Petition — King v. United States

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Supreme Court, U. S,

FILED

JAN 123 1077

In the Supreme Covet RODAK, JR, CLERK

7 An Ia, = ? 4 * —

it owe toa? See a ~ A

OF THE

United States

OcroBEeR TERM 1976

No. 46-97% 1

ANDRE WILLIS KING,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

Marcus 8S. Torer,

360 Pine Street

Penthouse Suite

San Francisco. California 94104

Telephone: (415) 421-6140

WitiiaM L, OsterRHovDT,

Penthouse - San Franciscan

1231 Market Stree!

Sen Franc’sco, California 94103

Teleon< ne (415) 671-3250

Counsel for Petitioner.

PERNAY - WALSH PRINTING CO.- 562 MISSION STREET - SAN FRANCISCO. CA 94105

Subject Index

Page

a a a i as wububawie 1

EY tegeos pedi neuganidbddlan 0 hbeiaedabdisaecues 2

Questions presented for review .............ccceceecceees 2

Constitutional and statutory provisions .................6. 2

I I a ge di ded Sabb aeeke 6

IE RE EE OE OD eee 7

eS SR od ca dv eeeueeceecaciasseses 18

eG Se OE os cc dccdedubeuedachecesec 20

TLE SRE Re ere ee ea ee en a eee 26

Table of Authorities Cited

Cases Pages

Barber v. Page, 390 U.S. 719 (1968) ........0....cee0c. 21

California v. Green, 399 U.S. 149 (1970) ................ 21, 24

Carbo v. United States, 314 F.2d 718 (9th Cir. 1963) ..... 25

Geders v. United States, 425 U.S. 80 (1976) ............. 23

Mancusi v. Stubbs, 408 U.S. 204 (1972) .....:.......000. 21

Mattox v. United States, 156 U.S. 237 (1895) ........... 21

United States v. Apollo, 476 F.2d 156 (5th Cir. 1973) .... 25

United States v. Buschmann, ....... F.2d ....... (7th Cir. 1976) 25

United States v. Honneus, 508 F.2d 566 (1st Cir. 1974) .. 25

Uhited States v. Ricketson, 498 F.2d 367 (7th Cir. 1974) 22

United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972) .. 22

Rules

Federal Rules of Evidence:

Ne idewedewdoes 25

Federal Rules of Criminal Procedure:

de Ce eee A eek ecedeu 20, 22

Constitutions

United States Constitution:

oe wha ands ocoe 6066546 68 Edes0 ees 2,8

SE EE id d de nae nae 6466009000666600664 2,3,8

Statutes

ee a, OD Ne a oka cheese enees 3, 7, 8, 20, 22

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Iu the Supreme Court

OF THE

United States

OcTOBER TERM 1976

No.

ANDRE WILLIS KING,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the United States Court of Appeals

for the Ninth Circuit

The Petitioner, Andre Willis King, respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Ninth Circuit, entered on December

16, 1976.

OPINION BELOW

The Court of Appeals entered its opinion on De-

cember 16, 1976. A copy of the opinion, affirming the

judgment of conviction is attached as Appendix “A”.

JURISDICTION

Jurisdiction of this court is invoked under Title

28, U.S.C., Section 1254(1).

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Court of Appeals erred in con-

cluding, on a question of first impression, that the

confrontation clause of the Sixth Amendment and

Due Process Clause of the Fifth Amendment were

not violated by the introduction of the depositions of

precipient witness-government informants, taken at

the government’s insistence, in a foreign country,

under highly restrictive conditions, and as to which

the trial court did not allow objections at time of trial.

2. Did the Court of Appeals err in affirming the

trial court’s refusal to give a requested cautionary

instruction as to the limited admissibility of co-

conspirators’ statements, in a multiple defendant con-

spiracy case, where the bulk of the evidence consisted

of hearsay statements of co-conspirators; and where

such holding is in clear conflict with all circuits which

have addressed this question.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitution of the United States, Fifth Amendment:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in

Yaa)

the Militia, when in actual service in time of

War of public danger; nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

Constitution of the United States, Sixth Amendment:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have compul-

sory process for obtaining witnesses in his favor,

and to have the Assistance of Counsel for his

defense.

Title 18 U.S.C. Section 3503. The statute provides in

full :

§3503. Depositions to preserve testimony

(a) Whenever due to exceptional circum-

stances it is in the interest of justice that the

testimony of a prospective witness of a party be

taken and preserved, the court at any time after

the filing of an indictment or information may

upon motion of such party and notice to the par-

ties order that the testimony of such ‘witness be

taken by deposition and that any designated

book, paper, document, record, recording, or

other material not privileged be produced at the

same time and place. If a witness is committed

for failure to give bail to appear to testify at a

trial or hearing, the court on written motion of

the witness and upon notice to the parties may

direct that his deposition be taken. After the

deposition has been subscribed the court may dis-

charge the witness. A motion by the Government

to obtain an order under this section shall con-

tain certification by the Attorney General or his

designee that the legal proceeding is against a

person who is believed to have participated in

an organized criminal activity.

(b) The party at whose instance a deposition

is to be taken shall give to every party reason-

able written notice of the time and place for

taking the deposition. The notice shall state the

name and address of each person to be examined.

On motion of a party upon whom the notice is

served, the court for cause shown may extend or

shorten the time or change the place for taking

the deposition. The officer having custody of a

defendant shall be notified of the time and place

set for the examination, and shall produce him

at the examination and keep him in the presence

of the witness during the examination. A defend-

ant not in custody shall have the right to be pres-

ent at the examination, but his failure, absent

good cause shown, to appear after notice and

tender of expenses shall constitute a waiver of

that right and of any objection to the taking and

use of the deposition based upon that right.

court shall advise him of his rights and assign

counsel to represent him unless the defendant

elects to proceed without counsel or is able to

obtain counsel of his own choice. Whenever a

deposition is taken at the instance of the Gov-

ernment, or whenever a deposition is taken at

the instance of a defendant who appears to be

unable to bear the expense of the taking of the

deposition, the court may direct that the expense

of travel and subsistence of the defendant and

his attorney for attendance at the examination

shall be paid by the Government. In such event

the marshal shall make payment accordingly.

(d) <A deposition shall be taken and filed in

the manner provided in civil actions, provided

that (1) in no event shall a deposition be taken

of a party defendant without his consent, and

(2) the scope of examination and cross-examina-

tion shall be such as would be allowed in the trial

itself. On request or waiver by the defendant the

court may direct that a deposition be taken on

written interrogatories in the manner provided

in civil actions. Such request shall constitute a

waiver of any objection to the taking and use of

the deposition based upon its being so taken.

(e) The Government shall make available to

the defendant for his examination and use at the

taking of the deposition any statement of the

witness being deposed which is in the possession

of the Government and which the Government

would be required to make available to the de-

fendant if the witness were testifying at the

trial.

(f) At the trial or upon any hearing, a part

or all of a deposition, so far as otherwise ad-

missible under the rules of evidence, may be used

if it appears: That the witness is dead; or that

the witness is out of the United States, unless it

appears that the absence of the witness was pro-

eured by the party offering the deposition; or

that the witness is unable to attend or testify

because of sickness or infirmity; or that the wit-

ness refuses in the trial or hearing to testify

concerning the subject of the deposition or part

offered; or that the party offering the deposition

has been unable to procure the attendance of the

witness by subpoena. Any depositions may also

be used by any party for the purpose of contra-

dicting or impeaching the testimony of the depo-

nent as a witness. If only a part of a deposition

is offered in evidence by a party, an adverse

party may require him to offer all of it which

is relevant to the part offered and any party may

offer other parts.

(g) Objections to receiving in-evidence a dep-

osttion or part thereof may be made as provided

in civil actions. (Emphasis added).

STATEMENT OF THE CASE

Petitioner was convicted of conspiracy and sub-

stantive drug offenses with three others not parties

to this petition." The offenses and parties were tried

together—the first trial resulting in a hung jury and

mistrial as to petitioner; the second trial resulting in

the conviction of petitioner on the three counts

charged against him.

1Petitioner received sentences totalling twenty-five vears and is pres-

ently incarcerated at MeNeil Island Federal Penitentiary under those

sentences.

A. Depositions

In order to establish petitioner’s complicity in the

charged offenses, the government took the depositions

of two precipient witnesses, who testified under grants

of immunity, at Yokosuka Prison in Yokosuka, Japan.

The deponents’ testimony was deemed “crucial” by the

government and was admitted, over defense objection,

at both trials. The Court of Appeals affirmed the

convictions holding that the deposition provision of

18 U.S.C. §3503 was facially valid and that the deposi-

tions taken here, while under conditions less than

ideal, did not suffer from constitutional infirmities.

Petitioner and his co-defendants were charged with

a conspiracy to import heroin from Thailand via

Japan into the United States. Two of their alleged

accomplices, Gamble and Adams, had been convicted

of narcotic offenses in Japan, and were, at the times

relevant to this case, serving prison terms in a Japa-

nese prison in Yokosuka, Japan. The prosecution

sought and obtained permission, under the provisions

of 18 U.S.C. §3503, to depose these persons at the

prison. The depositions were, after several changes,

scheduled to commence on January 21, 1975.

On October 25, 1974, the government filed a notice

of and motion for the taking of depositions of Gamble

and Adams in Japan pursuant to 18 U.S.C. §3503

(C. 12-24).2 The government alleges that Gamble and

2 Abbreviation code:

C—Clerk’s transcript on appeal

R—Reporter’s transcript on appeal

DTA—Deposition Transcript Adams

DTG—Deposition Transcript Gamble

Adams would be imprisoned until 1977 and 1978 (C.

15), and that the purpose of the depositions would

be to obtain testimony of “crucial witnesses” in the

ease (R. 85 1/10/75) for “use at the trial” (©. 19).

On October 31, 1974, Defendants filed objections to

the depositions (C. 25-42, 55-56) charging inter alia,

that the prerequisites to allowing a deposition under

18 U.S.C. §3503 had not been met, i.e., no ‘‘exceptional

circumstances” and that the depositions were not “in

the interests of justice,” (see, eg., C. 32-35) and,

most importantly, that the depositions would deny

defendants their rights to confrontation and due

process under the Fifth and Sixth Amendments (e.g.,

C. 47-49).

The court ordered the depositions taken (C. 57-60),

after expressing uncertainty as to their constitution-

ality (R. 5-11, 1/1/74) or the inability of the govern-

ment to bring Adams and Gamble to the United States

(C, 20, 1/1/74). The court further ordered the deposi-

tions videotaped and the costs be borne by the govern-

ment.

Inititally, the place for the taking of the depositions

was to be the United States Air Force base at

Yokosuka, Japan (R. 39-40, 11/15/74). This was sub-

sequently changed to Yokosuka Prison itself (C. 189-

190, 193). The government also demanded that

defendants travel to Japan together (C. 187-188, 192-

194). Nothing was stated at that time concerning

defendants’ freedom of movement in Japan, or of

defendants’ freedom to communicate with their counsel

during the course of the depositions.

The final date for the taking of the depositions

was set for January 21, 1975. The Japanese govern-

ment required that defendants arrive together in the

country no sooner than January 20, 1975 (R. 66,

1/10/75, C. 187-188, 192-194). Counsel objected stating

that they and defendants needed time in Japan prior

to the taking of depositions in order to conduct in-

vestigations—especially because the deponents would

not be available for cross-examination at trial. The

court agreed and stated that defendants should be

given three days in Japan to prepare prior to the

commencement of the depositions (R. 85, 1/10/75).

The court would not, however, grant a formal order

delaying the depositions until January 24, 1975.

