Petition — Pike v. United States

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Supreme Court, U. &

FILED %,

FEB 26 1976

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No @5-1213

LEWIS CLINTON PIKE, Petitioner

THE UNITED States, Respondent

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

JOHN ©. SATTERFIELD

P. O. Box 847

Jackson, Mississippi 39205

Phone (601) 354-2540

Rocer A. Brown

Birmingham, Alabama

GEORGE EK. TRAWICK

Post Office Box 47

Ariton, Alabama 36311

Phone (205) 762-2356

Attorneys for Petitioner

February 26, 1976

PREss oF Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

INDEX

Page

I cede oes see ee reeds des dade ews 2

Grounds on which Jurisdiction is Invoked .......... 2

Questions Presented for Review ................... 3

Constitutional Provisions and Statutes Involved .... 5

ee Or a 6 ca coed ntbewdd deca sien wes 6

Basis for Federal Jurisdiction in Trial Court ...... 11

Reasons Relied On for Allowance of Writ ........ 11

I. Accomplish Corroboration Conflict ........ 11

II. The Tainted Evidence Question ............ 20

III. The Disclosure and Confrontation Question .. 22

IV. The Self-Incrimination Question ........... 24

V. The Severance Question ................0.- 27

VI. The Conjuntive—Disjunctive Question ..... 30

VII. The Public Trial—Presence Failure to Record

PEE Su devcsvcasedee¥svencesdescesaus 32

SS in dosha cecbniccchsusvavciesseutescesoues 36

POD 6 bbc cabee eanackccdacdcanaheretecencessesx 39

INDEX TO APPENDIX

A. Opinion of the Court of Appeals for the Fifth

REE 46 secacurnksennasnescecesseente chase cnin la

B. Judgment of the United States Court of Appeals

Se Te Ee NED 0.5. Ce vad vb ens~dsseneeecees 10a

C. Journal Entry of Judgment of the United States

District Court for the Southern Division of the

Northern District of Alabama ................. lla

TABLE OF AUTHORITIES

Page

CasEs:

Berness v. State (1955), 263 Ala. 641, 83 So.2d 613... 34

Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215,

Se Oe, WD cnvcaccsscéotusnbeccéeeunceaueteh 22

Brown v. United States (9 CA 1963), 314 F.2d 293... 36

Casalman v. Upchureh (5 CA 1967), 386 F.2d 813 ... 33

Catrino v. United States, 176 F.2d 884, 889 ......... 13

DeGruy v. State (1975), 323 So.2d 406, 294 Ala. — .. 36

Edwards v. United States (10 CA 1967), 374 F.2d 24,

cert. denied, 88 S.Ct. 48, 389 U.S. 850, 19 L.Ed.2nd

Ie EE rer reer. 34, 35

Fiswick v. United States (1946), 329 U.S. 211, 91 L.Ed.

BOG, 67 GCE. BOE 2. ccc ccccccnvccccccvecsecess 26

Fowler v. United States (1962), 316 F.Sup.2d 66 ..... 33

Fowler v. United States (5 CA 1962), 310 F.2d 66... 36

Heflin v. United States (5 CA 1955), 223 F.2d 3871 .... 32

Holmgren v. United States, 54 L.Ed. 868 ...........- 17

Iannelli v. United States (1975), — U.S. —, 43 L.Ed.2d

GIG, OG G.Ct. 1BDE 2... cc nsccccovceccceses 27, 28, 29, 30

Jenkins v. State of Ga., 418 U.S. 153, 41 L.Ed.2d 642,

GAB, 94 B.Ct. BIG 20. ccccccssccccveseseccesecs 8

Juhl v. United States, 388 F.2d 1009, 1015-16 ........ 14

Karp v. United States (1960), 362 U.S. 511, 4 L.Ed.2d

ee Fl eS Serr rere 29, 38

Keliher v. United States, 1 Cir., 1912, 193 F. 8,15... 14

Langnes v. Green, 282 U.S. 531, 537, 75 L.Ed. 520,524 7

Logan v. United States (1892), 144 U.S. 263, 36 L.Ed.

GBD, 13 BGK. GET 2... ccc ccnnccsccccccccvcccecess 25

Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d

694, 86 S.Ct. 1602, 10 ALR 3d 974 .......... 18, 20, 24

- Nardone v. United States (1939), 308 U.S. 338, 60 S.Ct.

Sk Ue CAM, ccvuiavecessacenasaeveanens 10, 20, 22, 37

Parrott v. United States (10 CA, 1963), 314 F.2d 46... 35

Pike v. United States (Nov. 17, 1975), 523 F.2d 734... 2

Pino v. United States (1967), 125 U.S. App. D.C. 225,

ere. 31, 32

< ROR ee ees eee

Table of Authorities Continued iii

Page

Pointer v. Texas (1965), 380 U.S. 400, 13 L.E

ie... Pe. eae aay te 37

Rossi v. United States, 9 F.2d 362, 366 .......... 16

Russell v. United States (1962), 369 U.S. 749. 8 L.Ed

: 240, 82 S.Ct. 1038 ...... Fe ae bowciieconn 32

parf v. United States, 156 U.S. 51, 56 and 5

343, 51 S.Ct. 183 ............ elon _— 19, 20

Stansberry v. United States (5 CA 1955), 219 F.2d 165 33

Stephens v. United States (5 CA 1961), 289 F.2d 308 .. 33

Townsend v. Sain (1963), 83 S.Ct. 745, 372 U.S. 293,

ee ee... 23

en v. Ballard, 322 U.S. 78, 88 L.Ed. 1148,

i RA ee Rape doen 8.9

oe States v. Glasser, 116 F.2d 690, 703 .... 16

Tnited States v. Hale (1975), — U.S, —-, 45 L.Ed 2d 99

95 S.Ct. (Advance Sheet 1) 1... savaxend, "4 aT, 37

United States v. Jones (1974), 491 F.2d 1382 ......._. 32

United States v. Reincke, 416 F.2d 69 ............... 19

United States v. Sigal (3 CA 1965), 341 F.2d 837 ...... 35

United States v. Trinastich (Mo. 1973), 354 F.Suppl. 54 31

United States v. Upshaw (5 CA 1971), 448 F.2d 1218,

—_ denied, 92 S.Ct. 970, 405 U.S. 934, 30 L.Ed.2d

hi ksRONU AEN R eden eek oe baud oe an cddde bs 33

CONSTITUTIONAL Provisions:

Constitution of the United States:

I OE or 5

Amendment V eMPRORRRR AP Lee

Amendment VI SER ND NEN Sg

STATUTES:

Be WD MED icv vuweecccasuseneusesencec. 2,6

8 USO. 80)0) ....................... 5, 33

I ee a "97

iv Table of Authorities Continued

Page

RvLEs:

Supreme Court Rule 231(g) .......---ee cere ee eeees 11

Rule 8, Federal Rules of Criminal Procedure ...... 28, 29

OTHER AUTHORITIES:

5 Wigmore on Evidence, 3rd Edition 1940, 1367 .... 23

3 Wharton’s Criminal Evidence 643 ..........++5+: 26

33 University of Chieago Law Review 627, 676 (1966) 27

23 Corpus Juris Secundum, Criminal Law, 961 ...... 34

23 Corpus Juris Secundum, Criminal Law, 975 ...... 35

NE a ——

IN THE

Supreme Court of the United States

OcToBEeR TERM, 1975

No.

Lewis Cuinton Prxe, Petitioner

THE Unitep States, Respondent

PETITION FOR A WRIT OF CERTIORARI

To the United States Court of Appeals

for the Fifth Circuit

To THE HONORABLE, THE CHIEF JUSTICE OF THE UNITED

STATES AND THE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES:

Lewis Clinton Pike, the petitioner herein respect-

fully prays that a Writ of Certiorari issue to review

the judgment of the United States Court of Appeals

for the Fifth Circuit entered in the above entitled case

on November 17, 1975.

A timely application to the United States Court of

Appeals for the Fifth Circuit for rehearing or in the

alternative rehearing en bane was denied without

opinion on the 29th day of December, 1975.

On January 26, 1976, Associate Justice Lewis F.

Powell, Jr. entered an order in case number A-657 ex-

tending the time for filing this petition for Writ of

Certiorari to and including February 27, 1976.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit has been reported at 523 F.2d

734 and is attached hereto in Appendix infra, pp. la

thru 9a. The judgment of the United States Court of

Appeals for the Fifth Circuit is printed in Appendix

hereto, infra, p. 10a. The Journal Entry of Judgment

of the United States District Court for the Southern

Division of the Northern District of Alabama, is

printed in Appendix hereto, infra, p. 11a.

GROUNDS ON WHICH JURISDICTION IS INVOKED

The judgment of the United States Court of Ap-

peals for the Fifth Circuit was entered on the 17th day

of November, 1975, and is annexed hereto in Appen-

dix, infra, p. 10a.

A timely petition for rehearing or in the alternative

rehearing en banc was denied on the 29th day of De-

cember, 1975.

Jurisdiction was preserved by application filed and

granted on January 26, 1976, in number A-657, to the

Supreme Court of the United States, for extension of

time within which to file this Petition for Writ of

Certiorari to and including February 27, 1976.

The statutory provision believed to confer juris-

diction upon this Court to review the judgment of the

United States Court of Appeals for the Fifth Circuit

rendered on the 17th day of November, 1975, is 28

U.S.C. 1254(1).

QUESTIONS PRESENTED FOR REVIEW

Whether there is a conflict between the Courts of

Appeal of the several Circuits concerning whether or

not a defendant may be convicted upon the uncorrob-

orated testimony of a discredited self-proclaimed ac-

complice and whether or not the silence of a defendant

(while in custody of a federal officer) in the face of a

general incriminating statement by a third party may

be used as corroborative evidence against him, in vio-

lation of his right to remain silent under the Fifth

Amendment protection against self-incrimination.

When it has been established by defendant that

search was illegal and that information garnered from

the illegal search and seizure has a causal relation to

evidence offered at trial, does not the burden shift to

prosecution to establish that the proffered evidence is

not tainted by the primary illegality and was gathered

independently thereof?

