Petition — Cordova v. United States

IN THE AUG 12 1976

Supreme Court of the United ate cee |

October Term, 1976

No. %6-216%

JOSEPH ANTHONY CORDOVA,

Petitioner,

Vv.

THE UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEREMY E. BUTLER

100 West Washington Street

Phoenix, Arizona 85003

Attorney for Petitioner

IN THE

Supreme Court of the Nuited States

NO. CR 75-039 PHX (WEC)

JOSEPH ANTHONY CORDOVA,

Petitioner,

v.

THE UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TABLE OF CONTENTS

Table of Cases and Authorities .................ccccccceseeeees

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a atlases

Questions Presented _........ iaitaianeadibiiia nadie int lee eniintaiaatins

Statutory Provisions Involved ..................ccseceeeeeeeeeeees

SPIE UIIIIIII ccccaccscisahhaniinsissndiunctaicestisietintecineanalints

Reasons for Granting the Writ ..............:::ccccceeesseeeeeees

1.

The Petition Raises a Practical Issue of What

TE I ccccarcesvensssneseciesencsepnosense

The Decision Below Ignores Developments in

the Law of Double Jeopardy After Bartkus

i TENET uchamtangncsievneresuantoomenienseunmmmnrenivignanaive

The Petition Raises Substantial New Ques-

tions Concerning the Application of the

Dual Sovereignty Doctrine to Successive State

and Federal Prosecutions for the Same Nar-

UIE sicesnscvcsesncusennionnensnansiniesnecenenssesen

a a

SEE. Saiiubitideldilinmnndddiiiccanensvibniinsesdesssiapaiiidisentumecnie

ii

TABLE OF CASES AND AUTHORITIES

Cases

Allen v. State,

$2 Fin. 1, 48 Ge. FOS nnceeesesssinerseeseanee

Bartkus v. Illinois,

FSD U.S. 1BE .ccccccceccecsnceonsnesienenstaseiensenainnnnnnnnnn

Benton v. Maryland,

FPS VG. TOO cnccccceeccescencesesossintenesessensnnneinnnnnnnl

Huey v. State,

SS Tex. Crim. 377, 277 G.I. 366 | scene

McDonald v. State,

7D Wis. G52, 4G OW. BGS ccceecseccssenssvecssseael

Moore v. Illinois,

BS Dhey. BD .ccccccccccccscucccsncnsencsceussanaanaeee

Palko v. Conn,

FSB U.S. BED .ncccoccocecesseesvesesesecsenssneneinnnsnnnnnnnn

United States v. Lanza,

yp nn

Statutes

Arizona Revised Statutes,

Tiete 21, 6 S6-10GB.GRGR) xceccccecesssssemmn

Title 17, Arizona Rules of Criminal Procedure

Reade B.Gla ND) ...cccceccsreccosernsesenestneninians nnn

21 U.S.C. § 84i(a)(1) & (b) ........ coussuesessssananeiniailian

ZEB U.S.C. 6 2SSECA) — cccecsccsenessssernecessnsessntnnannannne

Other Authorities

21 Am. Jur. 2d, Criminal Law, § 178 ..................::008

United States Constitution,

5th Amendment ...................-. scoueuedeoneueaal

14ein ARRCIRESRCTE — cececececsoncoccocscsenseneneee

6,7

IN THE

Supreme Court of the United States

NO. CR 75-039 PHX (WEC)

JOSEPH ANTHONY CORDOVA,

Petitioner,

v.

THE UNITED STATES OF AMERICA,

Respondent,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The petitioner Joseph Anthony Cordova respectfu!ly prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Ninth

Circuit entered in this proceeding on June 22, 1976.

OPINION BELOW

The opinion of the Court of Appeals, not yet reported,

appears in the Appendix hereto. No opinion was rendered

by the District Court for the District of Arizona.

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on June 22, 1976. A timely pctition

for rehearing en banc was denied on July 20, 1976, and

this petition for certiorari was filed within 30 days of that

date. This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Where defendant’s right to a speedy trial at the state

level has been violated and the case dismissed with preju-

dice, has jeopardy attached for purposes of application of

the Double Jeopardy Clause of the United States Constitu-

tion?

2. Does a dismissal with prejudice for violation of a

State’s speedy trial rule bar subsequent prosecution by the

United States of America for the same offense?

STATUTORY PROVISIONS INVOLVED

United States Code, Title 21:

§ 841(a)(1) and (b) Possession with intent to distribute

a schedule 1 narcotic controlled substance.

