Petition — Woods v. United States

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MAR 2

Supreme Court, U. S,

FILED

1977

| MICHAEL RODAK, JR., CLERK

an the

Supreme Court of the Wnited States

OCTOBER TERM, 1976

tte No. 76-1213

CARA WOODS,

Petitioner

v.

UNITED STATES OF AMERICA,

Respoudent

PETITION For Wait or CERTIORARI TO

THE Unrrep States Court or APPEALS

FOR THE SixtH Circulr

James K. O’MALLEY

Attorney for Petitioner

205 Ross Street

Pittsburgh, Pennsylvania 15219

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Financial Press Corporation, Pittsburgh

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TABLE OF CONTENTS

Page

Petition for Writ of Certiorari to the

United States Court of Appeals for |

the Sixth Circuit ........ eee ah ec eeé othe de l

EE ic orn cu ea dbh Goins obeaskee ¢esnGanee 1

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Constitutional Provision Involved ................... 2

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red) ncn nwigenssendasns 4

Reasons for Granting the Writ ............ bs bees 5

CN ac 6a Fo 8ibc tl ce bb dbo cneedc on cysiedous 8

Appendix A — Opinion and Order of the

United States Disirict Court for the

Eastern District of Michigan, Southern

Division, granting in part and denying

in part Defendant's Motion to Suppress .......... la

Appendix B — Opinion and Order of the

United States Court of Appeals for the

Sixth Circuit affirming the Judgment

SE 56 kin cs kthkd enbodtdevdna nets ck 23a

Appendix C — Order of the United States

Court of Appeals for the Sixth Circuit

denying the Petition for Rehearing ............. T4a

Appendix D — Certificate of Service ............... 75a

ii Table of Citations

TABLE OF CITATIONS

CAsEs

Adams v. Williams, 92 S.Ct. 1921, 1924 .....

Beck v. Ohio, 85 S.Ct. 223, 225 ............

Henry v. United States, 80 S.Ct. 168, 171....

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173

Niemotko v. Maryland, 340 U.S. 268, 71

PR UD Sccisbvevcesaceecucicssecees

Ss ME Gc ivGacigd basckveteccdesee

Time Inc. v. Pape, 401 U.S. 286, 91 S.Ct. 633

United States v. Strickler, 409 F.2d 379, 380,

a Kas SE Pac cacusukds Jee ch ic cwe ces.

STATUTES

Title 18, United States Code, Section 2 .....

Title 18, United States Code,

Section GAO wsckdsccccadecccces

Title 21, United States Code,

PORN HEED Soha cde cccvcceccdtect

Title 21, United States Code, Section 846 ...

Title 28, United States Code, Section 1254(1)

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4 . .

gn the

Supreme Court of the Wnited States

OCTOBER TERM, 1976

NO.

CARA WOODS,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

Penition For Wait or Certionant To

THe Unrrep States Court oF APPEALS

For Tue Sixtu Ciacurr

Your Petitioner, Cara Woods, prays that a Writ of

Certiorari issue to review the Judgment of the United States

Court of Appeals for the Sixth Circuit entered in the above-

captioned case.

OPINIONS BELOW

An opinion was rendered by the United States District

Court for the Eastern District of Michigan, Southern

Division, granting in part and denying in part Defendant's

motion to suppress. Said opinion is not reported but is set

forth herein at Appendix A.

An opinion affirming the District Court’s judgment of

conviction was rendered by the United States Court of

EOD Be eke ee en SP he ee eee >"S

2 Jurisdiction, Question Presented and

Constitutional Provision Involved

Appeals for the Sixth Circuit. Said opinion is reported at 544

F.2d 242 and is set forth herein at Appendix B.

The Court of Appeals’ order denying the petition for

rehearing is not yet reported but is set forth herein at

Appendix C.

JURISDICTION

The opinion and order of the United States Court of

Appeals for the Sixth Circuit was filed on October 8, 1976.

The petition for rehearing was denied on February 2, 1977.

Pursuant to Rule 22 of the Rules of this Honorable Court, the

within Petition for Writ of Certiorari is being filed within

thirty (30) days after the entry of the Court of Appeals’ final

order.

The jurisdiction of this Honorable Court is invoked

under Title 28, United States Code, Section 1254(1).

QUESTION PRESENTED

Is a warrantless arrest lawful where there is no evidence

to support the Court's finding of probable cause and the lack

of support in the record for that finding is conceded by the

Government?

CONSTITUTIONAL PROVISION INVOLVED

The Fourth Amendment to the Constitution of the

United States provides as follows:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

Statutes Involved 3

STATUTES INVOLVED

Title 18, United States Code, Section 2 provides as

follows:

§2. Principals

(a) Whoever commits an offense against the United

States or aids, abets, counsels, commands, induces or

_ procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done

which if directly performed by him or another would be

an offense against the United States, is punishable as a

principal. As amended Oct. 31, 1951, c. 655, §17b, 65

Stat. 717. :

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

as follows:

$841. Prohibited acts A— Unlawful acts

(a) Except as authorized by this sub-chapter, it shall

be unlawful for any person knowingly or

intentionally —

(1) to manufacture, distribute, or dispense, a

controlled substance.

Title 21, United States Code, Section 846 provides as

follows:

§846. Attempt and conspiracy

Any person who attempts or conspires to commit

any offense defined in this subchapter is punishable by

imprisonment or fine or both which may not exceed the

maximum punishment prescribed for the offense, the

commission of which was the object of the attempt or

Seay) ee ee eee” | eee ee RS eg

of ‘ ig i In ss oi A 2 =

4 Statement of the Case

STATEMENT OF THE CASE

History

On January 4, 1972, Petitioner Cara Woods, was

indicted along with fourteen other individuals at Criminal

Number 46598 and seventeen individuals in Criminal

Number 46597 in the United States District Court for the

Eastern District of Michigan, Southern Division. The

Defendants were charged with violations of 18 U.S.C. 2, 21

U.S.C. 841(a)(1) and 21 U.S.C. 846. The two cases were

consolidated for a non-jury trial before the Honorable Philip

Pratt and the Honorable John Feikens.

The indictment charged Petitioner in Count One with

conspiring to manufacture and distribute and possess with

intent to manufacture and distribute heroin and cocaine. In

Count Eight he was charged, along with numerous others,

with distributing and aiding and abetting the distribution of

137.35 grams of heroin on December 15, 1971. Count Nine

charged Petitioner and others with distributing and aiding

and abetting the distribution of about 37.66 grams of

cocaine, also on December 15, 1971.

The Court acquitted Petitioner of participating in the

conspiracy, but found him guilty of Counts Eight and Nine

as an aider and abeitor. He was sentenced to concurrent

terms of six years imprisonment on each count under the

parole provisions of 18 U.S.C. Section 4208(a)(2), with a

special parole term of three years. The Court also imposed a

$1,000.00 committed fine on each count.

The only evidence against Petitioner was narcotics

taken from him when he was arrested without a warrant on

December 15, 1971. The arrest occurred several miles from

19315 Hubbell Street, Detroit, Michigan, the headquarters

for an alleged heroin distribution ring, the operation of

which is the basis of the charges in both of the aforemen-

toned indies )

Reasons for Granting the Writ of Certiorari )

Petitioner was arrested by a Drug Enforcement Agency

agent, Arthur Goldenbaum, who received a radio com-

munication from a fellow agent that a 1969 Chrysler was

parked in front of the Hubbell Street address. Mr.

Goldenbaum was instructed to arrest the driver of the

Chrysler after he had proceeded from the area.

There was no other evidence in the case relative to

Petitioner's presence in or at the Hubbell Street house. |

The District Court held that Petitioner's arrest, although

presenting a close question, was legal because agents had

observed Mr. Woods arrive at the Hubbell Street address,

enter, stay for a few minutes and then depart in his

automobile much the same as two other Defendants had

done before him. .

In their Brief to the Court of Appeals, the Government

admitted, however, that no one had observed Mr. Woods

enter or leave the premises. The Court of Appeals,

nevertheless, like the District Court, found that there was

probable cause to arrest Petitioner because agents observed

him visiting the Hubbell Street premises.

Petitioner complained of that finding in his Petition for

Rehearing but the Court said the finding had substantial, if

not precise, support in the record.

REASONS FOR GRANTING

THE WRIT OF CERTIORARI

It is fundamental in our law that an arrest without a

warrant is constitutionally valid only if at the moment of the

arrest the arresting officers had probable cause to make it.

“Probable cause to arrest depends upon whether at the

moment the arrest was made .. .the facts and cir-

cumstances within [the arresting officer's] knowledge

and of which they had reasonably trustworthy informa-

6 Reasons for Granting the Writ of Certiorari

tion were sufficient to warrant a prudent man in

believing that the [suspect] had committed or was

committing an offense.” Adams v. Williams, 92 S.Ct.

1921, 1924; Beck v. Ohio, 85 S.Ct. 223, 225; Henry v.

United States, 80 S.Ct. 168, 171.

When the constitutional validity of an arrest is

challenged as here, it is the Government's burden to prove

that probable cause to arrest existed. United States v.

Strickler, 490 F.2d 379, 380, 9th C. 1974; Beck v. Ohio, supra.

The District Court held that the arrest of Defendant

Woods, although presenting a close question, was legal

because agents had observed Mr. Woods arrive at the

Hubbell Street address, enter, stay for a few minutes and

then depart in his automobile in much the same manner as

Defendants Hurt and Jones had before him. -

The Court of Appeals adopted the implicit finding of

fact in that statement and affirmed the District Court saying:

“Accordingly when they saw Woods arrive and depart after

only a few minutes — just as Jones and Hurt had done a few

minutes earlier — they had probable cause to believe that

Woods, too, would have narcotics in his possession when he

left.”

“They” referred to the agents on the scene and the Court

mutually imputed the knowledge of all such agents on the

scene and in communication with each other and said:

“Therefore it was proper to consider not only the facts

known to Agent Goldenbaum when he arrested Woods, but

also the information known to the officers who saw Woods

visit 19315 Hubbell and ordered Goldenbaum to follow and

arrest him. (Emphasis supplied)

Petitioner's complaint is that there is no evidence that

anyone saw him enter, leave or visit the Hubbell Street

premises. Absent such evidence, there is no probable cause

to sustain Petitioner's warrantless arrest.

Reasons for Granting the Writ of Certiorari 7

cy in its Brief before the Court of Appeals where it said, “The

1969 Chrysler, which Woods was driving, was parked in

front of the Hubbell premises, although Woods seuarpaly

was not seen entering or leaving the premises.”

Considering the evidence in the light most favorable to

the Government, the record reveals nothing more than

Petitioner's proximity to a res’ .ence where the Government

believed illegal drugs were’ eing distributed. This Court has

previously held that conduct much less innocuous was

insufficient to establish probable cause for a warrantless

arrest in the case of Sibron v. New York, 392 U.S. 40, 62, 88

S.Ct. 1889, 1902. :

In Sibron, as here, the arresting officer was not

acquainted with Sibron and had no information concerning

him. He did, however, see Sibron talking to a number of

known narcotics addicts over a period of eight hours. In the

instant case there is no evidence that anyone ever saw

Petitioner at all before his arrest. The record reveals only that

his car was observed on Hubbell Street.

In United States v. Strickler, supra, which was a factual

situation very similar to the instant case, the Court held that

the Government failed to carry its burden of proving that

there was probable cause to arrest because:

“Before his arrest, the police had no information which

implicated Strickler in any way in the cocaine

negotiations. No one testified that Velma Strickler had

been seen in the Cadillac, or that the Cadillac was

connected with the cocaine. The arrest was based solely

upon Strickler’s proximity to a residence where cocaine

was being delivered and his participation in some

ambiguous driving and observing activity.”

8 Conclusion

Although neither the District Court nor the Court of

Appeals specifically referred to the evidence which

established Petitioner's presence in the Hubbell Street house,

the opinions of both depend on the existence of such

evidence. When requested to point to that evidence in the

Petition for Rehearing, however, the Court of Appeals could

only reply that there was substantial, although not precise,

support for the finding. In the circumstances, such an

unarticulated finding is not deserving of controlling

deference.

The factual inquiry required here is familiar under the

settled principle that “in cases in which there is a claim of

denial of rights under the Federal Constitution, this Court is

not bound by the decisions of the lower court, but will

reexamine the evidentiary basis on which those conclusions

are founded.” Time Inc. v. Pape, 401 U.S. 286, 91 S.Ct. 633,

Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, Niemotko v.

Maryland, 340 U.S. 268, 71 S.Ct. 325.

A reexamination of the evidence here will disclose that

there was no probable cause to arrest Petitioner.

CONCLUSION

For the reasons discussed above, Petitioner Cara Woods

requests a Writ of Certiorari issue to review the Judgment of

the United States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

James K. O'MALLEY

Attorney for Petitioner

Appendix A la

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Untrep STATES OF AMERICA, q

Plaintiff,

vs. ) Criminal Action

Eppie Jackson, et al., No. 46597

Defendants. :

Untrep STATEs OF AMERICA,

Plaintiff,

vs. Criminal Action

Wiuture Lee Kivpatrick, et al., No. 46598

Defendants. J

MEMORANDUM OPINION GRANTING IN PART

AND DENYING IN PART DEFENDANTS’

MOTION TO SUPPRESS

Defendants bring a motion to suppress evidence

gathered by law enforcement officials during the arrest of

various defendants and the execution of a number of search

warrants. The parties have argued and briefed the issues

raised and testimony was taken on January 22, 24, 25,

February 26, March 5 and 26, 1973.

The challenged activities occurred on two separate

dates—December 15, 1971, and January 5, 1972. We deal

with them in chronological order.

EVENTS OF DECEMBER 15, 1971

On December 15, 1971, law enforcement officials from

federal, state and local agencies executed search warrants at

2a Appendix A

three dwellings located in Detroit: 19315 Hubbell, 19335

Sorrento, and 19488 Mark Twain. On the same day, law

enforcement officials arrested three defendants: Alphonzo

Jones, Leo Hurt, Jr., and Cara Woods, Jr. Defendants say the

evidence gathered from these actions must be suppressed.

As to the Hubbell premises, defendants move to

suppress for the following reasons:

(1) The arrest of defendant Eddie Jackson on the

evening of December 15, 1971, was effected in that

house when it could have been made outside the house,

facts secured pursuant to that arrest should not have

been utilized to obtain the search warrant, and the use of

those facts fatally tainted the affidavit and hence the

search warrant:

(2) The affidavit in support of the search warrant

was defective on its face for its use of intercepted

telephone conversations not actually heard by the

affiant constituted use of hearsay which invalidated the

affidavit and thus the search warrant; and

(3) The affidavit does not set forth sufficient facts

to support a finding of probable cause. |

The search warrant issued for the Sorrento address is

challenged on the ground that the affidavit recites only

unconfirmed hearsay as in the Hubbell affidavit. As to the

Mark Twain premises, defendants say the affidavit does not

set forth sufficient facts to support a finding of probable

cause. Finally, defendants Jones, Hurt and Woods assert that

their warrantless arrests were made without probable cause.

