affiant's mere suspicion, belief, or conclusion
as to the location of the heroin; the magistrate could judge for himself the
persuasiveness of the fruit of the investigation; there is no question of
credibility of an "informant," since the affidavit obviously is chiefly derived
either from the affiant's knowledge or that of fellow agents. The language in
Aguilar about informants must be read in conjunction with the affidavit under
scrutiny in that case. Thus, in United States v. Ventresca, supra, where the
affiant had received his information from other investigators, the Court found
"reason for crediting the source of the information" because "[o]bservations of
fellow officers of the Government engaged in a common investigation are
plainly a reliable basis for a warrant applied for by one of their number." 380
U.S. at 109, 111, 85 S.Ct. at 747 (footnotes omitted).

23

The Supreme Court has frequently emphasized that it is desirable for officers to

obtain search warrants so that an independent magistrate may impartially judge

whether probable cause exists, and for that reason has suggested that warrants
will be examined less rigorously than searches without a warrant. E. g., United
States v. Ventresca, 380 U.S. at 106-107, 85 S.Ct. at 744-745; McCray v. State
of Illinois, 386 U.S. 300, 315, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) (dissenting
opinion).10 When a narcotics agent has done just what the Court encourages,
reading a warrant as though it were a trust indenture can only discourage
adherence to that policy. If the affidavit here is "read in a commonsense way
rather than technically," 380 U.S. at 109, 85 S.Ct. at 1511, it was clearly
sufficient. We hold that the warrants were properly issued and the heroin was
admissible at trial.
IV. Admissibility of Evidence Obtained Through Electronic Eavesdropping
24
25

Another evidence problem concerns conversations between Nebbia and Desist

in the Waldorf-Astoria Hotel on the night of December 16, and between Nebbia
and LeFranc on December 17. Evidence of these came mainly from testimony
of a government agent who eavesdropped, and from contemporaneous tape
recordings. 11

26

Early in the pre-trial proceedings, the Government commendably informed

both the court and defense counsel that an electronic listening device had been
used in investigating the case, and suggested a hearing be held as to its legality.
Thereafter, Judge Palmieri conducted a three-day hearing during which seven
law enforcement agents and a Waldorf-Astoria Hotel employee testified; the
hearing even included an actual reconstruction in the hotel room of the
equipment that had been used. From the evidence adduced, the eavesdropping
occurred as follows: A few days after Nebbia had checked into the WaldorfAstoria, two agents asked a hotel official in what room Nebbia was registered,
and were given the adjoining room, Room 1600. Inspection of the agents' room
disclosed that a door opened on to a "very small" air space, on the other side of
which was a similar door opening into Room 1602, Nebbia's room. This door to
Nebbia's room was never opened, nor was anything attached to it. The agents
placed a microphone against the door inside of Room 1600, with its face turned
toward a 3/8 inch space between the bottom of the door and the door sill.
Nothing was placed under the door, nor was the microphone inserted into the
space at the bottom of the door. The microphone was wired to an amplifier and
tape recorder; the agents monitored conversations taking place in Room 1602.

27

Defendants advance a number of reasons why it was error to admit evidence of

the two overheard conversations. First they argue that the eavesdropping was
"trespassory" in effect and therefore impermissible under Supreme Court

