Petition — GRAVERO v. UNITED STATES (No. 76-1267)

MICHAEL RODAK, JR., CLERK

in the

Supreme Court

of the

United States

OCTOBER TERM, 1976

No. A-601 76-1267

RICHARD DOUGLAS CRAVERO,

RONALD CLIFFORD CHANDLER,

SHARON WILLETS,

Petitioners,

v8.

UNITED STATES

OF AMERICA

PETITION FOR WRIT OF CERTIORARI TO

THE CIRCUIT COURT OF APPEALS

FIFTH CIRCUIT

MILTON E. GRUSMARK

Attorney for Petitioners

Grusmark, Jaffe, Karten, P. A.

3628 NE Second Avenue

Miami, FL 33137

MIAMI REVIEW — 371-4853 — 377-3721

TABLE OF CONTENTS

Page

REFERENCE TO REPORTS AND OPINIONS... 2

GROUNDS FOR JURISDICTION * 2

QUESTIONS SHOWN FOR REVIEW‚C 2

CONSTITUTIONAL AND STATUTORY

I ls 4

CONCISE STATEMENT OF MATERIAL FACTS 8

REASONS FOR GRANTING THE WRIT _...._. 12-20

rr 21

CERTIFICATE OF SERVICE 22

Appendices Attached:

Numbers 15 —— App. 1-App. 42

II

TABLE OF AUTHORITIES CITED

Case Page

Corba v. United States,

314 F.2d 718 (9 Cir. 1968) —____- i 15

Roberts v. United States,

416 F.2d 1216 (5 Cir. 19699 20

United States v. Collier,

498 F.2d 327 (6 Cir. 1974 13

United States v. Manfred,

488 F.2d 588 (2 Cir. 1978) ĩ4ẽ2tvt. hth 13

United States v. Oliva,

497 F.2d 130 (5 Cir. 197457 ; 4 15

OTHER AUTHORITIES CITED

Constitution of the United States of America

I Oe — 4

r 5

21 U.S.C. §841(a) 2 11 5 5

„ 5 — 5

21 U.S.C. 8848 5

Ee 7

87 U.S.C. 8963 1 — 8

in the

Supreme Court

of the

United States

OCTOBER TERM, 1976

No. A-601

RICHARD DOUGLAS CRAVERO,

RONALD CLIFFORD CHANDLER,

SHARON WILLETS,

Petitioners,

v8.

UNITED STATES

OF AMERICA

PETITION FOR WRIT OF CERTIORARI

COME NOW Petitioners, RICHARD DOUGLAS

CRAVERO, RONALD CLIFFORD CHANDLER and

SHARON WILLETS, by their undersigned attorneys and

file this their Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit.

2

I

(a) REFERENCE TO REPORTS AND OPIN-

IONS

This opinion is directed to the opinion of the United

States Court of Appeals, Fifth Circuit, Case No. 75-2718

dated August 6, 1976, — F.2d 4898; on rehearing en

bane United States Court of Appeals, Fifth Circuit, dated

January 7, 1977, F. 2d 569. The two opinions are ap-

pended as Appendix 1 and 2, respectively, as required by

Rule 23 1(i) of the Rules of this Court.

(b) GROUNDS FOR JURISDICTION

Jurisdiction of this Court is invoked as follows:

i. The opinion and judgment were entered August

6, 1976. The judgment is attached as Appendix 3.

ii. The opinion on rehearing is entered January 7,

1977. Order extending time to file Petition for Writ of

Certiorari to March 8, 1977, is attached as Appendix 4.

iii. Jurisdiction of this Court exists by virtue of

Title 28 U.S.C. 1254 (1) and the provisions of Rule 19

Section 1(b) of the Supreme Court Rules.

(e) QUESTIONS SHOWN FOR REVIEW

The Questions presented for review are:

3

QUESTION ONE

ONE CANNOT BE GUILTY OF A CONTINU-

ING CRIMINAL CONSPIRACY UNDER

TITLE 21, SECTION 848, U.S.C. WITHOUT

PRIOR CONVICTIONS UNDER THE CHAP-

TER. SEPARATE COUNTS UNDER THE

SAME INDICTMENT MAY GIVE RISE TO

CONVICTIONS ON THOSE COUNTS BUT

CANNOT ALSO BE THE BASIS FOR CON-

VICTION OF A CONTINUING CRIMINAL

CONSPIRACY COUNT.

QUESTION TWO

THE DISCRETIONARY ORDER OF PROOF

IN A CRIMINAL CONSPIRACY CASE PER-

MITS HEARSAY TESTIMONY OF AN AL-

LEGED CO-CONSPIRATOR TO BE INTRO-

DUCED SUBJECT TO THE ULTIMATE

PROOF OF THE WITNESS’ MEMBERSHIP

IN THE CONSPIRACY. WHEN THE WIT-

NESS THROUGH WHOM THE HEARSAY

TESTIMONY IS INTRODUCED IS LATER

FOUND NOT TO BE A MEMBER OF THE

CONSPIRACY, THE INESCAPABLE RESULT

IS A NEW TRIAL UNLESS THE TESTI-

MONY COULD NOT HAVE AFFECTED THE

JURY’S FINDING.

4

QUESTION THREE

MERE PRESENCE, EVEN WITH KNOWL-

EDGE, IS NOT SUFFICIENT FOR IMPOR-

TATION, CONSPIRACY, OR POSSESSION

OF DRUGS.

(d) CONSTITUTIONAL AND STATUTORY PRO-

VISIONS 4

Constitutional Provisions:

Amendment 4

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, supported by Oath or af-

firmation, and particularly describing the place to be

searched, and the persons or things to be seized.

Amendment 5

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation.

Statutes Involved:

18 U.S.C. Section 2: (a) Whoever commits an of-

fense against the United States or aids, abets, counsels,

commands, induces or procures its commission, is punish-

able 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 punish-

able as a principal.

21 U.S.C. Section 841 (a): Except as authorized by

this subchapter, it shall be unlawful for any person know-

ingly or intentionally — (1) to manufacture, distribute,

or dispense, or possess with intent to manufacture, dis-

tribute, or dispense, a controlled substance; or (2) to

create, distribute, or dispense, or possess with intent to

distribute or dispense, a counterfeit substance.

21 U.S.C. Section 846: 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 at-

tempt or conspiracy.

21 U.S.C. Section 848: (a) (1) Any person who en-

gages in a continuing crimina! enterprise shall be sen-

tenced to a term of imprisonment which may not be less

than 10 years and which may be up to life imprisonment,

to a fine of not more than $100,000, and to the forfeiture

prescribed in paragraph (2); except that if any person

engages in such activity after one or more prior convic-

tions of him under this section have become final, he shall

be sentenced to a term of imprisonment which may not be

6

less than 20 years and which may be up to life imprison-

ment, to a fine of not more than $200,000, and to the for-

feiture prescribed in paragraph (2).

(2) Any person who is convicted under paragraph

(1) of engaging in a ecntinuing criminal enterprise shall

forfeit to the United States—

(A) the profits obtained by him in such enterprise,

and

(B) any of his interest in, claim against, or prop-

erty or contractual rights of any kind affording a source

of influence over, such enterprise.

(b) For purposes of subsection (a) of this section, a

person is engaged in a continuing criminal] enterprise if—

(1) he violates any provision of this subchapter or

subchapter II of this chapter the punishment for which is

a felony, and

(2) such violation is a part of a continuing series

of violations cf this subchapter or subchapter II of this

chapter—

(A) which are undertaken by such person in con-

cert with five or more other persons with respect to whom

such person occupies a position of organizer, a supervisory

position or any other position of management, and

(B) from which such person obtains substantial in-

come or resources.

7

(c) In the case of any sentence imposed under this

section, imposition or execution of such sentence shall not

be suspended, probation shall not be granted, and section

4202 of Title 18 and the Act of July 15, 1932 (D.C. Code,

secs. 24-203 to 24-207), shall not apply.

(d) The district courts of the United States (in-

cluding courts in the territories or possessions of the

United States having jurisdiction under subsection (a) of

this section) shall have jurisdiction to enter such restrain-

ing orders or prohibitions, or to take such other actions, in-

cluding the acceptance of satisfactory performance bonds,

in connection with any property or other interest subject

to forfeiture under this section, as they shall deem proper.

21 U.S.C. Section 952 (a): (a) It shall be unlawful

to import into the customs territory of the United States

from any plaee outside thereof (but within the United

States), or to import into the United States from any

place outside thereof, any controlled substance in schedule

I or II of subchapter I of this chapter, or any narcotic

drug in schedule III, IV, or V of subchapter I of this chap-

ter, except that— |

(1) such amounts of crude opium and coca leaves

as the Attorney General finds to be necessary to provide

for medical, scientific, or other legitimate purposes, and

(2) such amounts of any controlled substance in

schedule I or II or any narcotic drug in schedule III, IV

or V that the Attorney General finds to be necessary to

provide for the medical, scientific, or other legitimate needs

of the United States —

8

(A) during an emergency in which domestic supplies

of such substance or drug are found by the Attorney Gen-

eral to be inadequate, or...

21 U.S.C. Section 963: 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 of-

fense, the commission of which was the object of the at-

tempt or conspiracy.

(e) CONCISE STATEMENT OF MATERIAL

FACTS

Federal jurisdiction in the Court of first instance

(United States District Court for the Southern District of

Florida) existed through the contention that various vio-

lations of the Federal Drug Abuse law had been committed

in the Southern District of Florida.

Cravero was convicted of conspiracy to import and

possess cocaine and marijuana with intent to distribute;

importation of cocaine and marijuana with intent to dis-

tribute; possession of cocaine with intent to distribute;

and engaging in a continuing criminal enterprise.

Chandler was convicted of the same charges.

Willets was convicted of the first three but not con-

tinuing criminal enterprise.

On June 19, 1974, a vessel, the “Tempest XI“, was

sold to one Eugene Cella. It left the yard that day. Cravero

was on the boat when it left.

9

On May 2, 7, 11 and 13 William Orr, an informant,

met with Cravero. On one occasion Miss Willets was in the

house but not party to any conversation. Orr agreed to

Cravero’s request to get him a boat. Chandler, by phone,

asked Orr to get him a marine radio, which was done. Orr

rented a boat called the “Yankee Clipper’.

Orr and Cravero left in the “Yankee Clipper”. Cra-

vero made several attempts to reach “Otto” and “Confi-

dence”. He stated that “Confidence” was Chandler. No

contact was made.

At North Bimini, Orr heard Cravero make a call to

Miss Willets. He asked her whether she had heard from

the people in Colombia, to which she replied in the nega-

tive. He told her to call them with certain instructions.

She responded that she understood. Cravero later told Orr

that Sharon Willets said that Chandler had returned with

a lot of cocaine and marijuana.

Agene Wurtele saw the “Yankee Clipper” which he

had rented leave and return to Fort Lauderdale.

Agent Bramble also observed the “Yankee Clipper”

with Orr and Cravero aboard.

In June, a Mr. Dickens had seen Cravero at a house

in Jupiter, Florida at which the “Tempest” was docked

until July 1, 1974.

