Petition — Muhammad v. United States

ccc

Su, ne Court, U. 8.

FILE D 4

MAR 31 1977

0 QMICHAEL RO DAK, IR., CLERK

In The

Supreme Court of the United States

OCTOBER TERM, 1976

1 76-1344

NATHANIAL MUHAMMAD,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Davin W. RUSSELL

Duncan & RUSSELL

2700 Kendallwood Parkway

Kansas City, Missouri 64119

Attorney for Petitioner

E. L. Muenpennatt, Inc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3080

IRAE NTT Ac RN RES 8 i i PERN: So

Constitutional and Statutory Provisions and Rules In-

// ilar tenaaadicnanencen

Reasons for Granting the Writ—

1. The Decision Below Raises Certain Important

Issues Which Should Be Resolved by This

Court Concerning the Interpretation of the

Federal Rule of Evidence 801(d)(2)(e) Con-

cerning Extrajudicial Statements of Co-Con-

e aianiiibatiins

2. The Decision Below Creates Serious Consti-

tutional Questions and Issues That Should Be

Decided by This Court Concerning the Discre-

tion That a Trial Court May Use in Conduc:-

ing Voir Dire Examination of Witnesses on

ü rere

3. The Decision Below Involves Important Con-

stitutional Questions and Questions of Federal

- Law Concerning the Improper Joinder of All

Defendants in a Complicated Drug Conspir-

acy Case, and the Failure of the Trial Court to

Grant the Primary Request to Sever

4. The Decision of the Court Below Raises Im-

portant and Significant Factual Questions

Which Need to Be Considered by This Court

1 U ä U:. teases

u

/ / / x c 18

Appendix —

A. Decision of the Eighth Circuit Al

B. Petition for Rehearing ........... sie -A38

C. Order Denying Rehearing A44

i 5 § ARATE x A45

Table of Authorities

CASES

Baker v. United States, 395 F.2d 368 (8th Cir. 1968) ....13, 16

Garner v. Louisiana, 368 U.S. 157 . . . . . . . . . . . . 14

Ham. v. South Carolina, 409 U.S. 524, 93 S. Ct. 848, 35

Fe . 8

Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41

D,, e 7

International Indemnity Company v. Lehman, 28 F.2d 1

(7th Cir), Cert. denied, 278 U.S. 648 (1928) 6-7

Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239,

a a el 10-11, 13

Nye and Nissen, v. United States, 336 U.S. 613, 69 S. Ct.

I I I i oeslaidtce 16

Thompson v. City of Louisville, 362 U.S. 1999. 14

United States v. Bear Runner, 502 F.2d 908 (8th Cir.

/// / tas 9

United States v. Birnbaum, 337 F.2d 490 (2nd Cir

/ ssicitiedileapchidubohdahadpeeitiliddeckiuiigalilsenes 6

United States v. Booker, 480 F.2d 1310 (7th Cir. 1973) 9

United States v. Butler, 494 F.2d 1246 (10th Cir. 1974) 11

United States v. Carengella, 198 F.2d 3 (7th Cir. 1952) 16

United States v. Cirillo, 499 F.2d 872 (2nd Cir. 1974) 13

III

United States v. Dallas, 418 F.2d 221 (6th Cir. 1969) 16

United States v. DeLarasa, 450 F.2d 1057 (3rd Cir.

. PRESS Pe AMEE ta RE SE 13

United States v. Eastwood, 489 F.2d 818 (5th Cir. 1973) 13

United States v. Echeles, 352 F.2d 892 (7th Cir. 1965) 12

United States v. Garrett, 371 F.2d 296 (7th Cir. 1966) 16

United States v. Grose, 525 F.2d 1115 (7th Cir. 1975) 16

United States v. Johnson, 513 F.2d 819 (2nd Cir.

United States v. Jones, 418 F.2d 818 (8th Cir. 1969) ..16, 17

United States v. Kahn, 381 F.2d 824 (7th Cir. 1967) 11

United States v. Kelton, 446 F.2d 669 (8th Cir. 1971) 17

United States v. Martinez, 486 F.2d 15 (1973) ............ 12

United States v. Overshon, 494 F.2d 994 (8th Cir.),

Cert. denied, 419 U.S. 853 (1974)

United States v. Rich, 518 F.2d 980 (8th Cir. 1975), Cert.

denied, 2 8 —— 7

United States v. Robinson, 466 F.2d 780 (7th Cir. 1972) 9

United States v. Robinson, 485 F.2d 1157 (3rd Cir. 1973) 9

United States v. Shuford, 454 F.2d 772 (4th Cir. 1971) 12

Washington v. United States, 357 U.S. 348 14

2

CONSTITUTIONAL PROvISsIONS, Rurxs, STATUTES

AND OTHER AUTHORITIES

Am. Jur. 2d, Federal Rules of Evidence, Appendix 4,

at 314, 316, 317 (1975) 6

Constitution of the United States, Fifth Amendment

; 3, 9, 10, 12

Constitution of the United States, Sixth Amendment 3

Federal Rules of Criminal Procedure, Rule 14 —

Federal Rules of Criminal Procedure, Rule 24a) 3,7

IV

Hearings on the Proposed Rules of Evidence Before the

Special Subcommittee on the Form of Federal Crim-

inal Laws of the House Committee on the Judiciary, ©

93rd Cong., Ist Session, House Hearings Supp. at 56,

58, 59 (1973)

21 U.S.C. Section 841

21 U.S.C. Section 845

wo. * @

226, page 468 | 11

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The petitioner, Nathanial Muhaminad, respectfully

asks that a Writ of Certiorari issue to review the judgment

and opinion rendered by the United States Court of Ap-

peals for the Eighth Circuit in this proceeding, which

said opinion was rendered on February 8, 1977, and the

denial of the Petition for Rehearing or Rehearing by the

Court En Banc, which was entered on March 2, 1977.

A Stay of Mandate was granted by the United States

Court of Appeals for the Eighth Circuit for a thirty (30)

day period beginning March 7, 1977.

OPINION BELOW

The opinion of the United States Court of Appeals,

not yet reported, appears as Appendix “A” hereto.

JURISDICTION

The judgment of the United States Court of Appeals

for the Eighth Circuit was entered on February 8, 1977,

and a Petition for Rehearing or Rehearing in the Court

En Banc was timely filed and was denied on March 2,

1977; this Petition for Certiorari was mailed to be filed

within thirty (30) days of that date. This Court’s juris-

diction is invoked under the provisions of 28 U.S.C. Sec-

tion 1254(1).

QUESTIONS PRESENTED

1. Whether the trial court erred in failing to allow

voir dire of the jurors by the defendant’s attorneys and

to conduct voir dire examination of each prospective juror

individually and out of the presence of other prospective

jurors.

2. Whether the defendant should have been granted

a severance and a separate trial from co-defendants because

of racial and religious overtones; evidentiary conflicts; and

the use of exculpatory statements by co-defendants in

favor of the petitioner.

3. Whether the evidence presented against the defen-

dant wa’ sufficient upon which to sustain a conviction

where such evidence was circumstantial, conflicting, and

required the utilization of co-conspirators’ statements not

made in furtherance of the conspiracy.

CONSTITUTIONAL AND STATUTORY PROVISIONS

AND RULES INVOLVED

Amendment V to the United States Constitution:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in

the land or naval forces, or in the militia, when ir actual

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

person be subject for the same offense to be twice put

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

any criminal case to be a witness against himself, nor

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

of law; nor shall private property be taken for public

use, without just compensation.”

Amendment VI to the United States Constitution:

“In all criminal prosecutions, the accused shall enjoy

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

jury of the state and district wherein the crime shall

have been committed, which district shall have been previ-

ously ascertained by law, and to be informed of the nature

and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the assistance

of counsel for his defense.”

Federal Rules of Criminal Procedure, Rule 24(a):

“The Court may permit the defendant or his attorney

and the attorney for the government to conduct the exami-

nation of prospective jurors or may itself conduct the

examination. In the latter event, the Court shall permit

4

the defendant or his attorney and the attorney for the

government to supplement the examination by such further

inquiry as it deems proper or shall itself submit to the

prospective jurors such additional questions by the parties

or their attorneys as it deems proper.” |

STATEMENT OF THE CASE

The petitioner herein, Nathanial Muhammad, hereafter

referred to as “Muhammad”, was charged by indictment

on September 24, 1975, with a conspiracy to violate

21 U.S.C. Section 841, and with substantive violations of

21 U.S.C. Sections 841 and 845. Four other persons were

named in the indictment and their cases were tried to-

gether over the objection of each of them.

Beginning on March 7, 1975, a co-defendant, James

Jackson, made a series of seventeen (17) sales of heroin

or cocaine to fedeial agents or informants. No other indi-

vidual was present during the sales, although Jackson had

frequent contacts with Muhammad. During extensive tape

recordings and wiretaps in the case, Muhammad’s name

was never mentioned by any party nor was his name

on any recording nor was his voice. Jackson testified

during the trial that he was Chief of Security for Muham-

mad, who was the leader of the Black Muslim religious

organization in Kansas City, and that he visited Muham-

mad’s home several times a day in this role. He denied

that Muhammad was involved in any type of sale of drugs

and denied that he had any knowledge of drug transac-

tions.

On the day of the final drug transaction, July 23,

1975, James Jackson met briefly with Muhammad at Mu-

hammad’s home after the alleged sale. Muhammad was

arrested shortly thereafter and was found to have ten

(10) One Hundred Dollar bills whose numbers cor-

responded to those on the prerecorded money that had

been given to Jackson earlier by a government agent.

Jackson testified that Muhammad had received the pre-

recorded money for a personal loan and had no connec-

tion whatsoever with the sale of the drugs. This was

confirmed by Muhammad in his testimony and the gov-

ernment agents had earlier confirmed that Muhammad

made no attempt to flee or resist arrest and cooperated

fully with them at the time he was stopped and freely

admitted posgession of the money.

Counsel for Muhammad called up co-defendants Mims

and Hudson over the objections of their respective attor-

neys. Each took the Fifth Amendment and refused to

testify. Twenty-five (25) character witnesses testified for

Muhammad, including eight (8) who were non-Muslims.

Muhammad had filed a pre-trial motion requesting

in camera voir dire of prospective jurors by defense coun-

sel, assisted by experts. The trial court overruled the

motion and conducted the voir dire itself, based on a

total of 252 voir dire questions proffered and considered

by the trial court. The court noted that it would question

jurors individually or in camera where general questioning

revealed that a particular venireman might be preju-

diced.

REASONS FOR GRANTING THE WRIT

1. The Decision Below Raises Certain Important

Issues Which Should Be Resolved by This Court Con-

cerning the Interpretation of the Federal Rule of

Evidence 801(d)(2)(e) Concerning Extrajudicial State-

ments of Co-Conspirators.

As acknowledged by the United States Court of Ap-

peals for the Eighth Circuit, a major element of the govern-

ment’s case against Muhammad rested on the extrajudicial

statement of an alleged co-conspirator named Anderson

Jackson. Under the Federal Rules of Evidence, a statement

must have been made during the course of the conspiracy

and in furtherance thereof before it is admissible against

As the Court notes, however, there is widespread dis-

agreement as to the meaning and wisdom of the in further-

ance” requirement under federal law. Even extensive

hearings and strenuous debate during the adoption of the

Federal Rules of Evidence failed to clarify this and may

well have complicated the matter. See Hearings on the

Proposed Rules of Evidence Before the Special Subcom-

mittee on the Form of Federal Criminal Laws of the House

Committee on the Judiciary, 93rd Cong., Ist Session, House

Hearings Supp. at 56, 58, 59 (1973), as reported in Am.

Jur. 2d, Federal Rules of Evidence, Appendix 4, at 314,

316, 317 (1975).

Widespread divergence of opinion has not been re-

solved by the various circuit courts of appeal since inter-

pretations range from its strict application to its reduction

to a concept of relevancy. See, for example, United States

v. Birnbaum, 337 F.2d 490 (2nd Cir. 1964); International

—

a *

7

Indemnity Company v. Lehman, 28 F.2d 1 (7th Cir.), Cert.

denied, 278 U.S. 648 (1928). '

The approach in the Eighth Circuit, and as applied

in this case, is a compromise which retains the “in further-

ance” requirement, but allows a broad interpretation.

United States v. Rich, 518 F.2d 980 (8th Cir. 1975), Cert.

denied U. 8s. (1976); United States v. Overshon,

494 F.2d 894, 899 (8th Cir.), Cert. denied, 419 U.S. 853

(1974).