decisions, citing Clinton v. Virginia, 377 U.S. 158, 84 S.Ct. 1186, 12 L.Ed.2d
213 (1964), reversing per curiam 204 Va. 275, 130 S.E.2d 437 (1963), and
Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
This was the contention made below, but Judge Palmieri found to the contrary.
After the thorough evidentiary hearing, the judge concluded that "`nothing has
been adduced to indicate there was a physical trespass or any basis upon which
the evidence should be suppressed. * * * [T]here was no illegality to the
procedures followed by the agents and I therefore deny the motion [to
suppress]." Appellants recognize that this court's recent decision in United
States v. Pardo-Bolland, 2 Cir., 348 F.2d 316, cert. denied, 382 U.S. 944, 946,
86 S.Ct. 388, 15 L.Ed.2d 353 (1965), presents a formidable obstacle to them. In
that case, similar electronic eavesdropping in a hotel room was held
constitutional. Ascribing controlling effect as the Supreme Court has done
to the existence of a "physical intrusion"12 in assessing the legality of
electronic eavesdropping has been the subject of considerable discussion. See,
e. g., Westin, Science, Privacy, and Freedom: Issues and Proposals for the
1970's, 66 Colum.L.Rev. 1205, 1232-53 (1966); The Supreme Court, 1960
Term, 75 Harv.L.Rev. 80, 184-87 (1961); President's Commission on Law
Enforcement and Administration of Justice, The Challenge of Crime in a Free
Society 201-03 (1967). Appellants argue that Berger v. State of New York, 388
U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), contains language that
supports the view that the type of nontrespassory eavesdropping present here is
improper. However, the holding of that case is that a search that would
otherwise be unconstitutional because of a physical intrusion was not cured by
a court order under a statute which did not require sufficient safeguards. We are
aware that these issues may again be examined closely by the Supreme Court in
the near future. Katz v. United States, 386 U.S. 954, 87 S.Ct. 1021, 18 L.Ed.2d
102 (1967) (granting certiorari; questions presented). However, we are bound
by Pardo-Bolland and the cases upon which it relied; 13 appellants must
distinguish them to prevail here.
28

Some appellants accept the challenge and point out that the standard of
unconstitutional eavesdropping is not just technical "trespass," but "an actual
intrusion into a constitutionally protected area." Silverman v. United States, 365
U.S. at 512, 81 S.Ct. at 683. Therefore, they ask us to distinguish PardoBolland on its facts. Thus, much is made of use by the agents here of the airspace between the two doors of Rooms 1600 and 1602, while in Pardo-Bolland
there was only a single door, and in Goldman v. United States, 316 U.S. 129, 62
S.Ct. 993, 86 L.Ed. 1322 (1942), only a common wall to which the listening
device was attached. Appellants emphasize that the purpose of the air-space
between the two rooms was to enhance privacy; this may be so, but a single
door or wall also is intended to enhance privacy. That the air-space may have

improved the possibilities for eavesdropping under expanding technology as

appellants claim and we will assume arguendo14 is not constitutionally
significant under Supreme Court case law.
29

Appellants also claim that the hotel improperly cooperated with the agents, a
feature possibly present in Pardo-Bolland15 but apparently not considered
material there by the parties or the court. However, the testimony of Agent
Schrier, which Judge Palmieri was free to accept, disposed of any contention
that the hotel's management surreptitiously placed Nebbia in a particular room
or kept an adjacent room available for the agents.16 We agree that the statement
in Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374
(1966), referring to reliance on "the security of" a hotel suite, is suggestive but
in the context of the controlling cases the limited cooperation of the innkeeper
here hardly seems dispositive. The final effort to distinguish Pardo-Bolland is
the claim of actual trespass by one of the agents, who testified that he placed
his ear against the door opening into Nebbia's room for a "matter of seconds"
and heard nothing. One must strain to call this a "trespass" in the relevant
sense; in any event, it led to nothing. Cf. Goldman v. United States, 316 U.S. at
134-135, 62 S.Ct. at 995-996. Based upon the controlling precedents, which we
find indistinguishable, we hold that there was here no "actual intrusion into a
constitutionally protected area."

30

Apart from the variety of assaults on Pardo-Bolland, appellants offer additional

arguments relating to the overheard conversations. Thus, they object to the use
at trial of the contemporaneous tape recordings of the conversations. During
the trial, there was an extensive two-day voir dire hearing, during which the
tapes were played for the court and defense counsel, copies of transcripts of the
tapes prepared by Agent Kiere were provided, and defense counsel were
allowed to make their own copies of the recordings. At the end of the hearing,
Judge Palmieri overruled all objections. Before the jury, Kiere first testified to
the portions of the conversations he recalled overhearing, and then the tapes
were played with Kiere translating as the tape went along. The conversations
were in French; appellants requested the trial court to appoint an impartial
interpreter, who would make a simultaneous translation for the jury. The trial
judge, who was fluent in French, as were Kiere and one or two colleagues of
defense counsel, suggested a conference to arrive at an agreed-upon translation.
The defendants rejected this procedure, and Kiere acted as translator for what
he had heard. Appellants claim that an impartial interpreter would have
buttressed their conclusion that the tapes were unintelligible; under the
admitted fact that the agent spent seventy-five hours on his own to translate the
forty-five minute tape, an impartial translator, they say, became essential for a
fair trial. However, appellants were given ample opportunity to cross-examine

the agent or bring in their own translator to rebut him.17 Under the adversary
system, the Government was allowed to use its agent as an expert witness, and
the "unfairness" appellants allege is illusory. We have carefully considered this
and other contentions; we hold that Judge Palmieri commited no error in
connection with the tapes.
31

