Petition — Kilpatrick v. United States

Supreme Court brief1977

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MAR 18 1977

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IN THE 2. CLERK |

Supreme Court of the Anited States

OCTOBER TERM, 1976

No. 6-1314

| Supreme Court, U.S, |

WILLIE LEE KILPATRICK, COURTNEY BROWN,

HERBERT BELL, SAMUEL HORNE, ALPHONZO

JONES,

¢ Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH JUDICIAL CIRCUIT

MILTON R. HENRY

2211 E. Jefferson Avenue

Detroit, Michigan 48207

Phone: Area 313-393-0100

Bar No. P-14884

Attorney for the Petitioners

February 21, 1977

cies saieeienieesieienemenemimeiiemimmmit maa

Washington, D.C. ¢ CLB PUBLISHERS’ « LAW PRINTING CO. « (202) 393-0625

(i)

TABLE OF CONTENTS

Page

CC ccceteede eee teusecevdsesceen 2

ee eo i CL Se a eee be eee e's 2

I ee 3

CONSTITUTIONAL PROVISIONS INVOLVED ........ 5

STATUTES, REGULATIONS, AND JUDICIAL

PE ScetwsaGekas ebe eka Seek ea be oh W008 6

JURY SELECTION PLAN FOR THE EASTERN

DISTRICT OF MICHIGAN, FOR RANDOM

SELECTION OF GRAND AND PETIT JURORS ...... 7

PE TE UP GED nk cbc iwc cence wecceses 9

A. On the quashing of the grand jury ............ 12

1. The jury clerk’s removal of court records

from the court to her home, and

intervention of unauthorized persons

into the jury selection process ............. 14

B. Facts relative to prosecutorial misconduct ....... 16

1. Misuse of the grand jury process by trial

prosecutor in taking an already indicted

defendant before the grand jury, without

oc ons obs hehe eels 16

2. Use of grand jury for prosecutorial

purposes; and exploitation of _ illicit

meeting between co-defendant and his

wife to procure said wife as a witness

BE ee 21

C. Facts relative to the attorney general’s mode

of authorization of filing of application with

the District Court for an order permitting

ee a ea laches d sah eet 24

D. Facts relative to multiple punishment for a

EERE PEP? Fer pen ener 26

E. Review and reconsideration of the Pinkerton

ROS ae CLe ee ed Dept ere phe oT A eae 27

SUMMARY OF ARGUMENT

ARGUMENT ON THE LAW AND REASONS

FOR GRANTING THE WRIT

THE FAILURE TO COMPILE THE

MASTER JURY WHEEL FROM THE MOST

RECENT VOTERS REGISTRATION LIST

READILY AVAILABLE TO THE JURY

CLERK, AS DEFINED BY THE JURY

SELECTION ACT OF 1968, AND RE-

QUIRED BY THE DISTRICT COURT

JURY PLAN, COUPLED WITH THE RE-

MOVAL FROM THE COURT HOUSE BY

THE JURY CLERK OF JURY RECORDS

BEING USED TO COMPILE THE MASTER

JURY WHEEL, AND THE ASSISTANCE IN

THE PROCESS OF THE SISTER OF THE

JURY CLERK, INVALIDATED THE

GRAND JURY SELECTION FROM SAID

MASTER WHEEL, AND THE_INDICT-

MENT RETURNED BY SAID GRAND

JURY AS A MATTER OF CONSTITU-

ET oc sshas'cete eran aeet 6 és

THE UNITED STATES ATTORNEY’S

TAKING OF THE WITNESSES NABORS

AND BURT BEFORE THE GRAND JURY

AFTER INDICTMENTS HAD BEEN RE-

TURNED AGAINST THE PETITIONERS,

FOR THE PURPOSE OF INQUIRING INTO

THE MATTERS CHARGED IN THE IN-

DICTMENT, CONVERTED THE GRAND

JURY INTO THE GOVERNMENT TRIAL

ATTORNEY’S AGENT, AND WAS AN

ABUSE OF PROCESS SO GRAVE AS TO

INVALIDATE ANY CONVICTIONS

BROUGHT ABOUT BY THE USE OF

EVIDENCE DERIVING FROM SUCH

GRAND JURY INTERROGATION, AND

THE SUMMONING OF THESE WITNESSES

Le oe ae ee 2 eS 2 ae ee

IV.

(iti)

TO APPEAR BEFORE THE GRAND JURY

CONSTITUTED PROSECUTORIAL MiIS-

CONDUCT AMOUNTING TO A DENIAL

ob) 8, ke

THE SECRET MEETING HELD BY THE

GOVERNMENT TRIAL ATTORNEY WITH

GEORGE BLAIR, A DEFENDANT, AND

HIS WIFE, RUTH ANN BURT, CON-

STITUTED PROSECUTORIAL MIS-

CONDUCT REQUIRING SUPPRESSION OF

HER TESTIMONY ON TRIAL, WHEN

TAKEN IN CONJUNCTION WITH THE

GOVERNMENT’S USE OF HER BEFORE

THE GRAND JURY AFTER THE RETURN

OF THE INDICTMENT OF THE CASE,

AND THE RIGHTS OF ALL THE DE-

FENDANTS TO THE EFFECTIVE AS-

SISTANCE OF COUNSEL PROSECUTOR-

8 A

THE ATTORNEY GENERAL’S' NON

COMPLIANCE WITH HIS OWN ADMINIS-

TRATIVE RULES IN AUTHORIZING THE

FILING FOR AN INTERCEPTION ORDER

RENDERED ANY INTERCEPTION

ORDER SUBSEQUENTLY OBTAINED IN-

VALID’ AND REQUIRES SUPPRESSION

OF ANY WIRE INTERCEPTIONS .........

. THE $IMULTANEOUS POSSESSION OF

@BNTROLLED SUBSTANCES IS PUNISH-

ABLE ONLY ONCE AS A POSSESSION OF

DRUGS: AND MAY NOT, BY SUB-

DIVISION OF A LARGE QUANTITY OF

DRUGS INTO SMALLER AMOUNTS BE

MADE INTO SEVERAL CRIMES FOR

WHICH SEVERAL PUNISHMENTS MAY

PET 66s Waeeweseceseeerees

Page

(iv)

VI. THE PINKERTON RULE REVISITED

REQUIRES VACATION OF THE CON-

VICTIONS OF THE APPELLANTS

HEREIN, AND PARTICULARLY THE AP-

PELLANT HORNE, WHOSE ONLY CON-

TACT WITH THE ALLEGED CON-

SPIRACY OCCURRED ON THE LAST

DAY OF SAID CONSPIRACY AND BY

PHONE CONVERSATION ..............

CORCLA cc ccc cceceusesesteeee een

og ee

TABLE OF AUTHORITIES

Cases:

American Broadcasting Co. v. FCC, 179 F.2d 437,

to | 6erTrrrrrr. Se

Berger v. U.S., 295 U.S. 78, 79 L.Ed. 1311, 55 S.

Ce, 661, IGS oc cccucesecvesveueeeeeee

Beverly v. United States, 468 F.2d 732, Sth Cir.,

TITS cece ev encccesesesens es een

Farr v. Pitchess, 409 U.S. 1243, 34 L.Ed.2d, 655,

93 S. Ce. SOB, 1997S on ccssccessscenseeeen

Glasser v. United States, 315 U.S. 60, 85, 86 L.Ed.

GSO, 62 BS. Ce. 407, 1908 . 0. ccccuduceeeeuee

Hill v. Kennedy, 310 F. Supp. 455, ED Mich. ......

Hughes Tool Co. v. Trans World Airlines, 409 U.S.

363, 34 L.Ed.2d 577, 99 S. Ct. 647, 1973 .....

Lawn v. United States, 355 U.S. 339, 348, 2

L.Ed.2d 321, 329, 78 S. Ct. 311 (1958) .......

Maryland v. Baltimore Radio Show, 338 U.S. 912,

919, 94 L.Ed. 562, 70S. Ct. 252, 1949........

McDonald v. Musick, 425 F.2d 373, (9th Cir.,

34, DEPLETE

McNabb v. United States, 318 U.S. 332, 339, 87

L.Ed. 819, 823, 63 S. Ct. 608, 1942 ........

New York Telephone Co. v. U.S., 56 F. Supp. 932,

) a BeeeerrrrrroT. UU!

Page

(v)

Paul v. U.S., 371 U.S. 245, 9 L.Ed.2d 292, 83 S.

SS PPPPTTTTITT EEL

United States v. Valencia, 541 F.2d 618, 622, 6th

Ge UEP wee ccererecseseccecsccccces

Pinkerton v. United States, 328 U.S. 640, 66 S. Ct.

1180, 90 L.Ed. 1489, 1946 ...............

Sanders v. United States, 373 U.S. 1, 10 L.Ed.2d

148, 83 S. Ct. 1068, 1963)... 1. ee ee eee

Sheridan-Wy oming Coal Co. v. Krug, 172 F.2d 282,

| st” PPP TTT Tere eLe Tere

State v. Britton, 203 S.E.2d 462, Supr. Ct. of W.

ee a ee pees esey

United States v. Bennett, 409 F.2d 288, 290, cca 2,

DT SEER eeeeeeedevccevecoccosoes

United States v. Dade, 320 F.2d 316, cca 2, 1964

United States v. Davis, 546 F.2d 588, 5 Cir., 1977 ..

United States v. Doe, 455 F.2d 1270, 1274, Ist

ES ee ee

United States v. Doss, 545 F.2d 548, 6 Cir., 1976 .

United States v. Hughes, U.S. Court of Military

Appeals, 3/19/76, 19 CrL 2087 ............

United States v. Kras, 409 U.S. 434, 34 L.Ed.2d

DPT Saeceseccccccccceccess

United States v. Matthews, 350 F. Supp. 1103,

TE Ge ceéeeccceescccs«

United States v. Murphy, 224 Fed. Reptr., 554 ....

United States v. McNeal, 490 F.2d 206, 6th Cir.,

1973, cert. denied, 419 U.S. 1020 (1974) .....

United States v. Woods et al., 544 F.2d 242, 6 Cir.,

DECC eeb eS eee weeeceneceesers

U.S. v. Becker, 461 F.2d 230, 2 Cir. ...........

U.S. v. Blair, 470 F.2d 331, 5 Cir., 1972 ........

U.S. v. Chavez, 416 U.S. 562, 94 S. Ct. 1849, 40

TT, Meee eeseeeeccecessesccs

(vi)

U.S. v. Deardorff, 343 F. Supp. 1033, 1042,

Se gc ton ee ee rere 36

U.S. v. Falcone, 506 F.2d 478, 3rd Cir., 1974, cert.

den. 420 U.S. 955, 96 S. Ct. 1339, 43 L.Ed.2d

See -cesddveuas cco 25 ,58,59

U.S. v. Guzman, 337 F. Supp. 140, 145; 468 F.2d

1245, cert. den. 410 U.S. 937, SDNY, 1972 ........ 36

US. v. Lawn, 115 F. Supp. 674, 677, SD NY,

Se ricedetueschesadeukbeawite rede vua 51

U.S. v. Mandujano, 425 U.S. 564, 48 L.Ed.2d 212,

yo eS, £ Fh 6 eee ee 30,47

U.S. v. Mara, 410 U.S. 19, 29, 35 L.Ed.2d 99, 93 S.

Re Pe ree er re Pe ee 48

U.S. v. Nixon, 418 U.S. 683, 709 41 L.Ed.2d 1039,

Sa ay Ee CD cecenbudba Gab oveeteeiure 48

U.S. v. Roemig, 52 F. Supp. 857, 861, DC ND la,

ey osbesnidh concede enc eececessesteuunese 40

eS § fF > Tf | 2 ee 59

Wilson v. U.S. 335 F.2d 788, 799, 7th Cir. 1964 ....... 61

Wilson v. Watson, 309 F. Supp. 263, aff'd. 422

Pens Gs Ue ic HUD in bc ccocccveceseeceses 61

STATUTES, RULES AND REGULATIONS

Supreme Court Rules:

i A nena verry menae netsh Aor: 2

PE ca cas cekaweenuakevscdienaes 2

U.S. Constitution:

Article 1, Section 9, Clause3 ................. 5,27

Fifth Amendment ...................e000. passim

No ee ea alae passim

Federal Administrative Procedure Act:

Pee TE 4 i decks ubacescuebacecckua 4,60,61

Pee SD, <s065% ous Cees eee enous &

ts ID 5 ag eats wile eee tee 9

_, “* GePerir rar try ere 9,60

(vii)

Page

Federal Jury Selection Act of 1968 _

CS Ee Ee hee eee ee ee 7

0S OTE Pee Pee Tree vseveees 7

ee abe eeearneeke 7

, |) Arr rrrrr rr rr rrerey ay a 6

_ kf PE PPrrrrrTerTererrrrirerrel 6,34

TO GRE. BORED ccc cc cesccccsccccscesss 40

BP Ge IUD cwcccccccscecsesacocens 40

Bp es OED Sinececccecscescees 6,12,13,34,40

Justice Department Rules:

i ED cc ccnccntceneususeesen 62,63

y lt) | BPPPrrrrrerrrrrere rte passim

Michigan Compiled Laws:

| errr rrr rr ere rere ree eee 6,35

DIGBAOT . nn cccccccccccscsecccessccsevers 13,35

Miscellaneous:

& Moore’s Federal Practice 86.04 ..........-.-50005: 20

U.S. Code & Administrative News ........--.+-0005: 13,34

Code of Professional Responsibility, Canon 7 .......... 53

| PPC PeCUT TTT TIT TTT TTL 53

ABA, Opinion 150, 1936 .......--. 0s eee ee ee eees 54

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

No.

WILLIE LEE KILPATRICK, COURTNEY BROWN,

HERBERT BELL, SAMUEL HORNE, ALPHONZO

JONES,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

JOINT PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE SIXTH CIRCUIT

Petitioners, WILLIE LEE KILPATRICK,

COURTNEY BROWN, HERBERT BELL, SAMUEL

HORNE, and ALPHONZO JONES, each respectfully

pray that a Writ of Certiorari issue to review the

opinion of the United States Court of Appeals entered

in this proceeding on October 8, 1976, as reported in

U.S. v. Woods et al., 544 F.2d 242, 6 Cir., 1976; and

the rehearing denied in said proceeding on February 2,

1977.

OPINIONS BELOW

The Opinion of the Court of Appeals has been

printed, and is located under the entitlement of United

States v. Woods, et al., 544 F.2d 242, 6 Cir., 1976; but

the opinions of the District Court of the Eastern

District of Michigan, filed by HON. PHILIP PRATT and

JOHN FEIKENS, U.S. District Judges, sitting in tandem

on the lower court cases, have not been reported, but

they are contained in the original record which has

been supplied to the Court of Appeals in connection

with the proceedings had therein. Counsel is requesting

that the record be certified and transmitted to this

Court on behalf of the instant petitioners.

JURISDICTION

The Judgment of the Court of Appeals for the Sixth

Circuit was entered on October 8, 1976. A timely

petition for rehearing was denied on February 2, 1977

(Appendix B). The jurisdiction of the Supreme Court is

invoked under the provisions of Section 1254(1), Title

28 U.S.C., and Rules 19(b) and 22(2) of the Rules of

the Supreme Court of the United States.

QUESTIONS PRESENTED

1. May Government Attorneys who ultimately con-

duct the trial of a multiple conspiracy prosecution, in

the absence of an intentional waiver, and without

notice to an indicted co<leienc nt’s attorney-of-record,

call such indicted co-defendant before the Grand Jury,

and interrogate him concerning the subject matter of

the conspiracy for which he stands formally indicted,

and in regard to which he has retained private counsel;

and, does such pervasive governmental abuse of the

Grand Jury Process, void the convictions of all other

alleged co-conspirators, where their trial was affected

and tainted by the subsequent testimony of such

co-defendant, who testified against the other co-

defendants as a government witness?

2. May government trial attorneys having knowledge

of an indicted defendant’s private retainer of counsel,

use on trial, evidence developed as the direct fruit of

their surreptititous meeting with said indicted co-

defendant, without prior notice by the Asst. United

States Attorneys to counsel of record of said attorneys’

intention to conduct such meeting with the client; and

does such secret governmental invasion of the attorney-

client relationship constitute a violation of the Sixth

Amendment right to the effective assistance of counsel,

and bar, under the due process clause, the use in

evidence as against all other co-defendants, of any

evidence procured as a result of said meeting, and void

their said convictions; and does the taking of such

witness before a grand jury, to prepare the govern-

ment’s case for trial, void the convictions.