Iil

Whether petitioner’s right to fair trial and confron-

tation of witnesses was denied by failure of the prose-

cution to disclose the fact that the only witness against

petitioner had a long record of convictions for lottery

violations and crimes involving morai turpitude, and

had been promised immunity to testify against peti-

tioner in time for him to use the information on cross-

examination of the witness.

Whether petitioner Prke’s right under the Fifth

Amendment to the United States Constitution not to

be required to incriminate himself was violated by

admission into evidence, and the trial court’s instrue-

tions to the jury to consider, petitioner’s silence in

the face of a purportedly incriminatory statement

made to him while he was being searched by agents of

the Federal Bureau of Investigation pursuant to a

federal search warrant, there being timely objection

to admission and charge.

Whether petitioner’s right to fair trial was denied

by the court’s failure to grant him a severance from

the other defendants after the court had dismissed the

conspiracy count of the indictment.

Whether petitioner’s right to fair trial was denied

by the trial court’s denial of petitioner’s motion for

judgment of acquittal where the indictment charged

the offense in the conjunctive and the evidence, if suf-

ficient at all, established the elements only in the dis-

junctive.

Vil

Whether petitioner’s right to fair and public trial,

conducted in his presence and hearing, together with

his right to have his trial stenographically recorded

pursuant to the Court Reporter’s Act, 28 U.S.C.A.,

753(b) (1), was violated by nine ‘‘side-bar conferences”’

during the course of a two-day trial, conducted out of

the hearing of defendant, and obviously disposing of

substantial objections made on behalf of petitioner and

the record shows that said ‘‘side-bar conferences’’ oc-

curred, but neither they nor the voir dire examination

of the jury were stenographically recorded.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Constitution of the United States, Amendment IV:

“The right of the people to be secure . . . against

—— searches and seizures shall not be vio-

aa,

Constitution of the United States, Amendment V:

‘No person ... shall be compelled in any criminal

case to be a witness against himself... nor be deprived

of liberty, or property, without due process of law.”’

III

Constitution of the United States, Amendment VI:

‘In all criminal prosecutions, the accused shall en-

joy the right to a... public trial . . ., and to be in-

formed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for his

defense.”’

Title 28, Section 753(b)

‘One of the reporters appointed for each such Court

shall attend at each session of the Court ..., and shall

record verbatim by shorthand or by mechanical means

which may augmented by electronic sound recording

subject to regulations promulgated by the Judicial

Conference: (1) all proceedings in criminal cases had

in open court. . .”’

Title 18, Section 1955(a), United States Code:

‘‘Whoever conducts, finances, manages, supervises,

directs or owns all or any part of an illegal gambling

business shall be fined not more than twenty thousand

($20,000.00) Dollars or imprisoned not more than five

(5) years or both.”

Title 28, Section 1254(1), United States Code:

‘Cases in the courts of appeals may be reviewed by

the Supreme Court by the following methods:

(1) By writ of certiorari granted upon the pe-

tition of any party to any civil or criminal case, before

or after rendition of judgment or decree; ...

STATEMENT OF THE CASE

Petitioner PrkE was proceeded against in the Dis-

trict Court for the Southern Division of the Northern

District of Alabama for a violation of Title 18, United

States Code, Section 1955 and on an additional count

of conspiracy to violate said section. The conspiracy

count was dismissed by the District Court, after evi-

dentiary hearing of motions directed to an illegal

search.

Dismissal of the conspiracy count came after the

jury had been qualified and empanelled. During the

voir dire examination of the venire, the jurors were

exposed to the conspiracy count, with its many alleged

overt acts.

After dismissing the conspiracy count, the District

Judge put petitioner Prke and six other defendants

to trial jointly on the substantive count. There was

much incriminating evidence against the other defend-

ants, but the only direct evidence against Prkr was the

testimony of one Ethel Weatherspoon, a self pro-

claimed accomplice, who said that Prke came to her

home to draw lottery paraphernalia. The alleged ara-

phernalia was not introduced in evidence, and her tes-

timony was not corroborated in any meaningful way.

Prior to the commencement of the presentation of

the evidence on the case in chief for the United &: «tes,

but after the selection of the jury, the District ( vurt

dismissed the conspiracy count of the indictment. The

Court then conducted a hearing on defendant’s niotion

to suppress to determine if the illegal search of 1973

had tainted the evidence which the government sought

to introduce on the substantive count of the indictment.

In this Petition for Writ of Certiorari we will limit

specific references to the points in the record at v hich

objections were made, motions presented and points

raised in the Court of Appeals beéause of the basis of

consideration of matters of this nature long recognized

by this Court and clearly announced in Langnvs v.

Green, 282 U.S. 531, 537, 75 L.Ed. 520, 524 as follows:

_ The question then arises: What is the scope of

inquiry in this court when the case is brought up by

certiorari from the circuit court of appeals? It

has been decided that upon writ of error froin an

intermediate appellate tribunal we are not limited

to a consideration of the points raised by the plain-

tiff, but ‘‘must enter the judgment, which should

have been rendered by the court below on the ree-

ord then before it.’’ Baker v. Warner, 231 U.S.

588, 593, 57 L.ed. 384, 388, 34 S.Ct. 175. And in

Delk v. St. Louis & 8.F.R. Co. 220 U.S. 580, 588,

55 L.ed. 590, 595, 31 8. Ct. 617, following Lutcher

& M Lumber Co. v. Knight, 217 U.S. 257, 267, 54 L.

ed. 757, 761, 30 S. Ct. 505, it was held that on certi-

orari, likewise, the entire record is before this

court with power to review the action of the court

of appeals and direct such disposition of the case

as that court might have done upon the writ of

error sued out for the review of the circuit (now

district) court. In Watts, W. & Co. v. Unione

Austriaca Di Navigazoine, 248 US. 9, 21, 63 L.ed.

100, 101, 3 A.L.R. 323, 39 8S. Ct. 1, it was said that

“this court, in the exercise of its appellate juris-

diction, has power not only to correct error 1n the

judgment entered below, but to make such disposi-

tion of the case as justice may at this time re-

quire;’’...

All of the matters raised in this Petition for Writ

of Certiorari were necessarily involved in the decision

of the Court of Appeals and hence will be passed upon

by this Court as set forth in Jenkins v. State of Ga.,

418 U.S. 153, 41 L.Ed.2d 642, 648, 94 8. Ct. 2750 which

states generally the applicable rule as follows:

We now turn to the question of whether appel-

lant’s exhibition of the film was protected by the

First and Fourteenth Amendments, a question

which appellee asserts is not properly before us

because appellant did not raise it on his state ap-

peal. But whether or not appellant argued this

constitutional issue below, it is clear that the Su-

preme Court of Georgia reached _ ——~— “

at is sufficient under our practice. Raley v.

Ohio, 360 U.S. 423, 436, 3 L.Ed.2d 1344, 79 S. Ct.

1257 (1959).

This rule is stated with the reverse approach by

this Court in United States v. Ballard, 322 U.S. 78, 88

L.Ed. 1148, 1154, as follows:

Dat OR A ee i

The Circuit Court of Appeals did not reach those

questions. Respondents may, of course, urge them

here in support of the judgment of the Circuit

Court of Appeals, Langnes v. Green, 282 US 531,

938, 539, 75 L ed 520, 524, 525, 51 S. Ct 243; Story

Parchment Co. v. Paterson Parchment Poper Co.,

282 US 555, 560, 567, 568, 75 L ed 544, 547, 550,

991, 51 S Ct 248... . (Emphasis ours).

We respectfully submit that all matters presented in

this Petition for Writ of Certiorari were either spe-

cifically and expressly raised in the District Court

and/or the Court of Appeals, or fall within the above

rules announced by this Court.

During the supression hearing the defendants re-

quested the names of the witnesses which the govern-

ment would call at the trial, as they had previously

by motion. The assistant United States attorney re-

quested of the Court that he not be required to disclose

the names of said witnesses which request was granted.

The witness Weatherspoon was subsequently called

and provided the only direct evidence in the govern-

ment’s case against petitioner.

She denied emphatically that she had been promised

immunity from prosecution, a fact which the District

Attorney was constrained to admit was false. After

she had testified, he stipulated that Weatherspoon had

been promised immunity.

After completion of her testimony defense counsel

discovered a ‘‘rap sheet”’ in possession of the United

States attorney which revealed to him for the first

time that Weatherspoon had a long list of convictions

for lottery law violations and two crimes involving

moral turpitude. Defense moved for a mistrial because

of the failure of the government to make timely dis-

closure. The trial judge overruled the motion, stating

he would allow the witness to be recalled, a procedure

to which defendant excepted. He contended the with-

holding of the information, together with the identity

of the witness, denied an element of confrontation,

i.e. information needed for effective cross-examina-

tion.

Defense further complained of being placed in the

precarious position of choosing between recalling Mrs.

Weatherspoon under circumstances that the jury

might consider singling her out for embarrassment and

badgering, or not having the jury informed at all of

convictions going to her credibility.

The Court of Appeals, Fifth Circuit, writing

through Judge Thornberry, found no error in the ad-

mission over Pike’s objection of the alleged statement

made to him by another defendant at a time when

Pike was in effective custody of the F.B.I. agent, who

was conducting a search of Pike’s person. In general

terms, that Court described the statement as ‘‘signifi-

cant corroborating evidence’’. Similarly, it did not find

error in the Trial Judge’s charge that the statement

could be considered against Pike.

The Court of Appeals also held, in effect, that

Nardone v. United States (1939) 308 U.S. 338, 60 8S. Ct.

966, 84 L. Ed. 307, does not place the burden of proof

on the government ‘‘to convinee the trial court that

its proof had an independent origin’”’, saying the Trial

Judge had dismissed the conspiracy count from ‘“‘a

fear on his part that establishing the starting date

posed significant difficulties in avoiding inadvertant

references to the illegal search or the products of that

search’’,

th RIS ne De CR! cle at in et hh nl ting

The Circuit Court ignored the plain error of nine

‘‘side-bar conferences”? during the two-day trial of

Pike, the indictment couched in the conjunctive rather

than the disjunctive, and the failure of the government

to make timely disclosure of its intended use of the

witness Weatherspoon and her criminal record.