Another attack on the overheard conversations stems from recent admissions by

the Solicitor General in the Supreme Court of trespassory eavesdropping; e. g.,
in Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966) (per
curiam), and Schipani v. United States, 385 U.S. 372, 87 S.Ct. 533, 17 L.Ed.2d
428 (1966) (per curiam).18 Appellants claim that memoranda of the Solicitor
General in these cases make clear that President Johnson issued a policy
statement on June 30, 1965, under which all electronic eavesdropping
trespassory or not is prohibited without prior authorization of the Attorney
General, apparently not obtained here. Appellants also suggest, inter alia, that:

32

[I]t would be proper for this Court to request the Attorney General (or the
Acting Attorney General), or the Chief Justice of the Supreme Court, to inquire
of the White House (and if necessary of the President himself) as to what the
President said on the occasion in question.

33

The Government responds that the President's policy merely emphasized to all
federal agencies that any electronic surveillance was to be in full compliance
with the legal standards established by the courts, which regarded the fact of
trespass as crucial. This argument is supported by the fact that the same
Solicitor General, upon whose memoranda appellants rely, filed another
memorandum in the Supreme Court in October 1966 over a year after the
claimed statement of policy in opposition to an application for bail, which
defended the validity of the eavesdropping in this very case and emphasized
that there had been no trespass.19 Similarly, according to one of the memoranda
of the Solicitor General cited by appellants,20 a memorandum of the then
Acting Attorney General of November 3, 1966, addressed to all United States
Attorneys, summarized the policy of the Department of Justice "in conformity
with the policy declared by the President" as not proceeding with any
investigation or case "which includes evidence illegally obtained or the fruits of
that evidence."21 The presidential policy statement is not in the record before
us, and we do not feel that the unusual procedure appellants suggest is
appropriate or that it is incumbent on the court to attempt to devise some
procedure to obtain it, particularly in view of the Acting Attorney General's
statement. Therefore, we will not consider further the legal effect, if any, on the
courts of an internal administrative statement.

34

Appellants also sought a direction from this court that the Solicitor General
conduct in this case a review similar to those already had in Schipani and Black
to discover whether there was use of "evidence obtained in violation of a
defendant's protected rights."22 Such a review was made and on April 27, 1967
we were advised by the United States Attorney that, in addition to the
monitoring at the Waldorf, there were two other instances of electronic
monitoring; both involved a trespass. By orders entered in May and June 1967,
we thereafter remanded the case to the district court so that the trial judge could
conduct a prompt and full hearing into these and any other electronic
eavesdrops of any kind which related to this case (except for the Waldorf
monitoring which had already been fully litigated). After a number of pre-trial
conferences, Judge Palmieri held such a hearing. Fourteen witnesses testified on
four separate days; various records of the Federal Bureau of Investigation were
provided, and the record consumed over 800 pages of transcript.

35

In a thorough 37-page opinion, the judge found, inter alia, as follows: There
was use in 1962-1963 of an electronic listening device installed by trespass in a
business establishment in Miami, Florida by which conversations of defendant
Dioguardi were heard. However, the investigation and conversations were
totally unrelated to the evidence in this case, whose principal events occurred
over two years later. There was another incident involving these defendants in
December 1965 in Columbus, Georgia when a listening apparatus was installed
by narcotics agents in a car rented to defendant Nebbia by Avis. However, the
apparatus did not function and nothing coherent was obtained. Finally, the
judge considered and rejected a claim made by defendants that at the Black
Angus Motel in Columbus, Georgia federal agents had obtained evidence by
other illegal activities. In sum, Judge Palmieri concluded that no showing was
made "that any of the evidence used against them [defendants] at the trial was
tainted by any invasion of their constitutional rights." Defendants attack the
judge's findings of fact and conclusions of law on various grounds. We have
considered them all and do not find them persuasive.

