Petition — Wheaton v. United States

Supreme Court, U. S,

Fijl. E D

DEC 29 1976

Supreme Court of the United States IR. CLERK

October Term, 1976

No - 895

BRUCE WHEATON, %

~~ Petitioner,

vs. aneme 1

\

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

ARNOLD M. COWAN,

221 Avenue I,

Redondo Beach, Calif. 90277,

Counsel for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

GRE RUINS. scisccti ctlteeiebenssiitdibintinememmmnpyeienisncenianies 1

ais dicie iene caciaiainacelambbisidannasindaahabinibitine 1

I TINE 5.5 i ncsieitihsiiaceestialaitinnaninnenemctente 2

ee Gl Ce SIND stentttecticiitninnsnentcctennmiientaninns 2

Reasons for Granting the Writ ............................ 9

1. The Decision Below Conflicts With the De-

cisions of Other Courts of Appeal as to the

Adequacy of Independent Evidence Which

Must Be Produced’ to Corroborate the

Hearsay Testimony of a Co-Conspirator .... 9

2. The Decision Below Was in Error .......... 13

The Decision Below Raises a Significant

Question as to the Fairness of Petitioner’s

EEE aes ae area Ns Se a OE 15

4. The Court of Appeals Committed Preju-

dicial Error in Receiving and Considering

an Unsolicited and Ex Parte Letter From

the Assistant United States Attorney, Filed

Subsequent to Oral Argument Before the

TEL - sibicisieseshiissieinisindtiuntisieniisintnastanasennadinansiieiaiaa 16

5 SR eRe RSs eae nes SEE RC hae 18

Appendix. Opinion and Judgment of the United

States Court of Appeals ...........................- App. p. 1

Letter From Assistant United States Attorney ........ 9

-TABLE OF AUTHORITIES CITED

Cases Page

BUFORD vs UNITED STATES (1959 CA 9) 272

I a et 13

Rai nsitiidielaicocmneensitinidsinantenancnniapaniiidiiigighadinininliicincitih 17, 18

UNITED STATES vs GLOVER (1962 CA 10

EE UE MII SIME‘ dinsisbntcincnaniecinanincnocnnsecs a8, &2

UNITED STATES vs NUCCIO (1967 CA 2) 373

F.2d 168 (2d Cir.) cert denied 387 U.S. 906 .... 17

UNITED STATES vs ONG WAY JONG (1957

CA BG: BES. ide BBD cccccccevenee 10, 11, 14, 15

UNITED STATES vs PANCI (1958 CA 5th LA)

IRENE Peterman Se ee 11

Statutes

Title 18, United States Code, §2 .......0....0.2..... 1

Title 21, United States Code, §812 ..0000...c 1

6s BEER ae Oe le a a 1

§841(b)(1)(A) sshinantsitibeehhiancenubbbteateettaneiitsnensess 1

SUED £ chbk chabibiaiicdataahpincnieebcninnsciitncntndsabadiialiinh scenone 1

EE PRES ees eC Oe eT oe l

EE eee eliiogtae ial 1

I al 1

Little 28, United States Code, §1254(1) ~............. 2

Supreme Court of the United States

October Term, 1976

OI iil aeriadedee

BRUCE WHEATON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit.

The petitioner, BRUCE WHEATON, respectfully

prays that a Writ of Certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Second Circuit entered in this proceeding

on November 29, 1976.

Opinion Below.

The opinion of the Court of Appeals, not yet re-

ported, appears in the Appendix hereto. A judgment

of conviction for violation of Title 21, United States

Code, §§812, 841(a)(1), 841(b)(1)(A), 846, 951,

952(a), 963, and Title 18, United States Code, §2,

was entered on May 11, 1976 by the District Court

for the Southern District of New York.

Jurisdiction.

The judgment of the Court of Appeals for the Second

Circuit was entered on November 29, 1976. This Peti-

_

tion for Certiorari was filed within thirty days of that

date. This Court’s jurisdiction is invoked under 28

U.S.C. §1254(1).

Questions Presented.

1. Whether the Court of Appeals erred in conr-

- sidering acts and words of co-conspirators made outside

the presence of and without the knowledge or authoriza-

tion of petitioner, in affirming his conviction for con-

spiracy.

2. Whether the Court of Appeals committed preju-

dicial error in receiving and considering an unsolicited

and ex parte letter from the Assistant United States

Attorney, filed subsequent to oral argument before

the Court.

Statement of the Case.

The Government introduced evidence that there

existed international conspiracy to ship heroin through

the mails from Thailand to the United States. The

members of the conspiracy were Boonterm Petkamnerd,

his brother Perm, and Manop Saiphantong, who were

the suppliers. Donald Head, a Staff Sergeant with the

United States Air Force, assigned as a postal clerk

at the Don Muang Air Force Post Office in Bangkok,

Thailand, was responsible for mailing the heroin into

the United States. Boonsak Phuvasitkul was responsible

for collecting payment in the United States. The peti-

tioner, Bruce Wheaton, was alleged to be a salesman

and distributor.

The conspiracy originated in September of 1975,

when Boonsak first approached Manop and Boonterm

regarding the purchase of heroin. It came to an end

when heroin was actually shipped to New York City

caltion

and received by the Drug Enforcement Administration

on February 23, 1976.

Nearly the entire case against the petitioner was

presented through Boonsak, who had been arrested

by the purported “purchasers” of the heroin, Special

Agents “Jack” and “Andy”. The Government agreed

to dismiss several of the counts against Boonsak in

exchange for his friendly testimony.

