Petition — Leaman v. United States

18 1977

MICHAEL RODAK, JR. CLERK |

Gnited States

OCTOBER TERM 1976

No. ¢6" 1348

WILLIAM LEAMAN,

Petitioner,

v8.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Law Offices of

MARTIN BLITSTEIN

MELVYN KESSLER of Counsel

Attorney for Petitioner

1440 N.W. 14th Avenue

Miami, Florida 33125

(305) 324-1140

MIAMI REVIEW — 371-4853 — 377-3721

TABLE OF CONTENTS

_, RENEE

OPINION BELOW ._..

JURISDICTION _

QUESTIONS PRESENTED sss

CONSTITUTIONAL PROVISIONS INVOLVED .

STATEMENT OF THE CASE _.

ARGUMENT

CONCLUSION

CERTIFICATE OF SERVICE

APPENDIX

19

20

App. 1

IT.

TABLE OF CITATIONS

Case

Bruton v. U.S.,

391 U.S. 123, 88 S. Ct. 1620 (1968)

Connor v. U.S.,

5 Cir., 1963, 322 F.2d 647 nial

Dutton v. Evans,

400 U.S. 74, 81, 91, S. Ct. 210, 215 (1970)

Flores v. Estelle,

513 F.2d 765 (5th Cir. 1975)

Glenn v. United States,

271 F.2d 880, 883 (6th Cir. 1959) 2

Hall v. U.S.,

419 F.2d 582 (5th Cir. 1969)

Krulewitch v. U.S.,

336, 440, 453, 69 S. Ct. 716, 723 (1949)

Odom v, U.S.,

377 F.2d 853 (5th Cir. 1967)

Roberts v. United States,

416 F.2d 1216 (5th Cir. 1969) 3s

Smith v. United States,

343 F.2d 539, 542 (5th Cir.) cert. denied

382 U.S. 861, 86 S. Ct.] 122 (1965)

18

15

15

14

12

12

16

15

It!

TABLE OF CITATIONS (cont.)

Case

U:S. v. Callanan,

450 F.2d 145 (4th Cir. 1971) —......------.

U.S. v. Hayward,

420 F.2d 142 (CA D.C. 1969) _.........---...--.

U.S. v. Martinez,

466 F.2d 679 (5th Cir. 1972)

U.S. v. Nixon,

94 S. Ct. 3090 (1974)

U.S. v. Rodriguez,

509 F.2d 1342 (5th Cir. 1975) _ — ~

U.S. v. Whitmore,

480 F.2d 1154 (C.A.D.C., 1973) _

United States v. Apollo,

476 F.2d 156, 157 (5th Cir. 1973) —..

United States v. Amato,

495 F.2d 545 (5th Cir. 1974)

United States v. Arroyave,

477 F.2d 157 (5th Cir. 1978) -............._....

United States v. Owen,

492 F.2d 1100 (5th Cir. 1974)

14

13

13

. 17,18

18

13

18

16

in the

Supreme Court

of the

Gnited States

OCTOBER TERM 1976

No.

WILLIAM LEAMAN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner respectfully prays that this Court issue a

Writ of Certiorari to the United States Court of Appeals

for the Fifth Circuit to Review the Order of that Court

rendered on January 28, 1977, and the Order denying the

2

Petition for Rehearing rendered on February 17, 1977,

which affirmed the verdict issued by the United States

District Court for the Southern District of Florida, con-

victing him on three counts of a multicount indictment.

The Petitioner was convicted on Count III for violating

Title 21, U.S.C., Section 841(a) (1) and Title 21, U.S.C.,

Section 846 and the Judgment and Sentence of the Court

on Count III was five (5) years confinement with a special

parole term of three (3) years, with a recommendation

that the Petitioner become eligible for parole in fifteen

(15) months. The Petitioner was additionally fined the

sum of Ten Thousand Dollars ($10,000.00). The Petitioner

was convicted on Count IV for violating Title 21, U.S.C.,

Section 841(a)(1) and the Judgment and Sentence of the

Court on Count IV was five (5) years confinement. The

Petitioner was convicted of Count V for violating Title

21, U.S.C., Section 84] (a) (1) and Title 18, U.S.C., Sec-

tion 2, and the Judgment and Sentence of the Court on

Count V was five (5) years confinement. The Sentence is

imposed as to Counts III, IV and V were to run con-

currently.

OPINION BELOW

Petitioner’s convictions were affirmed on January 28,

1977 and his Petition for Re-Hearing was denied February

17, 1977 by the Court of Appeals for the Fifth Circuit and

is attached in the Appendix, pages 1 through 9.