The “Tempest XI” was at the North Palm Beach

Marina until July 2, 1974, approximately. Cravero had

been seen aboard at one time.

10

On July 2, 1974, Cravero and two others were driven

by taxi from Palm Beach to South Hollywood, Florida,

then to North Miami.

On July 2, 1974, suspected marijuana was recovered

from a burning vessel and a nearby island in Palm Beach

county.

On July 10, 1974, the Fire Marshal determined that

the fire on the “Tempest XI” had been caused by a flam-

mable liquid.

On July 14, 1974, Miss Willets called Orr to meet at the

Ranch House in Fort Lauderdale. Orr met with Cravero,

Chandler and Miss Willets. Willets did not engage in the

conversation. Cravero stated his “pot” was lost in a burned

boat in Palm Beach, He said he did not want to deal in

marijuana anymore, only in cocaine. He said he burned

the boat in Palm Beach on purpose. Chandler said he had

some cocaine, but did not say where.

Agent Bramble saw Willets, Cravero and Chandler

enter the restaurant. At that time, Agent Short was told

they were going to the Ranch House restaurant and knew

there were warrants for the arrest of Cravero and

Chandler.

Officer Pacetti followed the three from the Ranch

House to a Howard Johnsons and then to the house of

Marianne Cook. At 1:30 A.M. he and two other officers,

after announcing their authority, knocked and entered to

execute the arrest warrant. Cravero was in the living room

and arrested. Chandler was coming from the bedroom and

arrested.

11

A gun was found in the room from which Chandler

had come. A search of the house was then made.

At the door of the bathroom they observed Miss Wil-

lets leaning over the shower stall. Cocaine was removed

from the shower stall.

Fingerprints of Chandler and Marianne Cook were

found on and around the narcotics implements.

Seizure of cocaine, found in a hotel room occupied by

Ronald Chandler in Ship Bottom, New Jersey, was testi-

fied to although it happened some time before, and over

objection.

Frank Bova said he had purchased about a pound of

cocaine from James Malta in June. (Malta was an acquit-

ted co-defendant).

Bova said Malta heard from Marianne Cook that

Cravero was angry because cocaine had been stolen from

him.

Bova said Malta told him that Cravero was trying to

flush cocaine down the drain when Cook’s house was

“husted”’.

Bova said Malta told him that someone told him that

Chandler had been arrested in New Jersey.

Bova said Malta told him that Cravero told him that

no one would sell Cravero cocaine after the arrest in the

Cook house.

12

In its charges the Court said, inter alia,

“ ‘Substantial income or resources’ as that phrase is

used in the statute, means something that is real or actual.

It further connotes having considerable or ample size or

value.”

“Secondly, the offenses charged in Counts One, Two,

and Four of the indictment were part of a continuing

series of violations of Subchapter 1 and 2 of Title 21 U.S.

Code“.

(f) REASONS FOR GRANTING THE WRIT

QUESTION ONE

ONE CANNOT BE GUILTY OF A CONTINU-

ING CRIMINAL CONSPIRACY UNDER

TITLE 21, SECTION 848, U.S.C. WITHOUT

PRIOR CONVICTIONS UNDER THE CHAP-

TER. SEPARATE COUNTS UNDER THE

SAME INDICTMENT MAY GIVE RISE TO

CONVICTIONS ON THOSE COUNTS BUT

CANNOT ALSO BE THE BASIS FOR CON-

VICTION OF A CONTINUING CRIMINAL

CONSPIRACY COUNT.

In this case only those facts alleged in the indict-

ment should be considered. Interwoven gossip never reaches

the point of conviction of other crimes since the trial

Court never instructed them to consider any other acts,

i.e.; Ship Bottom, prior sales or use of cocaine; such mat-

13

ters would have to be proven beyond a reasonable doubt

and with the same instruction’ of presumption of in-

nocence.

That was not done.

The only matters that the jury could have found Cra-

vero and Chandler guilty of to find guilt of continuing

criminal activity were the same charges in the indictment

broken into separate counts.

It is urged that within the meaning of the continuing

criminal activity act, a conspiracy to import with intent to

distribute — importation with intent to distribute and

possession of the same substance are all facets, legally

separated by attorneys, not by facts, of the same activity.

They do not represent a single activity.

The act in question is unnecessarily vague as shown

by the Court’s instructions. It is urged that in passing

Title 18 U.S.C. Section 1855, Congress showed its com-

plete ability to define and set the standards necessary

here. The existence of Section 1855 shows the vagueness

of the instant statute.

The dangers which some members of Congress forsaw

are shown in Appendix 5.

The cases of United States v. Collier, 493 F.2d 327

(6 Cir. 1974) and United States v. Manfred, 488 F.2d 588

(2 Cir. 1973) do not reach the present attack.

14

QUESTION TWO

THE DISCRETIONARY ORDER OF PROOF

IN A CRIMINAL CONSPIRACY CASE PER-

MITS HEARSAY TESTIMONY OF AN AL-

LEGED CO-CONSPIRATOR TO BE INTRO-

DUCED SUBJECT TO THE ULTIMATE

PROOF OF THE WITNESS’ MEMBERSHIP

IN THE CONSPIRACY. WHEN THE WIT-

NESS THROUGH WHOM THE HEARSAY

TESTIMONY IS INTRODUCED IS LATER

FOUND NOT TO BE A MEMBER OF THE

CONSPIRACY, THE INESCAPABLE RESULT

IS A NEW TRIAL UNLESS THE TESTI-

MONY COULD NOT HAVE AFFECTED THE

JURY’S FINDING.

Frank Bova was perhaps the most important, cer-

tainly one of the two or three primary, witnesses for the

government.

He attempted to tie up and tie down loose ends.

Most of Bova’s testimony did not relate facts as such,

but was hearsay on hearsay.

As such, the testimony should not have been per-

mitted.

Bova did not contend he was part of the alleged con-

spiracy, importation or possession.

But, he contended to know about Cravero’s implica-

tion, or Chandler’s implication, not from them, not even

from Cravero implicating Chandler or vice versa.

15

He contended to know from what someone told James

Malta about Cravero, who told Bova. Classic hearsay on

hearsay was thus admitted.

In Corba v. United States, 314 F.2d 718 (9 Cir. 1963)

it was said:

“In making this determination, the test is not

whether the defendant’s connection has by in-

dependent evidence been proved beyond a reason-

able doubt, but whether, accepting the independ-

ent evidence as credible the judge is satisfied

that a prima facie case (one which would support

a finding) has been made. Thereafter it is the

jury’s function to determine whether the evi-

dence including the declarations is credible and

convincing beyond a reasonable doubt.“

In United States v. Oliva, 497 F.2d 130 (5 Cir. 1974)

it was said:

“Whether the government by evidence indepen-

dent of the hearsay declarations of a co-conspira-

tor, has established a prima facie case of the ex-

istence of a conspiracy and of the defendant’s

participation therein, that is whether the other

evidence aliunde the hearsay would be sufficient

to support a finding by the jury that the defend-

ant himself was a co-conspirator.”

Here, the Court of Appeals travelled far beyond in

admitting the double hearsay.

16

Most important, however, is the fact that the middle-

man in the double hearsay picture was found by the jury

not to be a member of the conspiracy. So his existence as

the foundation for the hearsay execption was non-

existent.

Moreover, there never was a basis for using him as

a foundation for the hearsay exception to incriminate.

His testimony first had to show his participation, by his

own words or conduct as a co-conspirator. That it never

did. The only words from Malta came through Bova.

The only words of Malta through Bova sought to in-

criminate Cravero or Chandler, never Malta himself.

His testimony never reached any level of admissibility.

The cases cited by the Court below in its opinion do

not reach this point. They travel on the theory of surface

admissibility, discretionary with the Court. No such sur-

face admissibility exists in this case.

QUESTION THREE

MERE PRESENCE, EVEN WITH KNOWL-

EDGE, IS NOT SUFFICIENT FOR IMPOR-

TATION, CONSPIRACY, OR POSSESSION OF

DRUGS.

Bova eliminated Miss Willets from any conspiracy.

At the Ranch House meeting, Orr eliminated her since she

did not participate in the discussion.

17

The extent of the testimony concerning Miss Willets

—She received a phone call from Cravero asking her

whether she heard from the Colombians.

She answered no“.

She was told to contact them with instructions. She

said she understood.

That is the most that can honestly be said of all the

phone calls concerning her.

There was no arrest warrant for her.

She was found in the Cook house leaning over the

shower stall; not touching, not holding, not doing any-

thing with cocaine or cocaine implements.

There was no testimony as to whether Miss Willets

was leaving or just going in. Although fingerprints were

lifted and identified, there were no fingerprints of Sharon

Willets.

All other testimony in the case shows her exclusion

from participation for example, the meeting in North Bay

Village. She was present. The discussions were out of her

presence.

The testimony of William Orr demonstrates the true

participation of Sharon Willets. With regard to this case,

Orr first went to Cravero’s home on May 2nd. Sharon

Willets was not present. The next time he went to Cra-

vero’s home was on May 7th, and he did not talk to Ms.

Willets on that occasion. The next time he was with Cra-

18

vero was on the 11th and Ms. Willets opened the door. Orr

asked her, Where is Ricky?” and she said “upstairs”. Orr

went upstairs. Sharon Willets did not go upstairs with

him. She was busy downstairs doing something. On May

13th, Orr went back at 3 or 4 P.M. Shortly after that, at-

torney William Moran arrived. There was a conversation

about a boat. Sharon Willets was in the house, but Orr

didn’t know whether she even heard the conversation.

The next meeting was June 22nd, and on that occasion

Orr went to Siegal’s apartment at 3 AM, went upstairs and

Willets let him in. At that meeting, Willets asked Cravero

and Orr if they would like to have a Pepsi Cola. Nothing

else was said. The next contact was a ship-to-shore tele-

phone call from Bimini to Willets at Siegal’s apartment.

Orr was able to overhear both ends of the conversation,

but only heard Willets say “Hello... yes...” On the 25th

of June, Willets called Orr on the telephone and asked him

to hold on, Cravero wanted to speak to him, and had no

other conversation with Orr on that day.

The next and last contact between Orr and Willets

was on July 14th, when she called him at 6:30 PM and

said, Will you meet us or meet Ricky at the Ranch House

at 7 PM.” At that meeting, Ms. Willets said the following,

“I think she remarked about how her ice cream was or

something.” This is the last time she was seen by the wit-

ness Orr.

The next witness who testified to any contact with

Sharon Willets was James “Red” Coffey. Mr. Coffey re-

lated the story of how Sharon Willets and Rick Cravero

came to Nashville, Tennessee, for the funeral of Billy An-

19

dries’ wife, that they had a long conversation in a hotel

room. However, on direct examination by the government,

Mr. Coffey was asked the following question:

“Q. Was Ms. Willets present during this conversa-

tion?”

“A. Yes. Most of the time she was in the room next

door.” Coffey also testified that Cravero told Ms. Willets

to go downstairs and call the Colombian in the Fontain-

bleau.

