# Petition — Sutton v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 925

## Text

IN THE

Supreme Court of the Anited States

October Term, 1974

No......~.5=-48 1°

ROBERT A. SUTTON,
Petitioner,

vs.

THE UNITED STATES OF AMERICA,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

AARON J. JAFFE
ALBERT J. KRIEGER
25th Floor
401 Broadway
New York, N.Y. 10013

———————————__ ____ EEE

Dick Baliey Printers *P.0. Box X, Staten island, N.Y. 10302 © Tel.: (212) 447-5358

TABLE OF CONTENTS

Page
We I 6 os in on 5 5 Sa isn 8S 5s eee iti
IEEE ‘ive nciinsgdns2sadosdedese sein ne csensares 2
I SSRs A OO NGA atin ch tein 4 08484 2
Questions Presented for Review ..... 2... 6... c eee ee ee eeees 2
Constitutional and Statutory Provisions Involved ............ 3
SemRTD 5 sis ob ccd ccc tees cece secccccees 4
Reasons for Granting the Writ ........ 1.2.2... 0c eeeeeuss 13

cording to the culpebie conduct and knowledge of each
accused—tather than to the approach heretofore
permitted by this Court—which resolves procedural
questions according to the alleged dimensions of the
conspirational network ..... 2.2... 6.5. e cece eeaees

Il. The existence of a material variance between

pleadinys and proof as to the number of conspiracies is,
at least in this case, a question to be decided by the

13

Judge, not the Jury. ......... WessNeaChS~ssseceees 23

Ill. The “Harmless Error” doctrine cannot be invoked
where (1) the Trial Court has found a substantial pattern
of prosecutorial! misconduct, (2) the evidence of guilt,
although quantitatively substantial, is qualitatively
shabby, and (3) the Jury’s mixed verdict indicates that
instructions were not followed. .........5....000000- 28

IV. The ‘Dangerous Special Drug Offender’ sentencirig
provisions of Title 21, United States Code, Section 849,
on their face and as applied to Petitioner, are repugnant
to the Bill of Attainder, Due Process, Double Jeopardy,
Indictment, Jury Trial, Confrontation, Public Trial,
and/or Cruel and Unusual Punishments clauses of the

GOD bs cc cccbvcsewe ines cnctnevd bevsucésue 34
nn SEARED SPS OOROE TY AE OPN LONE LE 2 43
Appendices:

A. Opinion of the Court Below ..............000eeeeeeees 47
B. District Court Judgment Order .............0000eceeee $1
C. Gotenn Gn Ge TRIE & wists debe 00 vane ds ete soe Hees 53
D. 21 U.S.C. Zeatiens OP, GEO... ccccctevstes sovconns 56
E. Model Penal Code Section DUP vib she ep dae ony rete 62

iii
CASES
Berger v. United States, 295 U.S. 78 (1935) ............ 30, 31
Boyd v. United States, 116 U.S. 616 (1886) ..............-- 29
Brady v. Maryland, 373 U.S. 83 (1963) ..........65-0ee ee 8
Bram v. United States, 168 U.S. 532 (1897) ............--. 29
Bruton v. United States, 391 U.S. 123 (1968) .............. 29
Chapman v. California, 386 U.S. 18 (1967) .............. 29n.
Cummings v. Missouri, 4 Wall 277 (1867) .............0+. 38n.
Direct Sales Co. v. United States, 319 U.S. 703 (1943).. 16a., 17
Ex Parte Garland, 4 Wall. 333 (1867) ................. 38n.
Furman v. Georgia, 408 U.S. 238 (1972) ..............44. 38
Giglio v. United States, 40S U.S. 150(1972) ....:......... 30
Green v. United States, 332 F.2d 788 (Sth Cir.) cert. denied,
Es PEE oA diva 336 U.S. 440 (1949)—that am-
bitious conspiracy prosecutions tend to be unmanageable for the
courts and unfair to the defendants.

D. The prir.ciples and procedures recommended in the Model
Penal Code, although designed for adoption as State statutory
law, are readily adaptable to implementation in the federal
system by judicial decision. Cf State ve Gregory, supra.
Petitioner urges that such implementation is past due. This
Court should grasp the opportunity here proferred, and adopt
these considered recommendations of leading jurists, scholars,
and practioners. By doing so, this Court would provide needed
clear guidance for prosecutors; would reduce the tremendous
ang recurring cost—to the government and to defendants—
attending litigation at trial and on appeal of question that, 2s
here, are collateral to the accused’s commission of acts as to
which the government might justly complain; and most im-
portantly, would generate increased assurance that jury verdicts
are correct in fact and at law, ie., that justice had been vin-

dicated.

E. Had the Model Penal Code procedural requirements been
enforced at petitioner’s trial, matters would have been
remarkably different. Jenkins and Cameron could not have been
jointly tried; they did not conspire with one another. Their acts
and purposes were competitive, whereas by definition, con-
spirators are cooperators in crime. The time frames of their
culpable acts were mutually exclusive. Each should have been
tried seperately for conspiring to provide McNeil s operation
with heroin during different intervals of time. Petitioner ad-

22

mittedly would have been separately liable for his acts as first
Jenkins’, later Cameron’s, assistant. But to the extent he would
face two separate prosecutions, it would be because at two
seperate times he knowingly entered into two distinct con-
spiracies.

Assuming the indictments were not originally brought in the
Southern District of New York—where petitioner’s pertinent
activities were centered—a trial court, not faced with the
government's strained theory of a singie conspiracy to distribute
heroin in the District of Columbia, might readily have granted a
change of venue.20 Had a trial been held in New York, there
would have been no opportunity for a prosecutor to appeal to the
jurors’ regional prejudices, as was persistently done in this case.

During trial, a wealth of irrelevant testimony as to the nature
of McNeil’s reatil operation, the manner in which various
witnesses were drawn into his cohort, and the activities of
McNeil’s operatives during the hiatus between the closing of the
Jenkins connection and the commencement of commerce with
Cameron, would have been excluded. And the question inhering
in the verdict—whether the case was not proved against
Cameron, or he was thought to belong to a different conspiracy
than Jenkins—could not have surfaced. With separate trials
under the procedural standards petitioner urges, each verdict
would have been crystal clear.

Whether the Model Penal Code approach, if adopted, would
increase the government’s litigation expenses, petitioner is
unable to say. Although there would have to be more separate
trials, each would tend to be shorter. As further compensation,
appellate activity would be substantially narrowed in scupe, if
not diminished in quantity. Assuming, however, that the cost of
prosecutions would show a net increase, it would be a small price

to pay for the major gains in the quality of justice that would
thereby be obtained.

20. Note that after the verdict, Jud i i i speci
, Judge Richey, in setting high bail, ficall
noted that whatever roots petitioner might have in New York City, he had aa
in Washington, D.C. Hence he was deemed a greater bail risk.

23

Il. THE EXISTENCE OF A MATERIAL VARIANCE BE-
TWEEN PLEADINGS AND PROOF AS TO THE NUMBER
OF CONSPIRACIES IS, AT LEAST IN THIS CASE, A
QUESTION TO BE DECIDED BY THE JUDGE, NOT THE

JURY.

Variance in the number of conspiracies pleaded and proved is
a recurring question that has plagued the federal courts at least
since Kotteakos, supra. If, as petitioner urges above, this Court
adopts the Model Penal Code approach for federal conspiracy
trials, the variance problem all but disappears. See Commentary
at 119, reproduced at note 19, supra. The required nexus
between each accused and the offenses to be tried in a single
proceeding generally precludes prosecutions of vast networks,
except where there is substantial evidence of syndicated crime.
If, however, the Model Penal Code provisions are to be rejected
for federal conspiracy trials, there is need for a definitive ruling
as to whether the existence of prejudicial variance in the number
of conspiracies is a question to be resolved by judge or jury.

