Petition — Hurt v. United States

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Supreme Court, U. &

FILED 3

DEC 7 1976

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

W76-771lg

LEO HURT,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

S. ALLEN EARLY, JR.

RALPH H. RICHARDSON

Attorney for Petitioner

810 Buhl Building

Detroit, Michigan 48226

Phone: (313) 963-6093

Interstate Brief & Record Co., 1615 Abbott St., Detroit. Michigan 48216

962-8745

TABLE OF CONTENTS

Page

SR Se Sica’ oid Skins Sade bated Je ans cd hn cs vane l

CCT Pe CTT TT Te TT TTT Lite. CT 2

Questions Presented for Review ........... 0600000 ee eee 2

Re ID 5 9665. 4.8 6.0 coc vc enene aes ceveraees 2

Reasons for Granting the Writ ................ce ee eees 5

ET EE Feb ceber doves bcseestattedwevbwed ses 37

REE BF ew RTD 6a. os dover ecsiccceeeencosssen 38

Appendix B — Order of Affirmance ..............-....- 53

Appendix C — Opinion of Court of Appeals ............ 54

Appendix D — Order Extending Time to File Petition ... 112

INDEX TO AUTHORITIES CITED

Cases:

Ader v United States, 284 F 13 (CA 7, 1922) .......... 15

Baker v United States, 115 F2d 532, 533, 540 (CA 9,

SOE ‘nve dace nhub ons vickeedahecudatatieedscae 12,16

Bens v United States, 266 F152, 160 (1920) ........... 18

Blanton v United States, 213 F 320, 325(CA 8, 1914) .. 16

Blue v United States, 138 F2d 351, 359 (CA 6,

MEUD 2 ken 0 6us bhse ban chGUane MEK eae OA deeess 12,17

Boyd v United States, 142 US 450 (1892) ............. 16

Brown v United States, 150 US 93 (1893) ............ 17

Page

Burkeen v United States, 355 F2d (6th Cir 1966) ...... 34

Burton v United States, 142 F 57 ‘CA 8, 1906) ... .... 15

Chambers v United States, 237 F 513, 524 (CA 8, 1916) 15

Cochran v United States. 41 F2d 193, 199, 200 (CA 8,

SE 64.6046 cb00ebae 0ckbe bedceeeaee 12,16

Collins v United States, 20 F2d 574 (CA 8,1927) ...... 16

Caminetti v United States, 242 US 470 (1917) ......... 21

Craig v United States, 217 F2d 355 (CA 6, 1954) .. 34,35,36

Davis v United States, 12 F2d 253 (CA 5, 1926) ....... 17

Gavieres v United States, 220 US 338 (1911) .......... 18

Glasser v United States, 315 US 60 (1941) ...... 32,33 ,35,36

Hicks v United States, 150 US 442 (1893) ............ 10

Hume v United States, 118 Fed 689 (CA 5, 1902) ..... 15

Johnson v United States, 62 F2d 32, 34 .............. 12

Joplin Mercantile Co. v United States, 236 US

BOO CUEEED cui eeus-cecustpivens 6s cu bacs wetaseseds 5s

Lanzetta v NJ, 306 US 451-459 (1939) ................ 20

Logan v United States, 144 US 263 (1892) ............ 17

McBoyle v United States, 283 US 25-27 (1931) ........ 20

Mackett v United States, 90 F2d 462-464

SA V5 GEPGe v0 6 oth ceveasncdveeecctbueectisas 12,17

Moorehead v United States, 270 F210 (1921) .......... 18

Morris v United States, 7 F2d 785 (CA 8 1925) ........ 16

Page

Pinkerton v United States, 328 US 640, 647, 649

SE Weeceutvednn sé 6,8,10,11,14,17,18,21,22,23,25,27,28

Profitt v United States, 264 F 299 (CA 9, 1920) ....... 15

People v Thompson, 13 CA3d 47, 54, 55 (1970) ....... 35

Spear v United States, 228 F 485, 488 (CA 8, 1915) .... 17

United States v Bender, 60 F2d 56, 57 (CA 2d 1932) ... 15

United States v Berriel, 371 F2d 587 (6th Cir 1967) .... 34

United States v Carangella, 198 F2d 3, cert den 73 Supp

Ee PE SAEED nou dueccusutucessucdevecseces 10

United States v Gooding, 12 Wheat 460 (US 1827) .... 17

United States v Interstate Engineering Corporation, 288

F Supp 402 (DC NH, 1967) ........... cece e ee eees Y

United States v Kane, 23 F 743 (Colo 1885) .......... 6

United States v Kissel, 281 US 601, 608 .............. 12

United States v Kramer, 236 F2d 656 (CA 7, 1956) .... 10

United States v Lancaster, 44 F 896 (WD Ga, 1892) ... 16

United States v Turnipseed, 272 F2d 106 (CA 7, 1959) . 10

United States v Weber, 114 F 950 (WD Va, 1902) ..... 15

United States v Williams, 71 Supp Ct 595 (1951) ...... 9

White v United States, 336 F2d 474 (1966) ............ 9

Wiborg v United States, 163 US 632, 657-658 ......... 12

Westfall v United States, 20 F2d 604 (CA 6, 1927) ..... 18

Other Authorities:

rs ee error peer ts ee

BO We ED Ss utcecdWiceccdcuncsandeee

ALI Model Penal Code §2.04(3) ...........

ALI Model Penal Code §2.04 svteaekeeneas

ALI Model Penal Code §5.03

(Tent. Draft No. 10, 1960) ...........

Page

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+ codns 2,21

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wery 24,25

bei skeuee 24

PL PO “tee Hrs

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

LEO HURT,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

—

Leo Hurt, by and through his attorneys Ralph H.

Richardson and S. Allen Early, Jr., petitions for a Writ of

Certiorari to review the decision of the United States

Court of Appeals for the Sixth Circuit, affirming his

Conviction on one count of conspiracy to violate 21 USC

846 (manufacture, distribution and possession of heroin

and cocaine) and on sixteen substantive counts of the

above crime, (21 USC 841 (a) (1) ) all but one of which

were based on an aiding and abetting theory (18 USC 2)

derived from the Pinkerton sentencing rule.

OPINION BELOW

(Unreported, set forth in full as Appendix C, hereto.)

JURISDICTION

The judgment of the Sixth Circuit Court of Appeals

was filed on October 8, 1976. The jurisdiction of this

Court is invoked under 28 USC 1254 (1).

QUESTIONS PRESENTED

Should the application of the Pinkerton v United States

sentencing rule holding that mere membership in a

conspiracy is equivalent to aiding and abetting all

substantive crimes committed by all co-conspirators, be

restricted to defendants who have provided some direct

facilitation to the member actually committing the

substantive offense charged?

A. In the alternative, should the legally invalid and

disfavored Pinkerton holding be overruled in accordance

with the view of the ALI Model Penal Code and the

National Commission for the Reform of Federal Criminal

Laws?

Is ineffective assistance of counsel demonstrated where

two attorneys represenied over twenty defendants in a

conspiracy trial, Petitioner was indigent and only

peripherally involved, yet no motion for severance was

made to avoid transference of guilt?

STATEMENT OF THE CASE

On January 4; 1972, Petitioner Leo Hurt, Jr. and

sixteen others were charged in a_ sixteen-count

indictment. The first count charged the seventeen

defendants and numerous unindicted co-conspirators with

a Single conspiracy to manufacture, distribute and

possess heroin and cocaine, in violation of 21 USC §846.

The remaining fifteen counts charge all the defendants as

principals or aiders and abettors, in violation of 18 USC

§2 and 21 USC § 841 (a) (1), with various substantive acts

of possession, manufacture and distribution of narcotics.

Petitioner Hurt, while being charged in each of the

separate substantive counts, was, according to the

proofs, actually involved in only one substantive count

personally: possession of 0.268 grams (a “‘sample’’) as

charged in Count 7 of the indictment.

On June 6, 1973, two trials commenced without a jury,

15 defendants in this case and 12 defendants in a

companion case, all having waived their right to a jury.

Five of the original defendants either moved or stipulated

with the government to have their cases severed. No

motion was made on behalf of Petitioner Hurt to sever

his case or any of the counts.

The proofs adduced by the government at the trial with

respect to Petitioner Hurt consisted basically of the

following:

On November 15, 1971, pursuant to a telephone call

placed by Hurt to the sellers of narcotics, co-defendant

George Blair and one Ruth Ann Burt delivered narcotics

to Hurt’s residence and there solid to him a quantity of

heroin and cocaine (not charged in the indictment).

A second delivery was made to Hurt on November 21,

1971, at his new residence by Blair and Burt from whom

Hurt purchased a quantity of narcotics. This delivery was

also pursuant to a telephone call from the sellers to Hurt

(not charged in the indict,nent).

In addition, between November 15, 1971 and December

15, 1971, several phone calls between Hurt and the

sellers’ headquarters, at 19315 Hubbell Street, Detroit,

Michigan, were intercepted by government agents and

recorded. These conversations, in the main, dealt with

narcotics, the quality, price, amounts and defects thereof.

The final telephone call occurred on December 15,

1971. when Blair called Hurt from the Hubbell address

and an argument ensued over Hurt’s apparent lack of

sufficient funds and Blair's insistence that Hurt could

only buy for cash. Sometime later the same evening,

Hurt went to the Hubbell Street address and then left,

whereupon he was arrested outside several miles away

and a search of his car turned up 0.268 grams of heroin.

This was characterized as *‘a sample quantity,”’ and there

is no evidence as to where he obtained the sample or

how it got in his car. Count 7 of the indictment refers to

this substantive offense, and, as stated above, is the only

count in the indictment where Hurt was personally

involved.

In its findings and conclusions, filed under Rule 23(c)

of the Federal Rules of Criminal Procedure, the Trial

Court referred to many facts of association and activities

of various defendants and co-conspirators prior to the

period of the conspiracy charged in the indictment and

described such activity “‘as pre-conspiracy foundational

information." Hurt was never part of any such activity

nor do the facts indicate Hurt’s knowledge or association

with any of the other defendants or co-conspirators

except co-defendants George Blair and Eddie Jackson

and witness Ruth Ann Burt.

No fact connects Hurt with any of the other fifteen

substantive counts or activity relative thereto or suggests

any knowledge on his part of the subject matter of said

fifteen substantive counts.

Petitioner Hurt did not testify in his own behalf or

present other evidence.

On July 22, 1974, the Trial Court found Hurt and ten

others guilty of Counts One, Three, Four, Six, Seven,

Eight, Nine, Ten, Eleven, Twelve, Thirteen, Fourteen,

Fifteen and Sixteen.

On October 18, 1974, Petitioner Hurt was sentenced to

Fourteen concurrent terms of Seven years each and

Fourteen Thousand Dollars as a committed fine, to be

followed by a special parole term of three years.

Timely notice of appeal was filed with the Sixth Circuit

on October 18, 1974 and extensions of time in which to

file briefs were granted.

On October 8, 1976 the Sixth Circuit entered its

judgment affirming Petitioner's Conviction. (App. B.,

infra).

On November 10, 1976 this Court granted an Order

extending time to file this petition (App. D, infra).

REASONS FOR GRANTING THE WRIT

The Pinkerton rule, exposing all co-conspirators to

liability, as aiders and abettors, for all substantive

offenses committed by any member of the conspiracy,

should be limited in its scope to cases where the

conspirator to be charged with this vicarious liability has

some knowledge of the substantive offense and has

personally facilitated that offense.

A. In the alternative, to accord with the ‘‘better

view’ expressed by the ALI Model Penal Code and the

National Commission on Reform of Federal Criminal

Laws, the Pinkerton case and doctrine should be

overruled.

As part of the accoutrements of an over-expanded

body of conspiracy law, a doctrine which has caused

great consternation to and rejection by almost all

enlightened commentators,' the so-called Pinkerton Rule?

has been utilized against Petitioner to further penalize

him as a conspiracy defendant.

The rule is especially obnoxious in that it is based on

several erroneous assumptions regarding accomplice

liability and conspiracy that were made by the majority in

the principal case and consequently were proliferated as

accepted doctrine.

Pinkerton has been read to hold that mere membership

in a conspiracy is equivalent to aiding and abetting all

crimes committed by any of its members in furtherance

of its goals. Thus, each conspirator may be charged as a

principal though he had nothing to do with those

particular crimes and had no actual knowledge of their

perpetration.

An examination of the case law which the Court cites

to create this rule demonstrates it to be an instance of

seizing upon inaccurate dicta to create a new and

unintended criminal liability. As discussed below, each of

the valid of these cases displays direct evidence of aiding

and abetting as defined by statute. The same may be said

of the principal case.

' A.L.1. Model Penal Code §2.04(3) and Comment at 23 (Tent.

Diaft #1. 1953): | National Commission on Reform of Federal

Criminal Laws. Working Papers 155-157 (1970); National Commission

on the Reform of Federal Criminal Laws. Final Report — Proposed

New Criminal Code §401 (1971).

Pinkerton v US. 328 US 640 (1946).

The Court should not allow the continued propagation

of such a different doctrine in the face of so little actual

support. The following arguments are advanced in the

hope that this Court will restrict the application of the

rule to the bounds which its foundation dictates or

overrule it entirely.

I. The Problem

It should be stated at the outset that Petitioner, by

raising this issue, in no way admits the validity of the

single conspiracy count as applied to him. Recognizing

that he has nonetheless been convicted, on that charge.

Petitioner raises this further issue.

The indictment in the present case charged one count

of conspiracy to violate 21 USC §841 (a) (1) and 16

counts charging all the alleged co-conspirators with aiding

and abetting the substantive offense of distribution of

controlled substances in violation of the above statute.

It is clear the Petitioner had no part in any of the

substantive offenses save that enumerated in Count VII.

Yet, he was convicted as a principal through 18 USC §2°.

The claim was that Petitioner ‘‘aided and abetted,

counselled, commanded, induced and procured the

distribution’’ of the controlled substances charged.

There was no evidence at the trial of anything

resembling the requirement of 18 USC §2 to enable the

prosecution to charge the Petitioner with those

substantive offenses (consisting of several sales of

narcotics by the Jackson organization to different

persons).

—_—_ — er ,

* 18 USC §2(a) “Whoever commits an offense against the U.S. or

aids. abets., counsels. commands, induces or procures tts commission,

is punishable as a principal.”

Those charges were predicated on the above-stated

interpretation of the Pinkerton Rule.

It will be shown below that (1) there was no actual

evidence of aiding the substantive offenses with which

Petitioner was charged; (2) there is no basis to allow

application of the rule so as to impose completely

vicarious liability on those in Petitioner’s position, and (3)

the Pinkerton Rule, as so applied is poor law, contrary to

legislative intent and discredited by the weight of legal

authority.

These facts will point ineluctably to the conclusion that

at the very least, the doctrine should be as limited as the

cases cited to uphold it, and require some greater degree

of contact with the actual perpetrator by the individual

defendant than mere membership in the conspiracy. To

bring it into line with statutory law and the ‘“‘better view”

of accomplice liability, the doctrine should be ignored in

those cases where direct evidence of aiding and abetting

beyond merely joining the conspiracy is lacking.

Il. The Proofs — Aiding and Abetting

A. The Statutes

The statute under which Petitioner was convicted of

the substantive offenses which he personally did not

commit was, as previously stated, 18 USC §2. Its text is

set forth in footnote 3.

The statute governing the substantive offense is 21

USC §841 (a)(1), which reads:

‘(a) except as authorized by this Chapter, it

shall be unlawful for any person knowingly or

inientionally —

Ais —, 7

(1) to manufacture, distribute, or dis-

pense, or possess with intent to

manufacture, distribute or dispense, a

controlled substance;”’

Thus, the evidence must show the elements of aiding

and abetting the intentional distribution of the controlled

substance charged.

B. The Elements of Aiding and Abetting

1. The Act

The requisite acts for aiding and abetting are delineated

in the statute. However, this list (no doubt intended to be

exhaustive as it describes these specific acts and none

others) does not specify what will constitute the named

acts in all fact situations. What is clear from the case law

arising from the statute is that there must be some sort of

active participation in some phase of the particular

substantive offense charged.

‘Aiding and Abetting within this section

providing that whoever aids o1 abets the

commission of an offense against the United

States is a principal means to assist the

perpetrator of the crime.’ White v. United States,

336 F. 2nd 474 (1966); also see United States v.

Williams, 71 S. Ct. 595 (1951) (Emphasis

supplied.)

‘Aiding and Abetting is knowingly to

participate in, that is purposely to give substantial

assistance to another to help commit a crime,”

United States v. Interstate Engineering

Corporation, 288 F.Supp. 402 (DCNH 1967).

It is equally clear that nowhere in the government's

offering was there a scintilla of evidence of substantial

assistance in the distributions set forth as the substantive

offenses. They were single sales to other purchasers, and

in no way did Petitioner aid or encourage them in the

sense of the statute and cases.

2. The Mental State

The requisite mental state again reflects the necessity

for a more positive inducement to commit the substantive

offense than bare conspiratorial relation. “‘One is guilty

as an aider and abettor when he consciously shares in

any criminal act’’, U.S. v. Kramer, 236 F. 2d 656 (CA 7,

1956); also see U.S. v. Carangella, 198 F. 2d 3, cert den,

73 S. Ct. 179 (CA 7, 1952). **In order to aid and abet the

commission of a crime, it is necessary that the supposed

aider and abettor act with knowledge that an offense is to

be committed.”’ United States v. Turnipseed, 272 F. 2d

106 (CA 7, 1959). However, “‘an undisclosed intention to

render aid (or encouragement) will not suffice for it

cannot encourage the principal in his commission of the

crime.”’ Hicks v. U.S., 150 U.S. 442 (1893).

Thus. if Petitioner were aware of these specific

purchases (and there is no evidence of that prior to

December 15, 1971), it would not be enough to susiain

conviction on aiding and abetting.

It cannot reasonably be claimed that Petitioner has

evinced the intent to aid which is called for by the

Statute.

The aiding and abetting counts massed against the

Petitioner were not based on the Petitioner's acts and

intent fulfilling the elements of the crime. To reiterate,

the ground upon which they have been charned is a

misapplication of case law precedent to and incorporated

in Pinkerton as the next section makes clear.