19315 Hubbell Street

Defendants’ first argument on the Hubbell search

warrant relates to the location of the arrest of Eddie Jackson

and others and the resulting “plain view” observations of

Appendix A 3a

arresting agents which were added to the search warrant

affidavit then about to be presented to Judge Cornelia G.

Kennedy. This court is not convinced that Jackson could

have been arrested outside the Hubbell premises. Despite

substantial testimony about the arrests themselves at

Hubbell, no persuasive facts were presented to support

defendants’ allegation that Jackson could have been arrested

prior to his entering the house on Hubbell.

Assuming, arguendo, however, that Jackson could have

been arrested outside the Hubbell premises and assuming,

further, that his arrest outside the Hubbell premises was

therefore illegal, this court cannot follow defendants’

contention that the affidavit is therefore fatally tainted.

Where an affidavit contains proper and improper facts from

which probable cause is determined, so long as the

Magistrate is presented with sufficient proper facts from

which he may find probable cause, the included improper

facts may be ignored. Howell v. Cupp, 427 F.2d 36 (9th Cir.

1970); United States v. Sterling, 369 F.2d 799 (3rd Cir. 1966);

Clay v. United States, 246 F .2d 298 (Sth Cir. 1957), cert. den.

355 U.S. 863. This court concludes that absent the allegedly

tainted paragraph referring to the Jackson arrest, the

affidavit presented Judge Kennedy with sufficient facts

from which she could find probable cause. In so concluding,

we necessarily dispose of defendants’ remaining conten-

tions. Before turning to the next search warrant, however, a

few words on defendants hearsay argument are ap-

propriate.

Informers were utilized in the Government's develop-

ment of this case, and these informers are referred to in the

affidavit. But the facts in the affidavit which are particularly

directed to the probability that materials used in the illicit

narcotics trade would be present at Hubbell on the evening

of December 15 are largely taken from intercepted

4a Appendix A

telephone conversations. To the extent that the affiant’s

presentation of these conversations might be considered

hearsay, there is “a substantial basis for crediting the

hearsay.” Jones v. United States, 362 U.S. 257, 269 (1960).

Where, as here,

“[a] reasonable reading of the affidavit shows that

the . . . facts were obtained by Government investiga-

tion and surveillance, rather than tips from unnamed

informants, [a] substantial basis for crediting the ©

hearsay is . . . established.” United States v. Moore, 452

F.2d 569, 572 (6th Cir. 1971).

See also United States v. Jensen, 432 F.2d 861 (6th Cir. 1970);

United States v. Plemmons, 336 F.2d 731 (6th Cir. 1964);

Dudley v. United States, 320 F. Supp. 456 (N.D. Ga. 1970).!

19488 Mark Twain Street

The Mark Twain search warrant is challenged on

probable cause grounds. This argument is rejected. The

affidavit supplied to Judge Kennedy contains at least one

reference to narcotics being at the Mark Twain address

(residence of defendant Courtney Brown). On December 9,

1971:

“An outgoing telephone call [from Hubbell] was placed

to telephone number 341-2315, which is located at 19488

Mark Twain, in which the caller informed ‘BROWN’

'This court also rejects defendants’ claim that affidavits contain

certain transcriptions of wire interceptions made December 9, 13, and 15

which do not accurately reflect what was in fact said. At a hearing in

chambers on April 10, 1973, this court listened to the relevant

conversations which occurred on December 15. In addition, the

Government provided this court with written transcriptions of the

December 9 and 13 conversations. Other than to note that the December

13 call was in fact made at 1:51 a.m. on December 12, 1971, we conclude

that the affiant accurately summarized the various conversations in his

affidavit.

Appendix A 5a

that JACKSON wanted the narcotics delivered to

Sorrento.” (Affidavit p. 1).

Moreover, numerous wire communications between the

telephone at Hubbell and the telephone at Mark Twain were

intercepted. It is clear that there was a link between the Mark

Twain premises and the alleged illicit narcotics trafficking.

It might be argued that on December 9 narcotics were

leaving the house on Mark Twain and thus no narcotics were

likely to be on the premises on December 15. It is no less

reasonable to assume from these and other facts in the

affidavit that the house on Mark Twain was used to store

narcotics. And because a delivery was made from Mark

Twain on December 9, it does not follow that no narcotics

remained on the premises. Indeed, the use of the Mark

Twain premises as a part of the narcotics trafficking network

on this and perhaps other days makes it probable that when

the long-awaited shipment apparently arrived on December

15, the Mark Twain premises would again be part of that

distribution network. In sum, there were sufficient facts

from which Judge Kennedy could find probable cause to

issue a search warrant for 19488 Mark Twain.

Arrests of Jones, Hurt and Woods

As to the events of December 15, 1971, the remaining

questions surround the validity of the arrests without

warrants of Alphonzo Jones, Leo Hurt, Jr. and Cara Woods,

Jr.

Government agents testified that on the evening of

December 15a telephone conversation between “Jones” and

defendant Courtney Brown (at the Hubbell address) was

intercepted. This conversation indicated that Jones would

soon be arriving at the Hubbell premises to obtain heroin.

Agents performing surveillance were informed and advised

to arrest Jones after he emerged from the house and drove a

short distance from it.

6a Appendix A

This narcotics investigation had been continuing for

some time, and the name “Jones” was not new to the agents.

Based on their previous investigation, it was certainly

reasonable for them to infer that “Jones” in the intercepted

telephone call was defendant Alphonzo Jones. Morcover,

when Jones arrived (with another person) about twenty-five

minutes after the call, one of the arresting officers identified

him. After a few minutes in the house, Jones emerged (with

his companion) and they drove off in his car. They were then

The facts surrounding the arrest of Leo Hurt, Jr. are

essentially similar. An intercepted telephone conversation at

8:08 p.m. on December 15 disclosed that Hurt was advised

that heroin was on hand at the Hubbell premises. He

expressed an interest in purchasing some heroin.’ Agents

were ordered to conduct surveillance and advised to arrest

Hurt a short time after he emerged from the Hubbell

premises. The agents did just that. Unlike the Jones arrest, no

one actually identified Hurt prior to his arrest. Nevertheless,

this court believes the officers had enough facts to determine

that probably the man they arrested was Leo Hurt, Jr., and

probably he was violating federal narcotics statutes.

This court finds there were sufficient facts to support a

finding of probable cause by the officers who arrested Jones

and Hurt. United States v. Bellamy, 436 F .2d 542 (2nd Cir.

1971). Defendants’ argument that the transmission of

*Excerpts from the transcript of this call disclose the following:

“Leo Hurt: “Hello.” .

George Blair [at Hubbell premises}: “Leo!”

LH: “Yeah.”

GB: ‘Alright. Well, whatever you need, it has to be paid for in cash.’

LH: “Yeah, well, now, ah, now I understand.

...Well, how much is, ah, an eighth.’.. .”

(Call #17, Tape #83-H1-71-0011).

es

Appendix A Ta

wiretap information from the monitoring officers to the

arresting officers constituted the use of fatally defective

hearsay is without merit. See, e.g., Lee v. United States, 376

F.2d 98 (9th Cir. 1967), and cases cited earlier in this opinion

regarding the Hubbell search warrant.

The arrest of Cara Woods, Jr., was preceded by

somewhat different facts. No telephone conversation was

intercepted suggesting Woods would be arriving at the

Hubbell address. Rather, agents having previously arrested

Jones and Hurt concluded that persons who arrived at the

Hubbell premises stayed a few minutes and then left—like

Jones and Hurt—probably were engaged in the same

activity as Jones and Hurt—obtaining drugs. Operating

under this assumption, agents arrested Woods a short

distance from the Hubbell premises after observing him

arrive there, enter, stay for a few minutes, and then depart in

his automobile. (emphasis supplied)

At first blush, the language of Sibron v. New York, 392

U.S. 40 (1968), seems to decide the issue against the

Government. In that case, a police officer arrested a man

after observing him converse with a number of known

narcotics addicts over a period of several hours. The officer

did not hear what was said, nor did he see money or objects

change hands. In short, he observed nothing suspicious save

several conversations. The Court found no probable cause

for the arrest, saying at 62:

“The inference that persons who talk to narcotics

addicts are engaged in the criminal traffic in narcotics is

simply not the sort of reasonable inference required to

support an intrusion by the police upon an individual's

personal security.”

The instant case is not controlled by Sibron, however,

because the officers here had more. Based on the wire

a

8a Appendix A

interceptions and the arrests of Jones and Hurt, the law

enforcement officers knew the Hubbell premises were

being used as a distribution point for narcotics on the

evening of December 15. The singular purpose of the

Hubbell premises is important. In Sibron, the officer knew

only that the defendant was contacting narcotics users. Here

defendant Woods was making contact with a narcotics

distribution center. It is extremely unlikely that a person

would come to the Hubbell premises except to become

involved in the illegal narcotics trafficking. Moreover, it is

common in the illicit narcotics trade that when a shipment of

illegal narcotics arrives, it is dispensed quickly. From this

perspective, the agents observed Woods arrive, stay only a

few minutes, and then depart—duplicating the activities of

two persons who only minutes before had been arrested

with narcotics packages.

The Supreme Court has said that

“{iJn dealing with probable cause, ... we deal with

probabilities. These are not technical; they are factual

and practical considerations of everyday life on which

reasonable men, not legal technicians, act.” Brinegar v.

United States, 338 U.S. 160, 175 (1949).

This court believes:

“... the officer ‘in the particular circumstances,

conditioned by his observations and information, and

guided by the whole of his police experience,

reasonably could have believed that a crime had been

committed by the person to be arrested.’ Jackson v.

United States, 112 U.S. App.D.C. 260, 262, 302 F.2d 194,

196 (1962).” Coleman v. United States, 420 F.2d 616, 621

(D.C.Cir. 1969).

Thus, we conclude there was probable cause for the arrest of

Woods. See also United States v. Lozaw, 427 F.2d 911 (2nd

Cir. 1970).

Appendix A 9a

EVENTS OF JANUARY 5, 1972

Indictments were returned by the grand jury in these

two cases on January 4, 1972. Warrants were subsequently

issued by the Clerk for the arrest of each defendant not then

in custody. In the morning of January 5, arrest teams were

sent out by federal authorities to make the arrests. In four

cases, officers forcibly entered the residence of a defendant

to make an arrest, and, in doing so, allegedly came upon

certain evidence in plain view in the home. Using that

evidence as the basis of search warrant affidavits, search

warrants were issued and seizures were made in each of the

four cases. The addresses involved are 15 East Kirby Street

(Carolyn J. Price), 9074 Prairie Street (Charles Rudolph),

7360 Dexter Street (Willie Lee Kilpatrick), and 4637 Lennox

Street (Lamar Esters), all in Detroit. Defendants challenge

the legality of these seizures and have moved for the

suppression of any evidence resulting therefrom.

The basic thrust of the challenge is that the initial

observations on entry of the evidence included in the search

warrant affidavits were unlawful, and, therefore, that

evidence was tainted precluding its legitimate use in the

affidavits. A threshold question concerns the burdens of

proof upon the movant and the Government on a motion to

suppress where the seizures were made by authority of a

search warrant valid on its face. The rule, at least in the

United States Court of Appeals for the Sixth Circuit, appears

to be that the moving party has the burden of showing that

the search was prima facie unlawful at the hearing. Once the

defendant has satisfied this burden, the Government must

then assume the burden of proving by a preponderance of

the evidence that the search was legal. United States v.

Wright, 468 F.2d 1184, 1185-6 (6th Cir. 1972); United States

v. Thompson, 409 F.2d 113, 116-7 (6th Cir. 1969). See also

Alderman v. United States, 394 U.S. 165, 183 (1969). In

10a Appendix A

challenging the lawfulness of the initial observation of the

evidence used in the search warrant affidavits, defendants,

being movants, have the obligation to go forward with

evidence to show that those observations were unlawful, at

which point the ultimate burden of proving that the seizures

were lawful shifts to the Government. Each search made on

January 5 will be discussed separately below.

15 East Kirby Street — Carolyn J. Price

The indictment filed January 4 named one Sheila “Sam”

Davis as a defendant in case number 48958. Pursuant thereto,

the Clerk issued an arrest warrant, naming “Sheila Davis” —

but not including the alias “Sam.” Purportedly acting on this

warrant, agents from the Bureau of Narcotics and

Dangerous Drugs proceeded to 15 East Kirby Street in

Detroit, forcibly entered apartment 522, ‘and arrested

Carolyn J. Price.

At the hearings, the Government produced evidence

showing that the name Sheila Davis was derived from

information supplied by Michigan Bell Telephone Com-

pany under a subpoena requesting the identity of the

subscriber to telephone number 871-1438. The information

was subpoenaed because outgoing calls were made to that

number from the telephone at 19315 Hubbell Street, which

was being monitored pursuant to court order. A female,

using the name “Sam,” answered the telephone at 871-1438

and the ensuing conversations implicated “Sam” in the

alleged narcotics conspiracy. Apparently, the grand jury

identified the female using the name “Sam” as Sheila Davis —

in the indictment on the basis of the information furnished

by the telephone company.

The evidence further indicated that Special Agent

Garibotto suspected that the name Sheila Davis was in error

and as a result of that suspicion contacted Special Agent

Appendix A lla

Stepp, who was conducting an investigation involving a

female also using the alias “Sam.” Agent Stepp informed

Agent Garibotto on January 4 that Carolyn J. Price, who

resided at 15 East Kirby Street, was known by the nickname

“Sam.” He further stated that she was an associate of

On the morning of January 5, Agent Garibotto led an

arrest team to the Kirby Street address. There the apartment

house manager informed the officers that a Carolyn J. Price

lived in apartment 522 and that she used the alias “Sam.”

Whereupon the officers obtained a passkey from the

manager and went to the door to apartment 522. They then

knocked and announced that they were federal agents with

an arrest warrant for “alias Sam”. After receiving no

response, entry was made with the passkey.

Miss Price was still in bed when the officers entered the

apartment. After proceeding through the entire apartment

into the bedroom, in addition to finding the defendant in

bed, the officers observed a loaded 30 caliber rifle near the

bed and found almost $1,300 in cash under the pillow on the

bed. Finally, the Government claims that a box of coin

envelopes was inadvertently discovered in an open closet.

Disputing this, Miss Price testified that the closet doors were

closed when the officers entered. Moreover, she continued,

the officers could not have passed into the bedroom from the

front door without first closing the closet doors, had they in

fact been open, because each of the two closets in the

apartment are located in narrow hallways opening toward

the front door. This physical description was not refuted by

the Government, and no explanation was given.

After Miss Price was placed under arrest, Special Agent

Krentler returned to the Federal Building to obtain a search

warrant based on the items discovered in the apartment (the

a Oe OA OP A Cy AT

12a Appendix A

$1,290, the rifle, and the box containing the coin envelopes)

and the intercepted telephone call on December 15, 1971, to

“Sam” at 871-1438. A warrant was issued by the Magistrate

and various items were seized under the warrant.

There are a number of serious Fourth Amendment

problems presented here. First, assuming for the moment

that the search warrant affidavit establishes sufficient

probable cause to support the warrant, the initial discovery

of the evidence used in the affidavit must have been lawful

for it to be considered by this court in determining whether

the affidavit established probable cause under the “fruit of

the poisonous tree” doctrine. See generally Wong Sun v.