The courts below determined that the variance question is
properly submitted to the jury. In doing so, they were following
established precedent in the absence of clear guidance from this
Court.21 See United v. Brown, 495 F.2d 593 (ist Cir.), cert.
denied, U.S. , 95 S.Ct. 226 (1974), United States v.
Vicars, 467 F.2d 452 (Sth Cir. 1972), cert. denied, 410 U.S. 967
(1973); United States v. Aiken, 373 F.2d 294 (2d Cir.), cert.
denied, 389 U.S. 833 (1967); Koolish v. United States, 340 F.2d
513 (8th Cir.), cert. denied, 381 U.S. 951 (1965); Green v.
United States, 332 F.2d 788 (Sth Cir.), cert. denied, 379 U.S.

949 (1964).
A. Although the existence of a conspiracy is a threshhold jury
question, which must be resolved in the affirmative before the

21. The apparent absence of conflict among the circuits is readily explained.
If after receiving evidence a trial court finds variance, charges are dismissed
and no appeal lies. If the court is uncertain, it submits the question to the jury.
Only if no variance is found will the issue be preserved. Thereafter, the
superficial view that the jury resolved a factual dispute is very comfortable. A
contrary ruling might necessitate repeating an expensive showcase trial for
defendants who clearly violated the law, albeit perhaps not in the manner
alleged. See note 19, supra.

24

jury determines individual verdicts, petitioner submits that the
question of variance as to the number of conspiracies is properly
determineed by the court. The rationale underlying the
foregoing assertion is multifaceted.

First. Although questions of fact are in issue, the question to
be resolved is a procedural one. By analogy, none would argue
that a Fourth Amendment suppression motion should be
resolved by the jury. Although conflicting testimony may be
elicited, and factual determinations are essential to any ruling,
the decision is universally recognized as one for the court.
Notwithstanding the Sixth Amendment gua” tee of jury trial,
and that the suppression ruling is likely to be dispositive of the
case, the issue is withheld from the jury for at least three
reasons:22 (1) the controlling legal principles are technical and
complex, and hence are within the peculiar expertise of judges,
not laymen; (2) there is a strong desire for uniformity of treat-
ment and consistency of result as a matter of judicial policy; and
(3) the jury’s attention might be diverted from the ultimate
question of individual guilt. Each of these reasons is fully ap-
plicable to the question of variance.

Second. The American tradition of eschewing special in-
terrogatories in criminal cases, see Spock, supra, 416 F.2d at
180-83, prevents reviewing courts from ascertaining that the jury
followed instructions. See note 7, supra. General verdicts are
preferred so that a jury, by interposing its conscience, can serve
as a bulwark against oppression. In conspiracy cases, however,
where instructions tend to be long and convoluted and the
danger of “spillover” contaminating a given co-defendant’s
verdict is ever present, the policy against special interrogatories
tends to defeat its underlying purpose. Aside from so-called

22. There is an obvious fourth reason, which is peculiar to the nature of a
suppression inquiry: testimony on the motion may be inadmissible on the
merits, and thereby prejudice the accused. But absent the other three reasons,
a two-stage trial — where one jury determines the suppression motion, and
another the merits — could preserve the “factual’’ issues attending suppression
motions for determination by the accused’s peers.

25

“political’’ cases, where that purpose might be served, the in-
sistence upon general verdicts permits jurors to imagine that one
of the conspiracies found is major, and thereupon convict its
participants; and as to those defendants who belong solely to the
lesser conspiracies, the more discriminating jurors vote to
acquit, the others vote to convict. When this happens, the
conspiracy found is not the conspiracy pleaded; the jurors have
not fulfilled their solemn obligation to apply to the evidence the
law given by the court.

Third. Resolution of the variance question by lay jurors is
necessarily a sham. Jurors are not trained experts in the law of
conspiracy. They have not pondered upon wheel and chain
metaphors. That they will not acquit on the basis of variance
when confronted with overwhelming evidence of guilt as to
multiple conspiracies had been counsel’s invariable experience.
No refutation of that generalization is to be found in media
accounts, personal memoirs, or case reports. When after a long
trial twelve citizens retire to deliberate, they search for a con-
spiracy, any conspiracy; it need not be the one pleaded. If more
than one has been proven, it is deemed of no great consequence.
Jurors do not appreciate the difficulties in designing a defense,
and the prejudice to trial strategy that flows from the variance.
Cousequently, they either lump all the conspiracies as one, or the
prime conspiracy yields convictions, the secondary does not.

Although there can be no direct confirmation of the foregoing
assertions, there is compelling indirect proof. It is simply in-
conceivable that in virtually every case the government’s theory
of a conspiracy’s dimensions has accorded with reality except as
to those individual defendants not convicted. The blunt truth is
that juries are unable to draw the fine distinctions which are
critical to determining variance.

Fourth. Assuming that a jury could rationally determine the
existence of variance, it is unable to determine that the variance
found has been prejudicial. Indeed, there is no way in which a
court could instruct on the issue of prejudice. When, as here, the
court instructs on variance, it necessarily ts determining that as a

_ matter of law, any variance which might be found is prejudicial.
In a complex multi-defendant case such an instruction, if there
were any chance that the jury could and would obey, must
compromise the government’s interests as to at least some of the
co-defendants.

For these reasons, variance in conspiracy cases must be
resolved by the court, or not at all. See generally P. Devlin, Trial
by Jury, chaps. 4, 5 (“The Control of the Jury”) (University
Paperbacks ed., 1966); also see note 19, supra.

Petitioner submits that resolution of the variance question by
the court requires no novel procedures. Trial judges are already
familiar with the problem. They are required to make
preliminary rulings on motions to dismiss and requests for in-
structions. Under the prevailing practice, their decisions reflect
a determination as to whether a prima facie case has been made
both pro and contra. If the government has adduced evidence
upon which a jury might find no variance, a motion to dismiss is
denied. If there is evidence upon which a jury might find
variance, an instruction is given.

Proper resolution by the court can be a -mplished by
determining the weight of the evidence, rather than the presence
of contradictory evidence. Resolution can be accomplished
before, during, or after trial. Before trial, statements of expected
proof can be examined. To the extent that disclosure of such
statements might transcend limitations on discovery, they can be
received in camera. Thereafter, the court could rule, with or
without an evidentiary hearing, just as is done with suppression
motions. During trial, the pretrial ruling can be revised if crucial
evidence is at variance with the statements of expected proof. At
the conclusion of trial, the judge is in a position to make a final
ruling, with subsidiary findings if appropriate, as to the weight
of the pertinent evidence. In making its preliminary and final
rulings, the court is in a position to evaluate probable prejudice,
and thus to warn the prosecutor of the risk he may run.
Whatever inadequacies may exist in this procedure, they are
necessarily dwarfed by the prevailing practice in which the

27

government's prima facie showing of no variance is sufficient to
remove the question from the court’s purview and submit it to
the jurors, who are unable to properly resolve it.

B. Assuming arguendo that in a special case it would be proper
to submit the question of variance to the jury, in petitioner's case
it was not. The evidence clearly pointed to the existence of three
separate and distinct conspiracies, two of them concerned with
wholesale distribution of heroin in New York; the third—by
which the government sought to link the two—concerned with
retail distribution. Although a timely motion had been made for
court determination of the variance question, the issue was
ultimately submitted to the jury. The jury’s verdict is made
consistent if they failed to agree as to the linkage, and were
convinced that the uncontested McNeil retailing scheme and the
Jenkins’ wholesaling conspiracy were proved.

There exists no permissible means for uncovering the jury’s
logic. They may have been unconvinced of Cameron’s par-
ticipation in crime—although the government’s evidence of his
involvement was substantial. But if they were not convinced of
Cameron’s participation, how could they have found, as the
assistant argued at sentencing, that petitioner had been
Cameron’s agent? And if the jury’s division was premised on
conflicting views as to whether Cameron’s operation was part
and parcel of a Jenkins-McNeil conspiracy, then necessarily
some of the jurors found variance, and were therefore obliged to
vote acquittal for all three remaining defendants. The theory
adopted by the Court of Appeals, “cure by verdict’’, is no more
legitimate here than in a case of misjoinder—where it is

‘“‘a roughsnod device designed to determine whether
the jury has followed the court’s instructions and charge.
In deciding whether any prejudice has stemmed from
joinder, the appellate court looks to the verdict;
acquittal of a defendant on any count cures any error.
The theory assumes that because the jury has been
selective in its verdict, it must have been alert
throughout the trial and kept the evidence separate. But

this reasoning assumes that the jury’s verdict was in
accord with the weight of the evidence. Such an
assumption is unwarranted; after all, an acquittal on a
strong count might be combined, in the case of an
inattentive jury, with conviction on a weak count. More
important, the theory of cure by verdict ignores the
possibility that, had there been no prejudice from the
joinder, the defendant might have been acquitted on all
counts.”