36

Finally, appellants also move for an order granting permission for an electronic
consultant, hired after the trial below was completed, to inspect and listen to the
tape recordings used at trial. The principal ground advanced for the motion is
that the consultant might somehow be able to demonstrate that the tapes were a
product of trespass. However, the suggestion of trespass was adequately
explored by the trial court, and we see no basis for allowing the issue to be
relitigated because defense counsel, as they concede, "simply `missed' several
meanings of the agents' testimony" before Judge Palmieri which they now
"perceive." Accordingly, we hold that the evidence at trial of conversations at
the Waldorf-Astoria was admissible.

V. Refusal to Appoint an Interpreter

37

Appellant Nebbia contends that he was denied due process and a fair trial, as
well as the rights of confrontation, presence at his trial, and effective assistance
of counsel, by the trial judge's refusal to provide him at government expense
with a court-appointed interpreter to render simultaneous translation of the
proceedings.23 It is not seriously disputed that Nebbia understands French but
does not understand English well, if at all. He first asked for a translator
without expense to himself during a pre-trial conference; the request was
specifically not based on indigency a position consonant with Nebbia's
ability to post $100,000 within a few hours at an earlier stage of the
proceeding, see United States v. Nebbia, 357 F.2d 303 (2d Cir. 1966). The
question Nebbia poses, therefore, is whether a defendant has an absolute right
to a free simultaneous translator.24

38

There is surprisingly little discussion of the issue in the cases. The Supreme
Court has not ruled on the question, cf. Felts v. Murphy, 201 U.S. 123, 26 S.Ct.
366, 50 L.Ed. 689 (1906), although it has held that appointment of an
interpreter when the defendant was testifying was discretionary with the trial
judge, Perovich v. United States, 205 U.S. 86, 91, 27 S.Ct. 456, 51 L.Ed. 722
(1907). However, the discretion appeared related to evaluation of the
defendant's ability to understand the interrogation and express himself in
English. This court has apparently ruled on interpreters in criminal cases only
rarely25 and not on the point here involved. The cases in this circuit and
elsewhere have dealt in the main with the competence of the particular
interpreter used26 or whether there really was a language barrier, 27 particularly
if, as in Perovich v. United States, supra, the defendant testified and the
problem was whether he could adequately convey his thoughts to the jury.28
That issue differs somewhat from the right to have a personal interpreter give a
simultaneous translation of what is being said in the courtroom.29 In TapiaCorona v. United States, 369 F.2d 366 (9th Cir. 1966) (per curiam), the court
held that a Spanish-speaking defendant was not entitled to "have all English
testimony * * * instantly interpreted to him" in view of the fact that "[t]he
official Spanish interpreter sat at the defense counsel table and was available
for immediate consultation." However, to the extent that the case impliedly
recognizes at least a right to an "official" interpreter, it is helpful to Nebbia; but
it is not clear from the opinion in that case whether appellant was indigent. See
also Chavira Gonzales v. United States, 314 F.2d 750, 752 (9th Cir. 1963).

39

A number of serious weaknesses in Nebbia's legal position emerge from the

record. Thus, facilities available to him during the proceedings below included
a French-speaking partner in the law firm retained by him and its employees or