(a) Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or pos-

sess with intent to manufacture, distribute, or dispense, a

controlled substance; or

(2) to create, distribute, or dispense, or possess with

intent to distribute or dispense, a counterfeit substance.

Arizona Revised Statutes (A.R.S.) Title 11.

§ 36-1002.01 Possession of narcotic drugs for sale; pen-

alty; probation or suspension of sentence prohibited.

(a) Except as otherwise provided in this article every

person who possesses for sale any narcotic drug other than

marijuana shall be punished by imprisonment in the state

prison for not less than five years nor more than fifteen

years, and shall not be eligible for release upon completion

of sentence, or on parole, or on any other basis until he

has served not less than five years in prison.

A.R.S. Title 17 Rule 8.6(a)(b):

(a) Defendant in Custody. If a defendant in custody is

not brought to trial within the time limits prescribed by

Rule 8.2(b), he shall be released on his own recognizance

without delay, and the time limit prescribed by Rule 8.2(c)

shall apply.

(b) Other Violations. If the court determines after con-

sidering the exclusions of Rule 8.4, that a time limit es-

tablished by Rules 8.2(a), 8.2(c), 8.2(d), 8.3(a), 8.3(b)(2), or

8.3(b)(3) has been violated, it may on motion of the defen-

dant, or on its own initiative, dismiss the prosecution with

prejudice.

STATEMENT OF THE CASE

On November 2, 1973, the petitioner Cordova was ar-

rested in Phoenix, Arizona, and charged under A.R.S. § 36-

1002.10 with possession of heroin with intent to distribute.

On July 15, 1974, the charge against Cordova was dis-

missed with prejudice on the grounds of denial of a speedy

trial pursuant to Rule 8.6(b), Arizona Rules of Criminal

Procedure. On October 10, 1974, the Supreme Court of

Arizona let stand the lower court order dismissing the charge

with prejudice.

On January 22, 1975, the Federal Grand Jury for the dis-

trict of Arizona indicted petitioner Cordova for possession

of heroin with intent to distribute, pursuant to 21 U.S.C.

§ 841(a)(1) and (b) Possession with intent to distribute a

schedule I narcotic controlled substance.

Petitioner was tried in the United States District Court,

for the District of Arizona on December 9, 1975. He was

convicted and sentenced to twelve years imprisonment and

a Ten Thousand Dollars fine and a special three year parole

term.

Petitioner appealed the judgment and conviction of the

District Court to the United States Court of Appeals for the

Ninth Circuit. In a per curiam opinion the conviction was

affirmed on June 22, 1976.

REASONS FOR GRANTING THE WRIT

1. THE PETITION RAISES A PRACTICAL ISSUE

OF WHAT CONSTITUTES JEOPARDY.

The Double Jeopardy Clause of the Fifth Amendment

of the Constitution of the United States applies to the

States through the Fourteenth Amendment. Benton v. Mary-

land, 395 U.S. 784. In cases where the first prosecution was

at the State level the Court must first determine if the peti-

tioner was ever placed in jeopardy. In determining if jeopardy

attached in the first prosecution wiil the Court apply the

prosecuting State’s local definition of when jeopardy at-

taches, or will the Court make an independent determination

of the issue?

The petitioner was held for trial in Arizona on November

2, 1973, on charges of possession of heroin with intent to

distribute. On July 15, 1974, the charge was dismissed with

prejudice on the grounds that petitioner was denied a speedy

trial under Arizona law. On October 10, 1974, the Supreme

Court of Arizona affirmed the trial Court’s dismissal with

prejudice in a special action brought by the State of Ari-

zona appealing the trial court’s. ruling. Petitioner was re-

leased and cannot again be prosecuted on that indictment

in the State of Arizona. f

Despite the fact that the dismissal with prejudice con-

stituted jeopardy under the ruling of the Supreme Court

of Arizona, the United States Court of Appeals for the

Ninth Circuit in its opinion of June 22, 1976, stated ‘‘the

proceeding in State Court did not place him in jeopardy.

See United States v. Crosson, 464 F.2d 96, 103 (9th Cir.

1972).”

The question of when a person is in legal jeopardy has

been answered numerous times, but with wide variation

among the States. Many courts have held that jeopardy at-

taches in a jury trial when the jury is selected and sworn.

Allen v. State, 52 Fla. 1, 41 So. 593; Huey v. State, 88

Tex. Crim. 377, 277 S.W. 186; McDonald v. State, 79 Wis.