JURISDICTION

The jurisdiction of this Court is invoked under Title

28, U.S.C., $1254(1),

3

QUESTIONS PRESENTED

1. WHETHER THE PETITIONER WAS DE-

NIED HIS SIXTH AMENDMENT RIGHT TO

A FAIR AND IMPARTIAL TRIAL WHERE

THE TRIAL COURT REFUSED TO GRANT

A MISTRIAL AFTER THE PROSECUTOR

DELIBERATELY ASKED QUESTIONS OF

THE PETITIONER WHICH WERE PAT-

ENTLY IMPROPER AND HIGHLY PREJUDI-

CIAL, ONE OF SAID QUESTIONS BEING

ASKED IMMEDIATELY AFTER THE TRIAL

COURT ADMONISHED THE PROSECUTOR

AGAINST ASKING THE QUESTION?

2. WHETHER THE TRIAL COURT COM-

MITTED REVERSIBLE ERROR IN ALLOW-

ING INTO EVIDENCE AGAINST THE PETI-

TIONER, ACTS AND DECLARATIONS OF

ALLEGED CO-CONSPIRATORS OR THE

GOVERNMENT FAILED TO PROVE THE

EXISTENCE OF A CONSPIRACY AND PETI-

TIONER’S PARTICIPATION IN IT BY

OTHER INDEPENDENT EVIDENCE?

CONSTITUTIONAL PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES

SIXTH AMENDMENT:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by

an impartial jury...

4

STATEMENT OF THE CASE

Reference to Record on Appeal will be referred to by

the symbol “R”. Reference to Transcript will be referred

to by the symbol “T”.

On November 13, 1975, a Federal Grand Jury in and

for the Southern District of Florida returned an indict-

ment against the Petitioner. (R.1-3(a)). On December

11, 1975, a Federal Grand Jury for the Southern District

of Florida returned a superseding five (5) count indict-

ment, Count III, IV and V of which charged the Petitioner

with violations of Title 21, U.S.C., §841(a)(1) and $846

and Title 18, U.S.C., §2. (R. 8-11)

The Trial commenced March 1, 1976 and the jury

returned a verdict against the Petitioner as to Counts III,

IV and V. (T. 154) Petitioner was sentenced on March 29,

1976 to three (3) concurrent five (5) year terms of con-

finement and a Ten Thousand Dollar ($10,000.00) fine.

(T. 154-155) ~

On March 29, 1976, Petitioner timely filed a Notice

of Appeal to the United States Court of Appeals, Fifth

Circuit, which on January 28, 1977 affirmed the Trial

Court’s Judgment and Sentence. The Petition for re-

hearing was denied February 17, 1977.

The Petitioner was convicted of possession with in-

tent to distribute cocaine, distribution of cocaine, con-

spiracy to possess with intent to distribute and distributing

cocaine.

Jose A. Roque, Special Agent for the Drug Enforce-

ment Administration testified at trial that he spoke with

5

one Scott Sheldon concerning the purchase of cocaine.

(T.10) Pursuant to this conversation, one Mitchell Solo-

man contacted Roque with regards to the drug transaction.

(T.11)

Defense counsel objected to the admission of hearsay

against the Petitioner uncil there was independent evidence

of a conspiracy. (7. il) (T.26-27)(T.121) The Trial

Court overruled the objections and denied Motions to

Strike.

Roque testified that he received a sample of cocaine

from Soloman on August 28, 1975. (T. 15) A meeting was

scheduled for later that day. At the scheduled time Roque

met with Soloman and Sheldon. (T.18) Roque went with

Soloman to the apartment of one Carol Brock. (T. 21)

Roque testified that Brock stated “that there was only

one other person in the apartment; that he was the owner

of the cocaine; ...” (T. 21-22) Roque further testified

that Brock stated that there was less than the agreed upon

pound of cocaine and that “he was in the rear bedroom and

at the present time was trying to figure out the difference

in price between the full pound and the lesser amount.”

(T. 22)

Brock brought out the cocaine and a scale. (T. 22)

While Soloman and Brock were in another room, Roque

signaled to other agents, and Brock, Soloman and the Peti-

tioner were arrested. Roque testified the Petitioner was in

the rear bedroom of the apartment. (T. 23)

Roque testified that he had never met the Petitioner

until after his arrest. (T.27) He further stated that he

dealt strictly with Soloman and Sheldon. (T. 29) He fur-

6

ther stated that he never saw the Petitioner in possession

of any controlled substance prior to the arrest, and never

saw the Petitioner aid, assist, or abet any of the three

co-defendants prior to the arrest. (T. 47-48)

Mitchell Soloman, a co-defendant, testified that he

met with Carol Brock on August 27, 1975 and talked to

her about picking up a “taste of cocaine”. Mr. Soloman

testified the Petitioner was there also. (T.65) Soloman

also stated that the Petitioner was in Carol Brock’s apart-

ment on August 28, 1975, the day of the arrest. (T. 71)

Soloman stated that on that occasion, Brock brought out

the cocaine and scales to weigh it. (T. 71-72) Soloman

stated that he never saw the Petitioner in possession of the

bag of cocaine or the scale. (T. 113-114)

The Petitioner moved for Judgment of Acquitta] at

the close of the government’s case which was denied.