Ms. Willets went down to the lobby to a pay phone and

started making a phone call. Shortly thereafter, Coffey

went down at Cravero’s instructions to say that Cravero

had changed his mind and to forget the phone call. On

cross-examination, Coffey was asked to go into more de-

tail about the conversation between Andries and Cravero

and in answer to the question, who was in the room while

you were overhearing the conversation between Andries

and Cravero, said:

“A. The entire couple of hours there was Ricky, my-

self and Billy. Then Sharon was in the other room most of

the time.”

The next witness who had any contact with Willets

was Frank Bova. On cross-examination, Bova was asked

about each and every time he met Sharon Willets, given

the opportunity to repeat all his conversations with her.

On the first occasion, on approximately August 10th

or 11th at Malta’s apartment, with Cravero, Willets, Sie-

gal, Malta and Perry present, Mr. Bova gave the follow-

ing answers to the following questions:

20

HOGAN “Q. What did Sharon have to say on this

occasion, if anything, if you recall. I don’t recall you

testifying about that.

A. I don't remember her saying anything.“

The next time Bova saw Sharon Willets was at Paul

Jacobson’s house, also sometime in August. On that occa-

sion, Jacobson and Cravero went upstairs, Sharon stayed

downstairs with Bova. The following question and answer:

“Q. What did she say, if anything?

A. She was asking Jacobson about some blackbird

pills, if he had anything.

Q. Anything else?

A. No, just talk.”

In Roberts v. United States, 416 F.2d 1216, (5 Cir.

1969), it was said:

“It is elementary that neither association with

conspirators nor knowledge that illegal activity

constitute proof of participation in a conspiracy.”

Surely the days of guilt by association are passed. The

question is not whether Sharon Willets was convicted be-

cause of the buildup of pressure in the case against her

co-defendants.

The question is whether a conviction against Sharon

Willets of any kind should stand when the testimony

against her is isolated.

21

CONCLUSION

Under the test of Rule 19(b) of the rules of this

Honorable Court, the Fifth Circuits has rendered a de-

cision on an important question of federal law which has

not been but should be decided by this Court, i.e., the use

of hearsay upon hearsay after acquittal of the transferer

of the hearsay statements.

It also raises the serious question of the necessary

specificity of the continuing criminal activity act.

The opinion below in the approval of the conviction

of Ms. Willets denied all Constitutional rights of due

process and equal protection of the law to Sharon Willets.

It is respectfully urged, therefore, that the issuance

of the writ in this case is warranted to the end that the

entire record may be reviewed.

Respectfully submitted,

GRUSMARK, JAFFE,

KARTEN, P.A.

3628 N.E. Second Avenue

Miami, FL 33137

(576-6590)

By

MILTON E. GRUSMARK

Attorney for Petitioners

22

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three copies of the fore-

going Petition for Writ of Certiorari were this 7th day of

March, 1977, mailed to the Office of the Solicitor General,

Department of Justice, Washington, D.C. 20530.

BY

MILTON E. GRUSMARK

APPENDIX

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

NO. 75-2718.

UNITED STATES OF AMERICA,

Plzintiff-Appellee,

v.

RICHARD DOUGLAS ‘CRAVERO, a/k/a “Ricky,”

SHARON WILLETS, MARIANNE COOK,

PHILLIP SIEGAL, RONALD CLIFFORD CHANDLER,

and BOBBY EUGENE MILLER,

Defendants-Appellants.

AUG. 6, 1976.

Defendants were convicted in the United States Dis-

trict Court for the Southern District of Florida, at Ft.

Lauderdale, Peter T. Fay, J., for narcotics-related of-

fenses and they appealed. The Court of Appeals, Gee, Cir-

cuit Judge, held that fact that Department of Justice

strike force attorney who presented case to grand jury

was appointed by an assistant attorney general and that

his letter of authorization failed to designate the type of

case to be prosecuted was not ground for invalidating in-

dictment; that there inust be exigent circumstances to

support an entry to make a warranted arrest in a third

party’s home; that officers’ entry into home of codefend-

ant without search warrant was illegal but that illegal en-

try did not vitiate arrests pursuant to valid arrest war-

rants; and that circumstances justified officers’ search of

bathroom where they observed cocaine and paraphernalia

in plain view.

App. 2

Affirmed.

1. Indictment and Information — 144.-1(1)

Facts that Department of Justice strike force attor-

ney who presented the case to the grand jury was neither

specially appointed nor specially directed by the Attorney

General, but was appointed by an assistant attorney gen-

eral, and fact that his letter of authorization failed to

designate the type of case to be prosecuted, were not

grounds for quashing indictments. Comprehensive Drug

Abuse Prevention and Control Act of 1970, § 408, 21

U.S.C.A. § 848; 28 U.S. C. A. § 515(a).

2. Grand Jury — 34

Department of Justice’s organized crime strike force

attorney’s letter of authorization to conduct grand jury

inquiry need not mention the parties or the particular

federal statutes under which the indictment is sought.

Comprehensive Drug Abuse Prevention and Control Act

of 1970, § 408 (b) (2), 21 U.S.C.A. § 848 (b) (2); 28 U.S,

C.A. §§ 510, 515(a).

3. Criminal Law — 13.1(2)

The “continuing criminal enterprise” statute is not

unconstitutionally vague in using the terms “a continuing

series of violations,” “a position or organizer, a supervisory

position, or any other position of management,” and “sub-

stantial income or resources.” Comprehensive Drug Abuse

Prevention and Control Act of 1970, § 408(b) (2), 21

U.S. C. A. § 848 (b) (2); 28 U.S. C. A. §§ 510, 515 (a).

App. 3

4. Drugs and Narcotics — 123

Evidence as to narcotics-processing operation in de-

fendant’s home, presence of her fingerprints on most of

the processing paraphernalia and a discovery of number

of packets containing cocaine and marijuana cigarets in

bathroom, bedroom and living room was sufficient to prove

constructive possession. Comprehensive Drug Abuse Pre-

vention and Control Act of 1970, § 401 (a), (a) (1), 21

U. S. C. A. § 841 (a), (a) (1).

5. Criminal Law — 622 (1), 1148

Motion for severance is committed to the trial court's

sound discretion, and denial of severance will not be re-

versed unless defendants demonstrate clear prejudice.

Fed. Rules. Crim. Proc. rule 8 (b), 18 U.S. C. A.

6. Criminal Law — 1166 (01)

Refusal % td, sever defendants, charged with importa-

tion and conspiracy to import and process with intent to

distribute cocaine and marijuana, from trial of defendant

who was charged additionally with possession and a con-

tinuing criminal enterprise resulted in no prejudice from

evidence introduced to prove codefendant’s guilt on the

additional counts or from prejudicial publicity or from

inability to call other codefendants as witnesses 18 U.S.C.A.

§ 2; Comprehensive Drug Abuse Prevention and Control

Act of 1970, §§ 401 (a) (1), 406, 408, 1002 (a), 1013, 21

U.S.C.A. §§841(a) (1), 846, 848, 952 (a), 963; Fed. Rules

Crim. Proc. rule 8(b), 18 U.S.C.A.

App. 4

7. Arrest — 67

Where agents who had warrants for arrest of defend-

ants refrained from arresting defendants at a restaurant

in order to protect their informant’s identity and agents

entered house of codefendant to execute warrants only

after realizing that a defendant had suspected the inform-

ant’s true role, delay in executing warrants was reason-

able, as against defendants’ contention that arrest could

have been effected before defendants’ arrival at codefend-

ant’s house or that officers could have waited until de-

fendants left the house. U.S. C. A. Const. Amend. 4

8. Arrest — 68

That possibly dangerous felons who are guests in a

private home suspect earlier police surveillance is not

enough to present exigent circumstances for officers’ en-

tering residence when the suspects are unaware of current

police presence. 42 U.S.C.A. § 1983; U.S.C.A. Const.

Amend. 4.

9. Criminal Law — 217

Arrest warrant requires only a judicial determina-

tion that there is probable cause to arrest a named person

for a certain offense, without consideration of the place

in which the arrest is to be made. 42 U.S.C.A. § 1983;

U.S. C. A. Const. Amend. 4

10. Searches and Seizures — 7 (1)

Arbitrary invasion of the privacy of the home or

dwelling is the “chief evil” to which the Fourth Amend-

App. 5

ment is directed. 42 U.S. C. A. § 1983; U.S. C. A. Const.

Amend. 4

11. Arrest — 68

Rules governing searches apply when officer enters

premises of third party to execute an arrest warrant, and

if officer fails to obtain a search warrant, an arrest entry

will be permissible only if exigent circumstances or some

other established exception to the warrant requirement ob-

tains, 42 U.S.C.A. § 1983; U.S.C.A.Const. Amend. 4.

12. Arrest — 65

Although officers’ entry without search warrant onto

premises of codefendant for purpose of executing warrants

for arrest of defendants was illegal, the illegal entry did

not vitiate arrests pursuant to the warrants. 42 U.S.C.A.

§ 1983; U.S.C.A.Const. Amend. 4.

13. Searches and Seizures — 7 (12)

Searches incident to lawful arrests are considered

“reasonable” in Fourth . mendment terms because they

are necessary to protect the arresting officers’ safety and

prevent the concealment or destruction of evidence. 42

U.S.C.A. § 1983; N.S.C.A.Const. Amend. 4.

14. Arrest — 71.1(5)

Officers’ seizure of pistol which was within reach of

defendant at time of arrest was reasonable. 42 U.S. C. A.

§ 1983; U.S.C.A. Const. Amend. 4.

App. 6

15. Searches and Seizures — 38.3 (4, 5)

Officers who entered premises of third party to exe-

cute arrest warrants and who after arresting defendants

heard scuffling sounds coming from the bathroom were

justified in making a cursory search to secure the imme-

diate area and to insure their own physical safety, and

seizure of cocaine and paraphernalia in plain view in the

bathroom was reasonable. 18 U.S.C.A. § 2; Comprehensive

Drug Abuse Prevention and Control Act of 1970,

§§ 401 (a) (1), 406, 408, 1002 (a), 1013, 21 U.S. C. A.

§§ 841 (a) (1), 846, 848, 952 (a), 963; 42 U.S. C. A. 8 1983;

U. S. C. A. Const. Amend. 4.

16. Criminal Law — 394.4 (10)

Court would not suffer admission of fruits of an un-

limited, warrantless search of residence of a third party

entered without search warrant by officers intent on exe-

cuting arrest warrants. 42 U.S.C.A. § 1983; U.S. C. A.

Const. Amend. 4.

17. Criminal Law — 427 (2)

Witness can testify to declarations made to him by a

coconspirator only if the Government by independent evi-

dence establishes a prima facie case of the existence of a

conspiracy and introduces at least “slight” evidence to

connect with the conspiracy both the declarant and the

defendant against whom the statement is introduced, which

requires a showing of a likelihood of an illicit association

between the declarant and the defendant.

App. 7

18. Criminal Law — 422 (2)

The admission of testimony under the coconspirator

exception to the hearsay rule is not rendered retroactively

improper by subsequent acquittal of the alleged cocon-

spirator.