Note, 74 Yale L.J. S53, 55S (1965) (footnotes omitted).

In the instant case, there exists a strong possibility that the
jury misconstrued or misapplied the court’s instruction. Where
it is impossible to ascertain that the jurors properly applied the
law, reversal is required. Stromberg v. California, 283 U.S. 359,
370 (1931). Thus even if the variance question might be sub-
mitted to the jury in a special case,23 the ambiguous verdict in
this case is proof positive that the trial court should have resolved
the question, and that the appellate court should not have
deferred to the jury’s purportedly careful findings.

ill. THE ‘“‘HARMLESS ERROR” DOCTRINE CANNOT BE
INVOKED WHERE (1) THE TRIAL COURT HAS FOUND A
SUBSTANTIAL PATTERN OF PROSECUTORIAL
MISCONDUCT, (2) THE EVIDENCE OF GUILT,
ALTHOUGH QUANTITATIVELY SUBSTANTIAL, IS
QUALITATIVELY SHABBY, AND (3) THE JURY’S MIXED

VERDICT INDICATES THAT INSTRUCTIONS WERE NOT
FOLLOWED.

Appellate findings of harmless error have never been sanc-
tioned as a substitute for a fair trial. To the contrary, error can
be non-prejudicial only when two stringent criteria are fulfilled:
(1) the conduct of the trial as a whole must have been fair, albeit
imperfect; (2) absent the error found, the verdict would not have

23. Cf Grunewald. supra (limitations properly submitted to jury under
circumstances of the case).

29

been altered. Where these limitations on invocation of the
doctrine are diluted, trials which undermine fundamental
notions of justice are tolerated.

We are not prepared to discard the presumption of innocence.
Tot v. United States, 319 U.S. 463 (1943). Nor the restrictions
on governmental activities enshrined in the Fourth Amendment.
Katz v. United States, 389 U.S. 347 (1967); Weeks v. United
States, 232 U.S. 383 (1914); Boyd v. United States, 116 U.S. 616
(1886). Nor the privilege against self-incrimination. Massiah v.
United States, 377 U.S. 201 (1964); Bram v. United States, 168
U.S. 532 (1897); Boyd, supra. Nor the right of confrontation.
Bruton v. United States, 391 U.S. 123 (1968; Kirby v. United
States, 174 U.S. 47 (1899). Were we to do so, some offenders
might be punished who otherwise would escape justice. But that
punishment would be exacted at the cost of everyone’s freedoms.
Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis,
Jr., dissenting); Boyd, supra. As Benjamin Franklin would put
it, we would pay too much fgr the whistle of criminal convictio ns.
And we do pay too much when harmless error findings are
tolerated as substitutes for fair trials or considered appellate
review.24

24. In determining that the verdict would not have been altered, an appellate
court bs echatiatiog its own judgment for the unexercised judgment of the jury.
If such substituted judgment is liberally allowed, the Sixth Amendment
guarantee of jury trial is defeated. In order to minimize the friction with jury
trial and due process-fair trial rights which inheres in the harmless error
doctrine, this Court has insisted that the error be deemed harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967).

The error found in the instant case — prosecutoriai assertion that the
government could have called 300 additional witnesses; see ABA Standards
Relating to the Administration of Criminal Justice: The Prosecution Function,
§§S.8(d) 5.9 (1971) — even if viewed in isolation, is not a trivial one. As the
magnitude of the error increases, satisfaction of the Chapman standard
requires a corresponding increase in the quantity and quality of the proof of
guilt. But in petitioner's case, because the quality of the evidence was
questionable, the court below eschewed characterizing it as overwhelming.
Cf. Note, 74 Yale L. J. 553, SSS-S6 (1965). The court’s failure to specifically
find that the verdict could not have been altered, and its refusal to address
itself to the trial court's specific findings of a pattern of _Prosecutorial
misconduct, invite the conclusion that the doctrine has been “applied as a
rubric to uphold [a] conviction with no more than a pro forma review. Id.

Beyond the constitutional restrictions which serve to safeguard
the citizenry from oppression, this Court and leading
ica organizations have establishei limitations on
prosecutorial zeal so as to guarantee that trials are su i
fair. The salutary rationale underlying these ot ay
prosecutorial conduct is that in a criminal prosecution, the
government's “interest is not that it shall win a case, but that
justice shall be done.” Berger v. United States, 295 U.S. 78, 88
(1935). See generally, Giglio v. United States, 405 U.S. 150, 153-
S4 (1972) and cases cited therein.

A. Petitioner’s trial was infected with repeated instances of
prosecutorial misconduct, which rise to the level of a pattern.
Time and again the trial judge found cause to “condemn” the
assistant’s actions and attitude. The instances presented in the
Statement of the Case are but the tip of an iceberg. The trial
judge’s extraordinary exclamation that he had never been so
“tortured,” that he had suffered “‘direct and indirect pressures,”’
precludes any reviewing court from treating the error found as
an isolated instance. It was the culmination of an intentional
course of misconduct.25

. Over and above the patently prejudicial closing argument, the
discovery violations set forth in the Statement of the Case, and
the mysterious “direct and indirect pressures” applied to the
trial judge, the assistant’s persistent characterization of the
defendants and their attorneys as New Yorkers constituted an
unprofessional appeal to the jurors’ regional prejudices. ABA
Standards, supra note 24. A defendant removed from his home
town—where the major criminal infranctions allegedly tran-
spired—for trial in theDistrict of Columbia, cannot receive a fair

25. In defense of his allusion to numerous uncalled witnesses assistant
declared, “Your Honor, I have heard this argument made Ee
before. Such being the case, the Court of Appeals at a minimum should ha
informed the legal community that such argument will not be tolerated But
the court refused to do so. It acknowledged error in a memorandum opinion

which may not be cited as precedential authority
District of Columbia Circuit, $11 F246 447. Nae SO) for the

31

trial if the repeated thrust of the prosecution goes not to his
culpable conduct, but instead to the inflamatory insistence that
the conspiratorial objective of this stranger was to corrupt the
good people of the Nation’s Capital by distributing the most
dangerous of narcotics. The record leaves no doubt that this was
a case in which the prosecutor’s overriding ambition was to win;
in which the standards of conduct demanded by this court, the
trial court, and the American Bar Association were

systematically violated. The situation and the remedy cannot be
distinguished from that found in the leading case:

. . we have not here a case where the misconduct of the
prosecuting attorney was slight or confined to a single
instance, but one where such misconduct was
pronounced and persistent, with a probable cumulative
impact upon the jury which cannot be disregarded as
inconsequential. A new trial must be awarded.

Berger, supra, 295 U.S. at 80.

B. Petitioner concedes that the evidence of his guilt was

quantitatively substantial. Qualitatively, however, it was shabby.