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III. The Pinkerton Rule

In the principal case, Walter and Daniel Pinkerton were

convicted for violations of the Internal Revenue Code.

The indictment contained ten substantive counts and one

conspiracy count. The jury found Walter guilty on nine of

the substantive counts and on the conspiracy count. They

found Daniel guilty on six of the substantive counts and

on the conspiracy count. The substantive offenses were

committed in furtherance of the conspiracy. The

conspiracy itself contained only the two brothers who, of

course, planned and consulted directly with each other.

There was no evidence to show that Daniel participated

directly in the commission of the substantive offenses

upon which his conviction was sustained: *‘A/though

there was evidence to show that these substantive

offenses were, in fact, comitied by Walter in furtherance

of the unlawful agreement ... between the brothers.”’

Pinkerton v. U.S., supra, at 645. Apparently, Daniel had

assisted in their planning.*

The question of Daniel's guilt for those offenses was

submitted to the jury on the theory that each defendant

could be found guilty of the substantive offenses if it

were found at the time those offenses were committed

the petitioners were parties to an unlawful conspiracy and

the substantive offenses charged were in fact committed

in furtherance of it. Pinkerton, supra, at 645.

The Court then advanced this argument in affirming the

conviction:

‘*We have here a continuous conspiracy. There

is no evidence of the affirmative action on the part

of Daniel, which is necessary to establish his

withdrawal from it ... and so long as the

* A.L.1. Model Penal Code n.! at 22.

partnership in crime continues, the partners act

for each other when carrying it forward. It is

settled that ‘‘an overt act of one partner may be

the act of all without any new agreements

specifically directed to that act,’ U.S. v. Kissel,

281 US 601, 608.

‘Motive or intent may be proved by the acts or |

declarations of some of the conspirators in

furtherance of the common objective, Wiborg v.

U.S., 163 U.S. 632, 657-658. A scheme to use the

mails to defraud, which is joined in by more than

one person, is a conspiracy, Cochran v. U.S., 41

Fed. 2d 193, 199-200. Yet all members are

responsible though only one did the mailing.

Cochran v. U.S., supra; Mackett v. U.S. 90 Fed.

2d 462-464; Baker v. U.S., 115 Fed. 2d 533, 540;

Blue v. U.S., 138 F. 2d 351, 359. The governing

principle is the same when the substantive offense

is committed by one of the conspirators in

furtherance of the unlawful project’, Johnson v.

U.S., 62 F 2d 32, 34.

‘The criminal intent to do the act is established

by the formation of the conspiracy. Each

conspirator instigated the commission of the

crime. The unlawful agreement contemplated

precisely what was done. It was formed for the

purpose. The act done was in execution of the

enterprise. The rule which holds responsible one

who ge procures or commands another to

commit a crime is founded on the same principle.

That principle is recognized in the law of

conspiracy when the overt act of one partner in

crime is attributable to all. An overt act is an

essential ingredient of the crime of conspiracy

under §37 of the Criminal Code, 18 U.S.C. §88. If

that can be supplied by the same act of one

conspirator, we fail to see why the same or other

acts in furtherance of the conspiracy are likewise

not attributable to the others for the purpose of

holding them responsible for the substantive

offense.”

There are several misconstructions and misapplications

in the Court's reasoning.

The Court makes reference to a “‘partnership”’ in crime

extending vicarious liability to each ‘‘partner’’ for the

others acts. This is an analogy to the civil liability

common to partners.> But to apply this doctrine “to

develop totally vicarious criminal liability for the acts of

co-conspirators, is unconscionable. Criminal law, unlike

civil law, has its foundation in personal and individual

guilt, the essence of which is causation,® and any

doctrine of vicarious criminal liability is repugnant to

common law concepts.’ Forced analogies between the

remedial principles of civil law and the penal provisions

of criminal law have received specific Congressional

disapproval.*®

Note, “‘Vicarious Liability for Criminal Offenses of

Co-Conspirators”’ 56 Yale L. J. 371-74 (1947).

* Sayre. “Criminal Responsibility for the Acts of Another” 43

Harv. L. Rev. 685. 719 (1930).

id. at 702, et seq.

* Sen. Rep. No. 163. 72d Cong.. Ist Sess. (1932)

Referring to the Court’s analogy, one commentator has

put the problem in this manner:

‘*Quite another line of cases cited as authorities

for the general rule espoused in the instant case

(Pinkerton) are those in, which conspiracy alone is

charged; there being no question of substantive

offenses at issue. In these cases, what is said

about responsibility for the substantive crimes of

fellow conspirators is purely obiter dicta. If the

general rule announced in the instant decision

seems to. have had its inception in the statements

made in such decisions, the principle having been

culled from a general or ambiguous phraseology or

given as corollary to statements that the act of

one can be attributed to any other conspirator to

constitute the overt act required by the conspiracy

statute.’’ (Note, 16 Fordham L. Rev., 280).

In making the bald assertion regarding the completely

vicarious liability, the Court was unquestionably acting

on less than persuasive authority. Equally inapposite is

the Court's analogy regarding the attribution of one

member's overt act to all co-conspirators.

Until Pinkerton, Federal courts had applied the “‘overt

act’’ doctrine “‘only (1) to establish as the act of all

members of the alleged conspiracy the overt act required

by the Federal Conspiracy Statute, (2) to show the extent

and duration of the conspiracy in relation to all the

conspirators, or (3) as a rule of evidence to connect all

the defendants with the crime charged.” Never was it

used to establish the sort of liability Pinkerton

contemplates and thus cannot be used as a solid basis for

doing so.

Indeed, the only way the overt act analogy can be

‘accorded any weight is through combination with the

most erroneously applied analogy of the group, the aiding

and abetting analogue which was used to equate

conspiracy with that crime.

An impressive collection of decisions and text writers

in general are relied upon by the majority of the Court in

the principal case to substantiate this rule. Examination

of them, however, reveals an interesting pattern of less

positive authority.

The vast majority are cases which, upon examination,

prove to contain evidence of definite participation in the

substantive offenses by all parties convicted of both the

conspiracy and the substantive offenses, although this

fact is not often alluded to in the opinions. The

conspirators convicted in these decisions are burdened

with the trappings of accomplices. Without consciously

acknowledging it — because it is implicit in the decision

— the courts convict of the substantive crimes those who

are manifestly accomplices.'® The furthest any of the

'* Chambers v. United States, 237 Fed. 513, 524 (C.A. 8th, 1916)

wherein there is evidence that both conspirators had knowledge of the

substantive offenses. It is interesting to note that the opinion in this

case cites Hume v. United States, 118 Fed. 689 (C.A. Sth, 1902) and

Burton v. United States, 142 Fed. 57 (C.A. 8th, 1906) in both of which

there was no conspiracy indictment but where the defendants.

described as conspirators. were convicted as accomplices. United

States v. Bender. 60 F(2d) 56. 57 (C.A. 2d, 1932) in which there is

evidence of knowledge and active agreement by the defendants and

where the court said ©. . . the jury could find from the evidence that

both appellants caused the letters to be mailed.’ Ader v. United

States. 284 Fed. 13 (C.A. 7th, 1922); United States v. Weber, 114 Fed.

950 (W.D. Va. 1902) wherein there was evidence of knowledge. Profitt

v. United States. 264 Fed. 299 (C.A. 9th, 1920) wherein there was

evidence of knowledge and acquiescense in the ,ubstantive offense.

cases go is to find one to be a conspirator who has

merely knowledge. or constructive knowledge, of the

crimes of his co-conspirator, and despite many

statements to the contrary there are no cases in which a

bare conspirator, lacking even knowledge of the crimes of

his fellow schemers, is found guilty of their offenses. In

this category are found most of the cases cited by the

majority in the principal case.'' Furthermore, those few

cases in which the defendants, convicted of a substantive

crime of fellow conspirators, could possibly be described

'' Cochran v. United States. 41 F.2d) 193. 199, 200 (C.A. 8th.

1930) (evidence of aiding and abetting was so substantial that the

conspiracy count was dismissed and conviction obtained against all

but one as principals. When the conspiracy count was dismissed the

defendant who had not participated in the substantive offenses was

granted a new trial); Blanton v. United States, 213 Fed. 320, 325(C.A.

Sth. 1914) (wherein there was no indictment for conspiracy and

defendants were convicted as accomplices aithough described as

conspirators in the opinion); Baker v. United States. 115 F. (2d) 532

(C.A. Yth, 1932) (there was no conspiracy indictment but a conviction

as principals on evidence of “aiding and abetting’. although

defendants were described as conspirators); Collins v. United States.

20 F. (2d) 574 (C.A. 8th. 1927) (defendant convicted as principal on

evidence of aiding and abetting); Boyd v. United States. 142 U.S. 450

(1892) (the defendants are described as conspirators but were present

at the scene of the crime); United States v. Lancaster. 44 Fed. 896

(W.D. Ga. 1892) (two of the defendants were found guilty of

conspiracy but not of the substantive crimes and the court said the

substantive offense charged was that of an “‘accessory’’); Morris v.

United States. 7 F. (2d) 785 (C.A. 8th. 1925) (the defendants were

found guilty of conspiracy but acquitted of the substantive offenses);

United States v. Kane. 23 Fed. 743 (Colo. 1885) wherein all were

present at the scene of the substantive crime.

as bare conspirators, are found to follow the erroneous

reasoning of previous decisions where the defendants

were in fact accomplices, but loosely described as

conspirators. '*

To charge one man with another's crimes where there

is no active encouragement or even knowledge of those

crimes is antithetical to our notions of due process. As

indicated, there was no precedent for this move by the

Court in Pinkerton. Mistaken interpretation and invalid

analogies do not buttress such a doctrine. The most that

can be salvaged from the Court's argument is that aiding

and abetting may overlap conspiracy and be provable

along with it in separate substantive counts. At the

outside, it may be argued that there is a degree of

involvement less than aiding and abetting that may

suffice, but there is no authority to make conspiracy the

equivalent of aiding and abetting. To uphold such a rule

causes a host of unnecessary problems, inequities and

discrepancies and runs counter to the will of the

Legislature in this regard.

'® Mackett v. United States, 90 F. (2d) 462 (C.A. 7th, 1937).

wherein the conspiracy and substantive counts were proved on

distinctly separate evidence. This case cites Spear v. United States,

228 Fed. 485, 488 (C.A. 8th, 1915S) wherein Hook, J.. said: © . . . the

contriving of a scheme to defraud substantially as set forth must be

shown beyond a reasonable doubt. and so of the use of the mails’’;

Blue v. United States, 138 F. (2d) 351 (C.A. 6th, 1943), giving as its

authority Davis v. United States, 12 F. (2d) 253 (C.A. Sth, 1926) in

which there was no conspiracy indictment, the defendants being

convicted as accomplices. but their scheme being described as a

conspiracy; Brown v. United States. 150 U.S. 93 (1893); Logan v.

United States. 144 U.S. 263 (1892); United States v. Gooding, 12

Wheat, 460 (U.S. 1827) wherein the defendants were convicted on

evidence of aiding and abetting although described as conspirators.

IV. Vicarious Liability — An Unintended Doctrine

As Justice Rutledge noted in his dissent in Pinkerton,

Congress has expressed its will in defining three separate

types of crimes: conspiracy, consisting of agreement and

intent, aiding and abetting, (the gist of which is

“consciously advising or assisting another to commit

particular offenses and thus becoming a party to them,”’

Pinkerton v. U.S., supra, at p. 649.) and substantive

crime.

That these are separate and distinct grounds of criminal

liability can best be understood by examining decisions

like Moorehead v. U.S., 270 F 210 (1921) and Joplin

Mercantile Co. v. U.S., 236 US 531 (1915), in which

defendants, previously acquitted of substantive crimes,

were later convicted of conspiracy to commit these same

crimes, and were held not to have been subjected to

double jeopardy. In Westfall v. U.S., 20 F2d 604 (CA 6,

1927), the defendant was first convicted of a substantive

crime and later indicted for conspiracy to commit that

crime; again, it was denied that there was double

jeopardy, the indictments being described as separate

offenses arising from the same transaction. Gavieres v.

U.S., 220 US 338 (1911).

The plea of double jeopardy was refused in still another

case, that of Bens v. U.S., 266 F 152, 160 (1920), where

the defendant was indicted for aiding the substantive

crime after an acquittal of the conspiracy charge, Justice

Rogers saying, “*. . . neither an acquittal nor a conviction

of a conspiracy to commit a crime is a bar to a

prosecution for the commission of that crime or for aiding

and abetting another to commit it.’ But this would not be

so if the evidence required to support a conviction upon

one of them would have been sufficient to warrant a con-

viction upon the other, for this is the test of double

jeopardy. Separate and distinct evidence over and above

that necessary to convict for conspiracy must be neces-

sary to convict for the subsiantive crimes involved in any

conspiracy. |

The anomaly of hoiding on the one hand that the

conspiracy and the substantive offense it was to

accomplish are separate and distinct offenses so far as

double jeopardy is concerned, yet on the other hand that

the precise evidence sufficient to convict in the case of a

bare conspiracy is automatically evidence sufficient to

convict on the substantive count, seemingly results, in

the latter case, in a situation where one may be convicted

on a charge not proved against him or on evidence

showing that he committed another. The result is a

vicarious criminal responsibility as broad as the civil

liability of a partner for the acts of his co-partner in the

course of aiding and abetting. But it must be remembered

that the substantive offense is no part of the crime of

conspiracy, and that a conspiracy itself does not violate

the statute whose violation is the object of the

conspiracy. Furthermore, in applying a_ principle,

extracted from the definition of an accomplice, to a

conspirator, the basic mark of distinction between the

two separately defined types of responsibility for crime is

thus removed. Concededly, in practical application, it is

difficult to determine precisely when a man ceases to be

a conspirator and becomes an accomplice. It is this

difficulty of distinction which is the underlying cause of

the inaccuracies which appear in the decisions. The

difficulty in applying the distinction should be no excuse

for ignoring it. Without making this differentiation, there

can be no objection to assertion of the defense of double

jeopardy. To rule otherwise would be to allow the

government an untenable advantage.

Finally, for the judiciary to ignore these distinctions

and blend conspiracy with aiding and abetting, is to

violate the constitutional separation of powers doctrine

and all canons of judicial restraint. Yet, this is precisely

what the Court in Pinkerton did if the rule it announced

is to be applied in cases similar to the present one.

Vv. Fair Warning

As it is clear that neither the aiding and abetting nor

the conspiracy statutes give any hint of the inherent

overlap the Trial Court or the government would have

this Court believe exists, a most basic tenet of due

process, fair notice to the defendant is missing from the

proceedings. As this Court ruled in Lanzetta v. N.J., 306

US 451-459 (1939):

*‘No one may be required at peril of life, liberty

or property to speculate as to the meaning of a

penal statute. All are entitled to be informed as to

what the State commands or forbids.”’

In McBoyle v. U.S., 283 US 25-27 (1931), this Court

stated:

‘Although it is not likely that a criminal will

carefully consider the text of the law before he

murders or steals, it is reasonable that a fair

warning should be given to the world in language

that the common world will understand of what

the law intends to do if a certain line is passed. To

make the warning fair, so far as possible the line

should be clear.”

Further, it cannot be claimed that the case law on the

subject gives any greater degree of warning. As th®™S

preceding cases dealing with double jeopardy and the

examination of the foundation cases of Pinkerton make

apparent, the equation of conspiracy and aiding and

abetting is not consistent. It can as well be assumed that

it will not occur as that it will, in any given prosecution.

To allow amorphous guidelines in statutory application

is to rob the defendant of his right to mount a successful

vagueness challenge. Uncertain parameters subject him to

arbitrary enforcement of the statutes and the Pinkerton

rule, in violation of equal protection of the law.

It is no answer to this argument that the defendant may

have willfully engaged in conspiratorial conduct and so is

not disadvantaged by being subjected to aiding and

abetting charges because they are somewhat similar.

These are two distinct and separate crimes and if a fair

warning of one is given, it does not follow that all other

charges are also fairly brought to defendant's notice.

To so construe the aiding and abetting statute to

include conspiracy is to violate a fundamental rule of

statutory construction:

**Where the language (of a statute) is plain and

admits of no more than one meaning, the duty of

interpretation does not arise and rules which are

to aid doubtful meanings need no discussion,”

Caminetti v. U.S., 242 US 470 (1917).

The statute sets forth a list of acts which

unquestionably require a degree of active participation

and encouragement. The case law arising from it

reinforces this conclusion. Historically, the meaning of

aiding and abetting has not been else. Stretching the plain

meaning of 18 USC §2 to include mere conspiracy

without more is to do violence to the lines of precedents

stemming from the interpretation rule and those derived

from the aiding and abetting laws as well as_ the

legislative intent in separating 18 USC §2 and 21 USC

$846.

VI. Unnecessary Complication of Criminal Jurisprudence

Beyond adding to the prosecutor's already weighty

arsenal of conspiracy-related weapons and traps, there is

no actual use or need for the Pinkerton rule. Indeed, it

provides counterproductive problems of its own.

Appellant shares the conclusions reached after an

exhaustive examination of the Pinkerton rule conducted

by the National Commission for the Reform of the

Federal Criminal Laws:

“If an organized crime offense, or something

similar, and the felony murder doctrine are

available, there seems little, if anything, to gain

from the Pinkerton doctrine. . . . At the same time

the Pinkerton doctrine could be the source of

otherwise avoidable problems:

(a) Is a co-conspirator liable for crimes

committed before he joined the conspiracy,

as he is for overt acts (a principle which

serves another purpose)?

(b) Do different rules of evidence apply

to his liability for conspiracy and _ his

liability for this specific offense?

and retried for the specific offense?

(d) Should the tesi of withdrawl from

the conspiracy be the same as for

terminating liability for the specific

offense?

‘Policy argument favoring Pinkerton liability

has been stated as being that the criminal acts are

sufficiently dependent upon the encouragement

and material support of the group as a whole and

warrant treating each member as a causal agent.

While there is. plausibility to this view, the

argumeni seems to go no further than to support

the provision which makes mere membership in a

conspiracy a crime even though there is no

complicity relationship to the crimes which may

be committed.”