BASIS FOR FEDERAL JURISDICTION IN TRIAL COURT

In compliance with the Supreme Court Rule 23-1.

(g) we restate that federal jurisdiction in the court

of the first instance is based upon a_ prosecution

brought in the Federal District Court for an alleged

violation of Title 18, Section 1955, United States Code.

REASONS RELIED ON FOR ALLOWANCE OF WRIT

There is a conflict between the Courts of Appeal of

the several Circuits concerning whether or not a de-

fendant may be convicted upon the uncorroborated

testimony of a discredited self-proclaimed accomplice

and whether or not the silence of a defendant (while in

custody of a federal officer) in the face of a general

incriminating statement by a third party may be used

as corroborating evidence against him, in violation of

his right to remain silent under the Fifth Amendment

protection against self-incrimination.

In this case the Court of Appeals was caught up in

the mass of evidence against six of the seven appel-

lants, who were convicted herein. Of these seven only

three, Pike, Smith and Lee challenged the sufficiency

of the evidence to sustain their convictions. There was

substantial evidence against Smith and Lee which the

Court of Appeals held sustained their conviction. All

defendants were found guilty of doing that which is

ieee eee ee

done legally and properly by six or seven states, i.e.

participating in the maintenance of a lottery. However,

in Alabama and other states, such action by individ-

uals constitutes a violation of 18 U.S.C. § 1955. This

was a conviction of a crime that did not involve moral

turpitude, danger to the public, violence of physical

injury to others, fraud or like elements of human con-

duct. It did, however, at least on the part of six of the

defendants, constitute a violation of the above statute.

For more than a year the police officers of thie City

of Birmingham and the F.B.I. acted in close coopera-

tion in maintaining a long and intensive surveillance of

the activities of various appellants. They ascertained

the existence of station houses, searched hotel rooms,

searched an automobile, searched one or more of the

alleged station houses and seized voluminous lottery

slips and other gambling paraphernalia and developed

other overwhelming evidence that a lottery did exist.

All the other defendants, including Huey, were 1n-

volved in much of this evidence. The defendant Pike

was not.

The defendant Pike was not found to be present

at any of the locations where the searches and seizures

were made, nor was there any reference to him in the

records found. He was personally searched under war-

rant obtained by the F.B.I. but no evidence concern-

ing the lottery was found on his person. There was

no testimony against him by any witness that he par-

ticipated in the lottery or was guilty of the crime

charged other than that of a self-proclaimed accom-

plice. This witness was named Ethel W eatherspoon

who admitted that she was a ‘‘station house operator”’

and testified for the United States. Her testimony was

thoroughly discredited by two uncontroverted facts:

nee. eam

(1) That she committed: perjury in this case

swearing repeatedly that she had not been promised

immunity by the United States although it was there-

after stipulated of record by the attorneys for the

United States that she had been promised immunity.

She was thereby conclusively demonstrated to be a

perjurer in this very case.

(2) She had theretofore been convicted of numer-

ous crimes, two of which involved moral turpitude. Her

prior convictions were concealed by the prosecution

and withheld from the attorneys for Pike (as well as

from the attorneys for the other defendants) in the

face of proper requests and motions of defendant Pike.

These facts were ascertained only after the jury had

ample time to reach a conclusion as to guilt or inno-

cence upon the assumption that Weatherspoon’s testi-

mony was of an unimpeached witness, although an ad-

mitted accomplice in the lottery.

After diligent search the authorities reveal that

there is a conflict between the Courts of Appeal of the

several Circuits upon whether or not the defendant

may be convicted upon the uncorroborated testimony

of an accomplice and particularly a discredited accom-

plice. This is an important question of federal law and

has not been, but should be, settled by this Court.

The existence of this conflict was recognized by the

Court of Appeals of the Third Circuit in Catrino v.

U.S., 176 F.2d 884, 889 as follows:

Thus, contrary to appellant’s contention, convic-

tions in Federal courts may rest upon the uncor-

roborated testimony of accomplices. Westenrider

v. United States, 9 Cir., 1931, 134 F.2d 772, 774.

This is the rule in every Federal Circuit, except

| . |

possibly the First.” (Note 12. Compare Keliher

v. United States, 1 Cir., 1912, 193 F. 8, 15.)

The rule in the First Circuit was announced in

Keliher, supra, which holds at page 15 that there must

be sufficient amount of confirmation to satisfy the jury

of the truth of the accomplice’s story, i.e. corroboration

of the testimony of an accomplice, in order to justify

conviction of a defendant, the statement of the Court

being as follows:

The testimony of Coleman, if accepted by the

jury, covered every point necessary to make out

a ease against the plaintiff in error. What else we

have to discuss further relates only to corrobora-

tion. The rule as to corroboration are fully stated

in Roscoe’s Criminal Evidence (31th Eng. Ed.

1908), at pages 110 and 111. So far as the general

rules of English criminal law are concerned, there

is no better authority than Roscoe to the extent to

which he discusses them. At the closing of his ob-

servations he cites two decisions, but he adds:

‘Tt is not necessary that the accomplice

should be corroborated in every particular,

for then his testimony would be superfluous ;

but there must be a sufficient amount of con-

firmation to satisfy the jury of the truth of

his story.’’ (Emphasis ours)

The same rule is followed in the Court of Claims as

evidenced by the case of Juhl v. U.S., 388 F.2d 1009,

1015-16, which holds that corroboration is necessary.

In so ruling the Court stated:

The requirement of corroboration does not mean

that the corroborating evidence should cover every

element of the offense so as to be sufficient for con-

viction apart from the accomplice’s testimony.

Christy v. United States, 261 F.2d 357, 17 Alaska

oe act ha il ln Aa, Seale Mita.

107 (9th Cir. 1958), cert. denied 360 U.S. 919, 79

S.Ct. 1438, 3 L.Ed.2d 1535 (1959). In the cireum-

stances, it should not consist merely of indifferent

facts, but should in some manner connect the ac-

cused with the offense. Arnold v. United States,

94 F.2d 499, 507 (10th Cir., 1938); Keliher v.

United States, 193 F. 8, 15-16 (1st Cir., 1912);

United States v. Howell, 56 F. 21, 99 (W.D. Mo.,

1892), appeal dismissed, 163 U.S. 690, 16 S.Ct.

1202, 41 L.Ed. 315 (1896). ((Emphasis ours)

The Court of Appeals of the Fifth Circuit has reeog-

nized that conviction may not be had upon the testi-

mony of a discredited accomplice in the case of U. S.

v. Long, 419 F.2d 91, decided December 3, 1969, in

which it said: |

The case of United States v. Murphy, 253 F.

404 (D.C.N.Y. 1918), relied upon by conan is

Inapposite to the present situation. In Murphy

the only evidence of guilt was the thoroughly dis-

credited testimony of an accomplice witness. (Em-

phasis by the Court)

In Murphy the Court said:

Then the court cites Holmgren v. United States

217 U.S. 509, 30 Sup. Ct. 588, 54 L.Ed. 861, 19

Ann. Cas. 778, which was decided May 16, 1910,

about two months before the Richardson Case. In

217 U.S. at pages 523 and 524, 30 Sup. Ct. at pages

988, 592 (54 L.Ed. 861, 19 Ann. Cas. 778), Mr.

Justice Day says respecting this subject-matter:

“It is undoubtedly the better practice for

courts to caution juries against too much reli-

ance upon the testimony of accomplices, and

to require corroborating testimony before giv-

ing credence to them.’’ (Emphasis by the

Court)

If that rule is to be followed, corroborating evi-

dence is evidence which is independent of the evi-

dence of an accomplice, and which taken by itself,

leads to the inference, not only that a crime has

been committed, but that the person on trial was

implicated in it; or it must be evidence which cor-

roborates as to some material fact or facts which

go to prove that the person on trial was connected

with the crime. (Emphasis ours)

The conflict between the Circuits as to the proper

rule involves an important question of federal law

which has not been, but should be, settled by this Court.

This is illustrated by the decision of the Court of Ap-

peals of the Seventh Circuit in U. S. v. Glasser, 116

F.2d 690, 703, in which the rule concerning the testi-

mony of an accomplice was stated by that Court as

follows:

However that may be, the rule is that although

the testimony of an accomplice should be sub-

jected to close scrutiny and minute examination

and weighed with great care and caution and al-

though it may be attacked before the jury as in-

credible, unworthy of belief and prompted by un-

worthy motives; still @ conviction may rest upon

the uncorroborated testimony of an accomplice.

(Emphasis ours).

The confusion existing between the Circuits is fur-

ther illustrated by Rossi v. U. S., 9 F.2d 362, 366 in

which the Court of Appeals of the Eighth Circuit held

as follows:

There is no rule of law in the federal court pre-

venting conviction on the testimony of an accom-

plice. Holmgren v. United States, 217 U.S. 509,

30 S.Ct. 588, 54 L.Ed. 861, 19 Ann. Cas. 778; Ca-

minetti v. United States, 242 U.S. 470, 37 8S. Ct.

ue ~

eee Ot eee ODOR O NN re 8 ee ere

192, 61 L.Ed. 442, L.R.A. 1917F, 502, Ann. Cas.

1917B, 1168; United States v. Murphy et al

(D.C.) 253 F. 404; Ray v. United States (C.C.A.)

265 F. 257 ; Wagman v. United States (C.C.A.)

260 F. 568. In Holmgren v. United States, supra,

the Supreme Court said it was the better prac-

tice for courts to caution juries against too much

reliance upon the testimony of accomplices, and

that before credence was given to such evidence

there should be corroborating testimony. This

suggestion is a wise one for courts to follow.

(Emphasis ours).

