Appendix — Jeffers v. United States

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APPENDIX

MICHAEL RODAK, JR.,CLERK

3u the Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1805

GARLAND JEFFERS,

Petitioner,

—Y,—

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI FILED JUNE 12, 1976

CERTIORARI GRANTED OCTOBER 4, 1976

Iu the Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1805

GARLAND JEFFERS,

Petitioner,

—V.—

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

INDEX TO APPENDIX

Page

A chronological list of important dates on which Pleadings

were filed, Hearings Held and Orders entered ............... 1

The Indictments of Garland Jeffers in a continuing criminal

enterprise and the conspiracy Cases ..........0000000...-.2..02eeeeeee ee 3

Government’s Motion for Trial Together filed in Hammond

Criminal 74-56... ........... ae pS ssi tcbciies Iccaa ieee naiaail 12

Jeffers and other pereens sists to the trial to

STII... ssctsacstmsathissaimecisanaasdgaduonsostiadieiamebakounaaniiidanamain tesa 15

Jeffers’ Motion to Dismiss Indictment in the continuing

criminal enterprise case because of double jeopardy ........ 25

Government’s Response to the Motion to Dismiss because of

Double Jeopardy .......................... scceiaaaaies seacalelencuasciaandiien 33

Trial Court’s instructions in the continuing criminal enter-

NG: SII” cd.cisiect: ics hsloaneintninais desis ilstcinasininahtatasinaienanasidaie i iiarase alata 37

Ord of the Supreme Court of the United States granting

SE TO WEEE GE GUUCIIU OIG qo cis cccccevcciececsesesecncececessenceeress 54

Order of the Supreme Court of the United States granting

motion for leave to proceed in forma pauperis .................... 55

NOTE: The opinion of the United States Court of Appeals for the

Seventh Circuit is printed in Appendix A to the Petition

for Writ of Certiorari.

The order denying rehearing in the United States Court of

Appeals for the Seventh Circuit is printed in Appendix B

to the Petition for Writ of Certiorari.

a tn

A CHRONOLOGICAL LIST OF IMPORTANT DATES

ON WHICH PLEADINGS WERE FILED,

HEARINGS HELD AND ORDERS ENTERED

March 18, 1974—Indictment filed in Hammond Crim-

inal 74-56 charging Jeffers and others with con-

spiracy to distribute heroin; indictment filed in

Hammond Criminal 74-57 charging Jeffers with a

continuing criminal enterprise.

April 9, 1974—Government filed Motion for trial to-

gether in Hammond Criminal 74-56; the Motion re-

quested that the conspiracy and the continuing crim-

inal enterprise charges tried together.

April 29, 1974—Jeffers and other defendants in Ham-

mond Criminal 74-56 filed objections to Govern-

ment’s Motion for trial together and memorandum

in support thereof.

April 30, 1974—The trial court held arguments on the

government’s Motion for Trial Together; docket

entered in Hammond Criminal 74-57 to this effect.

May 7, 1974—The trial court denied on the government’s

motion for trial together.

June, 1974—Jeffers was tried and convicted on the

conspiracy charge and was sentenced to fifteen

years.

March 5, 1975—Jeffers filed Motion to Dismiss the con-

tinuing criminal enterprise indictment because of

double jeopardy.

March 10, 1975—-Government filed Response to Defend-

ant’s Motion to Dismiss indictment.

March 11, 1975—The trial court denied Jeffers’ Motion

to Dismiss the indictment because of double jeop-

ardy.

March 17, 1975—Jeffers’ continuing criminal enterprise

trial began.

(1)

March 26, 1975—Jeffers convicted of a continuing crim-

inal enterprise

May 9, 1975—Jeffers sentenced to life, fined $100,000.

The life sentence to rin consecutive with sentence

imposed in Hammond Crimina! 74-56.

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

H CR 74 57

Sec. 848, Title 21 USC

[Filed Mar. 18, 1974, at _...M, Francis T. Grandys,

Clerk, U.S. District Court |

UNITED STATES OF AMERICA

Vv.

GARLAND JEFFERS, AKA PETERMAN

The Grand Jury charges:

On or about the Ist day of November, 1971, the exact

date is to the Grand Jury unknown, and continuing to

the date of this indictment, in the Northern District of

Indiana, and elsewhere, GARLAND JEFFERS, aka

PETERMAN, defendant herein, knowingly and unlaw-

fully did engage in continuing criminal enterprise in

that he did distribute and possess with intent to dis-

tribute heroin, in amounts to the Grand Jury unknown,

a Schedule I Narcotic Drug controlled substance in viola-

tion of Title 21 United States Code, Section 841(a) (1),

a felony, and cocaine, in amounts to the Grand Jury

unknown, a Schedule II Narcotic Drug controlled sub-

stance, in violation of Title 21 United States Code, Sec-

tion 841(a)(1), a felony, and undertook such distribu-

tion in concert with five or more other people with re-

spect to whom he occupied a position of organizer, su-

pervisor and manager and further as a result of such

distribution and other activity obtained substantial in-

come i Violation of Section 848, Title 21 of the United

States Code.

A TRUE BILL

/s/ Donald G. Eldridge

Foreman

/s/ John R. Wilks

JOHN R. WILKS

United States Attorney

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF INDIANA |

HAMMOND DIVISION

H-CR-74-56

Sec. 846, Title 21, United States Code

[Filed Mar. 18, 1974, At M, Francis T. Grandys,

Clerk, U.S. District Court |

UNITED STATES OF AMERICA

Vv.

GARLAND JEFFERS A/K/A PETERMAN, WILLIAM DOUG

DAVIDSON, WARNER §S. SMITH A/K/A ToJO, LEROY

WILLIAMS A/K/A CARCHETTI, NATHANIEL JEFFERS

A/K/A RAWHIDE, CECELIA WILLIS A/K/A DEE DEE,

CLINTON BUSH, PAUL GRIFFIN, WILLIE J. WILLIAMS

A/K/A JAMIE, ANGELIA Y. HARRIS

The Grand Jury charges:

From on or about November 1, 1971, the exact date

being to the Grand Jury unknown, and continuously

thereafter up to and including the date of this indict-

ment in the Northern District of Indiana and elsewhere,

GARLAND JEFFERS a/k/a PETERMAN, WILLIAM

DOUG DAVIDSON, WARNER §&. SMITH a/k/a TOJO,

LEROY WILLIAMS a/k/a CARCHETTI, NATHANIEL

JEFFERS a/k/a RAWHIDE, CECELIA WILLIS a/k/a

DEE ‘EE, CLINTON BUSH, PAUL GRIFFIN, WILLIE

J. WILLIAMS a/k/a JAMIE, and ANGELIA Y.

HARRIS, the defendants herein, and WILLIAM DOUG-

LAS, HENRY HARRIS and JAMES POOLE, co-con-

spirators but unindicted, did unlawfully, knowingly and

wilfully conspire, combine, confederate and agree to-

gether and with divers others persons whose names are

to the Grand Jury unknown, to commit offenses against

the United States and to violate Section 841(a) (1), Title

21 of the United States Code, to-wit: to distribute heroin,

a Schedule I Controlled Substance and to distribute co-

caine, a Schedule II Controlled Substance, in violation

of Section 846, Title 21 of the United States Code.’

The said conspiracy was to be accomplished in the fol-

lowing manner and by the following means:

(a) The defendants and co-conspirators and others un-

known to the Grand Jury would form and continue to

operate an organization known as ““The Family”.

(b) The purpose of “The Family” organization was

to engage in the distribution of heroin and cocaine, con-

trolled substances and control the tariff in heroin and

cocaine in and around the city of Gary, Indiana.

(ce) It was part of the conspiracy that the defendant,

GARLAND JEFFERS a/k/a PETERMAN, would dur-

ing the period of time of the conspiracy the exact date

being unknown to the Grand Jury, assume leadership

of “The Family” organization.

(d) It was further part of the conspiracy that the

defendants would maintain books and records of “The

Family” organization’s meetings and discussions and of

transactions involving the distribution of controlled sub-

stances.

(e) It was further part of the conspiracy that the

defendants herein would extort and attempt to extort

money and narcotics from individuals engaged in the

distribution of controlled substances.

(f) It was further part of the conspiracy that the

defendants and co-conspirators herein would distribute

controlled substances and arrange for the distribution

of controlled substances by others.

(¢g) It was further part of the conspiracy that the

defendants and co-conspirators herein would acquire sub-

stantial sums of money because of the distribution of

controlled substances.

(h) It was further part of the conspiracy that de-

fendants, CLINTON BUSH, WILLIAM DOUG DAVID-

SON and LEROY WILLIAMS a/k/a CARCHETTI,

eee noe oe cee

——— eee

would extort from co-conspirator, JAMES POOLE, money

and narcotics in November of 1971.

(i) It was further part of the conspiracy that co-

conspirator, HENRY HARRIS, would supply heroin to

defendants, GARLAND JEFFERS a/k/a PETERMAN,

WILLIAM DOUG DAVIDSON, LEROY WILLIAMS,

a/k/a CARCHETTI, and PAUL GRIFFIN, for redis-

tribution in November and December of 1971.

(j) It was further part of the conspiracy that de-

fendants, GARLAND JEFFERS a/k/a PETERMAN and

LEROY WILLIAMS a/k/a CARCHETTI, acquired co-

caine in January 1972.

(k) It was further part of the conspiracy that mem-

bers of “The Family” organization would have meetings

on February 21, 1972, February 25, 1972, February 29,

1972, March 5. 1972 and March 7, 1972, for the discus-

sion of the “Family” business of distribution of con-

trolled substances.

(1) It was further part of the conspiracy that during

February and March 1972 defendant, CECELIA WILLIS

a/k/a DEE DEE, kept the books and records of “The

Family” organization’s business meetings and transac-

tions and would receive proceeds of narcotics transactions.

(m) It was further part of the conspiracy that co-

conspirator, JAMES POOLE, would deal controlled sub-

stances for “The Family” organization pursuant to an

arrangement worked out with defendant GARLAND

JEFFERS a/k/a PETERMAN.

(n) It was further part of the conspiracy that co-

conspirator, JAMES POOLE, dealt in controlled sub-

stances for “The Family” organization on a regular basis

with defendant, WILLIE J. WILLIAMS a/k/a JAMIE,

delivering unknown quantities of narcotics and receiving

unknown quantities of money.