Jurisprudentiai development is not aided by tangential

and misapplied spin-offs of othe: doctrine which serve

only to obfuscate, not clarify, existing law.

VII. Inequities

The theoretical groundwork for appreciating the

unreasonable expansion of conspiracy law through the

Pinkerton rule has been developed. However, it is

instructive to examine an actual application of theory to

fact in order to grasp the full import of such a doctrine.

In the typical vice ring for example, there are large

numbers of prostitutes and runners, a smaller number of

procurers and a few overlords. In the course of operating

such a conspiracy, a great many and varied criminal acts

are possible (bribery, robbery, violent crimes, et al.)

Should the girl on the street be responsible for the

substantive crimes of everyone in that conspiracy merely

because she is a member of it?

This question takes on greater significance if she is to

be held for reasonably forseeable crimes as the case

seems to dictate. She might, in fact, be convicted on the

basis of negligence for an act that clearly requires intent

(bribery, etc.) because she is inexperienced in the ways

of her criminal bosses. While it may be reasonable to

hold those controlling the operation as aiders and

abettors of specific offenses in which they do not

participate because of their far more clear ‘‘instigator”’

role, Pinkerton v. U.S., supra, at p. 647, Pinkerton would

sweep all under the double liability. To permit such scope

to a rule founded on cases requiring aiding and abetting

would cause the law to “‘lose all sense of proportion.”*'*

The same arguments can be advanced for the other

victimless crime conspiracies (narcotics and gambling),

and indeed the present case is a concrete example.

The rationale proposed for cumulating sentences under

these conditions is that the confederation poses a greater

threat than the substantive offense which is its object. In

rejecting this reasoning, the drafters of the ALI Model

Penal Code declared:

“When a conspiracy is declared criminal

because its object is a crime, we think it entirely

meaningless to say that the preliminary

combination is more dangerous than the forbidden

consummation; the measure of its danger is the

risk of such culmination. '*

In the present case the object of the conspiracy and the

substantive offense as charged was the same. To

cumulate the offenses would be to unnecessarily

disadvantage the defendant without reason, and so,

should not have been done.

ALI Model Penal Code. n. | §2.04.

‘' ALI Model Penal Code $5.03 Comment (Tent. Draft No. 10,

1Y60).

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«Ne weer yee were 8

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Vill. The Proposed Solutions

The Pinkerton rule, as the government would have it

interpreted, has now been specifically rejected by the two

groups given the task of improving criminal jurisprudence

in the United States.

The ALI Model Penal Code, in its first tentative draft

(1953), gave this rendition of an acceptable formulation:

‘Section 2.04. Liability based on behavior; Liability

for behavior of another; Complicity

(3) A person is an accomplice of another

person in commission of a crime if:

(a) with the purpose of promoting or

facilitating the commission of the crime, he

(1) commanded, requested, encouraged

or provoked such other person to commit

it; or

(2) aided, agreed to aid or attempted to

aid such other person in planning or

committing it; or

(3) having a legal duty to prevent the

crime, failed to make proper effort so to

do; or

(b) acting with knowledge that such other

person was committing or had the purpose

of committing the crime, he knowingly,

substantially facilitated its commission; or

[Alternate: (b), acting with knowledge that

such other person was committing or had

the purpose of committing the crime, he

knowingly provided means or opportunity

for the commission of the crime,

substantially facilitating its commission; or]

by law to establish his complicity.”’

As can be readily seen, a greater degree of connection

than mere conspiracy is required (substantial facilitation

or statutory aiding and abetting).

“The reason for this treatment is that there

appears to be no other or better way to confine

within reasonable limits the scope of liability to

which conspiracy may theoretically give rise.’*'®

“The right way it is submitted, is to measure

liability by the criteria proposed. Conspiracy may

prove command, encouragement, assistance or

agreement to assist, etc.; it is evidentially

important and maybe sufficient for that purpose.

But whether it suffices ought to be decided by the

jury; they should not be told that it establishes

complicity as a matter of law.*’(Id.)

The lesser connection still requires ‘substantial

facilitation’” connoting something closely akin to aiding

and abetting. It does not suggest (as the drafters make

clear) that merely joining a conspiracy and possessing the

intent to further the confederation’s purposes is

sufficient.

“While this alternative should be considered, it

is not, in our opinion, to be preferred.**'®

The National Commission on the Reform of the

Federal Criminal Laws rejects this alternative completely.

Its formulation is presented below:

“Chapter 4. Complicity.

“$401. Accomplices.

ALI Model Penal Code. n.1 ai 21.

« id. at 32.

ea ee

(1) Liability Defined. A person may be

convicted of an offense based upon the conduct of

another person when:

(a) acting with the kind of culpability

required for the offense, he causes the

other to engage in such conduct; or

(b) with intent that an offense be

committed, he commands, induces,

procures, or aids the other to commit it or,

having a legal duty to prevent its

commission, he fails to make proper effort

to do so; or

association with the offense meets the

requirements of either of the other

paragraphs of this subsection.”

In explication, the drafters took this position:

‘*Aiding should mean something more than the

attenuated connection resulting solely from

membership in a conspiracy, and the objective

standard of what is reasonably foreseeable.”’'’

It may safely be assumed that the august body of legal

scholars who were involved in making the decision to

reject Pinkerton did so after careful and full evaluation of

its effects and portent. Petiticner urges this Court to take

careful note of the result of their research in making its

own decision.

'? National Commission. Final Draft n.1 at 156.

IX. Conclusion: Application to the Present Case

To recapitulate, it has been demonstrated that no

aiding and abetting as defined by the controlling statute

(18 USC §2) took place. The inescapable conclusion is

that the Pinkerton rule, as the government interprets it.

was used to provide the connection.

It has been further shown that the majority opinion in

Pinkerton was based upon cases where actual aiding and

abetting had taken place. Indeed, in the principal case

itself. there was evidence of aiding and abetting in that

the two brothers mutually planned and encouraged each

other towards their specific illegal ends which were the

substantive offenses. A few cases where aiding and

abetting had not been present were based on the

inapposite analogy of the overt act being applied to all

members of the conspiracy, thus making it reasonable for

substantive offenses to be so applied. Some were also

grounded in the equally inappropriate transposition of

partnership liability from the civil tort field to criminal

liability.

Several major objections have been lodged against this

faulty doctrine. They include (1) violation of legislative

intent, (2) violation of separation of powers doctrine, (3)

violation of statutory rules of construction, (4) violation

of due process and equal protection of the laws by not

giving fair warning, (5) unnecessary complication of

criminal jurisprudence, and (6) demonstrated potential for

great inequity in application.

Petitioner asserts that the conclusion required is that

the Pinkerton doctrine, of questionable legal validity at its

inception, has lost any vitality it may have had when

applied as in the present case. As such, it is a dangerous,

unfair and unnecessary pitfall in the path of those who

are legally guilty only of lesser or fewer crimes.

6 een eee

The Sixth Circuit never reached the merits of the

above arguments. The sole response of that Court was:

‘Appellants vigorously attack the validity of the

rule announced in Pinkerton v. United States, 328

U.S. 640 (1946) that even if he did no more than

join a conspiracy, a conspirator can be convicted

of any substantive offense committed in

furtherance of the conspiracy and as a part of it.

Appellants contend that the Pinkerton rule is bad

law, and that this court should not foliow it. Our

court, however, is constitutionally required to

follow the Supreme Court's decision in Pinkerton

and the cases following it, which have never been

overruled, or even questioned by the Supreme

Court.’’ App. C infra at 98

The continued use of a harsh doctrine based on

erroneous application of forced analogies should not

serve to give it any legitimacy. If mere passage of time is

sufficient to legitimate otherwise unjustified practices

affecting the lives of American citizens, progress will

forever be thwarted.

In light of the above factors and the great weight they

bear, Petitioner prays this Court limit the application of

the Pinkerton doctrine to cases where it is found, at the

very least, that there is substantial facilitation of the

perpetrators’ illegal acts by the defendant and not mere

membership in the primary conspiracy. This connection

existed in the Pinkerton case and made other rulings

mere obiter dicta in any event.

To fully accord with the “better view’ of the law,

Petitioner requests that actual aiding and abetting must be

required before attribution of accomplice liability be

acceptable. Pinkerton itself bears this interpretation and

the accurate cases which are its foundation are in accord.

Consequently, this Court is asked to restrict the use of an

oppressive doctrine. And in so doing, Petitioner

specifically prays that his convictions for those

substantive crimes in which he had no part be reversed

and dismissed.

Il.

PETITIONER DID NOT RECEIVE EFFECTIVE AS-

SISTANCE OF COUNSEL IN SIS TRIAL WHERE

TWO ATTORNEYS REPRESENTED OVER TWENTY

DEFENDANTS, ONLY ONE OF WHICH WAS A PAY-

ING CLIENT, WHERE PETITIONER WAS ONLY

PERIPHERALLY INVOLVED AN WHERE NO MO-

TION FOR SEVERANCE WAS MADE TO AVOID

TRANSFERENCE OF GUILT.

The prosecution out of which this petition grows

commenced with two indictments charging some

thirty-two persons with a total of about thirty-three

counts. Five of the defendants were severed for reasons

not known to present counsel for Pe.itioner Hurt.

The two cases, each assigned to a different trial judge,

were tried, in a manner of speaking, side by side. Two

attorneys represented more than twenty defendants in

these simultaneous trials, and this representation included

Petitioner Hurt.

The attorneys were two of the most able and

experienced in the country. But representing more than

twenty separate interests is a gigantic undertaking and

must tax even the best to the limit.

While all the clients get the benefit of the good that

emanates from the efforts and talents of two highly

competent attorneys, it stands to reason that the

individual interests of some client must suffer.

A plea of “not guilty’ joins the issue and raises a

denial by a defendant of every material allegation of

crime lodged against the individual making the plea.

Thus, by his plea of not guilty, Appellant Hurt denied the

conspiracy and each of the substantive counts.

eae

The facts reveal that Petitioner Hurt had a direct and

personal connection with only one of fifteen substantive

counts and with only two of the defendants. The finding

of the *‘sample’’ of heroin in his car on which Count 7

was based raises some question as to proof of his

ownership or knowledge of the presence of the small

exhibit. Hurt, further, was in the exact position of those

severed defendants insofar as the pleadings were

concerned. But certainly the fact situation suggested only

the most minimal contact between Hurt and anyone else

charged in either of the two indictments.

Hence it would appear that he would have had every

reason for a severance of his case. Yet nowhere does the

record reveal a motion for severance on his part. Such a

severance could also have been achieved by his simply

refusing to waive a jury. Again no such trial tactic was

attempted on behalf of Hurt — nor for any of the

defendants represented by the main legal team.

This case, as in most cases, has a “‘pecking order’’ of

importance among the defendants. It is obvious from the

entire record that there were several men who stood high

in the organization and consequently had to be the object

of greater concern for the attorneys representing them.

It is true that the Trial Court acquitted some

defendants. But it is notable that in arriving at the

conclusion to convict Petitioner Hurt, the Court found

the evidence as to him “‘not as overwhelming’’. The fact

of the matter was that there was insufficient evidence to

convict him of participation in the single conspiracy

charged or of at least fourteen substantive counts with

which fact situations he had no involvement in the one

count in which he was involved because of the weak

nature of the evidence.

The prejudice to his cause becomes apparent when

analyzed in the light of what was best for Petitioner Hurt

in terms of retaining him in the mass trial.

If the proper defense for Hurt was to minimize his

association with the ‘‘in-house’’ organization, then

remaining in the joint trial could only represent a conflict

of interest between him and every other defendant in the

trial.

The U.S. Supreme Court addressed itself to the

question of ineffective representation of counsel

occasioned by joint representation of co-defendants in

Glasser v. U.S., 315 US 60 (1941). Glasser, one of five

co-defendants, was an Assistant U.S. Attorney convicted

of conspiracy to defraud the federal government by

accepting bribes to affect the prosecution of federal tax

cases.

Over the objection of Glasser, his privately retained

counsel was appointed to represent co-defendant Kreske.

On appeal Glasser claimed that because his attorney

represented two persons with conflicting defense needs,

his counsel was prevented from adequately safeguarding

his right to have incompetent evidence excluded and to

have witnesses fully cross-examined.

In holding that Glasser was denied his Sixth

Amendment right to effective counsel, the court looked

to conflict of interest and resulting prejudice. However, it

refused to formulate a test by which the exact degree of

prejudice necessary to find ineffective counsel could be

measured:

‘*To determine the precise degree of prejudice

sustained by Glasser as a result of the Court's

appointment ... is at once difficult and

unnecessary. The right to have the assistance of

counsel is too fundamental and absolute to allow

courts to engage in nice calculations as to

prejudice arising from its denial."’ Supra, p. 76.

EDO ee +k ee eee |

In addition to looking to conflict of interest and

prejudice to determine whether ineffective counsel exists,

the court seems to have propounded another standard,

that of impairment of counse!:

.. Glasser wished the benefit of the

undivided assistance of counsel of his choice. We

think that such a desire on the part of an accused

should be respected. Irrespective of any conflict

of interest the additional burden of representing

another party may conceivably impair counsel's

ineffectiveness.’’ Supra, p. 75.

It is interesting to note that another factor mentioned

by the court was the nature of conspiracy trials

themselves. The court stated that undivided assistance in

such cases is especially important because of *‘the liberal

rules of evidence in conspiracy cases and the wide

latitude allowed prosecutors and the resultant opportunity

that unfairness may occur to individual defendants’, at p.

76.

Finding that counsel was “‘not as effective as it might

have been if the appointment hadn't been made,” the

court set aside the verdict, at p. 76.

The rather sweeping language of Glasser has been

variously applied in the various jurisdictions.

It is generally agreed that a showing of prejudice is

required to establish ineffective assistance of counsel.

This is usually supported by the fact that in Glasser the

court overturned only Glasser’s conviction, requiring

Kreske to show he was prejudiced by joint representation

in order for his conviction to be overturned also, at p. 77.

The Sixth Circuit has required a showing of conflict of

interest or prejudice by the co-defendant represented by

joint counsel who is claiming deprivation of his right to

effective counsel. Burkeen v. U.S., 355 F2d 241 (6th Cir.

1966). Thus, in Burkeen, the Sixth Circuit found no

deprivation of the Sixth Amendment rights of the

co-defendants who were convicted of bank robbery while

jointly represented by appointed counsel. There was no

showing of either conflict of interest or prejudice. See

also U.S. v. Berriel, 371 F2d 587 (6th Cir. 1967).

In Craig v. U.S., 217 F2d 355 (C.A. 6, 1954), the Sixth

Circuit offers an opportunity to see how conflict and

prejudice is determined. Craig was tried for the aiding of

the fraudulent preparation of tax forms. His former

employer was a co-defendant. Both were represented by

the company attorney and both were convicted.

Craig, who had been the company comptroller, claimed

that during the trial of a conflict of interest developed

between him and his co-defendant, the company

president. when it became expedient for Craig's employer

to shift responsibility for the preparation of certain forms

to subordinates. including Craig. Because of this conflict

of interest, his attorney did not afford him adequate

representation. In support of the claim of ineffective

representation, Craig cited the attorney's failure in

cross-examining a witness who was testifying to a

meeting with Craig's co-defendant to elicit whether Craig

was present or not.

The court found that in this case, joint representation

resulted in a denial of Craig's Sixth Amendment right to

effective counsel. In coming to this decision, the court

cited the following factors:

-conflict in interest prevented a _ proper

cross-examination of a witness whose testimony

was given considerable weight

—— ve

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PE eee ee

-that such a cross-examination would in all

probability have been made by counsel who had

no interest in Craig’s co-defendant

-that weakening of such testimony against Craig

might have had a material effect on the outcome

-that as a result of the conflict, counsel's

representation of Craig was not as effective as it

might have been

-that in representing both defendants counsel

undertook to perform a difficult if not impossible

task

-whether the result would have been different if

counsel had devoted his talents unreservedly in

the interest of Craig could not have been

determined, supra, p. 359.

Citing Glasser, discussed supra, the Sixth Circuit has

found that the exact degree of prejudice to a co-defendant

who is represented by joint counsel does not have to be

established in order to show ineffective representation.

However, it is apparent that more than a mere possibility

of prejudice must be established, and that the court

should be shown that the conflict of interest might have

affected the outcome of the case.

Other courts have applied a lesser standard than that of

the Craig court. A California court has held that once a

potential conflict of interest is shown as the result of joint

representation, the prosecution has the burden of proving

beyond a reasonable doubt that the resulting prejudice

was harmless. People v. Thompson, 13 CA3d 47, 54-55

(1970).

WAIVER

The presumption against waiver of a constitutional

right applies to waiver of the right to effective counsel.

Craig v. U.S., 217 F2d 355, 359 (6th Cir. 1954). Thus, in

Glasser v. U.S., 315 U.S. 60 (1964), the failure to renew

objections to the appointment of defendant Glasser’s

attorney to represent a co-defendant also, could not be

construed as tacit waiver, even though Glasser was an

attorney himself.

In Craig, supra, defendant, the corporation

comptroller, was represented by the company attorney,

who also represented the co-defendant, the company

president. Assured by counsel that there was no danger

of conviction, Craig did not seek independent counsel.

Although not indigent, he felt that he could not afford

separate counsel and was not aware that he could petition

the court for separate counsel. Under these

circumstances, the Sixth Circuit found that failure to

assert the right to separate counsel did not constitute a

waiver.

Nor should Hurt be penalized if the human instinct to

follow the crowd being led by two gifted attorneys

actually resulted in a prejudice had he been able to

analyze his own case as it weighed against being one of

some twenty persons getting joint representation. The

prejudice is neither illusory nor imaginary, and represents

a clear violation of his Sixth Amendment right to

effective assistance of counsel at both the pre-trial and

trial stages.

As the Government is disposed to bringing an

increasing number of these mass prosecutions and is

aware that most of the defendants ensnared in its nets

will be indigent and forced to accept the representation

obtained by the real perpetrators of the crime, it is

important that the Court provide specific guidelines to

insure that these individuals are fully represented, instead

of being forced to accept tactical decisions designed to

benefit the paying clients or their attorneys alone.