19. Criminal Law — 422 (2)

Fact that alleged coconspirator has been acquitted of

conspiracy in an earlier trial does not render hearsay

declarations of the coconspirator inadmissible.

20. Criminal Law — 376

Prosecutor did not improperly attack defendant’s

character by eliciting from a defense witness that he had

once represented defendant where neither the question nor

the witness’ response suggested representation in a criminal]

manner or prior criminal activity.

21. Witnesses — 363 (1)

Partiality or any acts, relationships, or motives rea-

sonably likely to produce it may be proved to impeach

credibility.

22. Criminal Law — 938(2)

Defense counsel’s lack of assurance that a witness, if

called as a defense witness, would testify to the same story

that he had previously related by telephone did not make

the expected testimony newly discovered once that assur-

ance was received and would not warrant new trial.

~ —

App. 8

23. Criminal Law — 700

Prosecutor could not be charged with suppressing in-

formation where defendant’s attorney obtained the same

information prior to trial.

Appeals from the United States District Court for

the Southern District of Florida.

Before BROWN, Chief Judge, TUTTLE and GEE,

Circuit Judges.

GEE, Circuit Judge:

One or more of appellants challenge their convictions

for various narcotics-related offenses' on each of the fol-

lowing grounds: (1) the indictments should have been

quashed because the Department of Justice Strike Force

attorney who obtained them was not appointed directly

by the Attorney General, and his blanket authorization to

prosecute violations of federal criminal statutes failed to

provide the statutorily-required specific designation of au-

thority to conduct the grand jury inquiry; (2) the “con-

tinuing criminal enterprise” statute, 21 U.S.C. § 848

The indictment charged, inter alia, conspiracy to import and

possess cocaine and marijuana with intent to distribute, in violation of

21 U.S.C. §§846, 963 (1970) (Count I); importation of cocaine and

marijuana in violation of 18 U.S.C. §2 (1970) and 21- U.S.C. ve

(1970) (Count II); possession of cocaine with intent to distribute, in

. — 1 18 . §2 (1970) —— U.S.C. 5841 (a) (1) (1970)

Count IV); and engaging in a contin criminal enterprise, in viola-

tion of 21 U.S.C. §848 (1970) (Count V). Appellants were convicted as

follows: Cravero, ts I, II. IV, and V (consecutive sentences on the

first three counts; concurrent sentence on Count V); Chandler, Counts

I, II. IV. and V (same as Cravero) ; Willets, Counts I, II, and IV (con-

current sentences) ; The Counts I and II (concurrent sentences);

Miller, Counts I and II (concurrent sentences); and Cook, Count IV.

App. 9

(1970), which formed the basis of one count in the indict-

ment, is unconstitutionally vague; (3) each appellant’s

motion for a judgment of acquittal on all counts should

have been granted because the evidence fails to support

the convictions on any count; (4) appellants Siegal and

Miller should have been granted a severance; (5) the nar-

cotics and related paraphernalia introduced at trial were

illegally seized and should have been suppressed; (6) the

hearsay declarations of an indicted co-conspirator who had

previously been acquitted should not have been admitted;

(7) the prosecutor improperly cross-examined a defense

witness; and (8) newly discovered evidence justifies a new

trial for appellant Cook. We state the facts pertinent to

each point as we discuss it. The convictions are affirmed.

I. Prosecuting Attorney’s Authorization to Conduct

Grand Jury Inquiry

[1,2] All appellants contend that the Department

of Justice Organized Crime Strike Force attorney who

presented the case to the grand jury was neither “specially

appointed” nor “specifically directed” by the Attorney

General to conduct the grand jury inquiry as required by

28 U.S.C. § 515 (a) (1970),? because he was appointed by

an Assistant Attorney General and because his letter of

authorization failed to designate the type of case to be

Which reads as follows:

(a) The Attorney General or any other officer of the Department of

Justice, or any attorney specially appointed by the Attorney General

under law, may, when specifically directed by the Attorney General,

conduct any kind of legal proceeding, civil or criminal, including

grand jury proceedings and proceedings before committing mag-

istrates, which United States attorneys are authorized by law to

conduct, whether or not he is a resident of the district in which.

proceeding is brought. (emphasis added) |

App. 10

prosecuted. Both grounds of attack fail. First, 28 U.S.C.

§ 510 (1970) permits the Attorney General to delegate to

any other Department of Justice official “any function

of the Attorney General,” which includes the power to

appoint special attorneys under section 515 (a).“ And by

regulation C. F. R. §§ 0.55, 0.60 (1974), the Attorney Gen-

eral delegated to the Assistant Attorney General in charge

of the Criminal Division, who signed the authorization

here, the power to designate attorneys to present evidence

to grand juries in all cases under his control. See In re

Persico, 522 F.2d 41, 67 (2d Cir. 1975). Second, the letter

of authorization, which “specially authorized and directed”

the special attorney to investigate “violations of Federal

Criminal Statutes by persons whose identities are un-

known” in the Southern District of Florida and other ju-

dicial districts and “to conduct . . . any kind of legal pro-

ceedings, . . . including Grand Jury Proceedings .,

which United States attorneys are authorized to conduct,”

is identical in language to the authorization that we re-

cently upheld in United States v. Morris, 532 F.2d 436,

439—40 (5th Cir. 1976). We adhere to Morris and hold

that the authorization need not mention the parties or the

particular federal statutes* under which the indictment was

sought.

Accord, United States v. Agrusa, 520 F.2d 370, 371-72 (8th Cir.

1975).

*Morris dealt only with failure to specify the statutes, but its

language, rationale, and supporting authority extend to parties as well,

and we so hold.

App. 11

II. Unconstitutional Vagueness of the Continuing Con-

spiracy Statute

[3] Appellants Chandler and Cravero argue that the

“continuing criminal enterprise” statute, 21 U.S.C. § 848

(b) (2) (1970), which makes a crime any violation of the

statute if

(2) such violation is a part of a continuing series

of violations of this subchapter or subchapter II of this

chapter—

(A) which are undertaken by such person in con-

cert with five or more other persons with respect to

whom such person occupies a position of organizer, a

supervisory position or any other position of manage-

ment, and

(B) from which such person obtains substantial

income or resources],

is unconstitutionally vague in using the terms (1) “a con-

tinuing series of violations,” (2) “a position of organizer,

a supervisory position, or any other position of manage-

ment,” and (3) “substantial income or resources.” The Sec-

ond and Sixth Circuits have upheld the statute against

precisely this attack in United States v. Manfredi, 488 F. 2d

588, 602-03 (2d Cir. 1973), cert. denied, 417 U.S. 936, 94

S.Ct. 2651, 41 L.Ed.2d 240 (1974), and United States v.

Collier 493 F.2d 327 (6th Cir.), cert. denied, 419 U.S. 831,

95 S.Ct. 56, 42 L.Ed.2d 57 (1974) (quoting Manfredi as the

App. 12

sole basis for its decision).’ We agree with these decisions

on the grounds stated in Manfredi: .

The conduct reached is only that which the violator

knows is wrongful and contrary to law. See Screws v.

United States, 325 U.S. 91, 102, 65 S.Ct. 1031, 1035,

89 L.Ed. 1495 (1945)....

.. . Here... the statute might have been more art-

fully drawn, but no language has occurred or has been

suggested to us that better expresses the congressional

purpose. To sustain [appellant’s] position would force

us to hold that words cannot be devised to make it an

offense to engage in the continuous sale and traffick-

ing in heroin with a number of other people and with

substantial sums of money changing hands; we feel

that not to be the case and that, as applied to the con-

duct with which [appellant] was charged .. . the stat-

ute is not unconstitutionally vague.

488 F. ad at 602-03.

III. Sufficiency of the Evidence

[4] All appellants challenge the sufficiency of the

evidence to support their convictions on each count and

claim that the lower court erred in refusing to grant any

of their frequent motions for judgment of acquittal. But

the evidence on each count so easily satisfies this circuit’s

‘Defendants would distinguish these decisions on the grounds that

in those cases there was sufficient proof of other violations and sub-

stantial income derived from those violations. But there is adequate

proof that defendants in this case were “in a supervisory position,” that

they derived substantial income from these operations, and that there

were continuing violations. Furthermore, 4 there is proof of these

elements concerns sufficiency of the evidence, not vagueness of the

statute.

App. 13

test of sufficiency in reviewing a lower court’s denying a

motion for judgment of acquittal—that reasonable minds

could conclude that the evidence is inconsistent with the

hypothesis of innocence, see, e.g., United States v. Prout,

526 F.2d 380, 384 (5th Cir. 1976) —that we feel obliged to

discuss only Cook’s argument that the prosecution proved

no more than her presence on the scene. Although “[m]ere

presence at the scene of a crime. . . is not enough to prove

participation in it,” United States v. James, 528 F.2d 999,

1013 (5th Cir. 1976) Cook ignores not only evidence of the

substantial nature of the narcotics-processing operation in

her home, but also the presence of her fingerprints on most

of the processing paraphernalia found in her bathroom and

the discovery’ of a number of packets containing cocaine

and marijuana cigarettes in her bathroom, master bedroom,

and living room. Viewing all this evidence and reasonable

inferences therefrom in a light most favorable to the gov-

ernment, see Glasser v. United States, 315 U.S. 60, 80, 62

S.Ct. 457, 469, 86 L.Ed.2d 680, 704 (1942), we think that

the government sufficiently proved constructive possession

under section 841 (a) (1).

IV. Denial of Severance

[5,6] Appellants Siegal and Miller, charged only

with importation and conspiracy to import and possess with

intent to distribute, object to the lower court’s refusal to

sever them from Cravero, who was charged additionally

‘By police officers acting pursuant to a search warrant obtained

several hours after the arrest.

7C£. United States v. Garza, 531 F.2d 309, 310-11 (Sth Cir. 1976)

(section 841 (a) is violated by constructive possession, which may be

shared with others and proved by circumstantial evidence). See also

United States v. Harold, 531 F.2d 704 (Sth Cir. 1976) (per curiam).

App. 14

with possession and a continuing criminal enterprise.“ But

they were properly joined with Cravero under Fed.R.Crim.

P. 8(b),° since all were charged with participating in “the

same series of acts or transactions constituting an offense

or offenses.” Having been properly joined, their motion for

severance was committed to the trial court’s sound discre-

tion, and denial of a severance will not be reversed unless

appellants meet the heavy burden of demonstrating clear

prejudice. See, e.g., United States v. Crockett, 514 F.2d 64,

70 (5th Cir. 1975). Their claim is that they were preju-

diced by the introduction of evidence aimed solely at prov-

ing Cravero’s guilt on the two additional counts, by Cra-

vero’s notoriety, by an inability to call other co-defendants

as witnesses, and by the general strategic inferiority of a

joint trial. But they proved no such prejudice. First, while

some evidence was introduced solely to prove Cravero’s

guilt on the additional counts, neither appellant demon-

strated either a “clear likelihood of confusion on the part

of the jury to his prejudice,” see Gordon v. United States,

438 F. 2d 858, 879 (5th Cir.), cert. denied, 404 U.S. 828,

92 S.Ct. 63, 30 L.Ed.2d 56 (1971) (citing cases), or an

antagonistic defense, see United States v. Johnson, 478

F.2d 1129, 1131-34 (5th Cir. 1972); United States v. Wil-

son, 451 F. 2d 209, 215 (5th Cir. 1971).'° Second, although

See note | supra.