(o) It was further part of the conspiracy that in

December of 1972 co-conspirator, JAMES POOLE, pos-

sessed with the intent to distribute heroin for “The

Family” organization and maintained books and records

regarding these transactions.

(p) It was further part of the conspiracy that AR-

THUR BUCKANON would sell one-half kilogram of

heroin to defendants, WILLIAM DOUG DAVIDSON and

WARNER S. SMITH a/k/a TOJO, for $14,000.00 for

redistribution by “Family” members and associates

through defendant, GARLAND JEFFERS a/k/a PE-

TERMAN.

(q) It is further part of the conspiracy that defend-

ants, GARLAND JEFFERS a/k/a PETERMAN, LE-

ROY WILLIAMS a/k/a CARCHETTI, NATHANIEL

JEFFERS a/k/a RAWHIDE, ANGELIA Y. HARRIS,

and WARNER S. SMITH a/k/a TOJO would negotiate

a quinine for heroin exchange with Agent Melvin O.

Schabilion of the Drug Enforcement Administration dur-

ing the months of December, 1973, and January, 1974.

(r) It was further part of the conspiracy that de-

fendant, LEROY WILLIAMS a/k/a CARCHETTI, would

sell heroin to Agent Schabilion.

(s) It was further part of the conspiracy that de-

fendant WARNER S. SMITH a/k/a TOJO, a member of

“The Family” organization, would advise and work with

“The Family” on a regular basis and participate in the

acquiring and the posting of bond money when “Family”

members were arrested.

(t) It was further part of the conspiracy that de-

fendant, GARLAND JEFFERS a/k/a PETERMAN,

would supply a quantity of cocaine to LEROY WIL-

LIAMS a/k/a CARCHETTI in January 1974.

At the approximate time hereinafter mentioned the

defendants GARLAND JEFFERS a/k/a PETERMAN,

WILLIAM DOUG DAVIDSON, WARNER S. SMITH

a/k/a TOJO, LEROY WILLIAMS a/k/a CARCHETTI,

NATHANIEL JEFFERS a/k/a RAWHIDE, CECELIA

WILLIS a/k/a DEE DEE, CLINTON BUSH, PAUL

GRIFFIN, WILLIE J. WILLIAMS a/k/a JAMIE, AN-

GELIA Y. HARRIS, named herein along with co-con-

spirators, WILLIAM DOUGLAS, HENRY HARRIS and

JAMES POOLE, unindicted co-conspirators, committed

the following overt acts in furtherance of said con-

spiracy and to effect the objects thereof:

(1) On or about November 1, 1971, unindicted co-

conspirator, JAMES POOLE, was confronted by defend- —

RET ne er eee

ants, CLINTON BUSH, WILLIAM DOUG DAVIDSON,

and LEROY WILLIAMS a/k/a CARCHETTI, and forced

to distribute controlled substances for “The Family”

organization.

(2) On or about November 15, 1971, unindicted co-

conspirator HENRY HARRIS, supplied heroin to de-

fendants, GARLAND JEFFERS a/k/a PETERMAN,

WILLIAM DOUG DAVIDSON, LEROY WILLIAMS

a/k/a CARCHETTI, and PAUL GRIFFIN, for redis-

tribution and received money for the heroin from de-

fendant GARLAND JEFFERS a/k/a PETERMAN.

(3) During December 1971, unindicted co-conspirator,

HENRY HARRIS, supplied heroin to defendant, GAR-

LAND JEFFERS a/k/a PETERMAN.

(4) During January 1972 defendants, GARLAND

JEFFERS a/k/a PETERMAN and LEROY WILLIAMS

a/k/a CARCHETTI, acquired cocaine for redistribution

from HARRIS, which acquisition came by force.

(5) On or about February 21, 1972, members of “The

Family” organization including defendants, GARLAND

JEFFERS a/k/a PETERMAN, LEROY WILLIAMS

a/k/a CARCHETTI, PAUL GRIFFIN, CECELIA WIL-

LIS a/k/a DEE DEE, and CLINTON BUSH, met for the

purpose of discussing the business of “The Family” or-

ganization in the distribution of controlled substances.

(6) On or about February 25, 1972, “The Family”

organization met and had a discussion of continuing the

narcotics business following the arrest of “Family” mem-

bers and to discuss the processing of heroin for distribu-

tion by “The Family” organization.

(7) On or about February 9, 1972, “The Family”

members met which meeting included defendants, GAR-

LAND JEFFERS a/k/a PETERMAN, LEROY WIL-

LIAMS a/k/a CARCHETTI, and CECELIA WILLIS

a/k/a DEE DEE.

(8) On or about March 5, 1972, members of “The

Family” organization met to discuss distribution of heroin

for distribution.

(9) On or about March 7, 1972, members of “The

Family” organization met to discuss distribution of heroin

and amounts of profit, and also agreed to the division of

the controlled substances that remained following a po-

lice raid.

(10) Early in 1972 defendants, GARLAND JEFFERS

a/k/a PETERMAN and WILLIAM DOUG DAVIDSON,

extorted money from WILLIAM DOUGLAS, unindicted

co-conspirator.

(11) During March of 1972 GARLAND JEFFERS

a/k/a PETERMAN arranged for JAMES POOLE, un-

indicted co-conspirator, to deal in controlled substances

and made arrangements for co-defendant, WILLIE J.

WILLIAMS a/k/a JAMIE, to supply heroin to unin-

dicted co-conspirator, JAMES POOLE, and collect money

from POOLE for payment to “The Family” organization.

(12) Defendant, WILLIE J. WILLIAMS a/k/a

JAMIE, supplied controlled substances to JAMES

POOLE, unindicted co-conspirator, for distribution and

picked up money in payment thereof.

(13) On or about December 7, 1972, JAMES POOLE,

unindicted co-conspirator, possessed with intent to dis-

tribute heroin belonging to “The Family” organization

and maintained books and records regarding the dis-

tribution of controlled substances.

(14) On or about the 7th day of February, 1973,

ARTHUR BUCKANON sold one-half kilogram of heroin

to defendants, WILLIAM DOUG DAVIDSON and WAR-

NER S. SMITH a/k/a TOJO, for $14,000.00 which

heroin was for defendant, GARLAND JEFFERS a/k/a

PETERMAN, and “The Family” organization.

(15) During December 1973 and January 1974, de-

fendants, GARLAND JEFFERS a/k/a PETERMAN,

LEROY WILLIAMS a/k/a CARCHETTI, NATHANIEL

JEFFERS a/k/a RAWHIDE, ANGELIA Y. HARRIS,

and WARNER S. SMITH a/k/a TOJO, negotiated a

quinine for heroin exchange with Agent Melvin O. Scha-

bilion of the Drug Enforcement Administration.

(16) On or about January 19, 1974, defendant, LE-

ROY WILLIAMS a.k/a CARCHETTI, sold heroin to

Agent Melvin O. Schabilion of the Drug Enforcement

Administration.

(17) On or about January 2, 1974, defendant, GAR-

LAND JEFFERS a/k/a PETERMAN, supplied cocaine

to defendant, LEROY WILLIAMS a/k/a CARCHETTI.

A TRUE BILL

/8/ Donald G. Eldridge

Foreman

John R. Wilks

United States Attorney

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

Hammond Criminal No. H CR 74-56

|Filed Apr. 9, 1974, At M, Francis T. Grandys,

Clerk, U.S. District Court}

UNITED STATES OF AMERICA

vs.

GARLAND JEFFERS, a/k/a PETERMAN; WILLIAM DOUG

DAVIDSON; WARNER S. SMITH, a/k/a ToOJO; LEROY

WILLIAMS, a/k/a CARCHETTI; NATHANIEL JEFFERS,

a/k/a RAWHIDE; CECELIA WILLIS, a/k/a DEE DEE;

CLINTON BUSH; PAUL GRIFFIN; WILLIE J. WILLIAMS,

a/k/a JAMIE; and ANGELIA Y. HARRIS

MOTION FOR TRIAL TOGETHER

Comes now the United States of America by its at-

torney, John R. Wilks, United States Attorney for the

Northern District of Indiana, and moves the Court for

trial together of the case of United States of America vs.

Garland Jeffers, Hammond Criminal No. H CR 74-57

and the above-captioned cause, and in support of its

motion represents to the Court the following:

1. That in the case of United States of America vs.

Garland Jeffers, et al.. H CR 74-56, the above-listed de-

fendants are charged with Conspiracy to commit offenses

against the United States and to violate Section 841 (a)

(1), Title 21, United States Code, to wit: to distribute

heroin, a Schedule I Narcotic Drug Controlled Substance,

and to distribute cocaine, a Schedule II Narcotic Drug

Controlled Substance, in violation of Section 846, Title

21 of the United States Code. This cause is set for trial

as a first setting on May 20, 1974, at 10:00 a.m.;

2. That in the case of United States of America vs.

Garland Jeffers, H CR 74-57, the defendant, Garland

Jeffers is charged with knowingly and unlawfully en-

gaging in the Northern District of Indiana, in continu-

ing criminal enterprises in committing violations of Sec-

tion 841(a) (1), Title 21, United States Code, in concert

with five or more other people with respect to whom he

occupied a position of organizer, supervisor and man-

ager and further as a result of such distribution and

other activity obtained substantial income in violation of

Section 848, Title 21 of the United States Code. This

cause is set for trial as a first setting on June 17, 1974,

at 10:00 a.m.;

3. That under Rule 13 of the Federal Rules of Crim-

inal Procedure the Court may order two or more indict-

ments to be tried together if the offenses, and the de-

fendants if there is more than one, could have been

joined in a single indictment or information, and further

that the procedure shall be the same as if the prosecution

were under a single indictment or information;

4. That under Rule 8 of the Federal Rules of Crim-

inal Procedure, the offenses and the defendaats in the

above-mentioned cause could have been joined in a singie

indictment of information in that the offenses charged

are of the same or similar character based on the same

acts or transactions constituting parts of a common

scheme or plan and further that the defendants may be

charged in one or more counts together or separately

and all of the defendants need not be charged in each

count;

5. That much of the evidence in the case of United

States of America vs. Garland Jeffers, H CR 74-57, is

based on the same transactions and series of transac-

tions as in the case of United States of America vs.