United States, 371 U.S. 471 (1963), and Silverthorne Lumber

Co. v. United States, 251 U.S. 385 (1920) Therefore, for the

search warrant to be valid and the evidence lawfully seized,

the original entry into the apartment must have been lawful,

and the intrusion after entry must not have gone beyond the

scope permitted incident to arrest.

The defense challenges the legality of the original entry

on two grounds: (1) only the name “Sheila Davis” appeared

on the face of the arrest warrant, and (2) no proper

announcement of identity and authority was made by the

agents prior to their forcible entry. As to the first challenge,

elementary Fourth Amendment principles require that an

arrest warrant must describe with particularity the person to

be arrested so that the executing officer has no discretion in

determining which person to arrest. A person may be so

identified on an arrest warrant by his true name, by an alias

name if the arrestee is commonly known by that name, or by

a detailed physical description.

In the present case, the grand jury returned an

indictment against one Sheila “Sam” Davis. The arrest

warrant, however, named only “Sheila Davis” —omitting the

Appendix A . 13a

alias “Sam.” The question before the court is whether this

arrest warrant sufficiently identified Carolyn J. Price to

support the forcible entry into her apartment and her

subsequent arrest. We believe it did not.

The leading case in the area is West v. Cabell, 153 U.S.

78 (1894). Although quite an old case, it still stands for the

proposition that an arrest warrant must be interpreted on its

face. In West, the Supreme Court held in a civil action for

false arrest that the fact that plaintiff's true name did not

appear on the face of the warrant made the arrest under the

warrant unlawful. The Court so held even though there was

evidence that the commissioner who issued the warrant

actually intended that plaintiff be arrested and had merely

made a mistake as to his first name. In the present case, the

warrant named only Sheila Davis, not Carolyn J. Price or

“Sam.” It is true that the grand jury included the name “Sam”

on the indietment, but that fact and the fact that the arresting

officers may have known that Carolyn J. Price and not Sheila

Davis was the true name of the defendant, however, are

irrelevant insofar as upholding the validity of the warrant to

The Government’s argument that the preparation of the

arrest warrant was a mere ministerial act is unconvincing.

The identity of the defendant is the most critical part of an

arrest warrant. Accordingly, the insertion of an incorrect

name cannot be justified on the basis of a lapse by the Clerk

of the Court. Finally, there would be a serious question

whether inclusion of the name “Sam” on the arrest warrant

would satisfy the particular description requirement

because the indictment indicates that “Sam” is an alias for

Sheila Davis, and not for Carolyn J. Price. That issue, of

course, need not be reached here.

The Government urges thai even though the arrest

warrant is invalid, the arresting officers had probable cause

l4a Appendix A

to arrest Carolyn J. Price without a warrant. A brief review

of the facts known by the investigating officers just prior to

the entry into the apartment as shown in the hearing is

necessary.

The first pieces of evidence learned by the officers

linking an unknown female identified only as “Sam” with the

narcotics conspiracy were the intercepted telephone calls.

Under the grand jury subpoena, the telephone company

identified the subscriber to 871-1483 to be one Sheila Davis

who lived at 1428 Clairmount. Agent Garibotto, suspecting

that the information supplied by the telephone company

was erroneous because surveillance failed to discover any

suspicious behavior near the Clairmount address, subse-

quently contacted Agent Stepp to inquire about his

knowledge of any females involved in the narcotics trade

who used the alias “Sam.” Agent Stepp responded that he

knew of a Carolyn J. Price who used the name “Sam.” He

said she lived at 15 East Kirby and was an associate of

Alphonzo Finch. Finally, on the morning of January 5 just

prior to the initial entry, Agent Garibotto confirmed with the

apartment building manager that a Carolyn J. Price who

used the nickname “Sam” did, in fact, live in the building.

The probable cause standard for warrantless arrest was

expressed by the Supreme Court in Beck v. Ohio, 379 U.S.

89, 91 (1964), as follows:

“Whether that arrest was constitutionally valid depends

in turn upon whether, at the moment the arrest was

made, the officers had probable cause to make it—

whether at that moment the facts and circumstances

within their knowledge and of which they had

reasonably trustworthy information were sufficient to

warrant a prudent man in believing that the petitioner

had committed or was committing an offense.”

Appendix A 15a

See also United States v. Burch, __ F.2d —_ (6th Cir.,

January 12, 1973), and United States v. Fachini, 466 F.2d 53

(6th Cir. 1972). In determining whether probable cause

existed here, the critical issue is whether there was a

sufficient link between the person known only as “Sam” who

was overheard through the telephone wiretap and Miss

Price. Because the nickname “Sam” for a woman is so

uncommon and because Miss Price was associated with Mr.

Finch who had been connected with the same conspiracy,

we believe that there was a sufficient connection to establish

probable cause. Accordingly, we hold that the arresting

officers had probable cause to support a warrantless arrest

of Carolyn J. Price on January 5, 1972. The above

conclusion, therefore, that the arrest warrant was invalid is

not fatal to the validity of the arrest.

The next issue with respect to execution of the arrest is

whether the actual entry into the apartment was lawful. 18

U.S.C. §3109° regulates forcible en‘ry by federal agents into

dwellings in execution of search warrants. The law is well

established that the standards under Section 3109 also apply

to federal agents making an arrest with or without an arrest

warrant. Miller v. United States, 357 U.S. 301, 306 (1958); Ker

v. California, 374 U.S. 23, 38-9 (1963); and Sabbath v. United

States, 391 U.S. 585, 588-9 (1968). The evidence presented at

the hearing here indicates that the officers first knocked and

then announced that they were federal agents with an arrest

warrant for “alias Sam.” Entry was gained with the passkey

after about a minute had elapsed after the first knock on the

door. The court believes that this procedure complies with

Section 3109. The officer may break open any outer or inner door or

window of a house, or any part of a house, or anything therein, to execute a

search warrant, if, after notice of his authority and purpose, he is refused

admittance or when necessary to liberate himself or a person aiding him in

the execution of the warrant.

ae

et

16a Appendix A

the dictates of Section 3109, and that the Government has

sustained its burden on this question.

The remaining issue is whether the scope of the agents’

intrusion after the initial entry was limited to the extent

permitted under the guidelines set in Chimel v. California,

395 U.S. 752 (1969), and Coolidge v. New Hampshire, 403

U.S. 443 (1971). The rule is that only those items found either

in plain view in the apartment or by an appropriately limited

search incident to arrest could be lawfully seized without

warrant and properly used in a subsequent affidavit for a

search warrant.‘ On the facts of this case, there can be no

serious challenge to the legality of the seizure of either the

rifle, which was found in plain view beside the bed, or the

$1,290, which was located under the pillow on the bed, since

it was within the immediate reach of Miss Price who was still

in bed. We do not believe, however, that the Government

has sustained its burden of proof that the box containing coin

envelopes was inadvertently found in plain view. Accor-

dingly, we hold that the box containing the coin envelopes

was illegally discovered by the agents in the closet, and its

use in the search warrant was improper.

The court must now determine whether the search

warrant affidavit, excluding the coin envelope box from

cuusideration, includes sufficient facts to show that there

was probable cause to believe illegal narcotics were secreted

in Miss Price’s apartment on January 5, 1972. Three items of

evidence may be considered: (1) the loaded rifle, (2) the

$1,290 cash, and (3) the December 15 telephone call to

“Sam” at 871-1438 which discussed narcotics but which did

not indicate that narcotics were present at “Sam's” residence.

We frankly do not believe that the probable cause standard

‘For the issue whether improperly obtained evidence could be used

in the search warrant affidavit to support a search warrant, see

Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).

—

Appendix A 17a

has been met. Although weapons and money may be used in

the narcotics trade, they do not, in any way, tend to prove

that narcotics were then on the premises. Likewise, the

December 15 telephone call does not even indicate that

narcotics were present at “Sam’s” residence on that date.

Surely it cannot tend to prove that narcotics were there on

January 5. All evidence seized under authority of the

warrant, therefore, must be suppressed from evidence.

Since the 30 caliber rifle and the $1,290 in cash were legally

discovered during the initial entry to make the arrest, the

seizure of these items is not dependent upon the validity of

the search warrant, and those items may be introduced into

evidence at trial. \

9074 Prairie Street—Charles Rudolph

In each of the remaining cases, the issues are identical:

(1) whether the initial entry was proper and (2) whether the

search warrant affidavits included unlawfully obtained

evidence based on an illegal search of the premises incident

to the arrest. The testimony given at the hearings indicates

the following facts surrounding the arrest of defendant

Rudolph.

Special Agent Alexander led an arrest team to the home

of Charles Rudolph on the morning of January 5, 1972, the

day after the grand jury returned the indictments herein. At

the front door of the house the agents knocked and

announced that they were federal agents with an arrest

warrant. According to the agents, they waited about a

minute before entering the house by hammering down the

door after hearing footsteps inside the house.

Upon entering, defendant Rudolph was observed

standing in the hallway between the front and rear

bedrooms and was placed under arrest at that time. Other

officers then fanned out through the house looking for other

18a Appendix A

possible occupants who might pose a threat to the safety of

the officers or destroy evidence. Agent Alexander proceed-

ed to the rear bedroom and observed, on a nightstand and in

plain view, a white powder which he believed to be heroin

on a record album with associated paraphernalia. At about

this time a Sheila Jones was arrested in the kitchen. In

addition to the heroin, the officers came upon some guns

located in various places throughout the house in plain view.

Finally, prior to the time the agents returned to the Federal

Building to obtain a search warrant, a Marquis reagent field

test was performed on the white powder indicating that the

substance was indeed heroin.

A search warrant was obtained from the Magistrate

pursuant to an affidavit which included the white powder,

the various guns which were found, and the results from the

field test on the powder. Additionally, the affidavit included

the log of a December 12, 1971 telephone call to the number

located at 9074 Prairie Street. That log indicated Mr.

Rudolph was involved in narcotics traffic. Under the

warrant, many additional items were seized on the premises.

With respect to the initial entry by the officers, the

provisions of 18 U.S.C. §3109 are applicable, as discussed

above. The court is convinced that the officers did comply

with its procedures by knocking, announcing their identity

and purpose, and waiting a reasonable time before breaking

into the dwelling. The nature of the case and the danger

invoived here also would support the conclusion that the

officers waited a reasonable period before entering.

Once the officers were inside the house, the initial issue

is whether the procedure of fanning out through the house to

look for other occupants is permissible under Chimel and

Coolidge. We believe that it is proper to take a cursory look

through a house for other occupants who might pose a threat

to the officers, enable the defendant to escape, or destroy

——_ a ge — eet _

Appendix A 19a

evidence. See United States v. Broomfield, 336 F Supp. 179

(E.D. Mich. 1972). Therefore, the discovery of the guns and

heroin was proper.

Mr. Rudolph took the stand at the hearing and denied

that any narcotics were in plain view. Primarily due to the

limited detail of his testimony, we cannot give his denial that

heroin was in open view much weight. As a result, we

conclude that the Government has sustained its burden of

proving that the evidence was lawfully discovered.

The fact that the field test was performed on the heroin

before the search warrant was obtained is irrelevant since

the substance was discovered in plain view and the agents

had probable cause at that time to believe that it was heroin

before the test was performed. This case is clearly

distinguishable from Caver v. Kropp, 36 F.Supp. 1329

(E.D. Mich. 1969), cited by defendants, because when the

test was performed, the officers had probable cause to seize

the white powder. In Caver, however, the probable cause

did not exist until the envelope was actually opened or

“searched.” .

All the evidence included in the affidavit was, therefore,

properly obtained. We are satisfied that the discovery of the

heroin in plain view alone satisfied the probable cause

requirement. All evidence seized from 9074 Prairie on

January 5, 1972, is admissible, and the motion to suppress as

to this evidence is denied.

7360 Dexter Street — Willie Lee Kilpatrick

The relevant facts surrounding the arrest of defendant

Kilpatrick begins with the assignment of an arrest team,

composed of state and federal officers and led by Special

Agent DePottey, to execute the arrest warrant on the

morning of January 5, 1972. After arriving at the Dexter

20a Appendix A

address, a group of officers approached the front door of

Kilpatrick’s residence, knocked, and announced their

identity and purpose. Receiving no response, forced entry

was made after the officers had waited at the door for about

a minute. Upon entry, defendant Kilpatrick was observed

leaving the bedroom in his pajamas. He was then arrested —

while the other officers fanned out through the premises.

While looking through the rest of the house, the officers

discovered a woman in the kitchen. Seven guns of various

types were located throughout the premises. Additionally,

the Government claims that a plastic bag of white powder, a

can of lactose, a box of pill envelopes, and various plastic

bottles containing capsules were also found in the kitchen in

plain view.

At the hearings, Mr. Kilpatrick testified that the officers —

thoroughly searched the entire house at the time of the initial

entry. According to Kilpatrick, a “colored officer” found a

paper bag in a kitchen cabinet, and in that bag a small plastic

bag of lactose was found. With that discovery, he

announced, “I found it!” Kilpatrick claimed all the other

supplies were stored in kitchen cabinets.

After the officers performed a field test on the white

powder (result was negative), a search warrant was obtained

from the Magistrate. Included in the affidavit were the

following items of evidence: the seven guns, the clear plastic

bag of unknown white powder, a can of lactose, 500 pill

envelopes, seven plastic bottles containing capsules, and a

closed circuit television scanner connected to the house.

The initial entry here, which was quite similar to that

made at Prairie Street, likewise was in compliance with the

dictates of Section 3109. Moreover, the Government appears

to have clearly sustained its burden of proving that the seven

guns, the clear plastic bag of unknown white powder and the

Appendix A 2la

500 pill envelopes were lawfully found. The court does not

believe, however, that the Government has satisfied its

burden of proof that the other items found in the kitchen

were inadvertently found in plain view under the Chimel

and Coolidge principles. Therefore, the search warrant

affidavit must be reviewed to determine whether probable

cause was shown, excluding the can of lactose, and the

bottles containing capsules from consideration. We believe

that probable cause is shown by the affidavit so read, and

therefore the search warrant was valid. All evidence seized

pursuant thereto may, therefore, be admitted.

4637 Lennox Street — Lamar Esters

At the hearings, the only testimony offered concerning

the events surrounding the arrest of defendant Esters was

that of Special Agent McKinnon. According to his testimony,

Agent McKinnon was with the group assigned to arrest Mr.

Esters pursuant to the arrest warrant issued under the

indictment. On the morning of January 5, 1972, the arrest

team arrived at Mr. Esters’ residence. One group went to the

front door, which was covered by an outside jail-type door

with bars, while another contingent, including Agent

McKinnon, proceeded to the side door. Both parties

knocked anid announced their authority and purpose at each

location. After waiting approximately a minute, the officers

at the side door forced entry into the house.

Proceeding through the kitchen, the officers observed

defendant Esters in a hallway moving toward the front door.

Esters was then arrested, the officers at the front door were

let into the house, and, according to procedure, the other

members of the arrest team fanned out through the house.