During the trial, Boonsak told of extrajudicial state-

ments made to him by Manop that the petitioner was

at the Chevolit Hotel in Bangkok, Thailand on February

16, 1976. The purpose of petitioner’s presence was al-

leged to be to purchase three units (approximately 700

grams per unit) of heroin. Later Manop told Boonsak

that the petitioner had purchased the heroin and that it

was in transit to the United States early in March

1976. The shipping arrangements were said to have

been made by Don Head. Boonsak’s hearsay testimony

was received subject to connection.

Boonsak testified that before he left Thailand for

New York City Boonterm gave him Boonterm’s Thai

National Identification Card and a slip of paper bearing

the petitioner’s name and address. Boonsak was told

by Boonterm to visit the petitioner while in New York

and collect a $20,000 debt owed to Boonterm. Boonsak

later showed the slip of paper to Special Agents

Jack. and Andy and told them they could quickly

purchase 2 or 3 units of heroin from the petitioner.

His information, of course, was based upon what Manop

told him. The slip of paper was introduced into evi-

dence. The prosecutor argued to the jury that the

$20,000 was owed from a prior drug deal.

After Boonsak’s arrest, he was taken to the Drug

Enforcement Administration Offices in New York City,

a

where at the direction of Drug Enforcement Administra-

tion agents he made numerous telephone calls to

various co-conspirators. One such call was made to

the petitioner in Carson, California on March 23, 1976.

The taped conversation was introduced and relevant

transcribed portions follow:

BOONSAK: Ah—I—before I came here Boonterm

gave me your address in Bronx. I went down there,

I never see you. They said you went to Bangkok.

And I call to Boonterm last night. Boonterm give

me this number to get in touch with you.

WHEATON: Yes, what’s up?

BOONSAK: Ya. I, I, I need some help from you.

WHEATON: Like what?

BOONSAK: Yes, uh—I got the merchandise, two

units, you know, they send it from Bangkok. Boonterm

send it to me, but I cannot entrust the customer here

because I deal this bus, business with him before,

but this time they try to cheating me; I have two

units in here. I try you to help me. Don, do you

know Don, right?

WHEATON: Um hum.

BOONSAK: Donald Head, yah he serd it to me.

Can you help me that?

WHEATON: I don’t know. I'll have to get back

with you man because I not going to be in New

York for a while now.

BOONSAK: I see; when will you be coming here?

WHEATON: Um—lI don’t know right yet. What’s

you telephone number, man?

WHEATON, What’s your name? Boonsak, ah?

BOONSAK: Yeah, my my first name is Boonsak.

a

Boonsak then describes himself to Wheaton.

WHEATON: What time, what time do you work

from? What time do you get off from work? Do

you go to school? What you do?

BOONSAK: Me?

WHEATON: Yeah.

BOONSAK: I, I just come over for you know

for, for business for a couple of days. I want to

leave as soon as possible when I finish this. But,

I don’t know how to do this two units, you know.

BOONSAK: Ah, you why don’t you call me tonight

at the hotel? f

WHEATON: Yeah, around what time, what’s a good

time?

BOONSAK: The good time? Is about ah—let me,

let me do appointment about? about about 7, 7 o’clock

or 6:30 to 7:00 o’clock, how about that?

WHEATON: Yeah, yeah, that’s good.

BOONSAK: Okay, you call me at about that time.

WHEATON: Yeah.

BOONSAK: Please help me, okay, because I don’t

know anything well, you know. I have two units in

here, but I don’t know how to do it.

WHEATON: Um.

BOONSAK: And, why not, if you can help me

you take this two units then after you selling you

send the money to the Boonterm directly, okay.

WHEATON: Um hum.

BOONSAK: It’s the best way to do it because

I cannot bring the money. Do you have any idea

I can bring the money out of this country?

a

WHEATON: No, unless you could send it to*him.

BOONSAK: Yeah, would you please, okay?

WHEATON: Um.

BOONSAK: Ah, I, excuse me Bruce, let me ask

you one question, how, how much do you think you

can sell this for him? I can when I go back to

Thailand, I can...

WHEATON: I, I don’t know, man. I don’t know.

Don’t ask me that question on the phone, man.

BOONSAK: Oh, I see.

WHEATON: Alright, talk to you later.

BOONSAK: Okay, okay, thank you very much.

The petitioner never called Boonsak back.

Following the conversation, the government seized

a letter addressed to the petitioner at the post office.

The letter was introduced at the trial and follows:

“UTAPAO

8 March 1976

Bruce my dear friend

I hope this letter find you in the best of health.

Bruce this time I consign to you (%) harp

‘tur’ because my merchant friend can’t to get

me thats. I want and my brother not belief me.

I think the time wil! show him. (my brother).

Bruce I hope you will not forget me and I

remember our last time.

I hope our work will do more on the plan

as we talk about at hotel.

And hope everything will be finish in this

month March. I close now hope hear from you

soon.

From your friend

Boonterm.”

ro

It is important to note that the letter was never

delivered, so the petitioner never saw the letter. Also,

the writer, Boonterm, was not available for cross-exam-

ination.

The Government introduced the heroin which was

mailed into New York on February 23, 1976. However,

the Government never introduced any evidence that

the petitioner possessed any heroin or any large sum

of money. It presented no direct proof that the petition-

er met with any of the conspirators while at the Chevalit

Hotel in Bangkok on February 26, 1976.