Garland Jeffers, et al, H CR 74-56.

WHEREFORE, on the basis of the close relationship

of the two causes and in the interest of economy and

efficiency in judicial administration, the Government re-

spectfully requests the Court to try together the case of

United States of America vs. Garland Jeffers, et al., H

CR 74-56, and United States of America vs. Garland

Jeffers, H CR 74-57, as a first setting on May 20, 1974.

Respectfully submitted,

JOHN R. WILKS

United States Attorney

By: /s/ Fred W. Grady

FRED W. GRADY

Assistant United States

Attorney

UNITED STATES DISTRICT COURT

NOKXTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

Criminal No. H Cr 74-56

|Filed Apr. 29, 1974, At M, Francis T. Grandys,

Clerk, U.S. District Court |

UNITED STATES OF AMERICA

Vv,

GARLAND JEFFERS a/k/a PETERMAN,

WILLIAM DouG DAVIDSON, ET AL.

OBJECTION TO GOVERNMENT’S MOTION

FOR TRIAL TOGETHER AND

MEMORANDUM IN SUPPORT THEREOF

The Government has filed a motion for trial together,

requesting that United States v. Garland Jeffers, No. H

Cr 74-57 be consolidated with the above entitled cause

for the purpose of trial on May 20, 1974. To this mo-

tion, the defendants interpose an objection and assert

that the consolidation of United States v. Garland Jef-

fers, et al, No. H Cr 74-56 and United States v. Garland

Jeffers, No. H Cr 74-57 would represent an improper

joinder, prejudicing the rights of all defendants herein.

United States v. Garland Jeffers, et al, No. H Cr

74-56 represents an indictment of ten (10) defendants

who are charged in one Count with a violation of Sec.

841(a) 1, Title 21 of the United States Code, which is a

conspiracy to distribute heroin, a Schedule I Controlled

Substance and to distribute cocaine, a Schedule II Con-

trolled Substance, in violation of Sec. 846, Title 21 of the

United States Code. United States v. Garland Jeffers,

No. H Cr 74-57 represents an indictment of a single de-

fendant, charging him with a violation of Sec. 848, Title

21 of the United States Code with engaging in a con-

tinuing criminal enterprise.

Simply stated, the defendants assert that an improper

joiner would exist if the two (2) indictments were con-

solidated for the purpose of trial for the reasons that

neither the parties nor the charges are the same and,

as such, would be violative of Rules Eight and Fourteen

of the Federal Rules of Criminal Procedure.

As authority for this proposition the defendants cite

the case of United States v. Spector (7th Cir. 1963) 326

F.2d 345, wherein the defendants, Spector and Scott

were named as principal defendants in a nine (9) count

indictment. In Count I of the indictment, they were

charged with a conspiracy under 18 U.S.C. Sec. 371 to

violate 18 U.S.C. Sec. 1006, (defrauding Federal Credit

Institutions).

In Counts II through IX, Spector and two (2) others,

namely, Jacobs and Starr, were charged with a violation

of Title 18, U.S.C. Sec. 1010 (making false statements

to the Federal Housing Authority). Both Spector and

Jacobs were named as defendants in four (4) of the

substantive counts while Spector and Starr were joined

in two (2) counts. All three defendants were joined in

the reme’" .g two (2) counts.

The Court of Appeals recognized the similarity be-

tween Sections 1006 and 1010 since both relate to false

statements and forged instruments made for the purpose

of obtaining loans from lending institutions whose ac-

counts are insured by Federal Agencies. Nevertheless,

the Court held that a joinder of Count I of the indict-

ment with the remaining counts runs afoul of Rule

Eight which permits joinder of two (2) or more de-

fendants in the same indictment if they are alleged to

have participated in the same act or transaction or in

the same series of acts or transactions constituting an

offense or offenses.

The Court of Appeals pointed out, however, that the

defendant, Scott, was not charged with having partici-

pated in the acts or transactions alleged in Counts II

through IX, nor were Jacobs and Starr charged with

violating the substantive statute underlying the con-

spiracy count. The Court, therefore, held:

“In conclusion, it is apparent in the instant case,

that there is no identity of defendants, of the char-

acter of the offenses, the allegations of fact, or of

the time. Therefore, a severance should have been

granted.” at p. 351.

Furthermore, the defendants cite the case of United

States v. Solomon (1960) 26 F.R.D. 397 wherein the

District Court for the Southern District of Illinois con-

fronted a seven (7) Count indictment, the first six (6)

Counts of which alleged substantive offenses of the Mail

Fraud Act and the seventh (7) Count alleged a con-

spiracy between the defendants and others to violate that

act. In first coping with the motion to sever the six (6)

substantive offenses, the Court held:

“The 6 substantive offenses charged are closely re-

lated in point of time, and each is alleged to be a

part of a single continuing scheme to defraud. To

some degree it appears that the same evidence may

tend to prove each of the 6 counts .... The Court

cannot say that the defendants will be prejudiced

by a joint trial on the substantive counts.” at p. 403.

The District Court reached a contrary conclusion with

regard to the seventh (7) Count, namely that of con-

spiracy:

“A more serious question is presented by the mo-

tion to compel election between the substantive

counts and the conspiracy count. Of necessity, to

some extent, a jury sitting on the trial of this cause

will be faced with a mass of evidence relating to

all, or a number of the counts, and also with evi-

dence which relates to each count alone. While it

appears to be true that much of the evidence intro-

duced to prove the substantive counts will be rele-

vant also to the conspiracy charge, trial of the

conspiracy count with the substantive counts can

be expected to flood the jury with a mass of evidence

admissible on the conspiracy charge only. At best,

contemplation of a trial of all seven (7) Counts

simultaneously suggests that the situation would be

very confusing for any jury. In its worst light, the

contemplated situation inherently contains the prob-

ability of prejudice to defendants in as much as evi-

dence admissible upon the conspiracy count alone,

must perforce affect the jury’s thinking when it con-

siders the fact questions presented by the substan-

tive counts.” at p. 403.

In the case at bar, the Government is attempting to

consolidate a conspiracy of ten (10) defendants with a

substantive offense of one (1) defendant. Such a con-

solidation should be viewed with disfavor.

“If a prosecution for the substantive offense be ade-

quate, inclusion of the conspiracy count should be

carefully scrutinized and separate trials should be

had if it appears that the conspiracy count, like a

two-edged sword, serves a principal purpose to give

the Government a procedural advantage and a cor-

responding advantage of probably prejudicial effect

upon the defendants’ rights.’ Solomon (supra) at

p. 104.

The Government undoubtedly contends that to consolidate

the two (2) causes above mentioned would save consider-

able time and expense. The Court in Solomon squarely

raises this issue. The Solomon Court contends that there

is no repugnancy between the counts of the indictment

yet:

“

. in the exercise of a sound discretion it ought

to compel the Government to elect whether it will

proceed upon the conspiracy count or the substantive

counts. The added expense to the Government of

time and money in trying the conspiracy and sub-

stantive charges separately is, of course, a factor to

consider, but that is a factor of small moment com-

pared to the probable prejudice to the defendants

of disposing of all charges in one grandiose trial.”

(Emphasis ours) at p. 404.

There are ten (10) individuals indicted in the con-

spiracy count among other unindicted co-conspirators.

The Government has alleged seventeen (17) overt acts

perpetrated by some or all of the defendants, of which

the defendant, GARLAND JEFFERS, is named in only

ten (10) of said acts. Furthermore, it is anticipated that

the Government will attempt to prove additional overt

acts other than those enumerated in the conspiracy in-

dictment incriminating some or all of the defendants.

What is more, the Grand Jury has charged that the

conspiracy in question was formed and remained in exist-

ence from November 1, 1971, until March 18, 1974, a

period of approximately two and one-half (214) years.

By virtue of the confusing nature of a conspiracy charge,

coupled with the fact that there are ten (10) if not more

individuals involved in said conspiracy, compounded by

the fact that it allegedly existed over an extensive period

of time, it is contended that the trial of the conspiracy

alone would constitute a difficult and confusing assort-

ment of facts for a jury to entertain, segregate and

evaluate. To stack an additional substantive offense such

as “engaging in a continuing criminal enterprise”, which

is a most serious and complicated offense, on top of an

already confusing conspiracy charge is to simply com-

pound the complexity of the issues and to create an im-

possible if not Herculean task for the jury.

Such was the case in United States v. Haupt (1943)

136 F.2d 661 wherein the Court of Appeals for the Sev-

enth Circuit confronted a one (1) Count indictment

charging several defendants with various overt acts com-

mitted by some one (1) or more of the defendants. The

charge against the defendants in this case was treason.

The Court stated:

‘.. . that the introduction of evidence in a joint

trial relating to said overt acts not alleged to have

been participated in by all defendants might lead to

confusion and prejudice as to those who had not

participated in the said overt acts.” at p. 673.

The Court further stated:

“We doubt if it was within the realm of possibility

for this jury to limit its consideration of the damag-

ing effect of such statements merely to the defendant

against whom they were admitted. We have equal

doubt that any jury, or for that matter any Court,

could perform such a Herculean feat.” at p. 672.

The Court held that the trial Judge abused his-discretion

in denying the motion for severence and in his failure

to grant a new trial.

The defendants further suggest to the Court that the

consolidation of the above two (2) causes for trial would

be conducive, not only to confusion, but to clearly preju-

dice the rights of all defendants herein by creating a

“steamroller” effect upon the minds of the jurors. The

sheer aggregate of evidence amassed by the Government

and provided to the jury would create an inference of

criminal disposition based upon mere association with

other defendants against whom the evidence is stronger.

The consolidation of the above offenses would instill a

serious hostility by the jurors against all of the defend-

ants, despite the fact that there would be insufficient

evidence on any given transaction or act to convict. In

Drew v. United States (1964) 331 F.2d 85, the Court

of Appeals for the District of Columbia stated:

“The justification for a liberal rule on joinder of

offenses appears to be the economy of a single trial.

The argument against joinder is that the defendant

may be prejudiced for one or more of the following

reasons: (1) He may become embarrassed or con-

founded in presenting separate defenses; (2) The

jury may use the evidence of one of the crimes

charged to infer a criminal disposition on the part

of the defendant from which is found his guilt of

the other crime or crimes charged; or (3) The jury

may accummulate the evidence of the various crimes

charged and find guilt when, if considered separate-

ly, it would not so find. A less tangible, but perhaps

equally persuasive element of prejudice may reside

in a latent feeling of hostility engendered by the

charging of several crimes as distinct from only one.