(T. 123-124)

The Petitioner, WILLIAM LEAMAN, testified that

during the dates of the alleged conspiracy, he did not see

Sheldon and did not conspire with Brock or Soloman to do

any criminal act against the United States. (T. 130-131)

The Petitioner stated that he went to Brock’s apart-

ment on August 27, 1975, for dinner with her (T. 131);

Soloman entered the apartment with a brown valise

(T. 131); Brock and Soloman entered the bedroom and

Petitioner had no knowledge of what was happening.

(T. 132)

On August 28, 1975, the Petitioner went to Brock’s

house for a dinner date. (T. 133) Brock told the Petitioner

to stay in the bedroom for a while and not to come into

7

the living room. (T.133) Brock returned a few minutes

later and picked up the metal scale and the bag from the

closet and walked out. (T. 138, 140-142) Several minutes

later, Soloman walked into the bedroom and asked Leaman

to help them figure out something dealing with figures.

(T. 184) Several minutes later, Brock, Soloman and the

Petitioner were arrested. (T. 134)

On Cross-Examination of the Petitioner, the Prose-

cutor asked the question:

“Are you aware of the drug problem in the com-

munity?” (T. 145)

The Petitioner’s attorney thereupon moved for mistrial,

which was denied. The Trial Court thereupon admonished

the prosecutor:

“ 1 take it that you know that I think that

you went too far in asking what the problem

was in the community.”

The prosecutor thereupon asked the following question:

“Are you aware that drugs are common in this

community?” (T. 146-147)

Petitioner’s attorney thereupon renewed his Motion for

Mistrial. The Motion was denied and the Trial Court ad-

vised the jury to disregard the questions, (T. 147)

After the defense rested, motions for verdicts of ac-

quittal were made and were denied by the Trial Court.

(T. 149)

8

ARGUMENT

POINT I

THE PETITIONER WAS DENIED HIS

SIXTH AMENDMENT RIGHT TO A FAIR

AND IMPARTIAL TRIAL WHERE THE

TRIAL COURT REFUSED TO GRANT A

9

It is clear from the record that the United States

Attorney, after being warned about the impropriety of a

question to the Petitioner, went ahead and made the same

improper and prejudicial statement before the jury

(T. 145-147), with the intent to prejudice the Petitioner’s

testimony. At page 145-147:

Q. (Schwartz): Are you aware of the drug

MISTRIAL AFTER THE PROSECUTOR DE-

LIBERATELY ASKED QUESTIONS OF THE

PETITIONER WHICH WERE PATENTLY

IMPROPER AND HIGHLY PREJUDICIAL,

ONE OF SAID QUESTIONS BEING ASKED

IMMEDIATELY AFTER THE TRIAL COURT

ADMONISHED THE PROSECUTOR

AGAINST ASKING THE QUESTION.

The Petitioner was denied his Sixth Amendment right

to a fair trial as a result of the Prosecutor asking the

Petitioner questions which were highly improper and

prejudicial to the rights of the Petitioner. The Trial Court

erred in failing to grant a mistrial after the Prosecutor

made clear that it was her unmistakable intent to prejudice

the rights of the Petitioner by use of improper questions

and comments aimed toward influencing the jury with

emotionally-charged extraneous matters. The conduct of

the Prosecutor and the Trial Court’s failure to grant the

mistrial as a result of said conduct departs from the ac-

cepted and usual course of judicial proceedings. The Fifth

Circuit Court of Appeals has sanctioned this departure

and it is incumbent upon the Supreme Court of the United

States to exercise its power of supervision over the Lower

Courts. For this reason, Certiorari should be granted.

problem in the community?

Engel: Your Honor, I’m going to object to

this. I want to make a motion at side bar at this

time.

The Court: All right.

Mr. Engel: Comes now the defendant Wii-

liam Leaman and makes this his motion for mis-

trial based upon the impropriety of the state-

ment of the Assistant U.S. Attorney before this

jury for the particular purpose to deny this de-

fendant his day in court and due process and

with particular purpose to prejudice his testi-

mony before the Court by extraneous matters not

brought out in direct or indirect. The cases hold

that you cannot bring this type of questioning out

before the jury about what a problem is in the

community because it invokes sympathy. That’s

the only purpose. So I will make this my motion

for mistrial.

Miss Schwartz: Your Honor, I couldn’t hear

everything he said but I would say that ot [sic]

10

what I did hear that this charge goes to intent,

to knowledge, and we are trying to show that he

does have this knowledge.