In H olmgren v. U. S. (cited by the Eighth Cir-

cuit) this Court said on page 524 of the opinion (page

868 of 54 L. Ed):

Be that as it may, the request did not proper

state the law, as it pono: that Waste eas, ml

accomplice,—a_ conclusion whieh was contro-

verted, and against which the jury might have

found in the light of the testimony. It is un-

doubtedly the better practice for courts to caution

juries against too much reliance upon the testi-

mony of accomplices, and to require corroborat-

ing testimony before giving credence to them.

(Emphasis ours).

We respectfully submit that the above question

alone is sufficient to warrant this Court to grant the

Petition for Writ of Certiorari. This position is sup-

ported by the additional and cumulative errors here-

inafter detailed.

Further, the Court of Appeals referred to Judge

Pointer’s cautionary charge to the jury concerning

the accomplice’s testimony of Weatherspoon stating

that such testimony ‘‘was itself sufficient to support

the conviction of appellants Pike, Smith and Lee.”’

However, the only evidence against Pike by Ethel

Weatherspoon, the self proclaimed accomplice and

admitted perjuror, was that Pike came to her home

to draw lottery paraphernalia. The alleged parapher-

nalia was not introduced in evidence, and her testi-

mony was not corroborated in any meaningful way.

The Cireuit Court of Appeals found ‘“‘significant

corroborating evidence’’ as to the three defendants

named above. It did not otherwise describe the ‘‘cor-

roborating evidence’. The only other ‘‘evidence”’’ in

the record against Pike was the testimony of an agent

of the Federal Bureau of Investigation that during

the execution of a search warrant on Pike, at a time

when he was leaving a restaurant in Birmingham, one

of the other defendants approached and stated, while

the search of Pike’s person was being made by the

F.B.1. agent, “You didn’t get away with tt after all’,

to which Pike made no reply. This testimony was

admitted over the objection of Pike and the jury was

instructed to consider it against him, also over his

objection timely made.

The silence of Pike under these circumstances was

a simple exercise of his constitutional rights particu-

larly mentioned above. He was then in custody of an

agent of the F.B.I. There is no evidence whatsoever

that he was called upon to respond to such statement,

if it was made. The submission of this evidence to the

jury under charge of the District Judge should be

considered against the defendant violates the well

recognized rule underlying the protection provided by

the ‘‘Self-Incrimination Clause’’. The action of the

District Judge is in direct violation of law as stated

by this Court in Miranda v. State of Arizona, 384

U.S. 436, 16 L.Ed. 2d 694, 714, 86 S.Ct. 1602, and par-

Nitti esr cee ar ew? ee

ticularly that portion of the rule stated by this Court

as follows:

Unless adequate protective devices are employed

to dispel the compulsion inherent in custodial

surroundings, no statement obtained from the de-

, oe ean truly be the product of his free

choice.

From the foregoing, we can readily perceive an

intimate connection between the privilege against

self-incrimination and police custodial question-

ing. It is fitting to turn to history and precedent

underlying the Self-Incrimination Clause to de-

termine its applicability in this situation.

This rule was enforeed in United States v. Reincke,

416 F.2d 69, decided by the Court of Appeals Second

Circuit on September 8, 1969. In that case a petition

for writ of habeas corpus was brought in United

States District Court alleging that the defendant’s

constitutional right to counsel was violated when ecer-

tain oral incriminating statements he had made were

admitted into evidence against him at the state arson

trial. In holding that such statements were not admis-

sible the Court said:

The State record and the record before Judge

Blumenfeld demonstrates that incriminating

statements were obtained from appellee after the

arson investigation had focused on him and

while he was in custody at police barracks, (Em-

phasis ours).

The error of the District Court which has been af-

firmed by the Court of Appeals is further demon-

strated by the holding of this Court in Sparf v.

United States, 156 U.S. 51, 56 and 57, 39 LEd 343

518 Ct 183, in which this Court held as follows:

The declarations ef Hansen after the killing,

as detailed by Green and Larsen, were also ad-

missible in evidence against Sparf, because they

appear to have been made in his presence and

under such circumstances as would warrant the

inference that he would naturally have contra-

dicted them if he did not assent to their truth,

(Emphasis ours) ... But this principle will not

sustain the ruling by which the declarations of

Hansen, made long after the commission of the

alleged murder, and not in the presence of Sparf,

were admitted as evidence against the latter. In

no state of case were those declarations compe-

tent against Sparf. Its inadmissibility as to him

was apparent. It appeared upon the very face of

the question itself.

It is clear in this case that as Pike was in custody

of the F.B.I. agent at the time the alleged remark

was made by Huey, he was not called upon to respond

thereto. If he had done so while in custody of the

F.B.I. agent it would have violated his constitutional

right against self-incrimination. He was not called

upon to respond and hence this case is governed by

the second quotation by Sparf. It is as if such state-

ment by Huey had been made not in his presence.

The fact that he was present and in custody (without

any evidence whatsoever of proper action having been

taken by the agent as required hy Miranda) removed

all inference of the necessity of contradiction.

The Court of Appeals misplaces the burden of proof

on the tainted evidence question.

In Nardone, supra, it was spelled out:

‘“‘The burden is, of course, on the accused in the

first instance to prove to the Trial Court’s satis-

faction that wire-tapping was unlawfully em-,

ployed. Once that is estrblished—as was plainly

done here—the trial judge must give opportunity,

however closely confined, to the accused to prove

that a substantial portion of the case against him

was a fruit of the poisonous tree. This leaves am-

ple opportunity to the government to convince the

Trial Court that its proof had independent origin.”

(Emphasis supplied >

In the ease sub judice, petitioner established an ille-

gal 1973 search, and a causal relation between informa-

tion obtained from that search leading to the identity

of the witness Weatherspoon. She was the fruit of the

poisonous tree, and the burden was on the govern-

ment to establish that her identity and testimony was

acquired independently of the illegal 1973 search.

A subsequent search, in 1974, was held by the Dis-

trict Court to be lawful, but as the Cireuit Court

pointed out, Pike was not present ‘‘in the apartment

raided by the F.B.I. in June, 1974. The key evidence

linking (him) to the operation of the lottery was the

testimony of witness Weatherspoon. . .”’

There was no evidence against Pike in the legal

search.

The error of the courts below is therefore twofold:

First, is not compelling the government to make timely

disclosure of the identity of the witness Weatherspoon.

This information would have better enabled Pike to

show conclusively that Weatherspoon’s identity and

testimony was fruit of the poisonous tree.

Second, the district court having found the 1973

search illegal, in the face of evidence of causal con-

nection between the identity of Weatherspoon and

that illegal search, should have required the govern-

ment to come forth with proof that it garnered

Weatherspoon from an origin independent of the il-

legal 1973 search. There was no contention that her

testimony flowered from the 1974 legal search.

The government offered no proof that it garnered

the identity and testimony of Weatherspoon from a

origin independent of the illegal 1973 search. This it

could have easily done, if it were true. In failing to

place this burden of proof on the government the

courts below failed to follow Nardone, supra, and the

writ should be granted to correct this error.

Tit

The defendants made timely requests of the Govern-

ment for disclosure under the Brady rule* and the

Government admittedly failed to disclose the fact that

it had information showing Mrs. Weatherspoon, the

alleged accomplice of Pike, had a long record of con-

victions for lottery violations and at least two other

erimes involving moral turpitude. After Mrs. Weather-

spoon had testified, it was discovered that the Govern-

ment had failed to reveal this information, so defend-

ants moved for a mistrial contending that the failure

to make timely disclosure prevented them from effec-

tively using this information to impeach or discredit

the witness. True, the trial judge, after denying de-

fense motions for mistrial, permitted the recall of

Weatherspoon to show some of her prior convictions,

but as counsel for the defendant contended, this did not

satisfy the Brady rule. Defendants were not only de-

prived of the information in time to make effective

use of it for impeachment, but were then forced into

* Brady v. Maryland, 373 U.S. 83, 10 L.Ed. 2d 215, 83 S.Ct. 1194.

the untenable position of not showing it at all, or re-

calling her under circumstances that the jury might

find overbearing and intended to badger the witness.

The Court of Appeals did not write to this point and

we respectfully urge that its failure to do so is an in-

justice to the petitioner.

It is the duty of Federal Courts to scrutinize the

record for procedural errors which, even though they

do not violate the Constitution, result in failure to as-

certain the truth: Townsend vy. Sain (1963) 83 S. Ct.

745, 372 U.S. 293, 9 L. Ed. 2nd 770.

‘*It cannot seriously be doubted at this late date

that the right of cross-examination is included in the

right of an accused in a criminal case to confront the

witness against him. And probably no one, certainly no

one experienced in the trial of lawsuits, would deny

the value of cross-examination in exposing falsehood

and bringing out the truth in the trial of a criminal

case. See, e.g.,5 Wigmore, Evidence 1367 (3d ed 1040).

The fact that this right appears in the Sixth Amend-

ment of our Bill of Rights reflects the belief of the

Framers of those liberties and safeguards that con-

frontation was a fundamental right essential to a fair

trial in a criminal prosecution. Moreover, the decisions

of this Court and other courts throughout the years

have constantly emphasized the necessity for cross-

examination as a protection for defendants in criminal

eases.’’ Pointer v. Texas, 380 US 400, 13 L ed 2d 923,

85 S Ct. 1065.

If this Court means what it says, the case sub judice

must be reversed and remanded because of the failure

of the Government to disclose the identity of the wit-

ness Weatherspoon, make timely disclosure of her

criminal record for impeachment purposes, and the

refusal of the lower courts to protect petitioner against

these incursions into the constitutionally guarded right

of confrontation.

We surmise that the Court lightly regards, at least

at first blush, those petitions for writ of certiorari

which present an over-abundance of questions for re-

view. It is, therefore, tempting to counsel to have

rested this case upon the sole question of whether pe-

titioner’s right under the Fifth Amendment not to be

required to incriminate himself was violated by the

admission into evidence and the Trial Court’s instruc-

tions to the jury to consider petitioners silence in the

face of a purportedly incriminatory statement made to

him while he was being searched by Federal Agents

pursuant to a search warrant. In United States v.