The jury found the petitioner guilty of conspiracy

to manufacture heroin, conspiracy to import it into

the United States, conspira¢y to distribute the heroin

in the United States, importation of 638 grams of

heroin into the United States on February 23, 1976,

and distribution of 638 grams of heroin on February

23, 1976.

After the verdict was imposed, but before the peti-

tioner was sentenced, the Assistant United States At-

torney who prosecuted the case, Federico E. Virella,

Jr., submitted to the trial judge a personal, unsolicited

letter in which he requested the maximum sentence

for the petitioner, who was described as a peddler

of “white death”. The trial judge said he did not

read or consider the improper letter in imposing sen-

tence. Nevertheless, he read enough of the letter to

know what the contents concerned. The judge chastised

Mr. Virella “never to do anything like that again”.

He then sentenced the petitioner to fifteen years in

prison to be followed by three years special parole.

A notice of appeal to the Court of Appeals for

the Second Circuit was duly filed. Petitioner prepared

celia

and filed a timely opening brief. The Government,

again by Mr. Virella, filed a reply brief. The case

was called for argument on October 1, 1976. During

oral argument Mr. Virella was requested to cite specific

words or deeds of the petitioner which indicated he

was a knowing part of the conspiracy. Mr. Virella

could not answer the question. However, he at no

time requested permission to file an additional or supple-

mental brief. Consequently no leave was granted by

the court. Counsel for petitioner took an airline flight

back to California, where he maintains the practice

of law.

Several! days later Mr. Virella again gave a private

letter to the judges. Counsel for petitioner was sent

a copy of the letter, but was 3,000 miles away when

the letter was presented. The letter was in the nature

of a supplemental brief. It cited many cases which

had been cited in the Government’s reply brief. It

also cited additional cases which supported the Gov-

ernment’s contentions. One such additional case ap-

peared in the letter as well as in the court’s opinion.

Upon receiving a copy of this letter, counsel im-

mediately wrote to the court requesting leave to file

a supplemental brief. No leave was granted.

The conviction of petitioner was affirmed by the

Court of Appeals for the Second Circuit on November

29, 1976. The court cited four items of proof which

the court termed independent evidence which corrobo-

rated the hearsay declarations of co-conspirators and

implicated the petitioner in the conspiracy. See page

653 of the Opinion, in Appendix hereto.

inn

REASONS FOR GRANTING THE WRIT.

1. The Decision Below Conflicts With the Decisions

of Other Courts of Appeal as to the Adequacy of

Independent Evidence Which Must Be Produced

to Corroborate the Hearsay Testimony of a Co-

Conspirator.

Nearly the entire case against the petitioner was

presented through a co-conspirator, Boonsak Phuvasit-

kul. Much of the role which petitioner supposedly

played in the conspiracy was established only because

Manop or Boonterm told Boonsak that the petitioner

was a participant, and Boonsak then told the jury.

Boonsak never met the petitioner. Neither Manop nor

Boonterm testified, so coutd not be cross-examined.

The courts below justified the admission of conspira-

tor’s hearsay upon four items of evidence. First, the

telephone conversation containing admissions by peti-

tioner that he didn’t know if he could help Boonsak

dispose of the “merchandise”, the petitioner’s agreement

to call Boonsak back, and to Boonsak’s question regard-

ing how much he could sell the drug for petitioner’s

response that “I don’t know, man. I don’t know. Don’t

ask me that question on the phone, man.”

The second piece of corroborative evidence relied

upon was Boonsak’s “verbal act testimony that he

had come to the United States to collect money from

Wheaton” which the court below termed “not admissible

to establish that money was owed”, but “was admissible

to explain his presence in the United States and set

the background for his telephone call.” No matter

whether this testimony is considered pure hearsay as

argued below, or “verbal act” testimony, it remains

that the statement was not made by the petitioner,

but by a co-conspirator.

coats

Third, the court below relied upon the petitioner's

presence in Thailand “the week preceding the call”

(from Boonsak). It must be recognized that other

than co-conspirator’s hearsay testimony, the record is

devoid oi any evidence to establish that the petitioner

ever met with any of the conspirators.

Finally, the court pointed to the “letter from the

drug supplier to Wheaton, omitting any reference to

its contents”, which “supported the inference that there

was some relationship between them.” Petitioner argues

below that the letter was inadmissible hearsay by a

co-conspirator, but will assume, arguendo, that it was

independent evidence. Even so, it remains the statement

of a conspirator.

The Government’s entire case depended upon these

four items of evidence being classified as independent

evidence. It did not offer any evidence that the peti-

tioner touched, possessed or sold any heroin. It offered

no evidence that he received, used, passed or touched

any money in the purported transaction.

In holding that there was adequate independent evi-

dence of petitioner’s complicity in the conspiracy, the

court’s opinion conflicts with UNITED STATES vs

ONG WAY JONG, (1957) 245 F.2d 392, decided

in the 9th Circuit. As in the instant case, the case

against Ong was presented through a co-conspirator

by the name of Wee. Wee testified that defendant

Ong was his “connection”. In addition, when agents

attempted to purchase heroin from Wee agents observed

him meet with Ong, then proceed directly to consum-

mate the sale.

The court reversed defendant’s conviction because

nobody “directly testified” to Ong’s connection with

iden

the conspiracy charged. “Guilt by association would

be the only basis.” ONG WAY JONG, supra at 394.

Special emphasis was placed on the fact that Ong

was never “shown to have touched, possessed, sold

or conspired to sell narcotics . . . Ong is not shown

to have received, used, passed or touched any money

used in the transaction.