Mr. Engel: It isn’t a question — she asked

about the community, that’s the thing that dis-

turbs me. This particularly tends to prejudice

this defendant in his day in Court.

The Court: I think you are entitled to go

into anything that would show intent as far as

he is concerned but not as far as what the com-

munity is.

I’m going to deny the motion for mistrial. I am

going to tell the jury to disregard it.

Mr. Engel: Your Honor, would you admon-

ish counsel not to go into these things so we don’t

have —

The Court: ... I take it that you know that

I think that you went too far in asking what the

problem was in the community. All right.

Q. (Schwartz): Are you aware that drugs

are common in this community?

The Court: Just a minute.

Mr. Engel: Your Honor, I’m going to renew

my motion and can I come up to the side bar?

11

The Court: Members of the jury, I have

sustained counsel’s objection to the last question

about what the problems are in the community.

You are not to take that into consideration during

the course of your deliberations in this case be-

cause that would be improper. You are not to con-

sider it at all. Cast it out of your mind entirely.

Now, I don’t want any more questions along

that line.

It is clear, that after the Assistant U.S. Attorney was

warned by the judge to avoid certain questioning that was

improper, she continued to ask the same improper ques-

tions.

The Petitioner argues that this impropriety was

brought up twice and magnified the prejudice that it

caused to Petitioner’s testimony.

The warning to strike the improper testimony from

the jurors’ minds, in reality only served to reiterate and

keep in their minds, the improper discussion and question-

ing as to subject matter that was improperly before them.

The United States Supreme Court in Bruton v. U.S.,

391 U.S. 123, 88 S.Ct. 1620 (1968) stated:

The fact of the matter is that too often such ad-

monition against misuse is intrinsically ineffective

in that the effect of such a non-admissible declara-

tion cannot be wiped from the brains of the

jurors. The admonition therefore becomes a fu-

12

tile collocation of words and fails of its purpose

as a legal protection to defendants against whom

such a declaration should not tell.

Furthermore, the Supreme Court in Bruton,

supra, added:

. . . the Government should not have the wind-

fall of having the jury be influenced by evidence

against a defendant which, as a matter of law,

they should not consider but which they cannot

put out of their minds.

To the same effect is the statement of Mr. Justice

Jackson in his concurring opinion in Krulewitch v. U. S.,

336 U.S. 440, 453, 69 S.Ct. 716, 723 (1949) where he

stated:

The naive assumption that prejudicial effects can

be overcome by instructions to the jury .. . all

practicing lawyers know to be unmitigated fic-

tion.

This Court in Odom vs. U. S., 377 F.2d 853 (5th Cir.,

1967) stated:

Connor vs. U. S., 5 Cir., 1968, 322 F.2d 647,

enunciates the general principle that an erroneous

admission of evidence is cured by instructing the

jury to disregard it where substantial rights of

the defendant are not affected . . . that is, where

guilt is clear and error, if any is harmless .. .

However, where, as here, the testimony is highly

prejudicial and otherwise irrelevant to the case.

13

Not declaring a mistrial constitutes plain error

under Fed R. Crim P. 52 (b) and is not cured by

a court admonition to disregard.

It is apparent from the judge’s comments (T.146-147)

and existing case law that the prosecutor’s statements, in

the form of questions, were improper, and, as the Petitioner

contends, prejudicial towards his receiving a fair and im-

partial trial.

A prosecutor’s remarks cannot imply that evidence

not before the jury implicates the Petitioner. U. S. vs. Mar-

tinez, 466 F.2d 679 (5th Cir., 1972).

A deliberate and calculated effort to prejudice Peti-

tioner by references to matters not in evidence cannot be

tolerated. U. S. vs. Whitmore, 480 F.2d 1154 (C.A. D.C.,

1973)

It is fundamental to sound procedure in Federal crim-

inal prosecutions that counsel refrain from an appeal whol-

ly irrelevant to any facts or issues in case, purpose and

effect of which could only be to arouse passion and preju-

dice, particularly in those situations in which statements

are designed to imply actions on part of Petitioner about

which no competent evidence has been admitted. U.S. vs.

Hayward, 420 F.2d 142 (C.A. D.C., 1969).

In the case at bar, the question and remark about the

community’s drug problem was highly improper and preju-

dicial and was used as an inference towards the Petitioner,

as well as invoking sympathy from the jury. The remark

is prejudicial in that it prevents the jurors from determin-

14

ing the guilt or innocence of the Petitioner from the com-

petent evidence before them, and instead it appeals to the

jurors’ hatred and dislike of any “drug-filled” community,

which might even be their own.

An inference not reasonably deductible from the evi-

dence, but supported only by the improper implication that

there was existent, but unstated, evidence of which the jury

did not have the benefit, may not be stated. Hall vs. U.S.,

419 F.2d 582 (5th Cir., 1969).

Insinuation and innuendo about collateral matters

should play no part in prosecution of a criminal charge.