3. Is a federal grand jury venire rendered fatally

defective, under the Fifth Amendment to the United

States Constitution, where the jury clerk whose duty it

was to compile the master wheel from which the grand

jurors were to be drawn, took papers necessary for the

compilation of the master wheel out of the court house

and to her dwelling, and engaged the services of her

sister, who was not an employee of the court clerk, or

authorized to act as such, in relation to the compilation

of the jury wheel from which the grand jury which

returned the indictments in the within case was drawn;

and does the selection of the names for insertion on the

master wheel from unauthorized and outdated voting

registration lists violate the tederal jury selection act,

where the jury clerk made absolutely no effort to

obtain the proper voters lists, which could have been

procured from the county clerk on 24 hours’ notice?

4. Can the Attorney General of the United States, in

authorizing the making of an application for a wire tap

interception order by an Asst. U.S. Attorney, confer

such authority by initialing an inter-office memo,

without docketing and indexing such authorization as

an ‘order,’ as required by Section 0.180, Title 28,

C.F.R., and the provisions of the Federal Administrative

Procedure Act, at Section 552(2)(i), Title 5 U.S.C.?

5. May the government create 5 separate and distinct

substantive cases of controlled substances violations

against the petitioners by arbitrarily subdividing a single

quantity of drugs seized from a single address on a

single occasion; and does such procedure violate the

constitutional prohibitions contained in the double

jeopardy clause of the Constitution, and unlawfully

impose more than one punishment for the same

offense, where, as here, consecutive sentences were

imposed upon two of the counts by the sentencing

judge?

6. Does the Pinkerton Rule, announced in 328 U.S.

640, as applied by the trial court, and affirmed by the

court of appeals, as to all appellants, irrespective of the

time of their entry into the alleged conspiracy,

improperly authorize the blanket punishment of all of

the appellants, without any logical agency nexus being

shown between the crimes charged and the individual

appellant’s time of entry into the conspiracy, and

without any regard for whether such crimes had been

completed prior to his joinder, as in the case of

Petitioner Horne, who has been sentenced for offenses

transpiring prior to his contact with the alleged

conspiracy, at a time when he could not have impliedly,

or otherwise, constituted anyone his agent in crime; and

is such a rule an ex post facto law, judicially created, in

plain violation of Article I, Section 9 of the US.

Constitution. f

CONSTITUTIONAL PROVISIONS INVOLVED

The Ex Post Facto Clause of the Constitution

provides, Article 1, Section 9, Clause 3:

No bill of attainder or ex post facto law shall be

passed.

Amendment V to the United States Constitution

provides:

:"9 person, shall be held to answer for a capital, or

oinerwise infamous crime, unless on a presentment

or indictment of a Grand Jury ...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 a criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law...

6 °

Amendment VI to the United States Constitution

provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed ...and to have

the assistance of counsel for his defence.

STATUTES, REGULATIONS, and

JUDICIAL PLANS

Jury Selection Act — Section 1861 et seq., Title 28

U.S.C., Section 1863, Title 28 U.S.C., provides that any

jury selection plan put into operation in any District in

the United States:

“must comply with the provisions of this title”

Further, the plan put into effect, must:

“specify whether the names of prospective jurors

shall be selected from the voter registration lists or

the lists of active voters of the political subdivision

within the district or division.”

Section 1869(c), of Title 28 U.S.C. defines the term

“Voters Registration Lists”, to mean:

“The official records maintained by State or local

election officials of persons registered to vote in

either the most recent state or the most recent

federal general election.”

Section 168.534 of the Michigan Compiled Laws,

reads:

A general primary of all political parties... shall

be held in every election precinct in the State on

the Tuesday succeeding the first Monday in August

preceding every general November election, at

which time the qualified and registered voters of

each political party may vote for... U.S.... rep-

resentatives in Congress...”

JURY SELECTION PLAN FOR THE EAST-

ERN DISTRICT OF MICHIGAN, FOR

RANDOM SELECTION OF GRAND AND

PETIT JURORS

Article 2, thereof:

“Management and Supervision of the Jury Selec-

tion Process.”’

The Clerk of the Court shall manage the jury

selection process under the supervision and control

of the Chief Judge and the Judge of the Division

over which he presides.

Random Selection from Voter Lists.

Voter Registration lists represent a fair cross

section of the community in each of the Divisions

of the Court. Accordingly, names of grand and

petit jurors serving on or after the effective date of

this plan shall be selected at random from the

voter registration lists of all political subdivisions

within the relevant divisions.

Article 4, thereof:

Master Jury Wheels.

The clerk shall maintain a master jury wheel for

each of the divisions within the District. The

names of all persons randomly selected from the

voter registration lists in a Division shall be placed

in the master jury wheel for that division...

The master jury wheels shall be initially filled

between August | and December 1, 1968, and

shall be emptied and refilled between January 1,

1973, and May 1, 1973, and between January |

and May | of every fourth year thereafter.

Article 5, thereof:

Drawing of Names from Master Jury wheels.

*“*... The clerk shall prepare alphabetic lists of the

names drawn, which lists shall not be shown to

any person except as provided herein and in

Sections 1867 and 1868 of the Act.”

JUSTICE DEPARTMENT RULES

Section 0.180, Title 28 C.F.R., provides:

‘“‘All documents relating to... the assignment...

or delegations of authority, functions, or duties by

the attorney general...shall hereafter be desig-

nated as orders and shall be issued only by the

Attorney General in a separate numbered series.

Classified orders shall be identified as such,

included within the numbered series, and limited

to the distribution provided for in the order...”

FEDERAL ADMINISTRATIVE PROCEDURE

ACT — Title 5 U.S.C.

Section 552(b)(2), Title 5 U.S.C., reads:

Each Agency shall separately state and currently

publish in the Federal Register. ..(2) statements

of the general course and method by which its

functions are channeled and determined, including

the nature and requirements of the formal or

informal procedures available and forms and

instructions as to the scope and contents of all

papers, reports, or examinations; and

Section 552(b)(3), Title 5 U.S.C., reads:

(continuing from sub section 2) “substantive rules

adopted as authorized by law and statements of

general policy or interpretations adopted by the

agency for public guidance...” A person may not

be required to resort to...procedure not so

published.”

Section 2516, Titie 18 U.S.C.

Authorization for interception of wire or oral

communications

The Attorney General, or any Assistant Attorney

General specially designated by the Attorney

General may authorize an application to a Federal

Judge of competent jurisdiction for, and such

judge may grant in conformity with section 2518

of this chapter an order authorizing or approving

the interception of wire or oral communications

by the Federal Bureau of Investigation, or a

Federal Agency having responsibility for the

investigation of the offense as to which the

application is made,...”

STATEMENT OF THE CASE

Appellants, who were tried at the same time, by two

United States District Judges assigned to jointly hear

the testimony, but to separately decide the motions and

cases of an equal number of defendants, were adjudged

guilty on July 22, 1974, of Conspiracy to Violate the

Federal narcotics laws, and of 13 separate offenses

committed by various ones of the named defendants.

On October 18, 1974, the appellants herein-named

were sentenced as follows:

BY JUDGE FEIKENS:

a) COURTNEY BROWN-—

Committed to the custody of the Attorney

General for 15 years on Counts | thru 12, and

2% years on Counts 13 to 16 to be served

concurrently, and $5,000.00 committed fine on

each of 14 counts (p. 64A)

b) HERBERT BELL

Committed to the custody of the Attorney

General for 10 years on all counts, concurrently,

plus $1,000.00 committed fine on each of 14

counts (p. 65A, entry 1)

c) SAMUEL EUGENE HORNE

Committed to the custody of the Attorney

General for 7 years on all counts, concurrently,

plus $1,000.00 committed fine on each of 14

~ counts.

d) ALPHONZO AUGUSTUS JONES,

Committed to the custody of the Attorney

General for a term of 7 years on all counts,

concurrently, plus $1,000.00 committed fine on

each of 14 counts. (p. 65A, entry 6)

BY JUDGE PRATT:

e) WILLIE LEE KILPATRICK

Committed to the Custody of the Attorney

General for a period of 6 years, concurrently,

on each of 14 counts, under Section 4208(a)(2),

Title 18, U.S.C., plus a $2,000.00 fine on the

Conspiracy Count #1. (p. 78A, 79A)

The case arose in the Eastern District of Michigan via

16 count indictment filed against a total of 31 persons,

sixteen of whom were assigned for disposition to

District Judge, JOHN FEIKENS, under Case No. 46597,

and 15 of whom were assigned to District Judge,

PHILIP PRATT, for disposition under Case #46598.

(pp. 194A to 223A)

The gist of the case, set forth in the indictment

under Count 1, was that the defendants conspired to

illegally manufacture and distribute various quantities of

controlled substances, from September 26, 1971 to

December 15, 1971, the date of their arrest. They were

each made responsible for various substantive transfers

of narcotics effected in the Counts labeled 2 through

12, notwithstanding an absence of actual participation

on the part of a number of the defendants in those

sales, all on the theory that Pinkerton v. United States,

328 U.S. 640, authorized the conviction of every

convicted conspirator, of every substantive crime

committed by any one of the conspirators during its

entire lifetime.

They were each convicted, as well, upon Counts 13,

14, 15 and 16, of the offenses of possession of

controlled substances, even though the drugs involved in

those specific counts were part and parcel of one larger

parcel of drugs, including those covered in Count 12,

which had been seized at the same time and place, and

subdivided so as to make out five separate offenses. By

arbitrarily subdividing the single parcel of drugs into 5

separate counts, in all but the appellant WILLIE

KILPATRICK’s case, the appellants were made to suffer

increased and supplemental sentences and punishments;

under counts which in truth involved but one violation

of the federal statute law.

The following recitation of fact, succinctly made,

furnishes the basis for allowance of the appellants’

application for issuance of a Writ of Certiorari by the

Supreme Court to the United States Circuit Court of

Appeals for the Sixth Circuit.

A.On The Quashing Of The Grand Jury

The Indictment in the within case was returned on

January 5, 1972, by a Panel of Grand Jurors selected

under authority of a Jury Selection Plan adopted July

25, 1968, by the Judges of the Eastern District of

Michigan, and approved by the United States Sixth

Circuit Court of Appeals, on September 23, 1968, to

become effective “on and after December 2, 1968. (p.

1988A)

The Plan was approved as being in conformity with

the Federal Jury Selection Act of 1968, 28 U.S.C.,

Section 1863(a); and, provided specifically for drawing

of the Master Jury Wheel from which all Grand and

Petit juries would be taken, from the Voters Registra-

tion Lists. It provided, significantly for this case, that

the first Master Jury Wheel should be filled between

August 1, 1968 and December 1, 1968. (p. 1881A)

Rather than obtain the current voting lists which

were available to the Clerk from a Computer Run on

24 hours request, and without cost to the Federal

Government, the Jury Clerk availed herself of outdated

1967, and prior registration lists in filling out the first

Master Jury Wheel (Opinion of Court, p. 311A). She

totally disregarded the Jury Selection Act’s requirement

that the Master Wheel be filled from voters registration

lists of “‘persons registered to vote in the most recent

federal general election.” (Section 1869(c), Title 28

U.S.C.)

Appellants, by timely motion filed, heard, argued

that the use of this outdated list constituted a fatal and

substantial violation of the United States Jury Selection

Act, and required the quashing of the indictment filed.

For, appellants claimed, there was simply no way

whatever for the Clerk to disregard the mandate of the

District Plan adopted by the Court, which stated, in

paragraph 3 thereof:

“Names of Grand and Petit jurors serving on or

after the effective date of this plan shall be

selected at random from the Voters Registration

lists of all political subdivisions within the relevant

divisions.”

Nor, the appellants claimed, could the Jury Clerk

disregard the definition of “Voters Registration Lists,”

contained in Section 1869(c), of Title 28 U.S.C., which

expressly limited those lists to the “persons registered

to vote in either the most recent state or federal general

election.”

The District Court held the “most recent” federal

election t2 be that of November 8, 1966. (p. 321A)

On rehearing before the District Court, the petition-

ers pointed out that a “general federal election,” was

any statewide election for members of the House of

Representatives (p. 1806, 1968, U.S. Code Cong. &

Adm. News); and that, further, in Michigan, the 1968

August primary, at which members of the house were

nominated, was both “the most recent state and federal

election,” whose lists were required to be resorted to;

and that those lists, under Section 168.497 Mich.

Comp. Laws, were available by the Fifth (Sth) Friday

preceding the day of the August Primary (Tue, August

6, 1968), which works out to be July 1, 1968.

The District Court steadfastly refused to quash the

indictment returned by the Grand Jury so selected.

Appellants claim that in view of the Jury Clerk

having a full six months in which to compile the master

Jury wheel, from the lawful list, she had no excuse for

refusing to make use of the 1968 list; and that the

District Court erred in not quashing the indictment for

this reason.

1. The Jury Clerk’s removal of Court Records from the

Court to her home, and intervention of unauthorized

persons into the jury selection process.

Additionally, as to the Grand Jury Venire, testimony

before the Court indicated that the Jury Selection Clerk

had not only taken the jury records which were being

used to construct the’ Master Jury Wheel, out of the

Court house and to her home, but that she had her

sister, who was not a deputy Clerk of the Court,

assisting her in the compilation of the Jury Wheel, on

Saturdays when the Clerk’s office was officially closed.

Of this practice, the District Court, in denying

quashal of the indictment, for this reason, said:

‘““As to the removal of the records from the Clerk’s

Officer, this Court is hesitant to discourage

employees of the Government from putting in

extra hours on their jobs. Such virtue is all too

rare. Miss Robiscoe, moreover, was not able to

determine which records were removed from the

office, and thus, we are not able to conclude that

the jury lists were removed from the court

house.” (p. 311A)

But, on page 296A, Ethel Robiscoe’s testimony,

which remained uncontroverted and unrebutted looms

clear and firm. She stated there, that the Jury Clerk,

whose sole responsibility was the compilation of the

new Master Wheel, took to her home:

“records that belonged to the Court, and were

being used to compile the Master Wheel.”

Also, Mrs. Robiscoe testified, on page 278A, without

rebuttal, that the Jury Clerk, Jeanne Burge told her

that, “She had her sister coming in and working with

her on the selection process.”

Appellants insistently urged that these practices were

not only improper, but unlawful, within the ambit of

Statutes, Cases, Rules of Court, and the District Jury

Plan.

Further testimony indicated that the Chief Clerk of

Court had interrogated the Jury Clerk regarding the

allegation that she had been taking jury selection papers

out of the Clerk’s office to her home, and that he

advised Mrs. Robiscoe that it would stop. Further, Mrs.

Robiscoe testified that thereafter she never saw the

Jury Clerk taking any work out of the building. (p.

282A)

The Court Clerk, Mr. Johnson, corroborrated having

had such a conversation regarding the Jury Clerk’s

improper activities with Mrs. Robiscoe. (p. 296A)

Notwithstanding all this direct and circumstantial

evidence of the records being “jury selection records,”

the District Court refused to condemn the Jury Clerk’s

actions, and persisted in holding the Grand Jury to have

been validly constituted under the terms of the Jury

selection Act, (p. 311A); while ignoring the Constitu-

tional principle, so well outlined in United States v.

Murphy, 224 Fed. Reptr., 554, on p. 562, that no

other person, or official than a United States Clerk, or

deputy Clerk, has a right to participate in the jury

selection process, and that such participation, to any

degree, absolutely voids a jury panel so affected,

irrespective of any proof of actual or direct harm.

B. Facts Relative To Prosecutorial Misconduct

1, Misuse of the Grand Jury Process by trial prosecutor

in taking an already indicted defendant before the

grand jury, without notice to his attorney.

In preparation of its case, the Government com-

mitted two very serious acts of prosecutorial mis-

conduct, affecting the integrity of the convictions

ultimately obtained.

First, there was a calculated misuse of the Grand

Jury Process by the Asst. U.S. Attorney assigned to try

the case, together with an unlawful invasion of the

attorney-client privilege; and Secondly, there was an

improper, clandestine, meeting participated in by the

U.S. trial attorney and one of the defendants, George

Blair, and his common law wife, resulting in the

development of a prosecution witness, and _ the

discovery of evidence used to make out the govern-

ment’s conspiracy case against the appellants.

In the first instance, as appears from the docket

entries set forth on pp. 2A, 3A, and 7A of the lower

court Appendix No. 1, ROOSEVELT NABORS, was

both a defendant, and represented by MILTON R.

