Petition — Buzzard v. United States

RECEIVED |

OCT 2.2 1976

= ~ OFFICE OF THE CitRK

SUPREME COURT, U.S.

IN THE

Supreme Court of the United States

Octoser TERM, 1976

No. Te. -—5 72

DAN B. BUZZARD, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

MarsHa.u G. Martin

816 Bank of New Mexico Building

Post Office Box 1769

Albuquerque, New Mexico 87103

Counsel for Petitioner

With him on the Petition:

Rosert W. Harris

816 Bank of New Mexico Building

Post Office Box 1769

Albuquerque, New Mexico 87103

—

INDEX

SS Send Sara. yn US cera

GROUNDS ON WHICH THE

JURISDICTION OF THIS

COURT IS INVOKED .

QUESTIONS PRESENTED FOR REVIEW

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ....................

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT .......

1. The decision below conflicts with

pronouncement of other Courts of

Appeals as to the requisite foundation

for admission of a tape recording

OE ig Sn, ea es ee ee

2. The decision below conflicts with the

rule stated by the Second Circuit

Court of Appeals as to the jury

I Sr gs oe SN acy a be aes

3. The decision below resolves a federal

question in a manner conflicting with

the decision of this Court in

Brady v. Maryland, 373 U.S. 83 (1963). .......

4. The decision below incorrectly resolves

an important federal question of

subject matter jurisdiction under

the Sherman Act, which question

should be settled by this Court .... atte

CONCLUSION ....... sites aie a Pa abe-a des Woes wale ee

APPENDIX

OPINION OF THE

COURT OF APPEALS .__.................. la

ORDER DENYING

PETITION FOR REHEARING .............. lla

TABLE OF AUTHORITIES

Cases:

Brady v. Maryland,

373 U.S. 83 (1963)

Burke v. Ford,

377 F.2d 901 (10th Cir. 1967), rev’d on

other grounds, 389 U.S. 320 sae

Car Trade, Inc. v. Ford Dealers

Advertising Association of Southern

California, 446 F.2d 289 (9th Cir. 1971),

cert. denied, 405 U.S. 997 (1972) . es 20

Gordon v. State,

310 S.W.2d 328 (Tex. Crim. App. 1956),

aff’ d without opinion, 355 U.S. 369 (1957) . 21

Hospital Building Company v. Trustees of

the Rex Hospital, U.S. , 44

U.S.L.W. 4683 (1976) __.

Hotel Phillips, Inc. v. Journeyman Barbers Union,

195 F’. Supp. 664 (W.D. Mo. 1961),

aff’d 301 F.2d 443 (8th Cir. 1962) |

Klors, Inc. v. Broadway-Hale Stores, Inc.,

SPU a ee eee... c...............::....

Laie eae sess 20

McKeeman v. Commercial Credit

Equipment Corporation,

320 F. Supp. 938 (D. Nev. 1970)

il

Schnapps Shops, Inc., v. Wright & Co.,

377 F. Supp. 570 (D. Md. 1973) .........------.

Spears Free Clinic and Hospital

for Poor Children v. Cleere,

197 F.2d 125 (10th Cir. 1952). ..... eet aeee

Stirone v. United States,

361 U.S. 212 (1960) | Pee

United States v. Bryant,

439 F.2d 642 (D.C. Cir. 1971) ......... ba ee

United States v. Critchley,

353 F.2d 358 (3rd Cir. 1965)

United States v. Hodges,

489 F.2d 229 (10th Cir. 1973). ........- 6 ee.

United States v. Knohl,

379 F.2d 427 (2d Cir. 1967),

cert denied, 389 U.S. 973 (1967)

United States v. McKeever,

169 F. Supp. 426 (S.D.N.Y. 1958) ..............

United States v. MeMillan,

508 F.2d 101 (8th Cir. 1974),

cert. denied, 421 U.S. 916 (1975) ...............

United States v. Starks,

615 F298 113 (3d Cir. 1975) ...............

United States v. Utah Pharmaceutical Association,

201 F. Supp. 29 (D.Utah 1962),

appeal dism’d, 306 F.2d 493 (10th Cir. saneed

aff’d 371 U.S. 24 (1962) .............. :

Page IN THE

Constitutional and Statutory Provisions: °

’ Supreme Court of the United States

Fifth Amendment, United States Constitution _. 3,13

Ocroser Trem, 1976

Section 1,Sherman Antitrust Act. ..... .... S45

Section 46-10-9D, New Mexico N

vO,

Liquor Control Act..................... 4, 8-9,17

Art. 666-8, Texas Liquor Control Act . .... 89,21

DAN B. BUZZARD, Petitioner

Teat: v.

Von Kalinowski, ANTITRUST NITE me , '

LAWS AND TRADE UNITED STATES OF AMERICA, Respondent

REGULATION (1969 ed.) ........... 15, 16, 17, 19, 20

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

The Petitioner, Dan B. Buzzard, respectfully prays that

a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Tenth

Circuit entered on August 23, 1976, affirming his conviction

for violation of Section 1 of the Sherman Antitrust Act.

A.

OPINION BELOW

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

appears in the Appendix hereto. No opinion was rendered

by the United States District Court for the District of New

Mexico.

iv

B.

GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED

(i) Judgment of the Court of Appeals affirming Peti-

tioner’s conviction was entered on August 23, 1976.

(ii) Petitioner’s petition for rehearing en banc was

denied by order of the Court of Appeals entered on Sep-

tember 27, 1976, which appears in the Appendix hereto

(Appendix, infra at p. 11a).

(iii) Jurisdiction to review Petitioner’s claims by writ

of certiorari is conferred upon this Court by the provisions

of 28 U.S.C. $1254, which provides in pertinent part:

Cases in the courts of appeals may be reviewed by the

Supreme Court by the following methods; (1) By writ

of certiorari granted upon the petition of any party to

any civil or criminal case, before or after rendition of

judgment or decree;

C.

QUESTIONS PRESENTED FOR REVIEW

1. Where in a criminal trial there is evidence indicat-

ing intentional erasure of exculpatory conversation from a

tape recording offered as the primary prosecution evi-

dence, does the court commit reversible error: (a) by ad-

mitting the tape in evidence over timely objection directed

to its authenticity, accuracy and completeness; or (b) by

refusing to give Defendant’s proffered instruction that the

jury should serutinize the recording with care in view of

conflicting evidence as to its authenticity, accuracy and

completeness?

2. Are the due process rights of a criminal Defendant

violated if there is evidence of intentional erasure, during

2

police custody, of exculpatory material from a tape record-

ing constituting the primary evidence resulting in convie-

tion?