U.S. vs. Callahan, 450 F.2d 145 (4th Cir., 1971).

The Prosecutor’s improper conduct injected such im-

material and erroneous points into deliberative process that

prompt instruction by the Trial Court to the jury to disre-

gard the statements could not remove the prejudice. The

highly improper and prejudicial statements intentionally

laid before the jury could not be erased from the jury’s

minds or removed from their deliberation sby an instruc-

tion. The jurors’ deliberations were necessarily influenced

by the prosecutor’s comments and resulted in denying the

Petitioner a fair and impartial trial. A mistrial should

have been granted.

15

POINT Il

THE TRIAL COURT COMMITTED REVERS-

IBLE ERROR IN ALLOWING INTO EVI-

DENCE AGAINST THE PETITIONER, ACTS

AND DECLARATIONS OF ALLEGED CO-

CONSPIRATORS OR THE GOVERNMENT

FAILED TO PROVE THE EXISTENCE OF A

CONSPIRACY AND PETITIONER’S PARTICI-

PATION IN IT BY OTHER INDEPENDENT

EVIDENCE.

The Trial Court erroneously admitted into evidence

against the Petitioner hearsay uttered by an alleged co-

conspirator prior to the government proving the Petitioner

had joined conspiracy. In fact, but for the improperly ad-

mitted hearsay, the government failed to come forward

with any evidence to prove the Petitioner’s involvement

with the conspiracy. Without the hearsay evidence, the gov-

ernment’s evidence was insufficient to convict the Petition-

er, not only on the conspiracy count, but also on the counts

charging the Petitioner with distribution of cocaine and

possession with intent to distribute cocaine. The admission

of hearsay rises to “plain error” since without it, there

would have been insufficient evidence to convict the Pe-

titioner on any of the three (3) counts. The admission of

the hearsay materially affected the substantial rights of

the Petitioner, and reversal is warranted. Federal Rules of

Criminal Procedure 52 (b); Flores vs. Estelle, 513 F.2d

764 (5th Cir. 1975), cert. denied, 423 U.S. 989, 96 S.Ct. 401

(1975); Smith vs. United States, 343 F.2d 539, 542 (5th

Cir.) cert. denied, 382 U.S. 861, 86 S.Ct. 122 (1965) ; Glenn

vs. United States, 271 F.2d 880, 883 (6th Cir. 1959).

16

The evidence adduced at trial viewed in a light most

favorable to the government, is that Agent Roque never

met the Petitioner until after his arrest (T. 27); that all

dealings were strictly with Soloman and Sheldon (T. 29) ;

that Roque never saw Leaman in possession of any con-

trolled substance (T. 47,48); that Roque never saw Lea-

man aid, assist or abet any of the other three co-defendants

(T. 48) ; that the sample of cocaine was received from Solo-

man (T. 15); that the apartment used for the transaction

belonged to Brock (T. 21); that it was Brock who brought

out the cocaine and the scale (T. 22). Soloman testified that

he never saw the Petitioner in possession of the bag of co-

caine (T. 113) ; that he never saw the defendant in posses-

sion of the scale (T. 114) ; and that Leaman was present at

the scene of the transaction when the arrests were made

(T. 23).

In the absence of the hearsay statement by Brock, the

only evidence against the Petitioner showed that the Peti-

tioner associated with others who participated in a drug

transaction. Such is certainly not enough to have convicted

Leaman of conspiracy. Roberts vs. United States, 416 F.2d

1216 (5th Cir. 1969) and United States vs. Arroyave, 477

F.2d 157 (5th Cir. 1973). Nor was his mere presence at the

scene of a conspiracy sufficient to prove one’s guilt of con-

spiracy. United States vs. Owen, 492 F.2d 1100 (5th Cir.

1974).

There ic simply no evidence presented by the govern-

ment to show beyond a reasonable doubt that Leaman in-

tended to join and become a part in the illegal venture and

agreement. United States vs. Amato, 495 F.2d 545 (5th

Cir. 1974).

The evidence adduced by the government, absent of

the hearsay, was insufficient to convict the Petitioner on

oe ee een

17

any count. However, the hearsay evidence, and it alone,

was sufficiently damaging to provide a basis to convict the

Petitioner. The hearsay in question is the following testi-

mony given by Agent Roque concerning the statement made

by Carol Brock to him:

“.. That there was only one other person in the

apartment; that he was the owner of the cocaine;

.- (T. 21, 22)”

Agent Roque further testified that Brock stated that:

... That he [Leaman] was in the rear bedroom

and at the present time was trying to figure out

the difference in price between the full pound and

the lesser amount. (T. 22)

But for the hearsay statements, the government failed

to produce any independent evidence showing Petitioner to

be part of the conspiracy.