RELIEF REQUESTED

For the foregoing reasons, Petitioner prays that his

Petition for Certiorari be granted.

Respectfully submitted,

S. ALLEN EARLY, JR.

RALPH H. RICHARDSON

Attorneys for Petitioner

810 Buhl Building

Detroit, Michigan 48226

(313) 963-6093

Detroit, Michigan

November 22, 1976

APPENDIX A

INDICTMENT

(United States District Court —

Eastern District of Michigan —

Southern Division)

United States of America, Plaintiff. vs. Eddie **Mr.

President’’ *‘Big Man"’ **Big Fellow’ *‘Big Duck’’ **Dr.”’

“Chief “‘The Fat Man” “‘Boss’’ Jackson, Courtney

“Mr. Vice-President’’ “James Brown” *‘The Professor”

“The Vice’ Brown, George *‘George Jr.’ Blair, Herbert

L. **Bubba”’ Bell, Ronald **Agent Five’ *‘Five’’ Garrett,

Samuel Eugene ‘‘Gene’’ ‘‘Barbershop Man’ Horne,

Alphonzo Aggustus *‘Al’’ Jones, Charles S. “‘C Yergin”’

Reynolds, Fairh Lee **P. Griggs’’ Riggs. Charles **Great

Dolph’’ Rudolph, Charles ‘“‘Mr. K** ‘‘Mr. KK”

“Governor” Cavanaugh, Lamar ‘“‘Dr.’* Esters, Laticia

Tish’ Burns, Maurice Thompson, Alphonso *‘Al”

Finch, Theodore L. Hughes, M.D. and Leo Hurt, Jr.,

Defendants.

The Grand Jury charges:

COUNT ONE

From on or about the 26th day of September 1971 and

continuously thereafter, up to and including the 15th day

of December 1971, in the Eastern District of Michigan,

and elsewhere, Eddie *‘Mr. President’’ *‘Big Man’’ “‘Big

Fellow” ‘‘Big Duck’ **Dr.”’ “‘Chief’’ *‘The Fat Man”

‘“*Boss** Jackson, Courtney **Mr. Vice-President’’ ‘James

Brown”’ *‘The Professor’’ *‘The Vice’’ Brown, George

“George Jr.’ Blair. Herbert L. *‘Bubba’’ Bell, Ronald

‘“*Agent Five’’ *‘Five’’ Garrett, Samuel Eugene *‘Gene”’

ne ee ee ee

‘Barbershop Man’’ Horne, Alphonso Aggustus ‘‘Al”’

jones, Charles S. **C Yergin’’ Reynolds, Fairh Lee **P.

Griggs’’ Riggs, Charles **Great Dolph’’ Rudolph, Charles

‘Mr. K* “Mr. KK” “*‘Governor’’ Cavanaugh, Lamar

‘*Dr.’” Esters, Laticia *‘Tish’’ Burns, Maurice Thompson,

Alphonso *“‘Al’’ Finch, Theodore L. Hughes, M.D. and

Leo Hurt, Jr., the defendants herein, willfully and

knowingly did combine, conspire, confederate and agree

together, with each other, with the unindicted

co-conspirators Willie Lee ‘Big Willie’ **G. Wilson”

Kilpatrick, Joseph Leon ‘‘Joe’’ Weaver, James Reginald

‘*Reggie’’ Weaver, DeWitt Bailey, Sheila *‘Sam”’ Davis,

Richard “‘Rick’’ Lagrant, Elizabeth ‘Liz’ Thomas,

Robert “‘East Side Bobby’’ Malone, George Murphy,

Roosevelt ‘Johnnie Quick’ Nabors, Cara “‘Jones”

Woods, Jr.. and J.C. Rex, and with divers other persons

whose names are to the Grand Jury unknown, to

knowingly and intentionally manufacture and distribute,

and possess with ititent to manufacture and distribute

divers quantities of heroin, a schedule I narcotic drug

controlled substance, and cocaine, a schedule II narcotic

drug controlled substance, in violation of Section

841(a)(1). Tithe 21, United States Code.

2. It was a part of said conspiracy that the defendan:s

and co-conspirators Eddie **Mr. President’ “‘Big Man”

“Big Fellow’ “Big Duck” “‘Dr.”’ “Chief” “‘The Fat

Man” “‘Boss’’ Jackson, Courtney ‘Mr. Vice-President”

‘James Brown’? “The Professor’ “‘The Vice’ Brown,

George “George Jr.”’ Blair and Herbert L. “Bubba” Bell

would organize, supervise and manage a heroin and

cocaine manufacturing and distributing business operated

from the Detroit, Michigan, area.

3. It was further a part of said conspiracy that the

defendants and co-conspirators Eddie **Mr. President’’

“Big Man” “Big Fellow’ *‘Big Duck’ ‘*Dr.’’ **Chief’’

“The Fat Man” “Boss” Jackson, Courtney ‘*Mr.

Vice-President’ *‘James Brown” **The Professor’? **The

Vice’’ Brown, George *‘George Jr.’’ Blair, Herbert L.

‘*Bubba”’ Bell, Ronald **Agent Five’’ **Five’’ Garrett,

Samuel Eugene ‘‘Gene™’ ‘“‘Barbershop Man" Horne,

Alphonzo Aggustus *‘Al’’ Jones, Charles **Great Dolph”

Rudolph, and Charles S. *‘C Yergin’’ Reynolds and the

unindicted co-conspirator Willie Lee “Big Willie’ **G.

Wilson” Kilpatrick would possess heroin and cocaine

bought in Detroit and caused to be bought in Detroit and

brought to Detroit and caused to be brought to Detroit,

Michigan, by defendants and co-conspirators Eddie **Mr.

President” ‘Big Man"’ **Big Fellow’ “*Big Duck*’ **Dr.*’

“Chief” “The Fat Man” “‘Boss’’ Jackson, Courtney

‘*Mr. Vice-President’ *“‘James Brown” **The Professor”

“The Vice’ Brown, George “‘George Jr.’’ Blair and

Herbert L. *‘Bubba’’ Bell, and would manufacture and

distribute the heroin and cocaine [copy illegible] and

wholesale distributors of heroin and cocaine and to

persons to the Grand Jury unknown.

4. It was further a part of said conspiracy that the

unindicted co-conspirators Joseph Leon *‘Joe’* Weaver,

James Reginald “‘Reggie’’ Weaver and Zackary **Zack’’

Garrett would answer telephones, coduct counter-

surveillance to discover law enforcement operations, and

aid in the process of manufacturing the heroin and

cocaine.

5. It was further a part of said conspiracy that the

defendant and co-conspirator Fairh Lee **P. Griggs”

Riggs would transport to the Detroit, Michigan area and

act as custodian of funds to be used in purchasing

narcotic drug controlled substances.

we arene

6. It was further a part of said conspiracy that the

defendants and co-conspirators Charles “‘Mr. K’* *‘Mr.

KK” ‘“‘Governor’’ Cavanaugh, Lamar ‘‘Dr.”’ Esters,

Laticia *‘Tish’’ Burns, Maurice Thompson, Alphonso

‘‘Al’’ Finch, Theodore L. Hughes, M.D., and Leo Hurt,

Jr., and the unindicted co-conspirators Duane Adams,

Sharlene *‘Duane’s Wife’’ Adams, DeWitt Bailey, Sheila

‘‘Sam’’ Davis, Richard **Rick’’ Lagrant, Elizabeth “*Liz”’

Thomas, Robert “‘East Side Bobby’’ Malone, George

Murphy, Roosevelt ‘Johnnie Quick’? Nabors, Cara

‘‘Jones’’ Woods, Jr., and J.C. Rex would act as

wholesale distributors of heroin and cocaine in the

Detroit, Michigan area would be ‘‘preferred customers”

of the Jackson Organization and would purchase

exclusively from one of the Jackson Organization's

Agents listed in paragraph number three, Eddie *“*Mr.

President’’ *‘Big Man’’ “Big Fellow’’ *‘Big Duck’’ **Dr.””

‘Chief’ ‘“‘The Fat Man’ “‘Boss”’ Jackson, Courtney

‘*Mr. Vice-President’’ ‘James Brown’’ *‘The Professor”

‘The Vice’’ Brown, George “George, Jr.’” Blair, Herbert

L. *‘Bubba’’ Bell, Ronald *‘Agent Five’’ **Five’’ Garrett,

Samuel Eugene ‘‘Gene’’ “Barbershop Man’’ Horne,

Alphonzo Aggustus **Al’’ Jones, Charles *‘Great Dolph”

Rudolph, and Charles S. “°C. Yergin’’ Reynolds, and the

unindicted co-conspirator Willie Lee ““Big Willie’ °*G.

Wilson’ Kilpatrick.

OVERT ACTS

At the times hereinafter mentioned, the defendants and

co-conspirators committed the following overt acts in

furtherance of said conspiracy and to effect the objects

thereof:

1. On or about September 26, 1971, the defendants

Fairh Lee **P. Griggs’’ Riggs and Charles S. **C. Yergin”’

Reynolds and the unindicted co-conspirator Willie Lee

‘Big Willie’’ *“‘G. Wilson’’ Kilpatrick travelled from

Detroit, Michigan, to New York City, New York.

2. On or about November 19, 1971, at approximately

i1:49 p.m. the defendant George **George Jr.’’ Blair and

the unindicted co-conspirators Duane Adams and Joseph -

Leon *‘Joe’’ Weaver had a telephone conversation.

3. On or about December 9, 1971, at approximately

6:45 p.m. the defendants George **George Jr.’’ Blair and

Samuel Eugene *‘Gene’’ *‘Barbershop Man’’ Horne and

the unindicted co-conspirator Joseph Leon ‘‘Joe’’ Weaver

had a telephone conversation.

4. On or about December 12, 1971, at approximately

3:18 p.m., the defendants George *‘George Jr.’’ Blair and

Charles “Mr. K’’ *“‘Mr. KK’”’ “‘Governor’’ Cavanaugh

had a telephone conversation.

5. On or about December 12, 1971, at approximately

9:13 p.m. the defendants Charles *‘Great Dolph’’ Rudolph

and Courtney ‘‘Mr. Vice-President’? “‘James Brown”

‘‘The Professor’’ *“‘The Vice’’ Brown had a telephone

conversation.

6. On or about December 14, 1971, at approximately

4:45 p.m., the defendants Eddie ‘‘Mr. President’’ *‘Big

Man’”’ ‘‘Big Fellow’’ “‘Big Duck’’ **Mr.”’ “‘Chief’ **The

Fat Man” ‘‘Boss’’ Jackson, George ‘‘George Jr.’’ Blair

and Charles *“‘Mr. K’*’ ‘“‘Mr. KK’ ‘*Governor’’

Cavanaugh had a telephone conversation.

7. On or about December 15, 1971, at approximately

8:08 p.m., the defendants Leo Hurt, Jr., and George

‘George Jr.’’ Blair had a telephone conversation.

All of the foregoing in violation of Title 21, United

States Code, Section 846.

COUNT TWO

On or about October 18, 1971, in the Eastern District

of Michigan, the defendants Eddie *‘Mr. President’’ **Big

Man” “Big Fellow’’ *‘Big Duck"’ *‘Dr.’’ “‘Chief’ ‘‘The

Fat Man’’ ‘‘Boss’’ Jackson, Courtney ‘*Mr.

Vice-President’’ *‘James Brown” *‘The Professor’’ ‘The

Vice’’ Brown, George *‘George Jr.’’ Blair, Herbert L.

**Bubba’’ Bell, Ronald ‘‘Agent Five’’ **Five’’ Garrett,

Samuel Eugene ‘“‘Gene’’ ‘‘Barbershop Man" Horne,

Alphonzo Aggustus **Al"’ Jones, Charles S. **C. Yergin”™

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles *‘Great

Dolph** Rudolph, Charles *“‘Mr. K*’ ‘“‘Mr. KK”

‘*Governor’’ Cavanaugh, Lamar ‘‘Dr.”’ Esters, Laticia

“Tish’’ Burns, Maurice Thompson, Alphonso ‘‘Al’’

Finch, Theodore L. Hughes, M.D. and Leo Hurt, Jr.,

knowingly and intentionally did distribute and aided and

abetted, counseled, commanded, induced and procured

the distribution of about 21.79 grams of heroin, a

schedule I narcotic drug controlled substance; in violation

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

Title 18, United States Code, Section 2.

COUNT THREE

On or about October 22, 1971, in the Eastern District

of Michigan, the defendants Eddie **Mr. President’’ **Big

Man” *‘Big Fellow’’ “Big Duck’’ ‘‘Dr.”’ ‘Chief’ **The

Fat Man’ ‘‘Boss’’ Jackson, Courtney ‘Mr.

Vice-President’* *‘James Brown’’ *‘The Professor’’ **The

Vice’’ Brown, George *‘George Jr.’’ Blair, Herbert L.

‘*Bubba”’ Bell, Ronald *‘Agent Five’’ *‘Five’’ Garrett,

Samuel Eugene ‘“‘Gene’’ “Barbershop Man*’ Horne,

Alphonso Aggustus “‘Al’’ Jones, Charles S. **C Yergin’’

Reynolds, Fairh Lee *'P. Griggs’’ Riggs, Charles ‘*Great

Dolph’ Rudolph, Charles ““Mr. K*" “‘Mr. KK”

**Governor’’ Cavanaugh, Lamar “‘Dr.’’ Esters, Laticia

Tish’ Burns, Maurice Thompson, Alphonso ‘‘Al”

Finch, Theodore L. Hughes, M.D. and Leo Hurt, Jr.,

knowingly and intentionally did distribute and aided and

abetted, counseled, commanded, induced and procured

the distribution of about 151.08 grams of heroin, a

schedule I narcotic drug controlled substance; in violation

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

Title 18, United States Code, Section 2.

COUNT FOUR

On or about November 4, 1971, in the Eastern District

of Michigan, the defendants, Eddie **Mr. President” **Big

Man” “Big Fellow’ “Big Duck” **Dr.”’ “‘Chief’ **The

Fat Man’ ‘“‘Boss*’ Jackson, Courtney ‘‘Mr.

Vice-President’’ “James Brown” **The Professor’’ **The

Vice’’ Brown, George “‘George Jr.’ Blair, Herbert L.

‘*Bubba’’ Bell, Ronald “Agent Five’ **Five’’ Garrett,

Samuel Eugene ‘‘Gene’’ “‘Barbershop Man’’ Horne,

Alphonzo Acgustus **Al’* Jones, Charles S. “*C. Yergin™

Reynolds, Fairh Lee **P. Griggs’ Riggs, Charles **Great

Dolph’* Rudolph, Charles *““Mr. K** “*‘Mr. KK”

‘“Governor’’ Cavanaugh, Lamar “‘Dr.’’ Esters, Laticia

*Tish’’ Burns, Maurice Thompson, Alphonso ‘‘Al”’

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally did distribute and aided and

abetted, counseled. commanded, induced and procured

the distribution of about 157.15 grams of heroin, a

schedule I narcotic drug controlled substance; in violation

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

Title 18, United States Code, Section 2.

COUNT FIVE

On or about November 8, 1971, in the Eastern District

of Michigan, the defendants Eddie **Mr. President” “Big

Man” “Big Fellow”’’ **Big Duck”’’ “Dr.” “‘Chief’ **The

Fat Man’’ ‘‘Boss’’ Jackson, Courtney ‘Mr.

Vice-President” *‘James Brown’’ *‘The Professor’’ **T-he

Vice’’ Brown, George “‘George Jr.’’ Blair, Herbert L.

‘*Bubba”™’ Bell, Ronald “‘Agent Five’’ ‘*Five’’ Garrett,

Samuel Eugene ‘‘Gene” ‘‘Barbershop Man” Horne,

Alphonso Acgustus *‘Al’’ Jones, Charles S. *‘C Yergin’’

Reynolds, Fairh Lee **P. Griggs’ Riggs, Charles **Great

Dolph’’ Rudolph, Charles “*‘Mr. K*’ ‘“*Mr. KK”

‘*“Governor’’ Cavanaugh, Lamar ‘*Dr.”’ Esters, Laticia

‘**Tish’’ Burns, Maurice Thompson, Alfonso *‘Al’’ Finch,

Theodore L. Hughes, M.D., and Leo Hurt, SJr.,

knowingly and intentionally did distribute and aided,

abetted, commanded, induced and procured the

distribution of about 21.785 grams of heroin, a schedule |

narcotic drug controlled substance; in violation of Title

21, United States Code, Section 841(a)(1) and of Title 18,

United States Code, Section 2.

COUNT SIX

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie *‘Mr. President’’ “Big

Man” “Big Fellow’’ **Big Duck’’ **Dr.”’ “‘Chief’ **The

Fat Man’ Boss’’ Jackson, Courtney ‘‘Mr.

Vice-President’’ *‘James Brown’’ “‘The Professor’’ **The

Vice’’ Brown, George “George Jr.’’ Blair, Herbert L.

‘‘Bubba"’ Bell, Ronald ‘‘Agent Five’’ **Five’’ Garrett,

Samuel Eugene ‘‘Gene’’ “Barbershop Man’’ Horne,

Alphonzo Acgustus “‘Al’’ Jones, Charles S. “‘C Yergin”

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles **Great

Dolph’’ Rudolph, Charles *“‘Mr. K** “‘Mr. KK”

‘Governor’ Cavanaugh, Lamar **Dr.”’ Esters, Laticia

“Tish’’ Burns, Maurice Thompson, Alphonso ‘‘Al’’

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally did distribute and aided,

abetted, commanded, induced and procured the

distribution of about 1,924.5 grams of heroin, a schedule |

narcotic drug controlled substance; in violation of Title

21, United States Code, Section 841(a)(1) and of Title 18,

United States Code, Section 2.

COUNT SEVEN

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie *‘Mr. President’’ *‘Big

Man” ‘Big Fellow’’ “Big Duck’’ *‘Dr.”’ ‘*Chief’’ **The

Fat Man’* “‘Boss’* Jackson, Courtney ‘*Mr.