The need for a final determination in this area and

the establishment of guidelines for the federal courts be-

comes extremly important in light of the ballooning use

of conspiracy statutes by federal prosecutors. Indeed, un-

der the present law, 2n individual might well be convicted

of conspiracy in one jurisdiction but would be acquitted

in another because of the different interpretation of the

evidentiary rule.

2. The Decision Below Creates Serious Constitu-

tional Questions and Issues That Should Be Decided

by This Court Concerning the Discretion That a Trial

Court May Use in Conducting Voir Dire Examination

of Witnesses on Racial Prejudices.

Under Federal Rules of Criminal Procedure 24 (a),

a district court may conduct the voir dire examination

itself or may allow the defendants, through their attorneys,

to conduct the examination.

In past decisions, this Court has emphasized that any

such examination, regardless of source, must be sufficiently

broad to test the potential prejudices and bias of jurors

in a case. Hamling v. United States, 418 U.S. 87, 94 S.

Ct. 2887, 41 L.Ed.2d 590 (1974). Where a trial judge

refuses to interrogate jurors on the subject of racial preju-

dice, or where such interrogation is insufficient and inade-

quate to protect a defendant’s rights, reversal is required

under the due process clause. Ham v. South Carolina,

409 U.S. 524, 93 S. Ct. 848, 35 L.Ed.2d 46 (1973).

In the present case, the trial court did conduct the

voir dire examination of the jury based on questions sub-

mitted by the defendant. The court refused, however,

to conduct an in camera voir dire or to allow examination

by the defendant’s attorneys assisted by experts. The

defendants had previously argued, as recognized by the

opinion of the Court of Appeals, that the case had serious

racial overtones to it and particularly sensitive issues. Ex-

perts had testified during a pre-trial motion that the tech-

nique utilized by the trial court was wholly insufficient

and inadequate to determine the prejudices and bias of

the jurors and to bring them forth for further examination

and consideration. Among these witnesses were a psy-

chiatric social worker and a counseling psychologist. Both

emphasized that in camera voir dire examination would

be crucial since peer pressure would require that the juror

conform to the expectations of the court and the other

members of the jury, i.e., to deny any type of prejudice

or bias. One testified that the majority of racism in Amer-

ica is unexpressed and most would be extremely reluctant

to admit in public or in their peer group that such problems

did exist. Both confirm that straightforward questioning,

as conducted by the court, in open court, is not sufficient

to ferret out the general nature of racism and that only

extensive and sophisticated questioning in the selection

process would impanel a fair and unprejudiced jury.

The jurors in the present case should have been ex-

amined most carefully because of the widespread publicity

that had been given the matter, because of the racial

overtones throughout the case, and because of the position

of the petitioner as the spiritual leader of the area’s Black

Muslim organization. The courts have been unanimous

that extra vigilance must be exercised where questions

of race and religion promise to be important issues within

a case. United States v. Robinson, 485 F.2d 1157 (3rd

Cir. 1973); United States v. Booker, 480 F.2d 1310 (7th

Cir. 1973); United States v. Robinson, 466 F.2d 780 (7th

Cir. 1972).

Perhaps the rule is best stated in United States v.

Bear Runner, 502 F.2d 908 (8th Cir. 1974) where the

court concluded:

“It is fundamental that any erosion of the right to

extensively examine veniremen in order to secure

a fair and impartial jury constitutes prejudicial error.”

The petitioner does not suggest that “in camera” voir

dire is required in each and every case, even where racial

prejudice may exist. Petitioner does respectfully suggest,

however, that under the present circumstances, as sup-

ported by expert testimony, the in camera examination

was the extra step required in order to protect him from

an unfair or biased jury, and to guarantee him due process

of law as required by the Fifth Amendment and Fourteenth

Amendment, United States Constitution.

The petitioner would further suggest that this is a

proper case to consider on certiorari since it would allow the

Court to set guidelines and standards by which trial courts

might be governed in the future in such areas. While

cases such as this must be decided on the individual facts

present, it is presently left solely to the discretion of the

court and the court is left solely to its own guidelines

rather than those that have been promulgated or estab-

lished by this Court.

10

3. The Degision Below Involves Important Con-

stitutional Questions and Questions of Federal Law

Concerning the Improper Joinder of All Defendants

in a Complicated Drug Conspiracy Case, and the Fail-

ure of the Trial Court to Grant the Primary Request

to Sever.

Muhammad was joined with four co-defendants for

trial. He filed a motion to sever his case and all of

the other defendants joined in the severance motion.

Among the reasons for the separate trials cited was

that Muhammad’s defense would rest heavily on the excul-

patory statements of two co-defendants, who would refuse

to testify during the same trial because it might jeopardize

their own defense; the overt acts alleged against Mu-

hammad did not constitute criminal behavior and the jury

would improperly infer criminal disposition through associ-

ation; and because of the unique relationship between Mu-

hammad and the co-defendants that would result in highly

prejudicial racial and religious turmoil.

During the actual trial, the two co-defendants, Spencer

Mims and Harold Hudson, both refused to testify on Mu-

hammad’s behalf based on their Fifth Amendment rights.

Pre-trial proceedings revealed that the certain co-de-

fendants considered Muhammad as “almost a God-like

leader.”

The petitioner acknowledges that a motion to sever

is generally within the discretion of the trial court, Rule

14, Federal Rules of Criminal Procedure. Where the

joinder of the defendants or offenses, however, causes ac-

tual or threatened deprivation of a fair trial, severance

is not discretionary but is mandatory in order to preserve

the defendant’s Constitutional rights. Kotteakos v. United

11

States, 328 U.S. 750, 66 S. Ct. 1239, 90 L.Ed. 1557; United

States v. Butler, 494 F.2d 1246 (10th Cir. 1974); Wright,

Federal Practice and Procedure, Vol. 1, Sec. 226, page

463.

As this Court held in Kotteakos, supra:

„. . . Guilt with us remains individual and personal,

even as respects conspiracy. It is not a matter of

mass application. There are times when of necessity,

because of the nature and scope of the particular feder-

ation, large numbers of persons taking part must be

tried together or perhaps not at all, at any rate as

respects some . even so, the proceedings are excep-

tional to our tradition and call for use of every safe-

guard to individualize each defendant in his relation

to the mass...

“Criminal they may be, but it is not the criminality

of mass conspiracy. They do not invite mass trial

by their conduct nor does our system tolerate it.

That way lies the drift towards totalitarian institution.

True, this may be inconvenient for prosecution. But

our government is not one of mere convenience or

efficiency. It too has a stake, with every citizen,

in his being afforded our historic individual protec-

tions, including those surrounding criminal trials.”

The courts look most closely at a complex or highly

circumstantial case that contains many defendants since

it is this type of case which gives rise to the greater

possibility of error. United States v. Kahn, 381 F.2d 824,

839 (7th Cir. 1967).

Where the probability is strong that a co-defendant

will give helpful testimony at a separate trial, and where

there is evidence to support this position, a separate trial

12

is required in order to assure fairness in the disposition of

the case. United States v. Echeles, 352 F.2d 892 (7th Cir.

1965). Indeed, such evidence requires mandatory sever-

ance, United States v. Shuford, 454 F.2d 772 (4th Cir.

1971); United States v. Martinez, 486 F.2d 15 (1973).

The need for the severance for the exculpatory state-

ments by the co-defendants becomes crucial and essential

in the present case because of the weak case and the highly

circumstantial case that was presented against Muhammad.

The Court of Appeals, however, found that the sever-

ance would not automatically have created an environment

in which his co-defendants could have testified without

waiving their Fifth Amendment privilege. The Court said

the record did not show the clear and precise position of

these witness if the severance had been granted. Such

a holding, however, is sheer speculation and guesswork

and places the burden on Muhammad in such cases. In-

deed, the Court of Appeals noted that the severance of

Muhammad would be a “extreme step”. Quite obviously,

however, the only way that the defendants’ testimony could

have been brought forth would have been through a sepa-

rate trial. Certainly if the testimony of those witnesses

had been as exculpatory as the testimony of another co-

defendant, Jackson, acquittal or perhaps even a directed

verdict of acquittal might have resulted.

Muhammad also argues that the overwhelming evi-

dence of Jackson's guilt overflows prejudicially to him,

thus making severance mandatory. The law is well settled

that one cannot be found guilty of conspiracy through mere

association, or even visiting with a narcotics conspirator,

but in the present case the jury would have had to com-

partmentalize the evidence and to apportion it to each

and every defendant. In the present case, which was

13

extremely complicated and complex, Jackson had freely

admitted his guilt and this clearly affected Muhammad

through association. See, for example, United States v.

DeLarasa, 450 F.2d 1057 (3rd Cir. 1971).

The present case would appear to be quite clearly in

conflict with Kotteakos, supra, which held that a severance

should be granted where two or more groups of individuals

have participated in the number of separate and distinct

conspiracies. In the present case, Muhammad denied all

involvement in the case and Jackson freely admitted his

guilt. In addition to the alleged conspiracy involving

Muhammad, a separate conspiracy allegedly existed be-

tween defendant Jardin and defendant Hudson to smug-

gle heroin into the United States through Texas. The

Court of Appeals acknowledged that the government's

evidence did not connect Hudson directly or indirectly to

Muhammad in the criminal scheme.

Indeed, the conflicting defenses alone would suggest

that a severance was required under the most basic of

Constitutional standards. United States v. Eastwood, 489

F.2d 818 (5th Cir. 1973). =

The Court of Appeals also failed to note that the

evidence against Muhammad was exclusively circumstan-

tial and that substantial evidence was introduced during

his defense to contradict it and to show that it was con-

sistent with his innocence. Under such circumstances,

guilt by association becomes extremely prominent in a

conspiracy case and safeguards must be maintained to

prevent it. See, for example, Baker v. United States, 395

F.2d 368 (8th Cir. 1968); United States v. Cirillo, 499 F.2d

872 (2nd Cir. 1974).

14

4. The Decision of the Court Below Raises Im-

portant and Significant Factual Questions Which Need

to Be Considered by This Court in Certiorari. 7

The petitioner recognizes that this Court normally

will not grant certiorari to review the evidence and dis-

cuss specific facts. In some cases, however, as in the

present one, the decision below seems to be shockingly

wrong and thus presents substantial due process questions.

Thompson v. City of Louisville, 362 U.S. 199; Garner v.

Louisiana, 368 U.S. 157; and Washington v. United States,

357 U.S. 348. The petitioner would respectfully suggest

that the present case requires the examination of this

Court for evidentiary reasons.

The evidence, as previously set forth, established that

a co-defendant, James Jackson, was involved in seventeen

(17) drug transactions with government agents.

The evidence against Muhammad was as follows:

1. Anderson Jackson, a government informant, testi-

fied that James Jackson, his brother, had told him that

Muhammad was involved in selling drugs.

2. Anderson Jackson, the governnient informant,

stated that he had no independent knowledge of Muham-

mad selling drugs, receiving money from the sale of drugs,

and his only information had come solely from James

Jackson.

3. That James Jackson was involved in a series of

seventeen (17) separate drug sales involving government

agents.

4. That on many occasions, James Jackson met with

Muhammad or stopped at his home either before or after

an alleged sale had occurred.

15

5. All such sales occurred in the approximate vicinity

of the Muhammad home.

6. That during extensive tape recordings and wiretaps,

Muhammad’s name was never mentioned by any party

nor was his name on any recording nor was his voice.

7. On the day of final sales transaction, James Jack-

son met briefly with Muhammad after the alleged sale had

occurred.

8. Muhammad was arrested later that day and found

to have ten One Hundred Dollar bills in prerecorded money

that had been given to Jackson earlier by an agent.

9. Jackson testified that Muhammad had received the

prerecorded money for a personal loan and had no connec-

tion whatsoever with the sale of the drugs.

10. Jackson testified that Muhammad was not in-

volved in any type of sale of drugs nor did he have any

knowledge of any drug transactions with Vaughan.

11. Jackson stated that he was Chief of Security for

the Black Muslim organization in Kansas City, and was

required to visit Muhammad and Muhammad’s home sev-

eral times a day.

12. A government agent testified that Muhammad's

name was never mentioned by Jackson during any of their

numerous and lengthy drug dealings.

13. Muhammad himself confirmed that he had asked

Jackson for a personal loan and that he received the money

from Jackson shortly before he was arrested.

