# Petition — King v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1151%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 430 U.S. 966 ## Text Supreme Court, U. S, FILED JAN 123 1077 In the Supreme Covet RODAK, JR, CLERK e 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 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 21 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). 22 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. 23 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. 24 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. 29 2. 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. 26 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 A 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 2 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. 3 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? 4 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 i f 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). 7 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 8 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- 9 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. 10 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- 11 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. 12 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). 13 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 14 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 15 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 16 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. 17 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. 18 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- 19 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 20 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 21 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 22 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. 23 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. 24 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 25 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- 26 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). 27 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. 28 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 PEELS © He, RPE Oy 6 OEE CU ee Te rE Sens 29 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- 30 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). 31 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. 32 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. 33 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. 34 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. 35 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 36 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. 37 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 38 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, 39 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 40 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 ———————— 41 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1151%3A1. Public record. Not legal advice.