Hale (1975) US , 45 L Ed 2nd 99, 95 S Ct

Advance Sheet 1), this Court affirmed reversal by the

Court of Appeals for the District of Columbia Circuit,

which had reversed the District Court for refusing to

declare a mistrial when the prosecutor asked the de-

fendant why he had not given the police his alibi when

he was questioned shortly after his arrest. The Trial

Court in that case had instructed the jury to disregard

the question. Nevertheless, the Court of Appeals held

that inquiry into the defendant’s in-custody silence

impermissibly prejudiced his defense and infringed

upon his right to remain silent under Miranda v. Art-

zona, 384 US 436, 468 n 37, 16 L Ed 2d 694, 86 S Ct.

1602, 10 ALR3d 974 (1966).

The case sub judice is much stronger to a reversal,

for here the Trial Court not only admitted evidence of

petitioners in-custody silence, but instructed the jury

to consider it and the Court of Appeals for the Fifth

Circuit approved, finding it ‘“‘corroborative in a sig-

nificant way’’, of the testimony of the alleged accom-

plice, Weatherspoon.

The record is devoid of evidence which the Court

of Appeals could have found ‘‘corroborative’”’ except

the declaration of a co-defendant, C. E. (Bud) Huey,

to Movant Pike when Pike was in custody of an F.B.1.

agent executing a search warrant of his person. This

occurred on the parking lot of a drive-in cafe which

Pike was leaving in an incident unrelated to any other

development proved during the trial. The F.B.I. agent

was allowed to testify over objection that Huey said

to Pike, as the latter was being searched, ‘‘ You didn’t

get away with it after all’’.

The grievious error suffered by Movant can be ap-

preciated only when it is remembered that Huey had

been proven by an abundance of evidence to be the

operator of the lottery under investigation. Since it

was the government’s theory that Pike was _ his

associate, the jury could logically have concluded

Tluey’s inference to be that Pike was indeed a con-

federate, and perhaps ITuey was enjoying Pike’s pre-

dicament since Huey had been, as the record shows, the

object of much surveillance, and was well connected by

events of which there was evidence then before the

jury to the lottery, while Pike was not.

It is hard to logically assume that this declaratory

statement was not regarded as of great importance

by the jury in face of the fact that the Court of Ap-

peals itself found the statement sufficiently important

to describe it as corroborative ‘‘in a significant way.”

The point is that the prejudicial effect of the wrong-

ful admission of a declaration against one mg yw

the declarant will ordinarily require a reversal of the

conviction: Fiswick v. U.S., 329 U.S. 211, 91 L. Ed

196, 67 S. Ct. 224; Logan v. U.S., 144 US. 263, 36 L.

Ed. 429, 12 S. Ct. 617; Whartons Criminal Evidence,

Vol. 3 See. 643.

The record shows no other evidence against Pike.

No one else connected him. Even the lottery slips and

other paraphernalia submitted through the F.B.I.

laboratories for fingerprint study failed to connect

Pike, for his prints were found on none of the ma-

terial so examined.

It is settled law that Pike was not called upon to

answer Huey while he as being searched and detained.

Effectively, he was then in custody, whether the F.B.I.

agent characterized it as ‘‘custody”’ or not.

The trial judge not only admitted the declaratory

statement into evidence over Pike’s objection and ex-

ception ,but instructed the jury that it should be con-

sidered against Pike, as well as Huey.

Pike pointedly excepted to this. portion of the oral

charge.

The Court said in the Hale case, supra, 4 ‘At the time

of arrest and during custodial interrogation, innocent

and guilty alike—perhaps particularly the innocent—

mav find the situation so intimidating that they may

choose to stand mute. A variety of reasons may influ-

ence that decision. In these often emotional and confus-

ing circumstances, a suspect may not have heard ved

fully understood the question, or may have felt there

was no need to reply. See Traynor, The Devils of Due

Process in Criminal Detection, Detention, and Trial,

33 U Chi L Rev 627, 676 (1966). He may have main-

tained silence out of fear or unwillingness to inerim-

inate another. Or the arrestee may ‘simply react with

silence in responce to the hostile and perhaps unfa-

miliar atmosphere surrounding his detention. In sum,

the inherent pressures of incustody interrogation ex-

ceed those of questioning before a grand jury and com-

pound the difficulty of identifying the reason for

silence.”’

The case sub judice is in direct conflict with Hale

and should be reversed for this reason alone.

We recognize our temerity in presenting the question

of whether petitioner’s right to fair trial was denied by

the Trial Court’s failure to sever his case from that

of the other defendants after the Court had dismissed

the conspiracy count which bound them together. In

Iannelli vy. United States, USS. , 43 L Ed 2d

616, 95 S Ct 1284 decided March 25, 1975, (Advance

Sheet 4) this Court in 5-4 decision held 8 defendants

could be convicted of violating both the Organized

Crime Control Act, (18 USCS 8. 1955) and the gen-

eral conspiracy statute (18 USCS See. 371) for the

same acts, saying the presumption created by Whar-

ton’s Rule (that the offense of conspiracy and substan-

tive offence merge when substantive offense is proved)

is outweighed by vongressional intent to retain in 18

USCS 1955 the option to impose an additional sanc-

tion for conspiracy to violate that section. Justice

Douglas dissented on (1) double jeopardy (2) not con-

gressional intent to permit simultaneous convictions.

Justices Stewart and Marshall joined on (2). Mr.

Justice Brennan dissented on the ground that the am-

biguity of Congress ‘‘should be resolved in favor of

leniency.”’

As previously indicated, we firmly believe we are

entitled to the writ on other questions and would be

content to rest our case on less shifting sands but for

the deep-seated belief that we are under obligation to

attempt a contribution toward resolving a problem

striking at the very heart of the right to fair trial.

Every courtroom lawyer knows the improbability

of getting a fair trial when many defendants are

herded to their destiny, like cattle to slaughter. We

all know of the proclivity of jurys to find guilt by

association. The theory that multiple defendants may

fare better when tried by a judge alone has much

merit. The right to trial “vy jury is only one of the

Constitutional safeguards that lose their efficacy in

mass trials. |

When the net of conspiracy is cast, it hauls back

the innocent with the guilty. As pointed out in Jannelli,

supra; the conspiracy statute is a potent weapon

against crime. It is also a grave threat to liberty, for

the slightest act may take an innocent man to judg-

ment, simply because of his association with the guilty.

Whatever justification may be found for trying co-

conspirators jointly, we beg to question the wisdom and

justice of trying those charged with the substantive

offense together, especially when they are numerous,

and the danger compounded.

This is not a matter which should be addressed to

Congress. This Court, by formulation of Rule 8, Rules

of Criminal Procedure, provided for the joinder of

offenses and defendants in the same indictment and has

since tolerated the almost unbridled trial of multiple

defendants jointly, even though the rule provides

merely that they may be ‘‘charged’’ jointly—not that

they shall be tried jointly.

Noting the five to four decisions including and pre-

ceeding Jannelli, we are hopeful that this Court will

someday restore to the citizenry the fair trial which

most Americans innocently believe is already guarded

them by the Constitution. As was said in Karp v.

United States, 362 US 511, 4 L Ed 2d 921, 80 S. Ct.

945, “‘there is no sure way to protect against it (con-

viction of the innocent due to mounting proof of the

guilt of a co-defendant) except by separate trials. . .”’

Noting also that the cases leading to Jannelli were held

sui generis, we even entertain the hope that a review

of this case will result in the finding of a simple truth:

the evidence is insufficient to convict petitioner and

the jury was influenced to its verdict by evidence in-

troduced against co-defendants which would not have

beei persuasive, even if allowed against petitioner, had

he been tried alone.

The Federal Rules of Criminal Procedure have

served as a model for rules now adopted by many, if

not most, of the States. This Court’s toleration of mass

trials pursuant to Rule 8 now will be the green light

for the States to do likewise—try en mass, convict

twice for the same acts, ignore fair and orderly trial

procedures, and forget about the constitutional pro-

scriptions against double jeopardy.

Ours may be a small and inarticulate ery from the

wilderness, coming as it does from the hinterlands of

Alabama, but be it remembered that our State was

the first to promulgate a formal code of ethics for the

legal profession—no mean preservator of rights in and

of itself. Too, Alabama is justifiably proud of one of

its’ sons from the red hills of Clay County. The late

Hugo Black loved the Bill of Rights and treasured his

participation in overturning the infamous Plessy

ease. He believed, as do we, that our Constitutional

heritage is ours to keep only so long as we protect it

to all our citizenry. If Lewis Clinton Pike can be

stripped of his right to a fair trial, then it is safe to

none of us.

Surely, the present Court is no less eoncerned with

the protection of our fundamental liberties than was

Justice Black and his Brothers, who wrote such land-

mark decisions.

And surely, no right is more essential and worthy of

preservation than the right to a fair trial, in which

one is held accountable for his own acts, but is not left

to the uncertainties and prejudices attendant to joint

trials for substantive acts. We respectfully submit,

lannelli is no more sacrosanct, no more entitled to stare

decisis, than was Plessy v. Ferguson.

Both eases are contrary to the spirit of the Consti-

tution, and if we could choose only a single reason

upon which the writ would be granted, it would be

this one.

The indictment, which was read to the Jury, averred

a violation of Title 18, United States Code, Sec. 1955,

in the conjunctive when it alleged that the defendants

were the ‘‘operators, ete. . . . and owners’’ of a lottery

proscribed by Alabama law. The federal statute actu-

awa encom ata

ally uses the word “‘or’’ instead of the above-

scored ‘‘and”’. This practice has been alata i =

eral Circuits and in at least one district the use of the

conjunctive instead of the disjunctive in a similar case

was held to make the indictment subject to dismissal:

U.S. v. Trinastich, (Mo.) 354 F. Suppl. 54. The Su-

preme Court does not appear to have written to this

problem but in a footnote to an opinion written by him

while a Cireuit Judge, Chief Justice Burger deplored

the practice as unfair and confusing, especially where

the indictment is worded in the conjunctive while the

statute and the Judge’s charge was in the disjunctive

as in the instant case. Pino v. U.S., 125 U.S. App. D C.