14. Twenty-five (25) character witnesses testified on

behalf of Muhammad, including eight (8) who were non-

Muslims, and all confirmed the opposition of Muhammad

to the distribution, sale, or use of any narcotics or drugs.

16

15. Muhammad made no attempt to flee or resist ar-

rest and cooperated fully with arresting agents at the time

he was stopped and freely admitted to the possession of

the money. EY

16. Muhammad was never seen in possession of any

drugs or alleged drugs, nor was he a party to nor was he

mentioned in any of the investigative reports filed by fed-

eral agents.

At the very best, the government’s evidence showed

an association with the perpetrator of the crimes shortly

before or shortly after the offense. The cases are legion

in establishing that this is not sufficient upon which to

base a conviction. United States v. Grose, 525 F.2d 1115

(7th Cir. 1975); United States v. Carengella, 198 F.2d 3

(7th Cir. 1952); United States v. Johnson, 513 F.2d 819

(2nd Cir. 1975); Baker v. United States, 395 F.2d 368, 371

(8th Cir. 1968).

Innuendoes, suggestions, or even strong suspicions are

not sufficient upon which to base a conviction. United

States v. Jones, 418 F.2d 818 (8th Cir. 1969); United States

v. Garrett, 371 F.2d 296 (7th Cir. 1966).

This Court, of course, recognized the principle in Nye

and Nissen v. United States, 336 U.S. 613, 69 S. Ct. 766,

93 L.Ed. 919 (1949).

At the very least, Muhammad must have taken some

type of action to insure the success of the venture; yet,

there is no such proof in the case. United States v. Dallas,

418 F.2d 221 (6th Cir. 1969).

It is, of course, most basic law that where the govern-

ment’s evidence is equally as strong to infer innocence of

the crime, as it is to infer guilt, the verdict must be one

of not guilty and the court has the duty to direct an ac-

17

quittal. United States v. Kelton, 446 F.2d 669 (8th Cir.

1971).

In United States v. Jones, 418 F.2d 818 at 821, an ex-

cellent discussion is presented concerning the formation

of the Rule governing possession of the fruits of a crime,

as well as the long English history involved. The case

clearly demonstrates that the possession of the prerecorded

money by Muhammad, since it has been explained by cir-

cumstances consistent with innocence, cannot be utilized

to justify the conviction.

Indeed, the decision of the United States Court of Ap-

peals for the Eighth Circuit would apparently bring it in

direct conflict with the decision of the United States Court

of Appeals for the Second Circuit in United States v. John-

son, 513 F.2d 819 (2nd Cir. 1975). The Second Circuit,

under similar circumstances and facts, directed a verdict

of acquittal and ruled that guilt could not be inferred by

mere association, mere presence, or even active knowledge

that at the moment of presence a crime was being com-

mitted.

Muhammad has argued from the very beginning of

this matter that his guilt is being established through his

associations, and particularly through the joint trial of all

the defendants. The evidence against the four other de-

fendants was clear, unequivocal, and established their

guilt beyond a reasonable doubt. The evidence against

Muhammad was clearly to the contrary and the chance of

prejudice because of improper joinder becomes a very real

threat to a fair and impartial trial.

18

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Eighth Circuit.

Respectfully submitted,

Davip W. Russe.

Duncan & RussELL

2700 Kendallwood Parkway

Kansas City, Missouri 64119

(816) 454-7300

Attorney for Petitioner

— — äꝓ—6—ä—ñt

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APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 76-1093

No. 76-1094

No. 76-1095

No. 76-1105

No. 76-1112

United States of America,

Appellee,

V.

James Jackson, Harold Hudson, Lushrie Jardan, Spencer

Mims, and Nathaniel Muhammad,

Appellants.

Appeal from the United States District Court for the

Western District of Missouri.

Submitted: October 11, 1976

Filed: February 8, 1977

Before GIBSON, Chief Judge, HEANEY, and WEBSTER,

Circuit Judges.

GIBSON, Chief Judge.

This case involves a major drug distribution scheme

centered in Kansas City, Missouri. In September, 1975, a

42

fifteen count indictment was returned against James Jack-

son, Nathaniel Muhammad, Lushrie Jardan, Harold Hudson,

Spencer Mims and Juan Pablo Garcia,’ charging a con-

spiracy to distribute heroin and cocaine and to possess

heroin and cocaine with intent to distribute in violation

of 21 U.S.C. $§ 841 (a) (1) and 846. In addition to the

single count of conspiracy, Jackson was also charged with

ten substantive counts alleging distribution of heroin or

cocaine in violation of 21 U.S.C. § 841(a)(1) and with

three counts alleging distribution of heroin in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.2, Muhammad and

Mims were each charged with two substantive counts of

unlawful distribution of heroin in violation of 21 U.S.C.

§ 841(a)(1) and 18 U.S.C. § 2. Hudson was charged only

with conspiracy, as was Juan Pablo Garcia, who pled

guilty prior to trial. The remaining five defendants, ap-

pellants here, were tried jointly and convicted as charged

after an extensive jury trial.

The evidence portrays a well organized illegal con-

spiracy for the sale and distribution of controlled sub-

stances extending at least from early January, 1975 until

July 23, 1975. Probative evidence of at least 61 overt

acts, thirteen of which constituted substantive violations

We note, because defendants make constant reference to

the fact in their briefs, that all defendants except Garcia are

members of the Nation of Islam, commonly known as the Black

Muslim faith, Muhammad serves as the local leader of this faith

in the Kansas City area. Jackson was, at least prior to his

arrest, a Captain of Security for the Temple of Islam. Mims was

one of Muhammad’s assistant ministers and a Supervising Captain

in the Black Muslim hierarchy. Hudson and Jardan subscribe to

the Black Muslim faith, but apparently did not figure in the

upper echelons of the religious organization prior to their arrests.

Count II of the indictment charged Jackson with the alleged

distribution of cocaine to a person under twenty-one years of

age in violation of 21 U.S.C. §§ 841(a)(1) and 845. That count

was not submitted to the jury, however, and was dismissed by

the trial court, the Honorable Elmo B. Hunter, United States

District Judge for the Western District of Missouri.

A3

of federal narcotics law, was presented to the jury. Start-

ing on March 7, 1975, Jackson made a series of seventeen

sales of heroin or cocaine to federal agents or informants.

Fifteen of these sales were made to Harold T. Vaughan,

a special agent for the Drug Enforcement Administration

(DEA). Jackson was the sole conspirator present at these

illegal sales. His conduct during the course of the con-

spiracy, however, established a salient pattern of frequent

contacts with Muhammad, particularly during negotiations

for sales of narcotics and before and after these sales. On

May 9, 1975, for example, Jackson visited Muhammad’s

residence both before and immediately after a sale of

three ounces of heroin to Agent Vaughan. On both May

13 and May 31, Jackson went directly to Muhammad’s

residence following two sales of $1,800 worth of heroin

each. On June 5, 1975, Jackson bifurcated a sale of seven

ounces of heroin by first delivering five ounces to Agent

Vaughan, then meeting with Muhammad and Mims, and

finally returning to Vaughan with the remaining two

ounces. Jackson visited Muhammad’s residence immedi-

ately after completing the second part of the sale. On

June 13, Jackson proceeded from a sale of twelve grams

of cocaine directly to Mohammad’s residence. On June 30,

after Jackson sold 50 grams of heroin to Vaughan for $3,000

and boasted of “his man’s” ability to bring a large quantity

of 80% pure heroin to Kansas City, he imediately drove to

Muhammad's residence. On July 9, Jackson went directly

from Muharnmad’s residence to Vaughan’s apartment,

where a sale of 26 grams of heroin was made, and then

returned to Muhammad’s residence by a circuitous route.

When, on July 11, Vaughan paid Jackson the balance of

$1,300 due on the July 9 purchase, J ackson proceeded

straight to Muhammad’s residence. Finally, on July 23,

Muhammad met with Jackson at Jackson’s residence prior

to Jackson’s sale of thirteen grams of heroin to Vaughan

Al

for $1,600. Following this sale, Jackson drove to Muham-

mad's residence. When Muhammad was arrested on July

23, agents discovered on his person $1,000 in bills with

pre-recorded serial numbers which had been given by

Vaughan to Jackson for the thirteen grams of heroin.

When Jackson was arrested on that same day, the remain-

ing $600 in bills with pre-recorded serial numbers was

recovered from him.

Court-approved wiretaps of the telephones of Jackson,

Mims and Jardan produced evidence of various conversa-

tions between Jackson and Mims and between Mims and

Jardan which were interpreted by federal agents to relate

to sales of narcotics. Mims, Jardan and Hudson were

participants in an arrangement with Garcia which involved

the purchase of a large amount of heroin. Mims and

Jardan traveled to El Paso, Texas, on June 14, 1975, where

they obtained approximately one kilogram of brown heroin

from Garcia, a citizen of Mexico. Although they paid

Garcia only $7,000 of the $40,000 purchase price, he allowed

them to take the heroin back to Kansas City, on the under-

standing that Jardan would quickly acquire the additional

money, return to El Paso and pay Garcia in full. After

a fruitless three day wait in El Paso, Garcia telephoned

Jardan, who quibbled over the quality of the heroin and

sought to obtain a lower price. It was agieed that the

heroin would be returned to Garcia by a man with a

missing finger, defendant Hudson. On June 17, Hudson

delivered a package to Garcia in El Paso, which was short

approximately one-quarter kilo. Hudson stated that he

“really [didn’t] know anything about that”, but called

Jardan, talked to him and then allowed Garcia to talk

to him. Eventually Jardan and Garcia reached a new

agreement for the purchase of twenty ounces of the heroin.

They were arrested on July 10, 1975 in New Orleans,

Louisiana, where they were meeting to consummate the

A5

first step of the new deal. A search of Garcia’s hand

luggage following his arrest revealed twenty ounces of

heroin. .

Defendants’ joint jury trial commenced on December

1, 1975, and ended on December 13, 1975, with their convic-

tions on all charges. All defendants appeal.

I

Muhammad, Mims and Jackson challenge the validity

of the voir dire examination conducted by the trial court.

They contend that this case was “unusually sensitive” be-

cause of its concurrent racial and religious aspects and

that a “most searching and most thorough” examination

of jurors was, accordingly, required in order to reveal

prejudice. It is defendants’ position that the only adequate

means of voir dire examination under the circumstances

of this case would have been an in camera questioning

of individual veniremen by defense attorneys.

All defendants requested permission to conduct voir

dire examination themselves, assisted by experts. Muham-

mad filed a written pretrial motion requesting in camera

voir dire by defense counsel. An evidentiary hearing was

held at which defendants presented expert testimony on

the question of racial prejudice. The trial court subse-

quently overruled defendants’ motions and determined that

it would adhere to the usual practice in the Western Dis-

trict of Missouri and conduct the voir dire examination

itself. The trial court solicited initial and follow-up ques-

tions from defense counsel. Counsel for Jardan and

Muhammad proffered and the court considered a total

of 252 voir dire questions. The court also announced its

willingness to question jurors individually and in camera

where general questioning revealed that a particular

venireman might be prejudiced.

A6

The form and scope of voir dire examination are mat-

ters left to the broad discretion of the trial court. Ham-

ling v. United States, 418 U.S. 87 (1974); United States

v. Cosby, 529 F.2d 143, 147 (8th Cir.), cert. denied.

U.S. — (1976); Fed. R. Crim. P. 24 (a). The trial court

here asked most of the approximately 250 questions sub-

mitted by defendants, many of which went to the issues

of racial prejudice and exposure to pretrial publicity.

Where general questioning revealed potential prejudice,

follow-up questioning of individual veniremen was con-

ducted by the trial court in camera. Examination was

particularly penetrating with regard to the sensitive issues

of exposure to pretrial publicity and racial prejudice. See

Ham v. South Carolina, 409 U.S. 524 (1973); United States

v. Crow Dog, 532 F.2d 1182, 1198 (8th Cir. 1976), petition

for cert. filed, 44 U.S.L.W. 3749 (U.S. June 21, 1976) (No.

75-1843) ; United States v. Bear Runner, 502 F.2d 908 (8th

Cir. 1974). A review of the record shows that the trial

court’s voir dire examination combined careful attention

to the identification of possible prejudice with skillful

avoidance of the confusion and delay that may arise when

a jury is selected in a multiple defendant case where

there is the potential of conflicting defenses. We conclude

that the trial court did not abuse its discretion in its

conduct of the voir dire examination.