Which reads as follows:

Two or more defendants may be charged in the same indictment

or information if they are alleged to have participated in the same

act or transaction or in the same series of acts or transactions con-

stituting an offense or offenses. Such defendants may be charged

in one or more counts together or separately and all of the de-

fendants need not be charged in each count. (emphasis added)

‘The trial judge carefully instructed the jury to consider separately

the evidence concerning each defendant on each count. F urthermore, he

advised the jury during trial and in final instructions about the limita-

tions on the use of co-conspirators’ hearsay declarations.

App. 15

local newspapers published several potentially prejudicial

news stories before and during trial, appellants have dem-

onstrated no inherent prejudice in the trial setting or ac-

tual prejudice from the jury selection process, see Murphy

v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589

(1975), and the lower court took every possible measure

to safeguard appellants, repeatedly warning the jurors to

avoid all news sources and carefully examining the jury

members to insure that his instructions had been followed.

See United States v. Scallion, 533 F.2d 903, 913 (5th Cir.

1976); United States v. Edwards, 488 F.2d 1154, 1160 (5th

Cir. 1974). Third, appellants’ objection to their inability to

call other co-defendants as witnesses fails because they did

not meet the requirements outlined in United States v.

Cochran, 499 F.2d 380 (5th Cir. 1974), cert. denied, 419

U.S. 1124, 95 S.Ct. 810, 42 L.Ed.2d 825 (1975):

(1) the testimony must be exculpatory in effect; (2)

the testimony must be more than purely cumulative,

or of negligible weight or probative value; and (3)

there must be a likelihood that the co-defendant Is!

will be willing to testify if the [defendants are] tried

separately.

Id. at 392, citing Byrd v. Wainwright, 428 F.2d 1017,

1020-21 (5th Cir. 1970). Finally, “that a separate trial

might have offered [appellants] a strategic advantage over

a joint trial does not suffice to demonstrate the unfairness

of the joint trial.” United States v. Clark, 480 F.2d 1249,

1253 (5th Cir.), cert. denied, 414 U.S. 978, 94 S.Ct. 301,

38 L.Ed.2d 222 (1973); see United States v. Perez, 489

F.2d 51, 67 (5th Cir. 1973), cert. denied, 417 U.S. 945,

94 S.Ct. 3067, 41 L.Ed.2d 664 (1974).

— a a a

App. 16

V. Search and Seizure of Narcotics During Arrest

On July 14, 1974, acting on information supplied by a

government informant, federal agents observed Chandler

and Cravero, for whom arrest warrants were then out-

standing,“ and Willets arrive at a restaurant at 7:00 p.m.

for a meeting with the informant. After the meeting,

Chandler, Cravero, and Willets left the restaurant and

drove to Cook’s house. Agents followed them and placed

the house under surveillance beginning at approximately

9:30 p.m. At 1:15 a.m., two agents, with arrest warrants

for Chandler, Cravero, and a third man named Troise,

knocked on the front door of Cook’s house, identified them-

selves, and announced that they had arrest warrants. A

short time later, Cook opened the door; and after a short

exchange she shouted, “Hey, you guys, the- police.” The

agents immediately entered, without permission, saw Cra-

vero in the living room, and arrested him. They also noticed

Chandler standing in the doorway to the master bedroom

within reach of a pistol. As they arrested Chandler and

confiscated the pistol, they heard scuffling sounds coming

from an adjacent bathroom. Cook sought to prevent the

agents from entering the bathroom without a search war-

rant, but they announced that they had an arrest warrant

for Troise, a fugitive whom they claimed to believe to be

hiding in the house. Entering the bathroom with weapons

drawn, : the agents first observed Willets leaning into the

shower stall and then saw a metal tray containing a large

quantity of white powder that proved to be cocaine on the

shower floor in plain view and paraphernalia used in the

"This was the first time that the agents had located them since

obtaining the warrants.

— f

„ „%“

App. 17

processing and packaging of narcotics'’ on the counter next

to the sink. After checking the shower stall unsuccessfully

for Troise, the agents seized the cocaine and paraphernalia.

Cook, Chandler, Cravero, and Willets challenge this

seizure on the following grounds: (1) the police unreason-

ably delayed execution of their arrest warrants so as to

use them as a pretext to search Cook’s house at a time when

narcotics were to be found; (2) absent exigent circum-

stances, the police could not execute arrest warrants at the

residence of a third party not named in the warrants even

if there was probable cause to believe that the subjects of

the warrants were on the premises; and (3) the police con-

ducted an improper housewide exploratory search after

arresting Cravero and Chandler, there being no probable

cause to believe that (a) the third person named in the

arrest warrants, Troise, was present at Cook’s house, or

that (b) any unknown third person posed a threat to he

agents’ physical safety.

(1) Unreasonable delay in executing the arrest war-

rant.

Much of which bore cocaine residue.

Appellants Siegal and Miller also object to the seizure, but since

neither was present at the home at the time of the seizure and neither

claimed ownership or possession of the confiscated narcotics and para-

phernalia, we agree with the lower court that neither had the reasonable

expectation of freedom from government intrusion on the premises neces-

sary to give either standing to challenge the search and seizure. See

Comb v. United States, 408 U.S. 224, 227, 92 S.Ct. 2284, 33 L.Ed.2d

308 (1972); United States v. Hunt, 505 F.2d 931, 934-40 (5th Cir.

1974), cert. denied, 421 US. 975, 95 S.Ct. 1974, 44 L.Ed.2d 466

a States v. Colbert, 474 F.2d 174, 176-77 (5th Cir. 1973)

(en ).

App. 18

[7] First, appellants complain that the police had

numerous opportunities to arrest Cravero and Chandler

before their arrival at Cook’s house and arguably could

have waited again until after they left the house. This cir-

cuit has held, however, relying on Hoffa v. United States,

385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966),

that a suspect has no constitutional right to be arrested

earlier than the police choose, since the authorities may not

be forced to halt an investigation once they have probable

cause to arrest but before they have evidence necessary to

support a conviction. United States v. Palazzo, 488 F.2d

942, 948 (5th Cir. 1974) ; Koran v. United States, 469 F.2d

107 (5th Cir. 1972) (per euriam).“ While delaying an arrest

as a pretext to apprehend a suspect when he has evidence

in his possession may be constitutionally questionable,’* we

need not reach that issue since no evidence. of pretext is

present here. The agents justifiably refrained—to protect

their informant’s identity—from arresting Chandler and

Cravero at the restaurant. They did not know appellants’

destination after the group left the restaurant. Nor had

the officers especial reason to expect to find cocaine in

'SAlthough both Palazzo and Koran concerned pre-warrant arrests,

the distinction is not critical. See generally United States v. Watson,

US. 96 S.Ct. 820, 46 L.Ed.2d 598, 634-14 & nn. 4-5 (1976)

(Powell, J., concurring).

is See United States v. Palmer, 435 F.2d 653, 655 (Ist Cir. 1970)

(dicta) (by implication) ; Amador-Gonzalez v. United States, 391 F.2d

308, 314-15 (Sth Cir. 1968) (impermissible for narcotics officers to

make traffic arrest as pretext to search defendant’s car incident to

arrest). But cf. United States v. Frick, 490 F.2d 666, 670-71 (5th Cir.

1973), cert, denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974)

(suggesting that a “staged arrest” after indictment to apprehend de-

fendant when he has evidence in his possession is permissible so long

as the arrest occurs within a reasonable time after indictment, but noting

that the evidence failed to show that the arrest was staged).

App. 19

Cook’s house.“ The agents entered to execute their war-

rants only after realizing that Cravero suspected the in-

formant’s true role“ and concluding that the suspects in-

tended to remain inside indefinitely.'? Thus, the delay was

reasonable and fully justified.

(2) Execution of arrest warrant on premises of

third party.

[8] Second, appellants insist that the police could not

execute their arrest warrants on Cravero and Chandler by

entering Cook’s residence. As the Eighth Circuit recently

noted in Rice v. Wolff, 513 F.2d 1280, 1292 n. 7 (8th Cir.),

aff’d sub nom. Stone v. Powell, U.S. 96 S.Ct.

3037, 48 L.Ed.2d ___. (1976), what requirements must be

satisfied before policemen without a search warrant may

conduct a search of a third person’s private home for a

suspect for whom they have a valid arrest warrant are un-

settled. All circuits that have considered the question, :

The informant had never ascertained the hiding place of the

cocaine.

18Based on a phone conversation at 11:20 that night in which

Cravero told the informant that he had detected the presence of surveil-

lance units at the restaurant and intimated that he was aware of the

informant’s duplicity.

Moreover, it seems that had the officers intended an exploratory

search, they would have shut off the house water supply before entering,

a common measure against disposal of contraband.

20Cf. United States v. Watson, USS. 96 S.Ct. 820, 46

L.Ed.2d 598, 614 (1976) (Stewart, J., concurring); id, at 614 & n. 7,

96 S.Ct. 820 (Powell, J., concurring); Rodriguez v. Jones, 473 F.2d

599, 605-06 (Sth Cir.), cert. denied, 412 U.S. 953, 93 S.Ct. 3023, 37

L.Ed.2d 1007 (1973) (dicta) (action for damages under §1983; exigent

(Footnotes Continued on Next Page)

App. 20

including this one,? agree that at minimum there must be

probable cause to believe that the suspect is within the

dwelling, but whether there must be exigent circumstances

as well is an open question.? Since no exigent circumstances

are present in this case,“ we must now address that issue.

(Footnotes Continued From Previous Page)

circumstances present). See also United States v. Watson, supra

US. 96 S.Ct. 820, 48 L.Ed.2d at 605 n. 6.

21Rice v. Wolff, 513 F.2d 1280, 1292 (8th Cir.), aff'd sub nom.

Stone v. Powell, —— U.S. ——, 96 S.Ct. 3037, 48 L.Ed.2d ——

(1976); Fisher v. Volz, 496 F.2d 333, 338-42 (3d Cir. 1974); United

States v. Brown, 151 U.S.App. D.C. 365, 467 F.2d 419, 423-24 (D.C.Cir.

1972); United States v. McKinney, 379 F.2d 259, 263 (6th Cir. 1967);

Lankford v. Gelston, 364 F.2d 197, 202-03 n. 6 (4th Cir. 1966) (en

banc) (citing cases). See also United States v. Phillips, 497 F.2d 1131,

1135 (9th Cir. 1974) (warrantless entry).

22F. g., United States v. James, 528 F.2d 999, 1017- (Sth Cir. 1976).

23In United States v. James, 528 F.2d 999 (Sth Cir. 1976), after

appearing to answer this question in the negative, the court recognized

the presence of exigent circumstances in denying the petition for re-

hearing.