651, 48 N.W. 863.

The charges against the petitioner were dismissed with

prejudice before a jury was ever chosen. Petitioner was re-

leased for failure to bring him to trial within a specified

time. In Arizona and in other States, failure to bring a

prisoner speedily to trial may result in a discharge that is a

legal equivalent cf an acquittal and is a bar to further pro-

ceedings at the State level. 21 Am. Jur. 2d Criminal Law

§ 178. Yet there are States which do not follow this rule.

This becomes an issue in Constitutional challenges to

successive State and Federal prosecutions where the Court

must determine if jeopardy attached at the first proceed-

ing. Specifically, does the Supreme Court of the United

States recognize a dismissal for failure to bring a prisoner

speedily to trial as being jeopardy in every jurisdiction, or

does it defer to the rule of the particular State wherein the

first prosecution took place?

This question is one of importance given the rule of Ben-

ton v. Maryland, 395 U.S. 784. Constitutional challenges to

State violations of the Double Jeopardy Clause of the Fifth

Amendment will be brought to the Court from jurisdictions

which have conflicting definitions of what constitutes jeo-

pardy. The Court should clarify the definition of jeopardy

which will apply in such cases.

2. THE DECISION BELOW IGNORES DEVELOP-

MENTS IN THE LAW OF DOUBLE JEOPARDY

AFTER BARTKUS V. ILLINOIS.

The opinion of the Ninth Circuit stated bluntly that suc-

cessive State and Federal prosecutions “do not violate the

proscription of double jeopardy included in the Fifth Amend-

ment.”” The Court based its holding on Bartkus v. Illinois,

U.S. 121, at 132-33.

Benton v. Maryland, 395 U.S. 784 overruled Palko v. Conn,

302 U.S. 319, the decision upon which Bartkus was based.

Petitioner’s appeal raises questions as to the efficacy of Bart-

kus which were not reached by the Ninth Circuit’s opinion.

The Bartkus decision was a logical outgrowth of an ap-

proach to Constitutional adjudication formulated in Palko.

The Palko decision stood for the Constitutional principle

that ‘only when a kind of jeopardy subjected a defendant

to hardship so acute and shocking that our policy will not

endure it, did the Fourteenth Amendment apply.” 395

U.S. at 793.

The Court in Bartkus approached the question of whether

successive State and Federal prosecution constituted Double

Jeopardy by considering whether in the light of precedent,

reason and experience such prosecutions were offensive to

the concept of ordered liberty represented by the Due Pro-

cess Clause of the Fourteenth Amendment. The Court un-

dertook an exhaustive historical review of the entire body of

Constitutional adjudication on this issue and concluded that

“the standards of outlawry which offended the conception

of Due Process’outlined in Palko, had not been breached by

successive prosecution of Bartkus by the Federal government .

and the State of Illinois, 395 U.S. at 131.

Benton v. Maryland overruled Palko and created a new ap-

proach to Constitutional adjudication. The Court held that

it would no longer analyze the facts in order to determine if

the Palko test had been violated. The reasoning of Bartkus

on the major Constitutional issue of whether successive State

and Federal prosecutions are permissible under the Fifth

Amendment is no longer satisfactory. There is great need at

the present time for the Court to detail the parameters of

the Jeopardy Provision of the Fifth Amendment as concerns

successive State and Federal prosecution.

The petitioner’s appeal presents the Court with a ripe

vehicle for resolution of that substantial Constitutional is-

sue in the light of Benton v. Maryland’s effect on the Bart-

kus decision.

3. THE PETITION RAISES SUBSTANTIAL NEW

QUESTIONS CONCERNING THE APPLICATION

OF THE DUAL SOVEREIGNTY DOCTRINE TO

SUCCESSIVE STATE AND FEDERAL PROSE-

In United States v. Lanza, 260 U.S. 377, the Court applied

the ‘Dual Sovereignty’ doctrine to successive prosecutions

for possession of liquor in violation of the laws of the State

of Washington and the National Prohibition Act.

CUTIONS FOR THE SAME NARCOTICS OF-

FENSE.

As early as 1852, the case of Moore v. Illinois, 14 How.

13, the Court enunciated the principle that successive prose-

cutions by State and Federal authorities of the same offense

do not constitute Double Jeopardy because the defendant

is liable to punishment in each sovereighnty.

The rule was stated by the Court in Moore at 14 How.