295, 370 F. 2d 247, 249, Cannan siping

Petitioner was denied due process in that he was not

afforded a hearing in accordance with his notice. Due

process clothes him with the right to rely on the in-

dictment as framing the issues between the parties

He had a right to expect the Government to prove him

to be the owner of the lottery, as charged, and when it

failed to do so he was entitled to an acquittal. His

Sixth Amendment right to a fair trial was violated

when the Government was not required to prove the

charge it had brought, and when the trial judge in-

structed the jury in the terminology of the statute in

stead of the indictment. The Government elected to

charge him with being the owner of the lottery, and it

1S no answer to point out that it thereby assumed a

burden greater than the statute imposed. The Consti

tution demands of due process and fair trial are same

mount, and once the Government elected to indict in

the conjunctive, these Constitutional considerations r

quire it to carry the burden it assumed. 7

Petitioners’ motions for acquittal should have been

granted: Russell v. U nited States, 369 US 749, 8 L ed

2d 240, 82 S Ct 1038.

The writ of certiorari should be granted, not only

to protect petitioner’s Constitutional rights, but to re-

solve conflicts in the different circuits in this unfair

and confusing practice.

A different view than the position stated 1 Trina-

stich is held in the Ninth Circuit. See United States ¥.

Jones (1974), 491 F 2d 1382, stating that where a crime,

denounced disjunctively in a statute, is charged in the

conjunctive, proof of any one of the allegations will

sustain a conviction.

The Fifth Circuit writes with approbation of the

practise denounced in Pino, supra: Heflin v. United

States (1955), 223 F 2d 371, stating ‘““As a general

rule, where a statute specifies several means or ways

in which an offense may be committed in the alter-

native, it is bad pleading to allege such means or ways

in the alternative; the proper way is to (use) ... the

conjunctive term ‘and’ and not the word ‘or’... .”

We submit this apparent conflict among the Cireuits

and the Districts should be settled, and the Supreme

Court has the opportunity to do so by granting the

writ in this cause.

Vil

The record reflects nine ‘‘side-bar conferences’”’ out

of the presence and hearing of the defendant and noted

but not reported by the Official Court Reporter. This

not only violates petitioners’ right to be present at

every stage of his felony trial and the Constitutional

Hone EE ltt sien Adelrececill

iP ae

mandate that trials shall be

publie but the practi

Wry ped disregards the plain Congressional pera

of the Court Reporter’s Act, 28 USCA 753 (b) (1).

Failure of trial judges to comply with this statute

— to have been particularly troublesome in the

ifth Circuit and the Courts have not dealt with it

uniformly. For instance in the 1969 case of U.S. v

Long (Ala.) 419 F. 2nd. 91, the Fifth Circuit held that

if no objections were made before the District Court or

the Court of Appeals, failure to record bench confer-

ences did not require a reversal unless some specifi

error or prejudice is called to the Court’s attentio ‘

citing the 1961 oth CCA case of Stephens v. U.S 289

F. 2nd 308, (inability to review specified errors becaus

of failure to record), and the 1962 case of Fowler “4

US., 316 F. Sup. 2nd 66 (involving alleged prejudicial

remarks in an unrecorded closing argument). The 1971

case of U.S. v. Upshaw, (C.A. Ala.) 448 F, 2nd 1218

cert. denied, 92 8. Ct. 970, 405 U.S. 934, 30 L. Ed (2nd)

810, seems to state the construction presently held t

in this Circuit wherein it was held that absent a sho ‘

ing that substantial right of defendant was advers Jy

affected by omission from transcripts of openin stat d

ments of defense counsel, conviction would at .

versed for lack of complete transcript. wd

In the Upshaw case the Cireuit Court di

compliance with the statute was es oc —— yo

exceptions which would be narrowly construed. This

follows Casalman v. Upchurch, (C. A. Ala 1967) 386

F. 2nd 813, which held compliance is mandatory So

other Circuits are stronger in requiring compli i

with the statute. In Stansberry v. U.S., 219 F ond 168,

page 169, footnote 6, it was h i

Se te eee s held that non-compliance

Also see Edwards v. U.S., 374 F. 2nd 24, cert. denied,

88 S. Ct. 48, 389 U. S. 850, 19 L. Ed. 2nd 120, where

the Tenth (Okla.) Cireuit Court holds that the pro-

visions of the statute are strictly observed, and no re-

quest by defendant is necessary.

This opinion is more in line with the fundamental

principle that it is the duty of the Judge to see to a

fair trial: 23 C. J. 8. 2nd 961.

Time and again defense objections were disposed

of at side-bar conferences. Neither the public, the de-

fendant, nor this Court can know in what manner de-

fendant’s rights were dealt with during these critical

stages of Pike’s trial. We only know that the objec-

tions were made, counsel was directed by the Court to

approach the bench, and the reporter noted side-bar

conferences without stenographically recording what

was said or done.

We submit tis practice violates the organic as well

as statutory law, is plain error, was not waived, and

of itself requires a reversal of the judgment.

Framers of our Constitution sought to secure us the

right of public trial to protect us from the evils of

star chamber proceedings. The public is not assured

of this fundamental right as long as the appellate

courts tolerate covert proceedings by nisi prius courts

during trials.

The proposition that a defendant only can waive his

right to be present at every state of his felony trial is

well stated by the Supreme Court of Alabama in Ber-

ness VY. State (1955) 83 So. 2nd 613, 263 Ala. 641:

‘“‘(1) It is fundamental that a defendant has the

right to be present at every stage of his trial for

the commission of a felony. His presence is in

ys arent An. 4 an Se he

“4

fact essential to the validity of his trial and con-

viction unless there has been a clear and unequiv-

ocal waiver of this right by the defendant. .. We

now deal with the method by which the defendant’s

clear and unequivocal right to presence at every

stage of trial may be waived. The great weight of

authority is summed up in the simple statement

found in 23 C.J.8., Criminal Law, Section 975,

Page 311: ‘It is generally held that a waiver of

accused’s right to be present during the trial, when

permitted, must be made by him personally, and

that the right cannot be waived by his counsel

unless accused authorizes him so to do.’ ”’

We insist that ‘‘presence’’ at one’s trial means en-

titlement to hear and know what is taking place. Other-

wise it would be unnecessary to provide interpretors

for defendants who can not understand English.

Courts have usually been liberal in their construction

of the Bill of Rights to give the citizen meaningful

protection. Moreover, the right of publie trial and

presence at all meaningful! stages thereof by the de-

fendant himself is a right interwoven with publie in-

terest. Waiver should be closely guarded and never

held unless it appears of record to have been intelli-

gently made.

In the case sub judice no such waiver appears and

there is no waiver to the failure of the Court Reporter

to record voir dire qualification of the jury.

As was said in Edwards vy. United States, supra,

‘,.. it constitutes error to fail to report any portion

of the proceedings in a criminal case where the un-

availability of a transcript makes it impossible for

the appellate court to determine whether or not preju-

dicial error was committed. Parrott vy. United States,

10 Cir., 314 F. 2d 46; United States v. Sigal, supra;

‘

Fowler v. United States, 5 Cir., 310 F. 2d 66, Cf.;

Brown v. United States, 9 Cir., 314 F. 2d 293.”

It would be a simple matter in every case to have

the record reflect what was said in side-bar confer-

ences, and that it was said in the presence and hearing

of the defendant in a criminal case. The alternative

is to invite ‘‘off the record”’ invasion of Constitution-

ally protected rights and records that conceal from

appellate eyes transactions had in nisi prius courts.

To assure the citizenry in their right to be present

at a public trial for criminal offenses and to require

compliance by the lower Courts with the Court Re-

porter’s Act, the writ of certiorari should be granted

in this case. It is also necessary to resolve the conflict

in the lower Courts.

CONCLUSION

In conclusion we respectfully submit that the deci-

sion here is in conflict with the decision of other

Courts of Appeal and that, in fact, there are numerous

conflicting opinions of the Courts of Appeal of the

several Circuits as set forth in points numbered I, IV,

VI, and VII and that the Court of Appeals here has

decided important questions of federal law which have

not been, but should be, settled by this Court. Also

the decision of the Court of Appeals here conflicts with

the applicable decisions of this Court as detailed

herein.

The conflict of the various Federal Circuits on the

question of whether detention for execution of a search

warrant constitutes ‘‘custody’’ within the meaning of

Miranda supra is scholarly pointed out by the Su-

preme Court of Alabama in DeGruy v. State (1975)

323 So. 2d 406, 294 Ala. —, (Advance Sheet Bulletin

2). Application of Miranda standards to State cus-

todial interrogations make settlement of this conflict

an even more compelling reason for granting the Writ

herein.

The Court of Appeals for the Fifth Circuit failed

to follow Nardone, supra, by not requiring the gov-

ernment ‘‘to convince the trial courts that its proof

had an independent origin’’ from the tainted evidence

when defendant had met his burden of proving the

unlawful search and that a substantial portion of the

case against him was a fruit of the poisonous tree.

Moreover, petitioner’s right to fair trial and con-

frontation was denied by the admitted failure of the

government to make timely disclosure of the identity

of the only witness against petitioner, that the witness

had been promised immunity and that the witness had

a record of convictions which could have been shown

by the defendant for impeachment purposes on cross-

examination. In this respect the District and Cireuit

Courts failed to follow the decisions of this Court

throughout the years and recently emphasized in

Pointer v. Texas, supra.

The District Court, with approval of the Cireuit

Court, stripped petitioner of his right to remain silent,

rather than respond to an accusatory statement by a

co-defendant, when petitioner was in custody pursuant

to a search warrant. In so doing, the lower courts failed

to give effect to the Fifth Amendment and to follow

the decisions of this Court, particularly Miranda and

United States v. Hale, supra.

