# Petition — Hurt v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1062

## Text

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,

v

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

ee

iV

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

bebeus 3,7,8,9
+ codns 2,21
sabes 6.11
wery 24,25

bei skeuee 24

PL PO “tee Hrs

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

LEO HURT,
Petitioner,

v.
UNITED STATES OF AMERICA,
Respondent.

T

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

A.
—

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.

3

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,

4

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.

5

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
I.

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.

6

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).

5

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.”

8

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

a

9

(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

10

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.

er

ledied aera Se

ee ee eee

IE ST IE 10 nee

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.

12

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

13

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)

14

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.

15

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.

16

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.

17

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.

18

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

19

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.

20

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

21

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.

tv
tv

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?

(c) Can he be acquitted for conspiracy
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

23

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

24

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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25

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]

26

(c) his behavior is expressly declared
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.

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27

(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

(c) he is a co-conspirator and his
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.

28
4

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

29

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.

30
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

31

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.

32

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 |

33

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

34

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

35

-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).

36

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

37

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

38

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

39

‘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.

40

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

41

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”’

42

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.

43

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

44

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.

45

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

46

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.

47

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

48

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.

49

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,

50

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.

51

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

52

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

53

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

54

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.

>

55

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.

56

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)

57

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.

58

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.

59

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

60

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

61

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

62

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

63

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

td

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

65

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

66

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.

67

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%.

68

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

69

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.

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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

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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.

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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 o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_0967%3A1. Public record. Not legal advice.