All of the consequential evidence was contained in the testimony

of individuals who were drug addicts at the time of their alleged

observations, whose moral standards were all but non-existent,

and whose testimony was not merely elicited by very generous
bribes, but was offered under the threat of requests for sub-
stantial sentences if it did not conform to the prosecution’s
expectations. See note 9, supra. The quality of such evidence can
never compel a jury conviction. Cf. Napue v. Illinois, 360 U.S.
264 (1959) (jury’s estimate of the truthfulness and reliability of
witnesses may be determinative of verdict). Where additionally,
significant error has been found, and that error was not isolated,
but was part of a pattern discerned by the presiding judge, it is
inconceivable that a reviewing court can be confident the jury
would have found guilt beyond a reasonable doubt.76

26. Judge Friendly has stated that “the test [for “harmless error’”’] on
collateral attack generally should be not whether error could have affected the

C. As previously stated, the jury’s inability to agree as to
Cameron’s guilt indicates that some jurors found multiple
conspiracies, and voted convictions only on the conspiracy they
believed to be more prominent. If such be the case, the careful
evaluation of the evidence asserted by the Court of Appeals is
illusory, for the evaluation was made contrary to the court’s
instructions. In any event, automatic “cure by verdict,” see
Note, 74 Yale L.J. 5S3, SSS (1965) (quoted pp. 27-28, supra), is a
pernicious doctrine, especially when invoked in tandem with the
harmless error doctrine. If the court is to draw inferences from
the jury's verdict, as the court below did, it must explore the full
range of reasonable inferences. a

By selecting a preferred inference, and declaring that
other is possible, the court has erected an impenetrable barrier
against appellate relief from unjust conviction. If the jury
convicts all defendants, the evidence almost invariably would
permit—but not compel—a facile finding of sufficient strength
to cure error. If the jury splits its verdict, its discernment is
presumed to cure error. Either way, the verdict is a substitute for
a meaningful appeal.

At least in this case, the verdict cannot be deemed a cure
absent evaluation of the strength of the evidence against
Cameron and a careful determination of the reasonableness of
alternative explanations for the disagreement as to him. But by
the court’s own admission, the only interpretation of the verdict
which it would entertain was the curative one. Given the

result but whether it could have caused the punishment of an innocent man.”
Friendly, /s Innocence Irrelevant? Collateral Attack on Criminal Judgments.
38 U. Chi. L. Rev. 142, 157 n.81 (1972). Implicit in his position is the view that
on direct appeal, the proper inquiry goes to the probable impact of error on the
result, and not to the probability of guilt. Probability that the evidence would
compel a rational jury to find guik is different from the probability of guilt in
tact. The former, in Friendly’s formulation, relates to the evaluation of
Ciaee een tra cupesk: the letter, on collateral attack
ourt of Appeals’ finding of * "" evidence of s

might be apqoopsiate if ita ware 0 habeas eouamading: tat te emer ctuhe
misapplied the harmless error test in not reaching the question of the certainty
of a guilty verdict in the absence of the error found.

33

reasonable doubt that exists as to the meaning of the verdict,
there can be no abiding confidence that absent the error found,

and the errors ignored, the jury would have convicted petitioner.

D. The harmless error doctrine serves a valuable and legitimate
function. It disallows frivolous appeals where error is isolated,
the evidence of guilt is overwhelming, and the nature of the error
is such that in its absence, the verdict could not have been
different. When invoked promiscuously, however, the doctrine
converts the appellate process from a search for justice into
nothing more than a lottery; it derogates the fair trial guarantee
implicit in the due process clause of the Fifth Amendment, and
the jury trial guarantee of the Sixth Amendment. To prevent
such degradation of the appellate process, the doctrine must
only be invoked upon a searching examination of the full record.

In conducting that examination, three types of error may be
found. Some errors are necessarily beyond the reach of the
doctrine. E.g., admission of a coerced confession; denial of
counsel. Some errors are invariably trivial in their impact. E.g.,
erroneous admission of hearsay on a collateral issue, as to which
there was substantial independent evidence properly introduced.
Some errors entail a significant probability of prejudice. E.g.,

- arguing that 300 or more additional witnesses could have been

called. Where this last type of error is found, the declaration that
it is harmless must reflect a meticulous scrunity of the record.

Had the court below carefully analyzed the record, its opinion
could not reasonably have ignored the trial judge’s repeated
excoriation of the assistant’s tactics. It could not have ignored
the obvious deficiencies in the credibility of the government’s
self-styled ‘‘major witnesses.” It could not have ignored the
substantial probability that the jury misapplied the court’s
instructions, and in fact, was not agreed that the government
had proven Jenkins’ and petitioner’s participation in a single
continuing conspiracy throughout the period described in the
indictment.

The harmless error doctrine is misapplied when it is used to
cleanse a malignant record. The Court of Appeals, in finding

34

harmless error, stretched the limits of that doctrine beyond the
breaking point. Its loose application of the doctrine was ac-
complished in derogation of the two essential criteria implicit in
the doctrine’s name: that the trial was undoubtedly fair,27 and
that in the absence of error, the jury undoubtedly would have
reached the same result. The facility with which the court below
found harmless error demonstrates the urgent need for a
reaffirmation by this Court of the doctrine’s proper limits and
functions.

IV. THE ‘DANGEROUS SPECIAL DRUG OFFENDER’
SENTENCING PROVISIONS OF TITLE 21, UNITED
STATES CODE, SECTION 849, ON THEIR FACE AND AS
APPLIED TO PETITIONER, ARE REPUGNANT TO THE
BILL OF ATTAINDER, DUE PROCESS, DOUBLE
JEOPARDY, INDICTMENT, JURY TRIAL, CON-
FRONTATION, PUBLIC TRIAL, AND/OR CRUEL AND
UNUSUAL PUNISHMENTS CLAUSES OF THE CON-

STITUTION.

The statute here challenged reflects a congressional desire to
impose drastically enhanced sentences on narcotics offenders
who are found to be both “special’”’ and “dangerous” within the
meaning of the statute. “Special” offenders are those who, upon
a preponderance of information available to the sentencing
court, meet any of three defining paragraphs of subsection (e):
recidivists, (e)(1); persons who have adopted drug dealing as a
vocation, (e)(2); and those who either played a central role in a
large conspiracy, or aggravated a conspiratorial offense through
force or bribery, attempted or accomplished, (e)(3). In ad-
dition to finding that the prisoner is a special offender, the court

27. In addition to the prosecutor's repeated misconduct, the fairness of
petitioner's trial was compromised by the massive quantities of inflammatory
testimony admitted to prove the existence and nature of McNeil’s retail
operation in Washington, when the sole contested issues revolved around
Jenkins’ and Cameron's wholesale activities in New York. See Section I(E),

supra.

35

must make findings as to the separate element of “danger.”
Subsection (f); see United States v. Duardi, 384 F.Supp. 856,
860 (W.D. Mo. 1973) (construing similar provisions of 18
U.S.C. Section 3575). A special offender is dangerous if the
probability of future criminal conduct is deemed so substantial
that protection of the public requires a sentence substantially in
excess of the maximum prescribed for the offense tried.

Section 849 can only be invoked at the discretion of the
prosecutor. Subsection (a); United States v. Noland, 495 F.2d
$29 (Sth Cir. 1974). This is done by filing in cameta and serving
an application, prior to trial or entry of guilty plea, setting forth
with particularity the information upon which the government
believes an accused to be both special and dangerous. Sub-
section (a). See; United States v. Tramunti, 377 F.Supp. 6, 10
(S.D.N.Y. 1974); cf. United States v. Kelly, 384 F.Supp. 1394,
1399 (W.D. Mo. 1974) (mere tracking of defining language in
subsection (e) is insufficient to meet particularity requirement of
subsection (a); 18 U.S.C. Section 3575). In the event of con-
viction, the application may be received by the sentencing judge,
who thereafter conducts a mini-trial, at which the government
attempts to prove the facts pleaded in the application. Sub-
section (b).

The rules of evidence at this hearing are greatly relaxed.
Id.; see also Section 850. Hearsay is generally admissible,
and the facts found may be supported by sealed
evidence not disclosed to the prisoner. Subsection (b). The court
is not limited to the information adduced at the hearing, but
may also rely on evidence brought out at trial on the underlying
offense. Jd. The burden of proof is met with a “preponderance of
the information.” Jd. An adverse ruling, or a favorable ruling
coupled with a less than maximum enhanced sentence, may be
appealed by the government. Subsection (h).