' ‘uring this inspection a .44 Magnum pistol was located on a

chair two feet from the defendant. On a black leather bar in

the /iving room, narcotics paraphernalia, five cans of lactose,

22a Appendix A

and a record album cover were observed. In the basement of

the house a Hamilton Beach mixer was found in plain view

with traces of heroin in it. Finally, two rifles were located on

the second floor. All of these items, plus a log of a December

10 telephone call to defendant Esters discussing dealings in

cocaine and heroin, were included in the search warrant

affidavit sworn to before the Magistrate.

Since the defendants have not come forward with

evidence showing a prima facie illegal search at this address,

the evidence presumably was properly seized. The Govern-

ment, nevertheless, has produced sufficient evidence

proving that the original entry and initial seizures were

within constitutional guidelines. Therefore, the motion to

suppress evidence seized under the search warrant issued for

4637 Lennox is denied, and all such evidence may be

introduced at trial.

An appropriate order may be submitted.

John Feikens

Philip Pratt

United States District Judge

DATED: June 5, 1973 _

Detroit, Michigan

Appendix B 23a

Nos. 74-2337-53

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UnrrTep STATES OF AMERICA,

P. laintiff -Appellee,

Vv.

Cara Woons, Jr., Witte Lee Ku- To?

PATRICK, JosEPH LEON WEAVER, United States District

James Recinacp Weaver, Eppie Court for the Eastern

Jacxson, Courtney Brown, Her-/

_| District of Michigan,

BERT Beit, RoNALD Garrett, SAM- Southern Division.

vEL Horne, ALPHONZO JONES, FairH

Lee Riccs, Cuarces Rupowpn, La-

Tica Burns, Maurice THOMPSON,

Leo Hurt, Georce Biam, CHARLES

CAVANAUGH,

Defendants-Appellants.

Decided and Filed October 8, 1976.

Before: Cecesnezze, McCrez, and Muuirr,* Circuit

Judges.

McCrer, Circuit Judge. We have consolidated for consid-

eration the appeals of seventeen defendants from their con-

victions in the Eastern District of Michigan. Each appellant

had been charged in one of two similarly worded indictments

* The Honorable William E. Miller died on April 12, 1976 and did

not participate in this opinion.

Ya Appendix B

with sixteen violations of federal narcotics laws, 21 U.S.C.

§§ 841 and 846. One indictment, hereinafter the Jackson

indictment, named fifteen unindicted co-conspirators and sev-

enteen defendants, including appellants Eddie Jackson, Her-

bert Bell, Ronald Garrett, Samuel Horne, Alphonzo Jones, Fairh

Lee Riggs, Charies Rudolph, Charles Cavanaugh, Laticia

Burns, Maurice Thompson, Leo Hurt, George Blair, and Court-

ney Brown. The other indictment, hereinafter the Kilpatrick

indictment, named as defendants the fifteen persons who were

unindicted co-conspirators in the earlier indictment, including

appellants Willie Kilpatrick, Joseph Weaver, James Weaver,

and Cara Woods. The persons named as defendants in the

first indictment were named as unindicted co-conspirators in

the second indictment. Count 1 of both indictments charged

a single conspiracy that continued from September to Decem-

ber 1971 to manufacture, distribute, and possess heroin and

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

16 charged substantive violations of 21 U.S.C. § 841 com-

mitted during the period from October to December 1971.

One of these cases was assigned to District Judge John

Feikens for trial, and the other to District Judge Philip Pratt,

both of whom are Judges of the Eastern District of Michigan.

Consolidated pretrial evidentiary hearings were held to con-

sider various motions raised by appellants. In addition to

- waiving their right to trial by jury, the various defendants

also agreed to proceed with a simultaneous bench trial before

Judges Feikens and Pratt in order to avoid the necessity of

two separate trials involving identical proofs.

Although the proceedings in the two separate cases were

conducted simultaneously, each judge was solely responsible

for all rulings affecting each defendant in the case assigned

to him, and each judge entered separate findings and conclu-

sions regarding the guilt or innocence of each defendant in the

case assigned to him.

At the conclusion of their joint bench trial, all appellants

were found guilty on multiple counts and received sentences

Pratt: Willie Lee trick was convicted on counts 1, 3, 4, 6 through

and sentenced to concurrent y prisonmen

le of 18 U.S.C. § 4208(a) (2),

addition, the court

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26a Appendix B

I. WERE DEFENDANTS PROPERLY INDICTED?

Appellants? challenge the validity of the indictments on

several grounds. First, they contend that the grand jury was

improperly selected. Second, they contend that the informa-

tion intercepted by the wiretaps was placed before the grand

jury before the government complied with 18 U.S.C. § 2518

(10)(a). Third, they argue that the government misused

the grand jury to intimidate persons whom the government

intended to call later as witnesses in appellants’ criminal trials.

Finally, appellants urge that the indictments were multipli-

citous.

A. The Selection of the Grand Jury.

Appellants argue that the selection of the grand jury venire

violated the Jury Selection and Service Act of 1968, 28 U.S.C.

§ 1861 et seq., as well as the selection plan adopted in the

count. _Fairh Lee Riggs was sentenced to concurrent terms of seven

each count, with a special parole term of

three years, both to be served concurrently with a sentence imposed

by the district court for the Eastern District of New York, which

Appendix B 27a

Eastern District of Michigan because an improper voting list

was used, an unauthorized person took part in the compilation

of the master jury wheel, and a jury clerk took official work

out of the office to her home.

We decided these identical issues in United States v. Mc-

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

1020 (1974). At the district court level, the parties in McNeal

stipulated that precisely the same challenges to the grand

jury venire had already been submitted to Judge Feikens

and to Judge Pratt in the Kilpatrick and Jackson cases. The

parties in McNeal agreed to be bound at the district court

level by the rulings of Judge Pratt and Judge Feikens, and

in accordance with their rulings, the district court denied the

motion to quash the indictment in McNeal. On review we

held that “there was no ‘substantial failure to comply with

the provisions’ of the Act.” 490 F.2d 207. We hold that our

determination in McNeal is dispositive of these appeals as well,

since not ‘only the same issues but also the same facts giving

rise to them are before us again.

B. The Presentation of Wire Interception Evidence Before the

Grand Jury.

Immediately after their arrest, several appellants filed a

motion to suppress the wiretap evidence that they believed

might have formed a basis for their arrests. They also sought

disclosure of the applications and orders for the interceptions.

In addition, they moved to enjoin the government from hold-

ing a preliminary hearing or presenting the wiretap evidence

- to a grand jury until ten days after obtaining the disclosure

they sought. The government opposed the motions, but

neither admitted nor denied the legality of the wire intercep-

tions. After hearing oral arguments, the district court held

that the government could not present wire interception evi-

dence at a preliminary hearing without disclosure, but other-

28a Appendix B

On the day scheduled for the preliminary hearing, appel-

lants were indicted by the grand jury, which heard the testi-

mony of Special Agent Garibotto and evidence from the wire

interceptions. The return of the indictments made it unneces-

sary to conduct the preliminary hearing.

Appellants contend that this procedure violated 18 U.S.C.

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

(9) provides that:

The contents of any intercepted wire or oral com- |

munication or evidence derived therefrom shall not be

received in evidence or otherwise disclosed in any trial,

hearing, or other proceeding in a Federal or State court

unless each party, not less than ten days before the trial,

hearing, or proceeding, has been furnished with a copy

of the court order, and accompanying application, under

which the interception was authorized or approved. This

ten-day period may be waived by the judge if he finds

that it was not possible to furnish the party with the

above information ten days before the trial, hearing, or

proceeding and that the party will not be prejudiced by

the delay in receiving such information.

Section 2518(10)(a) provides:

Any aggrieved person in any trial, hearing, or pro-

ceeding in or before any court, department, officer,

agency, regulatory body, or other authority of the United

States, a State, or a political subdivision thereof, may

move to suppress the contents of any intercepted wire

or oral communication, or evidence derived therefrom,

on the grounds that—

(i) the communication was unlawfully intercept-

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity

with the order of authorization or approval.

Appendix B 29a

Finally, § 3504 states:

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

before any court, grand jury, department, officer, agency,

regulatory body, or other authority of the United States—

(1) upon a claim by a party aggrieved that evi-

dence is inadmissible because it is the primary prod-

uct of an unlawful act or because it was obtained

by the exploitation of an unlawful act, the opponent

of the claim shall affirm or deny the occurrence of

Appellants contend that these sections authorized their mo-

tions to suppress, required the government to affirm or deny

the legality of the wire interceptions, and prohibited the gov-

ernment from relying on the evidence gathered as a result

of the interceptions until these requirements were satisfied.

Accordingly, they contend that their indictments must be

quashed ‘because the government presented this evidence to

the grand jury before it replied to their challenge to the

interceptions. 18 U.S.C. § 2515 provides that no intercepted

wire communication or evidence derived therefrom may be

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

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

would be in violation of this chapter.”

We hold that the government was not required to comply

with § 2518(9) or to affirm or deny the illegality of the inter-

ception before it could introduce the intercepted communica-

tions before the grand jury, nor were appellants entitled to

prevent the presentation of this evidence to the grand jury

even if the interception were unlawful.

The legislative history of § 2518(9) demonstrates that Con-

gress did not intend the ten-day disclosure requirement to

apply to grand jury proceedings. The Senate Report section-

by-section analysis provides that:

“Proceeding” is intended to include all adversary type

hearings. It would include a trial itself, a probation

:

Wa Appendix B

revocation proceeding, or a hearing on a motion for re-

duction of sentence. It would not include a grand jury

hearing. Compare Blue v. United States, 86 S. Ct. 1416,

384 U.S. 251 (1966).

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

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

strates that this section was not intended to permit a defen-

dant to challenge the evidence presented to the grand jury:

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

with sections 2515 and 2517, discussed above, which it

limits. It provides the remedy for the right created by

section 2515. Because no person is a party as such to a

grand jury proceeding, the provision does not envision

the making of a motion to suppress in the context of such

a proceeding itself. Normally, there is no limitation on

the character of evidence that may be presented to a

grand jury, which is enforcible by an individual. (Blue

v. United States, 86 S.Ct. 1416, 384 U.S. 251 [1966].)

There is no intent to change this general rule. It is the

intent of the provision only that when a motion to sup-

press is granted in another context, its scope may include

use in a future grand jury proceeding.

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

added. }

The Supreme Court's opinion in Gelbard v. United States,

408 U.S. 41 (1972) analyzes §$ 2518(10)(a) and 3504,

and supports the conclusion that they do not authorize a

defendant to suppress evidence before the grand jury on the

grounds that it was intercepted illegally. Nor is the govern-

ment required to affirm or deny the legality of the intercep-

tion. In Gelbard the Court held that a grand jury witness

could refuse to answer questions that were based upon illegal

interceptions, and could defend against a contempt charge

under 18 U.S.C. $2515. Section 2515 bars the use as evi-

dence before official bodies of the contents and the fruits of

, aan =

can only be a witness, for there is no other “party” to

grand jury proceeding. Moreover, a “claim . . . that evi-

dence is inadmissible” can only be a claim that the wit-

ness potential testimony is inadmissible.

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

The Supreme Court drew a careful distinction between a

fendant or potential defendant. The Court held that:

The congressional concern with the applicability of

§ 2518(10)(a) in grand jury proceedings, so far as it is

discernible from the Senate report, was apparently that

defendants and potential defendants might be able to util-

ize suppression motions to impede the issuance of indict-

ments: “Normally, there is no limitation on the character

of evidence that may be presented to a grand jury, which

is enforcible by an individual. [United States v. Blue,

384 U. S. 251 (1966).] There is no intent to change this

general: rule.” S. Rep. No. 1097, 90th Cong., 2d Sess.,

106 (1968). The “general rule,” as illustrated in Blue, is

that a defendant is not entitled to have his indictment

dismissed before trial simply because the Government

“acquire[d] incriminating evidence in violation of the

[law],” even if the “tainted evidence was presented to

the grand jury.” 384 U. S., at 255 and n. 3; see Lawn

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

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

whatever to do with the situation of a grand jury witness

who has refused to testify and attempts to defend a sub-

sequent charge of contempt.

408 U.S. 59-60.

been satisfied.” United States v. Mulligan, 520 F.2d 1327,

1329 (6th Cir. 1975). A defendant has no right to have a

as a practical matter provide a defendant with.an irreplace-

able opportunity for discovery, a defendant has no absolute

right to these ancillary benefits. For example, in Mulligan

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

government witness prior to trial, suffered no prejudice when

their preliminary hearing was continued to permit the govern-

ment to obtain a grand jury indictment in the interim. Ac-

cordingly, we hold that appellants suffered no legal prejudice

when the government proceeded by indictment, rather than

by a preliminary hearing at which appellants could have

contested the legality of the wire interceptions pursuant to 18

U.S.C. §§ 2518(10)(a) and 3504.

C. Improper Use of the Grand Jury.

Appellants also assert that the government improperly used

the grand jury to discover and preserve evidence to be used

at the trial of their already pending indictments. They assert

that both Burt and Nabors were called before the grand jury

to testify against appellants after appellants’ indictment. The

government concedes that it is improper to use a grand jury

solely to prepare a pending indictment for trial. Beverly v.

Appendix B 33a

United States, 468 F 2d 732 (5th Cir. 1972); 8 Moore's Federal

Practice 16.04. But it contends that the record contains no

support for appellants’ claim that Burt and Nabors were called

only to prepare pending indictments for trial. Additionally,

the government urges that appellants have not demonstrated

that any prejudice resulted from the alleged misconduct, and

it contends that only Nabors and Burt have standing to raise

the issue.

A presumption of regularity attaches to a grand jury's pro-

ceedings and appellants have the burden of demonstrating that

an irregularity occurred. Universal Manufacturing Co. v.

United States, 508 F.2d 684 (8th Cir. 1975); Beverly v. United

States, 468 F.2d 732 (5th Cir. 1972). Moreover, we agree

with the observation made by the First Circuit that: -

jury

sometimes people are indicted on the basis of evidence

tainted in part by hearsay, Costello v. United States, 350

U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), or of illegal-

ly obtained evidence, Lawn v. United States, 355 U.S.

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

jury narrowly confined in its objectives, Hale v. Henkel,

201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652 (1906), Blair v.

United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979

(1919).

United States v. Doe, 455 F.2d 1270, 1274 (1st Cir. 1972).3

Accordingly, in United States v. George, 444 F.2d 310, 314

bite

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3

Ha Appendix B

(6th Cir. 1971) we held that “[s]o long as it is not the sole

or dominant purpose of the grand jury to discover facts re-

lating to [a defendant's] pending indictment, the Court may

not interfere with the grand jury's investigation.”

Neither appellants nor the government have cited to us

any portion of the record in which appellants presented this

claim to the district court, and we have searched the vol-

uminous record to no avail. However, assuming that this

issue is properly before us, we hold that appellants have pre-

sented nothing beyond their own unproved suspicions to prove

that Burt and Nabors were improperly summoned before the

grand jury for the sole or dominant purpose of preparing the

pending indictments for trial. Portions of the testimony at

trial suggest that after appellants were indicted, Burt and

Nabors did testify before the grand jury regarding some of

the matters at issue in appellants’ trial. However, appellants

have made no showing that Burt and Nabors were not called

in order to determine whether other persons not yet indicted

were also involved in the conspiracy under investigation. The

indictments charged that appellants conspired with “divers

other persons whose names are to the Grand Jury unknown,”

and the grand jury could properly call witnesses in an attempt

to identify these persons. United States v. Beverly, supra.