In the designation of issues on appeal. defendants also chal-

lenge the validity of jury selection. They contend that the

Government’s striking of several blacks from the jury panel was

part of a systematic practice by the Government to strike blacks

from juries in the Western District of Missouri. An identical

contention was raised in United States v. Carter, 528 F.2d 844,

848 (8th Cir. 1975), cert. denied. 1 (1976), con-

cerning the Government’s use of jury s’rikes in the Western

District of Missouri in 1974. The court in Carter found that the

defendant had failed to establish that the Government’s use of

jury strikes in the Western District of Missouri in 1974 con-

stituted an impermissible practice under Swain v. Alabama, 380

U.S. 202 (1965). In the instant case, a post-trial hearing was

(Footnote continued on following page)

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A7

II

Many contentions raised on this appeal relate to the

question of whether defendants were so prejudiced by

the joint trial as to require severance. Defendants were

joined pursuant to Fed. R. Crim. P. 8 and the propriety

of this initial joinder has not been contested. Rather,

each defendant contends that although the initial joinder

was proper, prejudice resulted therefrom during the joint

trial, mandating a severance under Fed. R. Crim. P. 14.

It is the general rule that persons charged in a con-

spiracy should be tried together, particularly where proof

of the charges against the defendants is based upon the

same evidence and acts. United States v. Kirk, 534 F. 2d

1262, 1269 (8th Cir. 1976); United States v. Hutchinson,

488 F.2d 484, 492 (8th Cir. 1973), cert. denied, 417 U.S.

915 (1974); United States v. Kahn, 381 F.2d 824, 838 (7th

Cir.), cert. denied, 389 U.S. 1015 (1967). Severance will

be allowed upon a showing of real prejudice to an individ-

ual defendant. United States v. Hutchinson, supra at 492.

However, the motion to sever is addressed to the discre-

tion of the trial court, Williams v. United States, 416 F.2d

1064 (8th Cir. 1969), and a denial of severance is not

grounds for reversal unless clear prejudice and an abuse

of discretion are shown. Johnson v. United States, 356

F.2d 680 (8th Cir.), cert. denied, 385 U.S. 857 (1966).

A defendant must show something more than the mere

Footnote Continued—

's part striking bissks from jury pene mort

a ng District of Saissourl 1973, 1974 or 1975. The court

selected. defendants have presented on appeal con-

i us Sen the court’s resolution of this issue did not

rest on a firm factual and legal basis.

ee ae ae ee

A8

fact that his chances for acquittal would have been better

had he been tried separately. Williams v. United States,

supra at 1070. He must “affirmatively demonstrate that

the joint trial prejudiced [his] right to a fair trial.” Gol-

liher v. United States, 362 F.2d 594, 603 (8th Cir. 1966).

Thus, before the refusal to sever may be deemed an abuse

of discretion on the part of the trial court, prejudice to

a defendant’s right to a fair trial must be established.

Relying upon these principles, we now turn to defendants’

numerous severance claims.

Muhammad contends that the denial of his motion

for severance deprived him of the exonerating testimony

of his co-defendants. At a pretrial evidentiary hearing,

each of Muhammad’s four co-defendants testified that he

had information that might exonerate Muhammad and that

he would be willing to give that information at trial so

long as no waiver of his Fifth Amendment rights was

required. At the hearing, each co-defendant then exer-

cised his Fifth Amendment privilege and refused to di-

vulge the nature of this allegedly exculpatory information.

The trial court declined to sever Muhammad from the

forthcoming trial on this basis.

At trial, Jackson and Jardan chose to testify on Mu-

hammad’s behalf. Hudson and Mims expressed to the

trial court their intention to exercise their Fifth Amend-

ment privileges if called and they were not, therefore,

called at trial to testify on Muhammad’s behalf. Muham-

mad argues that the denial of his severance motion caused

Hudson and Mims not to testify in his favor and that

this denial prejudiced his right to a fair trial.

At the pretrial hearing, Muhammad supported his mo-

tion for severance solely by the statements of his co-

defendants that they had or believed that they had in-

formation “which may tend to exonerate” Muhammad.

A9

No details of the nature, extent or materiality of this

purportedly exculpatory evidence were placed before the

trial court. Nor did any of the co-defendants, who had

affirmatively stated an unwillingness to waive their Fifth

Amendment rights, specifically express a willingness to

testify in the event Muhammad was tried separately. Sev-

erance of Muhammad would not automatically have cre-

ated an environment in which his co-defendants could

have testified without waiving their Fifth Amendment

rights. If Muhammad had been severed and tried first,

his co-defendants would have had to waive their Fifth

Amendment rights in order to testify on his behalf. United

States v. Carella, 411 F.2d 729, 731 (2d Cir.), cert. denied,

396 U.S. 860 (1969). Thus, the co-defendants’ pretrial

stance, that they would not waive their Fifth Amendment

rights at the forthcoming joint trial, could not be consid-

ered equivalent to assurances that they would testify for

Muhammad at a separate trial.

The trial cou.: was, accordingly, asked to take the

extreme step of severing Muhammad without any knowl-

edge of the nature or extent of purportedly exculpatory

evidence and without any indications that co-defendants

would in fact be willing to offer such evidence in the

event of severance. The bald and conclusory assertions

of Muhammad’s co-defendants that they possessed poten-

tially exculpatory evidence did not provide adequate

grounds for pretrial severance in this multi-defendant trial.

The trial court did not abuse its discretion in refusing

to grant Muhammad’s motion for severance.‘

We note that where an appropriate record concerning the

exculpatory evidence that would be available from a co-defendant

in the event of separate trials has been offered, some courts have

isolated certain circumstances under which severance is deemed

obligatory. United States v. Sica, 20 Crim. L. Rep. (BNA) 2170

(3d Cir. Oct. 20, 1976); United States v. Martinez, 486 F.2d 15

(Footnote continued on following page)

Al0

The fact that two co-defendants chose to testify on

Muhammad’s behalf at trial serves to vitiate any claim

of prejudice on his part as well as to highlight the purely

speculative nature of the basis on which the trial court

was asked to grant a severance. Despite their pretrial

posture, that they would only exonerate Muhammad if

they could do so without waiving their Fifth Amendment

rights, Jardan and Jackson, the central figure in this case,

offered allegedly exculpatory evidence for Muhammad at

trial. Hudson and Mims chose not to so testify, and prior

to trial the court was offered no reason to believe that

they would testify in the event of separate trials, for

a grant of separate trials would not necessarily have al-

lowed Mims and Hudson to testify for Muhammad without

foregoing their Fifth Amendment rights. United States

v. Carella, supra at 731; United States v. Frazier, 394

F.2d 258, 261 (4th Cir. 1968). While it is impossible to

ascertain the nature of the evidence that Mims and Hud-

son® might have offered, we note that this is not a case

where refusal to sever denied a defendant all potentially

Footnote Continued—

(5th Cir. 1973); United States v. Shuford, 454 F.2d 772 (4th Cir.

1971) ; Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970); United

States v. Echeles, 352 F.2d 892 (7th Cir. 1965). Where, as here,

the record has simply shown an unsupported contention that

severance could result in exculpatory testimony of a co-defendant,

courts have consistently declined to grant severance. United States

The value of any allegedly exculpatory evidence that Hudson

could have offered is questionable in light of the fact that the

Government's evidence did not connect Hudson directly to Muham-

mad in the criminal scheme.

All

exculpatory evidence or the only means of attacking or

countering a crucial aspect of the Government's case. Thus,

the record does not support a finding that severance was

mandated prior to trial or that denial of severance ulti-

mately prejudiced Muhammad at trial.

Muhammad, Mims, Jardan and Hudson contend that

the overwhelming evidence of Jackson’s guilt overflowed

prejudicially onto them and resulted in convictions based

upon their association with him during the joint trial.°

The preference for joint trials of defendants jointly in-

dicted, particularly where conspiracy is charged, United

States v. Hutchinson, supra at 492, is not limited by any

requirement that the quantum of evidence of each defen-

dant’s culpability be equal. It is indeed hard to imagine

a multiple defendant case in which the evidence against

individual defendants is either quantitatively or qualita-

tively equivalent. A defendant is not entitled to severance

merely because the evidence against a co-defendant is more

damaging than the evidence against him. United States

v. DeLarosa, 450 F.2d 1057, 1065 (3d Cir. 1971), cert. denied,

405 U.S. 927 (1972). Severance becomes necessary where

the proof is such that a jury could not be expected to

compartmentalize the evidence as it relates to separate

defendants. United States v. De _arosa, supra at 1065.

ein conjunction with this contention, defendants make the

bare and unsupported allegation that severance was necessary

because of their reliance on inconsistent defenses. In order to

demonstrate an abuse of discretion, defendants must show more

than the fact that co-defendants whose strategies were generally

antagonistic were tried together. United States v. Robinson, 432

F.2d 1348 (D.C. Cir. 1970). All that the defendants here have

shown is that each defendant relied on general denial, except for

who

lish a t to a severance. United States v. .

818 este Cir. 1973). The trial court did not abuse its discretion

in refusing to sever on the basis of inconsistent defenses.

Al2

A review of the record does not persuade us that

this situation existed in the present case. Jackson was

charged with a greater number of substantive offenses

than were his co-defendants. Because the Government

undertook to establish his complicity by showing his par-

ticipation in this greater number of offenses, there was

necessarily more evidence adduced against Jackson than

against his co-defendants. The presentation of more evi-

dence applicable to one defendant than to his co-defendants

is simply a fact of life in multiple defendant cases. The

greater amount of evidence introduced against Jackson

here was not far more damaging than the evidence relat-

ing to his co-defendants, but only more from a quantita-

tive standpoint: The quantitative inequality of evidence

adduced provides no ground for a severance. Nor does

the record support a finding that the evidence presented

at trial was of such a nature that the jury could not

compartmentalize it to the particular defendant or defen-

dants to whom it was applicable. The cases cited by

defendants in support of this contention are largely inappo-

site, for they involve the peculiar circumstance, not present

here, where evidence at a joint trial shows that two or

more groups of individuals have participated in a number

of separate and distinct conspiracies. Kotteakos v. United

States, 328 U.S. 750 (1946); United States v. Butler, 494

F.2d 1246 (10th Cir. 1974); United States v. Varelli, 407

F.2d 735 (7th Cir. 1969).

The Government’s method of presenting its evidence,

discussed below, served to carefully delineate separate

events and occurrences and thus to protect against confu-

sion by the jury as to the applicability of any given evi-

dence to a particular defendant. Each defendant was rep-

resented by his own counsel. The limited applicability

of evidence adduced to individual defendants was clearly

Al3

explained to the jury during the progress of the trial.

Moreover, a review of the jury instructions shows that

the jury was carefully instructed in a manner that pro-

tected defendants from any improper overflow of evidence

from one to another and there is nothing in the record

indicating that the jury was confused or failed to follow

the court’s instructions.

Jackson, Jardan, Mims and Hudson contend that they

were prejudiced by the security measures in effect during

the trial which, they argue, would have been unnecessary

had their motions for severance been granted. It is their

allegation that the jury was constantly exposed to “ex-

traordinary security measures” throughout the trial and

that this exposure created in the jury a misimpression that

defendants were dangerous individuals. Defendants rely

upon the principle that the fundamental presumption of

innocence may be weakened when a criminal defendant

is not clothed with the physical indicia of innocence at

trial. Kennedy v. Cardwell, 487 F.2d 101 (6th Cir. 1973),

cert. denied, 416 U.S. 959 (1974). Thus, where, as here,

maximum security measures are taken during a particu-

lar trial, it may be necessary to determine whether these

measures denied defendants the right to a fair trial by de-

priving them of the physical indicia of innocence.

The security measures utilized at trial included the

presence of five plainclothes United States Marshals in

the courtroom, the posting of several Marshals outside the

front doors of the courtroom and the use of an electronic

metal detecting device on all spectators entering the court-

room.’ We note initially that under the circumstances of

e

licized ttended many persons curiosity

a yg A A RF A -F—

Alé4

this case, where three of five defendants were incarcer-

ated during trial, several Government witnesses were in

state or federal custody and a large number of spectators

were constantly in attendance, these measures were nei-

ther undue, United States v. Howell, 514 F.2d 710, 715 (5th

Cir.), cert. denied, 423 U.S. 914 (1975), nor beyond the

sound discretion of the trial court. Gregory v. United

States, 365 F.2d 203, 205 (8th Cir. 1966), cert. denied, 385

U.S. 1029 (1967). Furthermore, a review of the record

shows the crux of defendants’ contention, that the jury

was constantly exposed to these measures, to be unfounded.