Thus, in any given case the Court must weigh the

prejudice to the defendant caused by the joinder

against the obviously poor consideration of economy

and expedition in judicial administration” at p. 88.

It is clear that the above considerations by the District

of Columbia Court of Appeals loom large in the case

presently at bar. Furthermore, it is important to note

that said considerations of prejudicial effect to the de-

fendants are determinative, even though joinder may be

permissible under Rule 8. Dunaway v. U. S., 205 F.2d

23, 24 (1953); Peckham v. U. S., 210 F.2d 693, 697-698

(1953) ; Chambers v. U. S., 301 F.2d 564 (1962).

In Drew v. U. S. (supra) the Court of appeals for

the District of Columbia addressed the issue of prejudice

to the defendants when joinder was in fact permissible

under Rule 8:

“Thus even though the joinder is permissible under

8(a), if the defendant makes a timely motion under

Rule 14 and shows prejudice, the Court should either

order an election by the Government or grant sepa-

rate trials. Here the joinder in the indictment under

Rule 8(a) was permissible since the two crimes are

similar in nature. Having in fact been tried to-

gether over the timely protest of appellant before,

during and after the trial, our inquiry now is as to

whether the trial record indicates sufficient possi-

bility of prejudice by reason of such joinder for

trial as to require reversal. We believe that it does.”

at p. 87.

The Court in Drew apparently established the rule

governing whether a new trial should be granted as a

result of the trial Court’s refusal to grant a severance:

“On this record, we cannot say that the jury prob-

ably was not confused or probably did not misuse

the evidence. . .”

The defendants strongly urge the Court to consider the

fact that they and each of them stands to be seriously

prejudiced by a consolidation of the two (2) trials here-

in. Courts, from time in mind, have enunciated the dan-

ger in the consolidation of indictments. An excellent

example is that of Judge Learned Hand in U. S. v.

Lotsch 102 F.2d 35 (1939) wherein Judge Hand states:

“There is indeed always a danger when several

crimes are tried together, that the jury may use the

evidence cumulatively ; that is, that although so much

as would be admissible upon any one of the charges

might not have persuaded them of the accused’s

guilt, the sum of it will convince them as to all. This

possibility violates the doctrine that only direct evi-

dence of the transaction charged will ordinarily be

accepted, and that the accused is not to be convicted

because of his criminal disposition.”

It is difficult to anticipate what if any evidence the

Government intends to use in either of the above indict-

ments since counsel for the defendants is not privy to

such information, nor has there been any disclosure what-

soever by way of discovery by the Government to the

defendants. It would however, seem fair to assume that

there will be evidence relating to at least thirteen (13)

separate individuals, that the evidence will embrace at

least seventeen (17) alleged overt acts and that it will

span a period of approximately two and one-half (21,)

years. |

It is noteworthy that the defendant, GARLAND

JEFFERS, who is charged by himself in Cause No. H Cr

74-57 is named in only ten (10) of the seventeen (17)

overt acts listed in the conspiracy indictment and fur-

ther, is alleged to have actively participated in only nine

(9) of those seventeen (17) acts. This being the case,

it is likely that much of the evidence which will be pre-

sented in the conspiracy trial does not “directly” incul-

pate the defendant, GARLAND JEFFERS, and would,

therefore, be inadmissible against him in the “continu-

ing criminal enterprise” indictment unless a direct link

could be established. All of the said overt acts would,

however, be admissible, or at least arguably so, in the

conspiracy trial. The prejudice to the defendant, JEFY-

ERS, is therefore, imminent and clear.

It is suggested to the Court that the Government will

offer evidence which may tend to suggest that the de-

fendant, GARLAND JEFFERS, is in fact the “ring

leader” and will do so by attempting to inculpate the de-

fendant, JEFFERS, in one or two transactions directly

and by way of insinuation and inference suggest that

he is responsible for all other transactions, thereby sub-

jecting him to the provisions of Sec. 848, Title 21 U.S.C.,

to-wit: Engaging in a continuing criminal enterprise.

The Government intends to offer evidence which is argu-

ably admissible under the conspiracy statute so as to

inculpate the defendant, evidence which would not be

admissible in the continuing criminal enterprise indict-

ment. Such was the tactic used by the Government in

King v. U. S. 355 F.2d 700 (1st Circuit) where in foot-

note 6 the Court stated:

“In connection with the July 14th sales in which

King allegedly participated, King was “The Man”.

On McKenney’s source of supply, the Government

agent was unsuccessful in learning who was Mc-

Kenney’s “man” on the other occasions. It seems

to us that it might be natural for the jury to fill

this void with King. If it did, the Government was

thereby showing other offenses by King not included

in the indictment, the very thing it could not prop-

erly do and of which in fact it had no evidence war-

ranting the inference.”

In conclusion, the defendants assert that to consolidate

the indictments as per the Government’s request would

constitute an improper joinder since there is neither an

identity of defendants nor an identity of charges.

Secondly, assuming for the purpose of argument, that

joinder is in fact permissible, the defendants contend that

the consolidation of the above causes would irreparably

prejudice the jury in an unjustifiable fashion against

each of the defendants and would so confound and con-

fuse the jury so as to make an impartial and fair deter-

mination impossible. |

- As an example of such confusion which zan lead from

improper joinder, see U. S. v. Varelli, 407 F.2d 735

(1969), which was decided by the Court of Appeals for

the Seventh Cireuit. It is therefore, for the above and

foregoing reasons that the defendants object to the Gov-

ernment’s motion for trial together and move the Court

to deny said motion.

Respectfully submitted,

COHEN AND THIROS

Attorneys for defendants

By: /s/ Donald P. Levinson

DONALD P. LEVINSON

504 Broadway

Gary, Indiana 46402

886-3505

UNITED STATES DISTRICT COURT

NORTHERN DIVISION OF INDIANA

HAMMOND DIVISION

No. H Cr 74-57

[Filed Mar. 5, 1975]

UNITED STATES OF AMERICA, PLAINTIFF

Vv.

GARLAND JEFFERS, DEFENDANT

MOTION TO DISMISS THE INDICTMENT

Comes now the Defendant, Garland Jeffers, by his

attorneys, Stephen Bower and E. Kent Moore, and re-

spectfully moves that the Court dismiss the continuing

criminal enterprise indictment against him for the rea-

son that this Defendant has already been placed in

jeopardy and in support thereof Defendant says:

1. That Garland Jeffers was indicted on March 18,

1974 on two (2) separate charges, to-wit: continuing

criminal enterprise, veing Cause No. HCR 74-57 and con-

spiracy to distribute heroin, being Cause No. HCR 74-56.

2. That the defendant, Garland Jeffers, was tried

upon the conspiracy charge, was convicted, and has re-

ceived an executed sentence; said defendant is currently

serving time on this conviction.

3. That the conspiracy charge in HCR 74-56 involved

proof that Garland Jeffers belonged to, and was the head

of, an organization called the “Family” in Gary, In-

diana, and that the purpose of this organization was the

illegal distribution of heroin.

4. That the Defendant is currently charged with the

crime of a continuing criminal enterprise beginning No-

vember, 1971, to distribute heroin.

5. Defendant alleges that the conspiracy and the con-

tinuing criminal enterprise charges grow out of the

same alleged criminal behavior.

6. That as a matter of fact, several of the govern-

ment’s witnesses in HCR 74-56 (the conspiracy trial)

wiil be the same in HCR 74-57; these witnesses are James

Henry Poole, David Baldwin, Henry Harris, William

Douglas, Jevita Hobbs, and Daniel Yaksich. These wit-

nesses are all non-police officers; also, several of the same

police officers will be called as witnesses. That the De-

fendant’s trial on the continuing criminal enterprise will

be a rehash of the conspiracy trial with additional ele-

ments.

7. Defendant alleges that the same evidence will be

introduced against him in his second trial; that all of

the evidence was available to the government at the time

of his conspiracy trial.

8. That even though the government attempted to con-

solidate the two (2) charges into the trial on the con-

spiracy, this does not relieve the government from hav-

ing made a choice upon which charge to try the Defend-

ant, they are now estopped to try him on the other

charge.

9. The government cannot avoid the implication of

the double jeopardy rule by claiming that since the De-

fendant objected to the joinder of the continuing criminal

enterprise charge in the conspiracy trial that he has

waived his rights; Defendant contends that by exercis-

ing his constitutional right to have a fair trial, apart

from a prejudicial joinder, he can’t be held to have waived

his double jeopardy right.

WHEREFORE, Defendant, Garland Jeffers, prays for

dismissal of the indictment against him on the grounds

of double jeopardy.

Respectfully submitted,

/s/ Stephen Bower

STEPHEN BOWER

202 N. 3rd Street

Kentland, Indiana 47951

219-474-5121

and

E. Kent Moore

815 Purdue National Bank Building

Lafayette, Indiana 47901

317-742-5091

Attorneys for Defendant

GARLAND JEFFERS

MEMORANDUM IN SUPPORT OF MorT.o*- - DISMISS

The double jeopardy clause reads. ’ ser shall any

persons be subject for the offense to Le twice prt in

jeopardy of life or limb; . .” Justice Blacks’ opin’on in

Green vs. United States, 355 U.S. 184 (1957), gives the

clearest statement of the doctrine:

(T)he State will all its resources and power should

not be allowed to make repeated attempts to con-

vict an individual for an alleged offense, thereby sub-

jecting him to embarassment, expense and ordeal and

compelling him to live in a continuing state of

anxiety and insecurity ... (355 U.S. at 187)

Collateral Estuppel, 48 Den.L.J. 130, 136 (1971) ; Lucker,

Collateral Estoppel—An Attempted Transfusion into the

Guarantee Against Double Jeopardy, 44 Temp.L.Q. 377

(1971) ; and Notes, 69 “Tich.L.R. at 777.

In order to provide meaningful double jeopardy pro-

tection the American Law Institute Model Penal Code,

$ 1.07(2), provides:

(A) defendant shall not be subject to separate trials

for multiple offenses based on the same conduct or

arising from the same criminal episode, if such of-

fenses are known to the appropriate prosecuting of-

ficer at the time of the commencement of the first

trial.