HENRY, his attorney, from the time of his arraignment

on January 7, 1972, up until January 25, 1972, when,

without notice to MILTON R. HENRY, the docket

entries show the defendant NABORS, who had already

been arraigned and released on a $5,000.00 -10% cash

bond (p.3A), was “arraigned, court to appoint counsel,

(p. 12A) in the teeth of a written appearance already

filed by MILTON R. HENRY. (p. 2A) The docket

entries show on p. 13A, entry 52, that the affidavit and

order appointing counsel for the defendant NABORS

was filed and entered on January 25, 1972. Yet, on

January 20, 1972, while MILTON R. HENRY was fully

Attorney of record for NABORS, and without any

notice, or hint of notice to said attorney, the Agent in

charge of the prosecution, RON GARIBOTTO, took

NABORS, the defendant, before the very same Grand

Jury which had, on January 4, 1972, already returned

the outstanding indictment against NABORS and the

other 30 defendants (pp. 1266A, 1267A)

Before the Grand Jury, Nabors was made to testify

regarding the facts of the case pending against him and

his co-defendants. Nabors testified on pp. 1268A, and

1269A, of the trial, as follows:

Q. Did they go over the facts in the case with

you before you went into the Grand Jury?

A. uh... They asked me what happened, and I

would run it down to them, and — uh — they

would be reading on the paper to see was I

giving them the accurate truth...

Q. ... They asked you what happened. You were

answering but they were reading a report to

see what you were saying, if it was accurate?

A. Yes, sir.

On page 1273A, the following colloquy is set forth:

Q. ...When you were talking to them (Grand

Jury) and they were going over your testi-

mony, did you give them an account of what

happened, and the people you met, yes, or

no?

Yes, Sir, I did.

When you talked about the people you met,

and the people you dealt with, did you

describe them by name?

A. Yes, Sir. The ones I knew, I called by name.

Q. Which ones were they?

A. I knew... Courtney Brown... Bubba Bell...

And, on page 1282A, we find:

Q. When you appeared before the Grand Jury,

they showed you pictures, is that right?

A. Yes, Sir.

Q. And they showed you pictures which were the

pictures of the men arrested with you, is that

right?

uh — uh -- some of them were...

. Were you shown pictures in the Grand Jury?

Did you see pictures of some of these

defendants that you saw the day you were

arrested and the day you appeared before the

magistrate?

Yes.

Naturally, when you looked at the pictures

before the Grand Jury, you recognized them

as the men you were arrested with, and the

men you were before the magistrate with?

A. Yes, Sir.

And then, on page 1284A:

Q. What photographs were shown?

Weren’t you shown any photographs of any of

the defendants... ?

A. Mr. Jones... Mr. Brown...

then further on:

Q. Tell us again what pictures you were shown in

the Grand Jury?

A. ... Courtney Brown,... “Bubba” Bell, Mr.

Jones...”

Special Agent Waber paid Nabors $200.00 for this

performance before the Grand Jury, on January 20,

1972. (p. 1264A)

The transcript of the Grand Jury proceedings

establishes that ATLEE WAMPLER, the very attorney

assigned to try the case at hand, led the questioning

before the Grand Jury. His opening question clearly

defined the purpose for Mr. Nabor’s appearance there.

From page 2 of the transcript we read:

Q. “Mr. Nabors, do you know of any of the

activities in the field of narcotics and

dangerous drugs with an individual by the

name of Eddie Jackson,”?

His further inquiries were directed towards informa-

tion bearing upon the first four substantive counts of

the indictment, on which Nabors and all the others had

already been arraigned; and upon the overt acts recited

in the conspiracy count of the said indictment.

Because such an inquiry was being carried out before

a grand jury to further no authorized function of the

grand jury, by prosecuting officials charged with trial

responsibilities of the case being spread out upon the

Grand Jury records; and because, the prosecuting

officers, who were reading from a statement already

furnished them by the witness, were not engaged in

discovering any evidence not known to them, and were

not engaged in exploring any new or different crime, or

crimes, other than those covered in the indictment

already issued, the appellants urged, before both

District and Appellate Courts, that the prosecutor’s

action was an abuse of the Grand Jury process, as a

means of preparing the government’s case for trial, so

pervasively improper as to require quashing of the

indictment filed against the appellants.

The Court of Appeals avoided the issue, but stated

tangentially on page 252 of 544 F.2d:

“Although Atty. Milton Henry filed an appearance

on behalf of Nabors as he did for all the other

defendants, the Court’s records demonstrate that

counsel was also assigned for Nabors on January

25, before he was called before the Grand Jury.”

That statement is 100% unsupported by the record,

since Nabors appeared before the Grand Jury on

January 20, 1972, at which time MILTON R. HENRY

was his attorney of record, entitled to full notice of

any intended summoning of his client before a Grand

Jury.

Further, the Sixth Circuit Court of Appeals failed to

pass, in this case on the gross impropriety of the very

act of taking an indicted defendant before a grand jury,

without counsel, to interrogate him concerning the

subject matter of the crime for which he already stood

indicted; but, notwithstanding, just 20 days later,

announced an opinion in the case of United States v.

Doss, 545 F.2d 548, in which a conviction was

overturned, on the sole basis that such a use of a

defendant before a grand jury is an unforgiveable abuse

of process, proscribed by the Fifth Amendment to the

United States Constitution.

Additionally, the Court of Appeals avoided explain-

ing how a retained attorney of record could be

unilaterally removed from his retainer, and other

counsel appointed in his stead, consistent with the

settled practice of law in this country.

On the impropriety of the use of the Grand Jury

after Nabors’ indictment, the Court of Appeals stated in

this case, at p. 249 of 544 F.2d:

“The government concedes that it is improper to

use a grand jury solely to prepare a pending

indictment for trial. Beverly v. United States, 468

F.2d 732, Sth cir, °72; 8 Moore’s Fedl. Practice,

Sect 6.04; But it contends the record shows no

support for appellant’s claim that Burt and Nabors

were called only to prepare pending indictments

for trial...”

—

Then the Court cited cases from the Ist, Sth, and

8th circuits to the effect that “Grand Jury proceedings

cannot be policed in any detail.”

The record before the Grand Jury; and on the trial

below, conclusively established government misconduct

and governmental abuse of process in preparing the

within case for trial, by the illegal summoning of

Nabors before the Grand Jury to ask him questions

about the very indictment under which he had been

arraigned in the same Court.

It would be impossible to assign a single proper, or

innocent motive to this activity on the part of

prosecuting officers. And it is as equal an impossibility

to blot out the countless suggestions of impropriety

which are conjured up, or to remove the clear

conviction that the only reason the trial attorney and

his chief prosecuting officer would become involved in

putting Nabors under oath, and in conducting the

inquiry themselves, would be to prepare their witness

for trial, and to prevent any possible deviation from the

statement which they already had in_ possession,

through the threat of the witness being subjected to a

perjury prosecution if he failed to follow the script on

trial.

Appellants claim that such a use voids the conviction

of the appellants.

2. Use of Grand Jury for Prosecutorial purposes; and

exploitation of illicit meeting between co-defendant

and his wife to procure said wife as a witness against

the defendants.

Appellants moved that the District Court vacate their

convictions and grant a new trial, among other reasons

assigned, on the ground that the entire trial should have

been barred as a result of incurable prosecutorial

misconduct amounting to a denial of due process,

springing from the government’s use of the grand jury

as its agent; and because of the government’s

misconduct in procurement of the witnesses Nabors and

Ruth Ann Burt.

Appellants claimed that Burt’s testimony was uncon-

stitutionally procured in consequence of the govern-

ment’s knowing misconduct in meeting with the

defendant Blair, the witness’s husband, without notice

to any of Blair’s attorneys, and for the purpose and

design of obtaining Ruth Ann Burt as a prosecution

witness against the other defendants. (Par. 18, of

Appellants’ Motion for a New Trial) (pp. 104A, 105A)

The trial record (pp. 1477A to 1517A) established

that, in the middle of May, 1972, when George Blair

was represented by Attorney, Wilfred Rice, U.S.

Attorney, ATLEE WAMPLER, and S/A RON

GARIBOTTO whose activities via trial preparation,

regarding the summoning of known defendants in the

case before the Grand Jury have already been outlined

above, once more, engaged in less than understandable

conduct.

This time, again without notice to the defendant

Blair’s attorney the U.S. Attorney charged with

responsibility for trying the case, and the Chief Agent

in charge of the prosecution, met in secrecy with the

defendant Blair, and his wife, ai the Ramada Inn, some

14 miles outside of the City of Detroit, and near the

Metropolitan Airport.

At that meeting, Atty. WAMPLER, and S/A

GARIBOTTO, encouraged Blair and his wife to discuss

all they knew about the pending case (p. 1479A) and

other named defendants. (pp. 1480A, 1483A) Out of

this meeting, and a direct result of contacts established

therein, Sgt. Garibotto procured Ruth Ann Burt as a

prosecution witness, whose testimony on the trial was

materially employed to implicate each of the appellants

herein named, in the alleged conspiracy.

This witness, RUTH ANN BURT, was subsequently

paid moneys by the Government, and also taken before

the Grand Jury by Messers Wampler and Garibotto, on

June 6, 1972, to testify in relation to the substance of

the case pending against the already indicted defend-

ants. (p. 1532A)

Sgt. Garibotto testified affirmatively, when being

questioned as to why he brought RUTH ANN BURT

before the Grand Jury on June 6, 1972, when an

indictment had already been returned in the case, that

his purpose in bringing her before the Grand Jury was

“coordinating his efforts with Mr. Wampler in getting

the case ready for trial.”

His testimony contained on page 1534A leaves little

room for doubt as to the prosecutorial use of the grand

jury as the government’s agency in preparing the

pending case for trial.

Viz: (From page 1534A)

Q. You didn’t make a report on your prepara-

tion on identification on June 6th?

A. I’ve testified that I’m not certain that that

occurred on June 6, and if it did, I did not

make a record of it.

I guess the Court would be interested in that.

Because I considered myself at this point the

case was no longer active. I considered myself

in the interest of the prosecution. All / was

Q. You didn’t make a record of any of those

things?

A. I can explain why, Mr. Henry, if you would

like.

doing was making a witness that I felt the

U.S. Attorney would prepare for trial

available.

Additionally, this clear cut, unambiguous statement

of purpose was elaborated upon on page 1535A.

There we read further:

Q. You knew that in April of 1972 the names of

every defendant on this indictment, is that

right?

Yes

And you Knew they were coming up for trial?

Eventually, I hoped they would

And you’re trying to — you were trying to

get your case ready for trial; isn’t that what

you told me?

A. Coordinating my efforts with Mr. Wampler.

OPrOor

Even in light of the foregoing testimony, the Court

of Appeals refused to vacate the convictions of the

appellants, where the testimony of the two main

witnesses in the case was firmed up and made relatively

secure through the prosecution’s use of the grand jury

solely as an aid to prepare the government’s case for

trial.

C. Facts relative to the Attorney General’s mode

of authorization of filing of application with

the District Court for an order permitting

wire interceptions.

Wire tap evidence was introduced against the

appellants, Brown, Bell, and Horne to establish their

involvement in the alleged conspiracy; and in fact was

the sole evidence in the record against the appellant

Horne. Neither appellant Jones nor Kilpatrick appeared

on the logs of interceptions by wiretap.

Objections were made, among many, to the valida-

tion of the wire tap interceptions where the proofs

established that the Attorney General had failed to

follow the requirements of Section 0.180, Title 28

C.F.R., which requires that all documents relating to

the assignment of duties or authorities, by the Attorney

General, be designated as orders, and issued by the

Attorney General on in a separate numbered series.

The authorizations in the within case, which were

claimed to have been those of the Attorney General,

though he made no affidavit to that effect, were

contained on inter-office memoranda bearing the initials

JNM. The appellants contested the verity of the initials

JNM; but, even assuming they were those of the

Attorney General, John Mitchell, the appellants con-

tended that the Attorney General had no lawful right

to evidence his approval of an application for authority

to file for a wire tap order, either verbally, or by initial;

and that the exercise of his authority over wire tap

authorizations had to be in full conformity with the

Rules of his own Department, duly adopted, which in

the case of Wire Tap Orders, the appellants claim, must

be issued by the Attorney General in ‘order’ form, as

distinguished from some informal, inter-office memo,

and in addition must be docketed as such order, as one

of a “separate numbered series.”

On page 256 of 544 F.2d, the Court of Appeals held

that 0.180, Title 28 C.F.R. “is not applicable to

delegations of authority over applications for inter-

ception orders,” citing U.S. v. Falcone, 506 F.2d 478,

3rd Cir., 1974, cert. den. 420 U.S. 955, 96 S.Ct. 1339,

43 L.Ed.2d 432, 1977, as standing for the proposition

that “even verbal approval by the Attorney General is

sufficient; though in Falcone, there was an authoriza-

tion bearing the Attorney General’s name, which had

actually been signed by the executive assistant, Sol

Lindenbaum, as well as a file memorandum signed by

the Attorney General verifying his instructions to Mr.

Lindenbaum to sign his name on _ the original

authorization. (P. 481 of 505 F.2d)

On rehearing of the appeal, wherein the appellants

attempted to distinguish their case from Falcone, supra,

and U.S. v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40

L.Ed.2d 38, 1974, the appeals Court simply denied,

without any elucidation, the appellants’ motion for

rehearing.

D.Facts relative to Multiple punishment for a

single offense.

The proofs established that, at the time of the arrest

of Eddie Jackson, Courtney Brown, and three others, at

19315 Hubbell St., in Detroit, all of the narcotics

referred to in Counts 12 through 16 were seized.

Consecutive sentences were imposed on the appel-

lants, Brown, Jones, Bell, and Horne on the Counts |

through i2, and 13 through 16 by Judge Feikens.

The Appellants objected to their being punished in

this fashion, which represented, they claimed, the

imposition of more than one punishment upon them

for the same offense, in violation of the double

jeopardy provisions of the United States Constitution.

The Court of Appeals, on page 251 of 544 F.2d,

never reached this claim of the appellants; but, again

refused to rule upon it. The Court of Appeals claimed

that this objection was waived because it had not been

made prior to trial, and until the “government rested its

case.” (p. 251, of 544 F.2d)

While the matter of sentence could hardly be raised

prior to trial, in any event, it is fundamental that

Constitutional questions ought not be sidestepped by

Appellate Courts on puny procedural grounds; and that,

where the question is raised that the court’s action

involves an unconstitutional multiple sentencing for

what was in point of law and admitted fact but one

offense of possession, the Fifth Amendment, double

jeopardy question remains open for review and

consideration.

E. Review and Reconsideration of the Pinkerton

Rule.

The appellants directly challenged the Rule of

Pinkerton v. United States, 328 U.S. 640, 66 S.Ct.

1180, 90 L.Ed. 1489, 1946, whereby all of the

defendants, irrespective of their moment of entry into

the alleged conspiracy, were made criminally responsible

for each and every substantive offense which had been

committed by any of the conspirators, during its entire

lifetime.

The Pinkerton case, supra, was 30 years old when the

within appeal was announced, and certainly did not

consider the ex post facto implications it embraced, as

proscribed by Article 1, Section 9, Clause 3 of the

United States Constitution.

Yet the Court of Appeals said, on this point. which

is particularly important for appellants who were given

substantial committed fines on each of the substantive

counts involving the crimes committed by others

individually:

“Appellants contend that the Pinkerton Rule is

bad law, and that our court should not follow it.

Our court however, is constitutionally required to

follow the Supreme Court’s decision in Pinkerton,

and the cases following it, which have never been

over-ruled, or even questioned by the Supreme

Court.

The appellants urged that the Pinkerton rule was bad

law, and, consistent with the due process, and ex post

facto provisions of the United States Constitution, had

to be over-turned.

SUMMARY OF ARGUMENT

Petitioners made out a prima facie case of substantial

failure to comply with the provisions of the Jury

Selection Act of 1968, and, a fortiori, of denial of due

process in relation to the Grand Jury which indicted

them.

Although the Jury Clerk was required to make use of

the 1968 Voters Registration List, under the Jury

Selection Act, and had ample opportunity to procure

said lists for compilation of the Master Jury Wheel, she

made use of an outdated 1967, and prior, list in

compiling the Master Wheel from which the Grand Jury

which returned the indictment against appellants was

drawn.

Further, the Jury Clerk, in compiling the Master

Wheel, took official jury selection papers out of the

United States District Court Clerk’s Office, and to her

home; and additionally, allowed her sister to aid her in

compiling the Master Jury Wheel from which the Grand

Jury Panel was drawn.

a =

Therefore, the Grand Jury was empaneled in clear

violation of the Jury Selection Act of 1968, and the

District Court Plan, and the Fifth, and Sixth Amend-

ments to the Constitution of the United States; and the

indictment filed must be accordingly quashed.