In the three weeks immediately preceding the de-

positions further increasingly restrictive conditions

were imposed on the defendants, In response to these

restrictions, the government consistently stated to the

court that it (the government) had no control over

the Japanese government (R. 78, 1/10/75); and the

court in turn stated that it would take these matters

up at the time the government moved for the admis-

sion of the depositions (R. 78-79, 1/1/75). On Decem-

ber 31, 1974, defendants were told the deposition

would be taken inside a Japanese prison (C. 189-190,

202). Around January 2, 1975, the defendants were

told they would have to travel together to Japan and

arrive no sooner than January 20, 1975 (C. 192-1,

202). On January 8, 1975, defendants’ counsel learned

that defendants would be met at the airport and taken

under, then as yet unidentified escort, to a hotel near

the prison (C. 202, 215-16). The “itinerary” of defense

counsel was demanded on January 18, 1975 (C, 215-

216). On January 15, it was indicated that defendants

would be required to stay in the same hotel (C. 215-

216, 322). Despite defendants’ continued objections

that they could not adequately prepare under these

conditions, the court persisted in ordering the deposi-

tions, (E.g., C. 219-220).

Upon arrival at Tokyo International Airport de-

fendant’s counsel was hand delivered a letter from

an official of the American Embassy, Tokyo (C. 280).

This letter set forth further restrictive conditions

upon the taking of the depositions and specifically

upon the freedom and movement of defendants during

the taking of the depositions (C. 325-326), none of

which had been specified or known prior to arrival

in Japan. This letter was the first indication that the

defendants’ freedom of movement in Japan would be

absolutely curtailed (C. 280). In effect, the defendants

would be under arrest while in Japan. Further counsel

for petitioner was advised there was no possibility

that defendants and their counsel would be given the

three days to prepare (C. 281)—as the Japanese

government was fearful of a political incident arising

from the defendant’s presence in Japan. A consular

official stated that the Japanese government was re-

quiring extensive security personnel to be placed at

the hotel, at the airport, and at the prison. The

Embassy officer also stated that the defendants would

be required to stay tn their hotel rooms. He advised

that the defendants would be taken from the hotel

mire

to the prison every morning and returned from the

prison to the hotel every night, that they would be

guarded around the clock by Japanese security per-

sonnel, and that they would not be allowed any free

movement in Japan. He further stated that were any

defense counsel to interview the deponents, Japanese

officials would be present during the interview (C.

281).

The defendants’ hotel rooms had been prepared by

the Japanese government and the American Embassy.

The rooms had no telephones, and were located in a

part of the hotel which allowed the Japanese govern-

ment to maintain round-the-clock surveillance ; guards

were posted in the hallways outside of the doors and

outside the windows. A police “command post” was

set up next to defendants’ rooms and contained much

electronic equipment. The defendants were told that

they were not allowed to leave their rooms; that they

had to take their meals in their rooms; and that they

were not allowed to visit their attorneys in the attor-

neys’ rooms. The attorneys were told that they were

allowed to visit the defendants and speak to them

only in the defendants’ rooms (C. 283). Subsequently

defendants were allowed in the attorneys’ rooms un-

der the same conditions of visitations which applied

to their rooms.

Defendant’s counsel did not, for fear of electronic

surveillance, discuss this case with petitioner in the

room which had been prepared for petitioner by the

Japanese government and the American Embassy. The

same applied to counsel’s room. The defendants were

not allowed to make any phone calls within Japan

nor generally allowed to leave the rooms. On one occa-

sion, they were allowed to make overseas phone calls

in the presence of numerous Japanese policemen (C.

283). Counsel objected vigorously, at every opportu-

nity, to these conditions (C. 283).

All defense counsel, considering the language dif-

ficulties, the geographic unfamiliarity, jet lag, and

the other intimidating circumstances surrounding the

depositions felt, at that time—the night of defendants’

arrival, that participation in the depositions would

be meaningless in that their ability to aid the de-

fendants in cross-examination had been almost totally

emasculated (C, 284). However, counsel and defend-

ants remained three more days ‘n an attempt to get

the conditions modified.

At no time, during the entire course of the deposi-

tions, were there less than twenty-two members of

various Japanese police forces present, either at the

prison or at the hotel (C, 284). The defendants were

under total arrest at the hotel except for the period

of time when they were taken under police escort to

the prison and participated in the depositions (C.

284). Once again it is stressed that none of these

above specific restrictions, including the threat of

imprisonment hanging over the defendants’ heads if

they refused to comply with these conditions, was

known to either the defendants or to the defense

counsel prior to coming to Japan (C, 284).

In summary, defendants arrived the evening before

the commencement of the depositions after a 14-hour

plane trip, crossing the International Date Line and

suffering from jet lag. They were immediately sur-

rounded by numerous Japanese police and American

Embassy security personnel. They were whisked off

to the Hotel where they were placed under arrest in

rooms that had been prepared for them—rooms com-

pletely denuded of any communication facilities. They

were then made to conform to an incredibly rigid

schedule, which was inflexible, which required that the

depositions begin at a particular time and end at a

particular time, regardless of where the questioning

was at the time of the break. The atmosphere was

intimidating and oppressive. Numerous objections by

defense counsel went unanswered and rapidly became

totally futile gestures. Most importantly, the defend-

ants were not allowed free and secure opportunities

to talk to their attorneys. The attorneys, likewise,

could not be sure that it was safe to talk to each

other or their clients in the hotel and certainly not

safe to talk at the prison.

The actual depositions proceeded as follows: the

defendants were taken to Yokosuka Prison, taken into

a Defendant’s Room, and then taken upstairs to the

Deposition Room and at all times surrounded by

numerous Japanese prison guards (C. 286). There

were at all times Japanese prison and security per-

sonnel in the room as well as American Embassy

personnel (C, 286). Counsel were all unanimously of

the opinion that it was likewise unsafe to speak with

the defendants as to substantive matters concerning

the case while at the prison. The rooms had been

provided at the prison according to a predetermined

plan, and counsel could never be sure whether or not

anything that they might say might be overheard

(C. 286).

These conditions were objected to at length at the

beginning of the deposition of deponent Adams (e.g.,

D.T.A, 7-28).

In order to perfect the record as to these events,

counsel requested that the hearing officer take the

stand and make a statement concerning the above

described events and the Embassy’s role in the deposi-

tions. He refused to do so (D.T.A. 30-32, C. 287).

The same request was made of the United States

Attorney who likewise refused (D.T.A. 32-33, C. 287).

A defense investigator tried to obtain information

relevant to cross-examination at the depositions, He

was unable to obtain any information due to the

inability of the defendants to communicate with him,

their counsel, or with persons they (the defendants)

knew in Japan (C. 328-329).

The depositions themselves were a mockery of ju-

dicial proceedings. The hearing officer stated he was

“incompetent” to direct proceedings or make pro-

cedural rulings (R. 208, 4/29/75), and refused to

allow voir dire or order the production of documents

—even in the face of defense objections that this

testimony was in effect trial testimony. (E.g., D.T.A.

110 et seq., 124).

On Friday, January 24, 1975, (JST), after some

examination of deponent Adams, counsel once again

objected to certain restrictions, more specifically: the

LEAT LIT OL ITI OIE

fact that the defendants could not securely and pri-

vately confer with their counsel, that counsel could

not be introduced to persons in Japan who knew

defendants as no time had been allowed to investi-

gate, and that the defendants were not allowed to

accompany counsel or even use the phone for “in-

country” calls (C, 291, D.T.A, 524-530). Defendants,

through counsel, asked the hearing officer to com-

municate these objections to the Embassy and

Japanese government. After lunch, on the 24th, the

hearing officer stated:

“The proceedings are continued at 1:26 p.m.

after a brief recess during which time, at the

request of defense counsel, I contacted my super-

visors at the American consul general to ask if

he had received an answer from the Japanese

government concerning the lifting of restrictions

on defendants and he advised me that since the

lunch hour when I contacted him initially he had

been in touch with the Ministry of Foreign Af-

airs at high levels and they replied as follows:

‘That the Japanese government, in its own in-

terests and in the interests it protects of its

citizens and country considers that surveillance

and absolute control over the defendants is re-

quired.’ ”

[Emphasis added] (D.T.A. 568).

At this point the defendants and defendants’ coun-

sel withdrew from the proceedings and returned to

the United States.

The government then completed its deposition of

Adams (D.T.A. 560 et seq.) and went on to depose

Gamble (D.T.G. 3-107). Significant portions of Adams’

deposition and all of Gamble’s deposition were taken

in the absence of all defendants and defendants’ coun-

sel, Adams’ deposition, with all but substantive ques-

tions and answers edited out, was videotape played

to the juries at both trials (R. 200 et seq., 4/29/75;

R. 182 et seq., 5/27/75). Gamble’s deposition was

played in its entirety at both trials (R. 62 et seq.

4/28/75; R. 335 et seq., 5/27/75). The depositions were

played to the jury in both trials with all procedural

objections based on constitutional considerations made

at the time of the depositions deleted. (Compare D.T.A.

1-570 with R. 200-641, 4/29/75).

The court prohibited counsel from commenting on

the circumstances surrounding the deposition to the

jury (R. 35-37, 4/28/75; R. 87-88, 4/29/75; R. 1246-

1253, 5/27/75). The court prohibited counsel from

commenting on the absence of cross-examination of

deponent Gamble (R. 442-443, 5/28/75). The court

prohibited counsel from raising evidentiary objections

to questions in Gamble’s deposition (R. 60, 77-82,

4/28/75; R. 335, 5/27/75).

Defendants made continuing and vigorous objections

to the introduction of the depositions at the first

trial. Further objections were made during the second

trial with all pre-trial and first trial objections incor-

porated in toto (C. 145-146, 5/15/75).

84 small number of questions posed by the government and answers

given by deponent Adams were stricken upon the sustaining of eviden-

tiary objections, by the District Court, of objections made by counsel

during the depositions (C, 435-440).

Two jury trials, each lasting approximately two

and one-half weeks, were held. The basis of the

government’s case against petitioner centered around

the deposition testimony of Adams and Gamble.

Adams testified that he knew all the defendants

(R. 200-203, 4/29/75). Most importantly, that he had

heard petitioner’s co-defendant Powell state that he

(Powell) and petitioner were “50/50” partners in the

drug deals in question (R. 303-305, 4/29/75). Adams

also testified to deliveries of drugs to Powell while

petitioner was present, and of assistance given by

petitioner to Powell in obtaining drugs (R. 237-244,

248-249, 253-257, 273-278, 287-288, 303-305, 4/29/75).

Even on the limited cross-examination of Adams he

was shown to have lied in prior sworn statements (R.

458-574, 4/30/75).

Gamble testified that he knew all the defendants

(R. 337-338, 5/27/75). He also testified he aided

Powell in the transport of drugs to the United States.

He testified that petitioner had aided Powell in help-

ing Gamble transport drugs to the United States.

Gamble also testified that petitioner was at least

present at certain times and places when drugs were

picked up in the United States.

With one minor exception, Adams and Gamble were

the only government witnesses who testified as to

any direct involvement by petitioner in any drug

dealings. Although the government attempted to have

petitioner identified hy other witnesses none could do

so.

B. Curative Instruction

During the first trial petitioner repeatedly re-

quested a curative instruction be given regarding the

admissibility, under the co-conspirator exception to

the hearsay rule, of extra-judicial statements made

by one co-defendant incriminating another co-defend-

ant. Petitioner’s counsel requested that the curative

instruction be given during the videotape testimony

of Gamble:

“Mr. Topel: You'll not even give the curative

instruction as to hearsay as somebody else, some-

body coming in subject to the co-conspiracy ex-

ceptions ?”