D. Multiplicity.

Appellants allege that they were improperly indicted and

convicted of five separate acts of possession with intent to

distribute a controlled substance,* when the proofs showed

4 The counts charged:

Count 12— 659.66 grams of cocaine drochloride, with a

of 15.8%. ~~

Count 13 — 681.80 grams of heroin hydrochloride with a strength

Count er of cocaine hydrochloride with a strength

Count Atm pi me ery eR

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

strength of 58.1%.

=~ —

Appendix B 35a

that all the narcotics in question were found at the Hubbell

Street house, and that the intercepted wire communications

indicated that appellants had just received a single shipment.

Accordingly, appellants contend that the fragmentation into

multiple counts of a single act of possession of narcotics vio-

lated their right to due process.

Apparently appellants raise this contention for the first

time on appeal. The government contends that under F. R.

Crim.P. 12(b)(2) appellants’ failure to make the claim that

the indictment was multiplicitous by pretrial motion constituted

a waiver of this objection. F.R.Crim.P. 12(b)(2) requires

that “[d]efenses and objections based on defects . . . in the in-

dictment or information” “must be raised” prior to trial. (Em-

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

the “[f]ailure by a party to raise defenses or objections or to

make requests which must be made prior to trial . . . shall

constitute waiver thereof, but the court for cause shown may

grant relief from the waiver.” (Emphasis added.)

Since it is not entirely clear from the general averments in

the indictments that the narcotics referred to in counts 12

through 16 were all seized from the Hubbell Street house, there

may have been good cause for appellants’ failure to have raised

this issue before the district court until the government pre-

sented its case. However, since appellants failed to present this

objection to the district court even after the close of the govern-

ment’s case, when the factual basis of their objection was

apparent, we hold that they waived this objection under F.R.

Crim. P. 12(f).

Appellants also argue that counts 6 and 10 and counts 7

and 11 are multiplicitous, because they charge both distribu-

tion and possession with intent to distribute the same quanti-

ties of drugs. They urge that possession with intent to dis-

tribute is a lesser offense included within distribution. Again,

it appears that appellants did not raise this contention before

the trial court, and we hold, accordingly, that it was waived

F.R. Crim. P. 12(f).

Y BOP rerucey MOORS Re Hoy ee Minne deemneiacin ee imines “7

Paes weapanay

hepa

36a Appendix B

Il. WAS THERE GOVERNMENT MISCONDUCT THAT

REQUIRES REVERSAL?

Appellants contend that shocking governmental misconduct

requires the reversal of their convictions. They contend first

that a sham defendant was indicted in order to penetrate

their defense. Second, they argue that before their trial,

the government improperly disclosed critical information to

the press. Third, they complain that the government improp-

erly intruded into the marital relationship of appellant Blair

and Ruth Ann Burt, to induce her to testify against appellants.

Finally, they argue that the government improperly met with

Burt and Blair without any notice to Blair's attorney.

A. The Sham Defendant.

Appellants contend that the government's misconduct in

indicting Roosevelt Nabors as a “sham defendant” requires

the reversal of their convictions. They contend that the sham

nature of the indictment of Nabors, who served as a govern-

ment informer, is shown by the fact that payments to him

continued even after the indictment. Further, he was called

to testify before the grand jury about the case in which he

was charged after he had been indicted, and defense counsel

Milton Henry, who had filed an appearance on behalf of Na-

bors as well as most of the other defendants, was not notified.

Appellants argue that the sham indictment of Nabors violated

the fundamental fairness guaranteed by the due process clause,

and violated their right to counsel by introducing a govern-

ment agent into the defense.

Nabors testified that when he first began working with the

Bureau of Narcotics and Dangerous Drugs, (BNDD), he was

told that his cooperation would be communicated to the court

in connection with charges pending against him for attempted

murder and the unlawful driving away of an automobile. He

also stated that no other promises had been made to him.

He stated that while he was working with the BNDD he was

Appendix B 37a

paid approximately $1,500 for living expenses. He testified

that he was expected to help to set up arrangements so that

government special agents could make purchases directly from

members of the Jackson organization. He was not authorized

by them to make purchases on his own. Nevertheless, he

testified that without the knowledge or authorization of the

government, he sold $600 worth of heroin that he had received

from the Jackson organization on consignment. He said that

when he was arrested, he was told that he was being prose-

cuted because of this independent transaction.

Agent Garibotto testified that during a review of tape re-

cordings of the intercepted communications after the Decem-

ber 15 arrests at Hubbell Street, government agents discovered

that, without government authority, Nabors had called and

arranged to pick up at least one quantity of heroin, and that

he had sold it. Garibotto testified that Nabors was indicted

in good faith for this unauthorized part in the conspiracy.

Although he had been severed from the other defendants

before trial, Garibotto testified that the government retained

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

trial of the other defendants, no final decision had been made

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

he planned to make no recommendations one way or the

other. He stated that he had authorized a payment to Nabors

after his testimony before the grand jury so that Nabors could

stay out of sight in a motel. He said that after the indictment

he had not used Nabors again as an informant, but he believed

that others in the BNDD might have done so.

Although appellants claim that Nabors was indicted in order

to penetrate the defense and learn its tactics, they have pre-

sented little evidence that Nabors was involved in appellants’

common defense. Although Attorney Milton Henry filed an

appearance on behalf of Nabors as he did for all the other

defendants, the court’s records demonstrate that counsel was

ale assigned for Nabors on January 25, before he was called

before the grand jury. Moreover, on the government's motion,

of the appellants, Kilpatrick.

Appellants make two contentions about pretrial publicity.

First, they contend that the government improperly disclosed

to the press information gathered by wire interceptions. Sec-

ond, they contend that the volume of pretrial publicity made

it impossible for them to receive a fair trial.

1. Pretrial Disclosure of Intercepted Communications.

Appellants strenuously contended both in the district court

and in briefs and argument on appeal that the government

made improper pretrial disclosures of critical information to

the press. They urge that pretrial newspaper articles con-

tained “detailed recitals of wire interceptions, which could

only have been furnished by the government.” The news-

paper article principally relied upon to support this contention

indicates on its face that its source was a “26-page affidavit

[by] an agent of the Federal Bureau of Narcotics and Dan-

gerous Drugs.” Moreover, in their amended motion to dismiss

for prosecutorial misconduct, appellants specifically argued

that it was improper for the government to use information

from wire interceptions in an affidavit for a search warrant,

Appendix B 39a

and “then place that affidavit in the custody of a court clerk,

without first making provision for its protection from disclo-

sure as required by the plain mandate of the Federal Law.”

Thus we understand the gist of appellants’ argument to be

that the government had a duty to prevent unauthorized dis-

closures of their intercepted communications, and that the

government’s failure to prevent disclosure of the information

recited in the affidavit requires the dismissal of the charges

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

lists situations in which “[a]ny investigative or law enforce-

ment officer who, by any means authorized by this chapter,

has obtained knowledge of the contents of any wire or oral

communication” may disclose or use the information. Sub-

section (1) permits disclosure to another investigative or law

enforcement officer to the extent necessary for the performance

of both officers’ official duties. Subsection (2) provides gen-

erally that intercepted information and communications may

be disclosed “to the extent . . . appropriate” to the officer's

official duties. And subsection (3) permits disclosure where

the officer is giving testimony under oath in a state or federal

criminal or grand jury proceeding.*

Appellants contend that any disclosure not explicitly au-

thorized by § 2517 is illegal, and they argue that § 2517 did

not authorize either investigative or court personnel to dis-

close the contents of their intercepted communications to the

press. Accordingly, they urge that the disclosure to the news-

papers was illegal and that the only appropriate remedy is

the dismissal of the indictments.

The government argues that subsection (2) authorized gov-

ernment agents to disclose the contents of intercepted com-

ee SRE MS. Se Se,

ea SSS

ae a eS

40a Appendix B

munications in an affidavit for a search warrant. Then F.R.

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

warrant was returned to file the warrant “and all other papers

court,

We agree with the government that appellants have failed

gressional intention to protect individual privacy, it «would be

better practice for the government to request, as a matter of

course, that the district court restrict access to documents

filed with the court that contain intercepted communications.

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

Appellants also contend that the pretrial publicity about

their cases was so pervasive and inflammatory that they could

not receive a fair trial. However, appellants were tried not

by a jury, but by experienced district judges. In these cir-

cumstances appellants must show that the pretrial publicity

resulted in some actual prejudice, and they have failed to do

618 US.C. § 2515.

718 U.S.C. § 2520.

818 USC. § 2511.

Appendix B 4la

so. Moreover, if appellants believed that one or both of the

district judges could not try them impartially, the remedy

was to seek disqualification. 28 U.S.C. § 144.

C. Interference with George Blair's Marriage to Ruth Ann

Burt.

Appellant George Blair contends that in violation of the

public policy that protects marriage, government agents in-

tends that the convictions of all the appellants rest in large

part on Burt's tainted testimony, and should be reversed.

Blair first presented this objection to the district court in

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

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

who testified that the government “alienated” his marriage to

Burt. The district court held that:

there was no credible evidence indicating any improper

conduct on the part of the government; rather the cred-

ible evidence, including testimony of defendant's former

wife, Ruth Ann Burt, indicated the government did not

act improperly.

We hold that the record adequately supports the trial court's

finding, which is not clearly erroneous.

George Blair and his then wife Ruth Ann Burt without the

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

lants urge that the meeting in the absence of counsel was

42a Appendix B

criminate other defendants found to be co-conspirators, ap-

pellants argue that the meeting violated the right to counsel

of all of the appellants. In support of their contentions ap-

pellants cite State v. Britton, 203 S.E2d 462 (W. Va. 1974)

as authority for reversing a conviction when the prosecution

met with a defendant in the absence of his attorney. They

contend that the circumstances of the secret meeting with

Blair and Burt “irremediably tainted” her testimony.

According to Burt's testimony,’ about five months after

Blair's arrest, when she and Blair were not living together,

Agent Garibotto communicated with her about testifying be-

fore the grand jury, and she said that she would think about

it. Later she called Garibotto and arranged to meet him,

telling him that she would bring Blair. When they met, she

said that she wanted to negotiate immunity for Blair, and Gari-

botto replied that he would have to consult the government

attorney handling the case. The critical meeting was held at

the Ramada Inn. Blair, Burt, Garibotto, and government

attorney Wampler were all present. Burt stated that no one

took notes, and she did not believe that the conversation was

recorded. She did not recall whether anyone gave Blair the

Miranda warnings. In Blair's presence she told the govern-

ment agents a good deal about her knowledge of the narcotics

organization and Blair's activities. When she was asked if

Blair took part in the conversation, she said, “in some areas,

yes.” She stated that he answered some questions. Burt

said that she then asked if Blair could be given immunity in

return for her testimony, but that they were told that Blair

would not be given immunity unless he testified himself.

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

indicted were being represented by one attorney, Milton

Henry. The government did not inform Henry of the meeting,

nor was Blair asked to contact Henry himself.

* Blair did not testify at the trial.

Appendix B 43a

The district court conducted an inquiry into this matter at

a post-trial heariug. Government attorney Wampler testified

that he had believed that it was Blair’s wish that neither his

co-defendants nor their common counsel learn of his effcrts to

obtain immunity in return for Burt’s testimony. Moreover,

he stated that Blair said little at the meeting, and that the gov-

ernment “didn’t rely on anything that was said at the meeting

and that’s very true.”

The trial court held that the government “offered no evi-

dence at trial resulting from any statements made by Miss Burt

or defendant Blair at the meeting . . . . [C]learly the testimony

of Miss Burt at trial was in no way the fruit of the Ramada

Inn discussion.” The court recognized the dangers of meeting

with a defendant without his counsel, especially when co-

defendants are represented by the same counsel, but it held

that in this case the contact with Blair was not “improper.”

The meeting was sought by Burt and not by the government,

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

“gratuitous” comments that were not used at trial.

We agree with the district court. We are satisfied with

the district court’s careful inquiry to determine. whether any

evidence derived from the meeting was used by the govern-

ment, and with its conclusion that no evidence presented at

trial was gained from the meeting. Accordingly, any error

committed by the government was harmless whether measured

by the ordinary or by the constitutional standard.

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

municate directly with a party whom he knows to be repre-

sented by an attorney without the consent of the lawyer. See

American Bar Association Code of Professional Responsibility,

Canon 7, D.R. 7-104(a)(1). Here, however, the meeting was

arranged primarily between government agents and Burt, who

was not under indictment. The government did not seek

the meeting. Arrington v. Maxwell, 409 F.2d 849 (6th Cir.

1969). Government attorney Wampler testified that he be-

lieved that Blair particularly wanted to keep his attempts to

44a Appendix B

secure immunity from the other defendants and the counsel

who represented them all jointly. Cf. Arrington, supra. How-

ever, the government did not take the precautions that were

possible. It did not encourage or even suggest to Blair that

he should either notify Henry or arrange for the appointment

of independent counsel who could be present. Although we

disapprove of this practice, it bears little resemblance to the

outrageous prosecutorial conduct which required reversal in

cases cited by appellants. E.g., United States v. Rispo, 460 F.

2d 965 (3rd Cir. 1972).

Iii. DID THE DISTRICT COURT ERR IN ADMITTING

CHALLENGED EVIDENCE?

Appellants also seek to overturn their convictions on the

basis of several rulings by the district court adinitting chal-

lenged evidence. They contend that the wiretap evidence that

figured so prominently in the prosecution’s case was inad-

missible, first because the government’s application was not

properly authorized, and also because the application did not

meet several statutory requirements. Appellants seek the sup-

pression of the evidence seized at the Hubbeil Street house,

and from appellants Jones, Hurt, and Woods at the time of

their arrests, on Fourth Amendment grounds. Appellants con-

tend that voice exemplars that they were required to give

were inadmissible on both Fourth and Fifth Amendment

grounds. And finally, they contend that the testimony of

Agent Garibotto identifying the voices on the tapes was inad-

missible because it was the fruit of informal “aural showups”

which violated appellants’ Fourth, Fifth, and Sixth Amend-

ment rights.

A. Wiretap Evidence.

The intercepted communications were critical items of proof

in the government’s case, and appellants contend that the dis-

trict court erred in refusing to suppress the evidence seized by

Appendix B 45a

the interception. They challenge the validity of the authoriza-

tion for the government's application for a wiretap order.'®

They also argue that the application did not demonstrate that

normal investigative procedures would have been inadequate,

nor did it afford the district judge probable cause to believe

that the telephone to be tapped was being used or was about

to be used for one of the offenses specified in the wiretap

statute.

1. The Authorization for the Application for the Wiretap

Order.

Appellants argue that the wiretap evidence should have

been suppressed because the government’s application for

the interception order lacked the authorization required by

the statute. 18 U.S.C. $2516(1) provides that:

The Attorney General, or any Assistant Attorney General

specially designated by the Attorney General, may autho-

rize an application to a Federal judge of competent juris-

diction for . . . an order authorizing or approving the

interception of wire or oral communications. . . .