By deliberate design, the Chief Prosecuting Trial

Attorney, and the Special Agent in charge of the

prosecution, converted the Grand Jury into their agent,

and, after arraignment on the indictment returned in

the case, took one of the named defendants, repre-

sented by counsel, before the Grand Jury which

returned the indictment, without notice to his counsel

of record, and there interrogated the defendant

regarding the substance of the charges already pending

against him and contained in the indictment; and

thereafter converted him into a government witness,

and used his evidence on the trial to convict the other

defendants.

In a similar situation, in United States v. Doss, 545

F.2d 548, decided 20 days subsequent to the within

case by the Sixth Circuit Court of Appeals, another

panel of that court announced that it is an abuse of

process, and an invasion of the restrictions upon the

government’s power, to take an already indicted

defendant before a Grand Jury to question him about

the case for which he stands indicted; and that such

action invalidates the trial affected by such tainted

activity.

The Petitioners argue that where testimony obtained

by Grand Jury interrogation of one of a number of

co-defendants was introduced as evidence at their trial,

their convictions must be barred because of prose-

cutorial conduct amounting to a denial of due process.

Cf. U.S. v. Mandujano, 425 U.S. 564, 48 L.Ed.2d 212,

96 S.Ct. 1768, on page 242 of 48 L.Ed.2d, 1976; Lawn

v. United States, 355 U.S. 339, 348, 2 L.Ed.2d 321,

329, 78 S.Ct. 311; McNabb yv. United States, 318 U.S.

332, 339, 87 L.Ed. 819, 823, 63 S. Ct. 608, 1942.

Petitioners contend that, under the supervisory

authority over the conduct of federal prosecutions, if

tainted information was used to convict them on trial,

they are entitled to either a new trial or dismissal of

the indictment, depending upon the circumstances most

appropriate. United States v. Valencia, 541 F.2d 618,

622, 1976, 6th Cir. |

And, petitioners further contend that where the

government uses the Grand Jury procedure to prepare

its case for trial, a conviction based on evidence so

procured cannot be sustained, and must be set aside.

Beverly v. United States, 468 F.2d 732, 743, Sth Cir.,

1972.

Petitioners argue that in the within case, the

government procured the testimony of Ruth Ann Burt

through an invasion of the attorney client relationship

of one of their co-defendants, and through taking the

witness Burt before the Grand Jury on June 6, 1972, to

question her regarding the events outlined in an

outstanding indictment, theretofore returned on Janu-

ary 4, 1972, where the express purpose of taking the

witness before the Grand Jury by the Chief trial

prosecuting attorney, and the special agent in charge of

the case, was to prepare the government’s case on trial,

and to “develop” a witness to be used on the trial of

the defendants-appellants.

Such an abuse of process bars the use of evidence so

tainted, and voids any convictions in which such

evidence was allowed to be used, for the reasons set

forth hereinabove in the next preceding section of this

summary of argument.

IV.

The Attorney General, in approving an authorization

for a wire tap, failed to comply with the provisions of

his own Rules, promulgated to outline the administra-

tive procedure to be employed by the Attorney General

in executing “‘all documents” relating to the assignment

by him, of duties or authorities. Petitioners contend

that wire tap authorizations must be issued in full

compliance with the provisions of Section 0.180, Title

28 C.F.R., and that, insofar as the Attorney General, in

this case, did not comply with his own administrative

Rules, the wire tap had in the case is void, and

suppression of all evidence deriving therefrom is

mandated.

At the time of the arrests of some of the appellants,

a single large quantity of narcotics was seized by the

arresting officers; and this quantity of narcotics was

broken up into five smaller quantities of narcotics, and

made the subject of 5 separate criminal counts in the

indictment. To wit—Counts 12, 13, 14, 15, & 16.

On sentencing of the appellants the trial judge

imposed committed fines and consecutive sentences

upon each of these counts.

Appellants claim that sentencing them five (5) times

for but one violation of the law contravenes the double

jeopardy provisions of the Fifth Amendment to the

United States Constitution, insofar as a person may not

be more than once punished for the same offense.

Appellants claim the Fifth Amendment requires

voiding the sentences and convictions imposed in

violation of this principle.

VI.

The Pinkerton case, of 30 years vintage, which

authorizes the punishment of all members of a

conspiracy for crimes committed by any one of its

members, irrespective of whether the person convicted

actually knew about the offense committed, violates the

ex post facto provisions of the United States

Constitution and due process as well; and especially

where the Court below found the petitioners guilty by

operation of principles of agency law, of offenses

requiring individual knowledge, and individual intent to

violate certain statutory crimes; and where, for some of

the appellants, their contact with the conspiracy

charged, on the very last day of its existence, could not

constitutionally validate their conviction of specific

intent offenses, committed prior to their association

with the perpetrators of those offenses.

Petitioners aver that the Court’s blanket conviction

of all the appellants of 14 various statutory offenses, in

the absence of any proof of their individual personal

involvement in those offenses, or knowledge of their

- 33

commission, or ratification of them, violates due

process; is at odds with the concept of guilt being

personal; and is rationally connected with no facts on

which an inference of guilt of specific intent crimes

could be lawfully premised.

Petitioners aver that Pinkerton, and its doctrines,

must be reconsidered, and over-ruled.

ARGUMENT ON THE LAW

AND REASONS FOR GRANTING THE WRIT

THE FAILURE TO COMPILE THE MASTER

JURY WHEEL FROM THE MOST RECENT

VOTERS REGISTRATION LIST READILY

AVAILABLE TO THE JURY CLERK, AS

DEFINED BY THE JURY SELECTION ACT

OF 1968, AND REQUIRED BY THE DIS-

TRICT COURT JURY PLAN, COUPLED

WITH THE REMOVAL FROM THE COURT

HOUSE BY THE JURY CLERK OF JURY

RECORDS BEING USED TO COMPILE THE

MASTER JURY WHEEL, AND THE ASSIST-

ANCE IN THE PROCESS OF THE SISTER

OF THE JURY CLERK, INVALIDATED

THE GRAND JURY SELECTED FROM

SAID MASTER WHEEL, AND THE INDICT-

MENT RETURNED BY SAID GRAND

JURY, AS A MATTER OF CONSTITU-

TIONAL LAW.

The Jury Selection Plan for the Eastern District of

Michigan was adopted on September 23, 1968 to

become effective 90 days therefrom, that is to say, on

and after December 22, 1968. (pp. 1980 to 1988 of

appendix)

The provisions of Title 28 U.S.C., sect. 1863, clearly

provide that the jury selection plan put into operation

in any District “must... comply with the provisions of

this title.”

The statute requires that the plan put into effect

must:

“specify whether the names of prospective jurors

shall be selected from the voter registration lists or

the lists of active voters of the political subdivision

within the district or division.”

The Plan adopted for the Eastern District of

Michigan, in paragraph three (3) thereof, clearly

provided:

Names of grand and petit jurors serving on or after

the effective date of this plan shall be selected at

random from the voter registration lists of all

political subdivisions within the relevant divisions.

Section 1869(c), of title 28 U.S.C., clearly defines

and limits the term, “Voter Registration Lists” to

mean:

“The official records maintained by State or local

election officials of persons registered to vote in

either the most recent state or the most recent

federal general election.”

The Congressional intent is stated in 1968 U.S. Code

Cong. & Adm. News, at page 1806, and it states:

The definitions of the terms “voter registration

lists’ and “lists of actual voters” in subsection (c)

and (d) are restricted to apply to either the most

recent State or the most recent Federal General

Election.”” Your committee intends that a General

election be understood as one in which Statewide

voting takes place, even if the candidates do not

represent all parts of the State. Thus, for example,

regular election for members of the House of

Representatives are “‘general elections” within the

meaning of the bill.

In Michigan, the August primary of 1968, at which

members of the House of Representatives were

nominated was the most recent State and Federal

election prior to the time set for the filling of the

Master Jury Wheel hereinvolved.

For, Section 168.534 of the Michigan Compiled Laws

provides, in very explicit language:

A general primary of all political parties... shall

be held in every election precinct in the State on

the Tuesday succeeding the first Monday in August

preceding every general November election, at

which time the qualified and registered voters of

each political party may vote for...U.S....

representatives in Congress...”

The registration lists for that election, are, by law,

completed and closed on the Fifth (Sth) Friday

preceding the day of such primary election. (Sect.

168.497 Mich. Comp. Laws) Under these statutes, the

primary election date was August 6, 1968; and the date

those lists were available was July /], 1968.

Accordingly, the only list of voters available to the

jury clerk for compilation of the Master Wheel to be

drawn under the Eastern District Jury Plan, was that

list of voters in the hands of the election officials on

July 1, 1968.

The proofs adduced upon hearing held in the District

Court established that the election officials could

furnish a computer run of the registration list within 24

hours, and that the costs of such run could, and would,

be waived for the federal government. (p. 225A, 233A)

The Master Wheel was ordered to be filled during the

period of August to December of 1968. Certainly,

where the registration list of persons registered to vote

in the most recent federal or state election was in

existence and in the hands of loca: election officials as

of July 1, 1968, fully a month prior to the time when

the judges of the district said the wheel was to be

filled, and fully six months prior to the operative date

of the plan, the failure to use the proper list

constituted a wilful and deliberate disregard of the

Congressional mandate and intent, and the letter of the

applicable law.

Every case to date, in which this issue has been

raised, until now, has stated, in substance, that, at the

time of the filling of the master jury wheel, the jury

clerk must use the most recent federal or state general

election registration list, unless there existed “no

alternative list readily and practically available.”

That is the clear-import of U.S. v. Guzman, 337 F.

Supp. 140, 145; 468 F.2d 1245, cert. den. 410 US.

937. That is the clear import of U.S. v. Blair, 470 F.2d

331; and of the District Court cases of US. y.

Deardorff, 343 F. Supp. 1033, 1042; and United States

v. Matthews, 350 F. Supp. 1103, 1110. Each of these

decisions insures that, at the time of the filing of the

Master Jury Wheel, the clerk must resort to the most

recent “official records” available in time to permit

compliance with the statutory language.

At the hearing of appellants’ motions to quash the

indictments, it clearly appeared that the Master Wheel

from which both grand and petit juries hereinvolved

was constructed and derived, was put together during

the August to December 1968 period, and that the Jury

Clerk responsible for its compilation took names from

either 1965 or 1967 copies of lists furnished her by the

Jury Commissioners of the Detroit Recorders Court. (p.

244A, 251A, 257A) No effort was made by the jury

' 37

clerk to obtain the 1968 registration lists from the

election officials.

In addition, ETHEL ROBISCOE, testified that the

jury clerk, JEANNE BURGE, not only took home

“records that belonged to the Court and were being

used to compile the master jury wheel,” (p. 296A) but

that while the wheel was being compiled, the

responsible clerk had her sister, who was not an

assistant court clerk, or a federal employee, come to

the federal building, on Saturdays to assist in the

compilation. (p. 278A, 279A) No testimony anywhere

denied these averments.

That testimony is worth reciting here:

(From page 278 of Appendix):

Q. All right, Now, then, you know of your own

knowledge that she took home work having

to do with the selection of that master panel.

A. Definitely.

Q. With her?

A. I saw her put them in her attache case, and |

went home with her. I would go home with

her everyday, to take the same bus, and that

case used to be so heavy that she could

hardly make it.

Q. Then she would bring that work back, and

whatever happened to it while she was at

home, you wouldn’t know?

No.

Did she ever tell you that she had anybody

else working with her on the selection

process?

A. She told me that she had somebody come in

to, down here to work. She said she would

come down often on Saturday mornings and

somebody would unlock the door, or the

guard would let her in and she had her sister

coming in and working with her. And | asked

her at the time if she was employed here, and

she said, “No”, she would come down and

help her.

She was not a jury clerk?

No, sir.

Not employed by the Clerk?

No, sir.

And then, from the bottom of page 282A of the

appendix:

Q. Did you ever talk to her about taking the

work, the jury lists home?

A. She had to do the work at home— she didn’t

say she had to, she said she was doing the

work at home.

Did you ever report that to anybody in

authority?

Yes, sir.

Who did you report it to... ?

Mr. Johnson.

And what, if anything, occurred when you

reported it to Mr. Johnson?

I think he said, “Well, it would stop.” And, I

asked him if it was allowable to take material

out of the jury office there and out of the

building into your home, and he said, “No.”

He said then, “It will stop,” but I think she

did stop it after that...1 don't recall her

taking her attache case out any more.

POP

P OPOP

Added to this testimony was that of Mr. Johnson,

the Court Clerk for eight and one half years, who said,

on page 296A of the appendix:

Q....As a matter of fact, Mrs. Robiscoe told you

did she not, that Jeanne Burge was taking home

records that belonged to the Court and were being

used to compile the master jury wheel?

A.I believe she brought that up, yes.

In light of the foregoing testimony, there can be no

doubt but that the appellants proved tiat the Jury

Clerk had removed critical jury selection records, and

none other, from the Clerks office during the

compilation process, and that she had had her sister,

who was not a clerk working on those records.

In any event, there was never offered any evidence to

the contrary by the government. In fact, throughout,

the government has brazenly admitted the occurrence

and suggested its propriety.

The government attorney’s argument plainly admits

an appreciation for the proof of those facts, note the

language of Laurence Leff on page 108 of the trial

transcript of May 15, 1972 (Not included in the

appendix):

I think the attempts to find some fault, some

impropriety in the conduct of the jury clerks and

the employees have fallen far short of their mark.

I see nothing, I can find nothing in the

Statutes... that bars a diligent worker from taking

home paper work and doing typing at home, with

the knowledge of the Court...”

The government’s attorney, elected however, quite

understandably not to comment upon the second prong

of the defendants’ objections, namely, that the jury

clerk had brought an unauthorized person, her sister,

into the jury selection process, and had _ thereby

irreparably tainted it.

Long ago, in 1915, a federal court in New York had

to throw out a jury panel because a U.S. Attorney, not

authorized to be involved in the Jury Selection process

became so involved, along with a secretary needed to

assist in the compilation.

In voiding the panel, the Court said, in United States

v. Murphy, et al., 224 Fed. Reptr. 554, on page 562:

It is evident from the reading of the statute that

the selection of names to go in the jury box is to

be made by the commissioner of jurors and by the

clerk of the court....No other person or official

has the right to participate in such selec-

tion.... There should be no question that the

selection was made by those in whom the power is

vested. To this end statutory directions as to the

selection of jurymen should be followed in all

essentials, unless they relate to mere form of

procedure, and even in such cases a departure

therefrom .. . has been fatal to the entire panel.

In criminal cases, especially, it is all-important that

all legal safeguards provided by the Legislature of

the State, if we are in State courts, or by acts of

Congress, if we are in the United States Courts, be

observed.

And, on page 564, the Court said:

But, behind and underlying all is the general

principle, universally recognized, that the courts

cannot justly or safely permit or sanction any

participation by unauthorized persons...in the

selection of names of persons to go on the jury

lists, or in the jury boxes, from which panels for

service are to be drawn, no matter how high-

minded and conscientious the purpose of the party

participating ..., Courts cannot stop to inquire in

each case whether such participation, however

indirect, has been harmful in a given case. The

only safe mile is to prohibit and condemn it

absolutely.

To like effect is U.S. v. Roemig, 52 F. Supp. 857,

861, DC ND Ia, 1943; and Glasser v. United States, 315

U.S. 60, 85, 86 L.Ed. 680, 62 S.Ct. 457. Section

1863(b)(1) and 1863(b)\(3) of Title 28 U.S.C. require

that the selection process be carried out by the “‘clerk”’

of court. The jury plan, in paragraph 4, thereof,

- 4)

requires the “clerks” to make up and “‘maintain”’ the

Master jury wheel.

“Clerk” is defined in Section 1869, Title 28 U.S.C.,

as meaning ‘“‘a Clerk of the District Court of the United

States, or any authorized deputy clerk.”

Neither the Act, nor the Plan vests any authority in

anyone other than a “Clerk” to interfere in the

compilation of the Master Jury Wheel..What was done

here was plainly fatal to the drawing of a master wheel,

and any grand jury selected from the tainted wheel is

unlawfully selected and void.