3. Do federal courts have subject matter jurisdiction

of an indictment alleging violation of Section 1 of the Sher-

raan Act, 15 U.S.C. §1, where the evidence establishes a con-

spiracy of local retailers from a single county, and where

the affected goods were all purchased from in-state whole-

salers and had remained in the wholesalers’ warehouse

inventories for 2 weeks to 3 months before sale to the

retailers?

D

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion, at page 40 of the official 1952 edition of the United

States Constitution, provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offense to be twice put

in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken for

public use, without just compensation.

Section 1 of the Sherman Act, 15 U.S.C. §1, as it existed

at the time of the alleged offense and the indictment, may

be found at pages 2978-2979, Volume Three of the official

1970 edition of the United States Code, and provided:

Every contract, combination in the form of trust or

3

otherwise, or conspiracy, in restraint of trade or com-

merce among the several States, or with foreign nations,

is declared to be illegal: Provided, that nothing con-

tained in sections 1 to 7 of this title shall render illegal,

contracts or agreements prescribing minimum prices

for the resale of a commodity which bears, or the label

or container of which bears, the trademark, brand, or

name of the producer or distributor of such commodity

and which is in free and open competition with com-

modities of the same general class produced or dis-

tributed by others, when contracts or agreements of

that description are lawful as applied to intrastate

transactions, under any statute, law, or public policy

now or hereafter in effect in any State, Territory, or the

District of Columbia in which such resale is to be made

or to which the commodity is to be transported for

such resale, and the making of such contracts or agree-

ments shall not be an unfair method of competition

under section 45 of this title: Provided further, that

the preceding proviso shall not make lawful any contract

or agreement, providing for the establishment or main-

tenance of minimum resale prices on any commodity

herein involved, between manufacturers, or between

producers, or between wholesalers, or between brokers,

or between factors, or between retailers, or between

persons, firms, or corporations in competition with each

other. Every person who shall make any contract or

engage in any combination or conspiracy declared by

sections 1 to 7 of this title to be illegal shall be deemed

guilty of a misdemeanor, and, on conviction thereof,

shall be punished by fine not exceeding fifty thousand

dollars or by imprisonment not exceeding one year, or

by both said punishments, in the discretion of the court.

Section 46-10-9D of the New Mexico Liquor Control Act

may be found at page 297, Volume 7 (1966 Repl.) of the

official edition, and provides:

Offenses by retailers. — It shall be a violation of this

act for any retailer:

4

D. To sell, possess for the purpose of sale, or to have,

possess or keep on his licensed premises, liquors not

contained in the unopened, original, immediate con-

tainer as packed and filled by the manufacturer, rectifier

or bottler thereof; or to buy or receive any alcoholic

liquor for the purpose of, or with the intent of, reselling

the same, from any person other than a duly licensed

New Mexico wholesaler or winer.

Art. 666-8 of the Texas Liquor Control Act may be

found on page 99 of the Penal Auxiliary Laws 1976 Pam-

phiet, Vernons Ann. P.C., and provides:

It shall be unlawful for military personnel stationed

in Texas or any resident of the State of Texas to import

into this state more than one (1) quart of liquor unless

he is the holder of a permit as provided in Section 4(a)

hereof. It shall further be unlawful for any non-

resident of the State of Texas to import into this state

more than one (1) gallon of liquor. In addition to the

penalties set out in Section 41 of this Act, any person

violating any provision of this section shall forfeit the

liquor so illegally imported to the Texas Liquor Control

Board. It is further provided that any person import-

ing any liquor into this state under the provisions of

this section shall pay the state tax thereon as levied in

Section 21, Article I, Texas Liquor Control Act, and

affix thereto the required State Tax Stamps.

E.

STATEMENT OF THE CASE

This case arose from an alleged price fixing agreement

among 13 members of the Clovis, New Mexico Retail Liquor

Dealers Trade Association (hereinafter ‘‘Association’’),

who allegedly had successfully maintained uniform retail

liquor prices in Clovis during the 1967 - 1972 period. There

was no evidence of participation in the alleged conspiracy

5)

by retailers or wholesalers from other New Mexico com-

munities, and no evidence of Petitioner’s involvement prior

to January of 1973. Petitioner was not a liquor retailer and

had no interest in any liquor establishment.

In late 1972 a discount liquor store known as Riley’s

Switch was opened in Clovis by Dr. James Messer and

James Avery, who began selling at prices below those agreed

upon by Association members. On several occasions in late

1972 and early 1973 Association members met with Avery

and Messer and attempted to pressure them into joining the

Association and observing the Association’s pricing agree-

ment. Petitioner took no part in these meetings.

Following an unsuccessful attempt by the Association

to secure Avery’s and Messer’s adherence to the pricing

agreement at a January 5, 1973 meeting in the Clovis Hotel,

at which Petitioner was not present, Petitioner was visited

by three Association members at his law offices on January

9, 1973. Petitioner was advised that the Association would

engage in retaliatory price cutting unless Avery and Messer

complied with Association pricing. Petitioner was requested

to contact Avery and Messer on behalf of the Association to

seek their compliance.

On the evening of January 9, 1973, Petitioner made a

telephone call to Avery. Avery thereafter called Messer and

suggested Messer call Petitioner and tape the call, with

equipment which had been provided by local police and FBI

agents. Messer returned the call and, without Petitioner’s

knowledge, surreptitiously recorded the conversation. This

recording constituted Respondent’s primary evidence

against Petitioner, as noted by the Court of Appeals

(Appendix, infra at p. 2a).

In the recorded conversation, Messer initially requested

6

that Petitioner represent Messer and Avery in another mat-

ter, and then drew Petitioner into a discussion of the liquor

pricing issue. The conversation was described as ambiguous

by government counsel during Petitioner’s second trial.

Petitioner testified that he did not make the call for the

purpose of seeking Messer’s agreement to raise or fix his

prices.

As noted in part by the Court of Appeals (Appendix,

infra at pp. 5a, 6a) there was trial evidence indicating that

a 3 minute portion of the tape recording, including excul-

patory matter, was intentionally deleted while the tape was

in the custody of police officials, including evidence :

1. That the tape played at trial was 26 minutes long, al-

though Messer’s notations on the tape itself indicated that

the conversation lasted 29 minutes ;

2. That the missing portion included exculpatory con-

versation in which Petitioner explicitly expressed his repug-

nance to any pressure on Avery and Messer to fix prices;

3. That two law enforcement officials with access to the

tape had expressed strong personal enmity toward Peti-

tioner ;

4. That a portion of the recording could easily have

been erased by a simple process using a reel-to-reel tape

recorder, notwithstanding the fact that the tabs in the tape

cassette had been punched out ;'

5. That any erasure must have been intentional, because

1 Petitioner's tape recording expert explained the commonly used process at trial.

After placing scotch tape over the tab holes to allow re-recording, a reel-to-reel copy

of the cassette is made. The portion of the conversation to be deleted is spliced

out of the copy, and the altered copy is re-recorded on the cassette, after erasure of

the original cassette recording. The single splice on the copy is ordinarily not

audible on the altered cassette, and there is no splice on the cassette tape.