“The Court: That’s correct.”

“Mr. Topel: You wouldn’t even give that?”

“The Court: Your understanding is correct.”

(R. 79:7-12, 4/98/75)

“Mr. Topel: I am again going to request that

before the tape begins playing again that you

give the curative instruction that anything that

one co-conspirator says implicating another can-

not be used by the jury—should not be consid-

ered by the jury in determining whether the

other person is a member of the conspiracy until

and unless independent evidence shows that he is

a member of the conspiracy. Because throughout

the Gamble deposition there are a lot of state-

ments attributed not only from Gamble, but to

the other defendants which implicate defendant

King.” [Emphasis added].

“The Court: I'll give the instruction at the

end—the conclusion of the trial.”

(R. 149 :9-25, 4/29/75).

Later, during the testimony of one Charles Stevens,

the curative instruction was again requested (R. 751:

10-19, 5/5/75). The request was denied (R. 751:20,

5/5/75). Petitioner’s counsel then entered a continu-

ing exception to the failure to give the instruction (R.

751 :21-24, 5/5/75). The curative instruction was

again requested during the testimony of Drug En-

forcement Agency Agent Lionel Stewart (R. 968-970,

5/6/75). The trial court intimated that such a cura-

tive instruction might be given later in the trial

(R. 969-970, 5/6/75). This point was discussed later

that day (R. 999-1002, 5/6/75), but the trial judge

finally concluded that he would not give the curative

instruction (R. 1017-1019, 5/6/75). The appellant ob-

jected to this refusal (R. 1019:17-23, 5/6/75).

At the second trial, just after the jury was em-

paneled, the trial court offered to read to the jury

the instructions on conspiracy. Defense counsel ob-

jected. The same instructions given at the first trial

were given at the second trial, with a few additions

(R. 445:8-11, 5/28/75; R. 998-1005, 6/23/75). Again,

the “statements of a co-conspirator” instruction was

given in the same separated fashion (R. 1210-1211;

R. 1216:1-9, 6/4/75) and only at the end of the trial.

All objections made to the giving or omitting of jury

instructions at the first trial were deemed re-stated

and were incorporated for the second trial (R. 1234:

19-24, 6/4/75).

The first trial ended in a mistrial as to petitioner

on all counts. During the second trial, after heing

in deliberation two days, the jury asked to have read

back those portions of Gamble’s deposition testimony,

given in the absence of defendants, covering his being

given heroin in a girdle to take to the United States

(R. 1248, 6/6/75). These were the main portions

of Gamble’s testimony concerning petitioner. Over

defense objections (R. 1249, 1250, 6/6/75), those por-

tions, and only those portions, were read to the jury

(R. 1251). A few moments later, the jury returned

with verdicts of guilty as to petitioner on all counts.

REASONS FOR GRANTING THE WRIT

The confrontation issue presented here; of whether

depositions taken at government request, in a foreign

country, under highly restrictive conditions, may be

admissible in a criminal trial in the United States

is one of first impression in this or any other State

or Federal Court. The resolution of this question

has impact beyond this immediate case—under the

recently promulgated changes in the Federal Rules

of Criminal Procedure, Rule 15 for the first time

allows government depositions to be taken in all types

of criminal cases. Thus the confrontation issues pre-

sented here under 18 U.S.C. 3503’s deposition section

will bear heavily on issues arising under Rule 15’s

deposition provisions.

The Court of Appeals recognized, as it had to, that

this court has never authorized the use of depositions

in lieu of trial testimony. In every instance where

prior recorded testimony was held admissible it was

testimony given at a prior judicial proceeding—

either a preliminary hearing or prior trial. See, e.g.,

Mattox v. United States, 156 U.S. 237 (1895) (prior

trial) ; Mancusi v. Stubbs, 408 U.S. 204 (1972) (prior

trial) ; California v. Green, 399 U.S. 149 (1970) (pre-

liminary hearing); Barber v. Page, 390 U.S. 719

(1968) (preliminary hearing).

While this court has held that prior testimony may

be admissible it has set extremely high standards

circumscribing such admissibility. In Green this court

stated confrontation is satisfied if the prior testimony

is given under circumstances which:

(1) imsures that the witness will give his state-

ments under oath—thus impressing him with the

seriousness of the matter and guarding against

the lie by the possibility of a penalty for perjury ;

(2) forces the witness to submit to cross-examina-

tion, the “greatest legal engine ever invented for

the discovery of truth”; (3) permits the jury that

is to decide the defendant’s fate to observe the

demeanor of the witness in making his statement,

thus aiding the jury in assessing his credibility.

California v. Green, 399 U.S. 149, 158 (1970) (cita-

tion omitted).

Green and other confrontation cases set forth two

other additional criteria; first that the prior testimony

be given in circumstances “closely approximating

trial, and second, that the nature and scope of cross-

examination not be limited in any significant way.

(Green, supra, at 161).

While petitioner would argue that depositions can

never meet confrontation requirements—and thus 18

U.S.C. 3503 and Rule 15 F.R.C.P. would be facially

invalid—it is unnecessary to reach that question to

resolve the issue in this case. Assuming arguendo,

that under certain conditions depositions could be

constitutionally valid in criminal cases, the deposi-

tions here did not meet minimal constitutional stand-

ards.*

The Court of Appeals in upholding the introduction

of the depositions under the facts of this case stated

that since there were no restrictions on counsel’s abil-

ity to move about Japan and since counsel had “ade-

quate” time to investigate no infringement on the

right to effective representation occurred. In so stat-

ing the Court of Appeals ignored the uncontradicted

factual record.

Until immediately prior to their departure for

Japan, defendants and their counsel were not aware

that the defendants would be placed in highly restric-

tive custody in Japan. And not until after arrival in

Japan did defendants and their counsel learn that no

time would be allowed for pre-deposition investigation

in Japan and that defendants would not even be al-

lowed “in-country” phone calls.’

Thus counsel’s reliance on petitioner’s familiarity

with the language and relevant locales in Japan to

4Neither the two other 3503 deposition cases decided prior to this case

involved the factual background and restrictive cireumstances found

herein. See, United States v. Ricketson, 498 F.2d 367 (7th Cir. 1974);

United States v. Singleton, 460 F.2d 1148 (2d Cir. 1972).

5This notwithstanding the District Court’s express wish that counsel

be allowed at least 3 days lead time in Japan to prepare.

assist in the pre-deposition investigation was frus-

trated at the last moment by last minute restrictions.

Further, counsel were told they would be given time

upon arrival in Japan to investigate. No time at all

was allowed.

It is no answer, as the Court of Appeals would

argue, that there is no right in the United States for

defendants “to be freed to assist in pretrial investi-

gation efforts” (slip op. at p. 13). In the United

States there are normally no language barriers and

ample contacts through defendants with persons who

may have relevant information. Here petitioner was

not even allowed to make “in-country” phone calls to

assist counsel in meeting other persons.

Counsel further couldn’t discuss the information

developed during the depositions with the petitioner.

The hearing room was close and cramped with sen-

sitive video microphones placed all about the room.

The hotel rooms abutted the Japanese security com-

mand post—which was filled with electronic equip-

ment. The waiting room at the prison abutted rooms

filled at all times with security personnel. Discussions

between counsel and petitioner at the hotel were at all

times under direct visual-close proximity observation

of a Japanese security officer.®

6The Court of Appeals disingenuously distinguishes the recent case of

Geders v. United States, 425 U.S. 50 (1976) as being inapposite, con-

struing Geders as applying only to the trial context. (Slip Op. at p. 12

n,9). These depositions were taken and could only have been taken, in

lieu of trial testimony. That is why depositions were authorized. The

depositions here were part of the trial, indeed they formed the backbone

of the government’s case.

The depositions themselves were a mockery of a

judicial proceeding. The hearing officer described

himself as “incompetent” and refused to rule on

objections. The depositions were held in a cramped

tight crowded room, where counsel could not confer

privately with petitioner.

Finally the Court of Appeals construed Green to

mean that so long as counsel could ask any questions

cross-examination was not limited in any significant

way. Such a niggardly reading of Green’s language

is violently inconsistent with this court’s concern for

due process and confrontation rights of the accused.

Effective representation and confrontation is much

more than merely the physical opportunity to ask

questions. It is at the very least the right to ask

informed and intelligent questions—based on an ade-

quate opportunity to investigate and discuss testi-

mony with the accused. The Court of Appeals con-

struction of the Green language is indeed a triumph

of form over substance and should not be allowed to

stand.’ |

A resolution of the difficult confrontation and due

process questions—of first impression—posed by the

facts of this case is needed. A writ of certiorari

should issue.

7The Court of Appeals also found that since no constitutional depriva-

tion occurred, petitioner’s withdrawal from the depositions worked a

waiver. (Slip Op. at p. 16). Petitioner argued that there was no right

to waive as no meaningful right to confront was offered. Thus the

“waiver” question is ultimately determined by the existence vel non of

constitutional infirmities in the deposition cireumstances.

The Court of Appeals ruling that the trial court

did not err in refusing to give a cautionary instruc-

tion limiting the admissibility of co-conspirators’

statements absent proof aliunde of the conspiracy and

a specific defendant’s participation in such con-

spiracy is in conflict with the holdings of the other

circuits which have addressed this issue. The Fifth

Circuit in United States v. Apollo, 476 F.2d 156, 162

(5th Cir. 1973), the Seventh Cireuit in United States

v. Buschmann, ....... F.2d. ....... (7th Cir. 1976) ; and the

First Circuit in United States v. Honneus, 508 F.2d

566 (list Cir. 1974) have held that in a multi-

defendant conspiracy case a cautionary instruction

must, upon request, be given.

Here such request was repeatedly made and de-

nied. The Court of Appeals in rejecting the “A pollo”

rule cited to an inapposite case—Carbo v. United

States, 314 F.2d 718 (9th Cir. 1963). Carbo held that

the judge determined the question of whether co-

conspirators’ statements could be used against other

co-conspirators. Carbo did not concern itself with

the problem addressed in A pollo—the need for a cau-

tionary instruction to the jury that statements intro-

duced before that preliminary determination had

limited admissibility.

A conflict now exists between the Ninth Circuit

and the other three circuits which have reached this

question.*

8Co-conspirators’ statements are no longer defined as hearsay. F.R.E.

801 (d)(2)(E). However, their admissibility against persons other than

the declarant would still require the same proof aliunde as before and

thus a cautionary instruction would still be required.

CONCLUSION

Resolution of both questions presented is necessary

and important. A writ of certiorari on both ques-

tions should issue.

Dated, January 5, 1977

Respectfully submitted,

Marcus 8. ToPEL,

WituiaM L. OsTERHOUDT,

By Marcus 8. ToPEt,

Counsel for Petitioner.

(Appendix ‘‘A’’ Follows)

APPENDIX A

Appendix 6“ A”

United States Court of Appeals

for the Ninth Circuit

United States of America, )

Plaintiff-Appellee,

V6. No. 75-2424

Andre Willis King,

Didietent- Aapeitent.

United States of America,

Plaintiff-Appellee,

vs.

Fred Neil Powell,

Defendant-Appellant. |

No. 75-2934

[ December 16, 1976]

Appeal from the United States District Court

for the Northern District of California

OPINION

Before: BaRNgEs, CHoy and KENNEDy, Circuit Judges.

Cuoy, Circuit Judge:

Andre Willis King and Fred Neil Powell appeal

from multiple-count convictions for conspiracy to

commit and for the commission of narcotics offenses.

We affirm.