Scrutiny of the record compels the conclusion that

petitioner was convicted, not because of the evidence

against him, but because of the mounting proof of the

guilt of his co-defendants. In keeping with Karp v.

United States, supra, and in the spirit of fairness, pe-

titioner should have been granted a severance when the

conspiracy count was dismissed.

Petitioner was denied due process and a fair trial

when the Trial Court failed to require the government

to prove the indictment as framed. Unfair and con-

fusing use of the conjunctive instead of the disjunctive

is widespread in the lower Federal Courts and merits

the attention of this Court.

The right of petitioner to be present at every stage

of his felony trial, the Constitutional requirement that

such trials be public, and the right of petitioner to a

complete record on appeal were ignored by the lower

courts. Nonecompliance with the Court Reporter’s Act

is wide-spread throughout the districts and not uni-

formly dealt with among the Cireuits. Direction and

leadership from the Supreme Court is needed in this

area.

Casual scrutiny of the record sub judice reflects that

petitioner was not afforded elementary justice. Unless

the Writ is granted, the Constitutional guarantees

against self-incrimination, protecting the right to a

full and fair public trial in the presence and hearing

of the defendant, will all become meaningless to this

petitioner. We urge that he can be stripped of his

rights only at jeopardy to us all.

PRAYER

Wherefore, in consideration of the foregoing spe-

cial and important reasons, the petitioner respectfully

prays that Writ of Certiorari shall issue directed to

the Court of Appeals for the Fifth Circuit, and that

this cause will be reviewed by this Honorable Court

pursuant to the exigencies thereof.

Respectfully submitted,

JoHN C. SATTERFIELD

P. O. Box 847

Jackson, Mississippi 39205

Phone (601) 354-2540

Rocer A. Brown

Birmingham, Alabama a

GeorRGE KE. TRAWICK

Post Office Box 47

Ariton, Alabama 36311

Phone (205) 762-2356

Attorneys for Petitioner

February 26, 1976

APPENDIX

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUTT.

No. 74-4208

Unitrep Srates or America, Plaintiff-Appellee,

Lewis Clinton Prxe, Ozane Smith, Clarence Eugene Huey,

James Eldridge Hosmer, William Hundley Baker, III,

Joseph Earl Taunton and Robert Mace Lee, a/k/a

‘*Bill Bob,’’ defendants-appellants.

Nov. 17, 1975

Defendants were convicted in the District Court for the

Northern District of Alabama, Sam C. Pointer, Jr., J., of

violating federal gambling laws and they appealed. The

Court of Appeals, Thornberry, Circuit Judge, held that

evidence sustained determination that 1974 FBI search

was not tainted by 1973 illegal search by city police of-

ficers; that trial court’s dismissal of conspiracy count for

fear that evidence on that count would include references

to the illegal search or the products of that search did not

require dismissal of the substantive counts; that evidence

was sufficient to sustain convictions, and that fact that

magistrate issued search warrant after being presented

with a completed search warrant and then taking testimony

under oath to determine existence of probable cause rather

than issuing a search warrant upon submission of sworn

affidavit did not invalidate search warrants.

Affirmed.

1. Gaming § 60

Neither fact that FBI’s prior suspicions of defendants’

involvement in gambling operation were confirmed by il-

legal search conducted by city police nor the inclusion of

references to that search in the affidavit supporting the

federal search warrant established ipso facto that the

search conducted by the FBI was impermissibly tainted

by the prior illegal search by city police.

2. Gaming § 60

Evidence that FBI and city police had a very loose and

informal collaboration in investigation of gambling activi-

ties, that some interchange of information did occur, that,

following illegal 1973 search by police, FBI was allowed

to examine evidence seized, that the FBI’s investigation

of illegal gambling activities had already focused on de-

fendants at the time that the police conducted their illegal

search, and that the result of that search served only to

confirm prior suspicions sustained finding that 1974 search

by FBI was not impermissibly tainted by the prior illegal

city police search.

3. Criminal Law § 394.5(4)

Given the fact of an illegal search, burden of persuasion

lies with the Government to establish that subsequent

search is not tainted by the prior illegal search, but the

defendants must nevertheless prove that a substantial por-

tion of the case against them was the fruit of the poisonous

tree.

4. Grand Jury § 33

Grand juries are not bound by the same rules of evidence

which restrict a trial court and grand juries can consider

evidence seized in illegal search.

5. Indictment and Information § 144.1(1)

Where trial court dismissed conspiracy count because

of fear that Government’s effort to establish starting date

for the conspiracy would include inadvertent references to

illegal search or products of that search, dismissal of con-

spiracy count did not require dismissal of substantive

counts on theory that the trial court, in dismissing the

conspiracy count, found that the illegal search impermis-

sibly tainted a subsequent search.

6. Criminal Law § 92

Gaming § 98(1)

Testimony by ‘‘stationhouse operator’’ involved in

gambling operation that one defendant picked up money

from her stationhouse when she was running the lottery

and that all wages at her stationhouse were turned in

daily to a second defendant and that a third defendant

came to her house every week or two to draw winning

numbers for the lottery, along with significant corrobo-

rating evidence, was sufficient to sustain defendants’ con-

victions for violating federal gambling laws and, conse-

quently, to establish jurisdiction in federal court. 18

U.S.C.A. § 1955.

7. Criminal Law §693

Where second search postdated indictment, and where

defendants objected to introduction of the evidence when

it was offered at trial, the objections were timely even

though no motion to suppress evidence seized in either

of two searches was made. Fed.Rules Crim. Proce., rule

41(e), 18 U.S.C.A.

8. Criminal Law § 673(1)

Defendant’s failure to request limiting instrvetion with

regard to evidence which had been withdrawn by the

United States because it was obtained in a search which

postdated the indictment waived any objection which de-

fendant might have had to initial admission of the evi-

dence.

9. Lotteries 419

Information from previously reliable informant and evi-

dence of extensive law enforcement surveillance of de-

fendant’s activities as a runner for lottery, including the

passing of lottery slips to other members of the gambling

operation, provided probable cause to support warrant for

search of defendant’s automobile.

10. Searches and Seizures § 3.5

As long as the magistrate conducts a meaningful inde-

pendent inquiry before affixing his signature, constitutional

standards for issuance of search warrant should be re-

garded as met even though, rather than having submission

of sworn affidavit, magistrate is presented with a com-

pleted search warrant and then conducts an inquiry into

the existence vel non of sufficient probable cause to sup-

port the particular search.

11. Searches and Seizures § 3.6(2)

Magistrate’s determination of probable cause is entitled

to great deference and is conclusive in the absence of

arbitrariness.

Appeals from the United States District Court for the

Northern District of Alabama.

Before Bett, THornsperry and Morean, Circuit Judges.

THornBerry, Circuit Judge:

Seven appellants challenge their federal gambling con-

victions. See 18 U.S.C. § 1955. All appellants argue that the

district court’s dismissal of count one of the indictment,

charging a conspiracy, required dismissal of count two of

the indictment, which set out the substantive gambling

offense. Appellants Clinton Lewis Pike, Ozane Smith, and

Robert Mace Lee challenge the sufficiency of the evidence

to sustain their convictions. Appellant Lee further attacks

the admission of evidence seized in a search of his auto-

mobile pursuant to a warrant procured by local law en-

forcement officials. For the reasons discussed below, we

affirm the convictions of all appellants.

[1-5] On July 11, 1973, the Birmingham, Alabama, po-

lice conducted a search of a hotel room that uncovered

evidence of appellants’ operation of an illegal lottery.

Almost one year later, on June 21, 1974, the FBI raided

an apartment in Birmingham, and the search incident to

that raid uncovered extensive evidence implicating ap-

pellants in the continued operation of the lottery. Judge

Pointer below found the 1973 search by Birmingham po-

lice officers illegal by reason of a facially insufficient affi-

davit and warrant. After a lengthy hearing, see Kolod v.

United States, 1968, 390 U.S. 136, 88 S.Ct. 752, 19 L.Ed.2d

962, Judge Pointer also found that the later FBI search

was not tainted by the earlier, illegal search by Birming-

ham police officers. The evidence introduced at the hear-

ing depicted a very loose and informal collaboration be-

tween local law enforcement officials and the FBI in their

independent investigations of gambling activities in the

Birmingham area. Some interchange of information did

occur, and after the 1973 search the FBI was allowed to

examine the evidence seized by the Birmingham police.

However, evidence introduced at the hearing before Judge

Pointer also established that the FBI’s investigation of

illegal gambling activities had already focused on ap-

pellants at the time the Birmingham police conducted their

illegal search, and the results of that search only served

to confirm prior suspicions. Agent Williams testified that

the bulk of the information that went into the affidavit

supporting the warrant for the 1974 FBI search was de-

rived independently of the evidence seized in the 1973

search, and an examination of the affidavit lends support

to the Williams testimony. The affidavit chronicles a long

and intensive FBI surveillance of appellants’ activities,

details information obtained from a previously reliable

informant, and absent the few references to the illegal

1973 search, provides a more than adequate factual basis

for the magistrate’s determination of probable cause. See

Spinelli v. United States, 1969, 393 U.S. 410, 89 S.Ct. 584,

21 L.Ed.2d 637; Aquilar v. Texas, 1964, 378 U.S. 108, 84

S.Ct. 1509, 12 L.Ed.2d 723; United States v. Sellers, 5th

Cir. 1973, 483 F.2d 37. Neither the fact that the FBI’s prior

suspicions were confirmed by the illegal 1973 search nor the

inclusion of references to that search in the affidavit sup-

porting the federal warrant ipso facto establishes the taint

argued by appellants. See United States v. Friedland,

Qnd Cir. 1971, 441 F.2d 855; United States v. Schipani,

2nd Cir. 1969, 414 F.2d 1262; cf. Nardone v. United States,

1939, 308 U.S. 338, 341, 60 St.Ct. 266, 268, 84 L.Ed. 307.