7

the tabs in the tape cassette had been punched out when the

police took custody of the recording on January 10, 1973;

6. That at least one reel-to-reel copy of the tape was in

fact made by officials at the Clovis Police Department; and

7. That numerous persons had access to the tape during

a several month period. Respondent failed to demonstrate

a continuous chain of custody, or account for all persons

with access to the tape. A Clovis police lieutenant called by

Respondent admitted on cross examination that care for

the custody of the tape had not been up to the usual stand-

ards of the Clovis Police Department.

While there was conflicting evidence as to point 2, the evi-

dence summarized in points 1 and 3-7 was uncontroverted.

The tape recording was admitted by the trial court over

Petitioner’s timely objection on grounds of evidence indi-

cating that exculpatory material had been intentionally

deleted, and evidence of a defective chain of custody. Peti-

tioner’s pretrial motion for independent electronic testing

of the recording had been denied.

As noted by the Court of Appeals (Appendix, infra at

p. 5a) the trial court refused to give Petitioner’s proffered

instruction that the jury should scrutinize the recording

with care because of conflicting evidence regarding its au-

thenticity and completeness, instead instructing that the

tape should be considered ‘‘just as you would any other

testimony or evidence put before you.’’

Regarding the Sherman Act jurisdictional issue of

restraint on interstate commerce, trial evidence indicated:

1. All alcoholic beverages sold by the Clovis retailers

were purchased from New Mexico wholesalers, since direct

8

purchases from out of state manufacturers are illegal under

New Mexico law. See §¢ 46-10-9D New Mex. Stats. Ann.

(1953 Comp.).

2. The alcoholic beverages sold by Clovis retailers

. . 7 » . ye

spent periods of 2 weeks to 3 months in New Mexico whole

salers’ warehouse inventories before shipment to Clovis.

3. Onlv 13 of more than 500 New Mexico retailers were

involved in the alleged conspiracy, and no wholesalers were

involved.

4. Although some sales were made to Texans visiting

the Clovis retailers, these Texans were involved in illegal

importation under Texas law as explained hereinbelow. See

Texas Liquor Control Act, Art. 666-8, Vernon’s Ann. P.C.

F.

REASONS FOR GRANTING THE WRIT

1. The decision below conflicts with pronouncements of

other Courts of Appeals as to the requisite founda-

tion for admission of a tape recording in a criminal

case.

Notwithstanding evidence indicating deletion of excul-

patory material from the tape recording constituting the

primary evidence against Petitioner, and evidence of a de-

fective chain of custody, as summarized above, the Court of

Appeals declined to follow (or even discuss) the rules ac-

cepted by other Circuit Courts of Appeals as to the proper

foundation for admission of a tape recording in evidence.

It is generally accepted in the other Cireuit Courts of

Appeals that the requisite foundation for the admission of a

tape recording, particularly in a criminal case, includes a

clear and convincing showing of authenticity and accuracy.

9

United States v. Knohl, 379 F.2d 427, 440 (2nd Cir. 1967),

cert. denied, 389 U.S. 973 (1967). A proper foundation for

the admission of a tape recording includes a showing of the

following:

(1) That the recording device was capable of taking

the conversation offered in evidence.

(2) That the operator of the device was competent to

operate it.

(3) That the recording is authentic and correct.

(4) That changes, additions or deletions have not been

made in the recording.

(5) That the recording has been preserved in a manner

that is shown to the Court.

(6) That the speakers are identified.

(7) That the conversation elicited was made voluntar-

ily and in good faith without any kind of inducement.

United States v. McKeever, 169 F.Supp. 426, 430 (S.D.N.Y.

1958) ; United States v. Starks, 515 F.2d 112, 121 n. 11 (3rd

Cir. 1975) (following McKeever); McKeeman v. Commer-

cial Credit Equipment Corporation, 320 F.Supp. 938, 945

(D.Nev. 1970) ; United States v. McMillan, 508 F.2d 101, 104

(8th Cir. 1974), cert. denied, 421 U.S. 916 (1975). Reason-

ably strict adherence to these requirements has generally

been required. Annot. 58 ALR 2d 1024, 1032 (1958). These

requirements have been based upon a recognition that tape

recordings are readily susceptible to alteraiion, and that

recordings often have a persuasive and dramatic impact

upon a jury. United States v. Knohl, supra, 379 F.2d at 440.

Furthermore, in United States v. Starks, supra, the

Court held that any presumption of regularity attaching to

the handling of evidence within the control of public officials

is overcome when a colorable attack is made as to the tape’s

10

authenticity and accuracy, whereupon the burden again -

shifts to the government to demonstrate the accuracy and

completeness of the tape by clear and convincing evidence:

The presumption of regularity, if it can be dignified as

a rule, does not serve as a substitute for evidence when

authenticity is, as here, challenged on not insubstantial

grounds. At best, it may relieve the government of the

necessity for offering proof of custody until the integ-

rity of the evidence has been put in issue. United States

v. Starks, supra, 515 F.2d at 122. (Emphasis added)

Petitioner’s case is stronger than that of the Defendant

in United States v. Starks. In Starks, although there was a

question as to which tape was the original and which a copy,

there was no affirmative evidence that a portion of the

original recording may have been deleted, as in Petitioner’s

ease. Id., 515 F.2d at 121.

Here there is strong evidence from which one can inter

that a significant, -xculpatory portion of the tape, approxi-

mately 3 minutes in duration, was intentionally erased while

it was in the careless custody of Clovis law enforcement

ofticials. Several items of evidence, including the tape itself,

support the conclusion that the trial version had been tam-

pered with and is incomplete, as summarized above.

Yet the Court of Appeals failed to apply, or even dis-

cuss, the above-cited authorities cited to it by Petitioner

(Appendix, infra at pp. 4a-5a). Instead the Court relied

upon its decision in United States v. Hodges, 480 F.2d 229

(10th Cir. 1973), dealing with the trial court’s discretion

regarding admission of a tape recording which is partially

inaudible due to technical problems encountered during re-

cording. The Court erred in declining to accept Petitioner’s

contention that the rule stated in //odges is not controlling

where there is evidence indicating the intentional erasure of

11

exculpatory matter, since such evidence puts the authen-

ticity of the recording in issue. Accordingly, Petitioner

submits that the decision of the Court of Appeals is, at least

in principle, in conflict with decisions of other Courts of

Appeals. Because several items of evidence, including nota-

tions on the tape itself, indicate that exculpatory matter was

deleted, Petitioner submits that this is an appropriate case

in which this Court should offer guidance to the Courts of

Appeals regarding the requirements for admission of tape

recordings in criminal trials.