‘Model Penal Code § 1.07(2), Proposed Draft, 1962)

Along this same theme, the ABA Project cf Minimum

Standards for Criminal Justice, Joinder and Severance,

$ 1.3, afforded a Defendant the right to request joinder

of all charges “based on the same conduct or arise from

the same criminal episede.” The Advisory Committee

felt that a defendant should not be svdjected to multiple

trial on related offenses.

Other State jurisdictions, either by statute or by case

decision, have come to the above statement of the law.

Statutes in California, New York, Illinois, Minnesota, and

Indiana have provided meaningful double jeopardy pro-

tection. See Calif. Penal Code 654; Ill. Rev. Stat. ch.

388, $3-3 (1963); N.Y.Crim. Proc.L. 40.30 (2), Me-

Kinney’s Consol. Laws, C. 11-A; 40 Minn. Stats. Anno.

609.035; Indiana Code 35-3.1-1-10(c). Cases decisions to

same effect are State v. Brown, 497 P.2d 1191, 1198 (Ore.

S.Ct. 1972) and Commonwealth v. Campana, Pa., 304

A.2d 482 (1973). The net results of these statutes and

case decisions is to adopt the rule of law as set forth

by Justice Brennan, in a minority opinion in Ashe; Jus-

tice Brennan’s statement reads as follows:

This “same transaction” test of “same offense” not

only enforces the ancient prohibition against vexa-

tious multiple prosecutions embodied in the Double

Jepopardy Clause, but responds as well to the in-

creasingly widespread recognition that the consolida-

tion in one lawsuit of all issues arising out of a

single transaction or occurrence best promotes jus-

tice, economy and convenience.

(397 U.S. at 454)

Defendant argues that by requiring compulsory joinder

of all criminal charges in one indictment arising out of

a single transaction is only fair and just. The defend-

ant should not be forced te run the gauntlet of multiple

prosecutions by an awesome government, whose resources

are unlimited. Defendant contends that there is no spe-

cific guide line from the United States Supreme Court

on the constitutional minimum standard. Defendant ar-

gues that the trial court should require the government

to bring, in a single proceeding, all known charges against

the defendant arising from a single criminal episode.

Applying this rule to the case at bar, the fact reveals

that the defendant has been convicted of the charge of

conspiracy to distribute heroin. Defendant contends that

his current charge of a continuing criminal enterprise

simply adds some other elements to the conspiracy charge.

The charges arise out of the same illegal heroin traffic

transaction in Gary, Indiana. Therefore, the second

prosecution out of the same transaction is violative of the

double jeopardy clause.

THE “SAME EVIDENCE” RULE

The defendant maintains that even if the Court ap-

plies the traditional same evidence rule as set forth in

the majority opinion in Ashe v. Swenson, 397 U.S. 436

(1970), the Defendant is still entitled to a dismissal.

Blockburger v. United States, 284 U.S. 299, 304 (1932)

adequately states the law:

Where the same act or transactions constitutes a

violation of two distinct statutory provisions, the test

to be applied to determine whether there are two

offenses or only one, is whether each provision re-

quires proof of an additional fact which the other

does not.

The Defendant contends that if tr. *svernment proves

the continuing criminal enterprise cnarge, it will have

proven the conspiracy charge all over again. In other

words, the same evidence needed to prove the continuing

criminal enterprise would also prove the conspiracy

charge. A brief examination of the two respective stat-

utes reveals this fact. Title 21, Sections 846 and 848.

The Defendant would cite as controlling the cases of

Hattaway v. United States, 399 F.2d 431 (5th Cir. 1968),

Robinson v. Neil, 366 F. Supp. 924 (D.C.E.Tenn., 1973),

and Rouzie v. Comm., 207 S.E.2d 854, Va., 1974. These

cases held that conviction of a lesser included offense will

bar the prosecution on the greater offense. Both of these

cases applied the same evidence tests, and since no ad-

ditional evidence was needed to prove the lesser included

offense, prosecution on the lesser offense barred prosecu-

tion on the greater.

The continuing criminal enterprise charge requires

proof of “a continuing series of violations (of the drug

laws) which are undertaken by such person in concert

with five or more other persons. . .” If an individual acts

in concert with five or more to distribute heroin, there

has been a conspiracy. The Court cannot avoid such a

conclusion—there cannot be a continuing criminal en-

terprise without a conspiracy. Therefore, since the gov-

ernment has prosecuted the Defendant for the lesser

included offense of conspiracy, the government is pro-

hibited from prosecuting for the greater offense of a con-

tinuing criminal enterprise. The government did not

have to proceed to trial with this defendant in the con-

spiracy case, but it chose to do so. By so choosing, the

government elected which of the two cases it was going

to prosecute. The government, as powerful as it is, can-

not continue in a series of prosecutions of the defend-

ant based on the same facts. Justice under our constitu-

tion demands the dismissal of this indictment.

The defendant anticipates that the government will

allege that the Defendant has waived his right to no

double jeopardy by objecting to the consolidation of the

continuing criminal enterprise charge with the conspiracy

charge. Defendant argues to the court, that the Court

found that such a consolidation would result in a preju-

dicial joinder against this defendant. The defendant, as

a matter of constitutional law, is entitled to a fair and

impartial trial. The defendant’s efforts to require a fair

trial for himself cannot be interpreted as a waiver of

Fifth Amendment rights. More specifically, when the

defendant exercises his Sixth Amendment right of de-

manding a fair trial, he cannot be held to have waived

his Fifth Amendment rights of no double jeopardy. The

government could have dismissed the conspiracy charge

against this defendant, if it wanted the continuing crimi-

nal enterprise conviction. In Simmons v. United States,

390 U.S. 372 (1968) the United States Supreme Court

made it clear that when a defendant testifies at a hear-

ing on a search and seizure issue, his testimony cannot

be used again at the trial. Exercising a constitutional

right cannot be held to be a waiver of other rights.

Respectfully submitted,

/s3/ Stephen Bower

STEPHEN BOWER

202 N. 3rd Street

Kentland, Indiana 47951

219-474-5121

and

E. Kent Moore

815 Purdue National Bank Building

317-742-5091

Attorneys for Defendant,

GARLAND JEFFERS

ee ee re

a er

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

H CR 74-57

[Filed Mar. 10, 1975 at 8:15 a.m.]

UNITED STATES OF AMERICA

v8.

GARLAND JEFFERS

GOVERNMENT’S RESPONSE TO DEFENDANT'S

MOTION TO DISMISS INDICTMENT

Comes now the United States of America by John

R. Wilks, United States Attorney for the Northern Dis-

trict of Indiana, and for its response to the Motion to

Dismiss the Indictment by the defendant shows the Court

as follows:

1. The charge in this cause H CR 74-57 is distinct and

separate from the charge in H CR 74-56 which led to

the conviction of the defendant.

2. There are additional required elements which the

Government is forced to prove in a charge involving a

continuing criminal enterprise.

3. Because the crimes are separate and independent

offenses, the defendant is not put in jeopardy twice

for the same offense.

4. The doctrine of collateral estoppel does nct apply.

5. In support of the foregoing the Government sub-

mits the following memoranda of law in support of its

response.

WHEREFORE, the United States of America prays

that the motion of the defendant to dismiss the indict-

ment be in all things denied.

JOHN R. WILKS

United States Attorney

By: /s/ Richard A. Hanning

RICHARD A. HANNING

Assistant United States

Attorney

MEMORANDUM IN SUPPORT OF GOVERNMENT’S

RESPONSE TO MOTION TO DISMISS

Counsel for defendant has filed a motion to dismiss

the indictment in the instant case on the basis that the

defendant has been placed in jeopardy due to his trial

and conviction in H CR 74-56. Such a contention is

without foundation.

As the Court is well aware, the defendant was tried

and convicted for conspiracy to distribute heroin in

violation of Title 21, United States Code, Section 846.

In the instant case, the defendant is charged with en-

gaging in a continuing criminal enterprise in violation

of Title 21, United States Code, Section 848. The Gov-

ernment submits that the two statutes are separate and

distinct violations and statutorily require different ele-

ments of proof. Contrast the elements necessary to be

proven by the Government to sustain the conviction under

Title 21, United States Code, Section 846, as opposed

to Section 848. In a Section 846 prosecution the Gov-

ernment must prove the basic elements of conspiracy,

that is to say, that two or more people have conspired

to commit the offense and that during the pendency

of the conspiracy at least one overt act was committed

by one or more of its members in furtherance of the ob-

jective of the conspiracy. Title 21, United States Code,

Section 848, requires proof of the elements previously

set out in Section 846 but additional elements are re-

quired: (1) acting in concert with five or more people;

(2) being in a supervisory position over these people;

and (3) obtaining substantial income or resources from

the enterprise.

As the Supreme Court held in Blockburger v. United

States, 284 U.S. 299 (1932), when addressing the ques-

tion of double jeopardy:

Each of the offenses created requires proof of a

different element. The applicable rule is that, where

the same act or transaction constitutes a violation

of two distinct statutory provisions, the test to be

applied to determine whether there are two offenses

or only one is whether each provision requires proof

of an additional fact which the other does not.

At page 182.

Clearly, in reviewing the two statutes, the issues there

are different elements of proof required to sustain a con-

viction. The defendant is not entitled to a dismissal of

the indictment. As the Court in Blockburger further

stated:

A single act may be an offense against two statutes;

and if each statute requires proof of an additional

fact which the other does not, an acquittal or con-

viction under either statute does not exempt the

defendant from prosecution and punishment under

the other.

At page 182.

In addition to the rulings set out above, the Supreme

Court has held that each case involving a question of

double jeopardy must be decided on its own merits. In

Hoag v. State of New Jersey, 356 U.S. 464, 78 S.Ct.

829 (1958) has stated:

We do not think that the Foureenth Amendment al-

ways forbids states to prosecute different offenses at

consecutive trials even though they arise out of the

same occurrence. The question in any given case

is whether such a course has led to fundamental

unfairness.

The Court in Hoag went on to state:

In the last analysis, a determination of whether an

impermissible use of multiple trials has taken place

cannot be based on any overall formula. Here as

elsewhere, the pattern of due process is picked out

in the facts and circumstances of each case.