**The government argues that the possibility of escape, the grave

nature of the offense, and the suspects’ propensity for violence supplied

the requisite exceptional circumstances. But Chandler and Cravero were

pent in a house surrounded by police. And danger to third

cannot support the entry here because there was no proof of —

furthermore, all three — 45 named in the warrant had been together

and much more vulnerable both at the restaurant and in the car. The

police correctly suggest that the delay in executing the warrants was

necessary to protect their informant’s identity; but while this justifies

the initial delay, it does not make exigent the need to arrest Chandler

and Cravero while remained inside the house. Although the arrest

may also have been yed—and understandably so—to give the in-

formant time to determine the location of the cocaine, this could not

supply sufficient justification for the police entering Cook’s house when

they did, unless perhaps they had feared that evidence was threatened

with destruction. See Schmerber v. California, 384 U.S. 757, 770-71,

86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). That ibly dangerous felons

who are guests in a private home suspect earli surveillance is

not enough to present exigent circumstances when the suspects are un-

aware of current police presence.

App. 21

[9] The opinions of other circuits that have faced

this issue do not speak with one voice.“ We think it clear,

however, that in addition to probable cause to believe that

the suspect is inside, there must be exigent circumstances

to support an entry to make a warranted arrest in a third

party’s home. We think so because in the nature of things

nothing in the process of procuring an arrest warrant for

A considers or affords any protection to the entirely dis-

tinct fourth amendment right of B, into whose premises A

may wander—perhaps after the arrest warrant issues—

not to have B’s premises invaded and ransacked for A

without either a warrant or one of the customary excuses

for its absence. As a general rule, before entering a specific

place to conduct a search for “objects,” police officers must

obtain a search warrant, Agnello v. United States, 269 U.S.

20, 32-33, 46 S.Ct. 4, 70 L.Ed. 145 (1925), which thereby

insures a prior judicial determination that there is probable

cause to believe that the object sought is within the place

25 The Third Circuit requires probable cause and exigent circum-

stances. Government of the Virgin Islands v. Gereau, 502 F.2d 914,

928-29 (3d Cir. 1974), cert. denied, 420 U.S. 909, 95 S.Ct. 829, 42

L.Ed.2d 839 (1975) ; see Fisher v. Volz, 496 F.2d 333, 338-39 (3d Cir.,

1974). The Fourth Circuit has approached but avoided the issue. Lank-

ford v. Gelston, 364 F.2d 197, 205-06 (4th Cir. 1966). The District of

Columbia Circuit (per Justice Clark) in United States v. Brown, 151

U.S.App.D.C. 365, 467 F.2d 419, 423-24 (1972), a holding that probable

cause to believe the suspect inside a third party’s dwelling is sufficient,

makes no explicit reference to exigent circumstances; but a Third Cir-

cuit decision correctly points out that Brown's] discussion reveals that

such circumstances were considered in determining the existence of

probable cause,” Fisher v. Volz, supra at 34] n.12. The Sixth Circuit in

United States v. McKinney, 379 F.2d 259, 263 (6th Cir. 1967), declared

that “there is good reason to hold that the issuance of an arrest warrant

is itself an exceptional circumstance,” but this statement must be con-

sidered in context since the police there had looked unsuccessfully for

the suspect before having probable cause to believe him present in some-

one else’s house. And the court implied that more than mere presence is

required. Id at 263 n.3. See also Note, The Neglected Fourth Amend-

ment Problem in Arrest Entries, 23 Stan.L.Rev. 995 (1971) (concerned

mainly with warrantless arrests) .

App. 22

to be searched, Jones v. United States, 357 U.S. 493, 498,

78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). In contrast, no such

determination need be made before an arrest warrant is-

sues. Such a warrant requires only a judicial determination

that there is probable cause to arrest a named person for a

certain offense, without consideration of the place in which

the arrest is to be made.* An arrest warrant, therefore, in

and of itself imposes few or no limitations on the power of

police to enter private homes in search of suspects.

10, 111 But arbitrary invasion of the privacy of

the home or dwelling is the “chief evil” to which the fourth

amendment is directed.“ To prevent such invasions, the

Framers interposed a search warrant requirement between

private citizens and the police, reflecting a belief that, ab-

sent special circumstances, the decision whether the right

of privacy should yield to a right to enter and search a

particular place should rest not with the policeman, but

with a disinterested judicial officer whose approval for a

search could apply only to a particular place and after a

26See, e. g., Fed.R.Crim.P. 4(a): “If it appears from the com-

laint . . . that there is probable cause to believe that an offense has

— committed and that the defendant has committed it, a warrant for

the arrest of the defendant shall issue to any officer authorized by law

to execute it.”

A warrantless arrest in a public place of one suspected of a felony

requires a similar determination, but only by a police officer. See Unitea

States v. Watson, ——- U.S. , 96 S.Ct. 820, 46 L.Ed.2d 598, 603-09

(1976). See also Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280,

69 L.Ed. 543 (1925).

27United States v. United States District Court, 407 U.S. 297, 313,

92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); see Johnson v. United States,

333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948).

App. 23

showing of probable cause.“ Only in certain earefully-

defined classes of cases is a warrantless search permitted.“

This preference for a prior judicial determination should

control a contemplated entry of a third party’s home, re-

gardless of what is sought. While the ultimate objective of

an arrest entry is an arrest, the arrest can only be effected

if the subject is first found, and thus a search is a necessary

factual prerequisite to the possible arrest. A search war-

rant would be required, in the normal case and absent some

exception, to enter a residence to search for a stolen pet or

other object seen carried into it. We are unable to see a

distinction valid for fourth amendment purposes between

entry to search for such an object and entry to apprehend

a guest. Consequently, logic demands that the rules govern-

ing searches should apply with equal force to an arrest

entry into a third party’s home. If the policeman has prob-

able cause to believe that a suspect he wishes to arrest is in-

side the home, he can demonstrate this to a magistrate and

obtain a search warrant for the suspect. If he fails to ob-

tain a warrant, then an arrest entry without a search war-

28McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191,

93 L.Ed. 153 (1948). As Justice Jackson noted in Johnson v. United

States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948) :

The point of the Fourth Amendment, which often is not grasped

by zealous officers, is not that it denies law enforcement the support

of the usual inferences which reasonable men draw from evidence.

Its protection consists in requiring that those inferences be drawn

by a neurtla and detached magistrate instead of being judged by

the officer engaged in the often competitive enterprise of ferreting

out crime. . . The right of officers to thrust themselves into a

home is . . a grave concern, not only to the individual but to a

society which chooses to dwell in reasonable security and freedom

from surveillance. When the right of privacy must reasonably yield

to the right of search is, as a rule, to be decided by a judicial

officer, not by a policeman or Government enforcement agent.

29E. g., Terry v. Ohio, 392 U.S. J. 20, 88 S.Ct. 1868, 20 L.Ed.2d

889 (1968).

App. 24

rant will be permissible only if exigent circumstances’ or

some other established exception to the warrant require-

ment obtains. Any other result raises the spectre of police

circumvention of the search warrant as carte blanche to

search any and every home in which they can claim prob-

able cause to believe a suspect may be concealed. Further-

more, a requirement of exigent circumstances will not un-

duly burden law enforcement officials or create additional

danger, since such factors are given considerable weight in

the exigent circumstances determination.“

[12] Although we thus agree with appellants that

the entry was illegal, their conclusion that the subsequently

seized drugs and paraphernalia must be suppressed does not

follow ineluctably from the illegality of the entry. Ob-

viously, an illegal entry does not vitiate the arrests pursu-

ant to concededly valid arrest warrants. If the arrests here

had been illegal—e.g., without a warrant or probable

An obvious example of which would be entry by one believed

dangerous into the home of another believed by the police not to be in

league with him. Another, since objects do not act and people do,

would be a reasonable fear by the police that the suspect in the house

might be summoning reinforcements by telephone or other means of

communication, or ordering retaliation on an informer or other criminal

activity by such means.

Cf. Chimel v. California, 395 U.S. 752, 767. 89 S.Ct. 2034, 23

L.Ed.2d 685 (1969).

Cf. Dorman v. United States, 140 U.S. App. D.C. 314, 435 F.2d

385, 392-93 (1970) (en banc) (giving examples of exigent circum-

stances). We need not decide here whether our concern for balancing

the needs of effective law enforcement with the potential for police

abuse requires a similar rule governing an arrest entry into the home

of a person named in a warrant, although we have previously implied

that mere probable cause to believe the suspect present justifies such an

entry. United States v. Jones, 475 F.2d 723, 729 (Sth Cir. 1973) (dicta)

(defendant conceded that arrest was lawful and challenged only the

search incident to his arrest). See generally United States v. Watson,

— US. ——,, 96 S.Ct. 820, 46 L Ed2d 598, 605 n.6 (1976).

App. 25

cause—then use of the fruits of those arrests would have

entitled appellants to invoke the exclusionary rule. See Ed-

wards v. Swenson, 454 F.2d 1106, 1111 (8th Cir.), cert.

denied, 406 U.S. 909, 92 S.Ct. 1619, 31 L.Ed.2d 820 (1972)

(citing Fifth Circuit and other cases). But the arrests, if

not the entry, were proper. The arrest warrants represent

judcial sanction of the deprivations of the suspects’ lib-

erties. Possession of the warrants was a completely self-

validating justification for the arrests regardless of the

circumstances under which the police reached the location

where they served the warrants. To hold otherwise would

mean that a suspected felon could claim what amounts to

temporary sanctuary in the home of another and would

require us to contemplate with equanimity the prospect of

a section 1983 suit by him against the officers who ar-

rested him on a valid warrant, which seems self-evidently

absurd. Thus, the arrests are valid, though the method of

effecting them be not.“

[13] The Supreme Court has held that items seized

in warrantless searches incident to lawful arrests are ad-

missible. Such searches are considered “reasonable” in

fourth amendment terms because they are necessary to

protect the arresting officers’ safety and prevent the con-

cealment or destruction of evidence. See Chimel v. Cali-

fornia, 395 U.S. 752, 762-64, 89 S.Ct. 2034, 23 L.Ed.2d

685 (1969). But the admissibility of items seized pursuant

to other warrantless search exceptions, such as the “plain

view” or “hot pursuit” doctrines, has turned on “an ex-

traneous valid reason for the officer’s presence.” Coolidge

v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2039,

Cf. United States v. Cisneros, 448 F.2d 298, 303 n.6 (9th Cir.

1971).

App. 26

29 L.Ed.2d 564 (1971).“ See also id. at 465-66, 91 S.Ct.

2022. Thus, we must examine the reason for the officers’

presence in the place where they made the seizures because

the admissibility of evidence obtained in the warrantless

search depends on whether the items were seized incident

to the valid arrest or merely as part of an exploratory

search of the premises after the illegal entry.

(3) Exploratory search.