2. The decision below conflicts with the rule stated by

the Second Circuit Court of Appeals as to the jury

instruction issue.

The Court of Appeals for the Second Circuit has stated

that where the trial court accepts a tape recording as au-

thentic and accurate but the evidence is conflicting on these

points, it must caution the jury to scrutinize the recording

with care, United States v. Knohl, 379 F.2d 427, 440 (2nd

Cir. 1967), cert. denied, 389 U.S. 973 (1967).

Yet the Court of Appeals declined to find error in the

trial court’s refusal to give Petitioner’s proffered instruc-

tion based upon United States v. Knohl, supra. (Appendix,

infra at pp. 5a-6a). The Court of Appeals reached its con-

clusion on the basis of a general instruction making no

reference to tape recordings and couched in terms of the

credibility of trial witnesses (Appendix, infra at pp. 5a-6a).

This instruction makes no reference to the possibility that

the record of a conversation has been subsequently altered,

and gives no guidance for the jury’s consideration of such a

possibility.

More importantly, in an instruction directed specifically

to tape recordings the trial court told the jury to ‘‘consider

12

the tape recordings just as you would any other testimony or

evidence put before you.’’ (Appendix, infra p. 5a). Thus

the court in effect told the jury to disregard any evidence

indicating that someone had tampered with the recording,

thereby aggravating the effect of refusal to give Petitioner’s

proffered instruction.

Accordingly Petitioner submits that the Court of Ap-

peals’ resolution of the jury instruction issue conflicts, at

least in principle, with the opinion of the Court of Appeals

for the Second Circuit in United States v. Knohl, supra.

3. The decision below resolves a federal question in a

manner conflicting with the decision of this Court in

Brady v. Maryland, 373 U.S. 83 (1963).

The Court of Appeals declined to follow or discuss Peti-

tioner’s argument that since there was evidence indicating

that exculpatory material was erased intentionally while the

tape was in the possession of law enforcement officials the

due process rights of Petitioner were thereby violated.

Brady v. Maryland, 373 U.S. 883 (1963). Even where the loss

of such exculpatory material results from negligence rather

than intentional deletion, dismissal of the charges may be

required under the holding of Brady. U.S. v. Bryant, 489

F.2d 642, 652-653 (D.C. Cir. 1971). In U.S. v. Bryant the

government had failed to preserve a tape recording of a key

conversation between the defendant and a government

agent. The Court of Appeals remanded to the district court

for a determination as to whether the degree of negligence

or bad faith and the importance of the evidence lost were

such that the holding of Brady required dismissal of the in-

dictment. Id., 439 F.2d at 653.

The opinion of the Court of Appeals fails to discuss

13

these authorities cited to the court by Petitioner. (Ap-

pendix, infra at pp. 4a-6a). Petitioner respectfuily submits

that the Court of Appeals failed to deal with or decide an

important federal question in a manner consistent with the

decision of this Court.

4. The decision below incorrectly resolves an important

federal question of subject matter jurisdiction under

the Sherman Act, which question should be settled

by this Court.

The Court of Appeals affirmed ‘ie trial court’s refusal

to dismiss the indictment and charge for Respondent’s fail-

ure to prove subject matter jurisdiction. (Appendix, infra

pp. 8a-9a.) The Court of Appeals’ decision, on the facts

before it, is not only incorrect but in effect holds that the

Sherman Act is applicable to even a local conspiracy among

a few retailers, where all the goods involved were purchased

from in-state wholesalers and where, contrary to a state-

ment of the Court of Appeals (Appendix, infra p. 8a), the

voods had left the flow of interstate commerce at wholesale

warehouses. The decision represents an expansion of Sher-

man Act jurisdiction, and should be reviewed by this Court.

The facts of Petitioner’s case regarding the interstate

commerce jurisdictional issue, summarized above, are quite

different from the facts in Hospital Building Company v.

Trustees of the Rex Hospital, 44 U.S.1L. Wews683 (1976). In

Rex Hospital 80% of the Petitioner’s suppues were pur-

chased directly from out-of-state sellers, and Petitioner’s

planned operations involved several other direct financial

transactions with out-of-state firms. 44 U.S.L.W. at 4684.

Moreover, the Court in Rea Hospital emphasized that it

relied in part upon the rule that dismissals of antitrust cases

in the early pretrial stage should be granted only sparingly,

14

which rule has no application to Petitioner’s case. 44 U.S.

L.W. at 4685.

The Federal courts do not have jurisdiction of an in-

dictment alleging violation of Sherman Act §1, 15 U.S.C.A.

§1, unless it is proven that the restraint either acted upon

transactions within the flow of interstate commerce [herein-

after termed the ‘‘in-commerce’’ jurisdiction theory] or

acted upon transactions which, although wholly intrastate or

local, nonetheless substantially affect the flow of interstate

commerce {hereinafter termed the ‘‘affecting commerce’’

jurisdiction theory]. Rea Hospital, supra; United States v.

Yellow Cab Co., 332 U.S. 218 (1947); Klors, Inc. v. Broad-

way Hale Stores, Inc., 359 U.S. 207, 211 (1959); 16 VON

KALINOWSKI, ANTITRUST LAWS AND TRADE

REGULATION 65.01[1] at 5-11 (1969) [hereinafter cited

“VON KALINOWSKI’’]. Respondent failed to establish

subject matter jurisdiction under either of the commerce

theories.

The indictment alleged restraint of interstate commerce

under the in-commerce theory, stating that ‘the defendants

are engaged in interstate commerce.’’ (Appendix, infra,

n. 3, p. 8a). The indictment did not specifically allege juris-

diction under the affecting commerce theory, although it did

make reference to sales to Texans, which Petitioner con-

tends cannot establish jurisdiction under the affecting com-

merce theory for reasons set forth hereinbelow.

The indictment alleged a purely local conspiracy, with

purely local aims and effects. It is alleged that ‘‘the de-

fendant corporations and proprietorships sell alcoholic

beverages by the bottle and/or by the drink in Clovis, New

Mexico”’ (Appendix, infra, n. 3, p. 8a). The 15 Clovis liquor

licenses involved in the alleged conspiracy constituted only

15

a very small percentage of New Mexico liquor retailers. One

wholesaler supplying Clovis retailers testified that it main-

tained approximately 500 retail accounts in its Albuquerque

branch alone. (The Albuquerque branch covered only

Clovis, Gallup, Grants, Farmington and Albuquerque).