In this case, the written application and the application for

"an extension stated that Attorney General Mitchell had special-

ly designated Acting Assistant Attorney General Henry Peter-

son to authorize the application to the federal court, and

Peterson’s letter was attached.

After their indictment, appellants moved to suppress the

wiretap evidence on the ground that an acting assistant attor-

ney general had no authority to authorize wiretaps pursuant

to §2516. Appellants argue that the applications were in-

sufficient on their face. Section 2518(10)(ii) provides that

the contents of intercepted communications may be suppressed

10 Appellants’ challenge applies both to the original application

ae to the seeeaaee for the extension. Our discussion applies to

as well.

46a Appendix B

on the ground that “the order of authorization or approval

under which it was intercepted is insufficient on its face.”

In United States v. Vigi, 515 F.2d 290 (6th Cir.), cert.

denied, 432 U.S. 912 (1975), our court considered this argu-

ment and held that it was unnecessary to determine whether

an acting assistant attorney general who signed the letter

authorizing the application could give effective approval under

§ 2516, because the Attorney General himself had actually

approved the application. Accord, United States v. Swann,

526 F.2d 147 (9th Cir. 1975); United States v. Acon, 513

F.2d 513 (3d Cir. 1975); United States v. Robertson, 504

F.2d 289 (5th Cir. 1974), cert. denied, 421 U.S. 913 (1975).

The same situation is present in this case. The district court

found that Peterson had submitted the papers supporting the

request for authorization to Attorney General Mitchell, and

that Mitchell himself approved the application. The govern-

ment submitted the affidavit of Sol Lindenbaum who stated

that the Attorney General had approved the request for autho-

rization to apply for wiretap orders. Attached to this affida-

vit were copies of a memorandum from Mitchell to Peterson.

In his deposition Lindenbaum identified the handwritten in-

itials on the memos as Mitchell's. Judge Kennedy, who issued

the wiretap orders, was told that Mitchell had approved the

application. Appellants also contend, however, that Attorney

General Mitchell's internal memoranda were ineffective be-

cause 28 C.F.R. § 0.180 required the designation of formal

orders. Appellants contend that this section is applicable by

its own terms to all documents relating to “the assignment

. or delegations of authority, functions, or duties by the

Attorney General.” These documents are to be designated as

formal “orders” to be issued by the Attorney General in a

numbered series. This section is not applicable to delega-

tions of the special authority over applications for inter-

ception orders, or to the Attorney General's personal approval

of an application for an interception order. Other courts have

found even verbal approval by the Attorney General to be

Appendix B 47a

sufficient. United States v. Falcone, 305 F.2d 478 (3d Cir.

1974), cert. denied, 420 U.S. 955 (1975).

Appellants also conterd that the affidavit in support of

the application for the wiretap failed to make the averments

required by 18 U.S.C. § 2518(1)(c). Section 2518(1)(c) re-

quires that an application for an electronic surveillance order

contain a “complete statement as: to whether or not other

investigative procedures have been tried and failed or why

they appear to be unlikely to succeed if tried or to be too

dangerous. ...” We hold that the affidavit of Agent Garibotto

was a satisfactory statement of the investigative steps taken

to date, and that it affords a sufficient reason why normal

investigative procedures “appear to be unlikely to succeed.”"'

1! Agent Garibotto’s affidavit stated in part:

19. Normal investigative ures have not succeeded in

establishing the full extent of the activities of Eddie JACKSON

and BLAIR relating to their or sale of con-

trolled su nor has Eddie JACKSON’s and George

peng am of ly been identified = a Lem

on my wledge experience as a Special Agen

Federal Bureau of Narcotics and Dangerous and the

the Bureau of Narcotics and erous Drugs, normal investi-

gative procedures reasonably a to be unlikely to su

in establishing the identities of Eddie JACKSON’s and George

BLAIR’s co-conspirators, aiders and abettors, their places of

ration for their transportation of controlled substances to

e Detroit, Michigan area and for their manufacture and dis-

tribution of controlled substances within the Detroit, Michigan

area, and their times, places, schemes, and manners for selling,

buying, possessing, concealing, delivering, distributing, or pay-

ing for controlled substances. My experience and the experience

of other Federal Agents has shown that narcotics (controlled

substance) raids and searches have not, in the past, resulted in

obtaining evidence of who the raided violator’s co-conspirators,

aiders and abettors were, and where their places of operation

were to transport controlled substances into an area or manu-

facture or distribute controlled substances about an area. Ex-

perience has shown that controlled substance manufacturers and

distributors do not keep records of their controlled substance

actions. It is the experienced belief of S Agents of Region

VI that additional surveillances of JA IN’s and BLAIR’s

and his operation, if continued on a regular basis, will ieopar-

dize the outcome of the investigation, and will do little to

reveal the manufacture and distribution network. JACKSON

and BLAIR are extremely surveillance conscious and have two

men on duty outside 19315 Hubbell to spot surveillance units.

Special Agent Smith has been unable to move any further

» oe 1 epee ene

vestigation did not render insufficient Garibotto’s statements

of the need for wiretaps to discover and prove the liability of

the conspirators. See United States v. Pacheco, 489 F.2d

554, 564-565, cert. denied, 421 U.S. 909 (1975).

Appellants’ final contention regarding the wire interception

is that the affidavit submitted with the application for the

wiretap order did not meet the requirement of 18 U.S.C.

§ 2518(3)(d) that it afford the district court “probable cause

vertically or horizontally in the JACKSON/BLAIR i

because of JACKSON’s and BLAIR’s eulbeiet anata ao

not personally know anymore facts concerning the JACKSON/

BLAIR operation.

the commission of [an offense specified] ....” Appellants

contend that the application failed to establish probable cause

to believe that the telephone in the house on Hubbell Street

was being, or was about to be, used to facilitate the distribu-

tion of narcotics.

The affidavit recited that on two separate occasions, on

October 22 and November 4, a government informant, who

consented to having government agents monitor his conver-

sation, called the number registered to the Hubbell Street

address and set up a sale at the Hubbell Street house, and

the purchased substance was tested and found to be heroin.

During the exchange, the agent observed the telephone ring

a number of times. He saw appellants Blair and Brown

answer the calls. Additionally, Garibotto averred that based

upon his experience in narcotics investigations, a telephone

was regularly used to negotiate the time, place, and manner

of “selling, buying, possessing, concealing, delivering, dis-

tributing, or paying for controlled substances.”

On review, we must view the affidavit in a common sense

* fashion, and we think that it afforded probable cause to be-

lieve that the telephone at the Hubbell Street address was

being used to make the arrangements for a series of narcotics

transactions. This is sufficient to satisfy the requirement of

$ 2518(3)(d).

2. The Arrests of Appellants Jones, Hurt, and Woods.

We next consider the legality of the arrests of appellants

Jones, Hurt, and Woods as they left Hubbell Street on the

night of December 15. Appellants argue that the govern-

ment lacked probable cause to make these arrests, and that

the evidence seized at the time of the arrests must be sup-

pressed. Earlier in the evening of the night of the arrests,

He observed Jones’ car pull up to the house, and saw its two

passengers enter 19315 Hubbell. They departed about five

minutes later. Dockery followed them for a short distance,

then arrested them. A search revealed that Jones had con-

cealed four cellophane bags containing about one pound of

heroin each inside his shirt at the waistband. The evidence

of the 1,924.5 grams of heroin was the basis for counts 6 and

10, distribution and possession without intent to distribute

heroin.

Agents also intercepted a call from Blair to appellant Hurt

on December 15. Blair stated that the heroin was on hand.

Hurt was arrested by Agent Cigich, who testified that

“supervisory agents” told him to maintain surveillance at Hub-

bell Street, and

should any individual that had arrived at that address

get back into their [sic] vehicles and depart, to appre-

hend and place under arrest the individual.

Hurt arrived and entered 19315 Hubbell. When he departed,

Agent Cigich followed and arrested him some distance away.

Cigich testified that he found a small packet of white powder

“inside the car, lying on the floor next to the driver's front

seat.” The powder was tested and found to be .268 grams of

heroin. Apparently Hurt was the driver and only person

in the car at the time of the arrest. The heroin was offered

into evidence in support of appellants’ convictions on counts

7 and 11, possession and possession with intent to distribute

.268 grams of heroin.

- There was testimony that agents observed Woods arrive at

19315 Hubbell at about 9:40, and leave a few minutes later.

He was arrested by Agent Goldenbaum. Goldenbaum testi-

fied that he had been informed by agents monitoring the wire-

taps that a narcotics shipment had arrived at Hubbell Street

and was being rapidly distributed. He was told to get into

a radio car and take up a surveillance position. He learned

that at about 9:30 twe persons had been arrested leaving the

premises, and were found to have suspected narcotics in their

possession. At about 9:40, he was informed by radio that a

1969 Chrysler was parked in front of the Hubbell Street house,

and he was told to follow it when it left and to arrest appellant

Woods. A package containing 37.66 grams of cocaine and

137.5 grams of heroin was found in the pocket of his jacket.

; one

actually identified Hurt prior to his arrest, “the officers had

cnough facts to determine that the man they arrested was

statutes.” Although there was no intercepted telephone call

to Woods, the district court held that the agents had probable

cause because they knew that the Hubbell Street house was

being used as a distribution site for narcotics on the night of

December 15. The court reasoned that it was extremely un-

likely that a person would come to the distribution center on

that night except for the purpose of illegal narcotics trafficking.

Moreover, the agents knew that it was common practice in

the narcotics trade to dispense a shipment quickly. Accord-

ingly, when they saw Woods arrive and depart after only a

few minutes — just as Jones and Hurt had done a few minutes

earlier — they had probable cause to believe that Woods, too,

would have narcotics in his possession when he left.

Neither Garibotto’s knowledge about Jones and Hurt nor

his orders for their arrest can be relied upon to provide prob-

able cause for their arrests, because there was no evidence that

any of his comments had been communicated to the agents on

the scene who actually made or ordered their arrests.

The government contends that the information known to a

superior officer may be imputed to the arresting officer, citing

United States v. Trabucco, 424 F.2d 1311, 1315 (5th Cir.

1970), cert. denied, 399 U.S. 918 (1970), and that the col-

lective knowledge of agents working as a team is to be con-

sidered together in determining probable cause. E.g., United

States v. Caniesco, 470 F.2d 1224, 1230 n. 7 (2d Cir. 1972);

Appendix B 53a

United States v. Stratton, 453 F.2d 36 (8th Cir. 1972), cert.

denied, 405 U.S. 1069 (1972). When a superior officer orders

another officer to make an arrest, it is proper to consider the

superior's knowledge in determining whether there was prob-

able cause. Likewise, when a group of agents in close com-

munication with one another determines that it is proper to

arrest an individual, the knowledge of the group that made

the decision may be considered in determining probable cause,

not just the knowledge of the individual officer who physically

effected the arrest. But here, in contrast, because there was

no evidence that Garibotto’s order to arrest either Jones or

Hurt was the basis of their arrests, his knowledge cannot be

considered in determining probable cause. On the other

hand, we do mutually impute the knowledge of all the agents

workins, together on ihe scene and in communication with

each other. Therefore it was proper to consider not only

the facts known to Agent Goldenbawm when he arrested

Woods, but also the information known to the officers who

saw Woods visit 19315 Hubbell and ordered Coldenbaum to

follow and arrest him.

When Dockery arrested Jones, he knew that Jones had re-

ceived a call from the Hubbell Street telephone that evening,

that narcotics were believed to be concealed on the premises,

and that the person he saw enter and leave the premises

was known to another agent on the scene as Alphonzo

Jones. Dockery testified that he had conferred with the

other agents on the scene and determined that anyone who

visited 19315 Hubbell Street was likely to be carrying nar-

cotics when he left. The district court’s discussion of Woods’

arrest indicates that it determined that the agents on the

scene knew that 19315 was being used as a narcotics distri-

bution center that evening, and we assume that

learned as much from his conference with the other agents.

These facts are sufficient to afford probable cause to believe

that Jones had been trafficking in heroin. Of course if the

if

i

f

4

‘i

i]

iH

if

Hf

tribution site for narcotics. They also knew that a large

shipment of narcotics had arrived. Since Dockery had a

conference with the other agents, and knew of the call to

likely than not that a visitor on the night of December 15

was there to pick up narcotics, especially when he had been

called earlier that night from the Hubbell Street address. Ac-

cordingly, the arrest was lawful and the evidence seized from

Jones was properly admitted.

In the case of appellant Hurt, the same reasoning ap-

plies. Agent Cigich testified that he made the arrest

because of a general order by his supervisors to arrest

anyone leaving 19315 Hubbell that evening. Although

municated to Cigich or to the other agents on the scene, we

assume that the supervisory agents who gave these orders

knew of the anticipated distribution from the Hubbell Street

house that evening. As in the case of appellant Jones, there

was probable cause to arrest Hurt immediately after his brief

visit to the house. The totality of the circumstances suggested

Appendix B 55a

no reason for his presence other than to engage in narcotics

traffic.

In the case of appellant Woods, moreover, the agents had

more than simply the expectation that 19315 Hubbell was to

serve as a distribution site that evening. They also knew

that two other persons who had arrived shortly before Woods

had been arrested and were found to have suspected narcotics

in their possession. Additionally, as the district court noted,

the agents knew that once a narcotics shipment arrives, it is

distributed very quickly. In these circumstances, we agree

with the district court that the facts known to the officers who

ordered the arrest of Woods, and of which they had reasonably

trustworthy information, “‘were sufficient to warrant a prudent

man in the belief that [Woods] had committed or was com-

mitting an offense.” Adams v. Williams, 407 U.S. 143, 148

(1972), quoting Beck v. Ohio, 379 U.S. 89, 91 (1964).

Accordingly, we hold that the evidence seized at the arrests

of appellants Hurt, Jones, and Woods was legally seized, and

was admissible to prove their guilt. Since we find that there

was probable cause for the arrest of Cara Woods, the evidence

seized at the time of the arrest was admissible, and we have

no occasion to consider whether the statements he later made

- were independent of his arrest.

B. The Evidence Seized from the Hubbell Street Premises.

A large quantity of narcotics was seized from the house

on Hubbell Street on December 15, shortly after the arrests

of appellants Jackson, Brown, Blair, and Joseph and Reginald

Weaver. Appellants contend that these arrests were purpose-

ly delayed until appellants were inside the Hubbell Street

house, and that they were used as a pretext for making a

search of the premises without a warrant.

The arrests were made at approximately 10 p.m. on Decem-

ber 15. According to the testimony at the suppression hear-

ing, about 6 p.m. that evening, government agents who were

36a Appendix B

monitoring the Hubbell Street wiretaps informed Agent Gari-

botto that several calls suggested that a long awaited shipment

of narcotics had arrived. CGaribotto testified that he and

government attorneys immediately began to prepare affidavits

in support of a search warrant for Hubbell Street. Since

these calls also indicated to Garibotto that buyers had ar-

ranged to come to Hubbell Street, he ordered the agents in

the Hubbell Street vicinity to be alerted for the buyers’ arrival.