To further strengethen the Government’s contention,

consider the case of Ciucci v. State of Illinois, 356 U.S.

571, 78 S.Ct. 839 (1958). In Ciucci, four separate in-

dictments were returned charging the defendant with

murder of his wife and three children. All murders were

committed at the same point in time. The defendant

was tried in three successive trials with the murder of

his wife, then followed by the trial for each of his chil-

dren. He was convicted and sentenced to twenty years

in trial number one, forty-five years in trial number

two, and to death in trial number three. He appealed

claiming double jeopardy and denial of due process. The

Supreme Court held:

The state was constitutionally entitled to prosecute

these individual offenses singly at separate trials,

and to utilize therein all relevant evidence in the

absence of proof establishing that such a course of

action entailed fundamental unfairness.

The defendant points to Ashe v. Swenson, 397 U.S.

436 (1970) as controlling. In the opinion of the Gov-

ernment, the Ashe case goes to the question of the ap-

plication of the doctrine of collateral estoppel,.such a

doctrine is not applicable here. ‘No issue tried in the

prior conspiracy was determined in favor of the de-

fendant. Thus collateral estoppel is not applicable.”’ Seal-

from v. United States, 382 U.S. 575, 78, 79, 68 S.Ct.

237 (1948).

In summary, when considering that there are separate

and distinct statutes involved, each require different ele-

ments of proof, the defendant cannot say in keeping

with the authority cited, that the Government’s course

of action entails “fundamental unfairness”.

John R. Wilks

United States Attorney

By: /s/ Richard A. Hanning

RICHARD A. HANNING

Assistant United States Attorney

- ne 2 ee == —

[1051] Court’s INSTRUCTIONS IN THE CONTINUING

CRIMINAL ENTERPRISE TRIAL, H Cr 74-57

THE COURT: Members of the Jury:

[1] At this time it becomes the duty of the Court to

' instruct you on the law as it applies to this case.

It will be your duty as jurors to follow the law as

the court states it to you. On the other hand, you must |

keep in mind that it is the exclusive province of the

jury to determine the facts of the case, and for that

purpose to consider and weigh the evidence.

(2) If in these instructions any rule, direction, or idea

be stated more than once or in different ways, no em-

phasis is intended by me and none must be inferred by

you. For that reason you are «not to single out any cer-

tain sentence or any individual point or instruction, and

ignore the others, but you are to consider all of the in-

structions as a whole, and you are to regard each in-

struction in light of all the others.

[3] You, the jury, are the sole and exclusive judges

of all questions of fact and proof. It is your exclusive

right to determine what facts have or have not been

proven. [1052] You are also the sole judges of the

weight of the evidence, and you have the -exclusive right

to determine what inferences and conclusions may rea-

sonably be drawn therefrom.

However, it is ‘xe province of the Court to determine

the law, and you are to be governed by the law as given

to you by the Court. You must not permit sympathy,

prejudice, or other emotions to sway you from your

sworn duty. Upon the facts as you find them to be

from the evidence, and the law as given to you by the

Court, and otherwise, shall you determine your verdict.

[4] Statements and arguments of counsel are not evi-

dence in the case, unless made as an admission or stipu-

lation of fact. When the attorneys on both sides stipulate

or agree as to the existence of a fact, you must, unless

otherwise instructed, accept the stipulation as evidence,

and regard that fact as proved.

The Court may take judicial notice of certain facts

or events. When the Court declares that it will take

judicial notice of some fact or event, you may accept

the Court’s declaration as evidence, and regard as proven

the fact or event which has been judicially noticed, but

you are not required to do so since you are the sole

judges of the facts.

Unless you are otherwise instructed, the evidence in

the case always consists of the sworn testimony of the

witnesses, regardless of who may have called them; and

[1053] all exhibits received in evidence, regardless of

who may have produced them; and all facts which may

have been admitted or stipulated; and all facts and events

which may have been judicially noticed; and all ap-

plicable presumptions stated in these instructions.

Any evidence as to which an objection was sustained

by the Court, and any evidence ordered stricken by the

Court, must be entirely disregarded.

You are to consider only the evidence in the case. But

in your consideration of: the evidence, you are not lim-

ited to the bald statements of witnesses. In other words,

you are not limited solely to what you see and hear as

the witnesses testify. You are permitted to draw, from

facts which you find them have been proven, such rea-

sonable inferences as you feel are justified in the light

of experience.

[5] It is the right and duty of attorneys for both the

defendant and the Government to object to questions

asked by opposing counsel when they feel that such ob-

jections are appropriate and necessary, and you are in

no way to consider in your deliberations the frequency

or nature of objections made by counsel for either side.

[6] During the progress of the trial, questions have

been asked of certain witnesses which the Court did not

allow them to answer. In your deliberations you will

disre- [1054] gard those questions and everything con-

tained in them and confine yourselves to a consideration

only of the evidence before you. An unanswered ques-

tion is of no value for any purpose and must be disre-

garded.

During the trial, answers of certain witnesses were,

upon motion, stricken out by the Court. In your delib-

erations you will disregard such answers and give no

consideration whatever to matters stricken from the rec-

ord in forming your verdict.

{7} A defendant in a criminal case is presumed by law

to be innocent. That presumption remains with him

throughout the trial unless and untilvhe is proven guilty

of the crime charged by credible evidence beyond a rea-

sonable doubt. ,

[8] A reasonable doubt means a doubt that is based on

reason and must be substantial rather than speculative.

It must be sufficient to cause a reasonably prudent per-

son to hesitate to act in the more important affairs of

his life. ,

19} The burden of proving defendant guilty beyond a

reasonable doubt rests upon the Government. This bur-

den never shifts throughout the trial. The law does: not

require a defendant to prove his innocence or to produce

any evidence. He may rely upon evidence brought out

on cross-examination of witnesses for the Government.

If the Government fails [1055] to prove the defendant

guilty beyond a reasonable doubt the jury must acquit

him.

[10] The guilt of the accused is not to be inferred be-

cause the facts proved are consistent with his guilt, but,

on the contrary, before there can be a verdict of guilty

you must believe from all the evidence and beyond a

reasonable doubt that the facts proved are inconsistent

with his innocence. If two conclusions can reasonably

be drawn from the evidence, one of innocence and one

of guilt, you should adopt that of innocence.

[12] You are instructed that under the law the defend-

ant is not required to testify, and if the defendant

chooses not to testify you are not permitted to consider

this in your deliberations. You may not consider the

defendant’s failure to testify as evidence; the defendant

has the constitutional right to remain silent, and never

has the burden of presenting evidence. The burden is

always upon the Government to prove the defendant

guilty beyond a reasonable doubt.

[13] A defendant may be proven guilty by either direct

or circumstantial evidence. Direct evidence is the testi-

mony of one who asserts actual knowledge of a fact,

such as an eyewitness; circumstantial evidence is proof

of a chain of facts and circumstances indicating the

guilt or innocence of a defendant. The law makes no

distinction between the [1056] weight to be given either

direct or circumstantial evidence; it requires only that

the jury, after weighing all the evidence, must be con-

vinced of the guilt of the defendant beyond a reasonable

doubt before he can be convicted.

[14] The defendant is not on trial for any act or con-

duct not alleged in the indictment. Therefore, in delib-

erating on your verdict in this case, you should consider

only matters which have been alleged in the indictment

and will disregard those matters not alleged in the in-

dictment.

[15] The mere presence of a defendant at the scene of

a crime, without the defendant actively participating in

its commission is not sufficient evidence upon which to

convict such a defendant. ;

[16] You, as jurors, are the sole judges of the credi-

bility of the witnesses and the weight their testimony

deserves.

You should carefully scrutinize all of the testimony

given, the circumstances under which each witness has

testified, and every matter in evidence which tends to

show whether a witness is worthy of belief. Consider

each witness’s intelligence, motive and state of mind, and

demeanor and manner while on the stand. Consider the

witness’s ability to observe the matters as to which he

has testified, and whether he impresses you as having an

[1057] accurate recollection of these matters. Consider

also any relation each witness may bear to either side

of the case; the manner in which each witness might be

affected by the verdict; and the extent to which, if at all,

each witness is either supported or contradicted by other

evidence in the case.

Inconsistencies or discrepancies in the testimony of a

witness, or between the testimony of different witnesses,

a a SS a oe

may or may not cause the jury to discredit such testi-

mony. Two or more persons witnessing an incident or

a transaction may see or hear it differently; and inno-

cent misrecollection, like failure of recollection, is not an

uncommon experience. In weighing the effect of a dis-

crepancy, always consider whether it pertains to a matter

of importance or an unimportance or an unimportant °

detail, and whether the discrepancy results from inno-

cent error or intentional falsehood.

On the basis of these considerations, and your experi-

ence and relations with mankind, you should give the

testimony of each witness such weight as you think it

deserves.

[17] The weight of the evidence is not necessarily de-

termined by the number of witnesses testifying on either

side. You should consider all the facts and circum-

stances ‘in evidence to determine which of the witnesses

are worthy of the greater credence. You may find that

the testimony [1058] of a smaller number of witnesses

on one side is more credible than the testimony of a

greater number of witnesses on the other side.

[18] In this case, you have heard the testimony of

expert witnesses based upon their analyses of certain .

records, documents, and testimony which have been in-

troduced in evidence. This class of testimony is proper

and competent evidence concerning matters involving

knowledge, skill or experience in a subject which is not

within the realm of ordinary knowledge of mankind and

which requires special training or study to understand.

The law allows those skilled in special fields to express

opinions and to say whether or not, according to their

knowledge and experience, a fact may or may not exist.

Nevertheless, although such opinions are allowed to be

given, it is entirely within the province of the jury to

say what weight shall be given to them. Jurors are not

bound to the testimony of such experts is to be can-

vanssed and weighed as that of any other witness. Just

so far as their testimony appears to your judgment,

convincing you of its truth, you should adopt it, but the

mere fact that a witness is called an expert, and gives

an opinion or opinions upon a particular point, does not

necessarily obligate the jury to accept his opinions as

to what the facts are.

[1059] [19] The testimony of an informer who pro-

vides evidence against a defendant for pay, or from im-

munity from punishment, or for personal advantage or

vindication, must be examined and weighed by the jury

with greater care than the testimony of an ordinary

witness. The jury must determine whether the informer’s

testimony has been affected by interest, or by prejudice

against the defendant.