The products in question had physically ceased their

interstate journey before shipment to the Clovis retailers,

having come to rest for weeks or months upon warehouse

shelves. Wholesalers testified that typical warehouse times-

on-shelf were 45 to 60 days for the average whiskey brand,

90 to 120 days for seotch, 3 to 4 weeks for Importer’s vodka,

a high sales volume item, 52 to 73 days for Schenley domestic

whiskey, one to 3 months for wine and 2 to 4 weeks for beer.

In-Commerce Jurisdiction

To establish jurisdiction under the in-commerce theory

it must be shown that the alleged restraint acts directly upon

interstate transactions of the affected businesses. United

States v. Yellow Cab Co., 332 U.S. 218, 230-234 (1947); 16

VON KALINOWSKI §5.01[1] at 5-12 n. 15, citing cases.

The issue here is whether the aleoholic beverages, purchased

exclusively from in-state wholesalers, had left the flow of

interstate commerce before arriving at the Clovis retail

establishments allegedly involved in the price-fixing con-

spiracy.

As a general rule goods leave the flow of interstate

commerce, for Sherman Act purposes, upon arrival at the

warehouse of an in-state wholesaler. Burke v. Ford, 377

F.2d 901, 903-906 (10th Cir. 19% , rev’d on other grounds,

389 U.S. 320 (1968). Although this Court reversed the deci-

sion of the Court of Appeals in Burke on the basis that the

facts of that case established jurisdiction under the affecting

commerce theory, the in-commerce theory holding of the

16

e?

Court of Appeals was left undisturbed, and is generally

accepted as valid. Thus a leading text writer extensively

cites the Cireuit Court opinion in Burke in support of the

rule that:

Goods ordered by a wholesaler, distributor, or retailer

to be placed in his general inventory leave the stream of

commerce at the moment they reach the wholesaler, dis-

tributor, or retailer. 16 VON KALINOWSKI §5.02[2]

at 5-63 n. 80.

Exceptions to the general rule are recognized where the

wholesaler has ordered the goods in question to fill a special

order of a retailer, where there is a contract or understand-

ing under which the wholesaler has agreed to fill the needs

of a particular retailer, or where the wholesaler has ordered

the goods to fill the anticipated needs of a particular retailer.

Burke v. Ford, 377 F.2d at 903-906; 16 VON KALINOW-

SKI §5.01[2] at 5-63.

In the instant case the evidence does not support appli-

cation of any such exception. There is no indication that

New Mexico wholesalers gave particular attention to the

requirements of only 13 of the state’s many retailers in

placing their orders with distillers and brewers. Rather, the

record indicates that, as in Burke, ‘‘the wholesalers met the

general demand for alcoholic beverages apparently re-

plenishing their inventories when necessary.’’ 377 F.2d at

904. Wholesalers supplying Clovis retailers testified that

their orders to manufacturers were determined by their

total sales, and that local variations in demand for particu-

lar types of beverages tended to cancel out on a statewide

basis. The retailers may not make direct purchases from

out-of-state distillers or manufacturers, since such direct

sales are illegal under New Mexico law. §46-10-9D New Mex.

Stats. Ann. (1953 Comp.).

17

Accordingly Petitioner’ submits that Respondent’s

proof failed to establish subject matter jurisdiction under

the in-commerce theory stated in the indictment.

Error in Admitting Evidence Beyond the

Scope of the Indictment Re Affecting

Commerce Jurisdiction

Petitioner objected to the admission of evidence appar-

ently based on the affecting commerce theory including evi-

dence of sales to Texas residents, as being beyond the scope

of the indictment.

Since the affecting commerce theory is outside the scope

of the indictment the Court committed prejudicial error in

the admission of such evidence over objection. Stirone v.

Inited States, 361 U.S. 212, 217-218 (1960).

In Stirove this Court reversed a conviction under the

Hobbs Act, 18 U.S.C. 61951, for interfering with interstate

commerce by extortion, because the trial judge admitted evi-

dence on a theory of interstate commerce going beyond the

scope of the indictment. The Court held that the admission

of such evidence over objection was reversible error. This

holding is applicable to the instant case. See also United

States v. Critchley, 353 F.2d 358, 362 (3rd Cir. 1965),

reversing a conviction under the Hobbs Act on the same

ground.

Affecting Commerce Jurisdiction Not Shown

Even should this Court conclude that such evidence was

properly admitted, Petitioner submits the government failed

to establish jurisdiction under the affecting commerce

theory.

1s

Here the restraint on interstate commerce which al-

legedly resulted from the alleged conspiracy is at most an

indirect one, being a restraint imposed upon local sales of

Clovis retailers — the intrastate operations of local busi-

nesses. 16 VON KALINOWSKI §5.01[4] at 5-104 n. 138,

citing Spears Free Clinic and Hospital for Poor Children

vr. Cleere, 197 F.2d 125 (10th Cir. 1952) [hereinafter cited

‘*Spears’’], and other cases. Such an indirect restraint on

interstate commerce does not create jurisdiction under the

affecting commerce theory unless the effect on interstate

commerce is substantial. Rex Hospital, supra; Spears,

supra; United States v. Utah Pharmaceutical Association,

201 F. Supp. 29 (D. Utah 1962), appeal! dism’d, 306 F.2d

493 (10th Cir. 1962), aff’d 371 U.S. 24 (1962); 16 VON

KALINOWSKI §5.01[4] at 5-100 n. 136.

While no precise test of substantiality has evolved, some

courts have looked to the proportion of the state’s total flow

of commerce in a line of goods which is affected by the re-

straint, and as a rule have held that an indirect restraint on

the interstate flow of goods to or from a single business does

not have a substantial effect on interstate commerce.

Spears, supra; 16 VON KALINOWSKL §5.01[4] at 5-106

n. 141. In Schnapps Shop, lnc. v. Wright & Co., 377 FP. Supp.

970 (D. Md. 1973), a civil action brought by a liquor retailer

against a wholesaler who was the sole Maryland distributor

for the products in question, the court held jurisdiction

existed but indicated that the relevant consideration was

the effect on the total volume of goods moving into the state.

Similarly, in Burke this Court found jurisdiction under

the affecting commerce theory where the alleged conspiracy

involved Oklahoma liquor wholesalers operating on a state-

wide basis. The court held that ‘‘the statewide wholesalers

market division inevitably affected interstate commerce.’’

19

BS US. at 322. In Car Trade, Inc. v. Ford Dealers Adver-

tising Association of Southern California, 446 F.2d 289 (9th

Cir. 1971), cert. denied, 405 U.S. 997 (1972), the Court of

Appeals in affirming dismissal of a private antitrust action

agaist an association of 143 southern California automobile

dealers specifically distinguished Burke on the basis that

Burke involved a statewide agreement of all liquor whole-

salers, the anti-competitive effect of which is ‘‘too obvious

to require proof.’’ Id., 446 F.2d at 294.