BACKGROUND

King and Powell were indicted with two others,

Kearney and J.emon, in an eight-count indictment

charging various violations of 21 U.S.C. $§ 841(a),

846, 959, and 963. In particular, King was charged

with conspiracy to import heroin illegally into the

United States and to possess and distribute heroin

(Count One) and with unlawful distribution of heroin

intended for importation into the United States

(Counts Three and Four). Powell was charged with

conspiracy (Count One), with unlawful distribution

of heroin intended for importation into the United

States (Counts Three, Four, and Five), and with

distribution of heroin (Count Eight). The indictment

accused King, Powell, Kearney, and Lemon, as well

as several unindicted co-conspirators, of engaging in

a scheme to obtain heroin in Thailand, transport it

through military cargo channels to Japan, and reship

the heroin in a variety of ways from Japan to the

United States for ultimate v-lawful sale and distri-

bution. Further detailed description of the activities

and the evidence will be referred to where specifically

relevant to issues on appeal.

Jury trial commenced in the district court on April

28, 1975. After a two and one-half week trial, Powell

was convicted of Count Eight and Lemon was con-

victed of three counts. After three days of delibera-

tion, the jury was unable to reach a verdict as to the

other counts and defendants. As to those a mistrial

was declared and a second jury trial commenced two

days later. The second jury found King and Powell

guilty as to all remaining counts.’

1Kearney was acquitted on one count; all others were found guilty.

Between them King and Powell raise six issues.

Numbers one inrough five apply to King and are dis-

cussed in his brief. Powell's brief adds a sixth, and

Powell also adopts by reference the arguments pre-

sented in King’s brief as to numbers one ard five.

ISSUES

1. Was the district court’s admission into evidence

of the depositions of two absent witnesses erroneous

as a denial of King’s and Powell’s rights of confron-

tation, effective assistance of counsel, and due process?

2. Did the district court err in denying King’s

motion for severance?

3. Did the district court err in refusing King’s

request for a cautionary instruction during the trial

regarding the admissibility of statements under the

co-conspirator exception to the hearsay rule?

4. Did the district court abuse its discretion in

rereading a portion of a witness’ testimony to the

jury?

5. Are the convictions of King and Powell for

violating 21 U.S.S. § 959 (unlawful manufacture or

distribution of a controlled substance for purposes of

unlawful importation) unconstitutional since Con-

gress’ legislative authority does not properly reach

their activity outside the United States.

6. Was the evidence insufficient to support Pow-

ell’s conviction on Count Eight?

DISCUSSION

A. Use of Deposition Testimony under 18 U.S.C.

§ 3503

A key component of the Government’s case rested

on the testimony of two unindicted co-conspirators,

Adams and Gamble. They were not available to tes-

tify at trial since both were serving terms of impris-

onment at Yokosuka Prison in Japan for Japanese

narcotics law offenses.* The Government thus sub-

mitted their testimony in the form of videotaped

depositions with a stenographic transcript.

The depositions were taken pursuant to 18 U.S.C.

§ 3505, adopted in 1970.* Section 3503(a) provides

2Subpoenas were served upon Adams and Gamble at Yokosuka

Prison in Japan, but the prison warden would not permit the depon-

ents to travel to the United States to honor the subpoenas.

8The statute provides in full:

§ 3503. Depositions to preserve testimony

(a) Whenever due to exceptional circumstances it is in the interest

of justice that the testimony of a prospective witness of a party

be taken and preserved, the court at any time after the filing of an

indictment or information may upon motion of such

notice to the parties order that the testimony of such wi

taken by deposition and that any designated book, paper, »

ment, record, recording, or other material not privileged be pro-

duced at the same time and place. If a witness is committed for

failure to give bail to appear to testify at a trial or hearing, the

court on written motion of the witness and upon notice to the

parties may direct that his deposition be taken. After the deposi-

tion has been subscribed the court may discharge the witness. A

motion by the Government to obtain an order i

shall contain certification by the Attorney General or his designee

that the legal proceeding is against a person who is

have participated in an organized criminal activity.

(b) The party at whose instance a deposition is to be

shall give to every party reasonable written notice of the time

i i te the name

that a court may order testimony for a criminal action

to be taken by deposition ‘‘[w]henever due to excep-

tional circumstances it is in the interest of justice

that the testimony of a prospective witness of a party

be taken and preserved,” and subsection (f) permits

iti upon that right.

(ce) If a defendant is without counsel, the court shall advise

him of his rights and assign counsel to represent him unless the

defendant elects to proceed without counsel or is able to obtain

counsel of his own choice. Whenever a deposition is taken at the

instance of the Government, or whenever a deposition is taken at

the instance of a defendant who appears to be unable to bear the

expense of the taking of the deposition, the court may direct that

the expenses of travel and subsistence of the defendant and his

attorney for attendance at the examination shall be paid by the

Government. In such event marshal shall make payment

accordingly.

the use of such deposition *t trial if, among other

reasons, ‘‘the witness is out of the United States,

unless it appears that the absence of the witness was

procured by the party offering the deposition ... .”

The district court admitted the depositions into evi-

dence on this basis. The waren also provides, in

subsection (b), that:

A defendant not in custody shall have the right

to be present at the examination, but his failure,

absent good cause shown, to appear after notice

and tender of expenses shall constitute a waiver

of that right and of any objection to the taking

and use of the deposition based upon that right.

Under submission (d), the scope of examination and

cross-examination allowed is as broad as would be

allowed at trial itself, and the deposition is taken and

filed as in civil actions. See Fed.R.Civ.P. 28, 30.

The depositions were set at Yokosuka Prison, and

defendants (then on bail) and their attorneys trav-

eled to Japan to participate at government expense.

The Japanese government was uneasy about the entire

project, however, and it imposed several restrictions.

It required that the defendants arrive together no

of sickness or infirmity; or that the witness refuses in the trial or

hearing to testify concerning the subject of the deposition or part

offered; or that the party offering the deposition has been unable

to procure the attendance of the witness by subpoena. Any deposi-

tions may also be used by any party for the purpose of con-

tradicting or impeaching the testimony of the deponent as a witness.

If only a part of a deposition is offered in evidence by a party,

an adverse party may require him to offer all of it which is

relevant to the part offered and any party may offer other parts.

(zg) Objections to receiving in evidence a deposition or part

thereof may be made as provided in civil actions.

See also Fed.R.Crim.P. 15 (depositions).

earlier than January 20, 1975, and that the deposi-

tions begin the next day, though defense counsel pro-

tested that more time was needed to investigate and

prepare for cross-examination. Defendants were taken

from the airport to rooms prepared for them and

they were guarded throughout their entire stay. They

were confined to their rooms except for the trips to

the prison for the deposition sessions, and they were

not allowed to telephone or otherwise communicate

with anyone else in Japan. They and their room were

frequently searched. They could confer with their

attorneys initially only in their own rooms, but sub-

sequently in counsel’s rooms as well. There were also

rooms set aside for consultation purposes at the

prison. The defendants and their attorneys could not

speak privately with the deponents prior to their

examinations, and a rigid daily schedule was set for

the depositions.

Defense counsel vigorously objected to these condi-

tions, and American consular officials attempted to

have them relaxed, but the Japanese government

would not relent. Claiming that the circumstances

were intolerable, defendants and their counsel with-

drew on the fourth day during the Adams’ deposition

and returned to the United States. The Government

continued under the restrictions, taking the remainder

of Adams’ deposition and all of Gamble’s after the

defense’s departure.

Back before the district court, the defendants

moved to exclude the depositions. The motions were

denied. The deposition videotapes were played to the

jury in both trials with all constitutional objections

made at the time of taking deleted. The court pro-

hibited defense counsel from commenting to the jury

either on the circumstances of the depositions or on

the absence of cross-examination of Gamble. Nor were

they allowed to raise evidentiary objections to ques-

tions in Gamble’s testimony, their failure to appear

and assert them at the deposition being taken as a

waiver.

Appellants here raise three objections: (1) that the

use of deposition testimony of witnesses absent at

trial, as authorized by § 3503, is unconstitutional on

its face; (2) that such use in the circumstances of

this case is unconstitutional; and (3) that their

departure from the deposition was not an effective

waiver.

1. Facial Constitutionality of 18 U.S.C. § 3503

Appellants argue that the Supreme Court has never

expressly authorized, for sixth amendment confron-

tation purposes, the use of an absent witness’ depo-

sition in lieu of trial testimony. While that may be

true, the Court has observed that, at least since

Mattox v. United States, 156 U.S. 237 (1895), “prior-

recorded testimony has been admissible in appro-

priate cases.” Mancusi v. Stubbs, 408 U.S. 204, 213

(1972). Instances where such evidence has withstood

sixth amendment scrutiny include testimony given at

an earlier trial (see, ¢.g., Mancusi, supra) or at a

preliminary hearing (see, e.g., California v. Green,

399 U.S. 149 (1970)) where the defendant was repre-

sented by counsel who had the opportunity to con-

duct an effective cross-examination.*

We consider here a federal statute entitled to a

strong presumption of constitutionality. See United

States v. Watson, 423 U.S. 411, 416 (1976), quoting

United States v. Di Re, 332 U.S. 581, 585 (1948).

Two other circuits have considered the confrontation

question in the context of § 3503, and both have re-

jected constitutional challenges as to the use at trial

of such despositions. United States v. Ricketson, 498

F.2d 367 (7th Cir.), cert. denied, 419 U.S. 965 (1974) ;

United States v. Singleton, 460 F.2d 1148 (2d Cir.

1972), cert. denied, 410 U.S. 984 (1973). See also

United States v. Carter, 493 F.2d 704 (2d Cir. 1974).

We agree with these holdings.

*Dying declarations have also long been admissible without offending

confrontation principles, this even despite the lack of cross-examination.

See, e.g., Mattox, supra. See also Fed. R. Evid. 804(b)(2) (statement

under belief of impending death).

In his scholarly concurrenve to Green, Justice Harlan analyzed the

then extant confrontation opinions of the Supreme Court. Green, 399

U.S. at 172-89. After a review of the common law antecedents to the

constitutional confrontation doctrine, Justice Harlan concluded that

underlying the operative principle of the right of confrontation was an

availability rule, “one that requires the production of a witness when

he is available to testify.” Jd. at 152. The harmonization of the hold-

ings explained both the dying declaration exception and the refusal

to except prior recorded testimony when the witness is still available

to testify. Id. at 182-83. Compare id. at 162 (opinion of the court).

He cited West v. Louisiana, 194 U.S. 258 (1904), as one of the

opinions which both justified his rationale and “anchored it in prece-

dent.” In West, the Court considered the use of deposition testimony

at trial. The issue, however, was whether the there instant state proce-

dures complied with the due process command of the fourteenth amend-

ment. The sixth amendment question was not specifically dealt with,

though the admission of the testimony was affirmed. The West opinion

emphasized availability of the witness as the unifying link ia the

earlier federal precedents, rather than cross-examination.

In Pointer v. Texas, 380 U.S. 400, 406 (1965), the Supreme Court

held the sixth amendment right of confrontation applicable to the states

by virtue of the fourteenth amendment.

In Mancusi, the Court characterized its concern

under the confrontation clause as being

to insure that there “are indicia of reliability

which have been widely viewed as determinative

of whether a statement. may be placed before the

jury though there is no confrontation of the

declarant,” Dutton v. Evans, [400 U.S. 74, 89

(1970) ], and to “afford the trier of fact a satis-

factory basis for evaluating the truth of the prior

statement,” California v. Green, [399 U.S.] at 161.