To the contrary, it is clear that the jury was carefully

shielded from contact with or awareness of the security

measures in effect during the course of the trial. Aside

from the security measures to which all veniremen were

exposed when they arrived at the courthouse on Decem-

ber 1, 1975, the jury was not exposed to any security mea-

sures other than those normally utilized in a case where

the jury is sequestered.* Thus, not only were the security

measures utilized here appropriate under the circum-

stances and well within the discretion of the trial court,

Gregory v. United States, supra at 205, but they were im-

plemented in a manner which did not deprive defendants

of the physical indicia of innocence to which they were

entitled.

»The jurors entered and left both the courthouse and court-

room through back entrances, thus avoiding contact with the

security measures in effect at the entrances to the building and

courtroom. The United States Marshals in the courtroom were

nonuniformed.

It was alleged by Jardan for the first time at a post-trial

hearing that a woman juror had seen defendants in jail garb and

handcuffs in the courthouse parking lot at some point during the

course of the trial. Questioning revealed that Jardan was not

sure whether the woman was a juror or securi More-

over, none of Jardan’s co-def ts 1 — F his allegation

and it was not brought to the trial court's attention until after

(Footnote continued on following page)

Ly —

Al5

Mims, Jardan, Jackson and Hudson contend that

they should have been granted separate trials because of

the prejudice they suffered in the eyes of the largely

Christian jury as a result of the introduction into evidence

by Muhammad of a videotape critical of Christians. A

major part of Muhammad’s defense consisted of evidence

of his public opposition, as a religious leader, to the use

of narcotics. As part of this evidence, videotaped excerpts

of five of Muhammad’s sermons were played for the jury.

Prior to their introduction, Muhammad’s counsel advised

the court that the ‘tapes in question related to Muham-

mad’s position on narcotics and a witness who had chosen

the tapes testified that this was their subject matter.

On the fifth tape played, Muhammad denounced

Christians as sinners and hypocrites, At the conclusion

of this tape, counsel for Mims moved for a mistrial on the

grounds that the content of the tape had offended the

jury, composed mostly of Christians, and thus prejudiced

his client. The trial court immediately charged the jury

that the last tape was irrelevant to any issue in the case

and instructed that it be disregarded. After a short re-

cess, the court again instructed the jury to disregard the

last tape, stating that the tape had been offered by Mu-

hammad alone “and not by anyone else.”

The playing of this videotape interjected a brief but

unfortunate interlude of irrelevance into the trial. We

Footnote Continued—

the conclusion of the trial. Assuming arguendo that one member

of the jury was exposed to a glimpse of the defendants in jail

uniforms and handcuffs and that this incident is now cognizable

on appeal, we find that no prejudice has been shown to have

resulted. United States v. Leach, 429 F.2d 956, 962 (8th Cir.

1970), cert. denied, 402 U.S. 986 (1971). Unlike the situation

where a defendant is tried in jail garb, Estelle v. Williams, 425

U.S. 501 (1976), far less danger of prejudice inheres in a situation

where a juror’s vision of a defendant in jail uniform is fleeting

and outside the courtroom.

Al6

note, as did the trial court, that there was no reference in

the anti-Christian tape to Muhammad’s co-defendants or

any indication that they personally endorsed the views ex-

pressed in the sermon. We are convinced that the trial

court’s immediate and firm curative instructions served to

prevent any prejudicial effect on Muhammad’s co-defen-

dants.

Mims, Jardan and Hudson moved for continuances on

December 1, 1975, the date set for the commencement of

trial. Muhammad and Jackson, who were satisfied with

the trial date, did not join in the motion. Mims, Jardan

and Hudson contend that the defendants’ disparate posi-

tions on the desirability of a continuance mandated sev-

erances. We find this contention to be lacking in merit.

A A motion for a continuance is addressed to the sound dis-

cretion of the trial court. United States v. Webb, 533 F.2d

391, 395 (8th Cir. 1976); Kansas City Star Co. v. United

States, 240 F.2d 643, 651 (8th Cir.), cert. denied, 354 U.S.

923 (1957). A review of the record shows that the trial

court did not abuse its discretion in denying the motion

for continuance.

All defendants contend that the manner in which the

testimony of Special Agent Vaughan was elicited at trial

10Closely allied to defendants’ contentions concerning the anti-

Christian videotape are allegations that severance should have

been granted because Muhammad’s co-defendants were prejudiced

by the religious “undertones” of the trial. It appears that de-

fendants base this contention on an assumption, unsupported by

any evidence, that the Black Muslim faith is so unpopular that

to be associated with it is automatically prejudicial. Even if we

assume arguendo that the present trial was pervaded by religious

“undertones” and that the Black Muslim faith is un , de-

fendants have failed to show that the trial court abused its dis-

cretion in refusing to grant motions for severance on this basis.

The unfavorable impression created by a defendant’s identifica-

tion with an unpopular group does not require severance. United

States v. DeLarosa, 450 F.2d 1057, 1065 (3d Cir. 1971), cert. de-

nied, 405 U.S. 927 (1972).

Al7

prejudiced them to a degree requiring reversal.“ Agent

Vaughan was a key Government witness, who was per-

sonally involved in many of the narcotics sales at issue.

Rather than placing Agent Vaughan on the witness stand

only once, the Government proposed to the trial court a

presentation of Agent Vaughan’s testimony whereby he

would be recalled from time to time in order to testify

about individual transactions in chronological order. De-

spite defendants’ objections, the trial court agreed to per-

mit Agent Vaughan to be recalled a number of times to

testify chronologically. A special system of cross-exami-

nation was devised by the trial court to insure that the

defendants’ rights under the Sixth Amendment would not

be diminished in any way by this somewhat novel presen-

tation of evidence. After each appearance, Agent Vaughan

was subject to cross-examination on the subject matter of

that appearance as well as to cross-examination on the is-

sue of credibility. On his final appearance, Agent Vaughan

was subject to full cross-examination covering all his trial

testimony. Thus, the chronological presentation of Agent

Vaughan’s testimony provided each defendant with nu-

merous opportunities for cross-examination as to both

credibility and the subject matter of his testimony.

The mode and order of interrogation and presentation

of evidence are matters placed within the discretion of the

trial court. Brinlee v. United States, 496 F.2d 351, 355

(8th Cir.), cert. denied, 419 U.S. 878 (1974); Fed. R. Ev.

611(a). A review of the record shows that the manner

in which Agent Vaughan was called to testify lent a praise-

1 Hudson and Jardan raise this contention as an aspect of

their severance contention. Mims, Muhammad and Jackson do

not tie their claim of prejudice on this basis to the severance

issue. Whether the matter of Vaughan’s testimony is deemed an

aspect of trial management or a part of the question of severance,

it — be - ore in terms of its impact on defendants’ rights

to a fair tria

Als

worthy degree of order to this complicated trial. Clearly,

a desire for the orderly presentation of evidence does not

outweigh a defendant’s right to a fair trial. We find noth-

ing in the record to indicate, however, that the chrono-

logical presentation of Agent Vaughan’s testimony dimin-

ished defendants’ rights to cross-examination or preju-

diced their rights to a fair trial in any way. The trial

court carefully exercised its discretion in managing the

presentation of Vaughan’s testimony in such a way as to

fully protect defendants’ rights. There was no abuse of

discretion in permitting the Government to present its evi-

dence chronologically through the repeated recall of Agent

Vaughan as a witness. In fact, this procedure is com-

mended as one way to clearly present an organized factual

recital in an extended conspiracy trial.

Hudson, Jardan and Mims contend that severance

should have been granted because of the prejudice they

suffered as a result of heated colloquy between counsel

for Muhammad and Jackson and the prosecutor. The rec-

ord does reveal a certain, not uncommon, amount of profes-

sional enmity between counsel for Muhammad and Jackson

and Government counsel. The purportedly prejudicial col-

loquy cited by defendants as grounds for severance did

not occur within the hearing of the jury, however, for

in its management of the trial the court required that

objections be made at the bench and out of the hearing

of the jury. The court was indeed so careful to protect

the jury from exposure to colloquy between counsel that

the jury was excused for a brief recess during an objection

12The court was attuned to the danger that Agent Vaughan’s

testimony could become so piecemeal as to confuse rather than

clarify matters. Thus, when on one occasion the Government

proposed to recall Vaughan several times to establish a single

transaction, the court required a consolidation of all his testi-

mony with respect to a given date and count.

Al9

by Government counsel to defense cross-examination of

Agent Vaughan. Contrary to defendants’ contentions, the

jury was not exposed to heated colloquy between Muham-

mad’s and Jackson’s counsel and the prosecutor. The jury’s

mere observation of various defense counsel approaching

the bench from time to time in order to voice objections

can hardly be deemed equivalent to the jury’s exposure

to colloquy between counsel prejudicial to co-defendants.

Accordingly, severance was not mandated on this basis.

4

Hudson raises two severance contentions in which he

is not joined by other defendants. First, Hudson contends

that part of Muhammad’s cross-examination of Agent

Vaughan prejudiced him and required severance. We have

carefully reviewed the cross-examination which Hudson

now challenges. It consists of a very brief series of ques-

tions relating to surveillance of Hudson’s arrival in El

Paso. Agent Vaughan did not purport to answer these

questions on the basis of first-hand knowledge. He specif-

ically qualified his responses in terms of what he “imag-

ined” had happened in El Paso. Moreover, his responses

were consistent with previous testimony from other wit-

nesses and did not conflict in any way with Hudson’s

defense, which contained no denial of the trip to El Paso.

Thus, we find the cross-examination challenged by Hudson

to have had no prejudicial effect upon him.

Secondly, Hudson contends that even if the individual

reasons he cites for severance are insufficient, they cumu-

late to a level of prejudice that mandates severance. The

cases Hudson relies upon in support of this contention

stand simply for the principle that a trial judge has a

continuing duty to grant severance if prejudice appears.

The close scrutiny which we have directed, to the record

in this case in weighing the myriad severance contentions

of Hudson and his co-defendants convinces us that the

A20

trial court admirably exercised its continuing duty to pre-

vent prejudice to individual defendants as a result of

the joint trial and that prejudice requiring severance did

not materialize at trial. Thus, the court did not abuse its

discretion in refusing to grant severance on the basis of

any of the individual grounds advanced by defendants

or on the basis of the combined effect of these grounds.

III

Hudson, Mims and Muhammad attack the sufficiency

of the evidence supporting their convictions. Certain well

known principles apply to the appellate review of the

sufficiency of evidence underlying jury verdicts of guilty.

It is our duty to view the evidence in the light most

favorable to the verdict rendered. Glasser v. United States,

315 U.S. 60, 80 (1942). We must accept as established

all reasonable inferences from the evidence that tend to

support the jury’s verdict. United States v. Overshon,

494 F.2d 894 (8th Cir.), cert. denied, 419 U.S. 853 (1974).

It is the general rule that the evidence need not “exclude

every reasonable hypothesis except that of guilt, but simply

that it be sufficient to convince the jury beyond a reason-

able doubt that the defendant is guilty.” United States

v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied,

423 U.S. 893 (1975). Furthermore, since circumstantial

evidence is intrinsically as probative as direct evidence,

Holland v. United States, 348 U.S. 121, 140 (1954), this

standard also applies where a conviction rests entirely

on circumstantial evidence. United States v. Carlson, No.

76-1363, slip op. at 22 (8th Cir. Dec. 17, 1976). Relying

upon these familiar principles, we will now address de-

fendants’ attacks upon the sufficiency of the evidence sup-

porting their convictions.

—

A2¹

The threshold question is whether the existence of

a conspiracy was established. The offense of conspiracy

consists of an agreement between the conspirators to effect

the object of the conspiracy.” United States v. Skillman,

442 F.2d 542, 547 (8th Cir.), cert. denied, 404 U.S. 833

(1971). The agreement need not be express or formal.

It may be established by circumstantial evidence. United

States v. Hutchinson, supra at 490; Koolish v. United States,

340 F.2d 513, 523-24 (8th Cir.), cert. denied, 381 U.S. 951

(1965). A review of the record here reveals abundant

evidence from which the jury could find the existence

of a conspiracy to distribute heroin and cocaine. The

facts of this case have already been recited and need

not be repeated in detail here. It will suffice to say

that the testimony of Agent Vaughan, Juan Pablo Garcia

and Anderson Jackson and the evidence derived from ex-

tensive surveillance and from court-authorized wiretaps

was more than sufficient to establish the nature and exis-

tence of a well organized and adroitly conducted conspiracy

to distribute heroin and cocaine.