Here only 13 of more than 500 New Mexico retailers

were affected. There was no evidence indicating that a sig-

nificant proportion of liquor moving into the State of New

Mexico was affected by the alleged restraint.? Indeed,

Respondent put on no evidence as to the proportion of the

total New Mexico liquor traffic affected by the Clovis

situation.

As noted previously, the court admitted various items

of evidence pertaining to sales to Texans visiting Clovis

retail liquor establishments. Such sales may not be used

to establish jurisdiction under the affecting commerce

theory, for two reasons. First, cases dealing with indirect

restraints under the affecting commerce theory indicate that

a restraint on local business transactions does not have the

required substantial effect on interstate commerce merely

because interstate travelers present in the community may

he affected. United States v. Yellow Cab Co., 332 U.S. 218

(1947): 16 VON KALINOWSKT §5.01[4] at 5-110 n. 144.

See also Hotel Phillips, Inc. v. Journeyman Barbers Union,

195 F. Supp. 664 (W.D. Mo. 1961), aff’d 301 F.2d 443 (8th

Cir. 1962). Secondly, sales to Texans are wholly intrastate

2 There was limited testimony that retail pirce increases tended to cause decreased

orders to a particular manufacturer, but this was not tied to Clovis retailers or to

the times involved herein.

20

a ee eet ne

transactions, being completed by the closed sale transaction

in Clovis. The fact that the Texans return home with these

products may not be used to establish affecting commerce

jurisdiction in any case, since such activity involves illegal

importation of liquor under Texas law. As Petitioner’s

counsel pointed out to the trial court, it is illegal under the

Texas Liquor Control Act for a Texas resident to import

more than one quart of liquor into Texas without a permit

authorizing such imports. See Texas Liquor Control] Act,

666-8, Vernon’s Ann. P.C. And there was evidence that sales

to Texans exceeded one quart, since one of the retailers testi-

fied that his average sale to Texans was for more than

$30.00. Liquor illegally imported into a state is not a com-

modity moving in interstate commerce. Gordon v. State, 310

S.W. 2d 328 (Tex. Crim. App. 1956), aff’d without opinion,

355 U.S. 369 (1957).

In any case the jury could not reasonably have found

jurisdiction under the affecting commerce theory based upon

sales to Texans, since the Court instructed the jury to dis-

regard such sales.

For the foregoing reasons Petitioner submits that the

Court of Appeals erred in its resolution of important ques-

tions of federal law in concluding that the evidence estab-

lished subject matter jurisdiction under Section 1 of the

Sherman Act.

21

F. CONCLUSION

For all the above reasons Petitioner submits that the

decision of the Court of Appeals is contrary to rules of law

stated by other Circuit Courts of Appeals, and by this Court.

Petitioner’s claims involve important federal questions, and

should be reviewed by this Court through the grant of a

Writ of Certiorari.

Respectfully submitted,

Marsuaut G. Martin

Post Office Box 1769

Albuquerque, New Mexico 87103

Counsel for Petitioner

With him on the Petition:

Rosert W. Harris

Post Office Box 1769

Albuquerque, New Mexico 87103

APPENDIX

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

Filed Aug. 23, 1976

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

v. ) No. 75-1367

) (74-273 CR)

DAN B. BUZZARD )

)

Defendant-Appellant. )

APPEAL FROM THE UNITED STATES

DISTRICT COURT FOR THE

DISTRICT OF NEW MEXICO

Marshall G. Martin (Robert W. Harris of Poole, Tinnin,

Danfelser & Martin with him on the brief) for Appellant.

Michael J. Pugh and Robert B. Nicholson (Thomas EK.

Kauper Assistant Attorney General, with them on the

brief) for Appellee.

Before LEWIS, Chief Judge; SETH and BARRETT, Cir-

cuit Judges.

LEWIS, Chief Judge.

Dan B. Buzzard appeals the judgment and order of the

district court for the District of New Mexico confirming a

jury verdict finding him guilty of violating section 1 of the

Sherman Antitrust Act. Buzzard’s conviction arose out of

his alleged conspiracy with members of the Retail Liquor

la

Dealers Trade Association of Clovis (Association) to fix

the retail prices of liquor sold in Clovis, New Mexico.

James Messer and James Avery began operating a dis-

count package store known as Riley’s Switch after acquiring

a liquor license for Clovis, New Mexico. Beeause Riley’s

Switch was selling beer and liquors at prices below those of

other liquor stores in Clovis, the Association allegedly at-

tempted illegally to force or persuade Messer and Avery to

increase their prices. Messer and Avery were first visited

by Association members and pressured to raise their prices

to the levels agreed upon by the Association. On January 5,

1973, Messer and Avery, surreptitiously wearing voice

transmitters monitored by the police, attended a meeting

of the Association at the Clovis Hotel. At the meeting the

Association members allegedly discussed the price-fixing

arrangement, explained the markups and again pressed

Messer and Avery to join the conspiracy to fix prices. After

the meeting the loeal police, with Messer’s consent, placed a

recording device on his telephone.

On January 9, 1973, three members of the Association

visited Buzzard in his law offices. They advised him that the

Association had just had a meeting and all the members

agreed to engage in retaliatory price cutting against Messer

and Avery if they did not go along with the Association.

The three requested Buzzard to represent the Association in

contacting Messer and Avery to seek their compliance. That

evening Buzzard called Avery to inform him of the discus-

sions with members of the Association. Avery said he would

have to talk to Messer. Avery then called Messer and sug-

gested that Messer return the call to Buzzard and record it.

The resulting tape recording of the Buzzard-Messer con-

versation was the primary evidence against Buzzard in his

trial for violation of the antitrust laws.!

1 Significant portions of the Buzzard-Messer conversation bearing on Buzzard’s

participation in the conspiracy follow:

Buzzard speaking:

Yeah, all of them met today at noon. And then the three men came to me as

I told Mr. Avery; Mr. Wolf, Mr. Pettigrew, and Mr. Goodman and said,

2a

The tape recording of the Buzzard-Messer telephone

call was given to the Clovis Police Department the morning

after the call. Subsequently, members-of the Association

and Buzzard were indicted for violations of section 1 of the

Sherman Antitrust Act. Buzzard’s first jury trial termi-

nated when the trial court granted his motion for a mistrial

because of Government attorney misconduct. Buzzard’s

second jury trial resulted in a verdict of guilty, which was

confirmed by the trial court’s judgment.