In construcing Section 849, or the substantially identical
sentence-enhancing provisions of Title 18, United States Code,
Section 3575, the lower courts have demanded strict compliance
with the statutory procedures. Noland, supra; Kelly, supra;

36

United States v. Duardi, 384 F.Supp. 874, 877 & n. 2, 879
(W.D. Mo. 1974); Tramunti, supra. The court below did not.
Additionally, the last of the Duardi opinions held, as petitioner
here urges, that the statutory scheme (there, Section 3575) was
constitutionally deficient.

Section 849 is an inventive amalgam containing elements of
criminal law, civil law, and administrative law. It is criminal law
insofar as its invocation is at the sole discretion of the
prosecution, its application requires specific findings as to two
statutory elements, and its consequence is a dramatic increase in
the penalty to which the prisoner is subject. It is civil law in that
there is no right to public jury trial after indictment and the
burden of persuasion is met by a preponderance of the in-
formation, rather than proof beyond all reasonable doubt. It is
administrative law in that the standards for appellate review are
those traditionally associated with judicial review of agency
action, the rules of evidence are limited solely by the purpose of
the hearing, not by the traditional safeguards against
unreliability, and the exercise of discretion is circumscribed by a
requirement that specific supportive findings be made.

The evils to which the statute is directed could have been
reached, with substantially the same effect, through traditional
legislative devices. The maximum available sentence could have
been increased for all narcotics offenses. Discretionary factors to
be considered in sentencing could have been set forth in the
statute. Appellate review of sentencing, assuming it would
confound neither the double jeopardy nor due process clauses,
could have been specifically authorized with reference to the
favored discretionary criteria. But the Congress chose not to
follow the orthodox route. It would not leave sentencing
discretion exclusively where it has always been, in the judiciary.
It would not, in the alternative, make available to the prisoner
the full panoply’ of procedural protections constitutionally
guaranteed the criminally accused. The evil which it perceived
was deemed to justify these extraordinary departures from prior
practices. However commendable the congressional purpose

37

might be, petitioner submits that the resulting product is totally
alien to our criminal justice system and to our constitutional
form of government.

A. The challenged section is prima facie unconstitutional. The
sweeping definitions set forth in subsections (e)(2) and (3) are so
vague as to deny adequate notice, to judge or prisoner, as to
what behavior will be reached. For example, subsection (e)(2)
requires that the prisoner has “manifested special skill
or expertise’’ as part of a pattern of dealing in narcotics.
No guidance is offered, and none exists, for dis-
tinguishing the ordinary skill or expertise from the special.
The statutory characterizations of skill or expertise involve
qualities and capabilities which, in general, are common in
varying degrees to all humanity. It might well be argued, as the
prosecutor argued below, that the mere fact of participation in a
narcotics distribution conspiracy is sufficient proof of special
skill or expertise. Conversely, it might be argued that the mere
fact of apprehension by law enforcement authorities is
equivalent proof of the absence of such traits. A much more
informative criterion is needed.

It would be difficult to conceive of a standard more vague than
that here enacted. Indeed, subsections (e)(2) and (3) are in-
tentionally vague. They are designed to visit recidivist con-
sequences upon prisoners whose alleged additional misconduct
the government cannot or will not prove in a jury trial. As is the
case with the virtually identical procedures and language of 18
U.S.C. Section 3575, the enhanced sentencing scheme ‘“‘is
designed to reach the professional criminal who is a repeating
offender but who may not have a prior conviction record.” Letter
from Assistant Attorney General Wilson to the Chairman of the
House Judiciay Committee, Sept. 9, 1970, printed in H.R. Rep.
No. 91-1549, 91st Cong., 2d Sess. (1970).

To the extent that the determination of dangerous special
offender status and the ensuing infliction of harsh punishment
are accomplished without benefit of indictment or jury trial for
specific offenses, Section 849 is repugnant to the Bill of At-

38

tainder.2° Indictment, and Jury Trial provisions of the Con-
stitution, and entails the infliction of Cruel and Unusual
Punishment. See Tate v. Short, 401 U.S. 395 (1971) (statutory
ceiling on imprisonment for any substantive offense must be the
same for all defendants); cf. Furman v. Georgia, 408 U.S. 238,
309-310 (1972) (“capriciously selected random handful’)
(Stewart, J., concurring). To the extent that the court may act on
the basis of sealed information obtained from secret sources, the
section is repugnant to the Confrontation, Public Trial, and Due
Process clauses. To the extent that the government may choose
to bring a separate prosecution for the same misconduct upon
which special offender status is predicated, the section is in
conflict with the prohibition against Double Jeopardy.29 To the
extent that the section imposes punishment on members of a
class for their status, for what they are (e.g. , skillful) rather than
for what they did, it contravenes the Cruel and Unusual Punish-
ment clause. See Robinson v. California, 370 U.S. 660 (1962);
cf. Lambert v. California, 35S U.S. 225 (1957). To the extent
that sentencing discretion is partially removed from the judiciary
and given to the executive branch, the section violates the Due
Process clause and the Separation of Powers doctrine. To the
extent that the section permits governmental appeal from a
sentencing decision it is totally alien to the federal judicial
system and presents Due Process and Double Jeopardy
problems.

The manifold ¢epartures of this section from the cornerstones
of our criminal justice system, as described above, are so patent

28. See Cummings v. Missouri, 4 Wall. 277 (1867); Ex parte Garland, 4
Wall. 333 (1867); cf United States v. Brown, 381 U.S. 437 (1965.

29. It is obvious that in the traditional sense, jeopardy does not attach
in the absence of indictment, arraignment, or the receipt of evidence.
Nonetheless, where the government puts facts in issue in what purports to be a
judicial proceeding, and demands that upon proof of those facts the prisoner
be liable to an additional decade behind bars, form would be exalted over
substance, and words would lose their common meanings, were it contended
that jeopardy had not attached.

39

as to need no further citation. Legisiation such as Section 849,
enacted in a moment of hysteria, tends to be subversive of the
Nation of Laws it was intended to protect.

B. Assuming that Section 849 can be reconciled with the Con-
stitution, its application to petitioner has been arbitrary and
capricious, in derogation of the Due Process clause. The ap-
plication of the prosecutor, and the findings of the court, bear no
relationship to the requirements of the statute.

1. The initial application, which was never amended, did not
set forth with particularity the facts upon which the government
alleged that petitioner was either dangerous or a special drug
offender within the meaning of the statute. The application
merely tracked the defining characteristics set forth in sub-
section (e)(3): petitioner allegedly conspired with three or more
persons and did, or agreed to “initiate, organize, plan, finance,
direct, manage, or supervise” the narcotics distribution scheme.
Which of the verbs was applicable, and the factual basis for that
conclusion, the government’s application did not say. As such, it
was fatally deficient for not meeting the “particularity”
requirement of subsection (a). See Noland, supra; Tramunti,
supra; cf. Duardi, supra at 879; United States v. Edwards, 379
F. Supp. 617 (M.D. Fla. 1974). Accordingly, the sentencing
court was without jurisdiction to award an enhanced sentence.
Doubly so, for no particular facts which might support a finding
as to the separate element of dangerousness pursuant to sub-
section (f) were set forth in the application. See Duardi, supra at
880.

2. Assuming arguendo that the jurisdictional requirements of
subsection (a) were met, the jurisdictional requirements of
subsection (b) were not. At the sentence hearing, the government
offered no elaboration as to the particular conduct upon which it
sought findings of special offender and dangerousness. The
government conceded that petitioner was nothing more than an
unskilled messenger, insofar as his conspiratorial role was in
issue. The court accepted that concession, specifically finding

40

that petitioner was not “‘one of the actual leaders.”

The government did urge that petitioner’s failure to file in-
come tax returns provided a basis for enhanced sentence. But
the government never established that petitioner was under a
duty to file income tax returns for the years in question.
Assuming, however, that petitioner was under such a duty, the
question is absolutely irrelevant to a subsection (e)(3) finding.
On!y where the government has pleaded subsection (e)(2) is the
source of the prisoner's income in issue. See Duardi, supra
at 877 n.2.