Montford vs. U.S., 200 F.2d 759 (5th Cir., 1952) states

the rule in this Circuit that:

. .. a defendant’s connection with a conspiracy

cannot be established by the extra-judicial declara-

tions of a co-conspirator, made out of the presence

of the defendant. There must be proof aliwnde of

the existence of the conspiracy and of the defend-

ant’s connection with it, before such statements

become admissible as against a defendant not

present when they were made.

In the recent case of U.S. vs. Nixon, 94 S.Ct. 3090

(1974), the United States Supreme Court required a suf-

ficient showing by independent evidence of a conspiracy

18

among one or more other defendants and the declarant be-

fore the hearsay acts and declarations are admissible

against the Petitioner.

The same is true of declarations of co-conspirators who

are not defendants in the case on trial. Dutton vs. Evans,

400 U.S. 74, 81, 91 S.Ct. 210, 215 (1970).

In Nixon, supra, the Court refers to U.S. vs. Vaught,

485 F.2d 320, 323 (4th Cir., 1973) which held that as a

preliminary matter there must be substantial independent

evidence of the conspiracy before declarations by one de-

fendant may be admissible against other defendants.

The Government must introduce sufficient independ-

ent evidence of the existence of a conspiracy and of Peti-

tioner’s participation therein before the judge may allow

declarations of the co-conspirator, made outside of the de-

fendant to go to the jury. U.S. vs. Rodriguez, 509 F.2d

1342 (5th Cir., 1975). U.S. vs. Apollo, 476 F.2d 156, 157

(5th Cir., 1973).

The government failed to put on sufficient independ-

ent evidence to show the Petitioner joined or intended to

join a conspiracy and thus, the hearsay is inadmissible.

Petitioner constantly made the Court aware of his objec-

tion to the hearsay evidence (T. 11, 26, 121-122). The Peti-

tioner’s objections could be construed as a standing objec-

tion to hearsay. Regardless, the admission of the hearsay

is reversible as “plain error” in that it materially effected

substantial rights of the Petitioner. The Trial Court should

have stricken the hearsay statements. Its failure to strike

them resulted in three convictions against the Petitioner.

This cause should be reversed and remanded to the Trial

Court for a new trial.

oe RE OS ee

19

CONCLUSION

Petitioner respectfully contends that the Petition for

Writ of Certiorari should be granted, the Judgment of the

Fifth Circuit reversed, and the Final Judgment and Sen-

tence of the Trial Court reversed and set aside.

Respectfully submitted,

LAW OFFICES OF

MARTIN BLITSTEIN

MELVYN KESSLER of Counsel

Attorneys for Petitioner

1440 N.W. 14th Avenue

Miami, Florida 33125

(305) 324-1140

By MELVYN KESSLER

of Counsel

20

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the fore-

going Petition for Writ of Certiorari was mailed to

Solicitor General, Department of Justice, Washington,

D.C., 20530, this day of March, 1977.

MELVYN KESSLER

of Counsel

APPENDIX

United States Court of Appeals,

Fifth Circuit.

No. 76-2009.

UNITED STATES of America,

Plaintiff-Appellee,

v.

William D. LEAMAN,

Defendant-Appellant.

Jan. 28, 1977.

By a judgment of the United States District Court for

the Southern District of Florida, at Miami, Jack K. Regan,

J., the defendant was convicted of conspiracy to possess,

possessing with intention to distribute, and distributing

cocaine and he appealed. The Court of Appeals, Clark, Cir-

cuit Judge, held, inter alia, that in view of lack of objection

to question and the introduction of substantial evidence to

demonstrate defendant’s connection with conspiracy, gov-

ernment agent’s testimony as to statement by occupier of

apartment that the other person therein owned the cocaine

was not error, and the improper questioning of defendant

as to his awareness of drug problem in community was cor-

rected by prompt objections and court’s admonition that

jury disregard improper questions,

Affirmed.

App. 2

1. Criminal Law —427(2)

In order that a statement made outside presence of

accused be admissible under coconspirator exception to

hearsay rule, there must be proof aliunder of existence of

conspiracy and defendant’s connection with it.

2. Criminal Law 698(1)

Otherwise inadmissible hearsay to which no objection

has been lodged may be considered by trier of fact to the

extent of its probative value.

3. Criminal Law —1036.5

If admission of hearsay rises to plain error affecting

substantial rights of accused, reversal is warranted. Fed.

Rules Crim.Proc. rule 52(b), 18 U.S.C.A.

4. Criminal Law —427(5)

Totally circumstantial evidence of conspiracy and de-

fendant’s connection would suffice to support admission of

hearsay by coconspirator.