Hudson, who was charged only with conspiracy, con-

tends that evidence of his involvement therein was legally

insufficient. The principal evidence probative of his par-

ticipation in the conspiracy was established by the testi-

mony of Juan Pablo Garcia, a co-defendant who had pled

guilty prior to trial. After the partial credit transaction

between Garcia and Jardan for one kilogram of heroin

went sour, Garcia demanded the return of the narcotics.

Jardan informed Garcia that the heroin would be returned

to him in El Paso, Texas, by a man with a missing finger.“

Following this telephone conversation, Hudson took a com-

18At trial, Hudson was required to display his left hand,

which has a missing index finger, to the jury. Garcia also iden-

tified Hudson at trial as the man who returned the heroin to

him in El Paso.

—— es

A22

mercial flight to El Paso. Upon his arrival at Garcia’s

motel room in El Paso, Garcia asked Hudson “if he had

the stuff with him.” Hudson replied affirmatively, re-

moved a package containing heroin from his suitcase and

handed it to Garcia. Garcia immediately perceived that

the package did not contain the original full kilogram

of heroin and confronted Hudson with the obvious short-

age: “You know, you're short with this. This is not the

whole kilo.” Hudson replied: Well, I don’t know any-

thing about it. They just gave me this to give back to

you.” Hudson then offered to call Jardan in Kansas City

in order to find out what was going on. He made a

telephone call during which first he and then Garcia talked

to Jardan. Garcia expressed his anger at the “rip off”

to Jardan, who denied any shortage. Upon Garci’s an-

nouncement that he was going to leave, Hudson asked

for the money. Garcia responded that he could not give

the money back as a result of the shortage. Garcia then

left with the narcotics and Hudson subsequently returned

to Kansas City.

Hudson does not deny his participation in the return

of the heroin to Garcia in El Paso. He contends, however,

that he did not know that the package he carried in his

role as courier contained narcotics and that consequently

the requisite element of his knowledge of the conspiracy

was not established.“ In support of this contention, he

14Hudson relies chiefly on United States v. Amato, 495 F.2d

545 (5th Cir.), cert. denied, 419 U.S. 1013 (1974) and Miller v.

United States, 382 F.2d 583 (9th Cir. 1967), cert. denied, 390 U.S.

984 (1968), in support of his contention that knowledge of the

conspiracy was not established. The hol in Amato and Miller

that knowledge had not been established olved from findings

that there was an insufficient factual basis from which knowledge

could be inferred. We find the factual basis in the present case,

which shows Hudson to have been a cog in a finely tuned mech-

anism for the distribution of narcotics, to be sufficient to support

the inference that Hudson knowingly participated in the illegal

conspiracy.

— —

—— —ä4

A23

cites his response of “I don’t know anything about it”

to Garcia’s allegation that the kilo of heroin was short.

The jury could have reasonably inferred that this dis-

claimer applied to knowledge of the shortage, which was

the topic of their conversation, and not to the identity

of the substance that was delivered by Hudson. Hudson

had not, after all, disclaimed knowledge when he responded

affirmatively to Garcia’s initial inquiry as to whether he

had “the stuff”, a commonly used name for heroin. Also,

Hudson’s instruction to recover the $7,000 partial payment

for the drugs, coupled with all the circumstances surround-

ing his trip to El Paso, conveyed knowledge of illicit activ-

ity. Knowledge may be inferred by the jury from the

circumstances, acts and conduct of the parties. Jacobs

v. United States, 395 F.2d 469, 472 (8th Cir. 1968). There

was sufficient evidence establishing Hudson’s knowing role

as a courier of narcotics to convince the jury beyond

a reasonable ‘doubt that he was guilty of participating

in a conspiracy to distribute heroin.

Mims was convicted of participation in the conspiracy

to distribute narcotics and of two substantive counts of

distribution of heroin. The Government’s case against

Mims, which consisted mainly of circumstantial evidence,

was derived from testimony of a co-conspirator, Juan Pablo

Garcia, surveillance by Government agents and intercep-

tion of certain of Mims’ telephone conversations by means

of court-authorized wiretaps. It is axiomatic that a convic-

tion for conspiracy may be supported by purely circumstan-

tial evidence. In fact, this court has long recognized that

„ſa] conspiracy is rarely susceptible of proof by direct

evidence. It may be adduced from the conduct of the

parties and the attending circumstances.” Rizzo v. United

States, 304 F.2d 810, 825 (8th Cir.), cert. denied, 371 U.S.

890 (1962); Goode v. United States, 58 F.2d 105, 107 (8th

A24

Cir. 1932). Similarly, because circumstantial evidence is

intrinsically as probative as direct evidence, Holland v.

United States, supra, it may clearly be the sole basis for

convictions for substantive offenses. See, e.g., United States

v. Diggs, 527 F.2d 509, 512 (8th Cir. 1975). While Mims

does not contest these well-settled principles, his attack

on the sufficiency of the evidence nevertheless consists

of little more than an attempt to belittle the largely cir-

cumstantial nature of the Government’s case.

The circumstantial evidence against Mims was, how-

ever, substantial and the jury could reasonably have con-

cluded that Mims participated in two substantive distribu-

tions of heroin which furthered the criminal conspiracy

charged. Insofar as Count VIII, the illegal distribution

of 28 grams of heroin by Mims and Jackson on May 13,

1975, is concerned, the record reveals the following salient

evidence of Mims’ complicity. On May 9, 1975, a telephone

conversation between Jackson and Mims was intercepted

in which Jackson informed Mims that he had dropped

off some suits“ which “they liked”. On May 13, Agent

Vaughan arranged to buy one ounce of heroin from Jack-

son. Approximately fifteen minutes after this purchase

was set up, Jackson called Mims and stated that he wanted

the “same suit all the way up”, which Mims agreed to

deliver immediately. Surveillance revealed that Mims

thei drove to Jackson's home, and that shortly thereafter

Jackson went from his home to Agent Vaughan’s apartment

and sold him one ounce of heroin. The jury could rea-

sonably infer that Mims was instrumental in this distribu-

tion of heroin to Agent Vaughan on May 13.

1 Agent Vaughan testified that in narcotics deals with Jackso

the term “suit” was sometimes used to refer to narcotics. The —

of such terminology, often designated a la code”, is not

unique to this case. See United States v. Man ,

592 (2d Cir. 1973), cert. denied, 417 U.S. 936 (1974).

— ore

A25

Count X involves the distribution of 138 grams of

heroin by Mims and Jackson on June 5, 1975. The evidence

adduced showed that Jackson agreed to sell Agent Vaughan

seven ounces of heroin on that date. After telling Vaughan

that he was still in the process of putting things together,

Jackson met with Mims and Muhammad at Muhammad’s

residence. Mims and Jackson proceeded to drive each

other’s cars from Muhammad’s residence to a motel parking

lot, where they talked and then switched cars. Shortly

after this meeting and car exchange, Jackson delivered

five of the seven ounces of heroin agreed upon to Agent

Vaughan. He promised to return with the remaining two

ounces as quickly as possible. Jackson then returned to

the motel parking lot and met Mims again. After a con-

versation and another exchange of cars with Mims, Jackson

drove Mims’ car to the residence of Muhammad. Mims

and Jackson then returned to the motel parking lot for

another rendezvous and car exchange. Immediately there-

after Jackson delivered the remaining two —_— of heroin

to Agent Vaughan. He then returned directly to the

motel parking lot where he again spoke with Mims. We

believe that as to Count X, the jury could reasonably

have concluded that Mims participated in the distribution

of seven ounces of heroin to Agent Vaughan on June

5, 1975. The evidence in this case, although circumstantial,

is sufficient to have convinced the jury beyond a reason-

able doubt that Mims was guilty not only of Counts VIII

and X but also of the conspiracy to distribute narcotics

for which these substantive offenses served as overt acts.

In addition, there is direct evidence of Mims’ participation

in the cons»iracy. Garcia testified that Mims was present

when he and Jardan negotiated the deal in El Paso for

the purchase of one kilogram of heroin.

Muhammad was convicted of engaging in the con-

spiracy to distribute narcotics and of two substantive

A26

counts of distribution of heroin. Count X charged Muham-

mad, Jackson and Mims with the distribution of seven

ounces of heroin to Agent Vaughan on June 5, 1975.

Some details of this transaction have been set forth above

in connection with Mims’ attack on the sufficiency of the

evidence. Insofar as Muhammed is concerned, the Govern-

ment’s evidence established that after Jackson had agreed

to sell Vaughan seven ounces of heroin on June 5 and

had described himself to Vaughan as “still putting things

together”, he met with Muhammad and Mims at the resi-

dence of Muhammad. Jackson then delivered only five

of the seven ounces of heroin due Agent Vaughan, agree-

ing to return with the remainder as quickly as possible.

Jackson drove to Muhammad’s residence shortly after leav-

ing Agent Vaughan’s apartment and subsequently deliv-

ered the remaining two ounces to Agent Vaughan. Upon

completion of the sale, Jackson returned to Muhammad’s

residence. Based on this evidence, the jury could reason-

ably infer that Muhammad was instrumental in this dis-

tribution of heroin to Agent Vaughan on June 5, 1975.

Count XV charged Muhammad and Jackson with the

distribution of thirteen grams of heroin on July 23, 1975.

At approximately 9:00 a.m. on July 23, Agent Vaughan

and Jackson arranged to meet later in the day to consum-

mate a sale of heroin. Surveillance revealed that at about

9:45 a.m., Muhammad drove his car in front of Jackson’s

residence, sounded the horn and then drove on. Several

hours later Muhammad returned to and entered Jackson’s

residence, where he stayed for a short period of time.

After Muhammad’s departure, Jackson went from his resi-

dence to Agent Vaughan’s apartment and there sold him

approximately fourteen grams of heroin for $1,600. Jack-

son drove directly to Muhammad’s residence after the

sale and conferred with Muhammad for a few minutes.

Muhammad was arrested shortly after this meeting with

A27

Jackson. The serial numbers of each of the bills used

by Agent Vaughan to pay Jackson for the fourteen grams

of heroin had been pre-recorded. A search of Muhammad’s

person following his arrest produced $1,000 in pre-recorded

bills. The other $600 from the sale was found on Jackson.

The $1,000/$600 split of the proceeds between Muhammad

and Jackson approximated the 60/40 supplier-seller split,

discussed below, used by James Jackson when his brother

sold narcotics for him, except that in this instance Mu-

hammad received the 60% supplier’s share. From the

basis of circumstantial and direct evidence presented, the

jury could reasonably infer that Muhammad participated

in the July 23, 1975, sale of heroin to Agent Vaughan.“

The jury was presented with sufficient evidence to

have convinced it beyond a reasonable doubt that Muham-

mad was guilty of these two substantive narcotics offenses,

which were also overt acts in furtherance of the conspiracy

to distribute narcotics. The Government’s evidence of Mu-

hammad’s participation in the conspiracy was not limited

to proof of these two acts, however. There was also abun-

dant evidence of frequent contacts between Muhammad

and Jackson during negotiations by Jackson for sales of

narcotics and preceding and following these sales. The

details of these contacts, which were not limited to June

5 and July 23, have been set forth previously and need

not be repeated here. Finally, a co-conspirator’s statement

implicating Muhammad in the conspiracy was introduced

into evidence by the Government. Anderson Jackson, the

16We note that Muhammad offered an exculpatory explana-

tion of his possession of the money as well as of certain other

facts under] the indictment. These explanations raised a ques-

tion of bility, the resolution of which rested solely in the

province of the jury. Petschel v. United States, 369 F.2d 769, 771

(8th Cir. 1966). The jury was not required to believe Muham-

mad’s story. United States v. Miller, No. 76-1584 (8th Cir. Nov. 4,

1976); United States v. Ordones, 469 F.2d 70 (9th Cir. 1972).

A28

brother of defendant James Jackson, testified that James,

for whom he was distributing heroin, had told him that

Muhammad was involved in selling drugs.