19-20 as follows:

The Court ruled

We have here two sovereignties, deriving power from

ditferent sources, capable of dealing with the same sub-

ject matter within the same Territory. Each may, with-

out interference by the other, enact laws to secure

prohibition, with the limitation that no legislation can

give validity to acts prohibited by the Amendment.

Each government in determining what shall be an of-

fense against its peace and dignity is exercising its own

sovereignty, not that of the other. 260 U.S. at 382.

But admitting that the plaintiff in error may be liable

to an action under the act of Congress for the same acts

of harboring and preventing the owner from retaki1g

his slave, it does not follow that he would be twice pun-

ished for the same offense. An offense in its legal si

nification, means the transgression of a law. Every citi

zen of the United States is also a citizen of a State or

Territory. He may be said to owe allegiance to two

sovereigns and may be liable to punishment for an in-

fraction of the laws of either. The same act may be an

offense or transgression of the laws of both. Thus, an as-

sault upon the Marshall of the United States, and hinder-

ing him in the execution of legal process, is a high of-

fense against the United States, for which the perpetra-

tor is liable to punishment; and the same act may be al-

so a gross breach of the peace of the State, a riot, as-

sault or murder, and subject the same person to a pun-

ishment under the State laws, for a misdemeanor or

felony. That either or both may (if they see fit) punish

such an offender, cannot be doubted. Yet it cannot

be truly averred that the offender has been twice pun-

ished for the same offense; but only that by one act he

has committed two offenses, for each of which he is

justly punishable.

This rule has been affirmed numerous times since Lanza.

See Bartkus v. Illinois, 359 U.S. at 132, fn. 20.

Despite the fact tiat the law is settled as to this question,

this petition brings before the Court additional facts which

require a renewed interpretation of the limits to which the

Dual Sovereignty rule currently extends.

The investigation and prosecution of narcotics offenses

is no longer a separate State and Federal undertaking. Local,

State, and Federal officials are necessarily working together

to limit the traffic of narcotics into and among the various

States. Because of the fluid nature of narcotics commerce,

effective law enforcement in the field requires national and

international cooperation.

The cooperative investigations have resulted in duplicate

prosecutions by State and Federal authorities in cases such

as the petitioner’s. The evidence presented at the petitioner’s

trial by the prosecution was the result of investigative work

by both State and Federal officials.

10

This duality of effort in the investigative and prosecution

of narcotics offenses raises an issue as to the degree to which

the Dual Sovereignty rule applies in the modern world of

narcotics law enforcement. National sharing of information

through the use of computer terniinals, and other modern

technology, has unified State and Federal investigation and

prosecution of narcotics offenses. The Federal Courts are

faced in many instances with second prosecutions of the same

offense, using the same evidence as was persented in a prior

State prosecution. This duplication of prosecviions adds to

the Federal Court’s heavy calendar the burden of hearing a

case that has already been tried fully and adequately at the

State level.

The opinion of the Ninth Circuit did not reach any of

these practical considerations and review by the Supreme

Court would be appropriate at this time when successive

prosecutions of narcotics cases at the State and Federal

level are becoming more common.

CONCLUSION

For the foregoing reasons the petition for Writ of Cer-

tiorari should be granted.

Respectfully submitted,

Jeremy E. Butler

100 West Washington Street

Phoenix, Arizona 85003

Donald E. Wolfram

45 West Jefferson, Suite 1108

Phoenix, Arizona 85003

Attorneys for Petitioner

la

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Unrrep States or AMERICA, 1}

Plaintiff-Appellee,

” Me 76-1183

JOsEPH ANTHONY CorpDova,

Defendant-Appellont. | OPINION

[June 22, 1976]

Appeal from the United States District Court

for the District of Arizona

Before: WRIGHT, KILKENNY and SNEED, Circuit Judges.

PER CURIAM:

Cordova was convicted after jury trial of possession of heroin

with intent to distribute [21 U.S.C. § 841(a)]. We affirm.

Cordova raises four issues which merit discussion: (1) validity

of the search; (2) double jeopardy; (3) speedy trial; and (4)

testimony by a prosecution witness concerning Cordova’s past

criminal conduct, unrelated to the crime charged.

Heroin and other evidence was seized from the home of Ms.

Klase, who later became a government witness. Cordova has no

“automatic” or “actual” standing to object to the seizure of any

item, as he did not at the suppression hearing assert a possessory

interest in any, and the government’s case does not depend on

proof of his possession at the time of the search. See Brown v.