In the case at bar, the petitioner was not arrested

with any money. He was not shown to have any

connection with any heroin. Direct evidence of petition-

er’s guilt is wholly lacking. There are only statements

of co-conspirators, a visit to Thailand, and a vague

telephone conversation.

Certainly in ONG there Was much more substantial

evidence of complicity. Agents observed a meeting with

the defendant, described as a “connection”, and then

arrested Wee for the illegal sale. Yet the 9th Circuit

could not find sufficient independent evidence to allow

admission of the co-conspirator’s hearsay.

In the UNITED STATES vs PANCI, (1958 CA

5th LA) 256 F.2d 308, the trial court allowed co-

conspirator’s hearsay which implicated the defendant

after he was shown to have met with conspirators.

The Court of Appeals reversed the conviction because

the independent evidence only showed that the defend-

ant associated with disreputable characters. Similarly,

if statements of co-conspirators are excluded, the peti-

tioner is only shown to have been in the same country

as conspirators and to arguably have some knowledge

of drug transactions.

In the UNITED STATES vs GLOVER, (1962 CA

10 COLO.) 306 F.2d 594, the defendant and Irwin

were charged with conspiracy to sell and facilitate

=~

transportation of heroin. Like in the instant case, Irwin

sold heroin to Government agents, was arrested, and

made hearsay statements inculpating the defendant. The

hearsay declarations of Irwin were admitted after the

following independent evidence: (1) the defendant and

Irwin were seen together by Government agents; (2)

Irwin’s statements that defendant was part of the con-

spiracy; (3) when agents asked defendant if they “could

do some business together” defendant answered they

could not until “Norman Smith” got back.

Petitioner submits that independent evidence in

GLOVER was stronger than that against petitioner.

Nobody testified that they saw petitioner meet with

conspirators. Boonsak did not even know petitioner.

Petitioner’s telephone coi.versation with Boonsak cer-

tainly was no more incriminating than the conversation

in GLOVER. Both cases have statements by co-con-

spirators made outside the presence of the defendant.

Yet the 10th Circuit reversed for lack of adequate

independent evidence, and the 2nd Circuit affirmed.

In reversing GLOVER the court said “The existence

of the conspiracy cannot be established against an

alleged conspirator by evidence of acts or declarations

of his alleged co-conspirators, done or made in his

absence.” GLOVER, supra, at 595. Yet the 2nd Circuit

relied on Boonsak’s statement that he was in the

United States to collect a debt from the petitioner

and on Boonterm’s letter to petitioner in finding inde-

pendent evidence to allow the hearsay before the jury.

The above cited cases indicate that the different

circuits vary in the amount of independent evidence

each requires before hearsay of co-conspirators will

be admitted. An authoritative decision is needed by

this court to resolve the inconsistencies between circuits.

2. The Decision Below Was in Error.

The court stated that no corroborative evidence of

petitioner’s guilt was necessary because his admissions

in the taped telephone conversation made during the

course of the alleged conspiracy were sufficient. Buford

vs United States, (1959' CA 9) 272 F.2d 483, 486

n.1 was cited as authority for the statement. While

the rule set forth is an accurate statement of law,

it is inapplicable to the petitioner’s case.

The admissions contained in a taped conversation

of the defendant in Buford were of the actual agreement

to sell cocaine. The damaging statements were made

concurrently with the accomplishment of the illegal

act which was the purpose of the conspiracy—the

sale of cocaine.

However, in the instant case all acts necessary to

the completion of the unlawful purpose were complete

when the admissions were made. The phone call was

made on March 23, 1976. The heroin was seized

by the DEA on February 23, 1976. Since the conspiracy

charged was conspiracy to manufacture, import and

distribute heroin and the drug was “distributed” to

agents by the time of the phone call, the conspiracy

had ended. Therefore, the admissions were not made

during the course of the conspiracy, Buford is inap-

plicable and corroboration was a necessity. It must

be noticed that the “admissions” the court spoke of

are extremely vague responses to loaded questions

staged by Government agents. One must question if

the conversation is proof at all.

The court then relied on three additional items of

evidence which it said corroborate co-conspirator hear-

say. First was the “verbal act” testimony that Boonsak

—

had come to the United States to collect money from

petitioner. “[W]hile not admissible to establish that

money was owed, (it) was admissible to explain his

presence in the United States and set the background

for his telephone call.” The problem with the argument

is that the testimony was not used for such a limited

purpose. The prosecutor argued to the jury that not

only was there a $20,000 debt owed, out that it was

owed “from a prior shipment of heroin.” (p. 127,

line 13, Trial Transcript). It was used as proof of

the matter asserted, that there was a $20,000 debt

owed. The statement was pure hearsay by a co-conspira-

tor. It was not adequate as independent corroborative

evidence.

The second shred of corroboration was said to be

petitioner’s presence in Thailand. The court failed to

mention, however, that petitioner did not arrive in

Thailand until February 26, 1976—three days after

DEA agents had seized the heroin in New York City.

Additionally, there was no direct evidence that peti-

tioner ever met with any of the conspirators. The

court evidently relied on Boonsak’s hearsay testimony

that such a meeting occurred. It therefore is not cor-

roborative. Even if it were, association with conspirators

is not evidence that one is a conspirator. UNITED

STATES vs ONG WAY JONG, supra.