[14, 15] Although Chandler does not seek suppres-

sion of the pistol found on his person,“ all appellants object

to the drugs and paraphernalia found in plain view after

the officers’ charge on the bathroom. The police attempt

to justify their presence in the bathroom on two grounds:

that they had probable cause to believe that Troise, the

third suspect named in their arrest warrants, was present

in the house, and that they needed to conduct a safety

search to prevent danger to the arresting officers. We

A planned, warrantless intrusion to seize items hoped to be found

in plain view, fear of which motivates us to require the presence of

exigent circumstances for the entry, has never been permitted. Coolidge,

403 U.S. at 469-71 nn.26-27, 91 S.Ct. 2022.

The seizure of Chandler’s ready-to-hand pistol was entirely reason-

able; indeed, a failure to do so would have been ludicrous. This seizure

is the paradigm of why a warrantless search incident to a legal arrest is

acceptable. To rule the pistol inadmissible had we been asked to do so

would require us to hold either that the arrest itself was invalid because

the officers who made it on a proper warrant were where they should

not have been when they executed it or to hold that though they had a

“right” to seize the pistol pursuant to a valid arrest and in reason could

have done nothing less, still the pistol must be suppressed as evidence

because it was a fruit of the original improper entry. Neither holding

seems to us one appropriate to the real world, and we would decline to

make either.

App. 27

need not consider their belief in Troise’s presence,“ be-

cause their bathroom entry can survive as a protective

sweep to avoid threats from unknown persons. The Su-

preme Court in Chimel v. California, 395 U.S. 752, 763,

89 S.Ct. 2034, 23 L.Ed.2d 685 (1965), declared that al-

though an arresting officer can search the suspect’s per-

son for weapons and evidence that could be destroyed, as

well as the immediate area where the arrestee could grab

a weapon, the policeman cannot routinely search other

rooms absent some exception to the search warrant require-

ment. This circuit has recognized such an exception in a

housewide search after a proper arrest for the purpose of

making a cursory safety check when “the circumstances

[provide], at the least, probable cause to believe that a

serious threat to safety [is] presented.” United States v.

Smith, 515 F.2d 1028, 1031 (5th Cir. 1975) (per curiam)

(%a serious and demonstrable potentiality for danger’’).”

The heinous nature of the crimes, the lateness of the hour,

the arrests of Cravero and of Chandler in possession of a

loaded pistol, and the suspicious noises coming from the

bathroom more than justified the agents’ cursory search

to secure the immediate area and to insure their own

physical safety. Since the agents were properly inside the

36Even were we to agree with the government that the officers had

probable cause to believe Troise present, this would not cure the illegal .

entry, although the subsequent seizure would still be permissible—based

not on the plain-view doctrine, since without exigent circumstances the

officers were still not properly in the bathroom, cf. note 38 infra, but on

the ground that the items were in possession of a person the officers

— in the process of committing a crime. Compare text at note 39

infra.

37Accord, McGeehan v. Wainwright, 526 F.2d 397, 399-400 (5th

Cir. 1976) (per curiam) (surveying cases); United States v. Looney,

481 F.2d 31, 33 (5th Cir.), cert. denied, 414 U.S. 1070, 94 S.Ct. 581,

38 L.Ed.2d 476 (1973) (in addition to a threat to safety, the agents

must be looking for dangerous people, not things).

—

App. 28

bathroom, their seizure of the cocaine and paraphernalia

can be justified on two separate and independent grounds.

First, the officers observed the items in “plain view” in a

room that they had properly entered.“ Second, they ob-

served Willets in the process of committing the crime of

possession of narcotics, which gave them grounds to arrest

her and seize the items here in question since they were

in an area within her control.“ Thus, the items were

properly admitted, despite the illegal entry.

(4) The limits of our holding.

Having said so much, we do not think it amiss to

indicate something of what we do not hold.

[16] We do not countenance the original, warrant-

less entry of Cook’s residence, nor would we suffer ad-

mission of the fruits of an unlimited, warrantless search

of her residence: matter discovered, for example, in a room

remote from the scene of the arrests or as a result of ran-

sacking bureau drawers, or the like. But being unable to

find the arrests by warrant of Chandler and Cravero in-

valid, we are likewise unable to condemn as evidence items

Something found in the living room in plain view would not have

been — 52 the officers’ presence there was improper. Only

the legal arrest of Cravero and Chandler, followed by scufflin sounds,

2. the “extraneous valid reason” that in turn validated the safety

check of the bathroom.

See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23

L.Ed.2d 685 (1969) ; United States v. Jones, 475 F.2d 723, 727-28 (Sth

Cir. 1973). Since the security-search rationale permits us to approve the

bathroom entry, we need not consider here the broader issue that the

concurring opinions in United States v. Watson, US. , 96

S.Ct. 820, 46 L.Ed.2d 598, 614 (1976) ery and Powell, JJ., con-

curring in rate opinions), assert was left open by the majority

opinion: —— or when the police can lawfully 2 a warrantless

arrest in a private place.

App. 29

seized as a result of reasonable and appropriate actions

taken by the police occasioned by and directly resulting

from these valid arrests.

We do, in other words, no bold work here. Rather,

we seek to lay course between the overhanging absurdity

of the sporting theory of justice on the one side and the

menace of police irruption into residences on the other.

VI. Hearsay Declarations of the Previously Acquitted

Co-Conspirator

[17,18] Appellants Chandler and Willets attack as

hearsay a witness’ damaging account of statements made

by an alleged co-conspirator who had been acquitted in

an earlier trial of this conspiracy. A witness can testify

to declarations made to him by a co-conspirator only if

the government by independent evidence establishes a

prima facie case of the existence of a conspiracy and intro-

duces at least “slight evidence” to connect with the con-

spiracy both the declarant and the defendant against whom

the statement is introduced, which requires “a showing of

a likelihood of an illicit association between the declarant

and the defendant,” United States v. Lawson, 523 F.2d

804, 806 (5th Cir. 1975); Park v. Huff, 506 F.2d 849,

859 (5th Cir.) (en banc), cert. denied, 423 U.S. 824, 96

S.Ct. 38, 46 L.Ed.2d 40 (1975) ; see United States v. Oliva,

497 F.2d 130, 132-33 (5th Cir. 1974). Appellants, who con-

cede that the prosecution met its initial burden, argue that

an alleged co-conspirator’s prior acquittal deprives the

trial judge of any right to find that the government has

made the requisite showing of that person’s participation

in the conspiracy. Other circuits have held, and we agree,

that after the government has made the requisite show-

App. 30

ings, the admission of testimony under the co-conspirator

exception to the hearsay rule is not rendered retroactively

improper by subsequent acquittal of the alleged co-con-

spirator. See United States v. Jacobs, 475 F.2d 270, 284

n.28 (2d Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 116,

38 L.Ed.2d 53 (1973) ; Kamansuke-Yuge v. United States,

127 F.2d 683, 689 (9th Cir.), cert. denied, 317 U.S. 648,

63 S.Ct. 43, 87 L.Ed. 522 (1942).

[19] We see no reason for a differing rule when ac-

quittal occurs before the hearsay testimony is admitted.

The earlier acquittal signifies that the government failed

to prove the declarant a participant in the conspiracy be-

yond a reasonable doubt; this circumstance in no way fore-

closes the government, in a subsequent case, from establish-

ing by slight or even preponderant evidence the declarant’s

participation. The independent “slight evidence” neces-

sary to meet the threshold admissibility requirement means

only that the evidence would be sufficient to support a

finding by the jury that the declarant was a co-conspir-

ator,“ obviously not inconsistent with an earlier jury’s

inability to so determine beyond a reasonable doubt.“ The

problem is at bottom one of judicial estoppel. The declar-

ant’s earlier acquittal, to be sure, forecloses a redetermina-

tion of his guilt because of considerations of double jeop-

ardy and may also properly be said to establish finally that

he cannot be found beyond reasonable doubt to have been

a conspirator. But it no more forecloses a determination,

Cf. United States v. Nixon, 418 U.S. 683, 701 & n.14, 94 S.Ct.

3090, 41 L.Ed.2d 1039 (1974).

*tAppellants’ additional argument that some of the acquitted co-

conspirator’s statements were themselves hearsay is inconsequential since

all statements were originally uttered and repeated by participants of

the conspiracy in furtherance of it.

App. 31

even by a preponderance of the evidence,“ that he was

one than a subsequent acquittal, and this is more than is

required for admission of his declarations.

VII. Prosecutor's Cross-Examination of Defense Witness

[20,21] Appellant Siegal objects that the prosecu-

tion improperly attacked Siegal’s character by eliciting

from a defense witness that he had once represented

Siegal. But neither the question nor the witness’ response

—that he had represented Siegal [o] ne time that stands

out in my mind” and also possibly in traffic court—in any

way suggests representation in a criminal manner or prior

criminal activity. Furthermore, the questions were ob-

viously aimed at revealing possible bias because of a prior

business relationship. Partiality, or any acts, relationships

or motives reasonably likely to produce it, may be proved

to impeach eredibility.” C. McCormick, Handbook of the

Law of Evidence §40, at 78 (2d ed. E. Cleary 1972); see

Aetna Insurance Co. v. Paddock, 301 F.2d 807, 812 (5th

Cir. 1962), quoted in Ellis v. Capps, 500 F.2d 225, 227

(5th Cir. 1974).

VIII. New Trial

[22] Appellant Cook requests a new trial“ based on

testimony given in an unrelated case seven months after

her trial by one Andries, a government informer-witness

who there asserted that federal agents wanted him to give

false testimony by saying that Cook knew that the cocaine

was being brought to her house the night of the arrests

See generally 50 C.J.S. Judgments §752, at 272-73 (1947).

*3We consolidated with the main cause Cook’s appeal from the

lower court’s denial of her motion for a new trial.

App. 32

when in fact she neither knew nor consented. As we noted

in United States v. Jacquillon, 469 F.2d 380 (5th Cir.

1972), cert. denied, 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.

2d 604 (1973), in order to justify a new trial on the ground

of newly discovered evidence,

the rule is that the evidence must in fact be newly

discovered and that the movant must have exercised

due diligence in discovering the evidence. It must not

be merely cumulative or impeaching. Furthermore, the

new evidence must be material and be such that it

would probably produce an acquittal in a new trial.

Id. at 388. Cook fails to meet these requirements because

this “evidence” is not newly discovered. Appellant’s coun-

sel admits in his brief that eight months previously he

had spoken by telephone to Andries, who at the time was

in the protective custody of the United States Marshal,“

and obtained the same information. He insists that this

evidence is nonetheless newly discovered because only after

he received a copy of Andries’ sworn testimony in the later

trial for use as possible impeachment evidence did he have

the opportunity to insure that Andries, if called as a de-

fense witness, would testify to the same story he had pre-

viously related by telephone.“ But we cannot agree that

lack of assurance that a potential witness will testify as

“The prosecution at one point apparently intended to call Andries

as a witness in Cook’s trial but did not do so.

Although Cook’s counsel had taped the telephone conversation, he

claimed that he could not use transcripts of taping to impeach

Andries for fear of being prosecuted under a Florida statute, Fla.Stat.

Ann. §934.03 (1973), that appears to prohibit one not a law-enforcement

official from taping a telephone conversation without the consent of all

parties to the conversation. Andries testified, however, that he had

consented to the taping.