408 U.S. at 213. Confrontation meets the need for ade-

quate reliability and evaluation in that it

(1) insures that the witness will give his state-

ments under oath—thus impressing him with the

seriousness of the matter and guarding against

the lie by the possibility of a penalty for perjury;

(2) forces the witness to submit to cross-examina-

tion, the “greatest legal engine ever invented for

the discovery of truth”; (3) permits the jury that

is to decide the defendant’s fate to observe the

demeanor of the witness in making his statement,

thus aiding the jury in assessing his credibility.

California v. Green, 309 U.S. 149, 158 (1970) (cita-

tion omitted). In Green, testimony given at the de-

fendant’s preliminary hearing was admitted under

§ 1235 of the California Evidence Code as substantive

evidence at trial. The evidence was held to satisfy

the protection of interests guaranteed by the confron-

tation clause because the prior-recorded testimony was

given under oath, defendant was represented by coun-

sel—indeed, the same counsel who later represented

him at trial—and was able to cross-examine the wit-

ness, and the proceedings were conducted before a

judicial tribunal equipped to provide a record of the

hearing. Id. at 165.

The Court regarded the testimony as admissible

“wholly apart from the question of whether [the de-

fendant] had an effective opportunity for confronta-

tion at the subsequent trial.”* Id. The Court reasoned

that though a preliminary hearing is “ordinarily a

less searching exploration into the merits of a case

than is a trial,” id. at 166, had the the declarant been

unavailable at trial without state connivance, the con-

frontation clause would not have been offended by

admission of the hearsay testimony. The right of

cross-examination afforded at the earlier hearing pro-

vided “substantial compliance with the purposes be-

hind the confrontation requirement ... .” Id. See

Barber v. Page, 390 U.S. 719 (1968).

We think the Green rationale controls the resolu-

tion of the present issue. A deposition taken under

§ 3503 satisfies the procedural safeguards required

by the confrontation clause.® The section by its terms

is limited to “exceptional circumstances” where, in the

interest of justice, it is necessary to take and preserve

5This language has been labeled mere dicta and it has been criticized.

See United States v. Singleton, 460 F.2d 1148, 1155-59 (2d Cir.

1972) (Oakes, J., dissenting), cert. denied, 410 U.S. 984 (1973); 8

J. Moore, Moore’s Feperat Practice {15.02(3], at 15-27 & n.40 (2d

ed. 1976). But while the Ricketson court considered the language “at

best an alternative holding,” 498 F.2d at 374, as a separate sub-

division of a majority opinion, we agree with the Ricketson panel that

we are not at liberty to depart from its import.

®We limit our serutiny to the provisions of §3503 employed to

authorize the depositions in the instant case. We therefore intimate no

opinion with respect to provisions not relevant herein.

testimony away from the trial court.’ 18 U.S.C. § 3503

(a). Use of the testimony at trial as substantive proof

is permitted only if it appears that the witness

meets one of several “unavailability” criteria.* The

section incorporates provisions of the Federal Rules

of Civil Procedure to govern criminal depositions.

Federal Rule of Procedure 30(c) requires an author-

ized person to put the deponent on oath. Defendants

have the right to be present during the deposition

and to be represented by counsel. 18 U.S.C. § 3503(¢).

The scope of examination is as would be allowed at

full trial. Id. The rules permit depositions taken in

foreign countries before persons authorized either

by the law thereof or of the United States, Fed.R.

Civ.P. 28(b), and require the recording of the testi-

mony. Jd. 30(c). The entire procedure is under the

authority and general supervision of the trial court.

Finally, depositions generally expose the deponent

to rigorous cross-examination on all issues, rather

than the limited question of probable cause as in the

Green preliminary hearing.

The Supreme Court has emphasized that “the mis-

sion of the Confrontation Clause is to advance a prac-

tical concern for the accuracy of the truth-determining

process in criminal trials by assuring that the trier

7Motions by the Government to obtain a deposition order under

§ 3503 must contain certification by the Attorney General or his

designee that the instant proceeding is against someone believed to

have participated in organized criminal activity. 18 U.S.C. § 3503(a).

8These include the witness’ death, absence from the United States

(unless the absence was procured by the party offering the deposition),

sickness or infirmity, refusal to testify at trial with respect to the

deposition’s subject or part offered thereof, or the inability of the

offering party to procure attendance by subpoena. 18 U.S.C. § 3503(f).

of fact [has] a satisfactory basis for evaluating the

truth of the prior statement.” Duttoa v. Evans, 400

U.S. 74, 89 (1970), quoting Green at 161. We believe

that the procedures for depositions taken and ad-

mitted at trial pursuant to § 3503 provide the trier

of fact with a satisfactory basis for truth evaluation

consistent with both accurate truth determination and

practical considerations for the administration of jus-

tice. Accordingly, we hold that the statute is not

facially unconstitutional.

2. Unconstitutionality of 18 U.S.C. § 3503 As Applied

Appellants also argue that there were unconstitu-

tional defects in the particulars of these depositions.

Specifically they allege: that the deponents were under

no effective oath and were without fear of a potential

perjury prosecution; that the videotap. presentation

of the deponents’ testimony was inadequate to let

the jury observe the demeanor of the witnesses; and

that the “oppressive, intimidating and frightening”

conditions at the deposition proceedings in Japan con-

stituted a denial of effective cross-examination, repre-

sentation of counsel, and due process.

a. The Oath. Appellants argue that no valid oath

was administered to the deponents, such that they

could “lie with impunity.” We disagree. Both depo-

nents were sworn in by First Secretary and Consul of

the United States Embassy, Tokyo, Japan, who pre-

sided as hearing officer. Secretaries cf embassy and

consular officers are authorized to administer oaths

and take depositions. 22 U.S.C. § 1203. See also 22

C.F.R. §§ 92.4, 92.49 et seqg., Consular Convention and

Protocol of March 23, 1963 beiween the United States

of America and Japan, 15 U.S. Treaties & Other Intl

Agmnts. 768, 795 (1964) (permitting consular officers

to take depositions on behalf of the sending state).

Section 3503 incorporates the federal rules governing

civil depositions, 18 U.S.C. § 3503(d), which, in turn,

permit depositions taken before persons authorized

to administer oaths in the place where the examina-

tion is held. Fed.R.Civ.P. 28(b) (1).

The commission of perjury when under oath in a

deposition taken, as here, before a secretary of em-

bassy or consular officer is punishable “in the same

manner, in all respects, as if the offense had been

committed in the United States ... .” 22 U.S.C.

§ 1203. The federal perjury and false declaration stat-

utes also specifically apply to extraterritorial testimony

under oath where authorized, as here, for the proceed-

ings. 18 U.S.C. §4 1621, 1623. We conclude that the

deponents were validly under oath and subject to the

penalties for perjury.

b. Videotape and Demeanor Evidence. Appellants

urge that the admission of the deposition evidence was

in any case erroneous because the use of videotape

testimony cannot provide an adequate opportunity to

observe demeanor. We think this argument misses

the focus of the Green analysis. It is true that a

photographic or electronic presentation is not a per-

fect substitute for live testimony on the witness stand.

But confrontation does not require perfect presenta-

tion and availability of demeanor evidence to the trier

PIE a Oe re wpe me EE EO OPS REE AS Gree

of fact; the loss of some demeanor evidence that would

have been relevant to resolving questions of credibility

does not violate confrontation rights, 399 U.S. at 160.

Appellants further argue that videotape presenta-

tion is also defective hecause the picture portrays only

the witness and not counsel. Constitutional interests

are served, however, by a somewhat narrower scope

of vision. The Court reasoned in Green that one of

the objectives of confrontation is to permit the jury

deciding a defendant’s fate “to observe the demeanor

of the witness in making his statement, thus aiding

the jury in assessing his credibility.” Id. at 158 (em-

phasis added).

Finally, we note that evidence presented in the form

of a stenographic transcript and a videotape cannot

be any less helpful in enabling a jury to assess credi-

bility than a bare transcript alone, read by the prose-

eutor. See, e.g., Mancusi v. Stubbs, 408 U.S. 204

(1972).

ce. Deposition Proceedings. Appellants contend that

the circumstances surrounding the instant depositions

were sufficiently restrictive and oppressive so as to deny

them effective cross-examination, representation by

counsel, and due process. As the factual basis for this

claim, appellants marshal a series of events which

they allege coalesced to deprive them of constitutional

protections. While the situation may not have been

ideal, the defects do not approach constitutional in-

firmity.

Appellants present a generous list of alleged harass-

ments impeding their investigation and the conduct of

the investigation while in Japan. At the outset (though

appellants argue that the point is irrelevant), we note

that none of the conditions imposed upon appellants

and counsel were at the behest of the United States

Government. Neither the unavailability of the wit-

nesses nor the conditions in Japan were instigated

with state connivance. There is no suggestion of active

prosecutorial misconduct or even passive acquiescence

in covertly welcomed developments.’ Cf. Douglas v.

Alabama, 380 U.S. 415 (1965). Indeed, counsel for

the Government operated under identical restraints.'°

Appellants strongly complain that they were denied

adequate time while in Japan to investigate the case.

The Government p.id for the travel expenses of the

defendants and their attorneys to attend the deposi-

tions, as the court was permitted to order under

§ 3503(c). Aside from complying with that discre-

tionary court order, the Government had no statutory

or constitutional responsibility to finance the prepar-

Through State Department channels, the Government attempted to

nave certain conditions removed or relaxed. Those finally insisted upon

were imposed by the Japanese government in the protection of its own

interests and those of its citizens as it deemed necessary.

Geders v. United States, 425 U.S. 80 (1976), which held that a trial

court order preventing a defendant in a federal criminal prosecution

from consulting with his counsel during an overnight trial recess worked

a deprivation of the sixth amendment right to counsel, is inapposite.

The Court specifically limited its serutiny to the trial context and did

“not reach, and [did] not deal with, limitations imposed in other

circumstances.” Id. at 91.

10That the Japanese government was justified in considering the

limitations as necessary security measures is beyond the review fune-

tion of this Court. We note, however, that appellant Powell was a

convicted felon in Japan, and appellant King had been arrested there

for possession of 34 grams of heroin. The Japanese officials were

particularly concerned with the flow of illegal narcotics traffie through

their country. This background places the admittedly restrictive proce-

dures into contextual perspective.

ation of the defense. Appellants’ counsel had adequate

time prior to the depositions to mount an investiga-

tion.'' While the appellants’ time in Japan and mo-

bility once there was restricted by the Japanese gov-

ernment, there were no restrictions placed on counsel’s

freedom to travel or look into all aspects of the

charges and deponents’ backgrounds. Even within the

United States there is no constitutional right for

defendants in custody to be freed to aid in pretrial

investigation efforts.

Appellants complain of an inability to confer with

their counsel in sufficient privacy because the confer-

ence rooms at Yokosuka Prison and the hotel suites

had been secured by Japanese authorities, and be-

cause they were under continuous guard. Aside from

the admittedly tight security measures already noted,

however, the record reveals no allegation of specific

facts to buttress appellants’ fears of electronic eaves-

dropping. Cf. United States v, Alter, 482 F.2d 1016

(9th Cir. 1973) ; Cohen v. United States, 378 F.2d 751

(9th Cir. 1967).

Appellants insist that a prerequisite to admissibil-

ity lacking in deposition testimony is the ambience of

solemnity closely approximating a trial. Cf. California

v. Green, 399 U.S. 149, 165 (1970) (Court noted that

the admitted preliminary hearing testimony was

‘given under circumstances closely approximating

those that surround the typical trial”). While the

11The Government’s motion to take the depositions was granted in

November 1974 and all of the deponents’ prior statements in the

possession of and known to the Government were turned over to the

defense on or about November 22, 1974.

source of appellants’ “solemnity” requirement is

somewhat unclear, we think that the instant deposi-

tion complied with that requirement in meeting the

specific interests enumerated in Green: the witnesses

were under oath; defendants were represented by

counsel with the opportunity for cross-examination ;

and the proceedings were before an authorized hear-

ing officer who was equipped to take and preserve

the testimony. See id. The entire record was then

under the supervision and control of a United States

District Judge. 18 U.S.C. § 3503(f); Fed.R.Civ.P.