The rule is well established that a statement by a

co-conspirator made during the course and in furtherance

of a conspiracy is not hearsay and may be admitted against

the declarant and his co-conspirators so long as a conspir-

acy is established by independent evidence. United States

v. Kelley, 526 F.2d 615, 618 (8th Cir. 1975), cert. denied,

424 U.S. 971 (1976); United States v. Frol, 518 F.2d 1134,

1136 (8th Cir. 1975). There is no requirement that the

independent evidence of conspiracy be introduced prior

to the introduction of the co-conspirator’s statement. The

order of proof is a matter left to the discretion of the

trial court. United States v. Kelly, supra; Brinlee v. United

States, 496 F.2d 351, 354 (8th Cir.), cert. denied, 419 U.S.

878 (1974). Accordingly, the co-conspirator’s statement

may be conditionally admitted subject to being “connected

up” subsequently by independent proof of conspiracy,

which may be totally circumstantial. United States v. San-

ders, 463 F.2d 1086, 1088 (8th Cir. 1972). This was the

manner in which James Jackson’s statement about Muham-

mad’s involvement in the sale of narcotics was admitted.

The record in the present case is replete with inde-

pendent proof of a conspiracy sufficient to “connect up”

James Jackson’s statement as to Muhammad’s involvement

in narcotics transactions. Moreover, prior to Anderson

Jackson’s testimony, the trial court instructed the jury

with extreme care and at considerable length that a con-

spirator’s statement could be considered against his co-

defendants only if their participation in the conspiracy

was established by independent evidence. A similar in-

struction was repeated at the close of the trial. Thus,

we find no error in the manner in which Anderson Jack-

son’s testimony was admitted.

ant ͤ—ͤ—j— — ce ———

A29

Not every extra-judicial statement by a conspirator

is admissible against his co-conspirators, however, no mat-

ter how abundant the independent evidence of a conspir-

acy. In addition, under the Federal Rules of Evidence,

the statement must have been made during the course

of the conspiracy and in furtherance thereof. Fed. R.

Ev. 801 (d)(2)(E). There is not general agreement

as to the wisdom of the “in furtherance” requirement.

The drafters of the Model Code of Evidence eliminated

this requirement. Model Code of Evidence Rule 508

(1942). Following strenuous debate, it was retained by

Congress in the Federal Rules of Evidence.“ The fact

that the federal courts have not applied the “in further-

ance” requirement uniformly reflects the long-standing di-

vergence of opinion over the validity of this requirement.

Interpretations range from its strict application, see

United States v. Birnbaum, 337 F.2d 490 (2d Cir. 1964),

to its reduction to a concept of relevancy, see Internation-

al Indemnity Co. v. Lehman, 28 F.2d 1 (7th Cir.), cert.

denied, 278 U.S. 648 (1928). The approach in this circuit

has been to retain the “in furtherance” requirement, while

acknowledging a tendency on the part of commentators

to construe this provision broadly. United States v. Harris,

No. 76-1380 (8th Cir. Dec. 7, 1976); United States v. Rich,

518 F.2d 980 (8th Cir. 1975), cert. denied. *

(1976); United States v. Overshon, 494 F. 2d 894, 898 (8th

Cir. ), cert. denied, 419 U.S. 853 (1974).

We must, therefore, determine whether the statement

of James Jackson introduced into evidence through the

testimony of Anderson Jackson was “in furtherance” of

99

A30

the conspiracy to distribute narcotics. Anderson testified

that in December, 1974, he had begun to sell narcotics

supplied to him by his brother James, who took 60%

of the proceeds and left 40% for Anderson. In February,

1975, Anderson was arrested for a non-narcotics offense

and incarcerated for a few days. Upon his release, he

renewed his narcotics selling activities. In early March,

Anderson entered a hospital in order to receive treatment

for his narcotics habit. He recommenced using and selling

narcotics shortly after his release. In mid-March, 1975,

Anderson was again incarcerated for a non-narcotics of-

fense. He remained in jail for approximately two weeks.

It was during a visit with Anderson shortly after his

release from jail that James made the statement implicat-

ing Muhammad in the narcotics conspiracy. Anderson

testified that:

[James] told me he got demoted from captain in

the Muslims because he was selling drugs and that

Nathaniel Muhammad was involved in selling drugs;

that he demoted him from captain where it would

look good for the Muslims in case something came

down.

It is reasonable to conclude that this statement was

made in an effort by James to again enlist Anderson as

a seller of narcotics for the conspiracy. Anderson had

previously returned to this occupation following release

from each incarceration or institutionalization. Thus, after

a longer than usual stay in jail, it would be reasonable

for James to want to assure Anderson’s continued participa-

tion in the conspiracy and to apprise him of developments

that Anderson might be unaware of because of his incar-

ceration. Cf. United States v. Overshon, supra. Thus,

although it is a close question, we believe that James

Jackson's statement to Anderson concerning Muhammad’s

A31

involvement in the sale of narcotics was in furtherance

of the conspiracy. Since it was clearly made in the course

of the conspiracy and was “connected up” by sufficient

independent evidence of conspiracy, this statement was

properly admitted under Rule 801 (d)(2)(E). We con-

clude that the Government’s evidence was sufficient to

have convinced the jury beyond a reasonable doubt that

Muhammad was guilty of conspiring to distribute narcotics

and of participating in two sales of heroin.

IV

The Government introduced into evidence eleven

taped conversations intercepted pursuant to three court

orders authorizing the interception of wire communica-

tions. All defendants moved unsuccessfully to suppress

the introduction of these conversations into evidence. On

appeal, however, only Hudson and Jardan have asserted

error in the trial court’s denial of their motions to sup-

press. They challenge the legality of the wiretaps on

two grounds. First, Jardan contends that pursuant to 18

U.S.C. § 2518 (1) (b) (iv) (1970) and 18 U.S.C. §2518(4) (a)

(1970) he should have been named as a party whose com-

munications would be intercepted by the wiretaps autho-

rized on May 9, 1775, and May 29, 1975. Hudson makes an

identical contenti en as to the wiretap authorized on June

24, 1975. Secondly, both Jardan and Hudson contend that

the wiretaps were improper under 18 U.S.C. § 2518(3) (c)

(1970) because normal investigative techniques would have

sufficed under the circumstances of this case.

Naming requirements

18 U.S.C. § 2518(1) (b) (iv) requires that an application

for an order authorizing the interception of a wire com-

munication include “the identity of the person, if known,

A32

committing the offense and whose communications are

to be intercepted.” Section 2518(4)(a) requires that the

order of authorization specify “the identity of the person,

if known, whose communications are to be intercepted.”

Jardan challenges WT-1975-1, May 9, 1975, and WT-1975-2,

May 29, 1975, on the grounds that he was not named

in the applications or authorization orders as a person

whose communications were to be intercepted, despite the

fact that at the time of the applications the Government

allegedly had knowledge of him which required his iden-

tification under §§ 2518 (1) (b) (iv) and 2518 (4) (a).

The May 9, 1975, application for WT-1975-1, a tap

on the telephone of James Jackson, sought authorization

to intercept communications of Jackson, Muhammad and

“others as yet unknown” concerning various narcotics of-

fenses. Jardan’s name was not mentioned in the applica-

tion or in the order authorizing WT-1975-1. The May

29, 1975, application for WT-1975-2, a tap on the telephone

of Spencer Mims, sought authorization to intercept com-

munications of Mims, Jackson and “others as yet unknown”

concerning various narcotics offenses. Jardan was not

identified as a person whose communications were to be

intercepted. The application did state, however, as did

the order authorizing the wiretap, that there was probable

cause to believe that Mims, Jackson, Muhammad and Jar-

dan, inter alia, were involved in committing narcotics of-

fenses. Conversations by Jardan were intercepted pur-

suant to both wiretaps.

Hudson’s contention involves a third wiretap not chal-

lenged by Jardan, WT-1975-3. The June 24, 1975, applica-

tion for WT-1975-3, taps on the telephones of Spencer

Mims and Lushrie Jardan, sought authorization to intercept

communications of Muhammad, Mims, Jardan, Jackson and

“others as yet unknown” concerning various narcotics of-

A33

fenses. Hudson was not identified as a person whose

communications were to be intercepted. The application,

as well as the order authorizing the wiretap, did state,

however, that there was probable cause to believe that

Mims, Jackson, Muhammad, Jardan and Hudson, inter alia,

were involved in the commission of narcotics offenses.

Conversations of Hudson were intercepted on WT-1975-3.

Jardan and Hudson contend that the Government had

probable cause to name them in its applications pursuant

to § 2518(1) (b) (iv) as known individuals whose communi-

cations were to be intercepted. Accordingly, they argue

that they should have been so designated in the wiretap

orders under § 2518(4) (a) and that their nonidentification

in the applications and orders required suppression of the

conversations intercepted. We note that since it is only

through reference to the Government’s applications that

the authorizing judge can be expected to learn of the target

individuals, the identification requirements of §§ 2518(1)

(b) (iv) and 2518(4) (a) have been deemed to be of equal

breadth. United States v. Kahn, 415 U.S. 143, 152 (1974).

Section 2518 (1) (b) (iv) requires that in a wiretap ap-

plication, the Government specify the identity of the per-

son, if known, committing the offense and whose com-

munications are to be intercepted.“ This provision has

been interpreted to require that the Government name

an individual in an application if it has probable cause

to believe (1) that the individual is engaged in the criminal

activity under investigation and (2) that the individual’s

conversations will be intercepted over the target tele-

phone.“ United States v. Kahn, supra; see United States

18We note that United States v. Donovan, supra, appears to

contain two slightly divergent interpretations of the naming re-

quirement of § 2518 (1) (b) (iv). The Court initially cites United

(Footnote continued on following page)

A34

v. Donovan, 45 U.S.L.W. 4115, 4118 (U.S. Jan. 18, 1977).

This latter requirement applies to persons placing calls

to or from the target telephone. United States v. Donovan,

supra at 4118. .

Jardan and Hudson each allege that the Government

failed to name him under § 2518 (1) (b) (iv), although it

had probable cause to do so. Even if we assume arguendo

that the Government did have probable cause to believe

that Hudson and Jardan were engaged in the criminal

activity under investigation, we do not believe that the

record sustains a finding that there was probable cause

to believe that their communications would be intercepted

over the target telephone. A close reading of the record

reveals that the only knowledge that can fairly be at-

tributed to the Government related to Hudson’s and Jar-

dan’s mere association with persons under investigation.

We find knowledge of mere association insufficient, under

the facts of this case, to support the conclusion that the

Government had probable cause to believe that Hudson

and Jardan would be intercepted over the target telephone.

Footnote Continued—

States v. Kahn, 415 U.S. 143 (1974) for the proposition that

§ 2518(1)(b)(iv) requires probable cause to believe that the

individual is engaged in the criminal activity under investigation

and probable cause to believe that the individual’s conversations

will be intercepted over the target telephone. United States v.

Donovan, supra at 4118. The Court then holds that a wiretap ap-

plication must name an individual if the Government “has prob-

able cause to believe that the individual is engaged in the crim-

inal activity under investigation and expects to intercept the

individual’s conversations over the target telephone.” Assuming

that probable cause to believe differs from expectation, we do

not believe that the Supreme Court intended to depart from the

probable cause standard set forth in United States v. Kahn, supra.

This interpretation is supported by the partial dissent of Justices

Marshall and Brennan, which states the majority holding to be that

an application for a wiretap “must name all individuals whom

the Government has probable cause to believe are committing

the offense being investigated and will be overheard.” United

States v. Donovan, supra at 4124.

A35

The Government lacked probable cause to believe that

Hudson and Jardan were persons “committing the offense

and whose communications [would] be intercepted” and

did not, therefore, violate § 2518 (1) (b) (iv) in omitting

Hudson’s and Jardan’s names from the wiretap applications

challenged. Thus, the wiretap orders based on these appli-

cations were valid and in conformance with § 2518(4) (a)

and the trial court did not err in refusing to suppress

the conversations intercepted pursuant to these wiretaps.’®

Utilization of normal investigative techniques

18 U.S.C. § 2518 (1) (e) requires that an application

for an order authorizing the interception of a wire com-

munication include “a full and complete statement as to

whether or not other investigative procedures have been

tried and failed or why they reasonably appear to be

unlikely to succeed if tried or to be too dangerous.” 18

U.S.C. § 2518 (3) (e) requires that the judge to whom the

wiretap application is directed authorize a wiretap only

if he determines on the basis of the facts submitted by

the applicant that “normal investigative procedures have

been tried and have failed or reasonably appear to be

unlikely to succeed if tried or to be too dangerous.” Jar-

dan and Hudson both contend that the applications for

19We note that even had the Government possessed probable

cause to believe Jardan and Hudson were engaged in the criminal

activity under investigation and that they would be intercepted

on the target telephones, suppression would not be mandated

here. There is no suggestion that Government agents knowingly

failed to identify Jardan and Hudson in order to keep relevant

information from the District Court. Accordingly, because iden-

tification in an intercept application of all those likely to be

overheard in incriminating conversations does not play a “sub-

stantive role” with respect to judicial authorization of intercept

orders and thus does not impose a limitation on the use of inter-

cept proceedings, suppression is not warranted under § 2518(10)

(a) (i). United States v. Donovan, supra at 4121-22.