Vice-President’’ *‘James Brown” *‘The Professor’ **The

Vice’ Brown, George *‘George Jr.”’ Blair, Herbert L.

“Bubba” Bell, Ronald ‘‘Agent Five’ ‘‘Five’’ Garrett,

Samuel Eugene ‘‘Gene’’ ‘‘Barbershop Man’ Horne,

Alphonso Acgustus **Al’’ Jones, Charles S. ‘°C. Yergin”’

Reynolds, Fairh Lec **P. Griggs’’ Riggs, Charles **Great

Dolph’* Rudolph, Charles *“‘Mr. K** ‘‘Mr. KK”

“*Governor’’ Cavanaugh, Lamar “‘Dr.”’ Esters, Laticia

“Tish’’ Burns, Maurice Thompson, Alphonso *‘Al”’

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally did distribute and aided and

abetted, counseled, commanded, induced and procured

the distribution of a sample quantity of about 0.268 grams

of heroin, a schedule I narcotic drug controlled

substance; in violation of Title 21, United States Code.

Section 841(a)(1) and of Title 18, United States Code,

Section 2.

COUNT EIGHT

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie *‘Mr. President’ **Big

Man’’ ‘‘Big Fellow’’ “‘Big Duck’’ *‘Dr."’ “‘Chief’ **The

Fat Man’ ‘“‘Boss*’ Jackson, Courtney ‘‘Mr.

Vice-President’’ ‘‘James Brown’’ *‘The Professor’ **The

Vice’’ Brown, George ‘‘George Jr.’’ Blair, Herbert L.

‘‘Bubba’’ Bell, Ronald ‘“‘Agent Five’’ **Five’’ Garrett,

Samuel Eugene ‘“‘Gene’’ “Barbershop Man” Horne,

Alphonzo Acgustus **Al’’ Jones, Charles S. “°C. Yergin”™

Reynolds, Fairh Lee **P. Griggs’’ ‘Riggs, Charles **Great

Dolph’’ Rudolph, Charles *‘Mr K** “*Mr. KK”

‘“Governor’’ Cavanaugh, Lamar *‘Dr.”’ Esters, Laticia

“Tish’’ Burns, Maurice Thompson, Alphonso “Al”

Finch, Theodore L. Hughes, M.D. and Leo Hurt, Jr.,

knowingly and intentionally did distribute and aided,

abetted, commanded, induced and procured the

distribution of about 137.35 grams of heroin, a schedule |

narcotic drug controlled substance; in violation of Title

21, United States Code, Section 841(a)(1) and of Title 18,

United States Code, Section 2.

COUNT NINE

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie **Mr. President” “Big

Man”’ “Big Fellow’’ **Big Duck”’ **Dr.”’ “‘Chief’ “The

Fat Man’ “‘Boss’’ Jackson, Courtney ‘‘Mr.

Vice-President’’ “James Brown’’ “‘The Professor’ *‘The

Vice’’ Brown, George ‘George Jr.”’ Blair, Herbert L.

‘*Bubba”’ Bell, Ronald *‘Agent Five™’ ‘‘Five’’ Garrett,

Samuel Eugene “‘Gene’’ “Barbershop Man” Horne,

Alphonzo Acgustus **Al’’ Jones, Charles S. “‘C Yergin”™

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles **Great

Dolph’ Rudolph, Charles “‘Mr K** “*Mr. KK”

“Governor” Cavanaugh, Lamar “‘Dr.’’ Esters, Laticia

“Tish’’ Burns, Maurice Thompson, Alphonso **Al”’

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally did distribute and aided,

abetted, commanded, induced and procured the

distribution of about 37.66 grams of cocaine, a schedule |

narcotic drug controlled substance; in violation of Title

21, United States Code, Section 841(a)(1) and of Title 18,

United States Code, Section 2.

COUNT TEN

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie *‘Mr. President’’ “Big

Man” “Big Fellow’ *‘Big Duck’ **Dr.”’ *‘Chief’’ **The

Fat Man’ ‘“‘Boss** Jackson, Courtney ‘‘Mr.

Vice-President’* ‘James Brown’’ *‘The Professor’’ **The

Vice’ ‘Brown, George *‘George Jr.’’ Blair, Herbert L.

‘“*Bubba”’ Bell, Ronald ‘Agent Five’’ ‘*Five’’ Garrett,

Samuel Eugene “‘Gene’’ “Barbershop Man*’ Horne,

Alphonzo Acgustus *‘Al’’ Jones, Charles S. **C Yergin”

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles **Great

Dolph*’ Rudolph, Charles *“*‘Mr K**’ ‘*Mr. KK”

“Governor” Cavanaugh, Lamar *‘Dr.”’ Esters, Laticia

**Tish’* Burns, Maurice Thompson, Alphonso ‘‘Al"’

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally possessed with, and aided

and abetted, counseled, commanded, induced and

procured the possession with, intent to manufacture and

distribute about 1,924.5 grams of heroin, a schedule |

narcotic drug controlled substance; in violation of Title

21, United States Code, Section 841(a)(1), and of Title 18,

United States Code, Section 2.

COUNT ELEVEN

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie ‘‘Mr. President” “‘Big

Man”’ “Big Fellow’’ ‘“‘Big Duck’’ *‘Dr.”’ ‘“‘Chief* **The

Fat Man*’ ‘“‘Boss*’ Jackson, Courtney ‘‘Mr.

Vice-President’*’ *‘James Brown” ‘‘The Professor’’ **The

Vice’’ Brown, George ‘‘George Jr."’ Blair, Herbert L.

‘‘Bubba”’ Bell, Ronald ‘‘Agent Five’’ ‘‘Five’’ Garrett,

Samuel Eugene ‘“‘Gene’’ “Barbershop Man” Horne,

Alphonzo Acgustus ‘‘Al’’ Jones, Charles S. **C Yergin”’

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles *‘Great

Dolph’’ Rudolph, Charles “‘Mr K*’ ‘*Mr. KK”

‘*Governor’’ Cavanaugh, Lamar ‘‘Dr.’’ Esters, Laticia

‘Tish’’ Burns, Maurice Thompson, Alphonso *‘Al”

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally possessed with, and aided

and abetted, counseled, commanded, induced and

procured the possession with, intent to manufacture and

distribute a sample quantity of about 0.268 grams of

heroin, a schedule I narcotic drug controlled substance;

in violation of Title 21, United States Code, Section

841(a)(1), and of Title 18, United States Code, Section 2.

COUNT TWELVE

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie *‘Mr. President’ **Big

Man” “Big Fellow’’ *‘Big Duck’’ **Dr.’* “Chief” ‘The

Fat Man’’ ‘“‘Boss*’ Jackson, Courtney ‘‘Mr.

Vice-President’’ *‘James Brown’ *‘The Professor’ **The

Vice’’ Brown, George *‘George Jr.’’ Blair, Herbert L.

‘‘Bubba”’ Bell, Ronald ‘‘Agent Five’’ ‘*Five’’ Garrett,

Samuel Eugene ‘‘Gene’’ ‘‘Barbershop Man’’ Horne,

Alphonzo Acgustus **Al”’ Jones, Charles S. *‘C Yergin”’

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles *‘Great

Dolph’’ Rudolph, Charles *“‘Mr. K*’ “‘Mr. KK”

‘*Governor’’ Cavanaugh, Lamar *‘Dr.”’ Esters, Laticia

‘Tish’ Burns, Maurice Thompson, Alphonso ‘‘Al”

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally possessed with, and aided

and abetted. counseled, commanded, induced and

procured the possession with intent to manufacture and

distribute of about 659.66 grams of cocaine, a schedule Il

narcotic drug controlled substance; in violation of Title

21. United States Code, Section 841(a)(1), and of Title 18,

United States Code, Section 2.

COUNT THIRTEEN

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie **Mr. President’’ “Big

Man” “Big Fellow’ “*Big Duck’ “*Dr.’* “‘Chief’ **The

Fat Man’ ‘“‘Boss*’ Jackson, Courtney ‘Mr.

Vice-President’ “‘James Brown”’ “The Professor’’ **The

Vice’’ Brown, George “George Jr.’’ Blair, Herbert L.

‘‘Bubba”™’ Bell. Ronald “‘Agent Five’’ **Five’’ Garrett,

Samuel Eugene “‘Gene’’ “‘Barbershop Man’ Horne,

Alphonzo Acgustus “‘Al’’ Jones, Charles S. “*C Yergin”’

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles “*Great

Dolph’* Rudolph, Charles **‘Mr. K*’ “‘Mr. KK”

‘*Governor’’ Cavanaugh, Lamar ‘‘Dr.”’ Esters, Laticia

‘Tish’ Burns, Maurice Thompson, Alphonso ‘‘Al”

Finch, Theodore L. Hughes, M.D. and Leo Hurt, Jr.,

knowingly and intentionally possessed with and aided and

abetted, counseled, commanded, induced and procured

the possession with intent to manufacture and distribute

of about 681.80 grams of heroin, a schedule I narcotic

drug controlled substance; in violation of Title 21, United

States Code, Section 841(a)(1), and of Title 18, United

States Code, Section 2.

COUNT FOURTEEN

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie *‘Mr. President’ ‘‘Big

Man” “Big Fellow’ *‘Big Duck’’. *‘Dr.’’ **Chief’’ ‘“‘The

Fat Man’ ‘“‘Boss’’ Jackson, Courtney ‘‘Mr.

Vice-President’’ “James Brown" ‘‘The Professor’’ **The

Vice’’ Brown, George “George Jr.’* Blair, Herbert L.

‘*Bubba’’ Bell, Ronald ‘‘Agent Five’’ *‘Five’’ Garrett,

Samuel Eugene ‘‘Gene’’ “Barbershop Man’’ Horne,

Alphonzo Acgustus *‘Al’’ Jones, Charles S. **C Yergin”’

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles **Great

Dolph’’ Rudolph, Charles ‘‘Mr. K** ‘‘Mr. KK”

‘Governor’ Cavanaugh, Lamar ‘‘Dr.’’ Esters, Laticia

Tish’ Burns, Maurice Thompson, Alphonso ‘Al’

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally possessed with, and aided

and abetted, counseled, commanded, induced and

procured i‘e possession with intent to manufacture and

distribute of about 45.30 grams of cocaine, a schedule II

narcotic drug controlled substance; in violation of Title

21, United States Code, Section 841(a)(1), and of Title 18,

United States Code, Section 2.

COUNT FIFTEEN

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants, Eddie **Mr. President’’ **Big

Man” “Big Fellow’ **Big Duck’’ “‘Dr.’* *‘Chief’’ **The

Fat Man*’ ‘“‘Boss’’ Jackson, Courtney ‘‘Mr.

Vice-President’* ‘James Brown"’ *‘The Professor’’ **The

Vice’’ Brown, George *‘George Jr.’’ Blair, Herbert L.

‘‘Bubba”™’ Bell, Ronald ‘Agent Five’’ ‘*Five’’ Garrett,

Samuel Eugene ‘‘Gene’’ ‘‘Barbershop Man’ Horne,

Alphonzo Acgustus ‘‘Al’’ Jones, Charles S. **C Yergin’’

Reynolds, Fairh Lee **P. Griggs’’ Riggs, Charles **Great

Dolph’’ Rudolph, Charles *“‘Mr. K’* “‘Mr. KK”

‘“Governor’’ Cavanaugh, Lamar ‘Dr.’ Esters, Laticia

‘‘Tish’’ Burns, Maurice Thompson, Alfonso **Al’’ Finch,

Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally possessed with, and aided

and abetted, counseled, commanded, induced and

procured the possession with, intent to manufacture and

distribute of about 14.66 grams of cocaine, a schedule II

narcotic drug controlled substance; in violation of Title

21, United States Code, Section 841(a)(1), and of Title 18,

United States Code, Section 2.

COUNT SIXTEEN

On or about December 15, 1971, in the Eastern District

of Michigan, the defendants Eddie **Mr. President’’ “Big

Man” “Big Fellow’’ **Big Duck’’ “*Dr.’* *‘Chief **The

Fat Man’ ‘“‘Boss’* Jackson, Courtney ‘“‘Mr.

Vice-President’’ “James Brown” *‘The Professor” *‘The

Vice’’ Brown, George “George Jr."’ Blair, Herbert L.

‘‘Bubba’’ Bell, Ronald *“*Agent Five’’ “‘Five’’ Garrett,

Samuel Eugene “‘Gene’’ “Barbershop Man” Horne,

Alphonzo Acgustus “‘Al’* Jones, Charles S. “*C Yergin”

Reynolds, Fairh Lee **P. Griggs’ Riggs, Charles **Great

Dolph’ Rudolph, Charles “‘Mr. K*’ Mr. KK”

‘Governor’ Cavanaugh, Lamar “‘Dr.”’ Esters, Laticia

‘*Tish’*’ Burns, Maurice Thompson, Alphonso **Al”’

Finch, Theodore L. Hughes, M.D., and Leo Hurt, Jr.,

knowingly and intentionally possessed with, and aided

and abetted. counseled, commanded, induced and -

procured the possession with, intent to manufacture and

distribute of about 2,589.93 grams of heroin, a schedule |

narcotic drug controlled substance; in violation of Title

21, United States Code, Section 841{a)(1), and of Title 18,

United States Code, Section 2.

This is a true bill

FOREMAN

APPENDIX B

ORDER OF AFFIRMANCE

| Office of the Clerk

United States Court of Appeals

For the Sixth Circuit

Cincinnati, Ohio 45202

(October 8, 1976)

Mr. Laurence Leff, Mr. James K. O'Malley, Mr. Philip

Van Dam, Mr. Reuben H. Wallace, Mr. Milton R.

Henry, Mr. S. Allen Early, Jr., Mr. Wilfred C. Rice.

Re: United States of America vs. Cara Woods, Jr.. et

al. Our Nos. 742337-74-2353, Dist. Ct. Nos. Criminal

46598 & 46597

Gentlemen:

The Court today announced its decision in the

above-entitled case.

A copy of the Court's opinion is enclosed, and a

judgment in conformity with the opinion has been entered

today as required by Rule 36, Federal Rules of Appellate

Procedure.

Each party will bear its own costs on this appeal.

Very truly yours,

JOHN P. HEHMAN, Clerk

By: /s/ Betty Tibbles

Deputy Clerk

Enclosure

APPENDIX C

OPINION

(United States Court of Appeals

for the

Sixth Circuit)

Nos. 74-2337-53

United States of America, Plaintiff-Appellee v. Cara

Woods, Jr., Willie Lee Kilpatrick, Joseph Leon Weaver,

James Reginald Weaver, Eddie Jackson, Courtney

Brown, Herbert Bell, Ronald Garrett, Samuel Horne,

Alphonzo Jones, Fairh Lee Riggs, Charles Rudolph,

Laticia Burns, Maurice Thompson, Leo Hurt, George

Blair, Charles Cavanaugh, Defendants-Appellants.

On Appeal from the United States District Court for

the Eastern District of Michigan, Southern Division.

(Decided and Filed October 8, 1976)

Before: Celebrezze. McCree. and Miller,* Circuit

Judges.

McCree, Circuit Judge. We have consolidated for

consideration the appeals of seventeen defendants from

their convictions in the Eastern District of Michigan.

Each appellant had been charged in one of two similarly

worded indictments with sixteen violations of federal

narcotics laws, 21 U.S.C. §§ 841 and 846. One

indictment, hereinafter the Jackson indictment, named

fifteen unindicted co-conspirators and seventeen

The Honorable William bE. Miller died on April 12. 1976 and did

not participate in this opinion.

defendants, including appellants Eddie Jackson, Herbert

Bell, Ronald Garrett, Samuel Horne, Alphonzo Jones,

Fairh Lee Riggs, Charles Rudolph, Charles Cavanaugh,

Laticia Burns, Maurice Thompson, Leo Hurt, George

Blair and Courtney Brown. The other indictment,

hereinafter the Kilpatrick indictment, named as

defendants the fifteen persons who were unindicted

co-conspirators in the earlier indictment, including

appellants Willie Kilpatrick, Joseph Weaver, James

Weaver, and Cara Woods. The persons named as

defendants in the first indictment were named as

unindicted co-conspirators in the second indictment.

Count | of both indictments charged a single conspiracy

that continued from September to December 1971 to

manufacture, distribute, and possess heroin and cocaine

in violation of 21 U.S.C. § 846. Counts 2 through 16

charged substantive violations of 21 U.S.C. § 841

committed during the period from October to December

1971.

One of these cases was assigned to District Judge John

Feikens for trial, and the other to District Judge Philip

Pratt, both of whom are Judges of the Eastern District of

Michigan. Consolidated pretrial evidentiary hearings were

held to consider various motions raised by appellants. In

addition to waiving their right to trial by jury, the various

defendants also agreed to proceed with a simultaneous

bench trial before Judges Feikens and Pratt in order to

avoid the necessity of two separate trials involving

identical proofs.

Although the proceedings in the two separate cases

were conducted simultaneously, each judge was solely

responsible for all rulings affecting each defendant in the

case assigned to him, and each judge entered separate

findings and conclusions regarding the guilt or innocence

of each defendant in the case assigned to him.

At the conclusion of their joint bench trial, all

appellants were found guilty on multiple counts and

received sentences ranging from three years’

imprisonment to twenty years’ imprisonment.' Appellants

Kilpatrick, James Weaver, Joseph Weaver, Jackson,

Brown, Blair, Bell, Riggs, Garrett, Horne, Jones,

Rudolph, Cavanaugh, and Hurt were convicted on counts

1, 3, 4, and 6 through 16. Cara Woods was convicted on

counts 8 and 9. And appellants Burns and Thompson

were convicted on counts 2 and 5.

The simultaneous trial conducted in the district court

was an understandable effort to accommodate

indictments of the magnitude and complexity that were

obtained here by the government. Nevertheless, this

procedure has produced an appellate record of

extraordinary size with the consequence that oral

argument has been of less than usual assistance to us in

analyzing and deciding the issues presented on appeal.

Instead of beginning our opinion with a narration of the

facts, we shall consider the facts giving rise to each

separate appellate issue in our discussion of it.