5. Criminal Law —427(5)

Where substantial independent evidence was adduced

to prove existence of a conspiracy to possess cocaine and at

time sale was made defendant was in adjacent bedroom

from which the cocaine and scales used to weigh it were

produced and defendant owned scales and helped compute

new price for sale after shortage was discovered, there was

no error in admitting unobjected to testimony of govern-

App. 3

ment agent to effect that person in apartment stated that

the only other person in apartment was the owner of the

cocaine. Comprehensive Drug Abuse Prevention and Con-

trol Act of 1970, $c 401(a)(1), 406, 21 U.S.C.A. §8§

841 (a) (1), 846.

6. Criminal Law —427(3)

Generally, conspirators’ statements are admissible

even where conspiracy is not established until subsequent

point in proof.

7. Criminal Law —680(1), 1153(3)

Order in which evidence is admitted is within discre-

tion of trial court, and absent extratordinary circumstances

the order of proof cannot be used as basis for reversal.

8. Criminal Law —706(4), 730(3)

Asking defendant, being tried for conspiracy to possess

and for possession with intetnt to distribute and to distrib-

ute cocaine as to whether he was aware of community drug

problems was error, but the quick objection thereto and

court’s immediate instruction to disregard the improper

question removed prejudice from error.

9. Criminal Law —1171.1(1)

Reversal is required only when prosecutor’s improper

conduct injects such immaterial or extraneous points into

deliberation process that prompt instruction to disregard

cannot remove the prejudice.

App. 4

Appeal from the United States District Court for the

Southern District of Florida.

Before TUTTLE, CLARK and RONEY, Circuit

Judges.

CLARK, Circuit Judge:

-Defendant William Leaman was convicted by a jury

on March 2, 1976, of conspiracy to possess, possessing with

the intention to distribute, and ditributing cocaine. 21

U.S.C. $§841(a) (1) & 846. On appeal Leaman raises three

contentions: hearsay evidence was improperly admitted;

the evidence is insufficient to sustain the conviction; and

reversibly prejudicial questions were asked by the prose-

cutor. We affirm.

The testimony of Drug Enforcement Administration

Agent Jose Roque indicated that on August 28, 1975, he

arranged for the purchase of cocaine from a then-unknown

supplier. The arrangements were made through Mitcheii

Solomon who thought Roque to be nothing more than a

buyer of narcotics. After a meeting between Roque and

Solomon during which Roque was shown a sample of co-

caine, a sale was arranged for later in the day. Roque and

Solomon went to the apartment of Carol Brock in order to

exchange cash for the contraband. The following extract

from Roque’s testimony described the succeeding events:

At this point I asked her [Carol Brock] if I could

search her apartment for the purpose of a possi-

bility of someone hiding in the closet because at

this time I had not seen any drugs. For all I knew

there was someone waiting for me, an attempted

er ee ee ok ra

App. 5

armed robbery for the $20,000, She said that

wouldn’t be necessary; that there was only one

other person in the apartment; that he was the

owner of the cocaine; that he did not want to see

me; and he did not want me to see him. She never

did give me his name. [Emphasis supplied. ]

The defense did not object when Roque gave this testimony,

but on appeal defendant argues that Roque was improperly

permitted to introduce hearsay into evidence. Roque then

testified that Brock informed him the full one pound of

cocaine agreed upon was not available and the owner of

the drug was in the back room recomputing the purchase

price to reflect this shortage. Upon briefly being left alone,

Roque took the cocaine to other agents outside the apart-

ment, ascertained that the substance was indeed cocaine,

and then returned with his fellow agents to arrest those

involved, When the arrest occurred, Leaman was the only

other individual in the apartment.

[1] In order to determine whether sufficient evi-

dence was presented to sustain the conviction, it is first

necessary to consider whether Roque’s reference to Brock’s

statement that the other person in the apartment owned

the cocaine is properly included in the equation. Leaman

contends that this evidence was inadmissible since the

premise for its use was that it was the statement of a co-

conspirator. In order for a statement made out of the pres-

ence of the accused to be admissible under the coconspirator

exception, “there must be proof aliunde of the existence of

the conspiracy and .the defendant’s connection with it.”

United States v. James, 510 F.2d 546, 549 ‘5th Cir.), cert.

denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975).

Complaint is also made that there was no requirement that

App. 6

the existence of the conspiracy and Leaman’s linkage to it

to be proven prior to the admission of the coconspirator’s

statement. United States v. Apollo, 476 F.2d 156 (5th Cir.

1973). No objections of this sort were raised at the time

the evidence was presented.

[2,3] Otherwise inadmissible hearsay to which no

objection has been lodged may be considered by the trier-of-

fact to the extent of the probative value. Flores v. Estelle,

513 F.2d 764, 766 (5th Cir. 1975), cert. denied, 423 U.S.

989, 96 S.Ct. 401, 46 L.Ed.2d 308 (1975) ; United States v.