On page 5 of the slip opinion filed by the Court of

Appeals herein, the Court stated:-

‘“‘We decided these identical issues in United States

v. McNeal, 490 F.2d 206, 6th cir., 1973, cert.

denied, 419 U.S. 1020 (1974). At the District

Court level, the parties in McNeal stipulated that

precisely the same challenges to the grand jury

venire had already been submitted to~ Judge

Feikens and to Judge Pratt in the Kilpatrick and

Jackson cases. The parties in McNeal agreed to be

bound at the district court level by the rulings of

Judge Pratt and Judge Feikens, and in accordance

with their rulings, the district court denied the

motion to quash the indictment in McNeal. On

review we held that “there was no substantial

failure to comply with the provisions of the Act.”

490 F.2d 207. We hold that our determination in

McNeal is dispositive of these appeals as well, since

not only the same issues but also the same facts

giving rise to them are before us again.”

The appellants claim that the issues raised in United

States v. McNeal, 490 F.2d 206, 6 Cir., 1973, cert. den.

419 U.S. 1024, 1974, and decided in that case can in

no way bar them from a hearing thereon in the within

appeal. When the Court of Appeals stated, as it did, on

page 5 of its slip opinion, that “the parties in McNeal

agreed to be bound by the rulings of Judge Pratt and

Feikens,” that comment is one hundred percent

erroneous.

The parties in this case, made no such Stipulation.

Rather, McNeal, who was a sole defendant, in his case

stipulated that me would be bound by the rulings of

Judge Pratt and Feikens which might be made in the

Jackson case on the jury quashal issue.

That stipulation could in no way be binding upon

the appellants here. They made no such commitment.

They did not agree to relinquish their rights to

challenge, on their own independent appeals, any error

which might be made by Judges Feikens and Pratt.

Those defendants had a sacred, inviolate right to make

their own appeals; and those rights are personal to these

appellants, and can not be affected by anything

McNeal, or any other litigant might do in relation to his

Own separate cause.

Further, the Supreme Court denied the McNeal

application for Certiorari, because his petition was

untimely filed, on the 90th day, under a misapprehen-

sion regarding the 30 day limit which applied in

criminal rather than civil cases.

But, even if it had been timely filed, McNeal’s denial

of certiorari did not establish the law of this case, nor

amount to res judicata on the points raised. Hughes

Tool Co. v. Trans World Airlines, 409 U.S. 363, 34

L.Ed.2d 577, 99 S.Ct. 647, 1973, on page 581 of 34

L.Ed.2d, footnote #1. A denial of certiorari imparts no

implication or inference concerning the merits of a case.

Maryland v. Baltimore Radio Show, 338 U.S. 912, 919,

94 L.Ed. 562, 70 S.Ct. 252 (Frankfurter, J.). United

States v. Kras, 409 U.S. 434, 34 L.Ed.2d 626, 93 S.Ct.

' 43

631; Farr v. Pitchess, 409 U.S. 1243, 34 L.Ed.2d 655,

93 S.Ct. 593.

Moreover, the Sixth Circuit, has never passed upon

the issues raised by the appellants appeal herein. The

fact that they may have been presented in the McNeal

appeal, has nothing whatever to do with what the Sixth

Circuit elected to rule on. Specifically, the Sixth

Circuit, in McNeal never uttered a word passing upon

McNeal’s challenge that the jury selection process had

been invaded by private persons. Their bare assertion

that “there was no substantial failure to comply with

the provisions of the Act,” is meaningless, and cannot

operate as a catch all to prevent any further inquiry

into the specific manner in which the jury selection

process violated the Fifth Amendment of the Constitu-

tion. Nowhere in the McNeal decision was any attention

whatever paid to the claim that the taking of jury

papers home by a jury clerk, violated not only the jury

selection act, but also other provisions of federal law,

and the Constitution as well.

Moreover, and even worse, the Sixth Circuit, in

McNeal plainly refused to acknowledge that the jury

selection process had been invaded, and said, in the

very face of contrary facts, on page 207 of 490 Fed.

2d, “there is no evidence she played any role in

choosing names for the jury wheel.”’ Any fair reading of

the McNeal decision makes clear that the Court is

obligated in the within cause to clearly and plainly pass

upon the due process claims regarding the jury selection

defects, as well as the manner in which those defects

relate to the Sixth Amendment right to a fair trial; and

that the Supreme Court is not barred from reviewing

what has occurred in the District and Appellate Courts.

Few issues are of more transcendant nature than

question of the proper method of selection of Grand

and Petit Jury Panels.

The abuses which have occurred in the within case,

are grievous. They are not such as can be lightly passed

over. The sentences imposed upon these numerous

petitioners by the District Court were as serious as life

sentences—they in fact, represent deprivations of liberty

far greater than would be found in most murder cases.

A decent regard for human liberty, requires that the

Supreme Court review the matters herein raised.

If Glasser v. United States, supra, which absolutely

proscribes private participation in the jury selection

process is no longer the law, then it would seem the

Supreme Court ought to say so.

On the other hand, in this case, the Court of Appeals

denied relief from Pinkerton v. United States, 328 U.S.

640, 1946, on the basis that it was “constitutionally

required to follow the Supreme Court’s decision...”

(Page 39, slip opinion, appendix) yet, did not feel

inclined to follow Glasser v. United States, in regard to

its declarations on the jury selection process.

Thus, the Sixth Circuit has followed the Supreme

Court’s rulings when it suited their purposes, and has

disregarded their rulings when that suited their

purposes. Such arbitrary disinclination to apply the law

is itself a denial to the appellants of their right to a

review, and a fair review; and this type of thing will

continue on and on, unless the Supreme Court, every

now and then, grants certiorari, to provide helpless

litigants with a remedy for their helplessness. And that

reason is, beyond any question, the most important

reason why certiorari should be granted in the within

case, on this point raised by petitioners. The McNeal

opinion, as anyone who reads the English language can

plainly see, touches only upon the Jury Selection Act,

not the Fifth Amendment, or any part of the

Constitution,

It should be helpful if the government would explain

just how McNeal, which doesn’t say one thing about

the Fifth Amendment, can be used to bar the

appellants herein from claiming that the activities of the

jury clerk violated their rights under the Fifth

Amendment, and other provisions of the Constitution

of the United States.

These defendants-appellants haven’t stipulated to be

bound by the ruling in McNeal. They have an

independent personal right to have their objections

ruled upon by the Court to which they have elected to

make their appeal. |

These appellants do not ask the Court to “re-publish

part of its earlier opinion” since no part of the earlier

opinion deais with the question of whether the actions

of the jury clerk violated the United States Constitu-

tion.

It was more than unfair for the Court of Appeals to

decline to firmly answer the question raised by these

petitioners as to whether the clerk’s activities violated

the Constitution, under the circumstances here apper-

taining, where there is no decision of the Sixth Circuit

declaring upon that issue, and there can be no collateral

estoppel of these appellants by virtue of such prior

judicial precedent.

As pointed out by the Supreme Court in Sanders y.

United States, 373 U.S. 1, 10 L.Ed.2d 148, 83 S.Ct.

1068, denial of relief in a prior proceeding can only be

given effect in a subsequent one if the prior decision

contained an adverse holding “ton the same grounds”

raised in the subsequent case. (p. 16 of 373 US., p.

161 of 10 L.Ed.2d) “‘The prior denial must have rested

on an adjudication of the merits of the ground

presented in the subsequent application.” Further the

Supreme Court pointed out, “Even if the same ground

was rejected on the merits of a prior application, it is

open to the applicant to show that the ends of justice

would be served by permitting the redetermination of

the ground.”

The issue of the clerk involving her sister in the jury

selection process, or taking jury records out of the

court house to her home, as demonstrated by the

record in the within appeal, has never been ruled upon

by any appellate court; but the Fifth Circuit, in United

States v. Davis, 546 F.2d 588, 1977, has recently held,

on page 591 that:

“The day has passed when all the work of the

Clerk’s office could be done by its personnel,

normally performing each mechanical step of every

routine task.”

This conflict between Circuits, on a matter of such

recurring importance between and among them, requires

allowance of certiorari to bring clarity in an area

affecting every litigant before the Courts.

- 47

Il.

THE UNITED STATES ATTORNEY’S

TAKING OF THE WITNESSES NABORS

AND BURT BEFORE THE GRAND JURY

AFTER INDICTMENTS HAD BEEN RE-

TURNED AGAINST THE PETITIONERS,

FOR THE PURPOSE OF INQUIRING INTO

THE MATTERS CHARGED IN THE IN-

DICTMENT, CONVERTED THE GRAND

JURY INTG THE GOVERNMENT TRIAL

ATTORNEY’S AGENT, AND WAS AN

ABUSE OF PROCESS SO GRAVE AS TO

INVALIDATE ANY CONVICTIONS

BROUGHT ABOUT BY THE USE OF

EVIDENCE DERIVING FROM SUCH

GRAND JURY INTERROGATION, AND

THE SUMMONING OF THESE WITNESSES

‘TO APPEAR BEFORE THE GRAND JURY

CONSTITUTED PROSECUTORIAL MISCON-

DUCT AMOUNTING TO A DENIAL OF

DUE PROCESS.

In May of 1976, the Supreme Court, in United States

v. Mandujano, 425 U.S. 564, 48 L.Ed.2d 217, 96 S.Ct.

1768, made clear, on p. 220 of 48 L.Ed.2d, that:

“... The Grand Jury’s mission, is after all, to

determine whether to make a presentment or

return an indictment.”

In that case, which dealt with whether a perjuror

before a Grand Jury could object to being questioned

in the absence of Miranda warnings, the Court held

such warnings inapplicable, since the Sixth Amendment

right to counsel did not come into play until a person

appearing was a defendant in a criminal case. (p. 225,

of 48 L.Ed.2d)

In a concurring opinion, Mr. Justice Brennan pointed

out, on page 230 of 48 L.Ed.2d:

“We must note that the nature of the grand jury is

of course primarily inquisitional rather than

adversarial: the grand jury is “a grand _ in-

quest, ... with powers of investigation and inquisi-

tion.”

On page 233 of 48 L.Ed.2d, the Court plainly stated:

“It is clear that the government may not, in the

absence of an intentional waiver, call an indicted

defendant before a grand jury, and there inter-

rogate him concerning the subject matter of a

crime for which he already stands indicted. Lawn

v. United States, 355 US 339, 2 LEd2d 321, 78

SCt 311, 1958.... The Fifth Amendment requires

suppression of any statements of the accused that

were so obtained.

Most importantly, the Court held, that while the

public has a right to every man’s evidence, citing U.S. v.

Nixon, 418 U.S. 683, 709, 41 L.Ed.2d 1039, 94 S.Ct.

3090, 1974, that right “must yield in situations risking

vast potential for abuse in the absence of further

safeguards calculated to preserve the policies underlying

our adversary system.” (p. 233, 48 L.Ed.2d)

The Court further said, on page 233 of 48 L.Ed.2d:

There can be no doubt that sanctioning unfettered

discretion in prosecutors to delay the seeking of

criminal indictments pending the calling of

criminal suspects before grand juries to be

interrogated under conditions of judicial com-

pulsion runs the grave risk of allowing “the

prosecution (to) evade its own constitutional

restrictions on its power, by turning the grand jury

into its agent.” (U.S. v. Mara, 410 US 19, 29, 35

LEd2d 99, 93 SCt 774, 1973).

Finally, on page 242 of 48 L.Ed.2d, Mr. Justice

Stewart, pointed out that only because the grand jury

testimony was not made use of upon the trial of the

' 49

accused he would permit a conviction for perjury; but,

the clear implication of his language was that, where

testimony adduced before a grand jury, under circum-

stances where a prosecutor is using the grand jury as his

agent, is offered on a prosecution, a conviction

obtained cannot stand, because the prosecutorial

misconduct, under these circumstances, amounts to a

denial of due process.

In the within case, the record is clear, and

undisputed, that the witness Nabors was arraigned as a

defendant on the very indictment under which the

convictions here contested were had.

As pointed out hereinabove in the Fact Statement

B-1, Nabors was represented by privately retained

counsel, from his arraignment on January 7, 1972, until

January 25, 1972, when, without notice, or hearing,

other counsel was appointed by the Court.

While Milton Henry was attorney of record, and

before any such appointment was made, the trial

attorney assigned to handle the over-ali prosecution,

ATLEE WAMPLER, and the S/A in charge of the case,

took the defendant Nabors before the Grand Jury, and

had him testify to facts bearing on the outstanding

indictment. They asked about other co-defendants;

sought specific information regarding the claims con-

tained in the indictment; sought the identification of

photographs of co-defendants. Then, Nabors appeared

as a witness for the prosecution, on the trial of the

petitioners. The statement of facts appended herein-

above, with references to the trial record, establishes

that the sole questioning of Nabors before the Grand

Jury was aimed at eliciting information from him

regarding the subject matter of the charges contained in

the outstanding indictment, of which he was a part.

In like vein, although she was not a defendant, the

witness Burt, was taken before the Grand Jury on June

6, 1972, by the same two government prosecutorial

officers, to testify regarding her knowledge of the

events described in the indictment. She _ thereafter

repeated her testimony upon the trial of the petitioners,

substantially repeating exactly what she had told the

grand jury.

S/A GARIBOTTO admitted that his purpose in

calling the witness Burt before the Grand Jury was to

“get the case (represented by the indictment) ready for

trial,” His statement contained on page 1534A of the

record to the effect that “‘All | was doing was making a

witness that I felt the U.S. Attorney would prepare for

trial available,” leaves no doubt of the purpose of

calling these persons before the Grand Jury.

And, such an admitted use of the Grand Jury fatally

taints all the evidence obtained thereby; and convictions

made possible through the use of such evidence cannot

be sustained, within the meaning of due process of law.

In the Fifth Circuit, in the case of Beverly v. United

States, 468 F.2d 732, Sth Cir., 1972, it was clearly

decided that the Grand Jury cannot be used by the

government to prepare a pending case for trial.

In the within case, notwithstanding the expressions

of S/A GARIBOTTO that he and ATLEE WAMPLER

were preparing their case for trial, the Court of Appeal

for the Sixth Circuit declined to vacate the petitioners’

convictions on the ground that United States v. Doe,

455 F.2d 1270, 1274, Ist Cir., 1972, precluded the

“policing of grand jury proceedings in any detail.”

Yet, less than a month after denying the petitioners

relief from their convictions, the Sixth Circuit, in the

case of United States v. Doss, 545 F.2d 548, announced

that the government may not “use the grand jury as a

discovery instrument in a case where an indictment has

already been handed down, and the case is awaiting

trial.”” (p. 550 of 545 F.2d)

Further, the Court said even more definitely, in that

case:

“When a person under our system of law has been

indicted for crime, the government has no more

right to call him before a grand jury and question

him about that crime than it has to call an

unwilling defendant to the stand during trial of the

case. U.S. v. Lawn, 115 F Supp 674, 677, (SDNY,

1953) (p. 551 of 545 F2d)

Even more, the Court in Doss held that:

“When a substantial purpose of calling an indicted

defendant before a grand jury is to question him

secretly and without counsel being present... . the

‘ proceeding is an abuse of process which violates

both the Sixth Amendment and the due process

clause of the Fifth Amendment.”

And, that is what we have here.

The government had absolutely no right to talk to

Nabors without first notifying his attorney of record.

This action was a deliberate disregard of all principles

of fair play and justice, inherent in due process.

In McNabb v. United States, 318 U.S. 332, 87 L.Ed.

819, on pp. 339 of 318 U.S. (p. 823 of 87 L.Ed.), we

read:

“It is true, as the petitioners assert that a

conviction in the federal courts, the foundation of

which is evidence obtained in disregard of liberties

deemed fundamental by the constitution, cannot

stand.”

And, on page 343 of 318 U.S. (p. 825 of 87 L.Ed.):

“The purpose of this impressively pervasive

requirement of criminal procedure is plain. A

democratic society, in which respect for the

dignity of all men is central, naturally guards

against the misuse of the law enforcement

process.”

As in McNabb the court said the circumstances under

which the statements admitted in evidence were secured

revealed a plain disregard of the duty enjoined by

Congress upon Federal Law Officers, so here the

testimony of Nabors and Burt; procured through an

abuse of the Grand Jury process cannot support the

convictions of any of the petitioners.

And that principle seems to have been recognized

and applied by the Sixth Circuit in their case of United

States v. Valencia, 541 F.2d 618, 6th Cir., 1976, where

the Court threw out convictions entered against all

conspirators, because of the use of evidence procured

through a violation of the attorney client privilege.

In light of these cases and the apparent conflicts

between and among the courts, and within the same

circuit, the Supreme Court should consider granting

certiorari in favor of the petitioners.