The following appellants were convicted and sentenced by Judge

Pratt: Willie Lee Kilpatrick was convicted on counts |, 3, 4, 6 through

16. and sentenced to concurrent terms of six years’ imprisonment on

each count, subject to the parole provisions of 18 U.S.C. § 4208(a) (2).

with a special parole term of three years. In addition, the court

imposed a $2.000 committed fine on count |. James Reginald Weaver

and Joseph Leon Weaver were convicted on counts |, 3, 4, 6 through

16, and sentenced to concurrent terms of four years’ imprisonment on

each count, subject to the parole provisions of 18 U.S.C. § 4208 (a)

(2), with a special parole term of three years. Cara Woods. Jr. was

convicted on counts 8 and ¥, and sentenced to concurrent terms of six

years’ imprisonment on each count under the parole provisions of 18

U.S.C. § 4208 (a) (2). with a special parole term of three years. The

court also imposed a $1,000 committed fine on each count.

The remaining appellants were convicted and sentenced by Judge

Feikens. Appellants Jackson, Brown, Blair, Bell, Riggs, Garrett,

Horne. Jones. Rudolph. Cavanaugh, and Hurt were convicted on

counts |, 3, 4, 6 through 16, and received the following sentences.

Eddie Jackson was sentenced to concurrent fifteen-year terms of

imprisonment on counts |, 3, 4. 6, 7, 8, 9, 10, 11, and 12, to be served

(continued on following page)

I. WERE DEFENDANTS PROPERLY

INDICTED?

Appellants? challenge the validity of the indictments on

several grounds. First, they contend that the grand

(continued from preceding page)

consecutively with concurrent five-year terms of imprisonment

imposed on each of counts 13 through 16, and a special three-year

parole term. A committed fine of $5,000 on each count was also

imposed. George Blair and Courtney Brown were sentenced to

concurrent terms of fifteen years’ imprisonment on each of counts |.

3. 4, 6 7, 8 9 10, II, and 12, to be served consecutively with

concurrent terms of 2% years’ imprisonment on each of counts 13

through 16, with a special three-year term of parole, and a committed

fine of $5,000 on each count. Ronald Garrett received concurrent

terms of 124% years’ imprisonment on each count, with a special

parole term of three years and a committed fine of $3,000 on each

count. Charles Rudolph and Herbert Bell received concurrent terms of

ten years’ imprisonment on each count. with a special parole term of

three years, and a committed fine of $1,000 on each count. Samuel

Eugene Horne. Alphonzo Jones, Charles Cavanaugh, and Leo Hurt

were given concurrent terms of seven years’ imprisonment on each

count, with a special parole term of three years. and committed tines

of $1,000 on each count. Fairh Lee Riggs was sentenced to concurrent

terms of Seven years’ imprisonment on each count, with a special

parole term of three years, both to be served concurrently with a

sentence imposed by the district court for the Eastern District of New

York. which Riggs was then serving.

Appellants Thompson and Burns were convicted on counts 2 and 5,

and were sentenced as follows: Maurice Thompson received

concurrent terms of five years’ imprisonment on each count. with a

special parole term of three years’ imprisonment to be served at a

federal facility with a drug abuse program. Laticia Burns received

concurrent terms of three years’ imprisonment on each count to be

served at a federal facility having a drug abuse program. to be

followed by a special three-year parole term.

2 A number of separate briefs were filed on appeal. Unless

otherwise noted. we will treat each argument as applicable to all

appellants.

jury was improperly selected. Second, they contend that

the information intercepted by the wiretaps was placed

before the grand jury before the government complied

with 18 U.S.C. § 2518 (10 (a). Third, they argue that the

government misused the grand jury to intimidate persons

whom the government intended to call later as witnesses

in appellants’ criminal trials. Finally, appellants urge that

the indictments were multiplicitous.

A. The Selection of the Grand Jury.

Appellants argue that the selection of the grand jury

venire violated the Jury Selection and Service Act of

1968, 28 U.S.C. § 1861 ef seq., as well as the selection

plan adopted in the Eastern District of Michigan because

an improper voting list was used, an unauthorized person

took part in the compilation of the master jury wheel, and

a jury clerk took official work out of the office of her

home.

We decided these identical issues in United States v.

McNeal, 490 F.2d 206 (6th Cir. 1973), cert. denied, 419

‘U.S. 1020 (1974). At the district court level, the parties in

McNeal stipulated that precisely the same challenges to

the grand jury venire had already been submitted to

Judge Feikens and to Judge Pratt in the Kilpatrick and

Jackson cases. The parties in McNeal agreed to be bound

at the district court level by the rulings of Judge Pratt and

Judge Feikens, and in accordance with their rulings, the

district court denied the motion to quash the indictment

in McNeal. On review we held that “there was no

‘substantial failure to comply with the provisions’ of the

Act.”’ 490 F.2d 207. We hold that our determination in

McNeal is dispositive of these appeals as well, since not

only the same issues but also the same facts giving rise to

them are before us again.

B. The Presentation of Wire Interception Evidence Be-

fore the Grand Jury.

Immediately after their arrest, several appellants filed a

motion. to suppress the wiretap evidence that they

believed might have formed a basis for their arrests. They

also sought disclosure of the applications and orders for

the interceptions. In addition, they moved to enjoin the

government from holding a preliminary hearing or

presenting the wiretap evidence to a grand jury until ten

days after obtaining the disclosure they sought. The

government opposed the motions, but neither admitted

nor denied the legality of the wire interceptions. After

hearing oral arguments, the district court held that the

government could not present wire interception evidence

at a preliminary hearing without disclosure, but otherwise

the district court denied the motions.

On the day scheduled for the preliminary hearing,

appellants were indicted by the grand jury, which heard

the testimony of Special Agent Garibotto and evidence

from the wire interceptions. The return of the indictments

made it unnecessary to conduct the preliminary hearing.

Appellants contend that this procedure violated 18

U.S.C. § 2518 (9) and (10) (a) and 18 U.S.C. § 3504.

Section 2518 (9) provides that:

The contents of any intercepted wire or oral

communication or evidence derived therefrom

shall not be received in evidence or otherwise

disclosed in any trial, hearing, or other proceeding

in a Federal or State court unless each party, not

less than ten days before the trial, hearing, or

proceeding, has been furnished with a copy of the

court order, and accompanying application, under

which the interception was authorized or

approved. This ten-day period may be waived by

the judge if he finds that it was not possible to

furnish the party with the above information ten

days before the trial, hearing, or proceeding and

that the party will not be prejudiced by the delay

in receiving such information.

Section 2518 (10) (a) provides:

Any aggrieved person in any trial, hearing, or

proceeding in or before any court, department,

officer, agency, regulatory body, or other

authority of the United States, a State, or a

political subdivision thereof, may move to

suppress the contents of any intercepted wire or

oral communication, or evidence derived

therefrom, on the grounds that —

(i) the communication was unlawfully

intercepted;

(ii) the order of authorization or

approval under which it was intercepted is

insufficient on its face; or

(iii) the interception was not made in

conformity with the order of authorization

or approval.

Finally, § 3504 states:

(a) In any trial, hearing, or other proceeding in

or before any court, grand jury, department,

officer, agency, regulatory body, or other

authority of the United States—

(1) upon a claim by a party aggrieved

that evidence is inadmissible because it is

the primary product of an unlawful act or

because it was obtained by the exploitation

of an unlawful act, the opponent of the

claim shall affirm or deny the occurrence

of the alleged unlawful act... .-

Appellants contend that these sections authorized their

motions to suppress. required the government to affirm

or deny the legality of the wire interceptions, and

prohibited the government from relying on the evidence

gathered as a result of the interceptions until these

requirements were satisfied. Accordingly, they contend

that their indictments must be quashed because the

government presented this evidence to the grand jury

before it replied to their challenge to the interceptions. 18

U.S.C. § 2515 provides that no intercepted wire

communication or evidence derived therefrom may be

“received into evidence ... in any ... proceeding or

before any ... grand jury ... if the disclosure of that

information would be in violation of this chapter."

We hold that the government was not required to

comply with § 2518 (9) or to affirm or deny the illegality

of the interception before it could introduce the

intercepted communications before the grand jury, nor

were appellants entitled to prevent the presentation of

this evidence to the grand jury even if the interception

were unlawful.

The legislative history of § 2518 (9) demonstrates that

Congress did not intend the ten-day disclosure

requirement to apply to grand jury proceedings. The

Senate Report section-by-section analysis provides that:

‘*Proceeding’’ is intended to include all

adversary type hearings. It would include a trial

itself, a probation revocation proceeding, or a

hearing on a motion for reduction of sentence. /f

would not include a grand jury hearing. Compare

Blue v. United States, 86 S. Ct. 1416, 384 U.S.

251 (1966).

U.S. Code Cong. & Admin. News 2195 (1968).

The Congressional history of § 2518 (10)(a) dem-

onstrates that this section was not intended to permit a

defendant to challenge the evidence presented to the

grand jury:

Paragraph (10)(a) .... must be read in

connection with sections 2515 and 2517, discussed

above, which it limits. It provides the remedy for

the right created by section 2515. Because no

person is a party as such to a grand jury

proceeding the provision does not envision the

making of a motion to suppress in the context of

such a proceeding itself. Normally, there is no

limitation on the character of evidence that may

be presented to a grand jury, which is enforcible

by an individual. (Blue v. United States, 86 S.Ct.

1416, 384 U.S. 251 [1966].) There is no intent to

change this general rule. \t is the intent of the

provision only that when a motion to suppress is

granted in another context, its scope may include

use in a future grand jury proceeding.

U.S. Code Cong. & Admin. News 2195 (1968). [Emphasis

added. }

The Supreme Court's opinion in Gelbard v. United

States, 408 U.S. 41 (1972) analyzes §§ 2518 (10) (a) and

3504, and supports the conclusion that they do not

authorize a defendant to suppress evidence before the

grand jury on the grounds that it was intercepted illegally.

Nor is the government required to affirm or deny the

legality of the interception. In Gelbard the Court held

that a grand jury witness could refuse to answer

questions that were based upon illegal interceptions, and

could defend against a contempt charge under 18 U.S.C.

§ 2515. Section 2515 bars the use as evidence before

Official bodies of the contents and the fruits of iliegal

interceptions. The Court held that in the context of

§ 3504, which states the procedures by which aggrieved

persons may challenge illegally procured evidence, a

“party aggrieved”’

can only be a witness, for there is no other

‘“party’’ to a grand jury proceeding. Moreover, a

“claim ... that evidence is inadmissible’’ can

only be a claim that the witness’ potential

testimony is inadmissible.

408 U.S. 54. [Emphasis added. ]

The Supreme Court drew a careful distinction between a

witness before the grand jury, who it held may refuse to

answer questions based upon illegal interceptions, and a

defendant or potential defendant. The Court held that:

The congressional concern with the applicability

of § 2518 (10) (a) in grand jury proceedings, so far

as it is discernible from the Senate report, was

apparently that defendants and _ potential

defendants might be able to utilize suppression

motions to impede the issuance of indictments:

“Normally, there is no limitation on the character

of evidence that may be presented to a grand jury,

which is enforcible by an individual. [United

States v. Blue, 384 U.S. 251 (1966).] There is no

intent to change this general rule.’’ S. Rep. No.

1097, 90th Cong., 2d Sess., 106 (1968). The

“general rule,”’ as illustrated in Blue, is that a

defendant is not entitled to have his indictment

dismissed before trial simply because the

Government ‘‘acquire[d] incriminating evidence in

violation of the [law],"’ even if the “‘tainted

evidence was presented to the grand jury.’ 384

U.S., at 255 and n. 3; see Lawn v. United States,

355 U.S. 339 (1958); Costello v. United States,

350 U.S. 359 (1956). But that rule has nothing

whatever to do with the situation of a grand jury

witness who has refused to testify and attempts to

defend a subsequent charge of contempt.

408 U.S. 59-60.

Accordingly, we hold that appellants were not entitled

to contest the legality of the intercepted communications

before the communications were submitted to the grand

jury. Appellants contend, however, that they had a right

to contest the admissibility of wiretap evidence at the

scheduled preliminary hearing, and that the government

could not deprive them of this right by the sudden tactic

of obtaining an indictment.

Our court has repeatedly held that if ‘‘a grand jury

returns a true bill prior to the time a preliminary hearing

is held, the whole purpose and justification of the

preliminary hearing has been satisfied.’ United States v.

Mulligan, 520 F.2d 1327, 1329 (6th Cir. 1975). A

defendant has no right to have a preliminary hearing if a

grand jury indictment is returned. Although we have

recognized that a preliminary hearing may as a practical

matter provide a defendant with an irreplaceable

opportunity for discovery, a defendant has no absolute

right to these ancillary benefits. For example, in Mulligan

we held that defendants, who wanted to cross-examine a

key government witness prior to trial, suffered no

prejudice when their preliminary hearing was continued

to permit the government to obtain a grand jury

indictment in the interim. Accordingly, we hold that

appellants suffered no /egal prejudice when the

government proceeded by indictment, rather than by a

preliminary hearing at which appellants could have

contested the legality of the wire interceptions pursuant

to 18 U.S.C. §§ 2518 (10) (a) and 3504.

C. Improper Use of the Grand Jury.

Appellants also assert that the government improperly

used the grand jury to discover and preserve evidence to

be used at the trial of their already pending injitments.

They assert that both Burt and Nabors were called before

the grand jury to testify agains! appellants after

appellants’ indictment. The government concedes that it

is improper to use a grand jury solely to prepare a

pending indictment for trial. Beverly v. United States, 468

F.2d 732 (Sth Cir. 1972); 8 Moore's Federal Practice

16.04. But it contends that the record contains no

support for appellants’ claim that Burt and Nabors were

called only to prepare pending indictments for triai.

Additionally, the government urges that appellants have

not demonstrated that any prejudice resulted from the

alleged misconduct, and it contends that only Nabors and

Burt have standing to raise the issue.

A presumption of regularity attaches to a grand jury's

proceedings and appellants have the burden of

demonstrating that an irregularity occurred. Universal

Manufacturing Co. v. United States, 508 F.2d 684 (8th

Cir. 1975); Beverly v. United States, 468 F.2d 732 (Sth

Cir. 1972). Moreover, we agree with the observation

made by the First Circuit that:

grand jury proceedings cannot be policed in any

detail. It is a price we pay for grand jury

independence that sometimes people are indicted

on the basis of evidence tainted in part by

hearsay. Costello v. United States, 350 U.S. 359,

76 S.Ct. 406, 100 L.Ed. 397 (1956), or of illegally

obtained evidence, Lawn v. United States, 355

U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958). Nor

is a grand jury narrowly confined in its objectives,

Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50

L.Ed. 652 (1906), Blair v. United States, 250 U.S.

273, 39 S.Ct. 468, 63 L.Ed. 979 (1919).

United States v. Doe, 455 F.2d 1270, 1274 (ist Cir.

1972).° Accordingly. in United States v. George, 444

F.2d 310, 314 (6th Cir. 1971) we held that *‘[s]o long as it

is not the sole or dominant purpose of the grand jury to

discover facts relating to [a defendant's] pending

indictment, the Court may not interfere with the grand

jury’s investigation.”

Neither appellants nor the government have cited to us

any portion of the record in which appellants presented

this claim to the district court, and we have searched thc

voluminous record to no avail. However, assuming that

The court also recognized, however:

On the other hand, we are sensitive to the possibilities of

abuse of the grand jury process which are inherent in the

present situation. As Moore has observed. “‘The government

has at its disposal one of the most effective discovery

mechanisms yet devised — the grand jury. This body may

call witnesses under compulsory process and examine them

in secret under oath, unhampered by the rules of evidence or

an adversary counsel's cross-examination, or in the case of a

‘prospective defendant’ by Fifth Amendment immunity.

[citations omitted]."" 8 Moore's Federal Practice 16.08[1], at

16-100 (2d ed. 1970). 455 F.2d at 1275.

this issue is properly before us, we hold that appellants

have presented nothing beyond their own unproved

suspicions to prove that Burt and Nabors were

improperly summoned before the grand jury for the sole

or dominant purpose of preparing the pending indictments

for trial. Portions of the testimony at trial suggest that

after appellants were indicted, Burt and Nabors did

testify before the grand jury regarding some of the

matters at issue in appellants’ trial. However, appellants

have made no showing that Burt and Nabors were not

called in order to determine whether other persons not

yet indicted were also involved in the conspiracy under

investigation. The indictments charged that appellants

conspired with ‘divers other persons whose names are to

the Grand Jury unknown,”’ and the grand jury could

properly call witnesses in an attempt to identify these

persons. United States v. Beverly, supra.

D. Multiplicity.

Appellants allege that they were improperly indicted

and convicted on five separate acts of possession with

intent to distribute a controlled substance,‘ when the

* The counts charged:

Count 12 — 659.66 grams of cocaine hydrochloride, with a strength

of 15.8%.

Count 13 — 681.80 grams of heroin hydrochloride with a strength of

19.3%.

Count 14 — 45.30 grams of cocaine hydrochloride with a strength of

5.1%.

Count 15 — 14.66 grams of cocaine hydrochloride with a strength of

32.7%.

Count 16 — 2,589.93 grams of heroin hydrochloride with a strength

of 58.1%.

proofs showed that all the narcotics in question were

found at the Hubbell Street house, and that the

intercepted wire communications indicated that appellants

had just received a_ single shipment. Accordingly,

appellants contend that the fragmentation into multiple

counts of a single act of possession of narcotics violated

their right to due process.

Apparently appellants raise this contention for the first

time on appeal. The government contends that under

F.R. Crim.P. 12(b) (2) appellants’ failure to make the

claim that the indictment was multiplicitous by pretrial

motion constituted a waiver of this objection.

F.R.Crim.P. 12(b) (2) requires that *‘[djefenses and

objections based on defects ... in the indictment or

information’ ‘‘must be raised” prior to trial. (Emphasis

added.) However, F.R.Crim.P. 12(f) also provides that

the ‘‘[flailure by a party to raise defenses or objections or

to make requests which must be made prior to ae

shall constitute waiver thereof, but the court for cause

shown may grant relief from the waiver.” (Emphasis

added.)