The testimony of a narcotics addict who provides evi-

dence against a deféndant must also be examined and

weighed by the jury with great care.

[20] The testimony of a witness may be discredited or

impeached by showing that the witness has been con-

victed of a felony, that is, of a crime punishable by

imprisonment for a term of-years. Prior conviction does

not render a witness incompetent to testify, but is merely

a circumstance which you may consider in determining

the credibility of the witness. It is the province of the

jury to determine the weight to be given to any prior

conviction as impeachment.

[21] ' The testimony of a witness may be discredited or

impeached by showing that he previously made state-

ments which are inconsistent with his present testimony.

The earlier contradictory statements are admissible only

to impeach the credibility of the witness, and not to es-

tablish the truth of these statements. It is the province

of the jury to determine the credibility, if any, to be

given [1060] the tes mony of a witness who has been

impeached.

Ifa witness is sho .n knowingly to have testified falsely

concerning any material matter, you have a right to

distrust such witness’ testimony in other particulsrs; or

give it such credibility as you may think it deserve.

An act or omission is “knowingly” done, if done +1-

untarily and intentionally, and not because of mistaxe

or accident or other innocent reason.

[22] An accomplice is one who unites with another per-

son in the commission of a crime, voluntarily and with

common intent. An accomplice does not become incom-

aes

te me ann et

ee ee

petent as a witness because of participation in the crime

charge. On the contrary, the testimony of an accomplice

alone, if believed by the jury, may be of sufficient weight

to sustain a verdict of guilty, even though not corro-

borated or supported by other evidence. However, the jury

should keep in mind that such testimony is always to be

received with caution and weighed with great care.

You should never convict a defendant upon the

unsupported testimony of an alleged accomplice, unless

you believe that unsupported testimony beyond a rea-

sonable doubt.

[23] The Court instructs the jury that the testimony

offered by officers shall not be given any greater weight

[1061] or credibility by the fact alone of their office,

but that such testimony shall be weighed and considered

as to credibility on the same ground and for the same

reason that the testimony of all other witnesses are

weighed and judged.

[24] The testimony of an admitted perjurer should al-

ways be considered with caution and weighed with great

care.

[25] The crime charged in this case requires proof

of specific intent before the defendant can be convicted.

Specific intent, as the term implies, means more than

the general intent to commit the act. To establish specific

intent, the Government must prove that the defendant

knowingly did.an act which the law forbids, purposely

intending to violate the law. Such intent may be deter-

mined from all the facts and circumstances surrounding

the case.

[26] The defendant is charged in a one count indict-

ment charging a violation of Title 21, United States

Code, Section 848. The indictment reads as follows:

“On or about the lst day of November, 1971, the exact

date is to the Grand Jury unknown, and continuing

to the date of this indictment, in the Northern District

of Indiana, and elsewhere, GARLAND JEFFERS, de-

fendant herein, knowingly and unlawfully did engage in

continuing criminal enterprise in that he did distribute

and possess with intent to distribute heroin, in amounts

44 .

to the Grand [1062] Jury unknown, a Schedule I Nar-

cotic Drug Controlled Substance, in violation of Title 21, |

United States Code, Section 841(a) (1), a felony, and co-

caine, a Schedule II Narcotic Drug Controlled Substance,

in amounts to the Grand Jury unknown, in violation of

Title 21, United States Code, Section 841(a)(1), a

felony and undertook such distribution in concert with

five or more other people, with respect to whom he oc-

cupied a position of organizer, supervisor and manager

and further as a result of such distribution and other

activity obtained substantia! income in violation of Sec-

tion 848, Title 21 of the United States Code.”

To this charge the defendant has entered a plea of

Not Guilty. ,

[27] The [indictment] is not evidence of defendant’s

guilt. It is merely the formal manner by which the

government accuses a person of crime in order to bring

him to trial. The jury must not be prejudiced against

a defendant because an [indictment has been returned]

against him.

[29] Title 21, of the United States Code, gives a defini-

tion of a continuing criminal enterprise as follows:

For purposes of this section a person is engaged in a

continuing criminal enterprise if, he violates any pro-

vision of this subchapter, or subchapter 2 of this chapter,

the punishment for which is a felon, and such violation

is a part of a continuing series of violations of this [1063]

subchapter or subchapter 2 of this chapter, which are

undertaken by such person in concert with five or more

other persons with respect to whom such persons oc-

cupies a position of organizer, a supervisory position,

or any other position of management, and from which

such person obtains substantial income or resources.

{30} The violation which the Government must prove

as the first element of its case against the defendant may

be a violation of Title 21 of the United States Code,

Section 841(a) (1) of the United States Code, which pro-

vides in part as follows:

Except as authorized (by law), it shall be unlawful

for any person knowingly or intentionally ... to dis-

oS eS ert

tribute . . . or possess with intent to... distribute...

a Controlled Substance.

The elements of the crime set forth in the above sec-

tion, so far as here relevant, are that an individual or

individuals:

Distributed or possessed with intent to distribute a

Schedule I or a Schedule IT Controlled substance;

That such distribution or possession with intent to

distribute was done knowingly and intentionally and with

specific intent.

[31] The violation which the Government must prove

as the first element of its case against the Defendant,

[1064] as an alternative to a violation of 21 USC Sec-

tion 841(a)(1), may be a violation of Title 21 of the

United States Code, Section 846, which reads in part as

follows:

Any person who. . . conspires to commit any offense

defined in this subchapter is . . . guilty of an offense

against the law of the United States of America.

The offense against the United States that was al-

legedly the object of the alleged conspiracy charged in

the indictment was conspiracy to violate Section 841(a)

(1), Title 21 of the United States Code, which reads

as set forth elsewhere in these instructions.

[32] — In order to find Garland Jeffers guilty under this

charge, you will have to be convinced beyond a reason-

able doubt of each of the following essential elements:

First: The defendant committed a violation of the Fed-

eral Narcotics laws;

Second: That said violation of the Federal Narcotics

law by the defendant, Garland Jeffers, is a part of a

continuing series of violations by said defendant of the

Federal Narcotics laws which occurred from on or about

November 1, 1971, through on or about the 18th day of

March, 1974;

Third: That defendant, Garland Jeffers, undertook to

commit such a series of offenses in concert with five or

more persons ;

[1065] Fourth: That the defendant, Garland Jeffers,

occupied the position of organizer or supervisor or any

other position of management with respect to such five

or more persons. |

The fifth and last essential element is: Proof beyond

a reasonable doubt that from the continuing series of

violations, if.such you find, the defendant, Garland Jef-

fers, obtained substantial income or resources.

[33] The term “conspiracy” as it applies to this case

means a combination of, or agreement between, two or

more persons by concerted action to accomplish a crimi-

‘ nal or unlawful purpose. Formal agreement between

the parties alleged to be members of a conspiracy is not

essential to the formation of a conspiracy, but it is

sufficient if there is a concert of action of all the parties

working together, with a single design for the accomp-

lishment of a common purpose or purposes. It is a joint

understanding between two or more parties, each of

whom knows what the understanding is and each of

whom assents to it. A conspiracy may be complete

whether the offense which the parties may have agreed

or conspired to commit is committed or not. -

While a conspiracy involves an agreement to violate

the law, it is not necessary that the persons charged met

together and entered into an express or formal agree-

ment, [1066] or that they stated, in words or writing,

what the scheme was or how it was to be effected or

carried out. It is sufficient to show that they tacitly came

to a mutual understanding to accomplish an unlawful

act. Moreover, since a conspiracy is ordinarily char-

acterized by secrecy, such an agreement may be inferred

from the circumstances and conduct of the parties.

To be a member of the conspiracy a defendant need

not know all the other members, nor all the details of

the conspiracy, nor the means by which the objects were

to be accomplished. Each member of the conspiracy may

perform separate and distinct acts. It is necessary, how-

ever, that the Government prove beyond a reasonable

doubt that the defendant in question was aware of the

common purpose, and was a willing participant, with

the intent to advance the purpose of the conspiracy. In

determining whether the defendant was a member of the

conspiracy, if any, you the jury should consider only his

acts and statements. The defendant cannot be bound

by the acts or declarations of other participants until

it is established, beyond a reasonable doubt, that a con-

spiracy existed and that he was one of its members. _

The Government is not required to prove that each

member of a conspiracy committed or participated in a

particular act, since the act of anyone done in further-

[1067] ance of the conspiracy becomes the act of all the

co-conspirators.

The guilt of a conspirator is not to be governed by

the extent or duration of his participation. Some may

take major parts while others may play minor roles.

All the conspirators need not have originally con-

ceived the conspiracy, nor have participated in it from

its inception. Nor need they have taken part in every

step or action in its furtherance. Nor is it necessary that

every conspirator knew each separate act on the part of

every other conspirator or had knowledge of all the op-

erations of the conspiracy. ,

Even if one entered the conspiracy after it was formed

or if he engaged in it to a degree more limited than that

of his co-conspirators, he is equally culpable so long as

he was in fact a member of the conspiracy and joined it

knowingly and intentionally.

It is not necessary that the Government prove that the

conspiracy existed over the entire course of time which |

is alleged in the indictment. The indictment alleges that

the conspiracy began on November 1, 1971, and con-

tinued thereafter up to and including the 18th day of

March, 1974. If you find, however, that within that

period of time all of the essential elements of this crime

have been proved beyond a reasonable doubt, then the

crime of conspiracy [1068] is complete. In that event

the fact that the Government did not show that the con-

spiracy began as early as November 1, 1971, or that it

continued until March 18, 1974 would not, in and of

itself, be of any importance as far as the essential ele-

ments of the crime are concerned.

It is not necessary that a party have knowledge of

the existence of a conspiracy before he can become a

party to it. A person who has no knowledge of a con-

spiracy, but happens to act in a way which furthers an

object or purpose of a conspiracy, does not by such con-

duct become a conspirator. A party cannot knowingly -

participate in a conspiracy unless he is aware of it and

acts in a common understanding with the other parties

-to further its purpose.

The burden is upon the Government to prove the ex-

istence of such a conspiracy beyond a reasonable doubt

and also to prove in the same manner the knowledge of

the defendant who is alleged to have joined therein.