- $3

Il.

THE SECRET MEETING HELD BY THE

GOVERNMENT TRIAL ATTORNEY WITH

GEORGE BLAIR, A DEFENDANT, AND

HIS WIFE, RUTH ANN BURT, CONSTI-

TUTED PROSECUTORIAL MISCONDUCT

REQUIRING SUPPRESSION OF HER

TESTIMONY ON TRIAL, WHEN TAKEN IN

CONJUNCTION WITH THE GOVERN-

MENT’S USE OF HER BEFORE THE

GRAND JURY AFTER THE RETURN OF

THE INDICTMENT IN THE CASE, AND

THE RIGHTS OF ALL THE DEFENDANTS

TO THE EFFECTIVE ASSISTANCE OF

COUNSEL PROSECUTORIAL FAIRNESS.

The meeting of U.S. Attorney Atlee Wampler, S/A

GARIBOTTO, and other special agents, with the

appeilant GEORGE BLAIR, as described on pages 1477

to 1517 of the appendix, without prior notice to, or

consent from defendant BLAIR’s retained attorney; and

the inclusion of a confidential informant among the

indicted defendants, as a sham defendant, are each

“shocking” to the concept of due process, and fair

play.

It need hardly be reiterated that a prosecutor’s duty

is to serve the interests of the state in securing the

conviction of those who violate the law; and, on a

concomitant parity with such duty is the duty to

conduct his office so as to always insure justice for

those subjected to prosecution. His paramount duty is

to seek justice—not to convict. This duty he owes the

accused is affirmative. McDonald v. Musick, 425 F.2a

373, (9th Cir., 1970); Canon 7, Code of Professional

Responsibility; ABA Canon 5; Berger v. U.S., 295 U.S.

78, 79 L.Ed. 1311, 55 S.Ct. 641, 1935; Accord, ABA

Opinion 150, 1936.

The meeting arranged by Atlee Wampler, who was an

United States Special Justice Department Attorney

assigned to Detroit’s Organized Crime Office, and was

charged with responsibility for prosecution of the

defendants, with GEORGE BLAIR, who was one of the

defendants, and with several other DEA Agents on the

case, in the secrecy of the RAMADA INN, near Metro

Airport, in the absence of counsel, violated, in every

respect, the constitutional rights of all the defendants in

the case the effective assistance of counsel. This was no

ordinary case, but a conspiracy case, in which

information against BLAIR could become incriminating

as against others connected in any sense with him. This

fact was surely known to Atlee Wampler when he acted

to participate in setting up such a meeting.

The alleged consent, or waiver of counsel by BLAIR

is not significant, or determinative of the issue, which

must focus not upon BLAIR’s willing participation, if

any, but upon the patent wrong of the chief

prosecuting attorney for the government in getting his

case ready for trial. BLAIR’s waiver of counsel is

immaterial to the constitutional requirement of the

presence of counsel, or notice to him, prior to engaging

in confrontation with BLAIR, or any of the other

defendants for that matter. Judge Friendly, in United

States v. Bennett, cca 2 1968, 409 F.2d 288, 290,

graphically illustrated the function of counsel for a

defendant, in words of particular appropriateness here:

Counsel is rather to be provided to prevent a

defendant himself from falling into traps devised

by a lawyer on the other side and ¢o see to it that

all available defenses are preserved.

—

The concept of the right to the effective assistance of

counsel embodied in the Sixth Amendment requires at

the very minimum the notification of retained counsel

by opposing counsel whenever a represented defendant

contacts the opposing counsel. In State v. Britton, 203

S.E.2d 462, Supr. Ct. of W. Va., the Court roundly

condemned such surreptitious conduct by the prosecu-

tor. Language from that case needs repeating:

“To insure a fair trial, a prosecutor should not

counsel with the accused who is represented by his

own attorney, in the absence of that attorney,

concerning aspects of the pending prosecution

against the accused.”

By meeting with the defendant BLAIR, without

notice to his retained attorney, Atlee Wampler became

conveniently aware of not only BLAIR’s relations and

“activities; but of BLAIR’s relations with other de-

fendants, and also with the affairs of other represented

defendants as well. This secret confrontation brought

forth and produced information from BLAIR and his

common law wife, RUTH ANN BURT, upon whose

testimony the government finally came to rest its entire

conspiracy case at the trial.

This was the fear of the Britton court; for here is

what that court said:

“To have gained some knowledge from the accused

in advance of trial could have provided the

prosecutor with a possible advantage to overcome

the defense....it cannot be said with certainty

that the information volunteered by Britton to the

prosecutor in his private law office did not

contribute to the defendant’s conviction.”

The acquisition of the testimony of RUTH ANN

BURT was irremediably tainted by and connected with

the unlawful and proscribed meeting of the defendant

BLAIR and the ivstice department’s Atlee Wampler. In

that meeting, the issue of immunity from prosecution

for the defendant BLAIR was conveniently exploited

by the government, where the constitution required

that the government follow the only available ethical

route prior to putting its hand in the cookie jar, or

honey pot.

Mr. Wampler was 4 member of the bar, who ignored

the bar’s command. It would not be amiss to refer to

his actions as totally unscrupulous. He knew better than

to engage in a secret parley with a defendant and his

wife, without prior notification of retained counsel. It

is difficult to accept the view that this inattention to

professional responsibility, and omission to observe the

Canons of Ethics was accidental.

Wampler was a special justice department lawyer

assigned from*Washington, D.C. to the Organized Crime

section of the Department of Justice. He traveled from

one end of the country to another. He had participated

in some of the most highly publicized wire tap cases in

the country. He had access to legal libraries, and aides,

and assistants in his legal researches. It can only be

presumed that by omitting to follow the mandate of

the Canons, he could acquire a witness to assist in

prosecuting the other defendants. He felt that without

notice to counsel he would be able to tap a fruitful

well and buttress his case on trial. He saw, RUTH ANN

BURT, the common law wife of GEORGE BLAIR as a

more important by-product of the meeting with the

defendant BLAIR. He knew that BLAIR wanted

immunity in exchange for his wife’s testimony.

Knowing all this in advance, he was required to notify

the defendant’s attorney of the possible meeting to

discuss immunity. This was not done. Instead he held

' $7

the meeting, and acquired information from BLAIR and

RUTH ANN BURT. He elected not to use BLAIR;

possibly because he knew that on cross-examination,

the circumstances of his procurement would have been

revealed. He then took RUTH ANN BURT before a

grand jury to testify; and, the interesting thing is that

her testimony was not needed to obtain an indictment

against any of the defendants, since they had all been

indicted as of January 5, 1972. His purpose in taking

her before the Grand Jury was to use the Grand Jury as

a means of getting the information he had acquired at

the Ramada Inn Meeting in the form of testimony, and

under oath, so that the witness BURT, would then be

unable, or unlikely, to change her mind or testimony,

under fear of prosecution for perjury. The witness

could not lawfully be taken before the Grand Jury to

buttress an already pending indictment. This was a

misuse of the grand jury, so wholly in character with

the other acts of misconduct and over-reaching which

permeate the case.

The government’s action in taking RUTH ANN

BURT before the Grand Jury, as a means of putting

information acquired on record under oath, and as a

means of procuring a witness for trial, is destructive and

violative of the historical purposes of the grand jury,

and of the fifth and sixth amendments as well. (Cf. pp.

1498, 1592, 1503 appendix) United States v. Dade, ca

2, 1964), 330 F.2d 316.

The Sixth Circuit’s claim that grand jury proceedings

cannot be policed in any detail, relying upon U.S. »v.

Doe, 455 F.2d 1270, Ist Cir.; and Univ. Mftg. v. U.S.,

508 F.2d 684, 8th Cir.; and Beveriy v. U.S., 468 F.2d

732, Sth Cir. (page lla hereof) poses a conflict among

the circuits which only the grant of certiorari can

remove.

IV.

THE ATTORNEY GENERAL’S NON COM-

PLIANCE WITH HIS OWN ADMINISTRA-

TIVE RULES IN AUTHORIZING THE

FILING FOR AN INTERCEPTION ORDER

RENDERED ANY INTERCEPTION ORDER

SUBSEQUENTLY OBTAINED INVALID,

AND REQUIRES SUPPRESSION OF ANY

WIRE INTERCEPTIONS.

The Court of Appeals, on page 24 of the slip

opinion, appendix hereto, without any citation of

authority at all stated that Section 0.180 of 28 C.F.R.

“is not applicable to delegations of the special authority

over applications for interception orders, or the

Attorney General’s personal approval of an application

for an interception order.”’ The Court then went on to

suggest that United States v. Falcone, 505 F.2d 478,

3rd Cir., 1974, cert. denied, 420 U.S. 955, 1975, stood

for the proposition that even an oral, verbal approval

by the attorney general would suffice to validate

approval of an interception order.

This writer does not read Falcone to suggest such a

notion. Falcone was a case in which John Mitchell’s

name had been signed by his executive secretary, Sol

Lindenbaum, on his express direction; and it was one in

which the Attorney General filed a supplemental

memorandum to sign his name on the original

memorandum of authorization.

As one reads that case it appears that the original

order of authorization was facially sufficient, but that

someone determined that the signature of John Mitchell

had been signed by his executive secretary. The critical

testimony in Falcone was that the Attorney General

indicated he had approved the application, but had

' $9

merely authorized someone else to sign his name on the

memo. That is entirely different from a situation, such

as we have here, where there is no document signed by

John Mitchell, and no affidavit, evidencing his approval

of the application for the wiretap; and further where

there was timely objection to the manner of approval.

Falcone doesn’t deal with the Administrative Pro-

cedure Act; and neither do the cases of U.S. v. Vigi,

515 F.2d 290, 6th Cir.; and U.S. v. Acon, 513 F.2d

513; or U.S. v. Becker, 461 F.2d 230, in all of which

cases, the approval of the Attorney General remained

uncontested.

The Rule guiding the Attorney General, promulgated

at 0.180, Title 28 C.F.R. plainly requires that all

“documents relating to the delegation of authority,

functions, or duties by the Attorney General, shall be

designated as orders and issued only in a separate

numbered series.”

It is certainly obvious that the Attorney General’s

grat of authority to a United States Attorney to apply

for a wire tap is a “delegation of authority,” as well as

a “delegation of a duty.”’ The law says ‘“‘all documents

relating to such a delegation by the Attorney General,”

must be designated as an Order, and numbered.

The District Court had no basis whatever for saying,

as it did on p. 67S5App, “The memorandum here was a

designation specifically authorized under Section

2516(1), Title 18 U.S.C., and was not a delegation of

authority as contemplated by Section 0.190.”

The memo questioned here, on its face states that it

is “in regard to your recommendation that authority be

given to Atlee Wampler to make application ...for a

wire tap.’ That authority, now said to have been

exercised by the Attorney General himself, when

implanted on any writing clearly becomes a “docu-

ment,” related to the assignment, by the Attorney

General, of authority to an otherwise impotent person,

to apply for a wiic tap. Clearly this type of

authorization, emanating from the only person qualified

to make it, was within the intended ambit of Section

0.180, Title 28 C.F.R.

When Congress enacted the Wire tap sections of the

Omnibus Crime and Safe Streets Act, it was charged

with knowledge of the existence of Section 0.180, Title

28 C.F.R. Congress, itself, had previously passed

Section 552(2)i), Title 5 U.S.C., requiring all agencies,

as they defined that term, to index any “order” to be

“used’’ against any party. There is no reason whatever

to believe that Congress, in enacting Section 2516(i),

intended to exempt the Attorney General from the

operations of Rules and Laws already on the books. If

Congress had intended this result, it would have to

plainly state that to be the case.

All statutory sections must be read in harmony to

give full effect to all Congressional statutory expres-

sions, as well as duly approved rules adopted in

pursuance to a Congressional grant of authority.

His own adopted Rules, and those of the Federal

Administative Procedure Act, limit his hand in that

regard. His rules, and particularly the rule found at

Section 0.180, Title 28 C.F.R. declare:

All documents relating to . . . the assignment... or

delegations of authority, functions, or duties by

the Attorney General... shall hereafter be desig-

nated as orders and shall be issued only by the

Attorney General in a separate numbered series.

Classified orders shall be identified as such,

included within the numbered series, and limited

to the distribution provided for in the order...

—fS

That Rule was adopted under the Rule making

limitations of Section 552(2)i), of Title 5 U.S.C. That

section mandates that before any order be “relied on,

used, or cited as a precedent against any party” it be

indexed and either made available to the party or

published.

The Attorney General has never signed, numbered, or

indexed any order with reference to either of the wire

taps in the within case; and accordingly no claim can be

made by the government that he ever acted in relation

to either of the wire taps involved.

The settled administrative rule of law is that

administrative officers must act within the limits of

their own rules. Such rules are binding on a public

agency as well as on those with which it deals. N.Y.

Telephone Co. v. U.S., 56 F. Supp. 932; Amer. Brdcstg.

Co. v. FCC, 179 F.2d 437; Wilson v. Watson, 309 F.

Supp. 263, affd. 422 F.2d 866.

A Rule duly adopted acquires the force and effect of

statute law, and in fact, the Rule becomes an integral

part of the statute under which it was adopted:

Sheridan-Wyoming Coal Co. v. Krug, 172 F.2d 282

Paul v. U.S., 371 U.S. 245, 9 L.Ed.2d 292, 83

S.Ct. 426.

Under no conceivable basis- therefore could the

goverment offer, over defense objections, a memo-

randum containing an initial claimed to be the Attorney

General’s, as evidence of his act of approval of an

authorization for wire taps directed against them. His

act, if it occurred at all, had to be manifested in the

manner prescribed by his and the federal government’s

rules, and in no other way. Judicial review is limited to

the Agency’s administrative record alone. Hill vy.

Kennedy, 310 F. Supp. 455, [illegible] see also, Wilson v.

U.S., 335 F.2d 788, 799.

THE SIMULTANEOUS POSSESSION OF

CONTROLLED SUBSTANCES IS PUNISH-

ABLE ONLY ONCE AS A POSSESSION OF

DRUGS: AND MAY NOT, BY _ SUB-

DIVISION OF A LARGE QUANTITY OF

DRUGS INTO SMALLER AMOUNTS BE

MADE INTO SEVERAL CRIMES FOR

WHICH SEVERAL PUNISHMENTS MAY BE

IMPOSED.

The government in Counts 12, 13, 14, 15 and 16 of

the Indictment charged the appellants with the

possession with intent to distribute, in violation of

§841(a)(1), Title 21 U.S.C., of the following quantities

and types of controlled substances:

Count 12—659.66 grams of cocaine

Count 13—681.8 grams of heroin

Count 14—45.3 grams of heroin

Count 15—14.66 grams of cocaine

Count 16—2589.93 grams of heroin

The proofs offered by the government established

that all of the drugs represented by the charges came

from the Hubbell St. address on December 15, 1971,

following the arrest, in the address, of EDDIE

JACKSON, COURTNEY BROWN, GEORGE BLAIR,

AND JOE & REGGIE WEAVER. No testimony in the

record suggests that these narcotics were seized from

the immediate possession of any of these defendants.

As a matter of fact, the testimony established that

there were no drugs proximate to any of the defendants

at the time the officers entered the premises at 9:50

P.M. to arrest JACKSON, BROWN, & BLAIR. A “cloud

of dust’’ which the officers surmised was some form of

aerated drugs was filtering out in the vicinity of the

kitchen. (p. 536) Subsequent searching of the premises,

and particularly the upstairs portion thereof, disclosed

the major quantity of drugs, packaged and situate in a

cardboard box. (p. 542) Telephone interceptions clearly

inferred, and, it was the position taken throughout by

the government, that drugs, in shipment form, arrived

at the Hubbell address on the 15th of December, 1971.

What the proofs failed altogether to establish, was

the personal knowledge of any of the defendants, of

the presence of such drugs on the premises. Wire

interceptions of the 1Sth suggested only that

HERBERT BELL knew the “stuff” was there, “and

going fast.”” (Tape 83, Conversation 26, page 1324)

Inferentially, it could be suggested that, if persons

arrested at 9:50 P.M. were present when that call was

made they would also have been aware of the presence

of some type of “stuff” in the Hubbell address.

But, the government charged an awareness with

specific quantities and types of drugs, without proving

specific knowledge as to those quantities and types as

to any one defendant. The government could not

convict these defendants upon simply a showing that

drugs were found on the premises, without showing

scienter as to each of them. How could anyone presume

that any one of the defendants was aware of the

presence of drugs upstairs in the premises, in a box, in

a hole in the floor and packaged, as was the testimony.