Since it is not entirely clear from the general averments

in the indictments that the narcotics referred to in counts

12 through 16 were all seized from the Hubbell Street

house, there may have been good cause for appellants

failure to have raised this issue before the district court

until the government presented its case. However, since

appellants failed to present this objection to the district

court even after the close of the government's case, when

the factual basis of their objection under F.R. Crim. P.

12(f).

Appellants also argue that counts 6 and 10 and counts 7

and 11 are multiplicitous, because they charge both

distribution and possession with intent to distribute the

same quantities of drugs. They urge that possession with

intent to distribute is a lesser offense included within

distribution. Again, it appears that appellants did not

raise this contention before the trial court, and we hold.

accordingly, that it was waived F.R. Crim. P. 12(f).

Il. WAS THERE GOVERNMENT MISCONDUCT

THAT REQUIRES REVERSAL?

Appellants contend that shocking governmental

misconduct requires the reversal of their convictions.

They contend first that a sham defendant was indicted in

order to penetrate their defense. Second, they argue that

before their trial, the government improperly disclosed

critical information to the press. Third, they complain

that the government improperly intruded into the marital

relationship of appellant Blair and Ruth Ann Burt. to

induce her to testify against appellants. Finally, they

argue that the government improperly met with Burt and

Blair without any notice to Blair's attorney.

A. The Sham Defendant.

Appellants contend that the government's misconduct

in indicting Roosevelt Nabors as a “sham defendant’

requires the reversal of their convictions. They contend

that the sham nature of the indictment of Nabors, who

served as a government informer, is shown by the fact

that payments to him continued even after the

indictment. Further, he was called to testify before the

grand jury about the case in which he was charged after

he had been indicted, and defense counsel Milton Henry,

who had filed an appearance on behalf of Nabors as well

as most of the other defendants, was not notified.

Appellants argue that the sham indictment of Nabors

violated the fundamental fairness guaranteed by the due

process clause, and violated their right to counsel by

introducing a government agent into the defense.

Nabors testified that when he first began working with

the Bureau of Narcotics and Dangerous Drugs, (BNDD),

he was told that his cooperation would be communicated

to the court in connection with charges pending against

him for attempted murder and the unlawful driving away

of an automobile. He also stated that no other promises

had been made to him. He stated that while he was

working with the BNDD he was paid approximately

$1,500 for living expenses. He testified that he was

expected to help to set up arrangements so that

government special agents could make purchases directly

from members of the Jackson organization. He was not

authorized by them to make purchases on his own.

Nevertheless. he testified that without the knowledge or

authorization of the government, he sold $600 worth of

heroin that he had received from the Jackson

organization on consignment. He said that when he was

arrested, he was told that he was being prosecuted

because of this independent transaction.

Agent Garibotto testified that during a review of tape

recordings of the intercepted communications after the

December 15 arrests at Hubbell Street, government

agents discovered that, without government authority,

Nabors had called and arranged to pick up at least one

quantity of heroin, and that he had sold it. Garibotto

testified that Nabors was indicted in good faith for this

unauthorized part in the conspiracy. Although he had

been severed from the other defendants before trial,

Garibotto testified that the government retained the right

to try him separately, and that at the time of the trial of

the other defendants, no final decision had been made

whether he would be brought to trial or not. He said that

he planned to make no recommendations one way or the

other. He stated that he had authorized a payment to

Nabors after his testimony before the grand jury so that

Nabors could stay out of sight in a motel. He said that

after the indictment he had not used Nabors again as an

informant, but he believed that others in the BNDD

might have done so.

Although appellants claim that Nabors was indicted in

order to penetrate the defense and learn its tactics, they

have presented little evidence that Nabors was involved

in appellants’ common defense. Although Attorney

Milton Henry filed an appearance on behalf of Nabors as

he did for all the other defendants, the court’s records

demonstrate that counsel was also assigned for Nabors

on January 25, before he was called before the grand

jury. Moreover, on the government's motion, Nabors’

trial was severed from that of the other defendants on the

ground that the government expected to call him as a

witness. Nabors testified that when he was arrested, he

did not meet all of the other defendants, talk to them. or

know their names. He did recall that he spoke briefly to

only one of the appellants, Kilpatrick.

We do not think that the record shows any government

misconduct. Appellants have not sustained their burden

of showing that Nabors, who was severed for trial, and

for whom the district court appointed separate counsel

shortly after his arrest, actually intruded into the

attorney-client relationship between appellants and their

counsel.

B. Pretrial Publicity Resulting from Governmental

Disclosures.

Appellants make two contentions about pretrial

publicity. First, they coniend that the government

improperly disclosed to the press information gathered by

wire interceptions. Second, they contend that the volume

of pretrial publicity made it impossible foi them to

receive a fair trial.

1. Pretrial Disclosure of Intercepted Communications.

Appellants strenuously contended both in the district

court and in briefs and argument on appeal that the

government made improper pretrial disclosures of critical

information to the press. They urge that pretrial

vewspaper articles contained ‘‘detailed recitals of wire

interceptions, which could only have been furnished by

the government.’’ The newspaper article principally relied

upon to support this contention indicates on its face that

its source was a **26-page affidavit [by] an agent of the

Federal Bureau of Narcotics and Dangerous Drugs.”

Moreover, in their amended motion to dismiss for

prosecutorial misconduct, appellants specifically argued

that it was improper for the government to use

information from wire interceptions in an affidavit for a

search warrant, and “then place that affidavit in the

custody of a court clerk, without first making provision

for its protection from disclosure as required by the plain

mandate of the Federal Law.”

Thus we understand the gist of appellants’ argument to

be that the government had a duty to prevent

unauthorized disclosures of their intercepted

communications. and that the government's failure to

prevent disclosure of the information recited in the

affidavit requires the dismissal of the charges against

them. Appellants rely upon 18 U.S.C. § 2517, which lists

situations in which “‘[a]ny investigative or law

enforcement officer who, by any means authorized by

this chapter, has obtained knowledge of the contents of

any wire or oral communication’’ may disclose or use

the information. Subsection (1) permits disclosure to

another investigative or law enforcement officer to the

extent necessary for the performance of both officers’

official duties. Subsection (2) provides generally that

intercepted information and communications may be

disclosed ‘to the extent . . . appropriate’’ to the officer's

official duties. And subsection (3) permits disclosure

where the officer is giving testimony under oath in a state

or federal criminal or grand jury proceeding.®

Appellants contend that any disclosure not explicitly

authorized by § 2517 is illegal, and they argue that § 2517

did not authorize either investigative or court personnel

to disclose the contents of their intercepted com-

munications to the press. Accordingly, they urge that the

disclosure to the newspapers was illegal and that the only

appropriate remedy is the dismissal of the indictments.

The government argues that subsection (2) authorized

government agents to disclose the contents of intercepted

communications in an affidavit for a search warrant. Then

F.R. Crim. P. 41 (g) required the magistrate before whom

the warrant was returned to file the warrant “‘and all

other papers in connection therewith’’ with the clerk of

the district court, where they became a matter of public

record. The government argues that dismissal of the

charges against appellants is not warranted merely

because of the government's failure to take extraordinary

measures to seek restriction of access to the court files,

Subsection (5) provides:

Such contents and any evidence derived therefrom may be

used under subsection (3) of this section when authorized or

approved by a judge of competent jurisdiction where such

judge finds a subsequent application that the contents were

otherwise intercepted in accordance with the provisions of

this chapter. Such application shall be made as soon as

practicable.

especially when appellants made no request for such a

restriction of access. The government notes that the

wiretap statutes provide three remedies — suppression®,

civil damages.’ and criminal penalties.* The remedies for

unlawful disclosure of intercepted communications are

civil damages and criminal penalties. The detailed

provisions of the Act contain no provision for the

dismissal of pending criminal charges.

We agree with the government that appellants have

failed to demonstrate any circumstances that warrant

dismissal of the charges against them. However, in view

of the congressional intention to protect individual

privacy, it would be better practice for the government to

request, as a matter of course, that the district court

restrict access to documents filed with the court that

contain intercepted communications.

2. Pretrial Publicity and the Right to a Fair Trial.

Appellants also contend that the pretrial publicity about

their cases was so pervasive and inflammatory that they

could not receive a fair trial. However, appellants were

tried not by a jury, but by experienced district judges. In

these circumstances appellants must show that the

pretrial publicity resulted in some actual prejudice, and

they have failed to do so. Moreover, if appellants

believed that one or both of the district judges could not

try them impartially, the remedy was to seek

disqualification. 28 U.S.C. § 144.

* 180U.S.C. § 2515.

18 U.S.C. § 2520.

* 18 U.S.C. § 2511.

C. Interference with George Blair’s Marriage to

Ruth Ann Burt.

Appellant George Blair contends that in violation of the

public policy that protects marriage, government agents

intentionally broke up his marriage with Ruth Ann Burt

in order to procure her testimony as a government

witness. He contends that the convictions of all the

appellants rest in large part on Burt's tainted testimony,

and should be reversed.

Blair first presented this objection to the district court

in a post-trial affidavit in support of his motion for a new

trial. Blair did not testify at trial, nor did he present any

witnesses who testified that the government ‘‘alienated”’

his marriage to Burt. The district court held that:

there was no credible evidence indicating any

improper conduct on the part of the government;

rather the credible evidence, including testimony

of defendant's former wife, Ruth Ann Burt,

indicated the government did not act improperly.

We hold that the record adequately supports the trial

court’s finding, which is not clearly erroneous.

D. The Government’s Meeting with Blair and

Burt.

Both before the district court and on appeal, appellants

argue that the government improperly met with appellant

George Blair and his then wife Ruth Ann Burt without

the presence of. or even notification to, Blair's attorney.

Appellants urge that the meeting in the absence of

counsel was fundamentally unfair. Moreover, since this

was a complex conspiracy case, and Blair's statements

could be used to incriminate other defendants found to be

co-conspirators, appellants argue that the meeting

violated the right to counsel of all of the appellants. In

support of their contentions appellants cite State v.

Britton, 203 S.E.2d 462 (W. Va. 1974) as authority for

reversing a conviction when the prosecution met with a

defendant in the absence of his attorney. The contend

that the circumstances of the secret meeting with Blair

and Burt “‘irremediably tainted’’ her testimony.

According to Burt's testimony,” about five months

after Blair's arrest. when she and Blair were not living

together, Agent Garibotto communicated with her about

testifying before the grand jury, and she said that she

would think about it. Later she called Garibotto and

arranged to meet him, telling him that she would bring

Blair. When they met, she said that she wanted to

negotiate immunity for Blair, and Garibotto replied that

he would have to consult the government attorney

handling the case. The critical meeting was held at the

Ramada Inn. Blair, Burt, Garibotto, and government

attorney Wampler were all present. Burt stated that no

one took notes, and she did not believe that the

conversation was recorded. She did not recall whether

anyone gave Blair the Miranda warnings. In Blair’s

presence she told the government agents a good deal

about her knowledge of the narcotics organization and

Blair's activities. When she was asked if Blair took part

in the conversation, she said, *‘in some areas, yes.”’ She

stated that he answered some questions. Burt said that

she then asked if Blair could be given immunity in feturn

for her testimony, but that they were told that Blair

would not be given immunity unless he testified himself.

’

Blair did not testify at Treutrial.

At the time of the meeting, Blair and virtually all of

those indicted were being represented by one attorney,

Milton Henry. The government did not inform Henry of

the meeting, nor was Blair asked to contact Henry

himself.

The district court conducted an inquiry into this matter

at a post-trial hearing. Government attorney Wampler

testified that he had believed that it was Blair’s wish that

neither his co-defendants nor their common counsel learn

of his efforts to obtain immunity in return for Burt's

testimony. Moreover, he stated that Blair said little at the

meeting, and that the government “didn’t rely on

anything that was said at the meeting and that’s very

true.”

The trial court held that the government “‘offered no

evidence at trial resulting from any statements made by

Miss Burt or defendant Blair at the meeting

[C}learly the testimony of Miss Burt at trial was in no

way the fruit of the Ramada Inn discussion.’ The court

recognized the dangers of meeting with a defendant

without his coursel, especially when co-defendants are

represented by the same counsel, but it held that in this

case the contact with Blair was not “‘improper.’’ The

meeting was sought by Burt and not by the government,

and it was arranged with Burt, not Blair, who made only

**gratuitous’’ comments that were not used at trial.

We agree with the district court. We are satisfied with

the district court’s careful inquiry to determine whether

any evidence derived from the meeting was used by the

government, and with its conclusion that no evidence

presented at trial was gained from the meeting.

Accordingly, any error committed by the government was

harmless whether measured by the ordinary or by the

constitutional standard.

Of course, as a general matter, an attorney should not

communicate directly with a party whom he knows to be

represented by an attorney without the consent of the

lawyer. See American Bar Association Code of

Professional Responsibility, Canon 7, D.R. 7-104(a)(1).

Here, however, the meeting was arranged primarily

between government agents and Burt, who was not under

indictment. The government did not seek the meeting.

Arrington v. Maxwell, 409 F.2d 849 (6th Cir. 1969).

Government attorney Wampler testified that he believed

that Blair particularly wanted to keep his attempts to

secure immunity from the other defendants and the

counsel who represented them all jointly. Cf. Arrington,

supra. However, the. government did not take the

precautions that were possible. It did not encourage or

even suggest to Blair that he should either notify Henry

or arrange for the appointment of independent counsel

who could be present. Although we disapprove of this

practice, it bears little resemblance to the outrageous

prosecutorial conduct which required reversal in cases

cited by appellants. E.g., United States v. Rispo, 460 F.

2d 965 (3rd Cir. 1972).

III. DID THE DISTRICT COURT ERR IN AD-

MITTING CHALLENGED EVIDENCE?

Appellants also seek to overturn their convictions on

the basis of several rulings by the district court admitting

challenged evidence. They contend that the wiretap

evidence that figured so prominently in the prosecution's

case was inadmissible, first because the government's

application was not properly authorized, and also because

the application did not meet several statutory

requirements. Appellants seek the suppression of the

evidence seized at the Hubbell Street house, and from

appellants Jones, Hurt, and Woods at the time of their

arrests, on Fourth Amendment grounds. Appellants

contend that voice exemplars that they were required to

give were inadmissible on both Fourt and Fifth

Amendment grounds. And finally, they contend that the

testimony of Agent Garibotto identifying the voices on

the tapes was inadmissible because it was the fruit of

informal ‘‘aural showups’’ which violated appellants’

Fourth, Fifth, and Sixth Amendment rights.

A. Wiretap Evidence.

proof in the government's case, and appellants contend

that the district court erred in refusing to suppress the

evidence seized by the interception. They challenge the

validity of the authorization for the government's

application for a wiretap order.'® They also argue that the

application did not demonstrate that normal investigative

procedures would have been inadequate, nor did it afford

the district judge probable cause to believe that the

telephone to be tapped was being used or was about to

be used for one of the offenses specificed in the wiretap

Statute.

1. The Authorization for the Application for the

Wiretap Order.

Appellants argue that the wiretap evidence should have

been suppressed because the government's application

'* Appellants’ challenge applies both to the original application and

to the application for the extension. Our discussion applies to both as

well.

for the interception order lacked the authorization

required by the statute. 18 U.S.C. § 2516(1) provides

that:

The Attorney General, or any Assistant Attorney

General specially designated by the Attorney

General, may authorize an application to a

Federal judge of competent jurisdiction for . . . an

order authorizing or approving the interception of

wire or oral communications. . . .

In this case, the written application and the application

for an extension stated that Attorney General Mitchell

had specially designated Acting Assistant Attorney

General Henry Peterson to authorize the application to

the federal court. and Peterson's letter was attached.

After their indictment, appellants moved to suppress

the wiretap evidence on the ground that an acting

assistant attorney general had no authority to authorize

wiretaps pursuant to § 2516. Appellants argue that the

applications were insufficient on their face. Section 2518

(10)ii) provides that the contents of intercepted

communications may be suppressed on the ground that

“the order of authorization or approval under which it

was intercepted is insufficient on its face.”

In United States v. Vigi, 51S F.2d 290 (6th Cir.), cert.

denied, 432 U.S. 912 (1975), our court considered this

argument and held that it was unnecessary to determine

whether an acting assistant attorney general who signed

the letter authorizing the application could give effective

approval under § 2516, because the Attorney General

himself had actually approved the application. Accord,

United States v. Swann, 526 F.2d 147 (9th Cir. 1975);

United States v. Acon, 513 F.2d 513 (3d Cir. 1975);

United States v. Robertson, 504 F.2d 289 (Sth Cir. 1974),

cert. denied, 421 U.S. 913 (1975). The same situation is

present in this case. The district court found that

Peterson had submitted the papers supporting the request

for authorization to Attorney General Mitchell, and that

Mitchell himself approved the application. The

government submitted the affidavit of Sol Lindenbaum

who stated that the Attorney General had approved the

request for ‘authorization to apply for wiretap orders.

Attached to this affidavit were copies of a memorandum

from Mitchell to Peterson. In his deposition Lindenbaum

identified the handwritten initials on the memos as

Mitchell's. Judge Kennedy, who issued the wiretap

orders, was told that Mitchell had approved the

application. Appellants also contend, however, that

Attorney General Mitchell's internal memoranda were

ineffective because 28 C.F.R. § 0.180 required the

designation of formal orders. Appellants contend that this

section is applicable by its own terms to all documents

relating to “the assignment ... or delegations of

authority, functions, or duties by the Attorney General.”

These documents are to be designated as formal

‘“‘orders’’ to be issued by the Attorney General in a

numbered series. This section is not applicable to

delegations of the special authority over applications for

interception orders, or to the Attorney General's personal

approval of an application for an interception order.

Other courts have found verbal approval by the Attorney

General to be sufficient. United States v. Falcone, 505

F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955 (1975).