{34} The one overt act the Government is required

to prove beyond a reasonable doubt in regard to the

conspiracy does not need to be an unlawful act. It need

only be an act that is done in the Northern District of

Indiana to further an alleged unlawful objective of the

alleged conspiracy.

The overt act need be done by only one member of .the

alleged conspiracy. It is not necessary that other | 1069}

members of the alleged conspiracy knew about the act

as long as the act is done by one of the members and

in furtherance of an unlawful objective of the conspiracy

and during its existence.

[35] -Heroin is a Schedule I narcotic drug controlled

substance as contemplated by the statute, previously

quoted.

Cocaine is a Schedule II narcotic drug controlled sub-

stance as contemplated by the statute, previously quoted.

{36} An act is done “knowingly” when it is done with

‘actual knowledge of the facts and with the purpose and

intent of violating the law. Unless there is a purpose

— intent to violate the law, an act is not done know-

ingly.

An act is done “willfully” if done intentionally and

with an evil intent.

An act is done “unlawfully” if it is done contrary to

the law.

[36A] The law recognizes two kinds of possession: ac-

tual possession and constructive possession. A person who

knowingly has direct physical control over a thing, at

a given time, is then in actual possession of it.

A person who, although not in actual possession, know-

ingly has both the power and the intention, at a given

time, to exercise dominion or control over a thing, either

directly or through another person or persons, is then in

constructive possession of it.

[1070] The law recognizes also ‘hat possession may be

sole or joint. If one person alone has actual or construc-

tive possession of a thing, possession is sole. If two or

more persons share actual or constructive possession of

a thing, possession is joint. ;

You may find that the element of possession as that

term is used ‘in these instructions is present if you find

beyond a reasonable doubt that the defendant had actual

or constructive possession, either alone or jointly with

others.

An act or failure to act is “knowingly” done, if done

voluntarily and intentionally, and not because of mistake

or accident or other innocent reason.

[37] 1 will now discuss in more detail and define for

you the meaning of certain terms as used in the statute,

Section 848, that I read to you and in these instructions

relating to the five elements of the so-called continuing

criminal enterprise charge.

First, you must determine, beyond a reasonable doubt,

that the defendant, Garland Jeffers, is guilty of distri-

bution of heroin or the possession of heroin with the in-

tent to distribute and the distribution of cocaine or the

possession of cocaine with the intent to distribute cocaine.

If you determine that the defendant did this, [1071}

then you must determine, beyond a reasonable doubt, |

that the violations were part of a continuing series of

violations of the Federal Drug Laws.

I charge you that the term “series” generally means

three or more and that the term “continuing” means

“during” “existing for a definite period” or intended to

cover or apply to successive similar occurrences. Thus,

you must find beyond a reasonable doubt that the de-

fendant, Garland Jeffers, committed three or more suc-

cessive violations of the Federal Drug laws over a def-

inite period of time with a single or substantially simi-

lar purpose and within the period of time charged in

the indictment.

Now, as to the third element or requirement, that is

that the defendant, Garland Jeffers, committed these

violations in conceri with five or more persons.

The fourth element required is that if you find beyond

a reasonable doubt that the defendant, Garland Jeffers,

occupied a position of organizer, a supervisory position

or any other position of management. An organizer can

be defined as a person who puts together a number of

people engaged in separate activities and arranges them

in their activities in one operation or enterprise. A su-

pervisory position can be defined as meaning one who

manages or directs or oversees the activities of others.

[38] With regard to the second element of proof here

[1072] in the indictment, that is, proof of a continuing

series of violations under the 1970 Drug Abuse Act, in

simple terms, the United States contends from the evi-

dence that it has shown a continuing series of trans-

actions by Garland Jeffers substantially in the form of

distribution and possession of heroin with intent to dis-

tribute same. You must be convinced beyond a reason-

able doubt that such activities, if they occurred, were

not sporadic and isolated in nature, but rather were part

of an ongoing and connected pattern of activity engaged

in by Garland Jeffers.

Now, let me discuss with you the fourth essential

element. That is the one which requires proof beyond a

reasonable doubt that Garland Jeffers is an organizer or

manager or person in a supervisory position. Let me say

that in this connection an organizer can be defined as

a person who puts together a number of people engaged

in separate activities and arranges them in their activi-

ties in one essentially orderly operation or enterprise.

A supervisory position, as that phrase is used under

the statute, can be defined as meaning one who manages

or directs or oversees the activities of others.

[39] Now, let me take up with you some of the defini-

tions which may be important under the fifth require-

ment or element that Mr. Garland Jeffers be shown to

have obtained substantial income or resources from a con-

ee ee om

— sadness

tinuing series of violations {1073] of the Drug Abuse

Act of 1970.

First of all, I point out to you that in the context of

this count and the underlying statute, “substantial”

means something that is real or actual.

Furthermore, the word “substantial” connotes some-

thing having considerable or ample size or value.

Finally, I instruct you that the word “income” here

can be simply defined as money or other material re-

sources or property received or gained directly from il-

legal narcotics transactions by the defendant in question.

Incidentially, I instruct you also that it does not neces-

sarily mean net income. That is to say, it could mean

gross receipts or gross income.

From what I have already said, ladies and gentlemen

of the jury, it would follow that the phrase “substantial

income” in this kind of a charge should be construed as

far as possible in an objective manner. That is to say,

in order to support a conviction under this charge, you

should find that Garland Jeffers received what any rea-

sonable persons would consider to be considerable or

ample funds from engaging in a continuing activity of

distributing heroin as an organizer or supervisor or

manager.

Put differently, it would be insufficient to support any

conviction here if all you were to determine was that

although Garland Jeffers was guilty as to the [1074]

charge, he obtained only occasional moderate sums of

money or resources in connection with any distribution

of heroin.

{40} You are further instructed that it is not suffi-

cient that the Government show that the “Family” organi-

zation received a large amount of gross receipts from the

sale of drugs; the Government must prove, beyond a

reasonable doubt, that the defendant, personally, re-

ceived a large amount of money and that it was his and

not the “Family’s.” In other words, before you may con-

sider the monies in the defendant’s possession as his in-

come you must find beyond a reasonable doubt that the

defendant received this income subject to his unfettered

command and which he was free to enjoy at his option.

Before such monies received by Garland Jeffers can be

considered his income, you must find beyond a reasonable

doubt that Garland Jeffers was free to dispose of the

money at his will.

(41} I want to impress upon you that you, the jury,

are the sole judges of the facts from all of the evidence.

I, as presiding Judge, am charged with the duty of

directing the trial along paths of recognized procedure.

In executing my duty, I may have said or done things

during the course of this trial that some of you might

interpret as my views on the weight of the evidence or

the credibility of the witnesses if I were deciding the

case. I request you to disregard such a conclusion [1075]

as I intended only to decide questions of law and handle

the procedure of the trial.

If I saw fit in some instances to ask questions of any

witness, this must not influence you, but such witness

and evidence must be considered by you like all other

witnesses and evidence. Such conduct on my part does not

indicate in any way that I have an opinion one way or

the other as to the issues, facts, or credibility of the wit-

ness. What the weight of evidence is and the credit or

belief is, to be given to each and all witnesses must be

determined by you and you alone.

If I have said or done anything which has suggested

to you that I am inclined to favor the claims of or posi-

tions of either side, you will not suffer yourselves to be

influenced by any such suggestion. I have not expressed

nor have I intended to express, any opinion as to what

witnesses are or are not worthy of credence, and what

inference or inferences should be drawn from the evi-

dence adduced in this case.

(42) I instruct you that the matter of the punishment

to be inflicted, if a verdict of guilty is reached, is not

before you, the jury, but that this is a matter for the

court to determine or fix. The only matter before you is

the question of whether or not the defendant is guilty

or innocent of the crime charged in the indictment.

[1076] [43] The verdict must represent the considered

judgment of each juror. In order to return a verdict,

it is necessary that each juror agree thereto. Your ver-

dict must be unanimous.

It is your duty as jurors to consult with one an-

other and to deliberate with a view to reaching an

agreement, if you can do so without violence to individ-

ual judgment. Each of you must decide the case for

yourself, but do so only after an impartial consideration

of the evidence with your fellow jurors. In the course

of your deliberations, do not hesitate to reexaniine your

own views and change your opinion if convinced it is

erroneous. But do not surrender your honest conviction

as to the weight or effect of evidence solely because of

the opinion of your fellow jurors, or for the mere pur-

pose of returning a verdict.

You are not partisans. You are judges—judges of the

facts. Your sole interest is to ascertain the truth from

the evidence in the case.

[44] Upon retiring to the jury room, you will select one

of your number to act as your foreman, and the foreman

may be either male or female. The foreman will preside

over your deliberations and will be your spokesman here

in Court.

Forms of verdict have been prepared for your con-

venience, two of them. They read as follows: We the

Jury find the Defendant Garland Jeffers not guilty as

[1077] charged in the indictment. The other form reads:

We the Jury find the Defendant Garland Jeffers guilty

as charged in the indictment.

You will take these forms to the jury room and, when

you have reached unanimous agreement as to your ver-

dict, you will have your foreman fill in, date, and sign

the form to state the verdict upon which you unanimously

agree as to the defendant, and then return with your

verdicts to the Court.

Ladies and Gentlemen, for the last eight days you have

been told that you were not permitted to discuss this

case. The point in time has now arrived where it is your

duty to discuss and determine this case. You may now

retire and do so. The alternates will remain in the

court room.

Swear the Bailiffs.

SUPREME COURT OF THE UNITED STATES

No. 75-1805

GARLAND JEFFERS, PETITIONER

UNITED STATES

ORDER ALLOWING CERTIORARI. Filed October 4, 1976

The petition herein for a writ of certiorari to the

United States Court of Appeals for the Seventh Circuit

is granted.

Rete 6 8 at A mS ate te ee

SUPREME COURT OF THE UNITED STATES

No. 75-1805

GARLAND JEFFERS, PETITIONER

Vv.

UNITED STATES

ON CONSIDERATION of the motion of the petitioner

for leave to proceed further herein in forma pauperis,

IT IS ORDERED by this Court that the said motion

be, and the same is hereby, granted.

November 8, 1976

W sv. &. Coveenment peinvine orrice; 1976 224082 19

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.