contacts.30 Moreover, even though trial counsel was not fluent in French, Judge
Palmieri stated, after the trial, that from his own observation he had no doubt
that Nebbia had been sufficiently in communication with trial counsel to permit
the latter "to conduct a vigorous and able defense in [Nebbia's] behalf."31 In
addition, in the posture the issue comes before us, we must assume and it is
a reasonable assumption that Nebbia was quite able to afford an interpreter
and to find a qualified one. Under these circumstances, if the real point is
guarantee of a fair trial, it is a little difficult to see why Nebbia is not required to
lie in the bed that he made. We are aware that trying a defendant in a language
he does not understand has a Kafka-like quality, but Nebbia's ability to remedy
that situation dissipates substantially perhaps completely any feeling of
unease. In other words, if Nebbia denied himself the interpreter and stands on
his right to do so, does not the issue become solely who should have paid for
one?32 Moreover, we doubt that Nebbia's claimed absolute constitutional right
to an interpreter is stronger than the absolute right to a court-appointed counsel;
the latter is held only by the indigent, Gideon v. Wainwright, 372 U.S. 335,
339-340, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); United States v. Arlen, 252 F.2d
491, 495 (2d Cir. 1958). See also Cervantes v. Cox, 350 F.2d 855 (10th Cir.
1965).33 From Nebbia's point of view, we think the most persuasive approach is
the point made at oral argument that if the Government chooses to prosecute
someone, the burden rests upon it to furnish the basic apparatus for intelligible
and minimally comfortable proceedings, e. g., the physical accoutrements of a
trial, such as a stenographer or even the courtroom itself, neither of which is
billed to the defendant. Indeed, a full-time interpreter is now provided by the
Government in the District Court of Puerto Rico at apparently no expense to
any defendant who needs one.34 This undoubtedly reflects a judgment that the
need for an interpreter in that district is so great that sound administrative
principles require that one be available at all times. However, to elevate this
resolution of a local problem to the status of a constitutional requirement for all
districts and all defendants and all languages is another matter.
40

Appellants also rely on Fed.R.Crim.P. 28(b), which provides:

41

Interpreters. The court may appoint an interpreter of its own selection and may
fix the reasonable compensation of such interpreter. Such compensation shall
be paid out of funds provided by law or by the government, as the court may
direct.

42

The rule was approved by the Supreme Court on February 28, 1966, and was
reported to Congress on the same day. 383 U.S. 1088-1089. The Court's order
provided that the rule "shall take effect on July 1, 1966, and shall govern all
criminal proceedings thereafter commenced and so far as just and practicable all

proceedings then pending." Id. at 1089. By July 1, the trial was well under way,
and for all that appears in the record the rule was first mentioned on July 7,
when the trial judge and appellants' counsel stipulated that appointment of an
interpreter at that point as the judge offered could not cure any error
which might have been committed earlier. We agree, of course, with the
stipulation. The Government urges that the rule could not have been used by
Judge Palmieri because it only applies to indigents,35 and, in any event, did not
go into effect until over two weeks after the trial started. Although we note as to
the former argument that the rule is not so limited by its text, and as to the latter
that another recent rule amendment has been applied retroactively,36 we need
not deal with these questions. Assuming arguendo that the court had the power
to appoint an interpreter, the question was still one of discretion. Although the
judge did have grave doubts as to his power, we note that among the factors
also influencing him were Nebbia's ability to get and pay for an interpreter of
his own choice, the availability of French-speaking partners of his trial counsel,
and Nebbia's ability to communicate with defense counsel. It is true that Judge
Palmieri did offer to appoint an interpreter after the concededly effective date
of the Rule. However, whether he would have done the same thing before the
trial started, weeks before that effective date, if the Rule had been raised by
defendants is another matter. We are not convinced that he would have, and, in
any event, would not consider failure to do so under these circumstances an
abuse of discretion.
43

We have considered the question carefully; taking all of the factors mentioned
above into account, we hold that the failure to appoint a simultaneous
interpreter at the Government's expense was not reversible error.

VI. Miscellaneous
44

Appellants' remaining contentions do not require extensive comment.

Appellants complain of allegedly improper publicity; shortly after
commencement of the trial, an article appeared in a New York City newspaper
describing Dioguardi as follows: "Frank Diaguardi [sic] 42, identified by the
Government as an underworld figure here." The defendants requested a hearing
to determine if the Government had supplied the information attributed to it.
Judge Palmieri inquired of the two prosecuting attorneys, who denied giving
the information; decision on the motion for a hearing was reserved. The judge
later satisfied himself that no juror had read the article.37 However, appellants
claim that a hearing should have been held on whether the Government had, in
fact, "leaked" the information. Citing Sheppard v. Maxwell, 384 U.S. 333, 86
S.Ct. 1507, 16 L.Ed.2d 600 (1966), they argue that a prophylactic rule is called
for, turning not on prejudice to a defendant, but upon "the honor of the

sovereign." But cf. Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824,
17 L.Ed.2d 705 (1967). We are most aware of the Supreme Court admonition
in Sheppard that (384 U.S. at 363, 86 S.Ct. at 1522):
45

The courts must take such steps by rule and regulation that will protect their
processes from prejudicial outside interferences. Neither prosecutors, counsel
for defense, the accused, witnesses, court staff nor enforcement officers coming
under the jurisdiction of the court should be permitted to frustrate its function.