Lastly, the court relied on the letter from the drug

supplier, Boonterm, to petitioner, which “omitting any

reference to its contents, supported the inference that

there was some relationship between them.” Of course

it is impossible to separate the contents of a letter

from the letter itself. In fact, the letter was used

to show that petitioner was assigned drugs to sell.

anDtins

It is hearsay. It cannot be used as independent corrobo-

rative evidence.

Even if only the fact of sending the ietter is used,

it only shows that Boonterm knew petitioner, not that

petitioner knew Boonterm. Petitioner never received

the letter. An attempt by a conspirator to involve

an outsider cannot make the outsider a member of

the conspiracy. This situation is one step removed

from voluntary association with conspirators, which

the court in ONG WAY JONG, supra, said was not

enough to make one a conspirator.

ter close examination of the “independent” evi-

dence cited by the court below, it appears that it

is not independent at all. The “verbal act” testimony

is hearsay. The letter is hearsay. The meeting in Thai-

land relies on hearsay. One is left with the ambiguous

telephone conversation after the end of the conspiracy,

with a captured conspirator puppeting the words of

Government agents. Petitioner submits those are inade-

quate independent evidence of his complicity. Petitioner

has been convicted by the improper use of co-conspira-

tor hearsay.

3. The Decision Below Raises a Significant Question

as to the Fairness of Petitioner’s Conviction.

Petitioner was arrested at his permanent residence

in Carson, California. An identity hearing was held

and petitioner was held for trial in New York City.

Had the petitioner been tried within the jurisdiction

of the Ninth Circuit, the cases indicate that much

more evidence of his guilt would be required to convict.

ONG WAY JONG, supra. However, he was tried within

the jurisdiction of the Second Circuit. The trial judge

allowed co-conspirator hearsay after meager corrobora-

_— =

tion. The Court of Appeals affirmed. The trial judge

looked at an ex parte sentencing memorandum from

the Assistant U.S. Attorney. Such conduct in the 9th

Circuit surely would have been grounds for mistrial.

The Court of Appeals considered a letter from the

same Assistant U.S. Attorney without benefit of oppos-

ing counsel’s letter.

What emerges is a differing standard of justice be-

tween circuits. Petitioner humbly submits it is grossly

unfair to remove him from his own jurisdiction and

allow him to be tried in another federal jurisdiction

utilizing much more lax trial procedures.

4. The Court of Appeals Committed Prejudicial Er-

ror in Receiving and Considering an Unsolicited

and Ex Parte Letter From the Assistant United

States Attorney, Filed Subsequent to Oral Argu-

ment Before the Court.

After oral argument before the Court of Appeals,

the appellee, by the Assistant United States Attorney

Federico E. Virella, Jr., submitted a letter addressed

to the panel of judges who heard argument. The letter

is contained in the Appendix hereto.

In the letter Mr. Virella cited additional cases which

supported certain propositions he advanced during argu-

ment. He had requested no leave of court to submit

an additional or supplemental brief. The letter contained

no proof of service on opposing counsel, although

counsel did receive a copy of the letter.

Upon receipt of the letter counsel for petitioner

immediately objected to the court to the submission

of such an unethical and unorthodox document and

requested leave to file a reply brief. Permission was

denied.

=

It is apparent that the court relied on the letter

in rendering its decision. A case cited for the first

time in the letter, UNITED STATES vs NUCCIO,

373 F.2d 168 (2d Cir.), cert. denied, 387 U.S. 906

(1967) was also cited in the court’s opinion (p. 653

opinion below). Use of the letter and the cases therein

was absolutely improper since counsel for petitioner

was denied permission to counter the letter with a

brief of his own.

One of the fundamental notions in American juris-

prudence is that of an adversary trial. Both sides must

be vigorously represented before the bench or justice

will not prevail. This has been so since colonial times.

As was said by the court in SP/RO vs NITKIN (1899)

72 CONN 202, 203, 44 A 13, 14:.

To permit the counsel upon one side of a

case to argue it in the absence of his opponent,

and without his knowledge, or notice to him,

and without giving him an opportunity to reply,

would be such a denial of the right of a party

to be heard in court, and such a departure from

the usual and regular methods of procedure, as

would warrant the granting of a new trial.

The court must take notice that the Assistant United

States Attorney in the instant case has consistently

made such conduct a common practice. He submitted

a personal letter to the trial judge for which the judge

chastized him. Then he submitted another one, the

letter presently under consideration.

Petitioner submits that such conduct is not only

unethical, but prejudicial. “Though the only effect of

reading the brief may have been to confirm the judge

in the opinion which he had already formed, that

—18—-

opinion might have been changed had the plaintiff

replied to the argument of the defendant’s brief.” SP/RO

vs NITKIN, supra, page 15. The court in SPIRO

granted a new trial. Petitioner requests that this court

grant the petition for certiorari herein.

Conclusion.

For these reasons a Writ of Certiorari should issue

to review the judgment and opinion of the Second

Circuit.

Respectfully submitted,

ARNOLD M. Cowan,

Counsel for Petitioner.

December 28, 1976.

APPENDIX.

Opinion of the United States Court of Appeals.

United States Court of Appeals for the Second Cir-

cuit.

Nos. 217, 261—September Term, 1976. (Argued

October 1, 1976. Decided November 29, 1976.) Docket

Nos. 76-1249, 76-1271.

United States of America, Appellee, v. Donald Head

a/k/a “Mr. Don”, and Bruce Wheaton, Defendants-

Appellants.

Before:

Feinberg, Gurfein and “Van Graafeiland, Circuit

Judges.