Ultimately, the court made no particularized findings as to
which, if any, of the activities pleaded was adequately proved.
Whichever of the statutory defining verbs was deemed applicable
to petitioner is, to this day, a secret shared only by the prosecutor
and the judge. The secret cannot be learned from the most
careful scrutiny of the record in this case. All the court did was
rubber stamp the government’s application, thereby tracking the
statute by reference. Neither pleadings nor findings which
merely repeat the conclusory language of the statute satisfy the

particularity requirements of subsections (a) and (b), respec-

tively. See United States v. Kelly, supra at 1399. Due process of
law requires much more.

The want of particularity reflects the inapplicability of Section
849 to petitioner. The clear congréssional intent was to enhance
the sentences of leaders in the criminal enterprise. Petitioner was
not a leader; he was no more than a messenger. He was not the
mastermind; he offered no special skills; he was certainly not the
financier. The government admitted as much. It urged that
petitioner’s role in the conspiracy was one that had to be filled,
but it never intimated that unusual or special skills were
required to fill a job involving meeting people, delivering
merchandise, and receiving payment. To hold that such ac-
tivities are reached by subsection (e)(3) is to apply the statute
arbitrarily and capriciously. It is equivalent to holding that all
participants in a narcotics distribution conspiracy involving four
or more people are necessarily special drug offenders, if and only

41

if the prosecutor, before trial, properly requests enhanced
sentences. Even if a tortured reading of the Constitution would
tolerate such a procedure, the Congress did not so legislate.

3. The sentencing court’s finding of dangerousness involved a
clear misconstruction of subsection (f). The plain statutory
purpose is “protection of the public from further criminal
conduct by the defendant.’”’ Jd. The element of danger, under
the legislative scheme, relates to perceived need for extended
preventive detention. Compare District of Columbia Preventive
Detention Law, D.C. Code Sections 23-1322(a)(1), -1322(b)(2)
(B) (Supp. IV 1971). Congress intended that one who is deemed
likely to return to criminal ways at the first opportunity should
not be given an early opportunity.

In petitioner’s case, the sentencing court disregarded the
critical consideration clearly set out in subsection (f), and
substituted its own definition of dangerousness. In the court’s
view, the only relevant factor was the danger presented by the
drug — heroin — instead of the danger presented by petitioner if
released to the community at an carly date. The sole particular
finding with respect to danger was the judge’s declaration, “[H]e
did, in fact, participate in a conspiracy . . . which involved the
distribution of this narcotic drug, which, in fact, is the most
dangerous, according to the knowledge of the court.’”’ No other
particularized finding was made; no evidence was offered upon
which the required finding could be made. No evidence could
properly have been offered, because the application failed to
allege with particularity the basis for the government’s view of
petitioner’s dangerousness. Cf. United States v. Duardi, 389
F.Supp. 861, 869 (W.D.Mo. 1973); same case, supra at 877 n.2.

Even if implied findings as to the need for preventive detention
could meet the procedural requirements of subsection (b), none
can be found in the record. The sentencing judge never in-
timated that this first offender posed a substantial risk of
recidivism. To the contrary, the court’s manifest intention was to
exact added punishment in retribution for the heinousness of the
crime, not to protect society from the depradations of a
professional criminal.

42

Congress has provided for sentences which, in its judgment,
are normally sufficient to meet the penological interests of the
public. No trial judge is authorized to award an enhanced
sentence on his personal belief that Congress underestimated the
seriousness of a given crime. By looking to the dangerousness of
the drug, and not of the defendant, the sentencing court usurped
the legislative prerogative. It is clear that the term “dangerous”
as used in section 849 relates to the nature of the prisoner, not
the nature of his offense. Any contrary. interpretation does
violence to the English language, the intent of Congress, and the
Due Process clause of the Constitution.

Section 849 cannet withstand the constitutional scrutiny
petitioner seeks. Assuming arguendo that it could, the contents
of the prosecutor’s application, the conduct of the hearing, and
the findings of the sentencing court, were travesties of the
procedures required by the statute. The awarding to petitioner of
“dangerous special drug offender” status and enhanced sen-
tence was arbitrary and capricious. Accordingly, petitioner’s
clearly erroneous sentence should be vacated.

43

CONCLUSION

Petitioner presents to the Court four issues. Each relates to
recurring problems of major importance in the administration of
the exercise of supervisory powers so as to provide needed .
guidance to the lower courts and practicing attorneys in the
quest to improve the quality of justice in a free society. The -
fourth presents major constitutional questions of first im-
pression, which should be promptly resolved so that the
Congress can act with definitive knowledge of the manner in
ee Se Ee: Gee -aae Ce Guage canine fie Ge
protection of the public.

For the foregoing reasons, petitioner respectfully prays that _
the writ issue.

Respectfully submitted,

AARON J. JAFFE
- ALBERT J. KRIEGER
Attorneys for Petitioner

Of Counsel:

FREDRIC J. GROSS,
Law Student

AARON J. JAFFE

Appendices

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1974

No. 74- 1 333 .

United States of America

v.

Robert A. Sutton, Appellant

No. 74-1334

United States of America
v.

Zebadee Jenkins, Appellant

No. 74-1375
United States of America

v.

Zebadee Jenkiis, et al., Appellant

48

APPEALS FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA

Before: LEVENTHAL and ROBINSON, Circuit Judges and
MILLER,* Judge, United States Court of Customs and Patent

Appeals

JUDGMENT

These causes came on to be heard on the record on appeal
from the United States District Court for the District of
Columbia and were argued by counsel. On consideration of the
foregoing, it is

ORDERED AND ADJUDGED by this court that the
judgments of the District Court appealed from in these causes
are hereby affirmed, for the reasons set forth in the attached
memorandum.

The duty of counsel is fully discharged without filing a
suggestion for rehearing en banc unless the case meets the rigid
standards of Federal Rule of Appellate Procedure 35(a).

Per Curiam
For the Court

[Sed] Hugh E. Kline
Clerk

*Sitting by designation pursuant to 28 U.S.C. §293(a)
Memorandum

Defendants Sutton and Jenkins appeal from their convictions
on a single count of conspiracy to distribute heroin and other
substances in violation of 21 U.S.C. §§841(a), 846(1970). The
indictment charged 17 persons with conspiracy. All 13 of the
District of Columbia defendants pleaded guilty. The 4 New York
defendants stood trial. Gne minor figure obtained a judgment of
acquittal at the close of the Government’s case, the appellants

49

were convicted, and the jury could not reach a verdict with
respect to defendant Charles Cameron (often referred to at trial
by the nickname Swayzie).

Two broad grounds for reversal are urged by appellants: (1)
that the proof established two separate conspiracies rather than
a single conspiracy and was thus fatally defective under Kot-
teakos v. United States, 328 U.S. 750 (1946), and (2) that fair
trial was denied as a result of prosecutorial misconduct.

After reviewing the record we find that there was evidence
sufficient to present to the jury the issue whether there was a
single conspiracy, even though at the beginning the source of
supply was Jenkins and after a period of time the source came to
be Cameron. Where there is adequate evidence, the question of
single versus multiple conspiracies is one for the jury. See United
States v. Vicars, 467 F.2d 452, 454 (Sth Cir. 1972), cert. denied,
410 U.S. 967 (1973); United States v. Varelli, 407 F.2d 735, 746
(7th Cir. 1969), cert. denied, 405 U.S. 1040 (1972); Koolish v.
United States, 340 F.2d 513, 526 (8th Cir.), cert. denied, 381
U.S. 951 (1965). The fact that the jurors did not agree on the
guilt of Cameron as a member of the conspiracy tends to in-
dicate, if anything, that they were reflecting on the charge
emphasizing the necessity of finding that each of the defendants
was a member of a single, continuing conspiracy.

We are unable to see any impropriety in the United States
Attorney or other principal prosecutors attending a trial of such
importance particularly at crucial moments which may have
required them to make a judgment whether an interlocutory
appeal should be taken. There is nothing in the record before us
to show that any actions of the United States Attorney were
impermissible or undercut the fairness of the trial.