46

However, since prejudice was neither demonstrated here nor probable and is
indeed not even claimed38 we do not read Sheppard as requiring that the
convictions be vacated. United States v. Armone, 363 F.2d 385, 393-396 (2d
Cir.), cert. denied, 385 U.S. 957, 87 S.Ct. 398, 17 L.Ed.2d 305 (1966); United
States v. Bowe, 360 F.2d 1, 12 n. 9 (2d Cir. 1966), cert. denied, 385 U.S. 961,
87 S.Ct. 401, 17 L.Ed.2d 306 (1966). However, we do not think that
"identification" by a government employee of a defendant in the midst of a
criminal trial as "an underworld figure" is an incident to be taken lightly, if it
occurred.39 Therefore, in future similar situations, we would regard as desirable
the holding of a hearing by the district court at a convenient time to find out
who, if anyone, spoke for the "Government," so that proper measures could be
considered, e. g., transmittal of the hearing transcript to the appropriate bar
association or to the employee's supervisor. We, of course, do not suggest that
the two attorneys directly asked by the trial judge furnished the information, in
view of their denials in open court.

47

Finally, objection is made to the manner in which Judge Palmieri handled a

communication from the jury. During its deliberations, the jury sent in the
following note:

48

We would like Agent Gruden's and Agent Smith's testimony as to what was
overheard at the bar at Adano's restaurant.

49

These agents had testified to the crucial conversation discussed above between
Dioguardi, Sutera and LeFranc in Adano's Restaurant on the night of December
17. Thereafter, the judge had a good portion of the agents' testimony read to the
jury. However, he refused appellants' request that there also be read the bulk of
the cross-examination of the agents, principally dealing with their ability to
hear what they said they heard. The judge ruled that this was not the agents'
"testimony as to what was overheard." Interpretation of the note was clearly a
matter of discretion; while it could have been read more broadly, the trial
judge's construction was not unreasonable. Under these circumstances, we find

no error in his ruling.

50

We have considered the other contentions made by appellants in this court and
find them without merit. The judgments are affirmed and all motions not
already disposed of are denied.

Notes:
1

Each appellant adopts the arguments made by the others insofar as applicable.
Therefore, we will identify the appellant on whose behalf a point was originally
urged only when the argument is peculiarly relevant to him

The charge against Conder was severed at the start of the trial

Nebbia and Desist also offered character testimony

See Lutwak v. United States, 344 U.S. 604, 618, 73 S.Ct. 481, 97 L.Ed. 593
(1953); United States v. Nuccio, 373 F.2d 168 (2d Cir.), cert. denied, 387 U.S.
906, 87 S.Ct. 1688, 18 L.Ed.2d 623 (1967)

We need not enter the controversy of whether the standard of ultimate

persuasion ("beyond a reasonable doubt") is incorporated, as appellants assume,
into the legal test of sufficiency of evidence, because the evidence met even
this standard. For discussion of the problem, see Moore's Federal Practice
Cipes, Criminal Rules 29.06 (1966); United States v. Leitner, 202 F.Supp.
688, 693-694 (S.D.N.Y.1962), aff'd per curiam, 312 F.2d 107 (2d Cir. 1963);
United States v. Burgos, 328 F.2d 109, 110-111 (2d Cir. 1964)

A question of the standing of appellants to object to the seizure has been raised,
but we do not have to reach it

