# Petition — Kilpatrick v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 431 U.S. 954

## Text

pe FElee
MAR 18 1977

, sche
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
I.

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!

ae

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
SS
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,

18

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:

O>

OP

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

19

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.”

20

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...”

21

—

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

22

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

23

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.

Q.

A.

24

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.

25

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

26

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)

27

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:

28

“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
I.

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 =

29

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

30

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

31

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.

V.

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.

32

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)

34

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,

35

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,

36

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

OP

38

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.

39

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:

40

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

42

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.

44

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”

46

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:

48

“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.

50

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

51

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.”

52
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.

54

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

56

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.

58
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

60

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

61

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.

62
V.

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

63

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.

64

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

65

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.

66
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

67

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

68

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

69

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

la

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.

2a

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

3a

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 -
16, and sentenced to concurrent terms 0 © yee ont anbie) (2),
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

4a

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.

Sa

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.

6a

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.

Ta

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

8a

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

9a

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 mee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1458%3A1. Public record. Not legal advice.