Buzzard appeals alleging the trial court erred in ad-

mitting the Buzzard-Messer recording, in instructing the

1 (Cont.)

say we can’t stand this cutting deal. It’s bad for all of us and we can’t do

anything but compete that and this — then they went through all these

computations that they gave to you at the Hotel Clovis.

= a © a

Buzzard speaking:

{T}hey can put up a hell of an argument that their 40 and 45 [markup] is

legitimately the way to operate. . . . And I don’t want a price war and I am

controlling it up to this point I can tell you that. . . .

*- *+ = &

Buzzard speaking:

Let me ask you this. I had this proposal from Kit before I talked with the

three at 1:30 and he said . . . uh, it’s alright with me for them to go ahead

with their 30°% markup, until they get in their new building.

Messer speaking:

And they want us to come up to their prices.

Buzzard speaking:

Yeah, they'd like that. They think that’s the best interest of you and thev

think it’s the best interest of them.

Messer speaking:

Next point, uh, no one tells Dan Buzzard or Richard Snell how much they're

going to charge for a divorce case. Uh —

Buzzard speaking:

Well, they have a minimum fee schedule, Doctor, probably violates —

Messer speaking:

We do?

Buzzard speaking:

We do, Mr. Snell and I and probably every other lawyer in town probably

violates the anti-trust laws.

z> «+ * #

3a

jury regarding the tape recording, and in denying the mo-

tion to dismiss because of double jeopardy. Allegedly the

court also erred in denying the motion for acquittal because

of variance between the bill of particulars and the Govern-

ment’s proof at trial, failure to establish subject matter

jurisdiction, and insufficient evidence.

Buzzard contends that the court erred in permitting the

taped Buzzard-Messer conversation to be admitted as evi-

dence. The admissibility of a taped conversation rests with-

in the sound discretion of the trial judge. United States v.

Hodges, 10 Cir., 480 F', 229, 233-34; United States v. Knohl,

2 Cir., 379 F’, 427, 440, cert. denied, 389 U.S. 973. The dis-

1 (Cont.)

Buzzard speaking:

I'd like to be able to say, well, uh, I'd like for you to say let’s figure on it.

Let me talk to Crawford and uh, even Johnnie Mack and see if I could get a

consensus with these gentlemen. That's all I want.

* + & &

Buzzard speaking:

I'm just going to visit with you, because perhaps, well, here’s the deal. I told

them not to be popping off about, uh, business, because I figured it would

aoe the anti-trust laws, but if anybody was going to do the popping off, I

would.

Messer speaking:

Uh, huh.

Buzzard speaking:

See, cause I don’t want them hauled into Grand Juries, and if I am, why, uh,

that’s my business.

Messer speaking:

Uh, huh.

Buzzard speaking:

And my problem, but I don’t want my clients, so that’s probably why I’m

doing the talking. . . .

ss ¢ + &

Messer speaking:

But in all fairness to them I won’t come — The main thing that Crawford

wants, Crawford has bugged me several times, is for me to come up to a dollar

for we, Avery and Messer, to come up to a $1.50 on the beer and uh, we

won't do it and I think in all fairness, you ought to tell them that.

Buzzard speaking:

Alright, I'll tell them that. While you're at it, do you want it forever or do

you want it while you're in the garage. Why don’t you give me a little lee-way

there? ,

ta

trict court prior to admitting the tape allowed extensive

testimony and briefing regarding its authenticity and com-

pleteness. At trial Buzzard presented testimony proving

the theoretical electronic possibility of erasure, that certain

police officials with keys to where the tape was placed may

have held an animus toward Buzzard and that the tape was

only 26 minutes long despite Messer’s notation on the tape

that it lasted 29 minutes. Buzzard’s contention is that the

tape was intentionally manipulated to effect the erasure of a

key 3-minute portion which included exculpatory statements

by him.

We hold the trial court to be within its discretion in

determining there was sufficient evidence to admit the tape.

Messer testified the recording was complete. Lt. Chandler,

who retrieved the tape from Messer and listened to it the

day after its recording, also testified that the tape, as pre-

sented at trial, was complete. We note that Buzzard was

allowed to present in detai! his arguments to the jury re-

garding the authenticity and completeness of the tape.

Buzzard alleges the trial court erred in failing to give

his proffered instruction that the jury should scrutinize the

tape with care because of the conflicting evidence regarding

its authenticity and completeness. The court merely in-

structed the jury that vor ‘‘should consider the tape re-

cordings just as you would any other testimony or evidence

put before you’’ and ‘‘not give it any value weight because

it is a tape recording.’’ The trial court elsewhere instructed

the jury as follows:

At times, throughout the trial, [ have been called upon

to pass on the question whether or not certain offiered

evidence might properly be admitted. You are not to

be concerned with the reasons for such ruling and are

not to draw any inferences from them. Whether offered

evidence is admissible is purely a question of law. In

admitting evidence to which an objection is made, I do

not determine what weight should be given such evi-

dence; nor do I pass on the credibility of the witness.

da

You are the sole judges of the credibility of all of the

witiesses and the weight their testimony deserves. You

should carefully scrutinize every matter in evidence

which tends to indicate whether a witness is worthy of

belief.

The record also reflects that with the exception of an alleged

three-minute gap, there was no evidence throwing doubt on

the tape’s authenticity or completeness, In the context of

this lengthy trial presentation regarding the possibility of a

three-minute gap, we hold the instructions were not erro-

neous when considered as a whole. Buzzard’s proffered

instruction, while it was directed specifically at the tape,

does not differ from the standard the court instructed the

jury to utilize concerning the credibility or weight to be

assigned all evidence and testimony.

Buzzard argues that this trial should have been barred

under double jeopardy principles because prosecutorial er-

ror caused an earlier trial to result in a mistrial. Buzzard’s

motion for mistrial was granted after Government counsel

asked Avery two questions:

(). Now, just one more question, I hope, Mr. Avery,

Did you subsequently learn that these sales to minors,

that vou had been set up for these sales to minors by

members of the Clovis Retail Liquor Association?

A. Yes, Mr. Goodman informed me that it was a form

of entrapment, in which he had participated, that he

caused it, he said.

Q. Now, is that the same Mr. Goodman that Mr. Buz-

zard had been representing?

A. Yes.

After the trial court granted his motion for a mistrial,

Buzzard moved to dismiss the indictment on double jeopardy

grounds. The trial court in denying that motion discussed

the nature of the prosecutorial error:

6a

i

The prosecution had no evidence to tie Buzzard to this

incident. The question was highly improper. The inci-

dent was aggravated by previous prosecutorial sugges-

tive or leading questions. The prosecutor’s error here

was caused by overzealousness and inexperience in

trial. It was substantially accidental and was not in-

tended to inflame the jury against the accused. This in

my opinion, falls short of the type of overreaching that

might bar retrial.