The affidavit in support of the warrant to search the trailer and sheds stated, in
relevant part, the following:
The undersigned being duly sworn deposes and says:
That he (has reason to believe) that (on the premises known as) Lot #30, in Bill
Miller Trailer Park, 3318 Victory Drive, Columbus, Georgia where is located
one Blue and White, in color, House Trailer residence of Herman Conder in the
Columbus Division in the Middle District of Georgia, there is now being
concealed certain property, namely a large quantity of Heroin which see

attached affidavit which is a part of this Affidavit for Search and Seizure.
And that the facts tending to establish the foregoing grounds for issuance of a
Search Warrant are as follows:
*****
1

In furtherance of a continuing investigation commenced in New York City,

several weeks ago, which indicated that two individuals namely Jeanot Nebbia
and Jean LeFranc, would proceed to Columbus Ga. to receive a tremedous
shipment of heroin, the following facts are set forth to support my application
for two search warrants

Investigation in NYC indicated that Nebbia and Le Franc would proceed to

Columbus Ga. on December 18, 1965 and would there met and receive from an
individual I now know to be using the name of Sam DeSist, about 100
kilograms of heroin

On December 18, 1965 these two individuals did arrive in Columbus and did
meet at the Airport Sam DeSist. They rented a car and drove to the Buckineer
Restaurant. After a long conversation Nebbia and LeFranc were followed to
Opelika Alabama, where there were seen to purchase 3 bule suitcases and a
large foot locker

They then returned to Columbus and again met with Sam DeSist at the Black
Angus Restaurant. After a conversation, Nebbia and LeFranc departed and
speeded back toward Atlanta, Ga. Desist was followed to his room at 108 Black
Angus Motel. Shortly thereafter he was seen to meet and converse with one
HERMAN CONDOR. He was heard to tell Condor that they had run into
difficulties

Condor then dropped DeSist off at his motel. The following morning DeSist
was followed from his Motel to the restarurant. After breakfast he depart via
taxi cab. He exited the cab and then walked some 500 yards to the Bill Miller
Trailer Park. He emerged from there in the Volkswagon driven by the
aforementioned Condor. They were followed to the Gaylord Shopping Center.
At this location they had aconversation. De Sist was heard to tell Condor to
"get the merchandise ready to move"

Condor then again drove DeSist to his motel and then he returned to the
Gaylord Store and purchased four red suitcases. He then immediately

proceeded to his trailer at the aforementioned trailer park. He took the four
suitcases either into the trailer or into the two sheds immediately next to it
7

I would like search warrants for his vehicle and the trailer and its two sheds
[signature]
Francis E. Waters
Narcotic Agent

[Typographical errors in original.]

8

Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933)

Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503
(1958)

10

The dissenters inMcCray, even though voting to reverse the conviction,

explicitly recognized the principle.

11

Once again a question of standing is raised at least as to Dioguardi and

Sutera but it is not necessary to reach it

12

Silverman v. United States, 365 U.S. 505, 509, 81 S.Ct. 679 (1961)

13

With admirable candor, appellant Desist's original brief concedes that it is

"futile to argue here what has been foreclosed" by the Supreme Court, and
admits that much of its argument is to preserve questions for possible Supreme
Court review

14

Appellants argue that the narrow air-space between the double doors separating
the two rooms made the electronic installation a "parabolic mike" which
invaded Room 1602's "acoustical barrier."

15

Appellant's Appendix at 22a-23a, United States v. Pardo-Bolland, 348 F.2d 316

(2d Cir. 1965)

16

Although appellants were originally foreclosed from this line of inquiry, the
matter was eventually aired at the preliminary hearing before Judge Palmieri

17

Cf. United States v. Gibert, 25 F.Cas. pp. 1287, 1312 (No. 15,204)
(C.C.D.Mass. 1834) (Story, J.)

18

See Supplemental Memorandum for the United States, Black v. United States,
385 U.S. 26, 87 S.Ct. 190 (1966) (microphone penetrated molding of
petitioner's suite); Supplemental Memorandum for the United States, Schipani

v. United States, 385 U.S. 372, 87 S.Ct. 533 (1966) (microphone installed by
means of a trespass at place of business where petitioner and others frequently
met)
19

Memorandum for the United States in Opposition (dated October, 1966),

Dioguardi v. United States (Sup.Ct., Oct. Term 1966)

20

Supplemental Memorandum for the United States at 4-5 n. 3, Schipani v.