We do find that the prosecutor was guilty of error when in the
course of summing up he said that “‘we could have called 300 or
400 [other] witnesses.’ Government counsel on appeai puts it
that this was mere hyperbole that would not be given credence by
the jury. But, although the figure 300 may be taken as hyper-

50

bole, the statement might well be viewed as an assertion of fact
that there were other witnesses that could have been called.
However, the trial judge promptly gave an appropriate
cautionary instruction to the jury. The jury’s willingness to
decide this case on the testimony given in the courtroom, rather
than on any speculation that other witnesses might have Leen
called, is indicated by the verdict as to Cameron, where the jury
was unable to agree that the evidence was sufficient to show guilt
beyond a reasonable doubt. In view of the corrective instruction
and the strong case against appellants, we do not believe that the
prosecutor’s statement constituted a prejudicial error.

We have reviewed the other summation statements challenged
by appellants and the charges of Government withholding of
Jencks material and find no basis for reversal.

Affirmed.

51

APPENDIX B

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF COLUMBIA

Criminal
No. 534-73

United States of America
v.

No. 3— ROBERT A. SUTTON

On this 20th day of February, 1974 came the attorney for the
government and the defendant appeared in person and by
counsel, Donald J. Sheehy, Esquire.

IT IS ADJUDGED that the defendant upon his plea of not
guilty and a verdict of guilty has been convicted of the offense of
CONSPIRACY TO DISTRIBUTE A CONTROLLED SUB-
STANCE (IN VIOLATION 21 USC 846) as charged in count 1

_ and the court having asked the defendant whether he has

anything to say why judgment should not be pronounced, and no
sufficient cause to the contrary being shown or appearing to the
Court,

IT IS ADJUDGED that the defendant is guilty as charged and
convicted.

IT IS ADJUDGED that the defendant is hereby committed to
the custody of the Attorney General or his authorized
representative for imprisonment for a period of SIX (6) YEARS
TO EIGHTEEN (18) YEARS, with a special parole term of
Three (3) years. ;

IT IS ORDERED that the Clerk deliver a certified copy of this

judgment and commitment to the United States Marshal or
other qualified officer and that the copy serve as the com-
mitment of the defendant.

[Sgd] Charles R. Richey
United States District Judge

The Court recommends commitment to a Federal Institution.

A TRUE COPY, Certified this 21st day of Feb. 1974
JAMES F. DAVEY, Clerk By [sgd] Deputy Clerk

53
APPENDIX C-1

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

eee 244%

Before: Leventhal and Robinson, Circuit Judges; Jack R.
Miller*, Judge U.S. Court of Customs and Patent Appeals.

ORDER

On consideration of appellants’ motion for leave to file a
petition for rehearing en banc, it is

ORDERED by the Court that the motion is granted and the
Clerk is directed to file appellants’ lodged petition for rehearing
and petition for rehearing en banc.

Per Curiam
For the Court:

[Sgd] Hugh E. Kline, Clerk

May 20, 1975

54

APPENDIX C-2

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Before: Leventhal and Robinson, Circuit Judge; Jack R.
Miller*, Judge U.S. Court of Customs and Patent Appeals.

ORDER
On consideration of appellants’ petitions for rehearing, it is

ORDERED by the Court that appellants’ aforesaid petitions
are denied.

Per Curiam
For the Court:

[Sgd] Hugh E. Kline, Clerk

May 20, 1975

APPENDIX C-3

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

seee¢44¢8
ORDER
Appellants’ petition for rehearing en banc having been

transmitted to the full Court and no Judge having requested a
vote thereon, it is

ORDERED by the Court en banc that appellants’ aforesaid
petition for rehearing en banc is denied.

For the Court:

[Sed] Hugh E. Kline, Clerk

May 20, 1975

APPENDIX D

§849. Dangerous special drug offender sentencing.
(a) Notice to court by United States Attorney.

Whenever a United States attorney charged with the
prosecution of a defendant in a court of the United States for an
alleged felonious violation of any provision of this subchapter or
subchapter II of this chapter committed when the defendant was
over the age of twenty-one years has reasons to believe that the
defendant is a dangerous special drug offender such United
States attorney, a reasonable time before trial or acceptance by
the court of a plea of guilty or nolo contendere, may sign and file
with the court, and may amend, a notice (1) specifying that the
defendant is a dangerous special drug offender who upon
conviction of such felonious violation is subject to the imposition
of a sentence under subsection (b) of this section, and (2) setting
out with particularity the reasons why such attorney believes the
defendant to be a Cangerous special drug offender. In no case
shall the fact that the defendant is alleged to be a dangerous
special drug offender be an issue upon the trial of such felonious
violation, be disclosed to the jury, or be disclosed before any plea
of guilty or nolo contendere or verdict or finding of guilty to the
presiding judge without the consent of the parties. If the court
finds that the filing of the notice as a public record may
prejudice fair consideration of a pending criminal matter, it may
order the notice sealed and the notice shall not be subject to
subpena or public inspection during the pendency of such
criminal matter, except on order of the court, but shall be
subject to inspection by the defendant alleged to be a dangerous
special drug offender and his counsel.

(b) Hearing; inspection of presentence report; counsel;
process; examination of witnesses; penalty; sentence. '

Upon any plea of guilty or nolo contendere or verdict or
finding of guilty of the defendant of such felonious violation, a
hearing shall be held, before sentence is imposed, by the court

57

sitting without a jury. The court shall fix a time for the hearing,
and notice thereof shall be given to the defendant and the United
States at least ten days prior thereto. The court shall permit the
United States and counsel for the defendant, or the defendant if
he is not represented by counsel, to inspect the presentence
report sufficiently prior to the hearing as to afford a reasonable
opportunity for verification. In extraordinary cases, the court
may withhold material not relevant to a proper sentence,
diagnostic opinion which might seriously disrupt a program of
rehabilitation, any source of information obtained on a promise
of confidentiality, and material previcusly disclosed in open
court. A court withholding all or part of a presentence report
shall inform the parties of its action and place in the record the
reasons therefor. The court may require parties inspecting all or
part of a presentence report to give notice of any part thereof
intended to be controverted. In connection with the hearing, the
defendant and the United States shall be entitled to assistance of
counsel, compulsory process, and cross-examination of such
witnesses as appear at the hearing. A duly authenticated copy of
2 former judgment or commitment shall be prima facie evidence
of such former judgment or commitment. If it appears by a
preponderance of the information, including information
submitted during the trial of such felonious violation and the
sentencing hearing and so much of the presentence report as the
court relies upon, that the defendant is a dangerous special drug
offender, the court shall sentence the defendant to imprisonment
for an appropriate term not to exceed twenty-five years and not
disproportionate in severity to the maximum term otherwise
authorized by law for such felonious violation. Otherwise it shall
sentence the defendant in accordance with the law prescribing
penalties for such felonious violation. The court shall place in
the record its findings, including an identification of the in-
formation relied upon in making such findings, and its reasons
for the sentence imposed.

(c) Sentences for life or for a term exceeding twenty-five years.

This section shall not prevent the imposition and execution of
a sentence of imprisonment for life or for a term exceeding
twenty-five years upon any person convicted of an offense so

punishable.

(d) Mandatory minimum penalties.

Notwithstanding any other provision of this section, the court
shall not sentence a dangerous special drug offender to less than
any mandatory minimum penalty prescribed by law for such
felorious violation. This section shall not be construed as
creating any mandatory minimum penalty.

“(e) Special drug offender defined.