In United States v. Jorn, the Supreme Court stated the

applicable rule that

where circumstances develop not attributable to prose-

cutorial or judicial overreaching, a motion by the de-

fendant for mistrial is ordinarily assumed to remove

any barrier to reprosecution, even if the defendant’s

motion is necessitated by prosecutorial or judicial error.

400 U.S. 470, 485 (footnote omitted, emphasis added). A

footnote to this rule, referring to United States v. Tateo, 377

U.S. 463, 468 n.3, further clarifies what the Court felt should

constitute a bar to reprosecution :

Conversely, where a defendant’s mistrial motion is

necessitated by judicial or prosecutorial impropriety

designed to avoid an acquittal, reprosecution might well

be barred.

400 U.S. 470, 485 n.12. In this case the trial court expressly

found the prosecutorial error leadiny to mistrial, accidental

and unintentional. Under these circumstances we hold there

was no bar to reprosecution.

Buzzard alleges the court erred in failing to grant his

motion for acquittal because of variance between the Gov-

ernment’s proof at trial and the bill of particulars. Having

carefully read the bill of particulars pertaining to Buzzard,

this court finds minimal variance between the Government’s

proof at trial and the bill. We hold no material prejudice

resulted from such variance. We note that ‘‘variance be-

7a

tween the proof and the bill of perticulars is not grounds for

reversal unless the appellant is prejudiced by the variance.”’

United States v. Glaze, 2 Cir., 313 F, 757, 759 (citing United

States v. Burgos, 2 Cir., 269 F, 763, 767-68, cert. denied, 362

U.S. 942).

Buzzard also urges the court erred in failing to grant

his motion of acquittal because the Government failed to

establish the court’s subject matter jurisdiction by showing

a restraint of interstate commerce. We are satisfied from

the record that the impact of the conspiracy upon interstate

commerce has been adequately proved. This is not a ‘‘ware-

house case’’ where the subject matter completes its inter-

state nature by coming to rest in warehouses within the

state. The flow of liquor here considered is directed and

determined by retailers, wholesalers and manufacturers’

representatives acting in close conjunction each with the

other. Clovis is a border city serving customers from ad-

joining states in not inconsiderable quantities.’

It is also urged that the court erred in allowing evidence

on this issue beyond the scope of the indictment. Buzzard

alleges the indictment only charges the conspiracy with act-

ing upon transactions within the flow of interstate com-

merece,’ and that therefore, the government’s proof relating

« See note 3 infra.

3 bey re t’s charge as to the character and substance of interstate commerce

was t:

‘The defendant corporations and propnetorships seli alcoholic beverages bv

the bottle and/or by the drink in Clovis, New Mexico. Virtually all alcoholic

beverages sold by these companies are imported from outside of the State of

New Mexico by wholesalers. ‘These wholesalers receive shipments of liquor,

beer, and wine from such states as Kentucky, Illinois, Tennessee,

California, Texas, and New York. Distribution involves a rapid turnover of

product and distributor inventories are based on demands of the market. Sales

represe \tatives of distillers and brewers work in conjunction with wholesale

salesmen in servicing the retail trade. The defendants are engaged in inter-

state commer’cc.

Clovis, New Mexico is the only city in Curry and Roosevelt Counties, New

Mexico and adjoming counties in Texas in which alcoholic products may be

sold. A substantial number of customers are attracted from these dry counties

of Texas into Clovis for the sale of alcoholic beverages.

In 1972, alcoholic beverages having a wholesale value of $1,833,000 were

sold to Clovis alcoholic beverage retailers. It is estimated that sale by Clovis

alcoholic beverage retailers exceeded $3 milhon in 1972.

8a

to the conspiracy’s effect on interstate commerce should

have been excluded.

This court, considering the charge as a whole, is not

persuaded that it would limit the Government to proving

the conspiracy acted upon transactions in the flow of inter-

state commerce. The Government could properly introduce

evidence relating to the conspiracy’s effect upon interstate

commerce. In judging the sufficiency of an indictment this

court.

views the entire document to ascertain whether the

offense is charged with sufficient clarity so as to safe-

guard two constitutional guarantees: the Sixth Amend-

ment right to be informed of the nature and cause of

the accusation in order to prepare a defense; and the

Fifth Amendment protection against twice being placed

in jeopardy for the identical offense.

United States v. Wilshire Oil Co., 10 Cir., 327 F, 969, 972,

cert. denied, 400 U.S. 829 (footnotes omitted). Buzzard was

adequately informed of the nature of the charge and is suffi-

ciently protected from the possibility of donble jeopardy.

Buzzard also argues the court erred in denying his mo-

tion for acquittal because of insufficient evidence that he

joined the price fixing conspiracy. This appellate court is

required, in reviewing the sufficiency of evidence to sustain

a verdict of guilty, to consider all the evidence in the light

most favorable to the prosecution. United States v. Free-

man, 10 Cir. 514 F, 1184, 1187; United States v. Swallow, 10

Cir., 511 F, 514, 517, cert. denied, 423 U.S. 845. We hold the

evidence so considered was sufficient to sustain the guilty

verdict and the trial court did not err in confirming that

judgment.

It is also alleged that the trial court erred in allowing

repetitive questions which wore down and badgered Buzzard

into making prejudicial admissions. Such trial court rulings

will be disturbed by this court on appeal only if they are

9a

clearly erroneous and only then if the error deprived the

defendant of a substantial right. Jennings v. United States,

10 Cir. 364 F, 513, 515, cert. denied, 385 U.S. 1030. This rul-

ing is not clearly erroneous.

10a

SEPTEMBER TERM - September 27, 1976

Before The Honorable David T. Lewis, Chief Judge,

The Honorable Delmas C. Hill,

The Honorable Oliver Seth,

The Honorable William J. Holloway, Jr.,

The Honorable Robert H. McWilliams,

The Honorable James E. Barrett and

The Honorable William E. Doyle, Cireuit Judges

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

)

)

)

)

vs. ) No. 75-1367

)

DAN B. BUZZARD, )

)

)

Defendant-Appellant.

This matter comes on for consideration of appellant’s

petition for rehearing and suggestion for rehearing en bance.

Upon consideration whereof, the petition for rehearing

is denied by Chief Judge Lewis and Circuit Judges Seth and

Barrett to whom the case was argued and submitted.

The petition for rehearing having been denied by the

original panel to whom the case was argued and submitted

and no member of the panel nor judge in regular active

service on the Court having requested that the Court be

polled on rehearing en bane, Rule 35, Federal Rules of Ap-

pellate Procedure, the suggestion for rehearing en bane is

denied.

HOWARD K. PHILLIPS, Clerk

By Linda O. Hall

Deputy Clerk

lla