United States, 411 U.S. 223, 228-29 (1973); United States v.

Boston, 510 F.2d 35 (9th Cir. 1974).

Cordova’s double jeopardy argument lacks merit. After his

arrest he was prosecuted first by the state of Arizona. That action

was dismissed before trial for failure to comply with the state’s

speedy trial rule. The proceeding in state court did not place him

2a

2 United States of America vs.

in jeopardy. See United States v. Crosson, 462 F.2d 96, 103

(9th Cir. 1972).

But we need not reach that question since successive state and

federal prosecutions “[do] not violate the proscription of double

jeopardy included in the Fifth Amendment.” Bartkus v. Illinois,

359 U.S. 121, 132-33 (1959). See also Crosson, supra.

We turn to the speedy trisl issue. Cordova argues that a

lapse of 14 months from the dute of arrest by Phoenix police

(November 2, 1973) to the date of his federal indictment (Janu-

ary 22, 1975) constituted a denial of his Sixth Amendment right

to a speedy trial.1

Cordova’s speedy trial right under the Sixth Amendment was

not activated until the date of federal “accusation.” United States

v. Marion, 404 U.S. 307, 313 (1971). That is the date on which

a defendant is arrested and held to answer on a criminal charge,

or the date on which he is formally charged, whichever is earlier.

Marion, 404 U.S. at 320. See also Dillingham v. United States,

423 U.S. 64 (1975).

Cordova was not arrested by federal authorities or held to

answer on the charge now before us before the date of federal

indictment. Since the federal prosecution did not start until

January 22, 1975, Cordova’s Sixth Amendment rights were not

activated until that date. Marion, 404 U.S. at 313.

The fact of Cordova’s arrest in November by state officers is

irrelevant to the issue before us because that arrest was for

alleged violation of Arizona, not federal, law. See Gravitt v.

‘Cordova was tried and convicted on December 9, 1975. He does not

argue that there has been a violation of the Speedy Trial Act [18 U.S.C.

§§ 3161 et seq.]. Nor can he. Sanctions under Section 3162, imposed for

violation of Section 3161(b) & (c), are not applicable until June 30, 1979.

See Section 3163; United States v. Tirasso, _.. F.2d -.., .. n.1 (9th

Cir. Mar. 25, 1976). Section 3164 was not effective until September 29,

1975. Id. Section 3164(b) provides that for any person incarcerated

before the effective date of Section 3164, trial “shall commence no later

than ninety days following the first day of the interim period.” In the

instant case, Cordova’s trial date (December 9, 1975) is clearly within

90 days of September 29. There was no Speedy Trial Act violation.

3a

Joseph Anthony Cordova 3

United States, 523 F.2d 1211, 1215 n6 (5th Cir. 1975); United

States v. Lemons, 470 F.2d 135, 137 (3rd Cir. 1972); United

States v. DeTienne, 468 F.2d 151, 155 (7th Cir. 1972).

Nor can Cordova benefit from the coincidence that the state

prosecution following the November arrest was for the same

illegal activity as that involved in the federal prosecution. As

we have discussed, separate sovereignty allows both prosecutions.

There is no indication that the state arrest and prosecution con-

stituted “a mere ‘temporary device’ used to restrain appellant”

until federal authorities might choose to prosecute. United States

v. Cabral, 475 F.2d 715, 718 (1st Cir. 1973). See also DeTienne,

supra, 468 F.2d at 155.2

Cordova’s allegation of pre-accusation delay must, then, be

based upon the due process clause of the Fituh Amendment, not

the speedy trial clause of the Sixth Amendment. Marion, 404

U.S. at 324. If so, the standards in Barker v. Wingo, 407 U.S.

514 (1972), do not apply here. Cordova can prevail only by

demonstrating that the 14-month delay caused substantial, actual

prejudice and was an intentional device on the part of the

government to gain tactical advantage. Marion, 404 U.S. at 324;

United States v. Andros, 484 F.2d 531, 533 (9th Cir. 1973).

He made no such showing below and we must reject his speedy

trial argument.

2In Reese v. United Staies Board of Parole, 530 F.2d 231 (9th Cir.