30(c). We further note that the deponents were under

an oath they believed to be valid and they agreed to

be cross-examined by a battery of experienced counsel.

The physical context of the prison with the security

personnel present would surely contribute to “im-

pressing [the deponents] with the seriousness of the

matter and guar[d] against the lie... .” Green, 399

U.S. at 158.

In attacking the deposition circumstances as funda-

mentally limiting defense counsel’s ability to conduct

a cross-examination, appellants have misconstrued

Green. Appellants cite the observation in Green, that

cross-examination at the prior preliminary hearing

there in issue did ‘‘not appear to have been signifi-

cantly limited in any way... .” Id. at 166. As part

of the same sentence, however, the Court made clear

that the focus of its scrutiny was on the possible limi-

tation of the scope or nature of cross-examination.

We find no indication that cross-examination was

limited in the Green sense. Indeed, deposition cross-

examination is potentially broader and more reveal-

ing for purposes of discovery than trial testimony

because the hearing officer merely records objections

for later ruling by the court; the deponent is per-

mitted to answer subject to later striking. Fed.R.Civ.

P. 30(¢).

Appellants cite the inability to recall deponents as

further exacerbating appellants’ due process and rep-

resentation rights. This reasoning is premised on an

alleged total inability to communicate with counsel.

Appellants’ analysis is faulty for two reasons. It first

assumes that the failure to take advantage of avail-

able opportunities for conference would be vindicated

upon our reviewing their fears of surveillance. We

have rejected that pre:nise. It second assumes incor-

rectly that inability to recall renders the initial tesvi-

mony infirm. The deponents were subject to cross-

and recross-examination ‘‘as would be allowed at the

trial itself.” 18 U.S.C. § 3503(d). Courts have upheld

admission of prior testimony where the witness was

not subject to recall. See, e.g., Mancusi v. Stubbs, 408

U.S. 204 (1972) ; United States v. Ricketson, 498 F.2d

367 (7th Cir.), cert. denied, 419 U.S. 965 (1974) (sec-

tion 3503 deposition).

Other problems cited by appellants occur in the

context of any deposition, within or without the

United States. Appellants complain of an inability to

interview the deponents prior to the examination, yet

such an interview is not an absolute right; the choice

to speak to defense counsel is the witness’ alone. Ap-

pellants decry the failure of congruence between the

deponents’ prior statements and their deposition testi-

mony. The fleshing out of prior statements with hith-

erto unknown detail is the essence of deposition

testimony ; that the elaboration occurred at Yokosuka

Prison should not detract from its admissibility. We

think the obstacles to investigation were not signifi-

cantly greater than if the witnesses had been available

to testify in the United States.

We are cognizant of the procedural difficulties faced

by the district court in managing a multiple-count,

multiple-defendant trial, magnified by arranging for

a deposition to be taken on foreign soil. This case

involved several factual questions with respect to the

exact nature of the proceedings in Japan during the

deposition sojourn. In reviewing such questions of

fact (even where arguably mixed with law), this cir-

cuit has adhered to the ‘‘clearly erroneous” rule.

United States v. Hart, No. 74-3001, at 6-7 (9th Cir.

July 22, 1976). We are unable to say that the district

judge was clearly erroneous in concluding what the

circumstances were, and we think that they complied

with constitutional demands.

3. Waiver

During the cross-examination of deponent Adams,

the first of the two witnesses, appellants and their

counsel refused to participate further into the deposi-

tion proceedings. They were not present at all during

the Gamble deposition. This decision was based upon

an alleged inability to cross-examine the deponents

because of the restrictive security measures imposed

by the Japanese. Appellants insist that this conduct

cannot constitute an effective waiver of their objec-

tions to the taking and use of the deposition testimony

under § 3503. We disagree, and uphold the district

court’s ruling that appellants’ actions in departing

from the depositions worked a waiver.

The major long-standing Supreme Court authority

on waiver of fundamental rights is stated in Johnson

v. Zerbst, 304 U.S. 458 (1938): ‘A waiver is ordi-

narily an intentional relinquishment or abandonment

of a known right or privilege.” Jd. at 464. The de-

termination of whether a right (in Johnson, the sixth

amendment right to counsel) had been intelligently

waived must depend upon a survey of the particular

facts and circumstances surrounding the individual

case. Id.

By absenting themselves from the proceedings, by

failing to avail themselves of the opportunity to cross-

examine the Government witnesses, even if under less

than perfect conditions, the appellants intentionally

and knowingly gave up both the right to be present

and to object to future use of the testimony. It was

a calculated act, undertaken with the knowledge of

the potential consequences. Appellants ingeniously

argue that they gave up no ezisting rights since al-

leged constitutional defects emasculated the rights in

any event. Since we have already found the exercise

of those rights not to have been unconstitutionally

infringed upon, the waiver was effective.

Section 3503 itself supports this result. It provides

that ‘‘failure, absent good cause shown, to appear

after notice and tender of expenses shall constitute

a waiver of [the] right [to be present] and of any

objection to the taking and use of the deposition

based on that right.” 18 U.S.C. § 3503(b). Since ap-

pellants can offer no reason for their absence other

than the alleged harassments we have found not to be

constitutionally infirm, they have not shown ‘‘good

cause”, and have waived objections to the further

taking and use of deponents’ testimony.”

B. Severance.

Prior to his first trial, King moved for severance

of the parties and counts pursuant to Federal Rules

of Criminal Procedure 12 and 14. The district court

denied both this motion and subsequent motions for

acquittal, King claims that the denial of his Rule 14

severance motion violated his rights to a fair trial

and confrontation under the sixth amendment.'* He

bases this claim on the admission of the Adams and

Gamble depositions, which contained statements al-

legedly made by co-defendant Powell implicating

King in the charged criminal activities. The state-

ments were admitted as co-conspirator exceptions to

the hearsay rule. The depositions themselves were

admitted under 18 U.S.C. § 3503.

Powell, as a criminal defendant, could refuse to

take the stand at the joint trial, U.S. Const. amend.

12The legislative history casts some light on the application of the

waiver provision: “The test for waiver is intended to be the same

as for waiver of presence at trial. Voluntary absence from trial con-

stitutes such waiver.” 1970 U.S.C. Cong. & Admin. News 4007, 4025.

See Taylor v. United States, 414 U.S. 17 (1973).

13King does not now challenge the denial of his motion for severance

as an abuse of discretion.

V., and King could not compel his testimony or com-

ment on its absence. United States v. De La Cruz

Bellinger, 422 F.2d 723 (9th-Cir.), cert. denied, 398

U.S. 942 (1970). See 18 U.S.C. § 3481; Griffin v.

California, 380 U.S. 609 (1965). King claims he was

therefore denied an opportunity by cross-examination

to confront the witness against him, Powell."

The issue before us is whether the confrontation

clause was violated by admitting out-of-court declara-

tions under the co-conspirator exception to the hear-

say rule. We hold that it was not.

The primary concern of our inquiry must be to

determine, “whether, under the circumstances, the un-

availability of the declarant for cross-examination

deprived the jury of a satisfactory basis for evalu-

ating the truth of the extra-judicial declaration.”

United States v. Adams, 446 F.2d 681, 683 (9th Cir),

cert, denied, 416 U.S. 940 (1971). In making this

determination, we note that the confrontation clause

may be violated by an extra-judicial statement which

is admitted as an exception to the hearsay rule. United

States v. Snow, 521 F.2d 730, 734 (9th Cir. 1975),

cert. denied, 423 U.S. 1090 (1976); United States v.

Baxter, 492 F.2d 150, 177 (9th Cir.), cert. denied,

416 U.S. 940 (1974); Adams, 446 F.2d at 683."°

14King did have the opportunity to cross-examine the two deponents,

Adams and Gamble, in Japan. Powell is the declarant of some of the

extrajudicial statements testified to at the deposition.

15We have expressly reaffirmed the rule of Barter that “admissib-

[ility] under the co-conspirator exception does not automatically

demonstrate compliance with the Confrontation Clause.” Snow, 521

F.2d at 734 & n.2.

As construed by this Court in Snow, in Dutton v.

Evans, 400 U.S. 74, 88-89 (1970), the Supreme Court

enumerated several criteria which there indicated

whether the requisite ‘‘satisfactory basis” for the

jury’s determination is present.

(1) [T]he declaration contained no assertion of

a past fact, and subsequently carried a warning

to the jury against giving it undue weight; (2)

the declarant had personal knowledge of the iden-

tity and role of participants in the crime; (3)

the possibility that the declarant was relying upon

faulty recollection was remote; and (4) the

circumstances under which the statements were

made did not provide reason to believe that the

declarant had misrepresented the defendant’s in-

volvement in the crime.

521 F.2d at 734. We find that Poweli’s statements

satisfy all of these criteria. In each instance, Powell

was speaking of his then current dealings with King.

Powell had knowledge of King and his role in these

activities. Since Powell was speaking of current deal-

ings there is little possibility that he was relying on

faulty recollection. The circumstances were such that

it is not likely that Powell would lie to Adams and

Gamble, since he had no reason to anticipate their

future testimony for the Government.

There is language in the decisions indicating that

other factors may be involved in determining the

admissibility of extra-judicial statements under the

confrontation clause. Dutton, 400 U.S. at 87; Snow,

521 F.2d at 735-736. First among these is whether

or not the introduction of the statement will have a

“‘erucial’ or ‘devastating’” effect. In view of the

large amount of other evidence substantiating King’s

activities as described by Powell, we do not regard

Powell’s statements as crucial or devastating. It is

true that the bulk of this evidence is circumstantial,

but such evidence is weighed on the same scale and

laid before the jury in the same manner as direct

evidence. Holland v. United States, 348 U.S. 121, 139-

40 (1954); United States v. Nelson, 419 F.2d 1237,

1240-41 (9th Cir. 1969). Of the other factors men-

tioned, use of a coerced confession, prosecutorial mis-

conduct, use of a paper transcript, and the wholesale

denial of cross-examination were not present in the

instant case.

The final factor mentioned, the effects of a joint

trial, is particularly relevant here in that this portion

of the appeal is based on the contention that one of

those effects—the absence of King’s ability to cross-

examine Powell—violated King’s rights under the

confrontation clause. In Dutton, the Supreme Court

did discuss four cases involving the potential for

denial of cross-examination of a co-defendant inher-

ent in a joint trial. Those cases, however, all focused

on confessions by one co-defendant implicating the

other, which were absolutely inadmissible as against

the implicated co-defendant. Roberts v. Russell, 392

U.S. 293 (1968); Bruton v. United States, 391 U.S.

123 (1968); Brookhart v. Janis, 384 U.S. 1 (1965) ;

Douglas v. Alabama, 380 U.S. 415 (1965). Here we

deal with statements which would normally be ad-

missible against the implicated co-defendant, King,

under a valid hearsay exception.’®

We have already considered whether the confronta-

tion clause was violated by the instant use of the co-

conspirator hearsay exception, and we have held that

it was not. The confrontation clause does not abso-

lutely require cross-examination but rather safeguards

of reliability. We think those safeguards were present

here.