Appeal from judgments of conviction for violations

of federal narcotic laws entered in the United States

District Court for the Southern District of New York

after separate jury trials before Hon. Lloyd F. Mac-

Mahon, J.

Affirmed.

Irving Perl, New York, N. Y., for Defendant-

Appellant Head.

Arnold M. Cowan, Redondo Beach, Calif. ( Abra-

ham Solomon, New York, N. Y., of counsel),

for Defendant-A ppellant Wheaton.

Federico E. Virella, Jr., Assistant U.S. Attorney

(Robert B. Fiske, Jr., U.S. Attorney for the

Southern District of New York; Paul Vizcar-

rondo, Jr., Assistant U.S. Attorney), for Ap-

pellee.

caeiee es

endian

Van Graafeiland, Circuit Judge:

In January of 1976, Jack Taylor, an undercover

agent with the Drug Enforcement Administration, had

several telephone conversations with Boonsak Phuvasit-

kul, a resident of Thailand, concerning the proposed

purchase of a unit of heroin which would be mailed

from Thailand to the United States through the United

States Air Force postal system. Events which followed

rapidly thereafter led to the arrest and conviction of

appellants on one conspiracy count of manufacturing,

importing and distributing heroin, one substantive count

of importing and one of distributing heroin. Although

appellants were tried separately, their appeals were

heard together. Phuvasitkul, who was also indicted,

pleaded guilty to the second substantive count and

another count on which appellants were not tried, and

testified as a government witness.

The government’s proof established that appellant

Head, a staff sergeant stationed at the air mail terminal

at Don Muang Airport outside Bangkok, was the key

man in the smuggling operation. As chief supervisor

of a shift, Head was responsible for the receiving,

dispatching and inspecting of all incoming and out-

going mail, and he had developed a method of packag-

ing heroin for mailing so that it would escape detection

by dogs or x-ray.

At a meeting with Phuvasitkul in Bangkok on Feb-

ruary 4, 1976, Head agreed to mail a unit of heroin

to New York. The package was mailed to a post

office address in New York City where it was seized

by a DEA agent. Analysis showed the contents to

be 638 grams of heroin. While en route to the United

States to pick up the money for the heroin which

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had been mailed, Phuvasitkul met agent Taylor, acting

in an undercover capacity, in Toronto, where arrange-

ments for payment were discussed. Phuvasitkul told

Taylor at that time that Head had also mailed two

or three units to appellant Wheaton and that Phuvasit-

kul was to contact Wheaton with instructions for mak-

ing payment. Upon his arrival in New York, Phuvasit-

kul was placed under arrest. Several weeks later, Whea-

ton was arrested in California.

In arguing for reversal of his conviction, Head makes

the now routine claim of a single conspiracy charged

and multiple conspiracies proven, and also contends

that unfair comments were made by both judge and

prosecutor. Neither contention merits extended discus-

sion. Appellant did not request a charge on multiple

conspiracies, took no exception to the charge as given,

and comes ill-equipped to this Court asserting error.

See United States v. Indiviglio, 352 F.2d 276, 280

(2d Cir. 1965), cert. denied, 383 U.S. 907 (1966).

Moreover, because he makes no showing of prejudice

resulting from the asserted multiplicity, his argument

is unpersuasive. See United States v. Sir Kue Chin,

534 F.2d 1032, 1035 (2d Cir. 1976).

Some strong comments were made by the trial judge

which would have been better left unsaid. However,

in view of the overwhelming proof of Head’s guilt,

we do no more than express our disapproval of what

was said. Appellant found no fault with the prosecutor’s

summation when it was given. See United States v.

Socony-Vacuum Oil Co., 310 U.S. 150, 238-39 (1940).

We think his initial reaction was correct.

Head’s only claim of any substance arises out of

the seizure of a package containing $26,800 in currency

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at the time of his arrest in Bangkok. Pursuant to

39 U.S.C. § 406, the Don Muang airmail terminal

was under the supervision and control of the air force,

which had established written procedures for customs

examination of official and personal maii. Among these

was a provision that fluoroscopy would be used by

military postal personnel as directed by the military

department which operates the post office. As one

of the persons responsible for making such inspections,

appellant must have been aware that fluoroscoping

was routinely being done.

On March 9, 1976, Head’s commanding officer was

informed by the air force Office of Special Investigations

that a person fitting Head’s description was believed

to be involved in narcotics trafficking. A registered

parcel addressed to Head was examined under a fluoro-

scope, and the parcel showed outlines of what appeared

to be stacks of currency. After Head had picked up

this package on the following day, he was placed

under arrest with the package in his possession, pursuant

to a complaint which had, in the meantime, been filed

against him in New York. At the request of OSI,

a search warrant was issued by the Commanding Officer

for Air Force Personnel as authorized by chapter 152

of the Manual for Courts Martial, following which

the package was opened and the currency found. Appel-

lant asserts that his motion to suppress this evidence

as the product of an illegal search was improperly

denied.

In view of the strength of the government’s case

against Head, consisting among other things of extreme-

ly incriminating taped conversations, appellant is assert-

ing what, at most, would be harmless error. United

1 Ne re

—_

States ex rei. Stanbridge v. Zelker, 514 F.2d 45, 52

(2d Cir.) cert. denied, 423 U.S. 872 (1975); United

States v. Anderson, 500 F.2d 1311, 1318-19 (Sth

Cir. 1974). In actuality, there was no error at all.

Head’s constitutional right of privacy must be meas-

ured by whether he had an expectation of privacy

which society was prepared to recognize as reasonable.