At approximately 9:45 Garibotto, who was on the way to the

home of a district judge to present the affidavits, was notified

of the arrests of Jones, Hurt, and Woods as they left Hubbell

Street. He was also told that each of them was found to be

in possession of narcotics when arrested. At that time Gari-

botto ordered the agents on the scene to arrest Jackson and

the others found in the Hubbell Street house. At approxi-

mately 10 p.m. at the home of the district judge, when he

was notified that the arrests had been made, and that sus-

pected narcotics had heen found in plair view, he added this

information to the affidavit. The district judge issued a search

warrant for the house on Hubbell Street, and a full search

was made pursuant thereto. A large quantity of narcotics

was found and was later introduced into evidence at appel-

lants’ trial.

Appellants contend that Garibotto purposely ordered the

arrests to be made at the Hubbell Street house as a subterfuge

to permit a search of the premises without a warrant. Gari-

botto denied that he delayed the arrests for that reason. Both

appellants and the government rely upon Garibotto’s statement

ni his purpose for ordering the arrests at that time. He testi-

Well, the circumstances at the Hubbell address mandated

that the arrest be made at that time. Our forces were

diffused at the time. We knew there were a great num-

ber of customers heading to the Hubbell address to pur-

chase heroin and cocaine. We made three arrests, there

were three seizures. We knew that our forces were

Appendix B 57a

spread around the immediate vicinity. We were just

concerned that the evidence that was on hand at Hubbell

would be distributed to the streets and would not be

seized.

The district court upheld the seizure of the challenged evi-

dence on two grounds. First, it held that

[djespite substantial testimony about the arrests them-

selves at Hubbell, no persuasive facts were presented to

support defendants’ allegation that Jackson could have

been arrested prior to his entering the house on Hubbell.

Additionally, the court held that even assuming that the agents

had improperly delayed the arrests to gain entry into the

house without a warrant, the search that was later conducted

pursuant to a warrant was not tainted. The court reasoned

that the district judge, who received lengthy affidavits pre-

pared before the arrests (to which only one handwritten para-

graph had been added after the arrests), had before her suffi-

cient unchallenged facts to afford probable cause for a search.

The improper addition could therefore be ignored.

Our court has repeatedly made it clear that:

An arrest may not be used as a pretext or subterfuge

for making a search of premises without a search warrant

where ordinarily one would be required under the Fourth

Amendment. If, in fact, the primary purpose of forcibly

entering a person’s home is to search for evidence with

which to convict him of crime, the evidence so obtained

is not admissible in court.

United States v. Harris, 321 F.2d 739, 741 (6th Cir. 1963),

quoted in United States v. Carriger, No. 74-1901 (6th Cir.

1976, decided and filed, August 25, 1976) [Footnote omitted].

As Chief Judge Cecil stated in Harris,

The real purpose of the agents must be determined

from all of the facts and circumstances surrounding the

58a Appendix B

arrest of the defendant and the search of his apartment.

The court is not bound to accept the purpose as stated

by the agents as controlling.

321 F.2d 741.

Appellants argue that probable cause to arrest Jackson,

Brown, and Blair existed after the October 22 and November

4 sales to the undercover agent. Moreover, they emphasize

that Jackson was under government surveillance before he

arrived at Hubbell Street, but he was not arrested until after

he was on the premises. They argue that Garibotto’s state-

ment quoted above admits that his purpose in ordering the

arrests was to permit the warrantless search and seizure of

narcotics.

Although the district court did not focus on the issue as

stated in Harris, its determination that the defendants did not

prove that Jackson could have been arrested sooner implies

that the government did not make the arrests as a pretext for

a warrantless search. The arrests were ordered as soon as the

buyers who had called earlier left the premises, were arrested,

and were found to be in possession of narcotics. Taken with

the reports of the outgoing calls from Hubbell setting up addi-

tional sales, this firmly established that the narcotics shipment

had arrived, and that the occupants of the house were dis-

tributing it rapidly. This knowledge afforded probable cause

to arrest all the occupants of the house, not just Jackson.

Moreover, we think that Garibotto’s testimony indicates that

there was real concern for preventing the unlawful distribution

of a large shipment of narcotics to other purchasers, as well

as a desire to effect the arrests while there was sufficient man-

power available. The record does not indicate that the gov-

ernment was trying to avoid getting a warrant to search Hub-

bell Street. In fact, when Garibotto ordered the arrests he

was on his way to the home of a district judge with detailed

affidavits, and he added only a brief handwritten statement

after he learned of the arrests. The district judge actually

Appendix B 59a

issued a warrant within minutes of the entry and arrests. No

search of the premises was made until the warrant was issued.

The facts and circumstances surrounding the arrests thus

demonstrate that the government did not manipulate the ar-

rests in order to avoid the Fourth Amendment warrant re-

quirement, and we hold that the evidence seized from Hubbell

Street was properly admitted.

C. Formal Voice Exemplars.

Appellants contend that the district court's order requiring

them to give formal voice exemplars violated their privilege

against self-incrimination and constituted an illegal search

and seizure. Accordingly, they argue that neither the ex-

emplars nor identification testimony based upon the exemplars

was admissible. In United States v. Franks, 511 F.2d 25, 33

(6th Cir.), cert. denied, 422 U.S. 1042 (1975) we rejected

these arguments, holding:

Mitchell and Britton claim that the court order com-

pelling them to give voice exemplars violated their con-

stitutional right against unreasonable searches and seizures

and their constitutional privilege against self-incrimina-

tion. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764,

35 L.Ed.2d 67 (1973), established that compelling voice-

prints even of the same words used in the crime does not

violate the constitutional privilege against self-incrimina-

tion. Accord, United States v. Rogers, 475 F.2d 821,

825-826 (7th Cir. 1973). Moreover, compelling a voice-

print is neither a “search” nor a “seizure.” Dionisio, 410

U.S. at 14-15, 93 S.Ct. 764. We reject Mitchell's attempt

to limit Dionisio to the grand jury context in that, so long

as the underlying seizure of the person is proper, requir-

ing that person to submit voice exemplars violates no con-

stitutional right. See United States v. Rogers, 475 F.2d

821 (7th Cir. 1973) (court-ordered submission); United

States v. Sanders, 477 F.2d 112 (5th Cir.), cert. denied,

414 U.S. 870, 94 S.Ct. 88, 38 L.Ed.2d 88 (1973) (legally

in custody on another matter).

60a Appendix B

D. Informal “Aural Show Ups.”

Appellants also contend that their Fourth Amendment rights

and their privilege against self-incrimination were violated,

and their Sixth Amendment right to counsel denied, at a series

of informal “aural show ups.” Appellants allege that govern-

ment agents created opportunities to speak to each of the ap-

pellants both in person after their arrests, and later over the

telephone by setting up a lengthy procedure for the return

of their seized property. Agents testified that they did not

give the warnings detailed in Miranda v. Arizona, 386 U.S.

436 (1966) when they spoke to appellants on these occa-

sions,'? and appellants did not have their counsel present.

As we stated in connection with the formal voice exemplars,

supra, neither the Fourth Amendment nor the privilege against

self-incrimination is violated by the disclosure, even if com-

pelled, of a person’s voice. Appellants’ complaint is not that

their statements were used to incriminate them in a testi-

monial sense, but that the agents were able to recognize their

voices on the tapes after having heard them in person and

over the telephone.

Appellants also claim, however, that because the “aural

show ups” formed the basis for the critical testimony identify-

ing their voices on the tapes, they were critical stages at

which the Sixth Amendment guaranteed appellants’ right to

counsel. A review of the testimony indicates that Agent Gari-

botto did speak to several of appellants briefly after their

arrests, and later over the telephone. These conversations ap-

pear to have been brief and matter of fact, concerning such

routine matters as the return of property which had been

seized. There is no requirement that counsel be present for

conversations about such routine matters when no effort at

interrogation is made.

12 Appellants do not contend that they were not given their Miranda

warnings before formal custodial interrogations.

Appendix B 6la

IV. WAS THERE SUFFICIENT PROOF OF APPEL-

LANTS’ GUILT ON EACH OF THE COUNTS?

Next we consider the sufficiency of the proofs supporting

appellants’ convictions on the various counts of the indictment.

First, appellants assert that the Pinkerton rule should not be

applied to convict defendants, found to be conspirators, of

each of the substantive counts without proof that each defen-

dant actually took part in the individual transactions. Second,

several appellants challenge the sufficiency of the evidence

linking them to the conspiracy. Last, we will consider chal-

lenges to the proofs on counts 3, 4, 8 and 9.

A. The Pinkerton Rule.

Appellants vigorously attack the validity of the rule an-

nounced in Pinkertow v. United States, 328 U.S. 640 (1946)

that even if he did no more than join a conspiracy, a conspira-

tor can be convicted of any substantive offense committed in

furtherance of the conspiracy and as a part of it. Appellants

contend that the Pinkerton rule is bad law, and that this court

should not follow it. Our court, however, is constitutionally

required to follow the Supreme Court’s decision in Pinkerton

and the cases following it, which have never been overruled,

or even questioned by the Supreme Court.

B. The Sufficiency of the Evidence of Conspiracy.

Appellants Kilpatrick, Riggs, Rudolph, Cavanaugh, Horne,

Hurt, and Garrett challenge the sufficiency of the evidence sup-

porting their convictions. Since each of them was found

guilty of conspiracy, count 1, under the Pinkerton rule, they

could also be convicted of counts 3 and 4 and counts 6

through 16, which charged crimes that were part of and in

furtherance of the conspiracy. Appellants contend, however,

that there was insufficient evidence to support their convic-

tions on the conspiracy charge.

62a Appendix B

In reviewing the sufficiency of the proof of appellants’ guilt,

we will be guided by the following general principles. The

evidence will be viewed in the light most favorable to the

government. Glasser v. United States, 315 U.S. 60 (1942).

Moreover, there are special evidentiary rules applicable to

conspiracy cases. As we stated in United States v. Mayes,

512 F.2d 637, 651 (6th Cir.), cert. denied, 422 U.S. 1008

(1975):

a prima facie case of the conspiracy and the defendant's

connection with it must be established by evidence inde-

pendent of that offered as an admission of a co-conspira-

tor. . . . However, a prima facie case is less than

beyond a reasonable doubt; indeed, it is less than a pre-

ponderance. . . . Moreover, the prima facie case need not

be established before the proffered hearsay may be ad-

mitted; the judge may admit it conditionally. It is suffi-

cient if at the close of the government’s proofs, a prima

facie case of conspiracy and the defendant’s conection

with it has been established by “independent or disasso-

ciated evidence.”

Applying these principles, we turn to the evidence that is

claimed to support the finding that each of these appellants

were conspirators.

Willie Lee Kilpatrick

Appellant Kilpatrick was convicted of conspiracy, count 1,

by Judge Pratt, and under the Pinkerton rule he was also

convicted on counts 3, 4, and 6 through 16. We hold that the

evidence was adequate to support his conviction on the con-

spiracy count, and we have already discussed the Pinkerton

rule supra. The following evidence supported the district

court's conclusion that Kilpatrick “was involved in narcotic

trafficking, was clearly associated with defendant Jackson and

connected with the other conspirators . . . [and] was in the

‘lieutenant’ echelon of the Jackson organization. Tae

Appendix B 63a

patrick flew to New York with appellant Riggs (Jackson's

girlfriend), who was arrested carrying a quantity of narcotics

when she attempted to return to Detroit. Informant Nabors

testified that he observed Kilpatrick at 19315 Hubbell Street

at the time scheduled for a meeting of the Jackson organiza-

tion lieutenants. When Nabors refused the organization's in-

vitation to become a lieutenant, he was not allowed to stay.

A search of Kilpatrick’s apartment produced substances used

to dilute heroin, narcotics paraphernalia, and firearms. Kil-

patrick’s address book listed the names of other conspirators,

and he was likewise found listed in their books.

Lee Hurt

Judge Feikens convicted appellant Hurt on count 1 because

he found beyond a reasonable doubt that Hurt purchased

from the Jackson organization large quantities of narcotics for

wholesale distribution. The district court took special note of

a call that Hurt made by Blair in whi-h Hurt stated that his

customers were complaining about tl. quality of the nar-

cotics he had sold them. Judge Feikens observed that Hurt

was mentioned in the telephone and address books of several

of the conspirators. Finally, Hurt was called to the Hubbell

Street house on December 15 when the large shipment was

being distributed, and he was arrested with heroin in his

possession when he left. Although the heroin was found in

Hurt’s car, not on his person, there was ample evidence to

support a finding of possession, since he was apparently the

only person in the car, and the heroin was found on the floor

by the driver’s seat. This evidence is sufficient to support the

conclusion that Hurt, like Cavanaugh and Rudolph, was a

major distributor for and a member of the conspiracy. Ac-

cordingly, we affirm Hurt’s conviction on count 1. Under the

Pinkerton rule, the conviction on count 1 permitted his con-

viction on the counts charging the substantive crimes com-

mitted in furtherance of the conspiracy as well, including

count 7. Accordingly, we need not discuss Hurt’s argument

64a Appendix B

that there was insufficient evidence to convict him on count

7, although we conclude that even without the Pinkerton rule,

there was sufficient evidence to sustain his conviction on this

charge.

Hurt also contends, relying upon Kotteakos v. United States,

328 U.S. 750 (1946); that the evidence shows only a “hub and

spoke” cluster of several conspiracies, each between an in-

dividual dealer and the “hub” consisting of Jackson and his

lieutenants. In Kotteakos, however, defendant Brown special-

ized in obtaining loans from the Federal Housing Administra-

tion by false and fraudulent applications. Several defendants,

each of whom had obtained such a loan falsely and fraudu-

lently, were charged with and convicted of a single all-encom-

passing conspiracy. The Supreme Court held that there was

proof, not of a single, but of several conspiracies, and reversed

Hurt, however, was a distributor with an ongoing relation-

ship with the conspiracy to distribute illegal narcotics He

depended for his success upon the continuing vitality of the

entire conspiracy. This is particularly true in the narcotics

business, because new customers of each seller may become,

by reason of addiction, a lifetime potential market for all other

sellers.

Fairh Lee Riggs

Judge Feikens convicted appellant Riggs of conspiracy, count

1, concluding that she knowingly and intentionally joined the

conspiracy, and that she was “an important courier in the

transportation of narcotics” as well as “an intimate associate

of Jackson.” We hold that the evidence was sufficient to con-

vict Riggs of conspiracy. Riggs had travelled to New York

with appellant Kilpatrick and defendant Reynolds in Septem-

ber 1971. All three used assumed names. When airlines

personnel examined appellant Riggs’ carry-on luggage, they

observed an estimated $30,000 in cash in a paper bag. Riggs

me a

Appendix B 65a

was arrested later that day when she returned to the New

York airport for a return flight to Detroit. Her luggage con-

tained 1,917 grams of heroin and almost $5,000 in cash. She

was convicted of possession of the heroin in the Eastern Dis-

trict of New York, and the conviction was affirmed. United

States v. Riggs, 474 F.2d 699 (2d Cir.), cert. denied, 414 US.