On the contrary, from our examination of the transcript of

the hearing, we cannot say that Judge Pointer erred in

finding no taint flowing from the illegal 1973 search to

the 1974 FBI raid on appellants’ lottery operation. Given

the fact of an illegal search, the burden of persuasion lies

with the United States to establish the absence of taint.

Nevertheless, appellants must ‘‘prove that a substantial

portion of the case against [them] was a fruit of the

poisonous tree.’? Nardone v. United States, supra; United

States v. Nolan, 5th Cir. 1969, 420 F.2d 552, 554-55. Judge

Pointer correctly concluded that appellants failed in the

necessary proof. Appellants, however, argue that Judge

Pointer’s dismissal of the conspiracy count was tanta-

mount to a finding that the 1974 FBI search was tainted

by the 1973 search, and dismissal of both counts of the

indictment was required. The error in appellants’ argu-

ment stems from a misinterpretation of the reasons behind

Judge Pointer’s dismissal of the conspiracy count.’ To

‘Appellants apparently believe that Judge Pointer dismissed

the conspiracy count because the grand jury that indicted appel-

lants improperly considered evidence obtained by the Birmingham

police in the illegal 1973 search. As discussed above, however, Judge

Pointer’s dismissal of the conspiracy count turned on pragmatic

considerations. Assuming for the purposes of argument that appel-

lants are attempting a belated attack on the nature of the grand

jury proceedings, it is nevertheless true that grand juries are not

bound by the same rules of evidence that restrict a trial court and

7a °

have left the conspiracy count in the case would have

required the United States to establish a starting date

of the conspiracy. Judge Pointer’s comments from the

bench reveal a fear on his part that establishing the start-

ing date posed significant difficulties in avoiding inadvert-

ent references to the illegal search or the products of that

search.? Contrary to appellants’ assertions, the dismissal

of the conspiracy count hinged on an abundance of cau-

tion, not a taint running from the 1973 search to the 1974

FBI search. For this reason, Judge Pointer did not err in

refusing to grant appellants’ motion to dismiss the sub-

stantive count.

[6] Appellants Pike, Smith, and Lee challenge the suf-

ficiency of the evidence to sustain their convictions. View-

ing the evidence in the light most favorable to the United

States, we hold that a reasonable jury could conclude that

the evidence is inconsistent with the hypothesis of ap-

pellants’ innocence. See, e.g., United States v. Warner, 5th

Cir. 1971, 441 F.2d 821, cert. denied, 404 U.S. 829, 92 S.Ct.

65, 30 L.Ed.2d 58. Neither Pike, Smith, nor Lee was pres-

ent in the apartment raided by the FBI in June, 1974.

The key evidence linking these three appllants to the ope-

ration of the lottery was the testimony of witness Weath-

erspoon, a ‘‘stationhouse operator’’ testifying for the

United States. She testified that Smith picked up the

money from her stationhouse when she was running the

can consider evidence seized in an illegal search. See United States

v. Calandra, 1974, 414 U.S. 338, 94 8.Ct. 613, 38 L.Ed.2d 561,

2 The following comments by Judge Pointer are illustrative.

But in the more traditional manner, that is what we get back

into with Count One [the conspiracy count] where I’m not sure

we can cure the matter... [i]f you’re going to get into the

facts and events that took place in June or July, 1973, without

having a very difficult time separating out what is connected

with the raid and what isn’t.

Appendix at 102.

lottery and that all wagers at her stationhouse were turned

in daily to appellant Lee. Witness Weatherspoon further

testified that appellant Pike came to her house ‘‘every

week or sometimes every two weeks’’ to draw the winning

numbers for the lottery. Coupled with Judge Pointer’s

cautionary charge to the jury, the accomplice testimony

of Weatherspoon was itself sufficient to support the con-

victions of appellants Pike, Smith, and Lee. See Peel v.

United States, 5th Cir. 1962, 316 F.2d 907, cert. denied,

Crane v. United States, 37) U.S. 896, 84 S.Ct. 174, 11

L.Ed.2d 125, In addition, however, significant corrobora-

ting evidence was before the jury. Appellants’ arguments

to the efficiency of the evidence are rejected. This being the

case, appellants’ jurisdictional arguments are similarly

rejected. See United States v. Bridges, 5th Cir. 1974, 493

F.2d 918.

[7-11] Appellant Lee challenges the admission of lottery

slips and other gambling paraphernalia seized in two

searches of his automobile pursuant to local warrants on

October 1, 1974, and October 9, 1974. The United States

withdrew the evidence obtained in the second search be-

cause that search postdated the indictment returned

against appellant. No Rule 41(e) motion to suppress the

evidence seized in the two automobile searches was made.

However, at the time the United States proposed to intro-

duce the evidence, Judge Pointer allowed appellant to

make his objections. Given this sequence of events, the

objections made at trial must be regarded as timely.’ See

Newman v. United States, 5th Cir. 1960, 277 F.2d 794, 797.

From our independent examination, we conclude that

5’ Appellant Lee subsequently failed to request a limiting instruc-

tion with regard to the evidence withdrawn by the United States,

and thus waived any objections he might have had to the initial

admission of that evidence. Appellant’s objections to the evidence

seized in the first search of his automobile were, however, properly

preserved.

Judge Pointer correctly determined that sufficient factual

information was available to the local magistrate to sup-

port a finding of probable cause to search appellant’s

automobile.* In addition to information received from a

previously reliable informant, see Aquilar v. Texas, supra;

United States v. Bell, 5th Cir. 1972, 457 F.2d 1231, the

local magistrate was apprised of observations made in the

course of an extensive law enforcement surevillance of

appellant Lee’s activities as a ‘‘runner’’ for the lottery

which included the passing of lottery slips to other mem-

bers of the gambling operation. Appellant’s search and

seizure argument thus fails.

The Court having given lengthy consideration to all

arguments raised in this appeal, the convictions of all

appellants should be and are affirmed.

* Appellant Lee also challenges the local Birmingham proce-

dure whereby a completed search warrant is presented to the magis-

trate who then places the submitting officer under oath and con-

ducts an inquiry into the existence or nonexistence of sufficient

probable cause to support the particular search. The more typical

procedure involves the submission of a sworn affidavit. The real

difference in a probable cause evaluation made on the basis of fac-

tual matters set out in an affidavit or in a completed search warrant

is difficult to see. As long as the magistrate does conduct a meaning-

fully independent inquiry before affixing his signature, the consti-

tutional standards should be regarded as met. In all events, the

magistrate’s ‘‘determination of probable cause should be paid great

deference by reviewing courts,’’ Spinelli v. United States, 1969, 393

U.S. 410, 419, 89 S.Ct. 584, 591, 21 L.Ed.2d 637; United States v.

Hill, 5th Cir. 1974, 500 F.2d 315, 319, and in the absence of arbi-

trariness that determination is conclusive. Bastida v. Henderson, 5th

Cir. 1973, 487 F.2d 860, 863, citing Castle v. United States, 5th Cir.

1961, 287 F.2d 657.

10a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1975

No. 74-4208

D.C. Docket No. CR-74-P-346-S

Unitrep States or America, Plaintiff-Appellee,

Lewis Cuinton Pike, Ozane SmirH, CLARENCE EUGENE

Huey, James Exvpormce Hosmer, Wittiam HunbLey

Baker, III, JosepH Eart Taunton, and Rospert Mace

Lez, a/k/a ‘‘Bill Bob,’’ Defendants-Appellants.

Appeals from the United States District Court for the

Northern Districi of Alabama

Before Bett, Tuornperry and Morcayn, Circuit Judges.

Judgment

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Northern District of Alabama, and was argued by counsel;

On ConstmperatTion Wuereor, It is now here ordered and

adjudged by this Court that the judgment of the said

District Court in this cause be, and the same is hereby

affirmed.

(Firep Janvary 13, 1976)

Issued as Mandate: January 12, 1976

(SEAL) t=

November 17, 1975

A true copy

Test: Epwarp.W. WapswortH

Clerk, U.S. Court of Appeals, Fifth Circuit

By /s/ Mary Bern Brecup

Mary Beth Brecup

Deputy

New Orleans, Louisiana

lla

UNITED STATES DISTRICT COURT

FOR THE

SOUTHERN DIVISION OF THE NORTHERN DISTRICT

OF ALABAMA

No. CR-74-P-346-S

Unitep States or AMERICA

Lewis Curnton PIKE

On this 27th day of November, 1974 came the attorney

for the government and the defendant appeared in person

and by counsel.

Ir Is Apsupcep that the defendant has been convicted

upon his plea of not guilty and a jury verdict of guilty

to Count 2 of the offense of unlawfully and knowingly con-

ducting an illegal gambling business, said illegal gambling

business involving a lottery, in violation of 18 USC 1955,

Count 2; as charged in Count 2 of the indictment; and

the court having asked the defendant whether he has any-

thing to say why judgment should not be pronounced, and

no sufficient cause to the contrary being shown or appear-

ing to the Court,

Ir Is Apsupcep that the defendant is guilty as charged

and convicted.

Ir Is Apsupcep that the defendant is hereby committed

to the custody of the Attorney General or his authorized

representative for imprisonment for a period of Five (5)

Years and hereby fined Twenty Thousand ($20,000.00)

Dollars, to stand committed for payment of said fine

December 23, 1974; or until otherwise discharged as pro-

vided by law.

12a

Ir Is ApsupGep that execution of said sentence, be, and

it hereby is suspended until December 23, 1974 at 9 A.M.,

at which time said defendant shall surrender himself to

the United States marshal at Birmingham, Alabama, to

begin service of said sentence.

Ir Is Orperep that the Clerk deliver a certified copy of

this judgment and commitment to the United States Mar-

shal or other qualified officer and that the copy serve as

the commitment of the defendant.

The Court recommends commitment to:

SSEESTSsesSescwoesesaesevseseseseese Sse ee aes s.6oas 6

/s/ Sam C. Pointer

Sam C. Pointer

United States District Judge

“ese eevee eevreeeee eee ee & F He

Deputy Clerk

(SEAL)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.