Furthermore, it is not clear that severance would

have any beneficial effect for King. His counsel has

only alleged, based on King’s own assertion of inno-

cence, that Powell would testify in his favor. From

the information before us, it seems as conceivable

that Powell would refuse to testify pending his ap-

peal, or would even further implicate King, as that

he would exculpate King or deny his earlier declara-

tions.

The denial of the motion for severance is affirmed.

16Since we have held that the evidence here was not crucial or

devastating, we need not comment on the strength of the dictum in

Dutton and Snow indicating that if evidence is crucial or devastating,

it could be absolutely barred from admission on confrontation clause

grounds. No holding of any case brought to our attention has turned

on the application of this standard. However, it is possible to read the

Supreme Court’s dictum in Dutton as casting a quantitative analysis

into the context of several factors: i.e., coerced confession, prosecutorial

misconduct, paper transcript, denial of cross-examination, and joint

trial. Thus, whether evidence is crucial or devastating may not be

determinable in the abstract—as an independent factor—as the dictum

in Snow may suggest. Rather, “ ‘crucial’ or ‘devastating’” may be a

standard against which evidence from one of the several contexts is

compared, the admission of which, if below the threshold, would be

true harmless error. See Chapman v. California, 386 U.S. 18 (1967);

Herzog v. United States, 235 F.2d 664 (9th Cir.), cert. denied, 352

U.S. 844 (1956).

C. Curative Instruction

Some of the evidence against King was admitted

under the co-conspirator exceptiou io the hearsay

rule.’* For such evidence to be admitted, the govern-

ment had to establish by independent evidence a prima

facie case that the conspiracy which forms the basis

of the exception in fact existed. United States v.

Spanos, 462 F.2d 1012, 1014 (9th Cir. 1972); Carbo

v. United States, 314 F.2d 718, 737 (9th Cir. 1963),

cert. denied, 377 U.S. 953 (1964). See Glasser v.

United States, 315 U.S. 60 (1942). King argues here

that the district court erred in failing to give a re-

quested cautionary jury instruction at the time the

evidence was offered that extra-judicial declarations

of one co-conspirator implicating another should not

be considered against the other person unless inde-

pendent, nonhearsay evidence establishes the existence

of the conspiracy and his participation in it, beyond

a reasonable doubt. The court instead reserved the

instruction for the end of trial.**

The Government argues that all objections to use

of the co-conspirator’s statements testified to at the

deposition were waived by appellant’s absence there-

from, citing 18 U.S.C. §3503(b) and Johnson v.

17Appellants’ trial took place in April 1975, when the Federal Rules

of Evidence were not yet in effect. Rule 801(d)(2)(E) classifies state-

ments made by co-conspirators in the furtherance of the conspiracy as

nonhearsay.

18Apparently at the second trial, just after the jury had been em-

paneled, the court offered to read all the instructions as to conspiracy.

The defense objected, however, because the court did not offer to read

only the curative instruction requested at the first trial, or all the

instructions concerning, for example, the burden of proof. The instruc-

tions were then subsequently included in the jury charge.

Zerbst, 304 U.S. 458 (1938). The co-conspirator ex-

ception was not invoked only as to the testimony of

deponents Adams and Gamble, however ; the cautionary

instruction was requested as to the testimony of wit-

nesses present at trial. Moreover, King may have

raised hearsay objections while present during the

first part of the Adams deposition. Under § 3503(b),

King waived objections to the taking and use of the

deposition only to the extent that such objections

depended on his right to be present. Thus the waiver

may not be broad enough to eliminate King’s objec-

tions.

King cites as persuasive authority—and urges this

court to adopt—the Fifth Circuit rule of United States

v. Apollo, 476 F.2d 156 (5th Cir. 1973), which recog-

nizes

a minimum obligation on the trial judge in a

conspiracy case in which extra-judicial state-

ments of alleged co-conspirators are proffered to

give a cautionary instruction on the limited uses

of hearsay testimony, explaining clearly to the

jury the requirement that the conspiracy itself

and each defendant’s participation in it must be

established by independent non-hearsay evidence

which must be given either prior to the introduc-

tion of any evidence or immediately upon the

first instance of such hearsay testimony.

Id. at 163. See also United States v. Jennings, 527

F.2d 862 (5th Cir. 1976); United States v. Beasley,

513 F.2d 309 (5th Cir. 1975) ; United States v. Nelson,

498 F.2d 1247 (5th Cir. 1974); United States v. Jim-

enez, 496 F.2d 288 (5th Cir. 1974), cert. denied, 420

6 OEE CU ee Te rE Sens

U.S. 979 (1975). The Apollo court relied substantially

upon Lutwak v. United States, 344 U.S. 604 (1953),

as the source for the ‘minimum obligation” to give

the curative instruction. In Lutwak, the Supreme

Court stated:

In the trial of a criminal case for conspiracy,

it is inevitable that there shall be, as there was

in this case, evidence as to declarations that is

admissible as against all of the alleged conspira-

tors; there are also other declarations admissible

only as to the declarant and those present who by

their silence or other conduct assent to the

truth of the declaration. These declarations must

be carefully and clearly limited by the court at

the time of their admission and the jury in-

structed as to such declarations and the limita-

tions put upon them. Even then, in most

instances of a conspiracy trial of several persons

together, the application of the rule places a

heavy burden upon the jurors to keep in mind

the admission of certain declarations and to

whom they have been restricted and in some

instances for what specific purpose.

Id. at 618-19.

The Government contends that the Lutwak lan-

guage relied upon was mere dictum, and that in any

case, the Fifth Circuit has restricted the Apollo rule

to cases of minimally sufficient showings of the con-

spiracy’s existence. See United States v. Moore, 505

F.2d 620 (5th Cir. 1974), cert. denied, 421 U.S. 918

(1975). In cases where independent nonhearsay evi-

dence strongly establishes the conspiracy, the Moore

court held that the jury may impute ‘‘acts and state-

ments to co-conspirators without restriction, and a

cautionary instruction turns out to be a meaningless

gesture.” 505 F.2d at 624 (footnote omitted).

Both parties overlook our own circuit’s analysis

in Carbo v. United States, 314 F.2d 718 (9th Cir.

1963), cert. denied, 377 U.S. 953 (1964)."° We reaffirm

the reasoning of Carbo.

In conspiracy cases, the preliminary question of

admissibility—the existence of the conspiracy and a

defendant’s participation in it—is often identical to

an ultimate issue at trial. This coincidence in consid-

eration of the conspiracy issue has led to confusion

with respect to whether the judge or jury is respon-

sible for determining the existence of the conspiracy

for purposes of admitting a co-conspirator’s state-

ments.

In Carbo, this Court addressed and resolved the

issue. Carbo involved extortion affecting commerce

and conspiracy to extort in violation of the Hobbs

Act, 18 U.S.C. § 1951. When the Government offered

statements by members of the conspiracy against

other alleged co-conspirators, the defense argued that

the preliminary question was to be resolved by the

jury upon proof beyond a reasonable doubt. We

reasoned then that, were the defense’s argument cor-

rect, there would be no occasion to resort to the declar-

ations; the evidence would not be considered unless

the defendant’s guilt had already been resolved.

18Carbo was decided and the instant case was tried prior to the

effective date of the Federal Rules of Evidence. For the present pro-

visions, see Fed. R. Evid. 104 (preliminary questions).

Carbo, 314 F.2d at 736, citing United States v. Dennis,

183 F.2d 201, 230-31 (2d Cir. 1950) (Hand, J.), aff'd,

341 U.S. 494 (1951). We noted:

To accept the problem as one of admissibility

of evidence is to recognize that the declarations,

if admissible, shail be considered by the jury in

reaching its determination upon the issue of

innocence or guilt. It will not do to tell the jury

that it must reach its determination first.

Id. (emphasis in original). We also rejected giving

the preliminary question to-the jury to be decided by

it upon the basis of a prima facie case rather than

proof beyond a reasonable doubt, reasoning that the

compartmentalization of distinct evidence weighing

standards (even if cautiously isolated by instructions)

was an impractical—and potentially prejudicial—

burden. We therefore adopted the view of function

allocation between judge and jury which assigns to

the judge questions of fact determinative of admissi-

bility.

It is for the judge then, and not the jury, to

determine the admissibility of the declarations.

In making this determination the test is not

whether the defendants’ connection had by inde-

pendent evidence been proved beyond a reason-

able doubt, but whether, accepting the independent

evidence as credible, the judge is satisfied that a

prima facie case (one which would support a

finding) has been made. Thereafter it is the jury’s

function to determine whether the evidence, in-

cluding the declarations, is credible and convine-

ing beyond a reasonable doubt.

Id. at 737.

The instruction requested and refused by the dis-

trict court in Carbo” was substantially similar to the

instruction requested—and given—here.*' We did not

hold the failure to give the Carbo instruction to be

error. Indeed, in adopting the ‘‘orthodox” view of

allocating functions between judge and jury we

quoted with approval the following language from

Dennis:

The law is indeed not wholly clear as to who

must decide whether [a co-conspirator’s] declara-

tion may be used; but we think that the better

doctrine is that the judge is always to decide,

as concededly he generally must, any issues of

20You will recall that testimony of acts and statements made

by alleged co-conspirators in the absence of a defendant was

received on a tentative basis in evidence. Such testimony was

received subject to independent proof of the existence of the euon-

spiracy and the absent defendant’s knowing participation in the

conspiracy. If you do not find, on independent proof, that a

conspiracy existed and the absent defendant knowingly partici-

pated in the conspiracy, the tentative basis is destroyed and all

such testimony must be ignored as to him.

A defendant’s connection with a conspiracy must be established

beyond a reasonable doubt, accordingly, by his own conduct and

his own statements or declarations.

314 F.2d at 735.

21Whenever it appears beyond a reasonable doubt from the evidence

in the case that a conspiracy existed, and that a defendant was one

of the members, then the statements thereafter knowingly made and the

acts thereafter knowingly done, by any person likewise found to be a

member, may be considered by the jury as evidence in the case as to

the defendant found to have been a member, even though the state-

ments and acts may have vccurred in the absence and without the

knowledge of the defendant, provided such statements and acts were

knowingly made and done during the continuance of such conspiracy,

and in furtherance of some object or purpose of the conspiracy.

Otherwise, any admission or incriminatory statement made or act

done outside of court, by one person, may not be considered as evidence

against any person who was not present and did not hear the state-

ment made, or see the act done.

Therefore, statements of any conspirator, which are not in furtherance

of the conspiracy, or made before its existence, or after its termination,

may be considered as evidence only against the person making them.

fact on which the competence of evidence de-

pends, and that, if he decides it to be competent,

he is to leave it to the jury to use like any other

evidence, without instructing them to consider it

as proof only aiter they too have decided a pre-

liminary issue which alone makes it competent.

Id at 737, quoting Dennis, 183 F.2d at 231.

We hold that the failure to give the requested in-

struction prior to the presentation of evidence perforce

was not error.*? To repeat such instructions several

times in the course of trial would compound the fears

of confusion recognized by Judge Hand in Dennis and

this Court in Carbo. Indeed, appellant here may have

benefited from the instruction received. Once the dis-

trict judge made his prima facie determination, he

nevertheless included in the jury charge an instruc-

tion on the reasonable doubt standard required pre-

liminary to their consideration of co-conspirators’

statements. If such instruction was error, it was

harmless error.