A36

the wiretaps at issue here were deficient under § 2518(1)

(c) and that there was, therefore, an insufficient basis

for their authorization under § 23918 (3) (e).

The Supreme Court has stated that the language of

§§ 2518(1)(c) and 2518 (3) (e) “is simply designed to as-

sure that wiretapping is not resorted to in situations where

traditional investigative techniques would suffice to expose

the crime.” United States v. Kahn, 415 U.S. 143, 153

n. 12 (1974). In enacting Title III, Congress did not require

the exhaustion of “specific” or “all possible” investigative

techniques before wiretap orders could issue. United

States v. Smith, 519 F.2d 516, 518 (9th Cir. 1975). Con-

gress prohibited wiretapping only when normal investiga-

tive techniques were likely to succeed and not too danger-

ous, United States v. Daly, 535 F.2d 434, 438 (8th Cir.

1976), and “[mJerely because a normal investigative tech-

nique is theoretically possible, it does not follow that it

is likely.” S. Rep. No. 90-1097, 90th Cong., 2d Sess. ........ ;

reprinted in [1968] U.S. Code Cong. and Admin. News,

2190. Thus, §§ 2518(1)(c) and 2518(3)(c) have been

deemed to be designed only to ensure that wiretapping

is not “routinely employed as the initial step in criminal

investigation.” United States v. Giordano, 416 U.S. 505,

515 (1974).

The issue of whether the provisions of §§ 2518 (1) (e)

and 2518 (3) (e) have been complied with must be deter-

mined by viewing the facts contained in the Government’s

sworn applications and supporting affidavits. These appli-

cations and affidavits must be tested in a “practical and

commonsense fashion.” United States v. Brick, 502 F.2d

219, 224 n. 14 (8th Cir. 1974); see United States v. Kirk,

534 F.2d 1262, 1274 (8th Cir. 1976). Moreover, as in other

suppression matters, the judge to whom the wiretap appli-

A37

cation is made is entrusted with broad discretion. United

States v. Daly, supra.

In the present case, each application for a wiretap

was supported by an affidavit of Agent Vaughan, the key

investigative figure involved. We have carefully reviewed

the applications for WT-1975-1, WT-1975-2 and WT-1975-3

and the affidavits of Agent Vaughan that accompany them.

These affidavits establish unequivocally that traditional

investigative techniques had been used extensively before

authorization for wiretaps was sought. Agent Vaughan’s

affidavits also detail the reasons why these normal investi-

gative techniques had failed and were likely to continue

to fail. Moreover, the affidavits cited specific instances

of failures which established that the utilization of normal

techniques was not only unlikely to succeed but also likely

to create risks of unreasonable danger. We conclude that

the applications for the wiretaps at issue here were suffi-

cient under § 2518 (1) (e) and that the wiretap authoriza-

tion orders met the requirement of § 2518 (3) (e). Accord-

ingly, the trial court did not err in denying defendants’

motions to suppress the communications intercepted pursu-

ant to WT-1975-1, WT-1975-2 and WT-1975-3.

Judgment affirmed.

A true copy.

Attest:

Clerk, U.S. Court of Appeals, Eighth Circuit.

A38

APPENDIX B

IN THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 76-1112

UNITED STATES OF AMERICA,

Appellee,

vs. ram

NATHANIEL MUHAMMAD,

Appellant.

APPEAL FROM THE UNITED STATES District Court

FOR THE WESTERN DISTRICT OF MisSOuRI

PETITION FOR REHEARING

(Filed February 22, 1977)

Comes now the Appellant and petitions this Honorable

Court for an Order setting aside its Opinion filed herein

on February 8, 1977 and granting a rehearing for the

following reasons:

1. That this Petition for Rehearing is authorized by

Federal Rules of Appellate Procedure, Rule 40.

2. That this Court in its Opinion overlooked and mis-

apprehended points of law and fact.

3. That a rehearing by the Court en Banc is au-

thorized by United States Court of Appeals for the Eighth

Circuit, Rule No. 7 and would be appropriate in this par-

ticular case because of the gravity of this conviction not

A39

only to the individual involvcd but also to those followers

and members of the Nation of Islam over which the De-

fendant and his brother preside.

4. The Court in its Opinion, at page 6, makes a broad

statement that the general questions posed by the Judge

during voir dire were penetrating and sensitive, but over-

looks the fact that when general questions of any type,

whether it be race or prejudice, are asked to a group

of fifty to sixty prospective jurors, it is seldom that a

response will be made or heard and thus it is impossible

for the Court to determine who might even have the

beginnings of prejudice and thereafter have an in camera

examination of such potential juror. Thus, this Court

mistakenly makes a general conclusion that is often times

impossible to reach. See United States v. Bear Runner,

502 F.2d 908 (8th Cir. 1974) and United States v. Marshall,

360 U.S. 310 (1959).

5. That the Court in its Opinion held that the proper

way to voir dire a jury in a sensitive case such as the

one at bar is for the Court to first ask general questions

and then pursue specifics if a response is had to the general

question but overlooked the fact that Defendant argued

in his Brief that an initial in camera voir dire was neces-

sary to reach the true opinions and prejudices of the jury

panel. See Silverthorn v. United States, 400 F.2d 627

(9th Cir. 1968) and the cases that follow that decision.

6. That the Court in its Opinion, at page 9, speculated

that had Muhammad been severed from the other defen-

dants and had he been tried first there might have been

some difficulty in Muhammad obtaining the exculpatory’s

testimony of his co-defendants. Defendant would respect-

fully submit that this is pure speculation on the part

of the Court and it is just as possible that the exculpatory

testimony could be used under that or other circumstances.

A40

7. That the Court in its Opinion, at page 9, put an

extraordinary burden upon the Defendant Muhammad to

prove and support his contention that the defendant’s ex-

culpatory statements would have been of assistance if this

case had been severed, it is a burden that could only be met

by the granting of a severance and proof of the matter

during the trial and this is all that is required in the

cases cited in footnote number 4 at page 9 of the Court's

Opinion.

8. The Court in its Opinion at page 11 properly states

the law regarding the quantity of evidence against co-

defendants. However, the Court assumes that it would

be possible for a jury to compartmentalize the evidence

when it appears apparent to the Defendant Muhammad

that the volume of evidence would make the compart-

mentalization an impossibility for the ordinary lay juror

and this is further verified by the fact that the jury was

out such a short period of time in reaching its decision.

United States v. DeLarasa, 450 F.2d 1057 (3rd Cir. 1971).

9. The Court in footnote number 6 on page 11 of

its Opinion properly states that a joint trial is possible

even though there may be conflicting defenses, however,

the Defendant would respectfully submit that the Court

erroneously concluded that the conflicting defenses in this

case were not of importance and the Court ignored the

fact that one of the defendants in essence made an admis-

sion of guilt throughout the entire case in his attempt

to assert an entrapment defense. Defendant was highly

prejudiced by suh evidence being directly offered by a

co-defendant and was thus entitled to a severance under

United States v. Eastwood, 489 F.2d 818 (5th Cir. 1973).

10. The Court misinterpreted the cases cited by the

Defendant in that at page 12 of the Opinion the Court

stated that the Defendant Muhammad’s cases cited were

A4l

cases regarding two or more conspiracies within a par-

ticular trial. However, the Court ignored the fact that

the cases cited were very similar in evidence and that

it could be found in the case at bar that there were

two or more conspiracies, there being little or nothing

to the sale in EI Paso, Texas with Jordan, Mims, and

Hudson and the dealings of Jackson in Kansas City, Mis-

souri. Thus, the Defendant feels that the Court should

reconsider the cases cited in Defendant’s Brief regarding

that particular allegation of error.

11. The Court misinterpreted and misapprehended

the cases cited at pages 26 and 27 of Defendant’s Brief

regarding allegations made strictly by association of two

individuals. The Court overlooked the constant daily con-

tact between Mr. Jackson and Mr. Muhammad regarding

religious business and the easy possibility of guilt by asso-

ciation such as in Baker v. United States, 395 F.2d 368

(8th Cir. 1968).

12. The Court properly stated the law of this Circuit

at page 29 and page 30 of its Opinion that a statement

of a co-defendant is admissible only if offered in the fur-

therance of the conspiracy. However, the Court misin-

terprets the testimony of the defendant Anderson Jackson

in stating that it is the Court’s opinion that James Jackson’s

statement to Anderson Jackson on page 30 of the Opinion

was in fact in furtherance of the conspiracy. There is

no evidence to corroborate or support the conclusion of

the Court and the Court merely speculated to the possibil-

ity that James Jackson was attempting to make Anderson

Jackson a part of the conspiracy when Anderson Jackson

himself specifically denied being asked to be involved in

the conspiracy and at best merely alleged that he was

given the opportunity to sell narcotics through his brother

James. The Defendant Muhammad would respectfully

A42

submit that the Court has misinterpreted what it states

as being a “close question”.

13. The Defendant would respectfully submit that

the Opinion of the Court in regard to the sufficiency of

the evidence against Mr. Muhammad raises numerous

doubts regarding the guilt of the defendant when it seems

that that guilt is based on association with one individual

and an extremely questionable statement by that individ-

ual, James Jackson, to his brother Anderson Jackson and

that it would be in the best interests of justice for the

Court en Banc to review the sufficiency of this evidence

in light of the record and the cases cited at page 29 of

the Court’s Opinion.

WHEREFORE, Appellant prays for an Order of this

Court setting aside its Opinion and granting a rehearing

before the division or the Court en Banc and reversing

or remanding Appellant’s conviction. Appellant further

prays that if this Court denies this Motion that it enter

an Order staying the mandate pending application for Writ

of Certiorari to the United States Supreme Court under

Federal Rules of Appellate Procedure, Rule 41(b), said

appeal to the Supreme Court being for the reasons stated

in this Motion as well as the reasons stated in the Appel-

lant’s Brief, and for such other and further orders as

may be just and proper.

Duncan & Russell

By: /s/ David W. Russell

2700 Kendallwood Parkway

Kansas City, Missouri 64119

(816) 454-7300

Attorney for Appellant

A43

AFFIDAVIT OF SERVICE

STATE OF MISSOURI )

) SS.

COUNTY OF CLAY )

I, David W. Russell, being duly sworn upon my oath,

do hereby state that on the 18 day of February, 1977,

I did mail, by way of the United States Mail, postage

prepaid, a copy of the above and foregoing Appellant’s

Petition for Rehearing to the Department of Justice, Suite

717, 906 Grand Avenue, Kansas City, Missouri 64106 and

to Bert C. Hurn, United States Attorney, 549 United States

Courthouse, 811 Grand Avenue, Kansas City, Missouri

64106.

/s/ David W. Russell

Subscribed and sworn to before me this 18th day

of February, 1977.

| /s/ Carolyn J. Collins

(Seal) Notary Public

My Commission Expires: (Illegible)

Ad.

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

76-1112

September Term, 1976 5

The United States,

Appellee,

vs.

Nathaniel Muhammad,

Appellant.

Appeal from the United States

District Court for the

Western District of Missouri

The Court having considered petition for rehearing

en banc filed by counsel for appellant and, being fully

advised in the premises, it is ordered that the petition

for rehearing en banc be, and it is hereby, denied.

Considering the petition for rehearing en banc as a

petition for rehearing, it is ordered that the petition for

rehearing also be, and it is hereby, denied.

March 2, 1977

A45

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 76-1112.

September Term, 1976

The United States,

Appellee,

vs.

Nathaniel Muhammad,

Appellant.

Appeal from the United States

District Court for the

Western District of Missouri.

On motion of Appellant, it is now here ordered that

the issuance of the mandate herein be, and the same is

hereby, stayed for a period of thirty days from this date.

If within that time there is filed with the Clerk of this

Court a certificate of the Clerk of the Supreme Court

of the United States that a petition for writ of certiorari

has been filed, the stay hereby granted shall continue

until the final disposition of the case by the Supreme

Court.

March 7, 1977