(Page 606 appendix)

The statute under which the government proceeded

on each of the contested counts, being §841(a)(1),

Title 21 U.S.C., required that the government prove

each defendant “knowingly and intentionally” possessed

the quantities and types of drugs indicated in the

various counts of the indictment.

Significantly, the statute does not contain any

limiting language as to quantity. It refers solely to the

“possession of controlled substances.” Due process

requires that, if the government is suggesting that the

drugs seized from the Hubbell address were from

different sources, so as to make tenable the separation

of a single “shipment” of controlled substances into

five (5) parcels of drugs, then the government’s proofs

were woefully inadequate to accomplish this end. For

nothing in the testimony suggests anything other than a

unity of origin, transportation, delivery, and conceal-

ment. The government’s entire case presumed that

Hubbell was a “dope pad” where “drugs” were illegally

stored.

The statute under which the indictment was brought

only permits a prosecution to be maintained on a single

count, where the proofs clearly establish but a single

act of possession of “controlled substances,” all of

which, as are cocaine & heroin, fall within the same

class structure as outlined by the Congress.

Thus, the convictions of the defendants on counts 12

to 16 must be set aside as being fundamentally in

derogation of the accused’ rights to due process under

the fifth amendment.

In brief summary, the government cannot stretch out

a single act of possession of the same class of controlled

substances, as defined by the Congress, into five

separate acts of possession without proving facts on

trial which form a basis for the separation and

reasonably establish some reason for making out five

separate acts of possession; deriving either from the

diversity of source, or from distinctly separate exercises

of dominion or proprietary control. That under no

circumstance can the government arbitrarily subdivide a

single quantity of narcotics up into smaller portions to

support as many different convictions as it wishes,

whenever it wishes. That, as appellants see it, where

drugs clearly arrive at a “dope pad” which is ostensibly

under the controll of three or four persons, in

“shipment” form, on a single date, only a single,

although perhaps joint, conviction for possession with

intent to distribute can be had; and then, only upon a

showing that a particular defendant, or particular

defendants, were knowledgeably privy to the control

and concealment of the said drugs.

Certainly, persons arrested after the arrival of the

drugs could not be convicted; and certainly not others

having absolutely no connection with the house on

December 15, 1971.

All the government has shown in its evidence, is the

separation of a quantity of drugs into smaller

quantities. Nothing more. This arbitrary separation is a

denial of the equal protection element of due process,

and cannot support the convictions of the defendants.

When various drugs are simultaneously possessed,

there is but one violation of the law; and any attempt

to punish an accused five times over for a single

violation of the law runs smack up against the

prohibition of the Fifth Amendment that no person

shall be twice punished for the same offense. Cf. United

States v. Hughes, U.S. Court of Military Appeals,

3/19/76, 19 CrL 2087.

In the within cause we have presented the classic

situation where the Supreme Court is asked to interpret

the meaning of the double jeopardy clause of the Fifth

Amendment to the Constitution; and to decide, as an

ultimate rule of recognition, that persons may not be

subjected to multiple punishment for what is clearly

but one offense. For this reason, in this case, certiorari

should be granted.

VI.

THE PINKERTON RULE REVISITED RE-

QUIRES VACATION OF THE CONVIC-

TIONS OF THE APPELLANTS HEREIN,

AND PARTICULARLY THE APPELLANT

HORNE, WHOSE ONLY CONTACT WITH

THE ALLEGED CONSPIRACY OCCURRED

ON THE LAST DAY OF SAID CON-

SPIRACY AND BY PHONE CONVERSA-

TION.

The trial court, in its formal findings, improperly

applied the Rule announced in Pinkerton v. United

States, 328 U.S. 640, 90 L.Ed. 1489, 66 S.Ct. 1180, to

effect the conviction of all persons charged with

conspiracy in the government’s indictment, of all the

substantive offenses committed by each other alleged

co-conspirator.

What was announced in Pinkerton needs to be clearly

discerned. First of all, Pinkerton seemed clearly to

require that the overt act sought to be related to any

defendant, be charged in the conspiracy count of the

indictment. Secondly, it permitted punishment only

for those acts committed subsequent to any conspira-

tor’s joinder therein; and finally it required and

suggested that the act be such as would reasonably be

anticipated to further the objectives of the total

conspiracy.

On page 642 of 328 U.S., the Court pointed out

that, there “‘a single conspiracy was both charged and

proved, and some of the overt acts charged in the

conspiracy count were the same acts charged in the

substantive counts.”’

A careful look at the conspiracy counts of the

indictments in both cases, here establishes that the

government failed to allege therein the commission of

any of the substantive counts set forth elsewhere in the

indictments.

That procedural omission prevents the application of

the Pinkerton rule, and the punishment of the

defendants for the various offenses committed by

others, to which they were not privy. Procedural due

process requires notice, and that thought permeates

Pinkerton, where the defendant on trial was fully

informed of the fact that in defense of the conspiracy

count he was going to be expected to defend against

the precise substantive offense with which he was also

charged. Defendants can’t be held to respond to claims

the government never made in its indictment.

In Pinkerton, the conspiracy and the substantive

offenses were announced to be separate and distinct.

(328 U.S., p. 643) Notice and opportunity to be heard

are essentials of due process. Each defendant was

required to be notified as to what he was expected to

defend against. The mere presence of allegations in

other distinct, and separate, counts of the indictment as

to several individual defendants, cannot suffice to shore

up the patent defect in the conspiracy count of the

indictment, or to notify each individual defendant of

the fact that he was to concern himself with defending

as to his own relationship, if any, to the substantive

offenses charged.

In similar vein, Pinkerton clearly, at p. 645 of 328

U.S., made “time of joinder,” and “scope of the

activity,” relate to the issue of vicarious responsibility

for other defendants’ misdeeds.

There the court made clear that finding of guilt is

only possible:

“If it was found at the time those offenses were

committed petitioners were parties to an unlawful

conspiracy and the substantive offenses were

committed in furtherance of it.”

Thus, under Pinkerton, a person cannot be found

guilty of offenses committed prior to his joinder in a

conspiracy, and by other persons who might have

entered such criminal combination prior to his

association therewith.

Thus, take a car-theft conspiracy for example—A

fence of stolen cars in Memphis, Tennessee, could not

be vicariously made responsible for a murder committed

in the theft of a car in Detroit, prior to his association

with the thieves.

Nor, could every drjver of stolen cars be made

responsible for substantive thefts of cars which occurred

prior to his association with the car theft ring, since

those substantive acts of thievery could in no way be

ipso facto related to any joint interest of the driver at

the time of their commission. Joint interest in a

common venture, in and of itself limits the application

of Pinkerton. One could hardly be viewed as having

constituted a person as his agent, where there is no

basis for presuming the existence of an implied or

express agency relations:ip. Nor could, for example, a

driver be viewed as constituting a “murderer” as his

agent where he joins a car theft ring. This act is simply

beyond the purvue of the venture he embarked upon.

Thus, where the government’s proofs could only

establish a defendant’s connection with a conspiracy by

a single act of possession of a quantity of narcotics on

December 15, 1971, such defendant could neither be

made a co-conspirator to the on-going narcotics

conspiracy, nor charged with every and any substantive

offenses committed prior to such connection therewith.

And, where the trial court blanketly convicted all of

—seseeas

the defendants for the substantive offenses committed

by others, on the ground of Pinkerton, and without

regard to the time such person touched base with the

alleged conspiracy, such convictions are invalid, and

must be set aside.

In light of the fact that the within case has been

passed on by five judges, who do not read Pinkerton in

the manner briefed above, it seems that there exists a

great deal of confusion which ought to be erased. In

view also of the fact that three Appellate Court judges

construe the case to authorize the conviction of all

conspirators for others’ crimes, the entire matter should

be reconsidered by the Supreme Court, and over-ruled,

and certiorari should be granted to accomplish that end.

CONCLUSION

For the foregoing reasons, the indictment agaifist the

petitioners should be dismissed, and their convictions

reversed, or other appropriate relief granted them.

Respectfully submitted,

MILTON R. HENRY

2211 E. Jefferson Avenue

Detroit, Michigan 48207

Phone (313) 393-0100

Bar No. P-14884

Attorney for the Petitioners

APPENDIX

CONTENTS OF APPENDIX

Opinion of the Court of Appeals .............. 1-51

Order Denying Rehearing ..............-.---5-. 52

Order staying the mandate as to petitioners ........ 53

Order Extending time to file for writ of certiorari ... 54

Order Denying stay of mandate ................. 55

APPENDIX

Nos. 74-2337-53

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Vv.

Cara Woops, Jr., Wittie Lee Ki- —

PATRICK, JOsEPH LEON WEAVER, United States District

James RecinaLD WEAVER, EDDIE Cause tor Go Basten

Jacxson, CourTNEY Brown, HEr- | ae

District of Michigan,

BERT BELL, RoNALD GARRETT, SAM- Southern Division

vEL Horne, ALPHONZO JONES, FaAIRH

Lee Riccs, CHARLEs Rupo.pn, La-

TICIA Burns, MAURICE THOMPSON,

Leo Hurt, Grorce BLam, CHARLES

CAVANAUGH,

Defendants-Appellants.

Decided and Filed October 8, 1976.

Before: CrLesprezze, McCree, and Miutier,® Circuit

Judges.

McCree, Circuit Judge. We have consolidated for consid-

eration the appeals of seventeen defendants from their con-

victions in the Eastern District of Michigan. Each appellant

had been charged in one of two similarly worded indictments

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

not participate in this opinion.

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

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

indictment, named fifteen unindicted co-conspirators and sev-

enteen defendants, including appellants Eddie Jackson, Her-

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

Lee Riggs, Charles Rudolph, Charles Cavanaugh, Laticia

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

ney Brown. The other indictment, hereinafter the Kilpatrick

indictment, named as defendants the fifteen persons who were

unindicted co-conspirators in the earlier indictment, including

appellants Willie Kilpatrick, Joseph Weaver, James Weaver,

and Cara Woods. The persons named as defendants in the

first indictment were named as unindicted co-conspirators in

the second indictment. Count 1 of both indictments charged

a single conspiracy that continued from September to Decem-

ber 1971 to manufacture, distribute, and possess heroin and

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

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

mitted during the period from October to December 1971.

One of these cases was assigned to District Judge John

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

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

Consolidated pretrial evidentiary hearings were held to con-

sider various motions raised by appellants. In addition to

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

also agreed to proceed with a simultaneous bench trial before

Judges Feikens and Pratt in order to avoid the necessity of

two separate trials involving identical proofs.

Although the proceedings in the two separate cases were

conducted simultaneously, cach judge was solely responsible

for all rulings affecting cach defendant in the case assigned

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

sions regarding the guilt or innocence of cach defendant in the

case assigned to him.

At the conclusion of their joint bench trial, all appellants

were found guilty on multiple counts and received sentences

from three years’ imprisonment to twenty years im-

ere reel tt Kilpatrick, James Weaver, Joseph

Weaver, Jackson, Brown, Blair, Bell, Riggs, Garrett, Horne,

Jones, Rudolph, Cavanaugh, and Hurt were convicted on

counts 1, 3, 4, and 6 through 16. Cara Woods was convicted on

counts 8 and 9. And appellants Burns and Thompson were

convicted on counts 2 and 5.

The simultaneous trial conducted in the district court was

an understandable effort to accommodate indictments of the

magnitude and complexity that were obtained here bY the

government. Nevertheless, this procedure has produced an

appellate record of extraordinary size with the consequence

that oral argument has been of less than usual assistance ?

us in analyzing and deciding the issues presented = appeal.

Instead of beginning our opinion with a narration of the

facts, we shall consider the facts giving rise to each separate

appellate issue in our discussion of it.

ed by Judge

’ ng appellants were convicted and sentenc 8

Cran Willie Lao Kilpatrick was convicted on counts 1, 3, 4, 6 Ho

16, and sentenced to concurrent terms of a Ay gy ory =

each count, subject to the parole provisions 0 : yer A nos,

special paro of three years. In addition,

ee a $2,000 ned ie fine on — 1. og es tne 4

' i en coun S <

and Joseph Leon Weaver were convic pty jj BAA -

each count, subject to the parole provisions oe oe

i f three years. Cara s, Jr.

rd pag d ny chan ond sentenced to concurrent terms va

veaee imprisonment on each count pen .~ op foo +

4208 , with a special parole term o ’

a ae iapesed a $1,000 committed fine on each o—_., ‘ates

othe remaining ————_ ag —gg ey ol ines y a

son, Brown, . » a . .

Polnens, Sete ich, Cavenangh, and Hurt were convicted on —

13 4 6 thro ugh 16, and received . ee A. ~

acksot : concurrent fifteen-year -

my yyy ght 7, 8, 9, 10, 11, and 12, to be served nwa

soouabeal with concurrent five-year terms of imprisonment ———

ye h of counts 13 through 16, and a special three-year a A er .

comanitted fine of $5,000 on each count was also imposed. ny -

Blair and Courtney Brown were sentenced to wwex one =

om ears’ imprisonment on each of counts 1, 3, 4, 6, 7, * Po

and 12. to be served consecutively Ay Bcomn = ~

a i ch of counts r \

eee ae cam of pare. and a committed fine of $5,000 on each

I. WERE DEFENDANTS PROPERLY INDICTED?

Appellants? challenge the validity of the indictments on

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

improperly selected. Second, they contend that the informa-

tion intercepted by the wiretaps was placed before the grand

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

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

the grand jury to intimidate persons whom the government

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

Finally, appellants urge that the indictments were multipli-

citous.

A. The Selection of the Grand Jury.

Appellants argue that the selection of the grand jury venire

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

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

count. Ronald Garrett received concurrent terms of 12% years’ im-

prisonment on each count, with a special parole term of three years

and a committed fine of $3,000 on each count. Charles Rudolph and

Herbert Bell received concurrent terms of ten years’ imprisonment

on each count, with a special parole term of three years, and a com-

mitted fine of $1,000 on each count. Samuel Eugene Horne. Alphoazo

Jones, Charles Cavanaugh, and Leo Hurt were given concurrent

terms of seven years’ imprisonment on each count, with a special

parole term of three years, and committed fines of $1,000 on each

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

years’ imprisonment on each count, with a special parole term of

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

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

Riggs was then serving.

Appellants Thompson and Burns were convicted on counts 2 and

5, and were sentenced as follows: Maurice Thompson received con-

current terms of five years’ imprisonment on each count, with a

special parole term of three — imprisonment to be served at

a féderal facility with a drug abuse program. Laticia Burns received

concurrent terms of three years’ imprisonment on each count to be

served at a federal facility having a drug abuse program, to be

followed by a special three-year parole term.

2A number of separate briefs were filed on appeal. Unless other-

— noted, we will treat each argument as applicable to all appel-

ts.

Eastern District of Michigan because an improper voting list

was used, an unauthorized person took part in the compilation

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

out of the office to her home.

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

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

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

stipulated that precisely the same challenges to the grand

jury venire had already been submitted to Judge Feikens

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

parties in McNeal agreed to be bound at the district court

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

in accordance with their rulings, the district court denied the

motion to quash the indictment in McNeal. On review we

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

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

determination in McNeal is dispositive of these appeals as well,

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

rise to them are before us again.

B. The Presentation of Wire Interception Evidence Before the

Grand Jury.

Immediately after their arrest, several appellants filed a

motion to suppress the wiretap evidence that they believed

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

disclosure of the applications and orders for the interceptions.

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

ing a preliminary hearing or presenting the wiretap evidence

to a grand jury until ten days after obtaining the disclosure

they sought. The government opposed the motions, but

neither admitted nor denicd the legality of the wire intercep-

tions. After hearing oral arguments, the district court held

that the government could not present wire interception evi-

dence at a preliminary hearing without disclosure, but other-

wise the district court denied the motions.

On the day scheduled for the preliminary hearing, appel-

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

mony of Special Agent Garibotto and evidence from the wire

interceptions. The return of the indictments made it unneces-

sary to conduct the preliminary hearing.

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

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

(9) provides that:

The contents of any intercepted wire or oral com-

munication or evidence derived therefrom shall not be

received in evidence or otherwise disclosed in any trial,

hearing, or other proceeding in a Federal or State court

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

hearing, or proceeding, has been furnished with a copy

of the court order, and accompanying application, under

which the interception was authorized or approved. This”

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

that it was not possible to furnish the party with the

above information ten days before the trial, hearing, or

proceeding and that the party will not be prejudiced by

the delay in receiving such iniormation.