Appellant’s construction of Lutwak, incidentally, is

also refuted by Carbo. When the Lutwak Court

paused to observe that co-conspirators’ declarations

must be ‘‘carefully and clearly limited,” it did so in

the context of a declaration not in furtherance of the

conspiracy, the introduction of which, by well-

recognized doctrine, is absolutely limited to the de-

elarant. Carbo, 314 F.2d at 738 n.26. In contrast, the

introduction of a co-conspirator’s declaration against

22We note that in the second trial, the district judge offered to read

the requested instruction just after the jury was empaneled. See note

18 supra.

a nondeclarant defendant made in furtherance of the

conspiracy is only conditionally forbidden. Once the

prosecution has established its prima facie case of

conspiracy through independant nonhearsay evidence,

the nondeclarant defendant is no longer shielded. it

was the separate issue of who decides whether that

threshold has been established that was before this

Court in Carbo.**

D. Abuse of Discretion

In the second trial, after deliberating for some time,

the jury requested a copy of the Gamble deposition.

23Qur reaffirmance of Carbo on the preliminary question issue is

further supported by the teaching of Jackson v. Denno, 378 U.S. 368

(1964), which was also based upon a concern for jury confusion.

Jackson stands tur the proposition that, in admitting confession evi-

dence, the preliminary determination that the confession was voluntary

must be fully and independently made by the judge before it may be

presented to the jury. We think that the same principle of preliminary

fact determination avplies to the co-conspirator’s declaration context,

for we read Jackson as holding that the preliminary question must

be resolved by the appropriate standard prior to admission. In our

ease, only the appropriate preliminary standard differs: beyond a

reasonable doubt as to confessions, prima facie showing as to co-

conspirator’s declarations. But see 1 J. Weinstein & M. Berger,

WetnsTEIn’s Evivence § 104[05], at 104-43-44 (1976).

In Jackson, the Court disapproved the “New York” rule of volun-

tariness, by which the trial judge made the preliminary determination

regarding confessions offered by the prosecution. According to that rule,

if under no circumstances could the confession be deemed voluntary,

the evidence was excluded. But if the evidence presented a fair question

(e.g., Where the facts were disputed or where reasonable persons could

differ over inferences to be drawn from undisputed facts) the judge

received the confession and left to the jury, under cautionary instruc-

tion, the determination both of voluntariness and truthfulness. The

Court approved the “orthodox” rule, where the judge solely and finally

determines the voluntariness of the confession. It also left undisturbed

the “Massachusetts” rule, where the jury may assess voluntariness only

after the judge has fully and independently resolved the question

against the defendant. We have no need to comment on the “Massachu-

setts” rule which governs the admission of co-conspirator’s declarations

in other cireuits. See United States v. Apollo, 476 F.2d 156 (5th Cir.

1973), and its progeny.

The court refused, for fear of needlessly extending

the deliberations. Over objections, the court did ac-

cede however, to the jury’s request that portions of

the Gamble deposition relating largely to King’s in-

volvement in smuggling heroin into the United States

be reread. Shortly thereafter, the jury returned with

the guilty verdicts.

Both sides accurately state the standard on review

to be abuse of discretion. See United States v. Bazter,

492 F.2d 150, 175 (9th Cir. 1973), cert. denied, 416

U.S. 940 (1974). King argues, however, that singling

out the reread testimony placed too much emphasis

on it, with the rapidly ensuing verdicts as an indica-

tion of the prejudice.

Appellant King cites two cases in which the refusal

to reread testimony was found not to abuse the trial

court’s discretion, both decisions noting a danger of

overemphasis in rereading only portions of testimony.

Bacter, supra; United States v. De Palma, 414 F.2d

394 (9th Cir. 1969), cert denied, 396 U.S. 1046 (1970).

This Court has also upheld the replaying of tape-

recorded evidence two times during deliberation.

United States v. Puchi, 441 F.2d 697 (9th Cir.), cert.

denied, 404 U.S. 853 (1971). We have been directed

to no case where this Court has found an abuse in

either the granting or refusing of the request by the

trial court, and we find no abuse here.

The Government argues that the segments reread

constitute only a small part of the evidence against

King. King replies (pointing to little else) that the

speed with which the jury reached its verdict after

hearing the testimony a second time attests to over-

emphasis. We think that other conclusions not incon-

sistent with careful consideration of the evidence as

a whole are possible. The jury may have already

reached a verdict and merely desired a confirming

clarification on one point; the clarification on a point

may have been the ‘‘straw that broke the camel’s

back” in Swaying a verdict properly based on the

totality of the evidence.

The discretion granted the trial judge is large,

De Palma, supra, and determination of whether that

large discretion was abused must turn on the cir-

cumstances of the individual case. Baxter, supra. We

cannot say that the trial judge abused his discretion.

E. Congress’ Constitutional Authority under 21

U.S.C. § 959

Appellants King (Counts Three and Four) and

Powell (Counts Three, Four, and Five) were both

convicted of unlawful distribution in Japan of heroin

intended for importation into the United States, in

violation of 21 U.S.C. § 959.°** Adopted in 1970, the

24The statute provides in full:

§ 959. Manufacture or distribution for purposes of

unlawful importation

It shall be unlawful for any person to manufacture or distribute

a controlled substance in schedule I or II—

(1) intending that such substance will be unlawfully imported

into the United States; or

(2) knowing that such substance will be unlawfully imported

into the United States.

This section is intended to reach acts of manufacture or distribu-

tion committed outside the territorial jurisdiction of the United

States. Any person who violates this section shall be tried in the

United States district court at the point of entry where such

person enters the United States, or in the United States District

Court for the District of Columbia.

statute is expressly aimed at having extraterritorial

effect, but King and Powell protest that its attempted

reach exceeds the legislative power vested in Congress

by the Constitution.

There is no constitutional bar to the extraterritorial

application of penal laws. Blackmer v. Unted States,

284 U.S. 421, 436-38 (1932). Numerous decisions have

upheld the authority of the United States to enact

and enforce criminal laws with extraterritorial effect.

See e.g., Blacker, supra; United States v. Bowman,

260 U.S. 94 (1922); Strassheim v. Daily, 221 US.

280 (1911); United States v. Castillo-Feliz, No. 75-

2915 (9th Cir. July 9, 1976) ; United States v. Cotten,

471 F.2d 744 (9th Cir.), cert. dented, 411 U.S. 936

(1973); Rocha v. United States, 288 F.2d 545 (9th

Cir. 1961). Appellants concede that the only court

which has dealt with the constitutionality of § 959

has held it constitutional, United States v. Daniszew-

ski, 380 F. Supp. 113 (E.D.N.Y. 1974), but they ques-

tion the reasoning underlying the opinion.

Both sides cite the same five principles of extra-

territorial authority generally recognized under inter-

national law: the territorial, nationa&kity, protective,

universality, and passive personality principles. See

Rocha, 288 F.2d at 549 n.4. Appellants argue that

only the territorial principle (determining jurisdic-

tion by reference to the place where the offense is

committed) and the protective principle (determining

jurisdiction by reference to the national interest in-

jured by the offense) have been accepted as valid

bases of authority by American courts, and attempt

to harmonize the substantial case law into one or the

other of the two categories. Thus, they contend, only

acts committed within the United States or conduct

abroad that threatened American security, sover-

eignty, or operation of government frnctions have

been—or can be—subject to federal law, and they

argue that their acts—and the reach of § 959—do

not qualify.

We think this argument fails. In upholding statutes

with extraterritorial impact, courts have recognized

that the territorial concept of jurisdiction is neither

exclusive nor a full and accurate characterization of

the powers of states to exercise jurisdiction beyond

the confines of their geographical boundaries. United

States v. Rodriguez, 182 F. Supp. 479, 488 (S.D. Cal.

1960), aff'd sub nom. Rocha v. United States, 288

F.2d 545 (9th Cir. 1961).

From the body of international law, the Congress

may pick and choose whatever recognized prin-

ciple of international jurisdiction is necessary to

accomplish the purpose sought by the legislation.

The mere fact that, in the past, Congress may

not have seen fit to embody in legislation the full

scope of its authorized powers is not a basis for

now finding that these powers are lacking.

182 F. Supp. at 491. While it may be true that sev-

eral cases upholding extraterritorial jurisdiction in-

volve some injury to the sovereign integrity of the

United States, the extraterritorial effect of federal

penal laws has not been limited in those cases,

Thus, even if appellants were able to reconcile all

precedents into one or the other of the categories

which they recognize, they have not established that

authority under one of the other three principles

would not be acceptable. Since both appellants are

United States citizens, the nationality principle would

apply: American authority over them could be based

upon the allegiance they owe this country and its

laws if the statute concerned as does § 959, evinces a

legislative intent to control actions within and with-

out the United States. See, e.g., Blackmer v. United

States, 284 U.S. 421, 487 (1932); United States v.

Bowman, 260 U.S. 94, 97-98 (1922); The Apollon, 22

U.S. (9 Wheat.) 362, 369-70 (1824) ; United States v.

Pizzarusso, 388 F.2d 8, 10 (2d Cir.), cert. denied, 392

U.S. 936 (1968); Rocha v. United States, 288 F.2d

545, 548 (9th Cir. 1961); United States v. Daniszew-

ski, 380 F. Supp. 113, 116 (E.D.N.Y. 1974).

Appellants attempt to distinguish these precedents

away by arguing that they could have been, or were,

also justified under the territorial or protective prin-

ciples. Even were that so, however, that does not

vitiate the courts’ recognition of the nationality prin-

ciple as a valid source of authority. We are not per-

suaded why we should strain our reading of these

cases to reach appellants’ desired conclusion,

In any event, appellants’ prosecution for violating

§ 959 could also be justified under the territorial prin-

ciple, since American courts have treated that as an

“objective” tribunal principle. As expressed by the

Supreme Court in Strassheim v. Daily, 221 U.S. 280,

285 (1911):

Acts done outside a jurisdiction, but intended to

produce and producing detrimental effects within

it, justify a State in punishing the cause of the

harm as if he had been present at the effect, if

the State should succeed in getting him within its

power.

See also United States v. Cotten, 471 F.2d 744, 749

(9th Cir.), cert. denied, 411 U.S. 936 (1973); Rocha

v. United States, 288 F.2d 545, 548 (9th Cir. 1961).

Since appellants’ activity in Japan was intended to,

and did, have an actual adverse impact in the United

States—the further distribution of the heroin here—

they can be held subject to American law as if they

had acted within American territory.

We conclude that the jurisdictional reach of § 959

is properly within the scope of Congress’ legislative

power and that the statute is constitutional as applied

to appellants.

F. Sufficiency of Evidence

Appellant Powell was charged in Count Eight with

distribution of heroin and was found guilty of that

charge by the jury in the first trial. Here he chal-

lenges the sufficiency of the evidence against him on

that count.

On review of a sufficiency question, the court must

view the evidence in the light most favorable to the

Government, Glasser v. United States, 315 U.S. 60, 80

(1942), and the findings of the trier of fact may not

adie

————————

be set aside unless clearly erroneous. United States v.

Glover, 514 F.2d 390 (9th Cir. 1975), cert. denied, 49

L. Ed. 2d 1189 (1976). Powell argues that this Court

must determine whether ‘‘reasonable minds could find

that the evidence excludes every hypothesis but that

of guilt,” citing Lee v. United States, 376 F.2d 98,

101 (9th Cir. 1967). The Lee formulation has been

rejected as a jury guide in Holland v. United States,

348 U.S. 121, 187-38 (1954) because of its confusing

nature. This circuit has found the Lee test incorrect

as a guide for the reviewing court. United States v.

Nelson, 419 F.2d 1237, 1242-44 (9th Cir. 1969). The

proper test is whether the jurors could reasonably

arrive at their conclusion. Id. at 1242-43.

Appellant does not challenge the fingerprint evi-

dence linking him to the criminal activity of which

he was convicted. Upon a review of the evidence, we

believe that the jury could reasonably find as it did.

AFFIRMED.

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