A defendant is a special drug offender for purposes of this
section if—

(1) the defendant has previously been convicted in
courts of the United States or a State or any political
subdivision thereof for two or more offenses involving
dealing in controlled substances, committed on oc-
casions different from one another and different from
such felonious violation, and punishable in such courts
by death or imprisonment in excess of one year, for one
or more of such convictions the defendant has been
imprisoned prior to the commission of such felonious
violation, and less than five years have elapsed between
the commission of such felonious violation and either the
defendant's release, or parole or otherwise, from im-
prisonment for one such conviction or his commission of
the last such previous offense or another offense in-
volving dealing in controlled substances and punishable
by death or imprisonment in excess of one year under
applicable laws of the United States or a State or any
political subdivision thereof; or

(2) the defendant committed such felonious violation
as part of a pattern of dealing in controlled substances

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which was criminal under applicable laws of any
jurisdiction, which constituted a substantial source of
his income, and in which he manifested special skill or
expertise; or

(3) such felonious violation was, or the defendant
committed such felonious violation in furtherance of, a
conspiracy with three or more other persons to engage in
a pattern of dealing in controlled substances which was
criminal under applicable laws of any jurisdiction, and
the defendant did, or agreed that he would, initiate,
organize, plan, finance, direct, manage, or supervise all
or part of such conspiracy or dealing, or give or receive a
bribe or use force in connection with such dealing.

A conviction shown on direct or collateral review or at the
hearing to be invalid or for which the defendant has been
pardoned on the ground of innocence shall be disregarded for
purposes of paragraph (1) of this subsection. In support of
findings under paragraph (2) of this subsection, it may be shown
that the defendant has had in his own name or under his control
income or property not explained as derived from a source other
than such dealing. For purposes of paragraph (2) of this sub-
section, a substantial source of income means a source of income
which for any period of one year or more exceeds the minimum
wage, determined on the basis of a forty-hour week and fifty-
week year, without reference to exceptions, under section
206(a)(1) of Title 29 for an employee engaged in commerce, and
which for the same period exceeds fifty percent of the defen-
dant’s declared adjusted gross income under section 62 of Title
26. For purposes of paragraph (2) of this subsection, special skill
or expertise in such dealing includes unusual knowledge,
judgment or ability, including manual dextenvy, faciliatating the
initiation, organizing, planning, financing, direction,
management, supervision, execution or concealment of such
dealing, the enlistment of accomplices in such dealing, the
escape from detection or apprehension for such dealing, or the
disposition of the fruits or proceeds of such dealing. For pur-

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poses of paragraphs (2) and (3) of this subsection, such dealing
forms a pattern if it embraces criminal acts that have the same or
similar purposes, results, participants, victims, or methods of
commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events.

(f) Dangerous defendants.

A defendant is dangerous for purposes of this section if a
period of confinement longer than that provided for such
felonious violation is required for the protection of the public
from further criminal conduct by the defendant.

(g) Appeal |
The time for taking an appeal from a conviction for which

sentence is imposed after proceedings under this section shall be
measured from imposition of the origina! sentence.

(h) Review of sentence.

With respect to the imposition, correction, or reduction of a
sentence after proceedings under this section, a review of the
sentence on the record of the sentencing court may be taken by
the defendant or the United States to a court of appeals. Any
review of the sentence taken by the United States shall be taken
at least five days before expiration of the time for taking a review
of the sentence or appeal of the conviction by the defendant by
the defendant and shall be diligently prosecuted. The sentencing
court may, with or without motion and notice, extend the time
for taking a review of the sentence for a period not to exceed
thirty days from the expiration of the time otherwise prescribed
by law. The court shall not extend the time for taking a review of
the sentence by the United States after the time has expired. A
court extending the time for taking a review of the sentence by
the United States shall extend the time for taking a review of the
sentence or appeal of the conviction by the defendant for the
same period. The taking of a review of the sentence by the
United States shall be deemed the taking of a review of the
sentence and an appeal of the conviction by the defendant.

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Review of the sentence shall include review of whether the
procedure employed was lawful, the findings made were clearly
erroneous, or the sentencing court’s discretion was baused. The
court of appeals on review of the sentence may, after considering
the record, including the entire presentence report, information
— submitted during the trial of such felonious violation and the
sentencing hearing, and the findings and reasons of the sen-
tencing court, affirm the sentence, impose or direct the im-
position of any sentence which the sentencing court could
originally have imposed, or remand for further sentencing
proceedings and imposition of sentence, except that a sentence
may be made more severe only on review of the sentence taken by
the United States and after hearing. Failure of the United States
to take a review of the imposition of the sentence shall, upon
review taken by the United States of the correction or reduction
of the sentence, foreclose imposition of a sentence more severe
than that previously imposed. Any withdrawal or dismissal of
review of the sentence taken by the United States shall foreclose
imposition of a sentence more severe than that reviewed but shall
not otherwise foreclose the review of the sentence or the appeal of
the conviction. The court of appeals shall state in writing the
reasons for its disposition of the review of the sentence. Any
review of the sentence taken by the United States may be
dismissed on a showing of the abuse of the right of the United
States to take such review. (Pub. L. 91-513, title II, 409, Oct.
27, 1970, 84 Stat. 1266.)

§850. Information for sentencing.

Except as otherwise provided in this subchapter or section
242a(a) of Title 42, no l’mitation shall be placed on the in-
formation concerning the background, character, and conduct
of a person convicted of an offense which a court of the United
States may *sceive and consider for the purpose of imposing an
appropriatz sentence under this subchapter or subchapter II of
this chapter. (Pub. L. 91-513, title II, 410, Oct. 27, 1970, 84
Stat. 1269.) ;

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APPENDIX E
Model Penal Code

Section 5.03. Criminal Conspiracy

(1) Definition of conspiracy. A person is guilty of conspiracy
with another person or persons to commit a crime if with the
purpose of promoting or facilitating its commission he:

(a) agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such rime or an attempt or solicitation to
commit such crime; or

(b) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.

(2) Scope of conspiratorial relationship. If a person guilty of
conspiracy, as defined by Subsection (1) of this Section, knows
. that a person with whom he conspires to commit a crime has
conspired with another person or persons to commit the same
crime, he is guilty of conspiring with such other person or
persons, whether or not he knows their identity, to commit such
crime.

(3) Conspiracy with multiple criminal objectives. If a person
conspires to commit a number of crimes, he is guilty of only one
conspiracy so long as such multiple crimes are the object of the
same agreement or continuous conspiratorial relationship.

(4) Joinder and venue in conspiracy prosecutions.

(a) Subject to the provisions of paragraph (b) of this
Subsection, two or more persons charged with criminal
conspiracy may be prosecuted jointly if:

(i) they are charged with conspiring with one
‘another; or

(ii) the conspiracies alleged, whether they have the
same or different parties, are so related that they

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constitute different aspects of a scheme of organized
criminal conduct.

(b) In any joint prosecution under paragraph (a) of
this Subsection: ,

(i) no defendant shall be charged with a conspiracy
in any county [parish or district] other than one in which
he entered into such conspiracy or in which an overt act
pursuant to such conspiracy was done by him or by a
person with whom he conspired; and

{ii) neither the liability of any defendant nor the
admissibility against him of evidence of acts or
declarations of another shall be enlarged by such
joinder; and

(iii) the Court shall order a severance or take a
special verdict as to any defendant who so requests, if it
deems it necessary or appropriate to promote the fair
determination of his guilt or innocence, and shall take
any other proper measures to protect the fairness of the
trial.

(S) Overt act. No person may be convicted of conspiracy to
commit a crime, other than a felony of the first or second degree,
unless an overt act in pursuance of such conspiracy is alleged
and proved to have been done by him or by a person with whom
he conspired.

(6) Renunciation of criminal purpose. It is an affirmative
defense that the actor, after conspiring to commit a crime,
thwarted the success of the conspiracy, under circumstances
manifesting a renunciation of his criminal purpose.

(7) Duration of conspiracy. For purposes of section 1.07(4)
[time limitations):
(a) conspiracy is a continuing course of conduct which
terminates when the crime or crimes which are its object
are committed or the agreement that they be committed
is abandoned by the defendant and by those with whom
he conspired; and

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(b) such abandonment is presumed if neither the
defendant nor anyone with whom he conspired does any
overt act in pursuance of the conspiracy during the
applicable period of limitation; and

(c) if an individual abandons the agreement, the
conspiracy is terminated as to him only if and when he
advises those with whom he conspired of his aban-
donment or he informs the law enforcement authorities
of the existence of the conspiracy and of his par-
ticipation therein.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0693%3A1. Public record. Not legal advice.