App. 33

planned makes the expected testimony newly discovered

evidence once that assurance is.received. The requirements

for a new trial based on newly discovered evidence are

clear, and Cook has failed to meet them.

[23] Cook also demands a new trial based on a

claimed violation of Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194, 10 L.Ed.2d 215 (1963), by the prosecution’s

failure to reveal prior to Cook’s trial a statement by An-

dries to the prosecutor that the information Andries had

previously furnished the government about Cook was false.

But appellant’s attorney conceded that he had obtained

the same information prior to trial, so the prosecutor can

hardly be charged with suppressing it. In the context of

the Brady requirement, “any allegation of suppression

boils down to an assessment of what the State knows at

trial in comparison to the knowledge held by the defense.”

Giles v. Maryland, 386 U.S. 66, 96, 87 S.Ct. 793, 808, 17

L.Ed.2d 737 (1967) (White, J. concurring). The purpose

of Brady is to assure that the accused will not be denied

access to exculpatory evidence known to the government

but unknown to him. Irrespective of whether the statement

here was exculpatory evidence under Brady, a question

we do not reach, there is no Brady violation when the ac-

cused or his counsel knows before trial about the allegedly

exculpatory information and makes no effort to obtain its

production.

AFFIRMED.

Accord, Maglaya v. Buchkoe, 515 F.2d 265, 268 (6th Cir.), cert.

denied, 423 U.S. 931, 96 S.Ct. 282, 46 L.Ed.2d 260 (1975); United

States v. Ruggiero, 472 F.2d , 604 (2d Cir.), cert. denied, 412 U.S.

939, 93 S.Ct. 2772, 37 L.Ed.2d 398 (1973).

App. 34

(TITLE OMITTED]

Defendants were convicted in the United States Dis-

trict Court for the Southern District of Florida, at Fort

Lauderdale, Peter T. Fay, J., for narcotics-related of-

fenses, and they appealed. The Court of Appeals affirmed.

On petitions for rehearing and petitions for rehearing en

banc, the Court of Appeals, Gee, Circuit Judge, held that

when an officer holds a valid arrest warrant and reason-

ably believes that its subject is within premises belonging

to a third party, he need not obtain a search warrant to

enter for the purpose of arresting the suspect; and that

having personally observed two defendants enter the resi-

dence of a codefendant, police officers’ belief that the sus-

pects were within those premises was clearly reasonable,

and their entry to execute arrest warrants.on those two

individuals was therefore legal and the arrest valid.

Petitions denied.

1. Arrest — 68

When an officer holds a valid arrest warrant and

reasonably believes that its subject is within premises be-

longing to a third party, he need not obtain a search war-

rant to enter for the purpose of arresting the suspect.

2. Arrest — 68

Searches and Seizures — 3.6 (2)

“Probable cause” is essentially a concept of reason-

ableness, but has become a term of art in that it must al-

ways be determined by a magistrate unless exigent circum-

App. 35

stances excuse a search warrant; on the other hand, “rea-

sonable belief” embodies the same standards of reasonable-

ness but allows the officer, who has already been to the

magistrate to secure an arrest warrant, to determine that

the suspect is probably within certain premises without an

additional trip to the magistrate and without exigent cir-

cumstances.

3. Arrest — 68

Having personally observed two defendants enter the

residence of a codefendant, police officers’ belief that the

suspects were within those premises was clearly reason-

able, and their entry to execute arrest warrants on those

two individuals was therefore legal and the arrest valid.

Appeals from the United States District Court for the

Southern District of Florida.

ON PETITIONS FOR REHEARING

AND PETITIONS

FOR REHEARING EN BANC

(Opinion August 6, 1976, 5 Cir., 1976, F.2d ).

Before BROWN, Chief Judge, and TUTTLE and

GEE, Circuit Judges.

GEE, Circuit Judge:

In their petitions for rehearing, appellants Cook, Cra-

vero, Chandler and Willets have questioned the logic of

our panel’s holding that the arrests made after an illegal

entry of Ms. Cook’s home were somehow made legal be-

App. 36

cause of valid arrest warrants. Upon reconsideration of

this seeming paradox, we find that we erred in requiring

probable cause plus exigent circumstances to validate the

entry without a search warrant.

As early as Agnello v. United States, 269 U.S. 20, 46

S.Ct. 4, 70 L.Ed. 145 (1925), the Supreme Court recog-

nized that an entry to execute an arrest warrant is an ex-

ception to the requirement of a search warrant to intrude

into a home. See also United States v. Jeffers, 342 U.S. 48,

72 S.Ct. 98, 96 L.Ed. 59 (1957); United States v Rabino-

witz, 339 U.S. 56, 70 S.Ct. 430, 94, L.Ed. 653 (1950).

In Ker v. California, the Court quoted with approval Jus-

tice Traynor’s opinion in People v. Maddox, 46 Cal.2d 301,

306, 294 P.2d 8, cert. denied, 352 U.S. 858, 77 S.Ct. 81, 1

L.Ed.2d 65 (1956):

When an officer has reasonable cause to enter

a dwelling to make an arrest and as incident to

that arrest is authorized to make a reasonable

search, his entry and his search are not unreason-

able.”

374 U.S. 23, 39, 83 S.Ct. 1623, 1633, 10 L.Ed.2d 726

(1963).

[1,2] The law of this circuit, which our panel opin-

ion overlooked, is that when an officer holds a valid arrest

warrant and reasonably believes that its subject is within

premises belonging to a third party, he need not obtain a

search warrant to enter for the purpose of arresting the

suspect. United States v. James, 528 F.2d 999, 1017 (5th

Cir. 1976) ; Rodriguez v. Jones, 473 F.2d 599, 605-06 (5th

Cir.), cert. denied, 412 U.S. 958, 93 S.Ct. 3028, 37 L.Ed.2d

App. 37

1007 (1973). The test is properly framed in terms of rea-

sonable belief. Probable cause is essentially a concept of

reasonableness, but it has become a term of art in that it

must always be determined by a magistrate unless exigent

circumstances excuse a search warrant. When one says

“probable cause,” therefore, one also says either “magis-

trate” or “exigent circumstances.” Reasonable belief em-

bodies the same standards of reasonableness but allows

the officer, who has already been to the magistrate to se-

cure an arrest warrant, to determine that the suspect

is probably within certain premises without an addi-

tional trip to the magistrate and without exigent circum-

stances.' Accord United States v. Brown, 151 U.S.App.

D.C. 365, 467 F.2d 419 (1972); United States v. McKin-

ney, 379 F.2d 259 (6th Cir. 1967). The reasonableness of

the officer’s judgment is always subject to judicial review,

of course.

[3] Because entry to execute an arrest warrant is

treated by this court as an exception to the requirement of

a search warrant,? we withdraw that portion of our panel

opinion which held the entry into Ms. Cook’s home illegal.

Having personally observed Cravero and Chandler enter

the Cook residence, the officers’ belief that the suspects

were within those premises was clearly reasonable, and

10ne explanation for not requiring a search warrant to enter a

third person’s home to execute an arrest is that there is no need to par-

ticularize the search—the arrest warrant has already done that. There

is not the same danger of the “general writ” which is the reason for

requiring that a search warrant | what specific items police are

allowed to search for.

2The exception is limited to protect against a general police can-

vassing of the homes of all of the suspect’s acquaintances. There must be

a reasonable belief that the person named in the arrest warrant is inside;

furthermore, the entry is valid only for the purpose of executing the

arrest and not for conducting a general search.

App. 38

their entry to execute arrest warrants on those two indi-

viduals was therefore legal and the arrests valid. The pro-

tective sweep incident to the arrests was permissible for

the reasons noted in our early opinion.

The petition for rehearing is DENIED, and no mem-

ber of this panel nor judge in regular active service on

the court having requested that the court be polled on

rehearing en banc (Rule 35 Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 12) the petition for

rehearing en banc is DENIED.

App. 39

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 75-2718

D.C. Docket No. FL-74-91-CR-PF

UNITED STATES OF AMERICA

Plaintiff-Appellee,

versus

RICHARD DOUGLAS CRAVERO, a/k/a “Ricky”,

SHARON WILLETS, MARIANNE COOK,

PHILLIP SIEGAL, RONALD CLIFFORD CHANDLER,

and BOBBY EUGENE MILLER,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Florida

Before BROWN, Chief Judge,

TUTTLE and GEE, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for the

Southern District of Florida, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed.

August 6, 1976

Issued as Mandate:

App. 40

SUPREME COURT OF THE UNITED STATES

NO. A-601

RICHARD DOUGLAS CRAVERO,

RONALD CLIFFORD CHANDLER AND

SHARON WILLETS,

Petitioners,

v.

UNITED STATES

ORDER EXTENDING TIME TO FILE PETITION

FOR WRIT OF CERTIORARI

Upon Consideration of the application of counsel for

petitioner (s),

It Is Ordered that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including March 8, 1977.

Js, Lewis F. Powell

Associate Justice of the Supreme

Court of the United States

Dated this 26th day of January, 1977.

In 2 U.S.C. Congressional and Administrative News,

90th Congress, 1970, at 4651, it is said:

“The amendment offered by Mr. Dingell which

was adopted by the full committee corrected these

App. 41

defects. Instead of providing a post-conviction

presentencing procedure, it made engagement in a

continuing criminal enterprise a new and distinct

offense with all its elements triable in court.”

* * &

“(1) The definition of what is a continuing of-

fense is indefinite in that —

(a) It is not at all clear what constitutes a

‘continuing series of violations of this title or

title III***.’ (Emphasis not added)

Suppose, for instance, that six young men at-

tending a college residence together in a coopera-

tive boarding house. All of them have engage in

the practice of smoking marijuana cigarettes and

there has been, on a day or more, free exchar ge

between them of such forbidden drug. Each inei-

dent of giving a cigarette to another constitutes

a felony. How long must this practice continue in

order to constitute a ‘continuing series of viola-

tions?’ Would a single day’s experiment with

smoking ‘pot’ constitute a ‘continuing series of

violations,’ or would it require a week, a month,

or a year of such activities to make the offenses

‘continuing’?

(b) It is not at all clear what is meant by de-

riving substantial income or resources from

the enterprise. (Emphasis not added)

Let us take the situation mentioned above. Sup-

pose one of the young men is the house manager

of the boarding house. As such he is in a general

App. 42

‘supervisory position’ or ‘other position of man-

agement’ in the ordinary affairs of the house,

but he has not ordinarily obtained any ‘income or

resources’ connected with the sale of marijuana.

He has only been paid for his general house man-

agement. On one occasion he purchased $100

worth of marijuana and divides it with the other

five members, selling it to them at cost. Has

he then obtained ‘substantial income or re-

sources’ in connection with the enterprise?

Or what if such common purchase by one of the

group is done each week? Also, does ‘substantial

income or resources’ relate to profits or, on the

other hand, to mere receipt of money? Would ‘in-

come or resources’ include the advantage to the

house manager of obtaining his own share of the

marijuana at a cheaper rate because it was in

bulk?”