Katz v. United States, 389 U.S. 347, 361 (1967).

Because “the military is, by necessity, a specialized

society separate from civilian society”, Parker v. Levy,

417 U.S. 733, 743 (1974), and there are serious

drug problems in military installations, see Schlesinger

v. Councilman, 420 U.S. 738, 760 n. 34 (1975),

the limited invasion of privacy in the fluoroscoping,

which must have been anticipated by appellant, was

not constitutionally objectionable. See Committee for

GI Rights v. Callaway, 518 F.2d 466, 474-77 (D.C.

Cir. 1975); cf. United States v. Edwards, supra, 498

F.2d 496, 499-501 (2d Cir. 1974). Moreover, the

opening and search of the offending package did not

take place until after a valid search warrant had been

issued by the commanding officer. Appellant’s motion

to suppress the money found in the search was properly

denied.

Appellant Wheaton had also been a member of

the United States Air Force and was stationed in

Thailand from January 1972 until January 1973. When

Phuvasitkul met with Taylor in Toronto, he showed

Taylor a piece of paper with Wheaton’s name and

address on it and stated that while he was in the

United States he was going to try to collect from

Wl.eaton moneys owed to an individual who was the

supplier of drugs in Thailand. Phuvasitkul also had

in his possession the national identity card of the

—

drug supplier so that he would be able to identify

himself to Wheaton.

Subsequent to Phuvasitkul’s arrest, he said that he

had been told by his supplier that Wheaton had returned

to Thailand in February and had purchased two or

three units of heroin which were being mailed to the

United States by Head. A telephone conversation be-

tween Phuvasitkul and his supplier, taped by the DEA

on March 9, 1976, established that Wheaton had left

Thailand and that two units of heroin had been mailed

to him. Following up on this information, the govern-

ment intercepted a letter from the supplier to Wheaton

dated March 8, 1976 stating that one-half unit, 300

grams, of heroin was being assigned to him. The govern-

ment also established that Wheaton was in Thailand

between February 23, 1976 and March 5, 1976 where

he was registered at the Chavalit Hotel in Bangkok.

Following his arrest, and at the suggestion of DEA,

Phuvasitkul made a taped telephone call to Wheaton,

telling him that the two units of “merchandise” had

been sent to Phuvasitkul by the Thailand supplier and

that he had been instructed to call Wheaton whose

number had been given him by the supplier. Wheaton,

who was then living in California, said he didn’t know

whether he would be able to help Phuvasitkul and —

that he would get back to him, because he was not

going to be in New York for a while. Wheaton took

Phuvasitkul’s telephone number and agreed to call him

back that night. Wheaton also agreed that, if he took

the two units, he would send the money for them

directly to the supplier in Thailand. Phuvasitkul asked

Wheaton how much he thought he could sell the drug

for, and the reply was, “I don’t know, man. I don’t

know. Don’t ask me the question on the phone, man.”

=

Wheaton’s contention that there was insufficient proof

of his participation in the conspiracy and that hearsay

statements of his alleged co-conspirators should not

have been admitted into evidence must be rejected.

Proof of the existence of the conspiracy to import

heroin could be, and was, established without reference

to any acts of Wheaton. United States v. Araujo,

539 F.2d 287, 289 (2d Cir. 1976). This being so,

it was for the trial judge to determine whether Whea-

ton’s participation in the conspiracy was established

by a fair preponderance of independent evidence before

the hearsay statements of his co-conspirators could be

used against him. United States v. Wiley, 519 F.2d

1348, 1350 (2d Cir. 1975), cert. denied, 423 US.

1058 (1976). We are not prepared to say that the

trial court erred in holding that the government’s proof

met this test.

The admissions made by Wheaton in his taped con-

versation with Phuvasitkul were made during the course

of the alleged conspiracy, rather than after its consum-

mation, and may be sufficient to establish Wheaton’s

guilt even without corroboration. Buford v. United

States, 272 F.2d 483, 486 n. 1 (9th Cir. 1959).

However, if corroboration was required, it was there.

A conspiracy had been shown to exist. Phuvasitkul’s

“verbal act” testimony that he had come to the United

States to collect money from Wheaton, while not admis-

sible to establish that money was owed, was admissible

to explain his presence in the United States and set

the background for his telephone call. United States

v. Nuccio, 373 F.2d 168, 173 (2d Cir.), cert. denied,

387 U.S. 906 (1967). The presence of Wheaton in

Thailand during the week preceding the call became

significant after the statements made by Wheaton on

—8—

the telephone. The letter from the drug supplier to

Wheaton, omitting any reference to its contents, sup-

ported the inference that there was some relationship

between them. United States v. Panebianco, (Dkt. Nos.

76-1132, 76-1133, 76-1151, 76-1206, 76-1207, 76-

1219, 76-1366) (2d Cir. Oct. 14, 1976), slip opin. 119,

133-34; United States v. Ruiz, 477 F.2d 918, 919

(2d Cir. 1973), cert. denied, 414 U.S. 1004 (1974).

When, as in this case, the existence of a conspiracy

has been shown, evidence sufficient to link another

defendant with it need not be overwhelming, see United

States v. Marrapese, 486 F.2d 918, 921 (2d Cir.