United States, 385 U.S. 372, 87 S.Ct. 533 (1966)

21

We note also that the United States Attorney for the Southern District of New
York, in a Supplemental Memorandum dated February 1, 1967, filed in this
court, flatly takes the position that the "policy declaration" was such a
"reaffirmation" of existing law. That the United States Attorney speaks for the
Attorney General in these matters in this court is evidenced by the
Memorandum, filed by him February 10, 1967, in United States v. Borgese,
372 F.2d 950 (2d Cir. 1967) (per curiam), admitting that evidence collected by
illegal wire tapping was used at the trial in that case and suggesting a new trial

22

Supplemental Memorandum for the United States at 5, Schipani v. United

States

23

The other appellants contend that they were also prejudiced, but that claim is
not impressive

24

See also Ex Parte Roelker, 20 F.Cas. p. 1092 (No. 11,995) (D.Mass.1854)

25

United States v. Guerra, 334 F.2d 138, 142-143 (2d Cir.), cert. denied, 379 U.S.
936, 85 S.Ct. 337, 13 L.Ed.2d 346 (1964); United States v. Paroutian, 299 F.2d
486, 490 (2d Cir. 1962); cf. Barber Asphalt Pav. Co. v. Odasz, 85 F. 754, 756
(2d Cir. 1898)

26

E.g., Thiede v. People of Territory of Utah, 159 U.S. 510, 519-520, 16 S.Ct. 62,
40 L.Ed. 237 (1895) (use of juror as interpreter held not prejudicial); United
States v. Guerra, supra note 25; Lujan v. United States, 209 F.2d 190, 192 (10th
Cir. 1953); United States v. Gonzalez, 33 F.R.D. 276, 279 (S.D.N.Y.1958)

27

Pietrzak v. United States, 188 F.2d 418, 420 (5th Cir.), cert. denied, 342 U. S.
824, 72 S.Ct. 44, 96 L.Ed. 623 (1951)

28

Suarez v. United States, 309 F.2d 709, 712 (5th Cir. 1962); cf. Kane v.
American Tankers Corp., 219 F.2d 637, 641 (2d Cir. 1955)

29

See Gonzalez v. People of Virgin Islands, 109 F.2d 215, 217 (3d Cir. 1940)

(assumingarguendo constitutional right, but finding no inability to understand

English).
30

The French Embassy originally asked the firm to represent Nebbia

31

Although Judge Palmieri accepted counsel's representation that he was not

conversant in French, the record clearly shows that the judge believed the
defense was not hindered by a communication barrier

32

At one point in the pre-trial hearings on eavesdropping, the Government

provided an interpreter whose services were used for an entire day. At the
beginning of the next day, Nebbia's counsel stated "I want to be certain that this
is not going to be an expense incurred by the defendant"; when told that
defendant would have to pay, counsel "disassociated" himself from the
interpreter
Indeed, the suggestion made here but apparently not in the trial court is
that the trial judge should have appointed an interpreter and required Nebbia
and the Government to abide the outcome of the case to determine who would
pay for the interpreter's service. Cf. 28 U.S.C. 1918(b).

33

The Criminal Justice Act of 1964, 18 U.S.C. 3006A(e), provides that payment
for services "necessary to an adequate defense" shall be directed by the court
out of appropriated Treasury funds, upon a finding "that the defendant is
financially unable to obtain them"

34

1966 Jud.Conf.Rep. 59

35

For this interpretation, the Government relies on part of the note of the
Advisory Committee:
General language is used to give discretion to the court to appoint interpreters
in all appropriate situations. Interpreters may be needed to interpret the
testimony of non-English speaking witnesses or to assist non-English speaking
defendants in understanding the proceedings or in communication with
assigned counsel. [Emphasis added.]

36

Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 87 S.Ct.
932, 17 L.Ed.2d 814 (1967)

37

Appellants do not claim to the contrary

38

We note but need not consider that the newspaper reference complained of was

only to Dioguardi, but the point is pressed also by Desist

39

Cf. Special Committee on Radio, Television & the Administration of Justice

(Judge Harold R. Medina, Chairman), Ass'n of the Bar of the City of New
York, Freedom of the Press and Fair Trial, Final Report with
Recommendations 14-26 (1967)