820 (1973). By stipulation, the record in the New York case

was incorporated into these proceedings. Riggs was Jackson's

girlfriend. He arranged to take calls from another conspirator

at her house. Riggs’ name and telephone number, along with

those of several other appellants, were found in appellant Ru-

dolph’s address book. This evidence was adequate to estab-

lish a prima facie case that appellant Riggs knowingly joined

the conspiracy. Accordingly, other evidence of hearsay state-

ments by other conspirators was admissible to strengthen the

case against Riggs. Burt's testimony indicated that the Jack-

son organization procured several large shipments of narcotics

from a source,in New York. Additionally Jackson told Burt

that he believed the Riggs arrest must have been a “set-up”

because the two men with her were not arrested. Jackson

tried to raise a large sum because his “old lady” was in jail in

New York, and Blair told Burt that Jackson was trying to find

a lawyer for Riggs. This evidence. amply supports the con-

viction of Riggs on count 1.

Samuel (Eugene) Horne

Judge Feikens concluded that it was “clear beyond a rea-

sonable doubt that defendant Samuel Horne knowingly and

intentionally joined the conspiracy.” He concluded thai

Horne’s “principal activity” for the organization was “whole-

sale distribution of narcotics.” The government intercepted

telephone conferences between Horne and Joseph Weaver,

Brown, Blair, and Jackson. In particular, Judge Feikens noted

that on December 9 Horne called Jackson and attempted to

arrange a sale to a customer who wanted a “full thing” for

66a Appendix B

$15,000. This evidence was more than ample to support

Horne’s conviction of conspiracy.

Charles Cavanaugh

Judge Feikens convicted Cavanaugh of count 1, conspiracy,

holding that he was one of the organization’s “wholesale dis-

tributors,” and that he “engaged in other kinds of supply

activity for the group.” Burt testified that she and Blair

delivered cocaine to Cavanaugh in exchange for three outfits

of clothing. The wiretap intercepted a number of calls from

Cavanaugh to the Hubbell Street telephone inquiring about

the availability of narcotics. Cavanaugh indicated his famil-

iarity with various key members of the organization by calling

and asking to speak to “George [Blair], Brown, or the big

man [Jackson].” In these calls Cavanaugh made arrangements

for sales, complained about the quality of the narcotics that

he had received, saying at one point that he had had to return

his customers’ money. On December 14 Jackson agreed to sell

Cavanaugh 13 quarters of heroin.

This evidence was more than sufficient to prove Cavanaugh’s

part in the conspiracy. See, e.g., United States v. Tramunti,

513 F.2d 1087, 1112 (2d Cir.): cert. denied, 423 U.S. 832

(1975); United States v. Varelli, 407 F.2d 735, 748 (7th Cir.

1969), cert. denied, sub nom. Saletko vy. United States, 405

U.S. 1040 (1972); United States v. Aviles, 274 F.2d 179, 188

(2d Cir. 1960).

Charles Rudolph

Judge Feikens also convicted appellant Rudolph on the con-

spiracy count. He held that Rudolph was “deeply involved in

wholesale distribution of drugs for the group.” Judge Feikens

cited as evidence Rudolph’s telephone calls, his account rec-

ords, and his automatic telephone dialing cards for other con-

spirators, as well as the fact that Rudolph was listed in the

telephone and address books of other conspirators. In one

telephone call, Rudolph told Brown he was “getting low,”

and he would take a quantity of narcotics being held for

another buyer if that transaction did not go through. Brown

called Rudolph a few days before the last big delivery to tell

him that the narcotics would be around in a few days, and

Rudolph said that he would wait. An outgoing call to Ru-

dolph’s telephone was made from Hubbell Street on December

15 when the expected shipment was being distributed, but

there was no answer. A search of appellant’s home yielded

417 grams of heroin, common diluents, guns, ammunition, and

a record book including the names of other conspirators and

sums of money. This evidence established a prima facie

showing of his status as a conspirator, and made admissible

Burt's testimony that Blair told her Rudolph had once been‘a ©

Jackson lieutenant, but that he “broke away” and now spe-

cialized in selling “quarters” of heroin and cocaine. It is

immaterial that Rudolph no longer served the Jackson organ-

ization as a licutenant, since he still acted as a major distribu-

tor for the organization. The evidence adequately supports

his conviction.

Ronald Garrett

Judge Feikens found appellant Garrett guilty of conspiracy

on the basis of ‘the following evidence: Garrett's telephone

number was listed in Kilpatrick's address book and in Ru-

dolph’s telephone and address book, and he had a substan-

tial account listed in Rudolph’s account book. Additionally,

Garrett figured prominently in a number of intercepted tele-

phone conversations. Since Garrett was not one of the speak-

crs in these conversations, they are admissible to prove the

truth of the matters asserted only if a prima facie case is made

that Garrett was one of the conspirators. However, Judge

Feikens properly relied upon the fact that several of the con-

spirators mentioned Garrett repeatedly in the course of dis-

cussions regarding their narcotics transactions. Evidence that

68a Appendix B

his name was mentioned repeatedly in the context of the nar-

cotics transactions was not hearsay, and was competent evi-

dence tending to show that he was a conspirator. It should

be unnecessary to emphasize that proof of an illegal conspiracy

is seldom direct. More often, there is only indirect proof of

the unlawful agreement. We are required by Glasser to view

the evidence in the light most favorable to the government.

Accordingly, we hold that a prima facie case of conspiracy,

although a minimal one, is established by the evidence of the

telephone calls, considered together with the address books

and Rudolph’s account book, which indicated a substantial sum

of money for Garrett, as well as for other persons shown to

be conspirators. Accordingly, the substance of the telephone

conversations, in which other conspirators’ statements indicated

Garrett's deep involvement, was admissible. In addition,

Burt's hearsay testimony that she helped Blair make a de-

livery which he said was for “Five-O” was admissible to prove

Garrett's complicity. Burt identified Garrett as “Five-O” at

trial. This evidence was adequate to support Garrett's convic-

tion on count 1.

C. Counts 3 and 4

Appellants Brown, Bell, Riggs, Horne, Garrett, Jones, and

Rudolph challenge the sufficiency of the evidence to support

their convictions of count 3, the October 22 sale to Special

Agent Smith, and of count 4, the November 4 sale. Since we

have affirmed their convictions of conspiracy under count 1,

appellants were properly convicted of the substantive charges

in these counts as well under the Pinkerton rule.

D. Counts 8 and 9

Appellants challenge the validity of convicting them on

count 8 (distribution of 137.35 grams of heroin) and count 9

(distribution of 37.66 grams of cocaine) in view of the fact

that the district court acquitted Cara Woods, in whose posses-

Appendix B 69a

sion the heroin and cocaine were found, of the conspiracy

charge. Appellants contend that since Woods was not a mem-

ingly, they argue that there was no proof that Woods had

obtained the narcotics from 19315 Hubbell. We disagree.

There was compelling circumstantial evidence that the heroin

and cocaine referred to in counts 8 and 9 were procured from

the Jackson organization at 19315 Hubbell. Woods visited

the Hubbell Street address briefly on the night of the 15th of

December when a large shipment of narcotics was being

rapidly distributed, and when he was arrested just as he left

he was found in possession of the narcotics. Minutes before

two other persons had entered briefly, and when they left they

too had been arrested and were found to be in possession of

narcotics. We thing that this is ample evidence to support a

finding that the narcotics seized from Cara Woods were dis-

tributed by the Jackson organization, and that therefore all

of the conspirators could be convicted of counts 8 and 9 under

the Pinkerton rule.

V. WERE BLAIR AND HURT DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL?

Appellant Blair argues that although the two defense at-

torneys who represented all defendants at the trial were very

well qualified, he did not receive effective assistance of counsel

because of the inherent conflict of interest between their

representation of Jackson, the “kingpin” or “boss,” and that of

minor defendants such as Blair. He argues that he did not

even have a fee-paying relationship with the defense attorneys,

who were primarily concerned with Jackson. He also contends

that conflict arose between himself and the other defendants

when proof was introduced about his secret efforts to secure

immunity in return for the testimony of Ruth Ann Burt.

70a Appendix B

However, the record reveals that in open court, Blair de-

clined the tendered option of having hs case severed from that

of the other defendants, with separate counsel appointed to

represent him. Blair was not present in the courtroom for the

first five days of trial, and the district court granted the govern-

ment’s motion to sever him. On the sixth day, however, Blair

appeared in court, and counsel for all of the defendants stated

that Blair still wished to be tried with the other defendants.

Blair was questioned both by defense counsel and by the court

about his willingness to waive his right to be present for the

first days of the trial. He waived that right, his right to trial by

jury, and agreed to the simultaneous bench trial. He was also

questioned as follows:

Mr. Rothblatt: And you also understand on this indict-

ment Mr. Henry and I represent a number of other de-

fendants, as well as yourself, and it’s been suggested there

is a possibility there may be some confliction, because we

represent some of the other defendants; we may not be

representing you as effectively as we might be, since

we represent other defendants. Now, you understand

you have a right to any other attorney represent. you, and

if you can't afford a lawyer, the Court will assign a lawyer

to you free of charge; do you understand that?

Mr. Blair: Yes.

Mr. Rothblatt: And you agree that Mr. Henry and I and

Mr. Halpern will continue with your representation, along

with the other defendants in this case?

Mr. Blair: Yes.

Blair first made a claim of ineffective assistance of counsel

in a motion for a new trial. The district court held that mere

dissension or hostility between defendants does not render

their representation by the same counsel inadequate. The

court observed that Blair’s request to be tried with the other

defendants could be treated as a waiver of this objection.

Finally, the court determined that his

Appendix B Tla

allegation that his counsel had difficulty keeping his de-

fense at heart is totally without support in the record.

It shows that defendant expressly chose his counsel after

the court explained his right to be represented by an

attorney of his choice and that the attorney chosen ably

represented him at all stages of the trial.

The Sixth Amendment guarantees the right to counsel in

criminal proceedings, and a conflict of interest on the part of

counsel representing two defendants may deprive the accused

of the effective assistance of counsel. Glasser v. United States,

315 U.S. 60 (1942). However, the mere fact of joint repre-

sentation does not per se establish a denial of the effective

assistance of counsel. United States v. Wayman, 510 F.2d

1020, 1025 (5th Cir. 1975), cert. denied, —- US. —

(19——). Our court requires a party claiming that joint repre-

sentation resulted in a conflict of interest to demonstrate that

some actual prejudice resulted to him. United States v. Bur-

keen, 355 F.2d 241, 244 (6th Cir.), cert. denied sub. nom.

Matlock v. United States, 384 U.S. 957 (1966); United States

v. Cale, 418 F.2d 897 (6th Cir. 1969), cert. denied, 397 US.

1015 (1970). i

Here appellant identified two grounds of conflict. First, he

argues that he was only a minor party, and that counsel was

concerned primarily with the “kingpin” of the organization.

The record does not bear this argument out. Blair was shown

to be one of Jackson’s primary aides, or lieutenants, not just a

minor figure. Moreover, the district court found, and we agree,

that counsel ably represented Blair. Second, Blair contends

that the disclosure of his secret attempts to gain immunity

drove a wedge between him and the other defendants. Al-

though some of the other defendants may have had reason to

feel that Blair had acted disloyally to them in a personal sense,

he has not demonstrated that this hostility affected coun-

sels’ ability to continue joint representation. Blair's defense was

not shown to be inconsistent with that of Jackson or the other

co-defendants. All, for example, were equally eager to dis-

72a Appendix B

perth emi oe tebe ingore We find no

actual conflict of interest adequate representation

of appellant Blair. Moreover, it would be especially inappro-

priate for us to infer prejudice from the mere fact of joint

representation where, as was the case here, the defendant was

advised of the possibility of a conflict of interest, and of his

right to sever his case and be ted

peel represented by separate ap-

Appellant Hurt also attacks the adequacy of his representa-

tion by counsel. Compared to appellant Blair, Hurt was a

lesser figure in the conspiracy. Nevertheless, Hurt has not

eS ee

interests between himself more important conspirators

that resulted in actual prejudice to him. He had more than

minimal contacts with the conspiracy, and repeatedly obtained

Hurt concedes that counsel succeeded in securing acquittal

for some defendants. He argues that because the trial court

concluded that the evidence against him was “not as over-

whelming” as against the other convicted defendants, truly

adequate representation would have secured acquittal. But

the trial court's conclusion is equally consistent with adequacy

of representation insofar as it indicates that, unlike most other

defendar.is, Hurt’s defense was almost successful.

VI. WERE THE SENTENCES IMPOSED BY JUDGE

FEIKENS IMPROPER?

Appellants’ final contention is that the sentences imposed by

Judge Feikens on the defendants tried before him were im-

proper because they were imposed in deference to community

sentiments, and to deter future violators without regard to the

“militating” [sic mitigating?] factors in the individual cases.

They also contend that the sentences imposed by Judge Fei-

kens were harsher than those imposed by Judge Pratt for

identical conduct.

=~ -

Appendix B 73a

It is well settled that except in the most exceptional circum-

stances, an appellate court will not disturb a sentence that is

within the limits set by statute. The severity of a sentence is

normally committed to the discretion of the trial court. See

Dorszynski v. United States, 418 U.S. 424, 440-441 (1974);

United States v. Phillips, 510 F.2d 134 (6th Cir. 1975). Appel-

lants do not contend and cannot demonstrate that the sentences

imposed by Judge Feikens exceeded the maximum limits per-

mitted by statute. Instead, they contend that the sentences

were not set with proper regard for the individual circum-

stances of each defendant, and that they should have been

more compatible with those imposed by Judge Pratt. The

record, however, indicates that Judge Feikens did take the

individual circumstances of the defendants and the enormity of

their offenses into consideration in determining the proper

sentences, and we find no abuse of his discretion.

Vil. CONCLUSION.

We have determined that the contentions which we have

not treated above do not require discussion. We also observe

that it is indeed rare for a lengthy trial not to produce some

errors, and this unusual proceeding is no exception to the gen-

eral rule. In some cases, the cumulative weight of a large

number of errors otherwise inconsequential in isolation might

render a proceeding unfair. We have examined this record

with that possibility in mind and have concluded that in spite

of minor errors, this was a fair trial for all appellants.

For the foregoing reasons, the judgments of conviction are

AFFIRMED.

74a Appendix C

United States Court of Appeals

FOR THE SIXTH CIRCUIT

'nrrep STATES OF AMERICA,

Plaintiff-Appellee

vs.

Cara Woons,

Defendant-Anpellant

ORDER

No. 74-2337

BEFORE: Cevesrezze and McCree, Circvit Judges.

The petition for rehearing having come on to be heard,

and appellee's response having been considered, and the

court determining that the finding complained of has

substantial, if not precise support in the record, upon

consideration, it is ORDERED that the petition be, and it

hereby is, DENIED.

Entereby by order of the court

ere eee eae Peaeeeeeeneeeeeneeeeeeneneenee

Appendix D 75a

APPENDIX D

CERTIFICATE OF SERVICE

Petitioner, Cara Woods, by his attorney, James K.

O'Malley, Esquire, hereby certifies that the within Petition

for Writ of Certiorari has been forwarded by mail for filing

to the Clerk of the Supreme Court of the United States in

Washington, D.C., and that a true and correct copy of said

Petition has been forwarded by mail to the Office of the

Solicitor General of the United States, Department of

Justice, Washington, D.C.

James K. O'MALLEY

Attorney for Petitioner