Jimenez, 496 F.2d 288, 291 (5th Cir. 1974), cert. denied,

420 U.S. 979, 95 S.Ct. 1407, 43 L.Ed.2d 660 (1975). None-

theless, if the admission of the hearsay rises to plain error

affecting substantial rights of the accused, reversal is war-

ranted. Fed.R.Crim.P. 52(b); Flores v. Estelle; Smith v.

United States, 343 F.2d 539, 542 (5th Cir.), cert. denied,

382 U.S. 861, 86 S.Ct. 122, 15 L.Ed.2d 99 (1965) ; Glenn v.

United States, 271 F.2d 880, 883 (6th Cir. 1959). The case

at bar, however, does not present any such plain error

possibility.

[4,5] Totally circumstantial evidence of the con-

spiracy and the defendant’s connection would suffice to

support the admission of hearsay by a coconspirator. Park

v. Huff, 506 F.2d 849 (5th Cir.), cert. denied, 423 U.S.

824, 96 S.Ct. 38, 46 L.Ed.2d 40 (1975). Here, substantial

independent evidence, both circumstantial and direct, was

adduced to prove the existence of a conspiracy. United

States v. Nixon, 418 U.S. 683, 701, 94 S.Ct. 3090, 3104, 41

L.Ed.2d 1039 (1974). The record evidence to demonstrate

Leaman’s connection with this conspiracy, though not over-

whelming, was clearly substantial enough to support the

jury’s verdict. At the time the sale was made, Leaman was

App. 7

in the adjacent bedroom from which the cocaine and the

scales used to weigh it were produced; he owned the scales,

he helped compute the new price for the sale after the short-

age was discovered. His attempt to ascribe innocent pur-

poses to these activities, at most, raised a jury issue. Be-

cause we conclude there was no error in the admission of

the statements, defendants’ ancillary contention as to the

insufficiency of the proof to sustain the conviction is with-

out merit.

(6,7] We note but also reject Leaman’s argument

that admission of this hearsay was improper because it was

adduced before existence of the conspiracy had been shown.

The principal authority relied on, United States v. Apollo,

476 F.2d 156 (5th Cir. 1973), is distinguishable not only

because of the failure to object, but also on other grounds.

There, the evidence of Apollo’s connection with the con-

spiracy was entirely dependent upon hearsay statements

of coconspirators. At the time of a proper contemporaneous

objection, the Apollo trial court erroneously overruled the

objection and refused instructions to the jury to limit con-

sideration of these statements pending the laying of a prop-

er predicate. Indeed, the court even affirmatively advised

the jury that hearsay was proper proof in such cases. Our

holding in Apollo that the introduction of hearsay before

the conspiracy was proven under the circumstances there

present did necessitate reversal, was accompanied by re-

statement of the general rule that conspirators’ statements

are admissible even where the conspiracy is not established

until a subsequent point in the proof, id. at 163, and that

the order in which evidence is admitted is within the dis-

cretion of the trial court and, absent extraordinary circum-

stances such as were present there, cannot be the basis for

reversal.

App. 8

The final argument presented by Lesman concerns

statements made by the prosecutor during the questioning

of the defendant. The first question posed was “Are you

aware of the drug problem in the community?” After ob-

jection and an instruction to the jury to disregard this

statement, the prosecutor asked, “Are you aware that drugs

are common in this community?” Again objection was made

and the jury told to disregard this question also. A motion

for a mistrial was denied.

[8,9] There was no justification for the questions,

particularly not the second. Their asking was error. The

Government offers no basis for the questions other than that

they were proper cross-examination. This is insufficient.

The attempt to discredit the defendant by allusions to gen-

eral problems of drug abuse in the community carries too

clear a potential for visiting upon his defense an associa-

tion with offenses other than those charged to pass muster.

However, the quick objection and the court’s immediate in-

struction to disregard each time the improper question was

presented, prevents a finding that the suggestion of a drug

problem in the community vitiates this conviction. Cf.,

United States v. Bell, 165 U.S.App.D.C. 146, 506 F.2d 207,

225-26(1974) ; United States v. Gilbert, 447 F.2d 883 (10th

Cir. 1971). Reversal is required only when the prosecutor’s

improper conduct injects such immaterial or erroneous

points into the deliberative process that prompt instruction

to disregard cannot remove the prejudice. Though the ques-

tions should not have been asked, they did not approach an

irreparable fouling of the jurors’ deliberations.

The judgment is

AFFIRMED.

App. 9

[TITLE OMITTED]

(Filed Feb. 19, 1977)

ON PETITION FOR REHEARING

(Filed Feb. 17, 1977)

Before TUTTLE, CLARK and RONEY, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the same

is hereby DENIED.

ENTERED FOR THE COURT:

Charles Clark e

Unitetd States Circuit Judge