Appellants also contend that the affidavit in support of

the application for the wiretap failed to make ihe

averments required by 18 U.S.C. § 2518 (1) (c). Section

2518 (1) (c) requires that an application for an electronic

surveillance order contain a ‘complete statement as to

whether or not other investigative procedures have been

tried and failed or why they appear to be unlikely to

succeed if tried or to be too dangerous... ."° We hold

that the affidavit of Agent Garibotto was a satisfactory

statement of the investigative steps taken to date, and

that it affords a sufficient reason why normal

investigative procedures “‘appear to be unlikely to

succeed.’*''

'' Agent Garibotto’s affidavit stated in part:

19. Normal investigative procedures have not succeeded

in establishing the full extent of the activities of Eddie

Jackson and George Blair relating to them purchase or sale of

controlled substances. nor has Eddie Jackson's and George

Blaw’s source of supply been identified or established. Based

on my knowledge and experience as a Special Agent of the

Federal Bureau of Narcotics and Dangerous Drugs. and the

experience of Supervisory Agents and other Special Agents

of the Bureau of Narcotics and Dangerous Drugs. normal

investigative procedures reasonably appear to be unlikely to

succed in establishing the identities of Eddie Jackson's and

George Blair's co-conspirators, aiders and abettors. their

places of operation for their transportation of controlled

substances to the Detroit. Michigan area and for then

manufacture and distribution of controlled substances within

the Detroit. Michigan area. and their times, places. schemes

and manners for selling. buying. possessing. concealing.

delivering. distributing. or paying for controlled substances.

My experience and the experience of other Federal Agents

has shown that narcotics (controlled substance) raids and

searches have not. in the past. resulted in obtaining evidence

of who the raided violator’s co-conspirators. aiders and

abettors were. and where thei places of operation were to

transport controlled substances into an area or manufacture

or distribute controlled substances about an area. Experience

has shown that controlled substance manufacturers and

distributors do not keep records of their controlled substance

actions. It is the experienced belief of Special Agents of

Region VI that additional surveillances of Jackson's and

(continued on following page)

However, appellants argue that the averments were

false and misleading because a government informant,

Roosevelt Nabors, had been asked to become a

lieutenant in the organization, but had refused on the

advice of government agents. This opportunity for

infiltration, they argue, would have permitted the

government to investigate the organization by normal

procedures. The affidavit did not discuss the invitation

for Nabors to become a lieutenant. The district judge

rejected this argument because, even as a lieutenant,

Nabors would have had difficulty in learning all the

complex details of the widespread organization, and its

aiders and abettors. Moreover, in view of Nabors’

lengthy prior criminal record, the government would have

had great difficulty in establishing criminal liability by his

testimony alone.

(continued from prededing page)

Blair's and bs operation. if continued on a regular basis. will

jeopardize the outcome of the investigation and will do little

to reveal the manufacture and distribution network. Jackson

and Blaw are extremely surveillance conscious and have two

men on duty outside 19315 Hubbell to spot surveillance units.

Special Agent Smith has been unable to move any further

vertically of horizontally in the Jackson/Blair operation

because of Jackson's and Blair's extreme caution. S-1 does

not personally know anymore facts concerning the

Jackson Blair operation.

20. For the reasons set out hereinabove. all normal

avenues of investigation are closed. and it is my belief that

the only reasonable way to develop the necessary evidence to

discovei the other persons involved in the Jackson/Blair

manufacture and distribution of controlled substances

network. and their locations and schemes of operation. is to

iMtercept wire Communications from the telephone utilized by

Eddie Jackson and George Blair located in the premises at

19315 Hubbell. Detroit. Michigan. and carrying telephone

number 313-864-4854. which has been. is being. and is about

to be used by Eddie Jackson. George Blain and others yet

unknown. in connection with the commission of the

above-described offense.

We agree with the district court’s analysis. The

availability of an informant who was offered and declined

an opportunity to penetrate deeper into a criminal

organization under investigation did not render

insufficient Garibotto’s statements of the need for

wiretaps to discover and prove the liability of the

conspirators. See United States v. Pacheco, 489 F.2d

554, 564-565, cert. denied, 421 U.S. 909 (1975).

Appellants’ final contention regarding the wire

interception is that the affidavit submitted with the

application for the wiretap order did not meet the

requirement of 18 U.S.C. §2518(3) (d) that it afford the

district court “‘probable cause for the belief that the

facilities from which, or the place where, the wire or oral

communications are to be intercepted are being used, or

are about to be used. in connection with the commission

of [an offense specified] ....°° Appellants contend that

the application failed to establish probable cause to

believe that the telephone in the house on Hubbell Street

was being. or was about to be. used to facilitate the

distribution of narcotics.

The affidavit recited that on two separate occasions, on

October 22 and November 4, a government informant,

who consented to having government agents monitor his

conversation. called the number registered to the Hubbell

Street address and set up a sale at the Hubbell Street

house. and the purchased substance was tested and found

to be heroin. During the exchange, the agent observed

the telephone ring a number of times. He saw appellants

Blair and Brown answer the calls. Additionally, Garibotto

averred that based upon his experience in narcotics

investigations, a telephone was regularly used to

negotiate the time, place, and manner of *‘selling, buying.

possessing, concealing, delivering, distributing, or paying

for controlled substances.”

On review, we must view the affidavit in a common

sense fashion, and we think that it afforded probable

cause to believe that the telephone at the Hubbell Street

address was being used to make the arrangements for a

series of narcotics transactions. This is sufficient to

satisfy the requirement of § 2518(3) (d).

2. The Arrests of Appellants Jones, Hurt, and Woods.

We next consider the legality of the arrests of

appellants Jones, Hurt, and Woods as they left Hubbell

Street on the night of December 15. Appellants argue that

the government lacked probable cause to make these

arrests, and that the evidence seized at the time of the

arrests must be suppressed. Earlier in the evening of the

night of the arrests, the agents monitoring the Hubbel

Street telephone tap overheard conversations indicating

that an expected shipment of narcotics had arrived.

Accordingly, a large number of government agents took

up surveillance posts near the Hubbell Street house and

arrested appellants as they left the structure.

The government intercepted a call from Joe Weaver to

appellant Jones about 9 p.m. Weaver told Jones that

“Courtney [Brown] wants to see you.’’ Garibotto was

informed of this call, and he instructed Agent Smelter

that Jones was a close associate of Jackson, and that he

should be arrested as he left Hubbell Street.

Agent Dockery testified that he actually arrested Jones.

There was no evidence that Dockery knew that Garibotto

had identified Jones as a close associate of Jackson's who

should be arrested. Dockery testified that when he

arrested Jones, he knew that the wire interception

indicated that a large shipment of narcotics was

concealed at 19315 Hubbell Street, that Weaver had

called Jones and told him that Courtney wanted to see

him. and that Jones was identified by another agent when

he arrived at Hubbell Street. Dockery testified that based

on their knowledge of the large quantity of narcotics

hidden on the premises, he and the other agents had

conferred and determined that anyone seen entering and

then leaving 19315 Hubbell would be stopped and

searched “‘on the probable cause that they would be

carrying narcotics." He observed Jones’ car pull up to

the house. and saw its two passengers enter 19315

Hubbell. They departed about five minutes later.

Dockery followed them for a short distance, then arrested

them. A search revealed that Jones had concealed four

cellophane bags containing about one pound of heroin

each inside his shirt at the waistband. The evidence of

the 1,924.5 grams of heroin was the basis for counts 6

and 10. distribution and possession without intent to

distribute heroin.

Agents also intercepted a call from Blair to appellant

Hurt on December 15. Blair stated that the heroin was on

hand. Hurt wanted a kilogram, and he was told that he

would have to pay cash. Hurt asked the price, and Blair

stated that he would call him back. Garibotto was

informed of the call. and he stated that Hurt was a

substantial customer. and if he came he should be

arrested as he left.

Hurt was arrested by Agent Cigich, who testified that

“supervisory agents”’ told him to maintain surveillance at

Hubbell Street. and

should any individual that had arrived at that

address get back into their [sic] vehicles and

depart. to apprehend and place under arrest the

individual.

Hurt arrived and entered 19315 Hubbell. When he

departed, Agent Cigich followed and arrested him some

distance away. Cigich testified that he found a small

packet of white powder “‘inside the car, lying on the floor

next to the driver's front seat."" The powder was tested

and found to be .268 grams of heroin. Apparently Hurt

was the driver and only person in the car at the time of

the arrest. The heroin was offered into evidence in

support of appellants’ convictions on counts 7 and I1,

possession and possession with intent to distribute .268

grams of heroin.

There was testimony that agents observed Woods

arrive at 19315 Hubbell at about 9:40, and leave a few

minutes later. He was arrested by Agent Goldenbaum.

Goldenbaum testified that he had been informed by

agents monitoring the wiretaps that a narcotics shipment

had arrived at Hubbell Street and was being rapidly

distributed. He was told to get into a radio car and take

up a surveillance position. He learned that at about 9:30

two persons had been arrested leaving the premises, and

were found to have suspected narcotics in their

possession. At about 9:40, he was informed by radio that

a 1969 Chrysler was parked in front of the Hubbell Street

house. and he was told to follow it when it left and to

arrest appellant Woods. A package containing 37.66

grams of cocaine and 137.5 grams of heroin was found in

the pocket of his jacket. Additionally agents seized $4.809

in cash and a pistol. This evidence was the basis of

counts 8 and 9 charging distributing the heroin and

cocaine, and supported the conspiracy charge.

The district court upheld each of these arrests. The

court held that it was reasonable for the arresting officers

to assume that the Jones who was identified arriving at

Hubbell Street was the Jones who had called earlier and

whom Garibotto had ordered arrested. The court held

that although no one actually identified Hurt prior to his

arrest. “the officers had enough facts to determine that

the man they arrested was Leo Hurt, Jr., and probably

he was violating federal narcotics statutes."’ Although

there was no intercepted telephone call to Woods. the

district court held that the agents had probable cause

because they knew that the Hubbell Street house was

being used as a distribution site for narcotics on the night

of December 15. The court reasoned that it was

extremely unlikely that a person would come to the

distribution center on that night except for the purpose of

illegal narcotics trafficking. Moreover, the agents knew

that it was common practice in the narcotics trade to

dispense a shipment quickly. Accordingly, when they saw

Woods arrive and depart after only a few minutes — just

as Jones and Hurt had done a few minutes earlier — they

had probable cause to believe that Woods, too, would

have narcotics in his possession when he left.

Neither Garibotto’s knowledge about Jones and Hurt

nor his orders for their arrest can be relied upon to

provide probable cause for their arrests, because there

was no evidence that any of his comments had been

communicated to the agents on ihe scene who actually

made or ordered their arrests.

The government contends that the information known

to a superior officer may be imputed to the arresting

officer. citing United States v. Trabucco, 424 F.2d 1311,

1315 (Sth Cir. 1970). cert. denied, 399 U.S. 918 (1970),

and that the collective knowledge of agents working as a

team is to be considered together in determining probable

cause. E.g., United States v. Caniesco, 470 F.2d 1224,

1230 n. 7 (2d Cir. 1972); United States v. Stratton, 453

F.2d 36 (8th Cir. 1972), cert. denied, 405 U.S. 1069

(1972). When a superior officer orders another officer to

make an arrest, it is proper to consider the superior’s

knowledge in determining whether there was probable

cause. Likewise, when a group of agents in close

communication with one another determines that it is

proper to arrest an individual, the knowledge of the group

that made the decision may be considered in determining

probable cause, not just the knowledge of the individual

officer who physically effected the arrest. But here, in

contrast, because there was no evidence that Garibotto's

order to arrest either Jones or Hurt was the basis of their

arrests, his knowledge cannot be considered in

determining probable cause. On the other hand, we do

mutally impute the knowledge of all the agents working

together on the scene and in communication with each

other. Therefore it was proper to consider not only the

facts known to Agent Goldenbaum when he arrested

Woods, but also the information known to the officers

who saw Woods visit 19315 Hubbell and ordered

Goldenbaum to follow and arrest him.

When Dockery arrested Jones, he knew that Jones had

received a call from the Hubbell Street telephone that

evening, that narcotics were believed to be concealed on

the premises, and that the person he saw enter and leave

the premises was known to another agent on the scene as

Alphonzo Jones. Dockery testified that he had conferred

with the other agents on the scene and determined that

anyone who visited 19315 Hubbell Street was likely to be

carrying narcotics when he left. The district court's

discussion of Woods’ arresi indicates that it determined

that the agents on the scene knew that 19315 was being

used as a narcotics distribution center that evening, and

we assume that Dockery learned as much from his

conference with the other agents.

These facts are sufficient to afford probable cause to

believe that Jones had been trafficking in heroin. Of

course if the government had offered evidence that the

agents on the scene were aware of Jones’ close

association with Jackson at the time of the arrest, this

additional evidence would have strengthened the probable

cause. Mere presence at a place where the government

believes illegal drugs will be distributed will not provide

probable cause for an arrest on narcotics charges. See

Sibron v. New York, 392 U.S. 40 (1968). But here we

think that the agent who made the arrest did have reason

to believe that it was more likely than not that Jones was

in possession of narcotics when he left 19315 Hubbell.

19315 was a story-and-one-half bungalow, and agents

knew that it was used as a headquarters and distribution

site for narcotics. They also knew that a large shipment

of narcotics had arrived. Since Dockery had a conference

with the other agents, and knew of the call to Jones, we

think that it is legitimate to assume that he knew that the

wiretap indicated that the shipment was to be distributed

to callers that evening. In this circumstance, as the

district court reasoned in connection with Woods, it was

more likely than not that a visitor on the night of

December 15 was there to pick up narcotics, especially

when he had been called earlier that night from the

Hubbell Street address. Accordingly. the arrest was

lawful and the evidence seized from Jones was properly

admitted.

In the case of the appellant Hurt, the same reasoning

applies. Agent Cigich testified that he made the arrest

because of a general order by his supervisors to arrest

anyone leaving 19315 Hubbell that evening. Although the

government did not prove that the call from Blair to Hurt

negotiating the sale of a kilogram had been communicated

to Cigich or to the other agents on the scene, we assume

that the supervisory agents who gave these orders knew

of the anticipated distribution from the Hubbell Street

house that evening. As in the case of appellant Jones,

there was probable cause to arrest Hurt immediately after

his brief visit to the house. The totality of the

circumstances suggested no reason for his presence other

than to engage in narcotics traffic.

In the case of appellant Woods, moreover, the agents

had more than simply the expectation that 19315 Hubbell

was to serve as a distribution site that evening. They also

knew that two other persons who had arrived shortly

before Woods had been arrested and were found to have

suspected narcotics in their possession. Additionally, as

the district court noted, the agents knew that once a

narcotics shipment arrives, it is distributed very quickly.

In these circumstances, we agree with the district court

that the facts known to the officers who ordered the

arrest of Woods, and of which they had reasonably

trustworthy information, ** ‘were sufficient to warrant a

prudent man in the belief that [Woods] had committed or

was committing an offense.’ '** Adams v. Williams, 407

U.S. 143, 148 (1972), quoting Beck v. Ohio, 379 U.S. 89,

91 (1964).

Accordingly, we hold that the evidence seized at the

arrests of appellants Hurt, Jones, and Woods was legally

seized, and was admissible to prove their guilt. Since we

find that there was probable cause for the arrest of Cara

Woods, the evidence seized at the time of the arrest was

admissible, and we have no occasion to consider whether

the statements he later made were independent of his

arrest.

B. The Evidence Seized from the Hubbell Street

Premises.

A large quantity of narcotics was seized from the house

on Hubbell Street on December 15, shortly after the

arrest of appellants Jackson, Brown, Blair, and Joseph

and Reginald Weaver. Appellants contend that these

arrests were purposely delayed until appellants were

inside the Hubbell Street house, and that they were used

as a pretext for making a search of the premises without

a warrant.

The arrests were made at approximately 10 p.m. on

December 15. According to the testimony at the

suppression hearing, about 6 p.m. that evening.

government agents who were monitoring the Hubbell

Street wiretaps informed Agent Garibotto that several

calls suggested that a long awaited shipment of narcotics

had arrived. Garibotto testified that he and government

attorneys immediately began to prepare affidavits in

support of a search warrant for Hubbell Street. Since

these calls also indicated to Garibotto that buyers had

arranged to come to Hubbell Street, he ordered the

agents in the Hubbell Street vicinity to be alerted for the

buyers’ arrival. At approximately 9:45 Garibotto, who

was on the way to the home of a district judge to present

the affidavits, was notified of the arrests of Jones, Hurt,

and Woods as they left Hubbell Street. He was also told

that each of them was found to be in possession of

narcotics when arrested. At that time Garibotto ordered

the agents on the scene to arrest Jackson and the others

found in the Hubbell Street house. At approximately 10

p.m. at the home of the district judge, when he was

notified that the arrests had been made, and that

suspected narcotics had been found in plain view, he

added this information to the affidavit. The district judge

issued a search warrant for the house on Hubbell Street,

and a full search was made pursuant thereto. A large

quantity of narcotics was found and was later introduced

into evidence at appellants’ trial.

Appellants contend that Garibotto purposely ordered

the arrests to be made at the Hubbell Street house as a

subterfuge to permit a search of the premises without a

warrant. Garibotto denied that he delayed the arrests for

that reason. Both appellants and the government rely

upon Garibotto’s statement of his purpose for ordering

the arrests at that time. He testified:

Well, the circumstances at the Hubbell address

mandated that the arrest be made at that time.

Our forces were diffused at the time. We knew

there were a great number of customers heading

to the Hubbell address to purchase heroin and

cocaine. We made three arrests, there were three

seizures. We knew that our forces were spread

around the immediate vicinity. We were just

concerned that the evidence that was on hand at

Hubbell would be distributed to the streets and

would not be seized.

The district court upheld the seizure of the challenged

evidence on two grounds. First, it held that

[djespite substantial testimony about the arrests

themselves at Hubbell, no persuasive facts were

presented to support defendants’ allegation that

Jackson could have been arrested prior to his

entering the house on Hubbell.

Additionally the court held that even assuming that the

agents had improperly delayed the arrests to gain entry

into the house without a warrant, the search that was

later conducted pursuant to a warrant was not tainted.

The court reasoned that the district judge, who received

lengthy affidavits prepared before the arrests (to which

only one handwritten paragraph had been added after the

arrests), had before her sufficient unchallenged facts to

afford probable cause for a search. The improper addition

could therefore be ignored.

Our

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