1976), a divided panel of this court held that the due process requirements

of Morrissey v. Brewer, 408 U.S. 471 (1972), were not invoked merely

because federal authorities had lodged a detainer against a federal

parolee then held in state prison. Dissenting Judge Duniway focused on

the fact that

“g detainer, when lodged, puts the detainee in the joint custody of

the prison authority and of the person or body issuing the warrant

which is the basis for the detainer. Braden v. 30th Judicial Circuit

Court of Kentucky, 1973, 410 U.S. 484, 489 n9... .”

Id. at 238.

In this case, Cordova was prosecuted by the state with no exercise of

control over defendant by the federal government. Not until some time

after the state prosecution was dismissed did the federal government take

control by means of indictment.

4a

4 United States of America vs.

We next face a question raised by testimony of Klase con-

cerning past criminal activity of Cordova, unrelated to the crime

charged. Relevant portions are set forth in the margin.*

8“Q. Did you ever find out what kind of business he was in?

A. At first, no; I did not. He just said that he worked for his

father. He was in land management and that’s all I believed. That's

what I took, was what he told me.

Q. Did you ever find out what he really did?

A. Later in years.

Q. About how much later?

A. Oh, about three, two or three years later, I found out, and

this is what made me decide to do what I did.

Q. Well, what did you find out that he did?

A. Well, at first he started taking care of a lot of hot items,

stolen items, would sell them

MR. WOLFRAM: If it please the Court, I must object. This is,

first of all, totally irrelevant and, secondly, highly prejudicial.

THE COURT: All right, just testify as to the merits of this case,

nothing extraneous.

THE WITNESS: Okay.

e

Did you ever sell heroin on the street ?

No, I did not.

Did you ever make a delivery?

At one time, yes.

Do you recall when that was and how much it was?

I don’t remember how much, maybe ten to fifteen papers. I

don’t recall. I can’t remember. It wasn’t a great amount. I do re-

member that. He was gone for the weekend. Later, I found out he was

serving probation time in jail is how I found out why he was gone

on the weekend.

MR. WOLFRAM: If it please the Court, at this time, since the

witness has been previously instructed, I would move for a mistrial.

THE COURT: Objection is overruled. Proceed. Just keep your

testimony down to this case.

THE WITNESS: All right, I am sorry.

@ e e

POoPoro

A. Like I said, I found out that he was married. I found out

what his real name was, who he really was.

Q. How did you find all this out, by the way? ,

A. Because in—a few months before that, prior, he was busted.

Q. Well, we don’t—just talk about—you say you found out.

MR. WOLFRAM: If it please the Court, I would renew my

motion for a mistrial at this time.

THE COURT: Overruled

MR. WOLFRAM: If it please the Court, I would request that the

jury be instructed that any of these things may tend to somehow

Sa

Joseph Anthony Cordova 5

Cordova did not testify and Klase’s testimony was ciearly

inadmissible. See Wichclson v. United States, 335 U.S. 469, 475-

76 (1948); Lyda v. United States, 321 F.2d 788, 795-96 (9th

Cir. 1963). However, we believe that exposing the jury to it was

harmless error within the meaning of Fed. R. Crim. P. 52(a).

See Chapman v. California, 386 U.S. 18 (1967). See also Don-

nelly v. DeChristoforo, 416 U.S. 637 (1974).

First, the offending remarks came from the mouth of an

unresponsive witness and were not invited by the prosecution.

Contrast Lyda, svpra, 321 F.2d at 795. Cf. Ailsworth v. United

States, 448 F.2d 439, 441 (9th Cir. 1971). Second, the evidence

of Cordova’s guilt was overwhelming. Contrast Lyda, supra,

321 F.2d at 796. Third, the trial judge gave prompt corrective

instructions. Donnelly, supra, 416 U.S. at 644. While defense

counsel properly and promptly objected to the volunteered and

unresponsive answer in each instance, those objections and

motions for mistrial do not, in the context of the entire trial,

mandate reversal.

Appellant’s other contentions are without merit.

AFFIRMED.

imply to them other matters not material to this case, that they put

those matters out of their minds.

THE COURT: Yes, anything that has to do with any inference

that might be alluded to, of any other type of involvement against

the law, you are to exclude that completely. We are not concerned

wit’. anything else, other than this particular charge here and there

is no evidence of any other crimes having been committed and so,

if you would just—the witness, I am directing this to the witness,

just testify now as to just this particular charge here, the heroin,

and don’t bring anything else in about anything other, because we

are not concerned with that.

THE WITNESS: Okay.”

[C.T. 18-19; 26-27; 31-32.]

PERNAU-WALSH PRINTING CO., SAN FRANCISCO 6-28-76—400