1973), cert. denied, 415 U.S. 994 (1974), and it

may be circumstantial in nature. United States v. Man-

fredi, 488 F.2d 588, 596 (2d Cir. 1973), cert. denied,

417 U.S. 936 (1974). Examining the evidence below

in the light most favorable to the government, as we

are required to do, United States v. Marrapese, supra,

486 F.2d at 921, we think it was sufficient. This

being so, testimony as to the acts and statements of

Wheaton’s co-conspirators in furtherance of the con-

spiracy, which we need not recount herein, was properly

admitted into evidence. Under Pinkerton v. United

States, 328 U.S. 640 (1946), Wheaton also became

responsible for the substantive illegal acts of his co-

conspirators, done in furtherance of the conspiracy,

even though he may not have participated directly

in them.

Finding no reason to disturb the jury’s verdict on

either trial, the judgments of convictions are affirmed.

October 4, 1976

FEV:sr

n-2756

en eee

online

Hon. Wilfred Feinberg

Hon. Murray I. Gurfein

Hon. Ellsworth A. Van Graafeiland

United States Courthouse

Foley Square

New York, New York 10007

Re: United States v. Donald Head, a/k/a

“Mr. Don”, and Bruce Wheaton,

Dkt. Nos. 76-1249, 76-1271

Honorable Sirs:

During oral arguments in the above matter, the

Court questioned the sufficiency of the evidence, in-

dependent of the hearsay declarations of the conspira-

tors, showing Wheaton’s participation in the conspiracy.

We wish to bring to the Court’s attention several cases,

in addition to the ones cited in the Government’s

brief, supporting Judge MacMahon’s finding that the

Government had satisfied its burden of proof under

United States v. Geaney, 417 F.2d 1116 (2d Cir.

1969), cert. denied, 397 U.S. 1028 (1970).

Evidence supporting a Geaney finding may be com-

pletely circumstantial, United States v. Manfredi, 488

F.2d 588, 596 (2d Cir. 1973), cert. denied, 417

U.S. 963 (1974), and may include statements that

are not hearsay or that are admissible under an excep-

tion to the hearsay rule other than the exception for

statements of co-conspirators. United States v. Geaney,

supra, 417 F.2d at 1120 n.3. As noted in the Govern-

ment’s brief on appeal, therefore, the slip of paper

bearing Wheaton’s name and New York address that

Boonterm gave Boonsak on February 4, 1976, and

Boonterm’s contemporaneous statement to Boonsak,

were properly considered by Judge MacMahon in mak-

antifiiue

ing the Geaney finding. The slip of paper was admissible

as Circumstantial evidence of association and agreement

between Boonterm, the heroin supplier, and Wheaton.

United States v. Ruiz, 477 F.2d 918, 919 (2d Cir.

1973), cert. denied, 414 U.S. 1004 (1974) (slip of

paper found on co-conspirator bearing defendant’s nick-

name and telephone number “almost identical” to de-

fendant’s telephone number held not to be hearsay);

United States v. Ellis, 461 F.2d 962, 970 (2d Cir.),

cert. denied, 409 U.S. 866 (1972) (address books

of co-conspirators containing defendant’s name held

not to be hearsay); United States v. Garelle, 438

IT 2d 366, 370 (2d Cir. 1970), cert. denied, 401

U.S. 967 (1971) (address book of co-conspirator con-

taining defendant’s name held not to be hearsay).

Boonterm’s contemporaneous instruction to Boonsak

to visit Wheaton in New York and tel] him that he

should send the $20,000 he owed Boonterm was also

properly considered by Judge MacMahon and provided

additional support for his Geaney finding. The state-

ment was a verbal act showing the existence of the

conspiracy and made in furtherance of it (i.e., an

attempt by the supplier, Boonterm, to obtain payment

from a distributor), United States v. Nuccio, 373 F.2d

168, 170 (2d Cir.), cert. denied, 387 U.S. 906 (1967);

and was also an utterance contemporaneous with an

independently admissible nonverbal act (the handing

of the slip of paper by Boonterm to Boonsak) that

related to that act and threw some light on it. United

States v. Frank, 494 F.2d 145, 155 (2d Cir.), cert.

vdenied, 419 U.S. 828 (1974); United States v. Man-

fredi, 488 F.2d 588, 596 (2d Cir. 1973), cert. denied,

417 U.S. 963 (1974); United States v. Glasser, 443

F.2d 994, 999 (2d Cir.), cert. denied, 404 U.S. 854

(1971).

—

When these events of February 4, 1976 are con-

sidered in conjunction with Boonsak’s telephone conver-

sation with Wheaton of March 23, 1976—which, taken

in its totality, shows that Wheaton was familiar with

the operation of the heroin distribution conspiracy and

was willing to aid Boonsak in advancing the con-

spiracy’s objects—it is clear that Judge MacMahon

was warranted in finding that the Government had

met its burden of proving by a fair preponderance

of the evidence, independent of hearsay statements of

the conspirators, that Wheaton was a member of the

conspiracy at least from early February, 1976 until

his arrest in March, 1976. Indeed, we respectfully

submit that the evidence bere was stronger than in

other cases where this Court has upheld a Geaney

finding. See, e.g., United States v. D’Amato, 493 F.2d

359, 363-64 (2d Cir.), cert. denied, 419 U.S. 826

(1974); United States v. Manfredi, supra.

Respectfully,

ROBERT B. FISKE, JR.

United States Attorney

By: FEDERICO E. VIRELLA, JR.

Assistant United States Attorney

Telephone: (212) 791-1984

cc: Arnold M. Cowan, Esq.

221 Avenue I

Redondo Beach, California 90277

Irving Perl, Esq.

60 East 42nd Street

New York, New York 10017