Section 23518(10)(a) provides:

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

ceeding in or before any court, department, officer,

agency, regulatory body, or other authority of the United

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

move to suppress the contents of any intercepted wire

or oral communication, or evidence derived therefrom.

on the grounds that—

(i) the communication was unlawfully intercept-

ed;

(ii) the order of authorization or approval under

which it was intercepted is insufficient on its face; or.

(iii) the interception was not made in conformity

with the order of authorization or approval.

Finally, § 3504 states:

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

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

regulatory body, or other authority of the United States—

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

dence is inadmissible because it is the primary prod-

uct of an unlawful act or because it was obtained

by the exploitation of an unlawful act, the opponent

of the claim shall affirm or deny the occurrence of

the alleged unlawful act... .

Appellants contend that these sections authorized their mo-

tions to suppress, required the government to affirm or deny

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

ernment from relying on the evidence gathered as a result

of the interceptions until these requirements were satisfied.

Accordingly, they contend that their indictments must be

quashed because the government presented this evidence to

the grand jury before it replied to their challenge to the

interceptions. _18 U.S.C. § 2515 provides that no intercepted

wire communication or evidence derived therefrom may be

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

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

would be in violation of this chapter.”

We hold that the government was not required to comply

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

ception before it could introduce the intercepted communica-

tions before the grand jury, nor were appellants entitled to

prevent the presentation of this evidence to the grand jury

even if the interception were unlawful.

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

gress did not intend the ten-day disclosure requirement to

apply to grand jury proceedings. The Senate Report section-

by-section analysis provides that:

“Proceeding” is intended to include all adversary type

hearings. It would include a trial itself, a probation

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

duction of sentence. It would not include a grand jury

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

384 U.S. 251 (1966).

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

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

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

dant to challenge the evidence presented to the grand jury:

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

with sections 2515 and 2517, discussed above, which it

limits. It provides the remedy for the right created by

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

grand jury proceeding, the provision docs not envision

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

a proceeding itself. Normally, there is no limitation on

the character of evidence that may be presented to a

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

v. United States, 86 S.Ct. 1418, 384 U.S. 231 [1965]. )

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

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

' press is granted in another context, its scope may include

use in a future grand jury proceeding.

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

added. |

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

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

and supports the conclusion that they do not authorize a

defendant to suppress evidence before the grand jury on the

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

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

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

could refuse to answer questions that were based upon illegal

interceptions, and could defend against a contempt charge

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

dence before official bodies of the contents and the fruits of

illegal interceptions. The Court held that in the context of

$ 3504, which states the procedures by which aggrieved per-

sons may challenge illegally procured evidence, a “party

aggrieved”

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

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

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

ness’ potential testimony is inadmissible.

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

The Supreme Court drew a careful distinction between a

witness before the grand jury, who it held may refuse to

answer questions based upon illegal interceptions, and a de-

fendant or potential défendant. The Court held that:

The congressional concern with the applicability of

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

discernible from the Senate report, was apparently that

defendants and potential defendants might be able to util-

ize suppression motions to impede the issuance of indict-

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

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

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

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

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

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

that a defendant is not entitled to have his indictment

dismissed before trial simply because the Government

“acquire[d] incriminating evidence in violation of the

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

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

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

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

whatever to do with the situation oi a gianc jury witness

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

sequent charge of contempt.

1S US. 59-60.

10a

Accordingly, we hold that appellants were not entitled to

contest the legality of the intercepted communications before

the communications were submitted to the grand jury. Ap-

pellants contend, however, that they had a right to contest

the admissibility of wiretap evidence at the scheduled pre-

liminary hearing, and that the government could not deprive

them of this right by the sudden tactic of obtaining an indict-

ment.

Our court has repeatedly held that if “a grand jury returns

a true bill prior to the time a preliminary hearing is held, the

whole purpose and justification of the preliminary hearing has

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

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

preliminary hearing if a grand jury indictment is returned.

Although we have recognized that a preliminary hearing may

as a practical matter provide a defendant with an irreplace-

able opportunity for discovery, a defendant has no absolute

right to these ancillary benefits. For example, in Mulligan

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

government witness prior to trial, suffered no prejudice when

their preliminary hearing was continued to permit the govern-

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

cordingly, we hold that appellants suffered no legal prejudice

when the government proceeded by indictment, rather than

by a preliminary hearing at which appellants could have

contested the legality of the wire interceptions pursuant to 18

U.S.C. $$ 2518(10)(a) and 3504.

C. Improper Use of the Grand Jury.

Appellants also assert that the government improperly used

the grand jury to discover and preserve evidence to be used

at the trial of their already pending indictments. They assert

that both Burt and Nabors were called before the grand jury

to testify against appellants after appellants’ indictment. The

government concedes that it is improper to use a grand jury

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

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

Practice 4 6.04. But it contends that the record contains no

support for appellants’ claim that Burt and Nabors were called

only to prepare pending indictments for trial. Additionally,

the government urges that appellants have not demonstrated

that any prejudice resulted from the alleged misconduct, and

it contends that only Nabors and Burt have standing to raise

the issue.

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

ceedings and appellants have the burden of demonstrating that

an irregularity occurred. Universal Manufacturing Co. v.

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

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

with the observation made by the First Circuit that:

grand jury proceedings cannot be policed in any detail.

It is a price we pay for grand jury independence that

sometimes people are indicted on the basis of evidence

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

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

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

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

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

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

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

(1919).

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

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

3 The court also recognized, however:

On the other hand, we are sensitive to the ibilities of

abuse of the grand jury process which are inherent in the

resent situation. As Moore has observed, “The government

as at its disposal one of the most effective discovery mechan-

isms yet devieed?—the grand jury. This body may cali witnesses

under compulsory process and examine them in secret under

oath, unhampered by the rules of evidence or an adversary

counsel’s cross-examination, or in the case of a ‘prospective

defendant’ by Fifth Amendment immunity. [citations omitted].”

8 Moore’s Federal Practice § 16.08[1], at 16-100 (2d ed. 1970).

455 F.2d at 1275.

12a

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

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

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

not interfere with the grand jury's investigation.”

Neither appellants nor the government have cited to us

any portion of the record in which appellants presented this

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

uminous record to no avail. However, assuming that this

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

sented nothing beyond their own unproved suspicions to prove

that Burt and Nabors were improperly summoned before the

grand jury for the sole or dominant purpose of preparing the

pending indictments for trial. Portions of the testimony at

trial suggest that after appellants were indicted, Burt and

Nabors did testify before the grand jury regarding some of

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

have made no showing that Burt and Nabors were not called

in order to determine whether other persons not yet indicted

were also involved in the conspiracy under investigation. The

indictments charged that appellants conspired with “divers

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

and the grand jury could properly call witnesses in an attempt

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

D. Multiplicity.

Appellants allege that they were improperly indicted and

convicted of five separate acts of possession with intent to

distribute a controlled substance,‘ when the proofs showed

4 The counts charged:

Count 12— 659.66 grams of cocaine hydrochloride, with a

strength of 15.8%.

Count 13 — a a of heroin hydrochloride with a strength

o 3%.

Count i4— 1 of cocaine Kyarociniviide wiih a sirength

‘ Of ov. °

Count 15 — 14.66 i. of cocaine hydrochloride with a strength

of 32.7%

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

strength of 58.1%.

13a

that all the narcotics in question were found at the Hubbell

Street house, and that the intercepted wire communications

indicated that appellants had just received a single shipment.

Accordingly, appellants contend that the fragmentation into

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

lated their right to due process.

Apparently appellants raise this contention for the first

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

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

the indictment was multiplicitous by pretrial motion constituted

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

that “[dJefenses and objections based on defects . . . in the in-

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

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

the “[flailure by a party to raise defenses or objections or to

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

constitute waiver thereof, but the court for cause shown may

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

Since it is not entirely clear from the general averments in

the indictments that the narcotics referred to in counts 12

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

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

this issue before the district court until the government pre-

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

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

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

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

Crim. P. 12(f).

Appellants also argue that counts 6 and 10 and counts 7

and 11 are multiplicitous, because they charge both distribu-

tion and possession with intent to distribute the same quanti-

tics of drugs. They urge that possession with intent to <lis-

iribute is a lesser offense included within distribution. Again,

it appears that appellants did not raise this contention before

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

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

14a

II. WAS THERE GOVERNMENT MISCONDUCT THAT

REQUIRES REVERSAL?

Appellants contend that shocking governmental misconduct

requires the reversal of their convictions. They contend first

that a sham defendant was indicted in order to penetrate

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

the government improperly disclosed critical information to

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

erly intruded into the marital relationship of appellant Blair

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

Finally, they argue that the government improperly met with

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

A. The Sham Defendant.

Appellants contend that the government's misconduct in

indicting Roosevelt Nabors as a “sham defendant” requires

the reversal of their convictions. They contend that the sham

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

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

continued even after the indictment. Further, he was called

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

was charged after he had been indicted, and defense counsel

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

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

Appellants argue that the sham indictment of Nabors violated

the fundamental fairness guaranteed by the due process clause,

and violated their right to counsel by introducing a govern-

ment agent into the defense.

Nabors testified that when he first began working with the

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

told that his cooperation would be communicated to the court

in connection with charges pending against him for attempted

murder and the unlawful driving away of an automobile. He

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

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

15a

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

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

government special agents could make purchases directly from

members of the Jackson organization. He was not authorized

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

testified that without the knowledge or authorization of the

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

from the Jackson organization on consignment. He said that

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

cuted because of this independent transaction.

Agent Garibotto testified that during a review of tape re-

cordings of the intercepted communications after the Decem-

ber 15 arrests at Hubbell Street, government agents discovered

that, without government authority, Nabors had called and

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

he had sold it. Garibotto testified that Nabors was indicted

in good faith for this unauthorized part in the conspiracy.

Although he had been severed from the other defendants

before trial, Garibotto testified that the government retained

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

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

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

he planned to make no recommendations one way or the

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

after his testimony before the grand jury so that Nabors could

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

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

that others in the BNDD might have done so.

Although appellants claim that Nabors was indicted in order

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

sented little evidence that Nabors was involved in appellants’

common defense. Although Attorney Milton Henry filed an

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

defendants, the court’s records demonstrate that counsel was

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

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

16a

Nabors’ trial was severed from that of the other defendants

on the ground that the government expected to call him as

a witness. Nabors testified that when he was arrested, he

did not meet all of the other defendants, talk to them, or know

their names. He did recall that he spoke briefly to only one

of the appellants, Kilpatrick.

We do not think that the record shows any government

misconduct. Appellants have not sustained their burden of

showing that Nabors, who was severed for trial, and for whom

the district court appointed separate counsel shortly after his

arrest, actually intruded into the attorney-client relationship

between appellants and their counsel.

B. Pretrial Publicity Resulting from Governmental Disclo-

sures.

Appellants make two contentions about pretrial publicity.

First, they contend that the government improperly disclosed

to the press information gathered by wire interceptions. Sec-

ond, they contend that the volume of pretrial publicity made

it impossible for them to receive a fair trial.

1. Pretrial Disclosure of Intercepted Communications.

Appellants strenuously contended both in the district court

and in briefs and argument on appeal that the government

made improper pretrial disclosures of critical information to

the press. They urge that pretrial newspaper articles con-

tained “detailed recitals of wire interceptions, which could

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

paper article principally relied upon to support this contention

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

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

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

for prosecutorial misconduct, appellants specifically argued

that it was improper for the government to use information

from wire interceptions in an affidavit for a search warrant,

17a

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

without first making provision for its protection from disclo-

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

Thus we understand the gist of appellants’ argument to be

that the government had a duty to prevent unauthorized dis-

closures of their intercepted communications, and that the

government's failure to prevent disclosure of the information

recited in the affidavit requires the dismissal of the charges

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

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

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

has obtained knowledge of the contents of any wire or oral

communication” may disclose or use the information. Sub-

section (1) permits disclosure to another investigative or law

enforcement officer to the extent necessary for the performance

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

erally that intercepted information and communications may

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

official duties. And subsection (3) permits disclosure where

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

criminal or grand jury proceeding.’

Appellants contend that any disclosure not explicitly au-

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

not authorize either investigative or court personnel to dis-

close the contents of their intercepted communications to the

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

papers was illegal and that the only appropriate remedy is

the dismissal of the indictments.

The government argues that subsection (2) authorized gov-

ernment agents to disclose the contents of intercepted com-

SSubsection (5) nrovidee:

Such contents and any evidence derived therefrom may be used

under subsection (3) of this section when authorized or ap-

proved by a judge of competent jurisdiction where such judge

finds un subsequent application that the contents were otherwise

intercepted in accordance with the provisions of this chapter

Such application shall be made us soon as practicable

18a

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

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

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

in connection therewith” with the clerk of the district court,

where they became a matter of public record. The govern-

ment argues that dismissal of the charges against appellants

is not warranted merely because of the government's failure

to take extraordinary measures to seek restriction of access

to the court files, especially when appellants made no request

for such a restriction of access. The government notes that

the wiretap statutes provide three remedies — suppression,®

civil damages,” and criminal penalties.* The remedies for

unlawful disclosure of intercepted communications are civil

damages and criminal penalties. The detailed provisions of

the Act contain no provision for the dismissal of pending

criminal charges.

We agree with the government that appellants have failed

to demonstrate any circumstances that warrant dismissal of

the charges against them. However, in view of the con-

gressional intention to protect individual privacy, it would be

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

course, that the district court restrict access to documents

filed with the court that contain intercepted communications.

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

Appellants also contend that the pretrial publicity about

their cases was so pervasive and inflammatory that they could

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

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

cumstances appellants must show that the pretrial publicity

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

618 U.S.C. : 2515.

716 US.C. 32520

8iIK USC. 1251)!

19a

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

district judges could not try them impartially, the remedy

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

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

Burt.

Appellant George Blair contends that in violation of the

public policy that protects marriage, government agents in-

tentionally broke up his marriage with Ruth Ann Burt in order

to procure her testimony as a government witness. He con-

tends that the convictions of all the appellants rest in large

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

Blair first presented this objection to the district court in

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

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

who testified that the government “alienated” his marriage to

Burt. The district court held that:

there was no credible evidence indicating any improper

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

ible evidence, including testimony of defendant's former

wife, Ruth Ann Burt, indicated the government did not

act improperly.

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

finding, which is not clearly erroneous.

D. The Government's Meeting with Blair and Burt.

Both before the district court and on appeal, appellants

argue that the government improperly met with appellant

George Blair and his then wife Ruth Ann Burt without the

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

lants urge that the meeting in the absence of counsel was

fundamentally unfair. Moreover, since this was a complex

conspiracy case, and Blair's statements could be used to in-

20a

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

pellants argue that the meeting violated the right to counsel

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

pellants cite State v. Britton, 203 S.E.2d 462 (W. Va. 1974)

as authority for reversing a conviction when the prosecution

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

contend that the circumstances of the secret meeting with

Blair and Burt “irremediably tainted” her testimony.

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

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

Agent Garibotto communicated with her about testifying be-

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

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

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

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

botto replied that he would have to consult the government

attorney handling the case. The critical mecting was held at

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

attorney Wampler were all present. Burt stated that no onc

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

recorded. She did not recall whether anyone gave Blair the

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

ment agents a good deal about her knowledge of the narcotics

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

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

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

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

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

would not be given immunity unless he testified himself.

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

indicted were being represented by one attorney, Milton

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

nor was Blair asked to contact Henry himself.

* Blair did not testify at the trial.

2la

The district court conducted an inquiry into this matter at

i post-trial hearing. Government attorney Wampler testified

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

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

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

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

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

und that’s very true.”

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

dence at trial resulting from any statements made by Miss Burt

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

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

Inn discussion.” The court recognized the dangers of meeting

with a defendant without his counsel, especially when co-

defendants are represented by the same counsel, but it held

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

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

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

“gratuitous” comments that were not used at trial.

We agree with the district court. We are satisfied with

the district court's careful inquiry to determine whether any

evidence derived from the meeting was used by the govern-

ment, and with its conclusion that no evidence presented at

trial was gained from the meeting. Accordingly, any error

committed by the government was harmless whether measured

ly the ordinary or by the constitutional standard.

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

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

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

American Bar Association Code of Professional Responsibility,

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

arranged primarily between government agents and Burt, who

was not under indictment. The government did not seek

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

1969). Government attorney Wampler testified that he be-

lieved that Blair particularly wanted to keep his attempts to

22a

secure immunity from the other defendants and the counsel

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

ever, the government did not take the precautions that were

possible. It did

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